Rodriguez v. State

750 S.W.2d 267, 1988 Tex. App. LEXIS 703, 1988 WL 26541
Court of Appeals of Texas·Decided March 31, 1988·No. No. C14-87-207-CR·Published·Cited by 1 cases

Opinion

OPINION

JUNELL, Justice.

Carlos Rodriguez appeals a felony conviction for aggravated sexual assault. The jury found appellant guilty and assessed punishment at seventeen years confinement in the Texas Department of Corrections. We affirm.

In seven points of error, appellant asserts that (1) the evidence was insufficient to show that appellant used a deadly weapon; (2) the evidence was insufficient to show that appellant used a knife; (3) the trial court erred when it denied appellant’s charge on the lesser included offense of sexual assault; (4) the trial court violated appellant’s right to due process when it instructed the jury on good conduct tíme and parole eligibility; (5) the trial court violated appellant’s right to due process since there was no evidence to support the instructions on good conduct time and parole eligibility; (6) the instructions in the charge regarding good conduct time and parole eligibility violated the Texas Constitutional separation of powers doctrine and (7) the judge presiding at appellant’s trial lacked the requisite statutory authority to preside over the trial. We affirm.

On the night of March 27, 1986, complainant, a twenty-two year old deaf-mute female, was walking to her apartment after visiting a friend in the same apartment complex. As she was walking, appellant grabbed complainant and threw her into [269]*269the front seat of a waiting car. One of appellant’s male friends occupied the car. After placing complainant in the car, appellant returned to the front seat of the car and quickly drove away. Appellant drove the car down a dirt road located behind the apartment complex and parallel to a bayou. After driving a short distance, appellant stopped the car. At that time complainant opened her car door and attempted to escape. Appellant chased complainant and soon caught her. Appellant then pulled her pants down and raped her. While he was raping her, appellant held a sharp knife to her neck. After the rape, appellant forced complainant to engage in oral sex while holding the knife on the side of her face. When he finished, appellant returned to the car. Before appellant drove away, his friend took complainant to a nearby grove of trees and raped her. Complainant eventually pushed the second man away and ran back to her apartment.

When complainant arrived home, she used sign language to tell her mother what had occurred. Complainant’s mother asked to be taken immediately to the location of the assault. As they approached the area, the women saw appellant’s car in the middle of the bayou and appellant climbing out of the bayou. The women also saw a police helicopter flying overhead and signaled for it to land. After landing the helicopter, Officer Robert J. Stolting learned from the women that complainant had been assaulted. Officer Stolting returned to the air, and quickly located appellant on the grounds of a nearby golf course. Additional officers at the scene apprehended appellant. The officers placed appellant inside the helicopter and returned him to the scene of the assault.

In his first and second points of error appellant asserts that the evidence is insufficient to support appellant’s conviction for aggravated sexual assault since the state failed to prove beyond a reasonable doubt that appellant used or exhibited a deadly weapon, namely, a knife.

While a knife is not a deadly weapon per se, it can qualify as a deadly weapon by showing the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. Davidson v. State, 602 S.W.2d 272, 273 (Tex.Crim.App.1980). Alvarez v. State, 566 S.W.2d 612, 614 (Tex.Crim.App.1978). Although wounds are a factor in determining the character of a weapon, they need not be inflicted before a knife can be determined to be a deadly weapon. Denham v. State, 574 S.W.2d 129, 130 (Tex.Crim.App.1978); See also Cruz v. State, 576 S.W.2d 841, 842-843 (Tex.Crim.App.1979). While expert testimony is not the only way to establish that a knife is a deadly weapon, it may be particularly useful in supplementing meager evidence on the issue in order to meet the sufficiency requirement. Davidson v. State, 602 S.W.2d at 273.

In reviewing the sufficiency of the evidence to support a conviction based upon direct evidence, the evidence is viewed in the light most favorable to the verdict of the jury. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). Whether the evidence was sufficient to support the jury’s verdict is a question of law.

In this case, the knife was not in evidence. The complainant testified that a knife was held to her neck and face during the sexual assault. At one point during her testimony the complainant appeared to contradict herself; however, a complete review of the entire record shows that any inconsistency was probably related to her deafness, and the use of the court interpreter.

Complainant described the knife as shiny, sharp on one edge of the blade and similar to a fishing knife. While the Court of Criminal Appeals has required very explicit testimony on the character of the weapon involved, the complainant’s testimony here satisfies that requirement.

[270]*270Q. Did he put his penis inside of you?
A. Yes.
Q. Did he put it inside your vagina?
A. Yes, very hard, and I hurt.
Q. What was going through your mind when he did this to you?
A. Well, he just kept going for so long and he was mean, and then he had a knife at my neck.
Q. When did he get a knife out?
A. When he was raping me, he pulled a knife out.
Q. Show me how long the knife was.
A. It was about like this.
Q. Is that the whole knife, the handle and the blade?
A. Yes, that was about how long it was even with the handle.
Q. Was the knife sharp on both sides or just one side?
A. Just one side was sharp.
Q. Did it look like a kitchen knife?
A. No. More like a fishing knife. Something that you’d use for fishing.
Q. Did it look sharp?
A. It was sharp.
Q. How did you feel when you saw the knife?
A. Oh, I was nervous and I was so scared.

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Rodriguez v. State, 750 S.W.2d 267, 1988 Tex. App. LEXIS 703, 1988 WL 26541 (Tex. Ct. App. 1988).

750 S.W.2d 267 (Rodriguez v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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