Kelvin Bernard Alexander v. State

• Court: Court of Appeals of Texas
• Decided: October 24, 2019
• Docket: 01-18-01041-CR
• Status: Published

Opinion

Opinion issued October 24, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-01041-CR ———————————

KELVIN BERNARD ALEXANDER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1536145

MEMORANDUM OPINION

A jury convicted appellant, Kelvin Bernard Alexander, of the offense of

aggravated assault of a family member.1 Appellant pleaded true to two prior felony

1 See TEX. PENAL CODE § 22.02(a)(2); see also TEX. FAM. CODE § 71.004. enhancements, alleging aggravated sexual assault of a child and burglary of a

habitation. The trial court found the enhancements true and assessed appellant’s

punishment at confinement for 25 years. The trial court also entered affirmative

findings that appellant committed an act of family violence and that he used or

exhibited a deadly weapon, namely, a knife, in the commission of the offense. In

his sole issue, appellant contends that the evidence is legally insufficient to support

his conviction.

We affirm.

Background

In 2017, appellant was living with the complainant, Alice Foster. On the night

of January 3, 2017, the complainant went out with friends to celebrate her birthday.

When she returned home, she and appellant got into an argument. Afterwards,

appellant told the complainant to come to bed. The complainant testified that, when

she refused, appellant “launch[ed]” at her, “pushed [her] down on the bed,” and

“started choking [her].” When the complainant tried to get up, appellant “reached

back behind him and grabbed a kitchen knife off the dresser” and “came at [her].”

Appellant got on top of the complainant and put the knife to her throat, piercing her

skin and drawing blood. She described the knife as a kitchen knife with an eight-

inch blade. The complainant testified that the knife hurt, that she remembered

hearing appellant say the words “kill you,” and that she felt threatened and scared.

2 As soon as she freed herself, she grabbed her purse and ran to her car without her

shoes or her cellular telephone. She drove to a nearby motel, Classic Inn, where she

rented a room and called 911.

Houston Police Department (“HPD”) Officers L. Rogers and A. Lockett were

dispatched to the Classic Inn to investigate the assault. There, they met with the

complainant. Rogers testified that he noted a blood stain on a pillow in the room.

The complainant showed Rogers and Lockett a cut and blood on her neck. Lockett

testified that the complainant had a cut parallel to her jawline. The trial court

admitted into evidence photographs of the wound on the complainant’s throat.

Rogers testified that, based on his training and experience, the wound was consistent

with having been caused by a blade or a knife and that, when a person holds a knife

to another’s throat, the knife is being used as a deadly weapon. Lockett testified that

the complainant identified appellant as the person who assaulted her. He noted that

she seemed very scared, that she did not have any shoes with her, and that she had

driven to the motel to get away from appellant. Rogers and Lockett followed the

complainant back to her house to talk with appellant.

At the house, Rogers and Lockett detained appellant in the back seat of their

patrol car. Rogers noted that appellant was not under arrest at the time. The trial

court admitted into evidence at trial an excerpt of a videotape from Rogers’s body

3 camera. In the video, appellant described his argument with the complainant and

admitted:

I just lost my cool. . . . She said something and I grabbed her . . . right across the throat. . . . I grabbed and pulled her to the bed . . . and was laying across the top of her . . . . I had a knife. I pulled the knife out and said: You know what? Right about now, I should kill you and me.

Sufficiency of the Evidence

In his sole issue, appellant argues that the evidence is legally insufficient to

support his conviction for aggravated assault of a family member because the

evidence does not show that he “intentionally or knowingly threatened the

complainant with imminent bodily injury by using a deadly weapon.” Appellant

asserts that the “only evidence” of a threat came from the complainant’s own

testimony, the knife was not recovered, and blood was not found at the scene.

Standard of Review and Applicable Legal Principles

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s 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, 318–19 (1979); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We give deference to the

responsibility of the fact finder to fairly resolve conflicts in testimony, weigh

evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at

750. The jury, as the judge of the facts and credibility of the witnesses, may choose 4 to believe or not to believe any witness or any portion of their testimony. Sharp v.

State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

A person commits an assault if he “intentionally or knowingly threatens

another with imminent bodily injury.” TEX. PENAL CODE § 22.01(a)(2). A person

acts intentionally with respect to the nature of his conduct when it is his conscious

objective or desire to engage in the conduct. Id. § 6.03(a). A person acts knowingly

with respect to the nature of his conduct or to circumstances surrounding his conduct

when he is aware of the nature of his conduct or that the circumstances exist. Id.

§ 6.03(b). Proof of a mental state almost always depends upon circumstantial

evidence. Smith v. State, 56 S.W.3d 739, 745 (Tex. App.—Houston [14th Dist.]

2001, pet. ref’d). A fact finder may infer intent or knowledge from any facts that

tend to prove its existence, including the acts, words, conduct of the accused, and

the method of committing the offense. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim.

App. 2002). To support a conviction for assault by threat, “there must be some

evidence of a threat being made.” Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim.

App. 2006). For example, “[a]n actor might threaten to stab by holding a knife

overhead and telling the victim, ‘I’ll kill you,’ or by his conduct of waving the knife

in the air or making some other threatening gesture.” Id. at 349 n.40. The threat

must be “imminent,” or present, and not future. Devine v. State, 786 S.W.2d 268,

270 (Tex. Crim. App. 1989).

