Moreno v. State

755 S.W.2d 866, 1988 Tex. Crim. App. LEXIS 138, 1988 WL 66875

• Court: Court of Criminal Appeals of Texas
• Decided: June 29, 1988
• Docket: 763-86
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appeal is taken from a conviction for attempted capital murder of a peace officer. After finding appellant guilty, the jury assessed punishment at twenty-three years imprisonment.

The Fourteenth Court of Appeals, in a published panel opinion, reversed the conviction on five separate issues. Moreno v. State, 711 S.W.2d 382 (Tex.App.—Houston [14th Dist.] 1986). We granted the State’s petition to review each of these and, after having done so, will reverse the judgment of the Court of Appeals as to the sufficiency of the evidence and affirm as to the remaining issues.

The State, in three grounds for review, attacks the Court of Appeals’ determination that the evidence was insufficient to sustain the verdict. Specifically, in its first ground, the State asserts the evidence was sufficient to prove that the knife was a deadly weapon, in its second, that the evidence was sufficient to prove appellant’s intent to commit murder and, in its fourth, the State asserts a general attack on the court’s sufficiency analysis. We agree with each of the State’s contentions and because they all refer to the sufficiency issue will address them collectively.

At the outset, we emphasize that the proper standard of review is that announced in Jackson v. Virginia: that the evidence must be viewed 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 re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); Carlsen v. State, 654 S.W.2d 444, 448-449 (Tex.Cr.App.1983) (Opinion on State’s Motion for Rehearing); Combs v. State, 643 S.W.2d 709, 716-717 (Tex.Cr.App.1982). This rule is by now axiomatic as well as committed to the memories of most. However, the drawback of such axiomatic law is that it becomes a rule which is often cited yet rarely seriously considered — a habit the State appropriately terms “lip service.” Thus, it becomes necessary to quote, once again, the language from Jackson explicating this standard,

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must not be simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt, [footnote omitted]. But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [citation omitted]. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, [citation omitted].

Jackson, supra 443 U.S. at 318-319, 99 S.Ct. at 2788-2789.

Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence. Rather, it is to position itself as a final, due process safeguard ensuring only the rationality of the factfinder. The court is never to make its own myopic determination of guilt from reading the cold record. It is not the reviewing court’s duty to disregard, realign or weigh evidence. This the fact-finder has already done. The factfinder, best positioned to consider all the evidence firsthand, viewing the valuable and significant demeanor and expression of the witnesses, has reached a verdict beyond a reasonable doubt.¹ Such a verdict must stand unless it is found to be irrational or unsupported by more than a “mere modicum” of the evidence, with such evidence being viewed under the Jackson light. Concrete application of the Jackson standard is made by resolving inconsistencies in the testimony in favor of the verdict. The court is to review the evidence as it is already weighted by 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, supra at 319-320, 99 S.Ct. at 2789-2790; Carlsen, supra at 448-449; Combs, supra at 716.

It is with this proper standard of review in mind that we now proceed to address the sufficiency issue. The relevant facts follow. At approximately 3:30 p.m. on July 10, 1984, Officer Salazar of the Houston Police Department was called to an apartment complex for an unrelated matter. While at the complex, the officer’s attention was directed toward another disturbance, across the street from the complex, involving appellant, who was intoxicated and brandishing a large hunting knife.² As the officer approached, appellant began coming toward him with the knife. The officer, upon seeing appellant coming at him, stopped and began backing away and ordering appellant, in both Spanish and English, to drop the knife. Appellant shouted “Mata Me!” (Spanish for “Kill Me”!), continued his advance and refused to drop the knife. The officer, while backing away, dropped his clipboard and nightstick in order to draw his service revolver and radio for backup officers.

Appellant, undaunted by the officer’s gun and repeated orders to drop the knife, continued to force the officer back for a total of thirty to forty feet, slowly narrowing the distance between the two. Throughout this two to three minute times-pan the officer continually ordered appellant to drop the knife and appellant responded with statements like “no, you will have to kill me first” and “shoot me in front of all these people.”

When appellant came within four feet from the officer, he lunged out with the knife directed at the officer’s midsection. The officer jumped back to avoid being stabbed and shot appellant once in the hand. Appellant halted a moment and then lunged at the officer again with the knife. The officer then shot appellant a second time in the stomach. Appellant fell to the ground still clinching the knife and a bystander stepped on his hand, trying to remove the knife. Appellant broke free and stood up again attempting to get to the officer but only had enough energy to wave the knife in the air, take a few more steps and collapse.

