AFFIRMED and Opinion Filed May 12, 2021
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00070-CR
AMBER F. PAVATT, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 18-11020-422F
MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Schenck Amber Pavatt appeals her conviction for aggravated assault with a deadly
weapon. TEX. PENAL CODE ANN. § 22.2(b)(1). In a single issue, she asserts the
evidence is insufficient to support her conviction. We affirm the trial court’s
judgment. Because all issues are settled in the law, we issue this memorandum
opinion. TEX. R. APP. P. 47.4.
PROCEDURAL BACKGROUND
Appellant was charged by indictment with the felony offense of aggravated
assault with a deadly weapon by threat. The State alleged appellant intentionally and knowingly threatened her cousin Brianna (1) by advancing towards her while
holding a knife, and/or (2) by pushing Brianna while holding a knife, and/or (3) by
threatening to stab Brianna while holding a knife. A jury found appellant guilty of
the charged offense and the trial court assessed punishment at five years’
confinement.
FACTUAL BACKGROUND
In November of 2017, appellant’s aunt and uncle, Kathy and Michael, became
the custodians of appellant’s two minor children. On Christmas day 2018, appellant
visited her children at Kathy and Michael’s home. An argument ensued over Kathy
and Michael’s child rearing methods and appellant left the house with one of the
children. Kathy called 9-1-1 while Michael warned appellant that if she took the
child she would face kidnapping charges.
The child was retrieved and taken to a safe place while appellant went back
into the house and retrieved one or two knives from the kitchen.1 An altercation then
ensued between appellant and her cousin, Brianna, as appellant attempted to leave
the house.
In response to the 9-1-1 call, Deputy Wiser was dispatched to the scene. He
retrieved two fixed blade knives from a trash can located near the back door of the
1 Brianna indicated appellant held a single knife whereas Michael stated she held two knives.
–2– house. The actual knives Deputy Wiser retrieved, and pictures of same, were
introduced into evidence at trial. Deputy Wiser opined that each of the knives, if
used by threat, were capable of causing serious bodily injury. He recalled being told
that during the altercation between appellant and Brianna appellant stated “I’ll stab
you, bitch.”
Brianna recounted that she observed appellant storm into the house, red-faced
and very angry. She went to the kitchen, threw open a drawer and retrieved a knife.
Appellant headed towards the back door. Brianna thought appellant was on her way
to hurt her parents who were outside, Brianna thus attempted to block her from
leaving the house with the knife. Appellant, while still holding the knife in her hand,
shoved Brianna into a wall. Brianna thought appellant might harm her in the process
of trying to go outside, so she put her in a headlock with her arm against the cabinet
doors. While restrained, appellant moved her arm in a stabbing motion and said she
was going to stab Brianna. Brianna believed appellant’s threat to stab her. At trial,
Brianna, with the assistance of an investigator, reenacted the struggle with appellant.
While the altercation ensued, Michael was outside smoking a brisket. Kathy
yelled that there was a commotion inside. Michael entered the home and saw
appellant and Brianna wrestling and overheard appellant say, “I’m going to stab you
bitch.” He saw Brianna had appellant pinned against a wall near a trash can by the
back door and appellant was holding knives and making stabbing motions with the
–3– blades facing Brianna. At trial, Michael demonstrated the struggle between
appellant and Brianna and indicated the only thing that prevented appellant from
stabbing Brianna was the manner in which Brianna was restraining appellant’s arm.
Michael grabbed appellant’s arm and put enough pressure on it to make her drop the
knives into the nearby trash can. He then told Brianna to release appellant and told
appellant to get out of his house. Appellant left the house and sat in her car for a
few minutes before getting out and kicking the back of Michael’s van.
DISCUSSION
I. Standard of Review
In her sole issue, appellant asserts the evidence is legally and factually
insufficient to support her conviction. We overrule appellant’s complaint
concerning the factual sufficiency of the evidence because we do not review
the factual sufficiency of the evidence to support a defendant’s conviction. See
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
As to appellant’s legal sufficiency complaint, we must consider all the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and reasonable inferences therefrom, a rational juror could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318–19 (1979); Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim.
