Christopher Lee Simpson Jr. v. State

Court of Appeals of Texas

Christopher Lee Simpson Jr. v. State

Court of Appeals of Texas·Decided September 25, 2008·No. 07-07-00310-CR·Published

Opinion

NO. 07-07-0310-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 25, 2008

______________________________

CHRISTOPHER LEE SIMPSON JR., APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY;

NO. 06-4934-1; HON. SUZANNE BROOKS, PRESIDING

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Memorandum Opinion

Â Â Â Â Â Â Â Â Â Â Appellant, Christopher Lee Simpson, Jr., appeals his conviction for the offense of driving while intoxicated and sentence of incarceration for 365 days in the Williamson County Jail. We affirm.

Background

Â Â Â Â Â Â Â Â Â Â On June 13, 2006, at around 4:15 a.m., appellant was seen driving his truck on a public road in Williamson County by Officer Anthony Catalano. Catalano was sitting in his patrol car monitoring traffic when he saw appellant drive past at what Catalano believed to be a speed well over the posted speed limit of 60 miles per hour. Catalano then used the radar device in his patrol car to confirm that appellant was speeding. According to the radar, appellant was traveling at a speed of 74 miles per hour. On the basis of this information, Catalano initiated a traffic stop of appellant. Upon approaching appellant, Catalano smelled the odor of alcohol coming from inside the vehicle and observed that appellantâs eyes were red and had a âglossyâ appearance. As a result, Catalano asked appellant to step out of the vehicle. Catalano performed field sobriety tests (hereafter, âFSTâ) on appellant. On all three tests, Catalano observed clues of intoxication. Catalano then placed appellant under arrest for driving while intoxicated. Once he was transported to the station, appellant refused to provide a breath sample for testing.

Â Â Â Â Â Â Â Â Â Â Appellant was charged with the offense of driving while intoxicated. The information further alleged that appellant had been previously convicted of a driving while intoxicated offense. Prior to trial, appellant filed two motions to suppress evidence. These motions challenged Catalonaâs reasonable suspicion to stop appellant, Catalonaâs probable cause to arrest appellant, and the admissibility of any statements made by appellant during the investigatory detention or while under arrest. Prior to the beginning of the trial, the trial court heard appellantâs motions. All of the testimony elicited during this hearing related to Catalonaâs reasonable suspicion for the stop. Prior to ruling on the motions, the trial court specifically asked appellant if he was limiting his motion to suppress to the issue of the reasonable suspicion for the stop and appellant confirmed that this was the only issue he was challenging by way of the motions. The trial court then overruled appellantâs motions and the case proceeded to trial.

Â Â Â Â Â Â Â Â Â Â During the trial, Catalona testified as to the basis for his stop of appellant as well as his administration of the FST. Appellant objected to Catalonaâs testimony regarding the FST based on appellantâs allegation that Catalona failed to follow the standards required in administering the FST. The trial court overruled appellantâs objection. By cross-examination, appellant questioned Catalona about the basis for his stop of appellant and the method of his administration of the FST. At the close of evidence, appellant requested that the jury charge include a specific paragraph discussing the burden of proof required to convict appellant. After hearing argument on this issue, the trial court denied the requested instruction. The jury returned a verdict finding appellant guilty and the trial court assessed his punishment at 365 days incarceration in the Williamson County Jail.

Â Â Â Â Â Â Â Â Â Â By three issues, appellant challenges the judgment and sentence. Appellantâs first issue contends that the trial court erred in denying appellantâs motion to suppress evidence based on the illegality of Catalonaâs stop of appellant. Appellantâs second issue challenges the trial courtâs denial of appellantâs motion to suppress evidence based on Catalonaâs failure to properly administer the FST. By his final issue, appellant contends that the trial court erred in denying appellantâs request that an additional instruction be included in the jury charge.

Motion to Suppress

Â Â Â Â Â Â Â Â Â Â By his first issue, appellant contends that the trial court erred in denying his motion to suppress evidence obtained as a result of Catalonaâs stop of appellant because Catalona lacked reasonable suspicion for the stop. The State responds that Catalona had the requisite reasonable suspicion based on his visual estimate that appellant was traveling in excess of the posted speed limit and the confirmation that appellant was speeding provided by Catalonaâs in-car radar.

