Charles Eugene Harriman v. The State of Texas--Appeal from 296th District Court of Collin County

IN THE

TENTH COURT OF APPEALS

No. 10-95-116-CR

CHARLES EUGENE HARRIMAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 296th District Court

Collin County, Texas

Trial Court # 296-80582-94

O P I N I O N

Appellant Harriman appeals from his conviction for aggravated assault, enhanced by a prior conviction, for which he was sentenced to 15 years and 6 months in the Texas Department of Criminal Justice.

The Wendells, the Kneedlers, and Appellant are neighbors. On December 21, 1993, at about 6:00 p.m., Appellant went to the Wendells' house. He had been drinking, was incoherent, described his gun, and began looking for beer. The Wendells were frightened. Mr. Wendell got Appellant out of his house and went across the street to Terry Kneedler's house, followed by Appellant. Kneedler did not allow Appellant into his house, but he joined Wendell and Appellant outside. Appellant, vexed by Kneedler's refusing to let him in his house, became violent, swung at Kneedler, and hit and kicked him. Appellant cursed and screamed, tore off his shirt, beat his chest, and stated to Kneedler, "I'm going to kill you." Appellant then pulled a razor-blade boxcutting knife and began to slash at Kneedler. Kneedler was able to block Appellant's slashes at his head and neck. Appellant also threatened to cut Kneedler's head off and kill him. Mrs. Kneedler, who was observing from the house, called the police who arrived almost immediately. They found Appellant drunk. A razor knife was taken from his pocket. The arresting officer testified that the knife was "definitely" capable of causing serious bodily injury or death.

The jury found Appellant guilty. After proof of a prior felony conviction, the judge sentenced Appellant to prison for 15 years and 6 months.

Appellant appeals on two points of error.

Point one: "The trial court erred in holding the evidence sufficient to sustain the conviction because the evidence was insufficient to prove beyond a reasonable doubt that Appellant used a deadly weapon, to-wit: a knife that in the manner of its use or intended use was capable of causing death or serious bodily injury."

The standard of review is, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could find each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Geesa v. State 820 S.W.2d 154 (Tex. Crim. App. 1991).

The evidence is sufficient. Appellant made numerous murderous threats. He hit and kicked the victim causing serious bodily injury. He pulled a knife which several witnesses, including a police officer, testified was capable of causing death or serious bodily injury. Also he tried again and again to slash the victim's head, neck and facial area. Point one is overruled.

Point two: "The punishment is void because the punishment assessed is not authorized by statute."

The punishment range for Appellant's offense is not less than two years or more than twenty years with the finding of "true" to the enhancement paragraph of the indictment. The punishment range for Appellant's offense is not less than two or more than ten years with the finding of "untrue" to the enhancement paragraph. The judgment brought forward in the transcript showed "true" typed for the finding on the enhancements, and further showed a small handwritten notation "un" just prior to the typed "true." The trial judge signed the judgment. Without the enhancement being found to be "true," the punishment is outside the lawful range. Point two is sustained.

The judgment of guilty is affirmed. The judgment insofar as the sentence imposed is reversed. The cause is remanded for resentencing.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed in part; reversed and remanded in part

Opinion delivered and filed January 31, 1996

Do not publish