Abron, David Lynn v. State

• Court: Court of Appeals of Texas
• Decided: October 29, 2012
• Docket: 05-11-01490-CR
• Status: Published

Opinion

Aflirmed; Opinion Filed October 29, 2012.

In The Qtuurt of Appratz iftI! Thtrirt of ixaa at atta No. 05-11-01490-CR

DAVID LYNN ABRON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F10-7266-N

MEMORANDUM OPINION

Before Justices Bridges, Richter, and Lang Opinion By Justice Lang

David Lynn Abron appeals from his conviction for aggravated assault with a deadly

weapon. In a single issue, appellant contends the evidence is legally insufficient to prove he

used a deadly weapon during the commission of the offense or that he threatened the

complainant. We affirm the trial court’s judgment. The background of the case and the evidence

admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We

issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the

law to be applied in the case is well settled. BAcKGRouND AND Evnwr4cE PRESENTED

Appellant waived a jury and pleaded not guilty before the trial court to aggravated assault

with a deadly weapon, a knife. During the trial, Bobby Johnson testified he was retired and did

yard work for extra money. He kept lawn equipment in a shed in his back yard. On July 29,

2010, someone broke into the shed and stole some of his equipment. Johnson believed appellant

was the thief. To prevent another theft, Johnson put a chain and master lock on the shed door.

On July 30, 2010, Johnson awoke sometime between 2:00 a.m. and 3:00 a.m. to use the

bathroom. He saw two women standing on the street in front of his house. Johnson went out on

the front porch and “sat low in a chair” that was hidden by a rose bush. He watched the women

who were both talking on their cell phones. Suddenly, appellant walked from Johnson’s back

yard toward the front yard. Johnson testified he believed the women were lookouts for appellant

and were talking to appellant on their phones. When Johnson confronted appellant by asking

why he was coming from Johnson’s back — at that time in the morning the women ran off Appellant said he was looking for his dog. Johnson testified his house has a “bricked-up wall”

that goes from the front yard along the side of the house to the back yard. Appellant did not have

permission to be anywhere on Johnson’s property. Johnson’s grandson Markel came outside to

see what was going on. When Markel walked toward appellant appellant pulled out a knife.

Johnson testified he saw a knife in appellant’s hand, and the knife was open.

Markel Johnson testified he heard his grandfather talking to someone outside in the

middle of the night. When he went outside to investigate Markel heard his grandfather ask

appellant what was he doing coming from the back — at two o’clock in the morning. Appellant said he was looking for his dog. Markel testified he walked toward appellant

intending to “grab” him to await the police. Appellant pulled out a knife and said “get badc”

-2- Markel raised his hands and stepped away from appellant. Markel testified the knife was about

10 inches away” from him. Appellant held the knife low down by [appellant’sj waist.”

Market described the knit as “about that long,” and said it was the kind that “you flip in and out

but not a switchblade.” Markel testified he was “shocked” when appellant pulled out the

knife. Markel felt threatened because he believed appellant would cut him with the kiife.

The trial court found appellant guilty of aggravated assault with a deadly weapon.

Pursuant to an agreement between appellant and the State during the punishment phase, the trial

court assessed punishment at three years’ imprisonment.

APPLIcABI.E LAw

in reviewing a challenge to the sufficiency of the evidence, we examine all the evidence

in the light most favorable to the verdict and determine whether a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v. Viiginia, 443

U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894—95 (Tex. Crim. App. 201 1); Brooks v.

State, 323 S.W.3d 893, 895 (‘fex. Crirn. App. 2010) (plurality op.). We are required to defer to

the fact finder’s credibility and weight determinations because the fact finder is the sole judge of

the witnesses’ credibility and the weight to be given their testimony. See Jackson, 443 U.S. at

326.

The State was required to prove beyond a reasonable doubt that appellant intentionally or

knowingly threatened Markel Johnson with imminent bodily injury, and appellant used and

exhibited a deadly weapon, a knife, during the commission of the assault. See TEx. PENAL CODE

ANN. § 22.0 l(a)(2), 22.02(a)(2) (West 2011). A deadly weapon means “anything that in the

manner of its use or intended use is capable of causing death or serious bodily injury.” TEx.

PENAL CODE ANN. § l.07(a)(17)(B) (West 2011). Objects that are not usually considered

-‘3- dangerous weapons may become so. depending on the manner in which they are used during the

commission of an offense. Thomas v. State. 821 S.W.2d 61 6, 620 (Tex. [rim. App. 1991). To

prove a particular knife is a deadly weapon, the State may produce testimony regarding the size

of the knife, the manner of its use, and its capability to cause serious bodily injury or death. See

B/am v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). In addition, the fact finder may

consider the words spoken by the appellant in making a deadly weapon finding. See id.

DISCUSSION

Appellant contends the evidence is insufficient to prove he used or exhibited a deadly

weapon because there was no evidence presented about the size, shape, or sharpness of the blade.

Appellant asserts that because no threatening words were spoken, nor did he threaten the

complainant with imminent bodily injury, the evidence is insufficient to support the conviction.

The State responds the evidence is sufficient to prove appellant used a deadly weapon during the

commission of the assault.

Johnson and Markel testified appellant pulled out a knife when Markel walked toward

appellant. Markel testified the knife was only ten inches away from him, and he felt threatened

when appellant pulled out the knife and ordered him to “get back.” Johnson saw the blade, and

Markel gave a description of the approximate size of the knife. Markel also described how

appellant held the knife. Viewing the evidence in the light most favorable to the verdict, we

conclude a rational trier of fact could have found, beyond a reasonable doubt, that appellant

intended to threaten Markel with imminent bodily injury when he pulled out the knife. Thus, the

evidence is sufficient to support the conviction. We resolve appellant’s sole issue against him.

-4- We affirm the trial court’s judgment.

Do Not Publish TEx. R. App. P.47 II 1490F.U05

-5- Qtourt of ppea1 if tftj ttrItt of Z1Lxa at a11a JUDGMENT

DAVID LYNN ABRON, Appellant Appeal from the 195th Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-11-01490-CR V. F10-72686-N). Opinion delivered by Justice Lang, Justices TIlE STATE OF TEXAS, Appellee Bridges and Richter participating.

i3ased on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.

Judgment entered October 29, 2012.

JUSTICE/ /