Â Â Â Â Â Â Â Â Â Â Generally, a trial courtâs ruling on a motion to suppress is reviewed by an abuse of discretion standard. See Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App. 1985). Whether the trial court abused its discretion depends upon whether, given the record and the law, its decision fell outside the zone of reasonable disagreement. See Benitez v. State, 5 S.W.3d 915, 918 (Tex.App.âAmarillo 1999, pet. refâd). However, if the facts determinative of the motion are undisputed, then the review is de novo. See Oles, 993 S.W.2d at 106; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).

Â Â Â Â Â Â Â Â Â Â A police officer may stop and temporarily detain an individual whom he suspects of criminal activity as long as the officer has a âreasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.â Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App. 1989) (en banc). A police officer may lawfully stop and detain a person for a traffic violation so long as the officer has a reasonable basis for suspecting an offense has been committed. McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App. 1993). Further, a police officer does not need to know the exact speed at which an automobile is traveling in order to make a stop for a traffic violation. Dillard v. State, 550 S.W.2d 45, 53 (Tex.Crim.App. 1977) (op. on rehâg). To justify a temporary detention, an officer must articulate facts which, in light of his experience and personal knowledge, together with reasonable inferences drawn from those facts, would warrant a temporary intrusion on the freedom of the person detained. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997).

Â Â Â Â Â Â Â Â Â Â

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NO. 07-07-0310-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 25, 2008

______________________________

CHRISTOPHER LEE SIMPSON JR., APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY;

NO. 06-4934-1; HON. SUZANNE BROOKS, PRESIDING

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Memorandum Opinion

Â Â Â Â Â Â Â Â Â Â Appellant, Christopher Lee Simpson, Jr., appeals his conviction for the offense of driving while intoxicated and sentence of incarceration for 365 days in the Williamson County Jail. We affirm.

Background

Â Â Â Â Â Â Â Â Â Â On June 13, 2006, at around 4:15 a.m., appellant was seen driving his truck on a public road in Williamson County by Officer Anthony Catalano. Catalano was sitting in his patrol car monitoring traffic when he saw appellant drive past at what Catalano believed to be a speed well over the posted speed limit of 60 miles per hour. Catalano then used the radar device in his patrol car to confirm that appellant was speeding. According to the radar, appellant was traveling at a speed of 74 miles per hour. On the basis of this information, Catalano initiated a traffic stop of appellant. Upon approaching appellant, Catalano smelled the odor of alcohol coming from inside the vehicle and observed that appellantâs eyes were red and had a âglossyâ appearance. As a result, Catalano asked appellant to step out of the vehicle. Catalano performed field sobriety tests (hereafter, âFSTâ) on appellant. On all three tests, Catalano observed clues of intoxication. Catalano then placed appellant under arrest for driving while intoxicated. Once he was transported to the station, appellant refused to provide a breath sample for testing.

Â Â Â Â Â Â Â Â Â Â Appellant was charged with the offense of driving while intoxicated. The information further alleged that appellant had been previously convicted of a driving while intoxicated offense. Prior to trial, appellant filed two motions to suppress evidence. These motions challenged Catalonaâs reasonable suspicion to stop appellant, Catalonaâs probable cause to arrest appellant, and the admissibility of any statements made by appellant during the investigatory detention or while under arrest. Prior to the beginning of the trial, the trial court heard appellantâs motions. All of the testimony elicited during this hearing related to Catalonaâs reasonable suspicion for the stop. Prior to ruling on the motions, the trial court specifically asked appellant if he was limiting his motion to suppress to the issue of the reasonable suspicion for the stop and appellant confirmed that this was the only issue he was challenging by way of the motions. The trial court then overruled appellantâs motions and the case proceeded to trial.

Â Â Â Â Â Â Â Â Â Â During the trial, Catalona testified as to the basis for his stop of appellant as well as his administration of the FST. Appellant objected to Catalonaâs testimony regarding the FST based on appellantâs allegation that Catalona failed to follow the standards required in administering the FST. The trial court overruled appellantâs objection. By cross-examination, appellant questioned Catalona about the basis for his stop of appellant and the method of his administration of the FST. At the close of evidence, appellant requested that the jury charge include a specific paragraph discussing the burden of proof required to convict appellant. After hearing argument on this issue, the trial court denied the requested instruction. The jury returned a verdict finding appellant guilty and the trial court assessed his punishment at 365 days incarceration in the Williamson County Jail.