App. 2018). We must give deference to the responsibility of the trier of fact to fairly
–4– resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. Our role is
limited to ensuring that the jury reached a rational conclusion, not to re-evaluate the
weight and credibility of the evidence. See Muniz v. State, 851 S.W.2d 238, 246
(Tex. Crim. App. 1993).
In conducting our review, we consider all the evidence in the record. Winfrey
v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). If the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict and therefore defer to that determination. Jackson, 443 U.S. at 326.
Direct and circumstantial evidence are treated equally, and circumstantial evidence
alone may be sufficient to uphold a conviction so long as the cumulative force of all
the incriminating evidence is sufficient to support the conviction. Zuniga, 551
S.W.3d at 733. Finally, the factfinder is entitled to judge the credibility of witnesses
and can choose to believe all, some, or none of the testimony presented by the
parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
A person commits aggravated assault if the person commits assault and uses
a deadly weapon during the commission of the offense. TEX. PENAL CODE ANN.
§ 22.02(a)(2). An assault occurs if a person intentionally or knowingly (1) causes
bodily injury to another, (2) threatens another with imminent bodily injury, or (3)
causes physical contact with another when the person knows or should reasonably
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AFFIRMED and Opinion Filed May 12, 2021
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00070-CR
AMBER F. PAVATT, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 18-11020-422F
MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Schenck Amber Pavatt appeals her conviction for aggravated assault with a deadly
weapon. TEX. PENAL CODE ANN. § 22.2(b)(1). In a single issue, she asserts the
evidence is insufficient to support her conviction. We affirm the trial court’s
judgment. Because all issues are settled in the law, we issue this memorandum
opinion. TEX. R. APP. P. 47.4.
PROCEDURAL BACKGROUND
Appellant was charged by indictment with the felony offense of aggravated
assault with a deadly weapon by threat. The State alleged appellant intentionally and knowingly threatened her cousin Brianna (1) by advancing towards her while
holding a knife, and/or (2) by pushing Brianna while holding a knife, and/or (3) by
threatening to stab Brianna while holding a knife. A jury found appellant guilty of
the charged offense and the trial court assessed punishment at five years’
confinement.
FACTUAL BACKGROUND
In November of 2017, appellant’s aunt and uncle, Kathy and Michael, became
the custodians of appellant’s two minor children. On Christmas day 2018, appellant
visited her children at Kathy and Michael’s home. An argument ensued over Kathy
and Michael’s child rearing methods and appellant left the house with one of the
children. Kathy called 9-1-1 while Michael warned appellant that if she took the
child she would face kidnapping charges.
The child was retrieved and taken to a safe place while appellant went back
into the house and retrieved one or two knives from the kitchen.1 An altercation then
ensued between appellant and her cousin, Brianna, as appellant attempted to leave
the house.
In response to the 9-1-1 call, Deputy Wiser was dispatched to the scene. He
retrieved two fixed blade knives from a trash can located near the back door of the
1 Brianna indicated appellant held a single knife whereas Michael stated she held two knives.
–2– house. The actual knives Deputy Wiser retrieved, and pictures of same, were
introduced into evidence at trial. Deputy Wiser opined that each of the knives, if
used by threat, were capable of causing serious bodily injury. He recalled being told
that during the altercation between appellant and Brianna appellant stated “I’ll stab
you, bitch.”
Brianna recounted that she observed appellant storm into the house, red-faced
and very angry. She went to the kitchen, threw open a drawer and retrieved a knife.
Appellant headed towards the back door. Brianna thought appellant was on her way
to hurt her parents who were outside, Brianna thus attempted to block her from
leaving the house with the knife. Appellant, while still holding the knife in her hand,
shoved Brianna into a wall. Brianna thought appellant might harm her in the process
of trying to go outside, so she put her in a headlock with her arm against the cabinet
doors. While restrained, appellant moved her arm in a stabbing motion and said she
was going to stab Brianna. Brianna believed appellant’s threat to stab her. At trial,
Brianna, with the assistance of an investigator, reenacted the struggle with appellant.