The officer testified that he was in fear for his life, and numerous bystanders testified that they thought the officer was in life threatening danger. Appellant, testifying in his own behalf, stated that he had been drinking since 9:30 that morning and did not remember anything until waking up in the hospital.

The Court of Appeals found this evidence insufficient to prove an intent to commit murder. It approached the sufficiency question from the standpoint that murderous intent can be presumed from the use of a deadly weapon per se. Because a knife is not a deadly weapon per se, the court reasoned, its manner of use determines whether it is a deadly weapon. The court, utilizing circuitous reasoning, then concluded that because the knife was not used in a manner which evidences an intent to murder, it was not a deadly weapon, thus, the evidence was insufficient to prove an intent to murder. We disagree with both the analysis used and conclusion reached.

The Court of Appeals is correct only in that specific intent to kill may be inferred from the use of a deadly weapon per se,³ Flanagan v. State, 675 S.W.2d 734, (Tex.Cr.App.1984) (Opinion on Rehearing), and that, although a knife is not a deadly weapon per se, it can qualify as such through the manner of its intended use. V.T.C.A., Penal Code Sec. 1.07(a)(ll)(B); Tisdale v. State, 686 S.W.2d 110 (Tex.Cr.App.1984) (Opinion on State’s Motion for Rehearing). The utility and logic of the rule that, in the appropriate context, murderous intent can be inferred from the use of a deadly weapon per se is self-evident. It is simply a means to provide due deference to the jury’s determination of guilt. However, expansion of this rule to include such an inference where the weapon is not deadly per se, but where its manner of use exhibits an intent to kill, represents tautological reasoning. An inference in the latter case is superfluous.

When a defendant uses a weapon in such a manner that an intent to kill is exhibited, then an intent to kill can be directly concluded. It is unnecessary to take an extra step to determine whether the weapon is now a deadly weapon in order to infer an intent to kill. The very fact that a weapon was used in a deadly manner answers the question. See, e.g., Windham v. State, 162 Tex.Cr.R. 620, 288 S.W.2d 90, 92 (1956); Hatton v. State, 31 Tex.Cr.R. 586, 21 S.W. 679 (1893). Thus, our sufficiency review will focus on the relevant inference of appellant’s intent from his acts, words and deeds, given the attendant circumstances, and dispense with the superfluous consideration of whether the knife can actually be defined as a deadly weapon.⁴

The jury was charged on the lesser included offense of aggravated assault but chose to disregard such in order to convict appellant of attempted capital murder. Appellant’s continuous encroachment on the officer, the threatening manner in which he brandished the knife, which was uncontrovertedly capable of causing death, his tenacious refusal to drop the knife and his final strikes out at the officer even after being shot, constitute sufficient evidence to support the jury’s verdict.

The Court of Appeals’ blanket conclusion that there was “no testimony that appellant at any time threatened to cause ... death to the officer” is absolutely contrary to the evidence, especially when it is viewed in the light most favorable to the verdict. Such a statement perfectly exemplifies an impermissible realignment and disregar-dance of evidence by the reviewing court as was warned against at the outset of this opinion. See, pp. 870-71, post. The single fact that appellant encroached on the officer with the knife in a readied position constitutes some evidence from which a jury could conclude a threat. Contrary to the Court of Appeals’ conclusion, the fact that appellant was screaming “Kill Me!” does not necessarily evidence a bizarre suicide attempt where appellant only intended to be killed. Rather, such a threat can more reasonably be interpreted as an invitation for a standoff with the officer. In any case, this factual determination was best left to the jury who heard all the testimony first hand and interpreted it accordingly.

Further, the fact that appellant did not actually cause physical harm to the officer does not negate an intent to kill. See, Godsey v. State, 719 S.W.2d 578, 583 (Tex.Cr.App.1986); 54 A.L.R.3d 612. The fortunate fact that the officer successfully took defensive action cannot negate a deadly intent. It would be a dismal day for victims when this Court required actual harm to occur before a defendant’s murderous intent could be inferred. See, Flanagan, supra at 744-745; Hatton, supra 21 S.W. at 679. On the other hand, the mere carrying of a knife cannot prove an intent to kill. See, Godsey, supra at 581-583. Rather, the totality of the evidence must fall somewhere between these two extremes, as it does in the instant case.