Â Â Â Â Â Â Â Â Â Â By three issues, appellant challenges the judgment and sentence. Appellantâs first issue contends that the trial court erred in denying appellantâs motion to suppress evidence based on the illegality of Catalonaâs stop of appellant. Appellantâs second issue challenges the trial courtâs denial of appellantâs motion to suppress evidence based on Catalonaâs failure to properly administer the FST. By his final issue, appellant contends that the trial court erred in denying appellantâs request that an additional instruction be included in the jury charge.

Motion to Suppress

Â Â Â Â Â Â Â Â Â Â By his first issue, appellant contends that the trial court erred in denying his motion to suppress evidence obtained as a result of Catalonaâs stop of appellant because Catalona lacked reasonable suspicion for the stop. The State responds that Catalona had the requisite reasonable suspicion based on his visual estimate that appellant was traveling in excess of the posted speed limit and the confirmation that appellant was speeding provided by Catalonaâs in-car radar.

Â Â Â Â Â Â Â Â Â Â Generally, a trial courtâs ruling on a motion to suppress is reviewed by an abuse of discretion standard. See Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App. 1985). Whether the trial court abused its discretion depends upon whether, given the record and the law, its decision fell outside the zone of reasonable disagreement. See Benitez v. State, 5 S.W.3d 915, 918 (Tex.App.âAmarillo 1999, pet. refâd). However, if the facts determinative of the motion are undisputed, then the review is de novo. See Oles, 993 S.W.2d at 106; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).

Â Â Â Â Â Â Â Â Â Â A police officer may stop and temporarily detain an individual whom he suspects of criminal activity as long as the officer has a âreasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.â Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App. 1989) (en banc). A police officer may lawfully stop and detain a person for a traffic violation so long as the officer has a reasonable basis for suspecting an offense has been committed. McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App. 1993). Further, a police officer does not need to know the exact speed at which an automobile is traveling in order to make a stop for a traffic violation. Dillard v. State, 550 S.W.2d 45, 53 (Tex.Crim.App. 1977) (op. on rehâg). To justify a temporary detention, an officer must articulate facts which, in light of his experience and personal knowledge, together with reasonable inferences drawn from those facts, would warrant a temporary intrusion on the freedom of the person detained. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997).

Â Â Â Â Â Â Â Â Â Â In the present case, Catalona testified, at the hearing on the motion to suppress, that he visually estimated that appellantâs vehicle was traveling at around 70 miles per hour, which was 10 miles per hour over the posted speed limit. Catalona then used his in-car radar to confirm his visual estimate. The radar, which Catalona testified that he had been trained to use and that he had calibrated for accuracy at the beginning of his shift, indicated that appellantâs vehicle was traveling at 74 miles per hour. Appellant contends that Catalona did not have reasonable suspicion to stop appellant because Catalona did not use any standard methodology upon which to base his visual estimate of appellantâs speed and because the audio portion of his radar was not functioning at the time that Catalona used it to check appellantâs speed.

Â Â Â Â Â Â Â Â Â Â An officerâs visual estimate of a vehicleâs speed may be sufficient to give an officer a reasonable suspicion to stop the vehicle. See Hesskew v. Tex. Depât of Pub. Safety, 144 S.W.3d 189, 191 (Tex.App.âTyler 2004, no pet.); Icke v. State, 36 S.W.3d 913, 915-16 (Tex.App.âHouston [1^st Dist.] 2001, pet. refâd). In addition, an officerâs testimony that he had been both trained to operate a radar and test for its accuracy is a sufficient predicate to support admission of radar evidence. Cromer v. State, 374 S.W.2d 884, 887 (Tex.Crim.App. 1964). Thus, we conclude that Catalonaâs visual estimate of appellantâs speed, confirmed by his in-car radar unit, provided a sufficient basis for Catalona to reasonably believe that appellant was violating a traffic law. Therefore, we conclude that Catalona possessed sufficient reasonable suspicion to justify the stop of appellant and the trial court did not err in denying appellantâs motion to suppress evidence.