While the altercation ensued, Michael was outside smoking a brisket. Kathy
yelled that there was a commotion inside. Michael entered the home and saw
appellant and Brianna wrestling and overheard appellant say, “I’m going to stab you
bitch.” He saw Brianna had appellant pinned against a wall near a trash can by the
back door and appellant was holding knives and making stabbing motions with the
–3– blades facing Brianna. At trial, Michael demonstrated the struggle between
appellant and Brianna and indicated the only thing that prevented appellant from
stabbing Brianna was the manner in which Brianna was restraining appellant’s arm.
Michael grabbed appellant’s arm and put enough pressure on it to make her drop the
knives into the nearby trash can. He then told Brianna to release appellant and told
appellant to get out of his house. Appellant left the house and sat in her car for a
few minutes before getting out and kicking the back of Michael’s van.
DISCUSSION
I. Standard of Review
In her sole issue, appellant asserts the evidence is legally and factually
insufficient to support her conviction. We overrule appellant’s complaint
concerning the factual sufficiency of the evidence because we do not review
the factual sufficiency of the evidence to support a defendant’s conviction. See
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
As to appellant’s legal sufficiency complaint, we must consider all the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and reasonable inferences therefrom, a rational juror could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318–19 (1979); Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim.
App. 2018). We must give deference to the responsibility of the trier of fact to fairly
–4– resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. Our role is
limited to ensuring that the jury reached a rational conclusion, not to re-evaluate the
weight and credibility of the evidence. See Muniz v. State, 851 S.W.2d 238, 246
(Tex. Crim. App. 1993).
In conducting our review, we consider all the evidence in the record. Winfrey
v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). If the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict and therefore defer to that determination. Jackson, 443 U.S. at 326.
Direct and circumstantial evidence are treated equally, and circumstantial evidence
alone may be sufficient to uphold a conviction so long as the cumulative force of all
the incriminating evidence is sufficient to support the conviction. Zuniga, 551
S.W.3d at 733. Finally, the factfinder is entitled to judge the credibility of witnesses
and can choose to believe all, some, or none of the testimony presented by the
parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
A person commits aggravated assault if the person commits assault and uses
a deadly weapon during the commission of the offense. TEX. PENAL CODE ANN.
§ 22.02(a)(2). An assault occurs if a person intentionally or knowingly (1) causes
bodily injury to another, (2) threatens another with imminent bodily injury, or (3)
causes physical contact with another when the person knows or should reasonably
–5– believe that the other will regard the contact as offensive or provocative. Id. § 22.01.
The penal code defines “deadly weapon” as “anything that in the manner of its use
or intended use is capable of causing death or serious bodily injury.” Id.
§ 1.07(a)(17)(B). “Serious bodily injury” is bodily injury that “creates a substantial
risk of death or that causes death, serious permanent disfigurement, or protracted
loss of impairment of the function of any bodily member or organ. Id. §1.08(1)(46).
II. Application of the Law to the Facts
Appellant contends the evidence is insufficient to establish (1) she
intentionally or knowingly threatened Brianna, (2) the knife was a deadly weapon
and (3) she used or displayed a deadly weapon during the commission of the alleged
threat.
A. Knowing or Intentional Act
Aggravated assault is a result-oriented conduct. Garfias v. State, 424 S.W.3d
54, 60 (Tex. Crim. App. 2014). A person acts intentionally, or with intent, with
respect to a result of her conduct when it is her conscious objective or desire to cause
the result. TEX. PENAL CODE ANN. § 6.03(a). A person acts knowingly, or with
knowledge, with respect to the circumstances surrounding her conduct when she is
aware that the circumstances exist. Id. § 6.03(b). A person acts knowingly, or with
knowledge, when she is aware that her conduct is reasonably certain to cause the
result. Id.