5 The offense of assault is enhanced to aggravated assault if, inter alia, the

person uses or exhibits a deadly weapon during the commission of the assault. TEX.

PENAL CODE § 22.02(a)(2). A “deadly weapon” includes “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). The factfinder may consider such factors as (a) the

intended use of the object, (b) its size and shape, (c) the physical proximity of the

parties, (d) the manner in which the assailant allegedly used the object, (e) the

severity of any wounds inflicted, (f) the accused’s words, (g) any testimony that the

complainant feared death or serious bodily injury, and (h) any testimony as to the

weapon’s potential for causing death or serious bodily injury. Romero v. State, 331

S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

“Family violence” includes “an act by a member of a family or household

against another member of the family or household . . . that is a threat that

reasonably places the member in fear of imminent physical harm, bodily injury, [or]

assault.” TEX. FAM. CODE § 71.004; see also TEX. CODE CRIM. PROC. art. 42.013.

Analysis

Here, the record shows that appellant, during the heat of an argument,

launched at the complainant, pushed her down on a bed, held a knife to her throat in

a manner that cut her and drew blood, and said, “Right about now, I should kill you.”

The record further shows that the complainant, once freed, fled the house without

6 her shoes, drove to a motel, and called the police. The complainant testified that the

knife hurt and that she felt threatened and scared. From this evidence, the jury could

have reasonably concluded that appellant threatened the complainant with imminent

bodily injury using a knife and that he acted with intent. See TEX. PENAL CODE

§§ 6.03(a), 22.01(a)(2); Olivas, 203 S.W.3d at 345, 349 (holding evidence legally

sufficient to support conviction for assault by threat); Garcia v. State, 17 S.W.3d 1,

5 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (holding evidence that defendant

called complainant outside, threw her to ground, put razor-edged box cutter to her

throat, and threatened to stab her was sufficient to support conviction for aggravated

assault); Rogers v. State, 877 S.W.2d 498, 499–500 (Tex. App.—Fort Worth 1994,

pet. ref’d) (holding evidence legally sufficient to support conviction for aggravated

assault with pocketknife); see also Hart, 89 S.W.3d at 64 (holding fact finder may

infer intent from any facts that tend to prove its existence, including the acts, words,

conduct of accused, and method of committing offense); see, e.g., Deleon v. State,

No. 01-18-00525-CR, 2019 WL 1119210, at *4 (Tex. App.—Houston [1st Dist.]

Mar. 12, 2019, no pet.) (mem. op., not designated for publication) (holding evidence

legally sufficient to support conviction for aggravated assault with knife).

Further, the evidence supports that appellant used the knife as a deadly

weapon. See TEX. PENAL CODE ANN. §§ 1.07(a)(17)(B), 22.02(a)(2); McCain v.

State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Officer Rogers testified that a

7 knife held to the throat could cause death or serious bodily injury. The complainant

and appellant each testified about appellant’s close proximity to the complainant (he

was on top of her); the length of the knife blade (8 inches); the manner in which

appellant used the knife (against her throat), the wound on the complainant’s throat,

appellant’s threat to kill her “[r]ight about now,” and the complainant’s fear. See

Romero, 331 S.W.3d at 83; Garcia, 17 S.W.3d at 4 (holding that evidence

established knife as deadly weapon); Rogers, 877 S.W.2d at 499–500 (same); see,

e.g., Montalvo v. State, No. 01-98-00314-CR, 1999 WL 51789, at *1 (Tex. App.—

Houston [1st Dist.] Jan. 21, 1999, no pet.) (holding evidence that knife was ten

inches long, sharp, capable of causing serious bodily injury or death, caused

complainant pain, and “made him bleed” sufficient to establish knife as deadly

weapon).

The complainant testified that she and appellant were living together at the

time of the offense. See TEX. FAM. CODE § 71.004 (defining “family violence” to

include “an act by a member of a family or household against another member of

the family or household . . . that is a threat that reasonably places the member in fear

of imminent physical harm, bodily injury, [or] assault.”).

Appellant argues that the evidence is insufficient to establish that he

threatened the complainant because the only such evidence came from her own

testimony. He complains that the knife was not found and that there was no evidence

8 of blood at the scene or on the complainant’s clothing. The jury is the sole judge of

the facts, the credibility of the witnesses, and the weight to be given the

complainant’s testimony. See Williams, 235 S.W.3d at 750. The State was not

required to introduce the knife into evidence at trial. Banargent v. State, 228 S.W.3d

393, 399 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).

Viewing the evidence in the light most favorable to the verdict, we conclude

that the jury could have reasonably concluded that appellant intentionally threatened

the complainant with imminent bodily injury using a deadly weapon. See TEX.

PENAL CODE § 22.02(a)(2). Accordingly, we hold that the evidence is legally

sufficient to support appellant’s conviction for aggravated assault of a family

member. See id.; see also TEX. FAM. CODE § 71.004.

We overrule appellant’s sole issue.

Conclusion

We affirm the trial court’s judgment.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).