Â Â Â Â Â Â Â Â Â Â We overrule appellantâs first issue.

Admission of Evidence of Field Sobriety Tests

Â Â Â Â Â Â Â Â Â Â By his second issue, appellant contends that the trial court erred in overruling his objection to Catalonaâs testimony regarding the administration of and conclusions drawn from the FST. Specifically, appellant contends that Catalona did not perform the required minimum number of passes while administering the horizontal gaze nystagmus test and administered the walk and turn and one-leg stand tests on an improperly sloped surface and, thus, the tests are not reliable proof of appellantâs intoxication. The State contends that slight variations in the administration of the FST does not render the evidence inadmissible or unreliable, but rather goes to the weight to be afforded that evidence.

Â Â Â Â Â Â Â Â Â Â A trial courtâs decision to admit or exclude evidence is reviewed under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). A reviewing court should not reverse a trial judgeâs decision whose ruling was within the zone of reasonable disagreement. Green, 934 S.W.2d at 102. If the trial judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).

Â Â Â Â Â Â Â Â Â Â The battery of FST utilized by Catalona have been found to be reliable indicators of intoxication, provided that the tests are administered in accordance with the standardized guidelines. See Emerson v. State, 880 S.W.2d 759, 768-69 (Tex.Crim.App. 1994); Compton v. State, 120 S.W.3d 375, 377 (Tex.App.âTexarkana 2003, pet. refâd). However, slight deviations from the guidelines in administering the FST do not render the evidence inadmissible, but may affect the weight to be afforded the evidence. See Compton, 120 S.W.3d at 378 (citing Preface to Natâl Highway Traffic Safety Admin., U.S. Depât of Transp., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL).

Â Â Â Â Â Â Â Â Â Â In the present case, appellant argues that Catalona failed to perform the requisite number of passes in administering the horizontal gaze nystagmus test, thus, making the test unreliable as an indicator of intoxication. However, on voir dire examination, Catalona testified that he performed âmore than the minimumâ number of passes when administering the test on appellant. In addition, the trial court indicated that it reviewed the videotape of Catalonaâs performance of the test on appellant before overruling appellantâs objection. As the crux of the dispute over the horizontal gaze nystagmus test relates to the determination of the historical fact of whether Catalona performed the requisite number of passes on appellant for the test to be considered reliable, we will afford almost total deference to the trial courtâs determination. See Loserth v. State, 963 S.W.2d 770, 773 (Tex.Crim.App. 1998). The trial court was free to believe or disbelieve Catalonaâs testimony that he performed more than the minimum number of passes in administering the test on appellant and we will not disturb the trial courtâs determination that the horizontal gaze nystagmus test was administered in compliance with the standardized requirements for the test absent a showing of an abuse of discretion. See Ross, 32 S.W.3d at 858.

Â Â Â Â Â Â Â Â Â Â As to the walk and turn and one-leg stand tests, appellant contends that the ground upon which Catalona performed the tests was not level and that this invalidates the test results. Catalona testified that the surface upon which he administered these tests was reasonably flat. By way of further explanation, Catalona testified that, âI say it was reasonably flat because when we are standing out there I could not feel the weight of the slope. I could not feel my weight if I was standing on a flat surface.â In addition, the trial court saw evidence of the slope of the ground upon which these tests were performed both in pictures offered by appellant and in the videotape of the performance of the FST. The crux of the dispute regarding the administration of these tests is the factual determination of whether the slope of the surface upon which these tests were administered were such âslight deviationsâ that the tests remained valid indicators of intoxication. As above, we will afford almost total deference to the trial courtâs factual determination. Loserth, 963 S.W.2d at 773. The trial court was free to believe or disbelieve Catalonaâs testimony that the walk and turn and one-leg stand were performed on a reasonably flat surface and we will not disturb the trial courtâs implicit determination that the slope was a slight deviation from the standard and did not invalidate the tests absent a showing of an abuse of discretion. See Ross, 32 S.W.3d at 858.

Â Â Â Â Â Â Â Â Â Â Because appellant has failed to establish that the trial court abused its discretion in overruling appellantâs objection to the evidence of the FST, we overrule appellantâs second issue.

