Rickey Matthew Sanders v. The State of Texas--Appeal from 420th District Court of Nacogdoches County

NO. 12-06-00255-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICKY MATTHEW SANDERS, APPEAL FROM THE 420TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Ricky Matthew Sanders appeals his conviction for the offense of aggravated assault. In one issue, Appellant challenges the legal and factual sufficiency of the evidence to support the jury s finding that Appellant used or exhibited a deadly weapon during the assault. We affirm.

Background

Appellant was indicted on the charge of aggravated assault.1 The indictment alleged that, on June 30, 2005, Appellant intentionally, knowingly, or recklessly caused bodily injury to Dolvin Upshaw by striking him. It also alleged that Appellant used or exhibited a deadly weapon, a knife, during the commission of the assault. Trial commenced on May 30, 2006. The jury found Appellant guilty of aggravated assault and sentenced him to five years of imprisonment. This appeal followed.

Evidentiary Sufficiency of Deadly Weapon Finding

Appellant argues that the evidence at trial was legally and factually insufficient to support the jury s finding that Appellant used or exhibited a deadly weapon during the assault. More specifically, Appellant claims that there was not sufficient evidence to support a finding that (1) the knife in question was a deadly weapon and (2) that the knife was used or exhibited during the assault.

Standard of Review

In reviewing a legal sufficiency question, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The trier of fact, here the jury, is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App. Corpus Christi 1988, pet. ref d). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).

In conducting a factual sufficiency review of the evidence supporting the jury s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof in support is so obviously weak as to undermine our confidence in the jury s determination, or the supporting proof, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. It is not enough that we might harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury s resolution of the conflict. See Watson, 204 S.W.3d at 417.

Discussion

The Texas Penal Code defines a deadly weapon as a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or ... anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. 1.07(a)(17) (Vernon Supp. 2006). The Code defines serious bodily injury as bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Id. 1.07(a)(46).

Whether a particular knife qualifies as a deadly weapon under the Code depends upon the evidence presented. See Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). In the instant case, there is no evidence that the knife was manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. See McCain v. State, 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000). Therefore, we must ascertain if there was legally and factually sufficient evidence to support a finding that the knife was capable of causing death or serious bodily injury in the manner of its use or intended use. SeeTex. Penal Code Ann. 1.07(a)(17)(B); McCain, 22 S.W.3d at 502-03.

At trial, the State presented testimony from victim Upshaw and the investigating officers, Sergeant David Crisp and Deputy Brady Stanaland of the Nacogdoches County Sheriff s Department. The State also introduced into evidence the knife and three photographs taken at the crime scene. These photographs were of the knife, the injuries to Upshaw s head, and the injuries to Upshaw s arm.

Upshaw testified that he and Appellant were good friends. On June 30, 2005, Appellant came to Upshaw s home where the two engaged in a conversation on Upshaw s back porch. Upshaw stated that Appellant had one hand behind his back. He stated that Appellant suddenly took his hand from behind his back and hit him in the head, knocking off his glasses and injuring his head. Upshaw felt a thud when he was hit and blood shot from his head. Upshaw testified that, at the time, he believed Appellant had hit him with a rock or some similar object. He also stated that he believed that he somehow knocked the object from Appellant s hand shortly after being hit.

Upshaw testified that after he knocked the object from Appellant s hand, Appellant grabbed him by the arm and jerked him off his porch. Upshaw fell on his back onto the cement sidewalk near the porch. Appellant began screaming over and over that he had previously warned Upshaw I was going to kill you about my wife and my girlfriend. 2 Appellant jumped on top of Upshaw and began beating him with both fists. Upshaw then realized that Appellant was going to kill me. Upshaw managed to fight Appellant off. Upshaw stated that Appellant ran away, screaming I told you I m gonna kill you about my [] wife and girlfriend. With blood running down his forehead, Upshaw stumbled back into his home from the sidewalk. As a result of his injuries, he found himself in a confused state and had trouble remembering the number 911.

Upshaw stated that when Sergeant Crisp and Deputy Stanaland arrived, they found a knife, State s Exhibit 1, on Upshaw s porch. The deputies showed the knife to him and he noticed that there was blood on the butt of the knife. He stated that the deputies told him, Here is what you were hit with. Upshaw testified that he believed this knife was the object Appellant had initially struck him with and that he had knocked from Appellant s hand. Nonetheless, Upshaw admitted that he did not see this knife at any point during the assault and that he did not know who actually owned the knife. He believed that he did not see the knife in Appellant s hand because it was dark outside when the assault occurred.