Viewing the evidence in the light most favorable to the verdict, we find that a rational jury could have found that appellant had the requisite intent to kill. The State’s first, second and fourth grounds for review are sustained.

In its third ground for review, the State collectively challenges the court’s disposition of the remaining issues by asserting that error in each ground was not properly preserved. Contrary to the State’s assertion, we find that appellant’s second point of error in the Court of Appeals, which they sustained, was properly preserved. The State, attempting to impeach appellant with prior unadjudicated bad acts, began cross-examining him concerning his action of previously firing guns⁵ within his apartment complex. Appellant had not been charged, much less convicted, of these collateral offenses. Appellant’s objection, “Judge, I object to this line of questioning. This is going to other acts that are irrelevant to this matter,” was timely, comported with his objection on appeal and was sufficiently specific to apprise the trial court of his objection. Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977).

Because we find one of the points of error of which the Court of Appeals reversed the case to have been proper, we do not need to reach the State’s remaining contentions since such would have no effect on the disposition of this appeal. The State’s third ground for review is overruled.

The judgment of the Court of Appeals as to the sufficiency of the evidence is reversed and the cause remanded to the trial court for proceedings not inconsistent with this opinion.

1 . The reasonable doubt standard itself aids in ensuring the due process evidentiary sufficiency requirement. As noted in Winship, supra, “[t]he reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence_" In re Winship, supra 397 U.S. at 363, 90 S.Ct. at 1072, and Harlan, J., concurring opinion at 371-373, 90 S.Ct. at 1076-1077. Thus, the trier of fact, when reaching a verdict, has already provided a constitutionally safeguarded determination of guilt which is properly subject to deferential rather than de novo review.

2 . Although neither the knife itself nor its exact size, in inches, is contained in the record, the actual knife was admitted into evidence and viewed by the jury. The knife was uncontro-vertedly described as a large, bowie-like hunting knife approximately ten inches in length and clearly capable of causing death. The jury returned an affirmative finding of a deadly weapon which is not challenged on appeal.

3 . Although the appellate presumption has now been more appropriately termed "permissible inference," it still has continued validity as a vehicle of appellant review and can also be used by trial judges in determining questions involving sufficiency of evidence. See, Hardesty v. State, 656 S.W.2d 73, 76-78 (Tex.Cr.App.1983).

At trial, the defendant’s use of a deadly weapon per se is only a circumstance indicating guilt from which the jury may or may not infer an intent to kill. It is neither conclusive nor burden shifting. As held in Harrell v. State, 659 S.W.2d 825 (Tex.Cr.App.1983), a presumption cannot work to automatically refute testimony resulting in a denial of a charge on a lesser included offense. Harrell, supra at 827. Analogous to the now abandoned presumptions of theft intent from nighttime entry and guilt of theft from recent unexplained possession of stolen property, the instant presumption, when used at trial, would constitute an impermissible comment on the weight of the evidence and threaten a myriad of constitutional protections. See, LaPoint v. State, No. 227-86 (Tex.Cr.App., delivered May 4, 1988); Browning v. State, 720 S.W.2d 504, 506-507 (Tex.Cr.App.1986); also see Teague, J., concurring and dissenting at 508-510; Hardesty, supra at 76-78.

On the other hand, these permissible inferences, when used at the appellate level, are appropriate vehicles of appellate review. The evidence, when viewed in the light most favorable to the verdict, shows that the use of a deadly weapon per se constitutes more than a 'mere modicum’ of evidence of an intent to kill. Thus, the inference simply works as a logical assumption that the jury made such a reasonable inference in reaching its verdict.

4 . A different issue is presented when a challenge is being directly asserted against the sufficiency of the evidence to support an affirmative finding of a deadly weapon. See, e.g., Tisdale, supra at 113-117. In this context, the sufficiency analysis should directly focus on whether the weapon, in its maimer of use or intended use, qualified as a deadly weapon. In the instant case, such a direct attack on the affirmative finding was not raised.

5 . The appellant was charged with using a knife. Any prior activity with a gun was never mentioned until the State's prosecutor started questioning about the matter.