Jury Instruction

Â Â Â Â Â Â Â Â Â Â By his third issue, appellant contends that the trial court erred in denying his request that an additional jury instruction be included in the jury charge. Appellant requested that the trial court include the following language in the charge:

You are further instructed that you cannot convict the defendant in this case unless you believe from the evidence beyond a reasonable doubt that the defendant did operate a motor vehicle in a public place within the County of Williamson and State of Texas as alleged in the indictment or as alleged in the information and unless you further believe the evidence beyond a reasonable doubt that the defendant was intoxicated at the very time he is alleged to have operated said motor vehicle. And if you have reasonable doubt as to either of these two matters, you must resolve that doubt in favor of defendant and say by your verdict not guilty.The State responds by highlighting where in the charge this same information is conveyed and argues that appellant failed to show how he was harmed by the trial courtâs denial of his request.

Â Â Â Â Â Â Â Â Â Â We note that the charge that was given to the jury instructed them that:

If you believe from the evidence beyond a reasonable doubt that in the County of Williamson and State of Texas, on or about June 13, 2006, the Defendant Christopher Lee Simpson, Jr. did operate a motor vehicle in a public place while he was intoxicated, namely by not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body, you will find the Defendant âguiltyâ as charged, but if you do not so find, or if you have a reasonable doubt thereof, you will acquit the Defendant by a verdict of ânot guilty.â

Comparing this paragraph of the jury charge with the instruction requested by appellant reveals that the requested instruction was superfluous. The charge instructed the jury as to the elements of the offense, the presumption of innocence, the beyond a reasonable doubt standard, and properly applied the law to the facts in the application paragraph. As such, we cannot conclude that the trial court erred in denying appellantâs requested instruction and we overrule appellantâs third issue.

Conclusion

Â Â Â Â Â Â Â Â Â Â Having overruled each of appellantâs issues, we affirm the judgment of the trial court.

Mackey K. Hancock

Justice

Do not publish.

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NO. 07-09-00058-CR

Â

IN THE COURT OF APPEALS

Â

FOR THE SEVENTH DISTRICT OF TEXAS

Â

AT AMARILLO

Â

PANEL B

Â

JUNE 29, 2010

Â

BUD PURDY, APPELLANT

Â

v.

Â

THE STATE OF TEXAS, APPELLEE

Â

FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

Â

NO. 10,199; HONORABLE WILLIAM D. SMITH, JUDGE

Â

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

Â

MEMORANDUM OPINION

Â

Appellant, Bud Purdy, was convicted of aggravated assault with a deadly weapon[1] and sentenced to serve 18 years in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ).Â Appellant appeals contending that the evidence is factually insufficient to support the judgment.Â We reverse.

Â

Factual Background

On April 24, 2008, Skyler Hogan was walking to the home of his friend, Stetson Reeves, in Fritch, Texas.Â As Skyler walked down Bonner Street in Fritch, he was approached by appellant, who asked, ÂAre you the owner of a red truck?ÂÂ Skyler advised appellant that he did not own a red truck but that his uncle did.Â Appellant then stated that SkylerÂs uncle owed him Â$500 and jail time.Â[2]Â As Skyler and appellant continued to face each other, appellant became more and more agitated.Â Eventually, appellant pulled a knife out of his pants pocket.Â Skyler testified that he did not get a real good look at the knife but he described it as being about 1 inch wide, tapered to a sharp point, and had a blade that was estimated at three inches long.[3]Â Skyler further testified that during the time appellant was holding the open knife, appellant kept saying ÂIÂll stab you, IÂm crazyÂ or ÂIÂm psycho, IÂll stab you.ÂÂ In describing how he reacted to appellantÂs statements, Skyler explained that it caused him concern.Â Later, during further examination by the State, Skyler said that the open knife caused him to feel threatened.Â Skyler did admit that, at one point during the confrontation with appellant, he told appellant to put the knife away and that he did not know why appellant would want to stab him.Â As SkylerÂs friend, Stetson Reeves, walked up, appellant put the knife back in his pocket and walked away.Â Â Â