–6– The jury may infer intent or knowledge from the facts which tend to prove
their existence, including the defendant’s acts, words, and conduct. Hart v. State,
89 S.W.3d 61, 64 (Tex. Crim. App. 2002). To uphold a conviction for threat, there
must be some evidence of a threat being made. Schmidt v. State, 232 S.W.3d 66, 68
(Tex. Crim. App. 2007). The presence of a deadly weapon may be sufficient to
constitute a threat. Gaston v. State, 672 S.W.2d 819, 821 (Tex. App.—Dallas 1983,
no pet.).
The evidence established appellant got into a fight with Brianna’s parents
immediately prior to arming herself with at least one knife, angrily advanced on
Brianna with the knife blade pointed at her, pushed Brianna, fought with her and told
her she was going to stab her while moving the knife in a stabbing motion. Appellant
nevertheless argues the evidence establishes Brianna was the aggressor and that she
only threatened Brianna after Brianna restrained her. While the jury might have
viewed the evidence to suggest appellant was simply reacting to Brianna, it was not
compelled to do so. A rational jury could determine that appellant’s escalation of
the dispute to include resort to a deadly weapon was neither justified nor in keeping
with her position any threats she made were solely in self-defense.
B. A Knife as a Deadly Weapon
Where no injury is sustained by the victim, the State must introduce evidence
of other factors to establish that a knife is a deadly weapon. Victor v. State, 874
–7– S.W.2d 748, 751–52 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). The presence
of a knife, even without an accompanying verbal threat, may be sufficient to support
a finding of aggravated assault with a deadly weapon. McCain v. State, 22 S.W.3d
497, 503 (Tex. Crim. App. 2000). Deputy Wiser testified that the knives as used in
the manner described by Brianna and Michael were capable of causing serious
bodily injury or death. In addition, Brianna and Michael testified appellant
threatened to stab Brianna when appellant and Brianna were in close proximity and
in fact tried to stab her and was prevented from doing so only because of the way
Brianna restrained her. Michael testified he was afraid had he not intervened
appellant would have stabbed Brianna. Brianna testified that if she had let go of
appellant, she felt appellant might have tried to stab her because she was still very
angry. Viewing the evidence in the light most favorable to the verdict, a rational
jury could have concluded appellant threatened Brianna with a deadly weapon. See
Hunter v. State, Nos. 01-00-00722-CR, 01-00-00726-CR, 2001 WL 754458, at *
(Tex. App.—Houston [1st Dist.] July 5, 2001, no pet.) (not designated for
publication) (State could prove knife was a deadly weapon by its blade’s sharpness
or size, the use of brandishing motions, threats made by appellant, complainant’s
fear of serious bodily injury or death, or physical proximity of appellant to
complainant); see also Victor, 874 S.W.2d at 751 (same).
–8– C. Use or Display of a Deadly Weapon
Generally, in relation to a deadly weapon, the term “use” means to utilize,
employ or apply the deadly weapon to achieve its purpose. Patterson v. State, 769
S.W.2d 938, 941 (Tex. Crim. App. 1989). The use of a deadly weapon extends to
any employment of a deadly weapon, even its simple possession, if such possession
facilitates the associated offense. Id. In this case, not only did appellant threaten to
stab Brianna, she also tried to stab Brianna while she was restrained. Viewing this
evidence in the light most favorable to the verdict, a rational jury could have found
sufficient evidence that appellant used or exhibited a knife.
We overrule appellant’s sole issue.
CONCLUSION
We conclude the evidence is legally sufficient to support appellant’s
conviction. We therefore affirm the trial court’s judgment.
/David J. Schenck/ DAVID J. SCHENCK JUSTICE
DO NOT PUBLISH TEX. R. APP. P. 47
200070F.U05
–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
AMBER F. PAVATT, Appellant On Appeal from the 422nd Judicial District Court, Kaufman County, No. 05-20-00070-CR V. Texas Trial Court Cause No. 18-11020- THE STATE OF TEXAS, Appellee 422F. Opinion delivered by Justice Schenck. Justices Reichek and Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 12th day of May, 2021.
–10–