Upshaw was taken to a local hospital where five staples were used to close his head wound. He testified that the wound left a permanent scar on his forehead which would require surgery to be removed.

Sergeant David Crisp testified that when he and Deputy Stanaland arrived at Upshaw s home, they followed a trail of blood from the sidewalk to the porch. They first noticed a watch on the sidewalk and then the knife on the porch. The knife, a lock blade pocketknife, was found with the blade out. Drops of blood were on the handle of the knife. They then made contact with Upshaw, who was dazed and had a three inch open gouge on his head, which was bleeding. His elbow was also bleeding. Sergeant Crisp photographed the injuries and the knife.

During cross examination, Sergeant Crisp admitted that the blood droppings appeared to have fallen on the knife after the knife was already on the ground. He also admitted that there did not appear to be any blood on the blade of the knife. On redirect, he stated that the blood droppings found on the knife would be consistent with Upshaw s being struck by the butt of the knife, the knife being dropped during the ensuing struggle, and Upshaw later dripping blood onto the knife as he walked around in a dazed state. Based upon his training and experience as an eleven year veteran peace officer, Sergeant Crisp testified that the knife, even as used by Appellant, was a deadly weapon which was capable of causing serious bodily injury. Sergeant Crisp also testified that he and Deputy Stanaland traveled to Appellant s home to arrest him. A struggle ensued during the arrest in which Appellant told the deputies that he was not scared of them and that he was going to cut us like he cut that other guy.

Deputy Stanaland testified, confirming much of Sergeant Crisp s testimony. He identified the knife in question and stated that after finding it, he was told by Upshaw that it was not his knife. He testified that he was not able to determine who actually owned the knife but that he believed Appellant had used the knife during the assault. Based upon his two and one half years of training and experience as a peace officer, he stated that the knife, as it was used by Appellant, was capable of causing serious bodily injury. He also confirmed that during the struggle to arrest Appellant, Appellant stated that he would cut us like he cut the other man. On cross examination, Deputy Stanaland admitted that the blood on the knife appeared to have been dropped on the knife. He stated that Upshaw never told them that he had been stuck with a knife. He stated that Upshaw told him that he had been struck with an unknown object.

The jury was entitled to draw reasonable inferences from the evidence. Benavides, 763 S.W.2d at 588-89. Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada, 721 S.W.2d at 309. Upshaw testified that he had been hit with an unknown object. The knife was found, open, near where the assault with the unknown object had occurred. This evidence supports a finding that the butt of the knife was used to assault Upshaw. Appellant s ownership and intended use of the knife is supported by his statement to deputies Crisp and Stanaland that he was going to cut [them] like he cut that other guy and his statements to Upshaw such as I told you I m gonna kill you about my [] wife and girlfriend. Upshaw testified about his injury from the knife, which included testimony that the wound required five staples and that it would leave a permanent scar. Sergeant Crisp testified that, as used, the knife in question was a deadly weapon. Deputy Stanaland confirmed that the knife, as used, was capable of causing serious bodily injury. After a reviewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the element of use of a deadly weapon beyond a reasonable doubt. Therefore, the evidence was legally sufficient to support the jury s deadly weapon finding. See King, 29 S.W.3d at 562.

Appellant has also argued that the evidence was factually insufficient to support the deadly weapon finding. Appellant asks us to focus on Upshaw s testimony that he did not see the knife and the deputies testimony that there was no blood on the blade of the knife and that the blood on the knife handle appeared to have been dripped there after the assault. However, where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. Further, after a neutral review of the evidence, both for and against the finding, we conclude that the proof in support of the finding is not so obviously weak as to undermine our confidence in the jury s determination nor is it greatly outweighed by contrary proof. Therefore, the evidence was factually sufficient to support the jury s deadly weapon finding. See Johnson, 23 S.W.3d at 11.

We overrule Appellant s sole issue.

Disposition

We affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered March 7, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 See Act of May 28, 2003, 78th Leg., R.S., ch. 1019, 2003 Tex. Gen. Laws 2963 (amended 2005) (current version at Tex. Penal Code Ann. 22.02 (Vernon Supp. 2006)).

2 Upshaw testified that Appellant was under the erroneous belief that Upshaw was having a romantic relationship with Upshaw s first cousin, a married woman known by Upshaw as Bird. According to Upshaw, Appellant also erroneously believed that Bird was both Appellant s girlfriend and wife when, in fact, she was neither.