Approximately a week after the confrontation, Deputy Eric Munoz, of the Hutchison County SheriffÂs Office went to appellantÂs home and began visiting with him about the assault on Skyler.Â Initially, Munoz suspected appellantÂs roommate, Charles Beaver, was the assailant.Â However, Munoz testified that as he spoke with appellant about the incident, appellant began acting extremely nervous.Â After observing appellantÂs demeanor, Munoz began focusing his questions on appellant having been the assailant.Â Appellant then admitted that he was the one who approached Skyler, however, he denied ever pulling a knife.Â After initially confronting appellant, Munoz called Skyler on a cell phone and had him come to the location where Munoz was interviewing appellant.Â Upon seeing appellant, Skyler advised Munoz that appellant was the man who had assaulted him.Â

Munoz continued to interview appellant and positioned his patrol car such that he was able to record a significant portion of the interview.Â During the interview, appellant admitted that he did confront Skyler about someone owing him $500 and 15 days because of the fine and jail sentence he had received in the earlier assault case.Â Ultimately, Munoz presented a report of his investigation to the Hutchinson County District Attorney, and appellant was indicted for the instant offense.Â A jury convicted appellant and sentenced him to serve 18 years confinement in the ID-TDCJ.Â

Â Â Â Â Â Â Â Â Â Â Â Appellant has perfected his appeal and alleges that the evidence was factually insufficient to sustain the judgment in two particulars.Â First, appellant alleges that the evidence was insufficient to show that the knife at issue was a deadly weapon.Â Second, appellant alleges that the evidence was insufficient to prove that Skyler was in fear of imminent bodily injury or death.Â Agreeing with appellant on the issue of the deadly weapon, we reverse the judgment of the trial court.

Standard of Review

Â Â Â Â Â Â Â Â Â Â Â When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt.Â See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).Â In performing a factual sufficiency review, we must give deference to the fact finderÂs determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict.Â See id. at 417.Â As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the juryÂs verdict.Â See id.Â Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the juryÂs verdict.Â Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).Â The Texas Court of Criminal Appeals has recently declared that, when reviewing the evidence for factual sufficiency, the reviewing court should measure the evidence in a neutral manner against a Âhypothetically correct jury charge.ÂÂ Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App. 2008) (citing Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008)).

Â

Analysis

Â Â Â Â Â Â Â Â Â Â Â In order to convict appellant of the indicted offense, the State was required to prove that: 1) appellant, 2) on or about April 24, 2008, 3) intentionally and knowingly, 4) used a deadly weapon, to-wit, a knife, 5) that in the manner of its use and intended use was capable of causing imminent bodily injury or death, 6) and did threaten Skyler Hogan with imminent bodily injury by the use of the deadly weapon.Â AppellantÂs two contentions regarding the factual sufficiency of the evidence involve the evidence supporting the jury verdict that the knife in question was a deadly weapon and whether Skyler was in fear of imminent bodily injury.Â We will address only the deadly weapon issue.

Deadly Weapon

Â Â Â Â Â Â Â Â Â Â Â A knife is not defined as a Âper seÂ deadly weapon in the Penal Code.Â See Tex. Penal Code Ann. Â§ 1.07(a)(17)(A) (Vernon 2008); Jaramillo v. State, No. 07-08-0148-CR, 2009 Tex.App. LEXIS 1781, at *7 (Tex.App.ÂAmarillo March 13, 2009, no pet.) (not designated for publication) (citing Thomas v. State, 821 S.W.2d 616, 619 (Tex.Crim.App. 1991)).Â Rather, the State must prove that, in the manner of its use and intended use, the knife is capable of causing death or serious bodily injury.Â See Tex. Penal Code Ann. Â§ 1.07(a)(17)(B); Jaramillo, 2009 Tex.App. LEXIS 1781, at *7.Â When addressing the issue of whether an instrumentality is a deadly weapon, in this case a knife, under Section 1.07(a)(17)(B), the Texas Court of Criminal Appeals has written that the Âplacement of the word ÂcapableÂ is crucial to understanding this method of determining deadly-weapon status.ÂÂ Tucker v. State, 274 S.W.3d 688, 691 (Tex.Crim.App. 2008).Â The State is not required to prove that the knifeÂs use or intended use actually caused death or serious bodily injury but that the use or intended use is capable of causing death or serious bodily injury.Â Id.Â

In Tucker, the operative facts were that the victim had received two puncture wounds.Â Id. at 688.Â This fact pattern led the court to state that, Âthe injuries suffered by the victim can by themselves be a sufficient basis for inferring that a deadly weapon was used.ÂÂ Id. at 691-92.Â Because the Texas Court of Criminal Appeals felt that the court of appeals failed to take into account all of the facts, most especially the stab wounds of the victim, the decision of the court of appeals was reversed and the evidence was found to be legally sufficient to support the juryÂs verdict of guilty to the charge of aggravated assault with a deadly weapon.Â Id. at 92.

