Brian Everett Brandon v. State

Opinion

NO. 07-06-0249-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 4, 2007

______________________________

BRIAN EVERETT BRANDON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 48,036-E; HONORABLE ABE LOPEZ, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant was placed on deferred adjudication for a period of 10 years after entering a plea of guilty, pursuant to a plea bargain, to the offense of aggravated kidnapping. The State subsequently filed a motion to proceed with adjudication alleging that appellant committed the new offense of assault. The trial court subsequently conducted a hearing and found the appellant guilty of aggravated kidnapping and, after receiving evidence regarding punishment, assessed appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of 15 years. We affirm.

Appellant's attorney has filed an Anders brief and a motion to withdraw. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 498 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court's judgment. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a pro se response. Although, appellant requested and was granted an extension of time to file a pro se response, appellant has not filed a response.

By his Anders brief, counsel raises grounds that could possibly support an appeal, but concludes the appeal is frivolous. We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no such arguable grounds and agree with counsel that the appeal is frivolous.

Accordingly, counsel's motion to withdraw is hereby granted and the trial court's judgment is affirmed. ⁽¹⁾

Mackey K. Hancock

Justice

Do not publish.

1. Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant's right to file a pro se petition for discretionary review. See Tex. R. App. P. 48.4.

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NO.  07-10-0150-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL B

                                                            JANUARY 18, 2011

                                            ______________________________

                                                 OSCAR ROSAS HERNANDEZ,

                                                                                                            Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

                                                                                                            Appellee

                                           _______________________________

                     FROM THE 413TH DISTRICT COURT OF JOHNSON COUNTY;

                       NO. F43722; HON. WILLIAM C. BOSWORTH, Jr., PRESIDING

                                            ______________________________

Memorandum Opinion

______________________________

Before QUINN, C.J., and CAMPBELL  and HANCOCK,  JJ.

            Oscar Rosas Hernandez (appellant) appeals his conviction for aggravated robbery.  Through a single issue, appellant contends the evidence is legally insufficient to show that the knife used in the commission of the crime was used in a manner capable of causing serious bodily injury.  We affirm.

Background

            Delilah Ball testified that on the day of the robbery she was working at Flamingo Bingo.  After the business had closed, Ball went to lock the back door.  Before she got to the door, a person came out from the back and “had a silver handle[d] knife, waving like this (indicating).”  She further testified that he had a “silver handled butcher knife.”   Ball stated that the person was “taking and going like this at me (indicating), and trying to - - I held on my purse and scuffled with him just a little bit, but he was trying to cut the handles of my purse.”  She further described the person “swinging the knife at [her].”  According to Ball, the owner of the business, Steve Talavera, started toward Ball and the intruder; however, he was told to get back while the knife was swung at him.  Ball eventually let go of her purse, and the man ran to his car.  Ball testified that her arm had been grabbed “real hard” and that it hurt and was scratched. 

            When asked to give a description of the knife, Ball described it as follows:  “It’s about this long, silver handle butcher knife.”  She also stated that she was “scared” and that a knife could kill a human being.  Furthermore, she believed had she not let go of the purse, she would have been stabbed.  Ball’s statement to the police was introduced and in it she described the weapon as a large knife that appeared to be a butcher knife. 

            Talavera, the owner, testified that, as he approached Ball to assist her, he saw appellant with “a knife or a gun or something in his hand.”  He then told Ball to let appellant have the purse, and he was afraid appellant would hurt her.  He later described the knife as “big and silver,” and as a butcher knife, “a big, large, . . . a big ol’ knife.”  Furthermore, the State had Talavera draw the shape of the knife on a board for the jury. 

            Officer Danny Rodgers with the Cleburne Police Department testified that “through [his] experience” he considered “a knife a deadly weapon.”  Furthermore, he considered “a knife that appears to be a butcher’s knife possibly up to 14 inches long a deadly weapon.”  Moreover, Officer Dennis Ney with the Cleburne Police Department testified that a knife with a twelve to fourteen-inch blade would be considered a deadly weapon.

Issue – Legal Sufficiency

            Specifically, appellant contends that the only evidence regarding whether the knife was a deadly weapon did not show that it was capable of even cutting the purse handles.   We overrule the issue.

The Law

“Although a knife is not a deadly weapon per se, it has been held that it can qualify as such through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury.”  Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. 1978); see Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991) (holding that kitchen knives, utility knives, straight razors, and eating utensils are not deadly weapons per se); see also Tex. Penal Code Ann. §1.07(a)(17)(B) (Vernon Supp. 2010) (defining a deadly weapon as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury”).  Moreover, an object is a deadly weapon if the injuries produced result in death or serious bodily injury.  See Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995).  But if a knife did not cause serious bodily injury or death, to qualify as a deadly weapon the evidence must prove “the actor intend[ed] a use of the [knife] in which it would be capable of causing death or serious bodily injury.”   McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).

 The State may establish the knife was capable of causing death or serious bodily injury through witnesses' descriptions of the knife's size, shape, and sharpness; testimony of the knife's life-threatening capabilities; the manner in which the knife was used; the words spoken by the defendant; the physical proximity between the victim and the knife; and the nature of any wounds caused by the knife.  Lowe v. State, 211 S.W.3d 821, 827 (Tex. App.–Texarkana 2006, pet. ref'd); Victor v. State, 874 S.W.2d 748, 751-52 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd).  Expert testimony is not required but it may be useful when the evidence on the deadly nature of the knife is meager.  Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. 1980). Clearly, whether a particular knife is a deadly weapon depends upon the evidence.  Thomas v. State, 821 S.W.2d at 620.

Furthermore, we review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).  In other words, viewing the evidence in the light most favorable to the verdict, the record must show that the manner of the use of the knife was, at a minimum, capable of causing serious bodily injury or death in each case.   See Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008).  The Court of Criminal Appeals has explained:  “The placement of the word 'capable' is crucial to understanding this method of determining deadly-weapon status.  The State is not required to show that the 'use or intended use causes death or serious bodily injury' but that the 'use or intended use is capable of causing death or serious bodily injury.'” Id. quoting McCain v. State, 22 S.W.3d at 503.    

Application of the Law

It is clear that appellant used and exhibited a knife to facilitate the robbery.  The weapon was described as a large, silver-handled butcher knife.  Appellant not only swung it towards Ball and Talavera as he wrestled for the purse but also attempted to use it to cut the purse handles.  While swinging the knife at Talavera, he also uttered “get back.”  Ball testified that she feared being hurt or stabbed, while Talavera feared appellant was going to hurt Ball.  Finally, two police officers testified that a knife described by the witnesses could be considered a deadly weapon.  Based on the foregoing facts, we find the evidence legally sufficient to support the finding that the knife was a deadly weapon.  Lowe v. State, supra; Victor v. State, supra.

Accordingly, we affirm the judgment of the trial court.

                                                                        Per Curiam

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