Â Â Â Â Â Â Â Â Â Â Â Subsequent to the Tucker opinion, this court, in Jaramillo, considered the factual sufficiency of the evidence to support a jury verdict of guilty of aggravated assault where the operative question was whether or not the weapon used, a knife, was a deadly weapon.Â See Jaramillo, 2009 Tex.App. LEXIS 1781, at *1.Â As in the case currently before the court, no knife was ever introduced into evidence.Â The evidence regarding the nature of the knife was that the victim testified that the defendant stuck a knife in the back of her ear.Â Id.Â Further, upon arrival at the emergency room, the victim presented with a stab wound to the upper chest.Â Id. at *13.Â The only testimony regarding the characteristics of the knife in Jaramillo came from the defendantÂs roommate, who testified the defendant carried a gray knife with a little hooked point on the end.Â Id. at *7.Â Relying on Tucker we held that, even without more testimony regarding the characteristics of the knife in question, the wounds suffered by the victim were enough to make the evidence factually sufficient to support the juryÂs verdict.Â Id. at *15-*16.

Â Â Â Â Â Â Â Â Â Â Â In the case at bar, we find no injuries to the victim.Â Tucker, 274 S.W.3d at 691-92.Â We have no expert testimony regarding the characteristics of the knife in question. See Rogers v. State, 877 S.W.2d 498, 500 (Tex.App.ÂFort Worth 1994, pet. refÂd) (actual knife not introduced but similar knife introduced with expert police testimony that such a knife was capable of causing serious bodily injury). We have very little testimony regarding the physical description of the knife in question.Â See Brown v. State, 716 S.W.2d 939, 946 (Tex.Crim.App. 1986).Â Further, the proximity of appellant to Skyler was such as to make a finding of a deadly weapon less likely.Â See Tisdale v. State, 686 S.W.2d 110, 115 (Tex.Crim.App. 1983).Â

Â Â Â Â Â Â Â Â Â Â Â In the case before us, the victim, Skyler, suffered no wounds.Â In fact, SkylerÂs testimony was that the knife never touched him.Â From the record, it appears that appellant kept the knife in question down by his side the entire time he confronted Skyler.Â Skyler testified that he could not see the knife clearly and could not describe exactly what it looked like.Â Further, the only evidence regarding the characteristics of the knife was a small amount of comparison testimony when Skyler was shown a ballpoint pen and estimated that the blade of the knife was about as long as the bottom part of the pen.Â Subsequently, the StateÂs attorney measured this length to be about three inches.Â When asked if he could tell how sharp the knife was, Skyler said he could not.Â The record is not clear regarding the proximity of appellant to Skyler.Â Â Â Â

Â Based upon the record we have been presented with, the juryÂs decision to find appellant guilty beyond a reasonable doubt is against the great weight and preponderance of the evidence.Â Watson, 204 S.W.3d at 417.Â We therefore find the evidence to support the judgment that appellant used and intended to use a deadly weapon, to-wit, a knife, that in the manner of its use and intended use was capable of causing death and serious bodily injury to be factually insufficient.Â AppellantÂs first issue is sustained.

Conclusion

Â Â Â Â Â Â Â Â Â Â Â Having found the evidence factually insufficient, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Â

Mackey K. Hancock

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Â

Do not publish.Â

[1] See Tex. Penal Code Ann. Â§ 22.02(a)(2) (Vernon Supp. 2009).

Â

[2] This was a reference to appellantÂs prior conviction for assault that resulted in a fine of $500 and 15 days in jail.Â Appellant believed that SkylerÂs uncle, Tom Pena, had been the person who reported the assault to the police.

Â

[3] During direct examination, Skyler estimated the length of the blade by demonstrating its length on a ball point pen.Â The prosecutor then measured that length with a ruler.

Christopher Lee Simpson Jr. v. State, (Tex. Ct. App. 2008).

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