Joseph Metcalfe v. the State of Texas ( 2021 )


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  •                                  IN THE
    TENTH COURT OF APPEALS
    No. 10-19-00389-CR
    JOSEPH METCALFE,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 40th District Court
    Ellis County, Texas
    Trial Court No. 45194-CR
    MEMORANDUM OPINION
    Appellant, Joseph Metcalfe, was convicted of two counts of aggravated assault
    with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2). In one issue, Metcalfe
    challenges the sufficiency of the evidence supporting his convictions. We affirm.
    Background
    On August 18, 2017, Metcalfe grabbed the buttocks of a shopper at a Walmart store
    in Waxahachie, Texas. After the shopper yelled for help, Metcalfe left the store. In
    response to the shopper’s yelling, two other Walmart shoppers, Juan Ochoa and Stanley
    Robinson, pursued Metcalfe.
    Ochoa was ahead of Robinson in the pursuit of Metcalfe into the Walmart parking
    lot. Metcalfe told Ochoa to “get away” and that he was “strapped.” Ochoa continued to
    pursue Metcalfe. Metcalfe responded by lifting his shirt to show Ochoa something shiny
    in his waistband. Based on his experience, Ochoa believed that the shiny object in
    Metcalfe’s waistband was a knife. At this point, Ochoa discontinued his pursuit of
    Metcalfe because he did not want to get hurt. Ochoa walked back to the Walmart store
    and passed Robinson, who was also in pursuit of Metcalfe. Ochoa warned Robinson to
    “watch out” and “the guy had a knife.”
    Despite this warning, Robinson continued to pursue Metcalfe. Metcalfe turned
    around and brandished a knife in one hand and, with his other hand, extended his middle
    finger to Robinson. Metcalfe then told Robinson: “You’re threatening me. I’m a
    concealed carrier. When I get to my truck, you’re going to get it.” Robinson, believing
    that he could be seriously injured, stopped pursuing Metcalfe.
    Metcalfe was indicted for two counts of aggravated assault as to Robinson (Count
    I) and Ochoa (Count II) by the use or exhibition of a deadly weapon—a knife. After a
    jury trial, Metcalfe was convicted of the charged offenses, and the jury assessed his
    punishment at eight years’ incarceration for Count I and two years’ incarceration for
    Count II. The trial court certified Metcalfe’s right of appeal.
    Metcalfe v. State                                                                 Page 2
    Analysis
    In his sole issue on appeal, Metcalfe contends that the evidence is insufficient to
    support his convictions for aggravated assault against Robinson and Ochoa.                     We
    disagree.
    STANDARD OF REVIEW
    The Court of Criminal Appeals has expressed our standard of review of a
    sufficiency issue as follows:
    When addressing a challenge to the sufficiency of the evidence, we consider
    whether, after viewing all of 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
    , 319,
    
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
     (1979); Villa v. State, 
    514 S.W.3d 227
    , 232 (Tex.
    Crim. App. 2017). This standard requires the appellate court to defer “to
    the responsibility of the trier of fact fairly to resolve conflicts in the
    testimony, to weigh the evidence, and to draw reasonable inferences from
    basic facts to ultimate facts.” Jackson, 
    443 U.S. at 319
    . We may not re-weigh
    the evidence or substitute our judgment for that of the factfinder. Williams
    v. State, 
    235 S.W.3d 742
    , 750 (Tex. Crim. App. 2007). The court conducting
    a sufficiency review must not engage in a “divide and conquer” strategy
    but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d
    at 232. Although juries may not speculate about the meaning of facts or
    evidence, juries are permitted to draw any reasonable inferences from the
    facts so long as each inference is supported by the evidence presented at
    trial. Cary v. State, 
    507 S.W.3d 750
    , 757 (Tex. Crim. App. 2016) (citing Jackson,
    
    443 U.S. at 319
    ); see also Hooper v. State, 
    214 S.W.3d 9
    , 16-17 (Tex. Crim. App.
    2007). We presume that the factfinder resolved any conflicting inferences
    from the evidence in favor of the verdict, and we defer to that resolution.
    Merritt v. State, 
    368 S.W.3d 516
    , 525 (Tex. Crim. App. 2012). This is because
    the jurors are the exclusive judges of the facts, the credibility of the
    witnesses, and the weight to be given to the testimony. Brooks v. State, 
    323 S.W.3d 893
    , 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial
    evidence are equally probative, and circumstantial evidence alone may be
    sufficient to uphold a conviction so long as the cumulative force of all the
    Metcalfe v. State                                                                            Page 3
    incriminating circumstances is sufficient to support the conviction. Ramsey
    v. State, 
    473 S.W.3d 805
    , 809 (Tex. Crim. App. 2015); Hooper, 
    214 S.W.3d at 13
    .
    We measure whether the evidence presented at trial was sufficient to
    support a conviction by comparing it to “the elements of the offense as
    defined by the hypothetically correct jury charge for the case.” Malik v.
    State, 
    953 S.W.2d 234
    , 240 (Tex. Crim. App. 1997). The hypothetically
    correct jury charge is one that “accurately sets out the law, is authorized by
    the indictment, does not unnecessarily increase the State's burden of proof
    or unnecessarily restrict the State's theories of liability, and adequately
    describes the particular offense for which the defendant was tried.” Id.; see
    also Daugherty v. State, 
    387 S.W.3d 654
    , 665 (Tex. Crim. App. 2013). The “law
    as authorized by the indictment” includes the statutory elements of the
    offense and those elements as modified by the indictment. Daugherty, 387
    S.W.3d at 665.
    Zuniga v. State, 
    551 S.W.3d 729
    , 732-33 (Tex. Crim. App. 2018).
    A person commits aggravated assault if the person commits assault and the person
    “uses or exhibits a deadly weapon during the commission of the assault.” TEX. PENAL
    CODE ANN. § 22.02(a)(2). An assault occurs when a person “intentionally or knowingly
    threatens another with imminent bodily injury . . . .” Id. § 22.01(a)(2). Metcalfe takes issue
    with whether Robinson or Ochoa were threatened with imminent bodily injury and
    whether the knife allegedly used constituted a deadly weapon.
    EVIDENCE OF AN IMMINENT THREAT
    We first address Metcalfe’s contention that there is not sufficient evidence that he
    threatened Robinson and Ochoa with “imminent” bodily injury. Although the Texas
    Penal Code does not define “imminent,” the Court of Criminal Appeals has defined the
    term to mean “ready to take place, near at hand, impending, hanging threateningly over
    Metcalfe v. State                                                                        Page 4
    one’s head, menacingly near.” Garcia v. State, 
    367 S.W.3d 683
    , 689 (Tex. Crim. App. 2012);
    Devine, 786 S.W.2d at 270. Thus, “imminent” bodily injury requires a threat of present,
    rather than future harm. Devine, 786 S.W.2d at 270.
    In the instant case, Ochoa testified that, while he pursued Metcalfe from
    approximately six feet behind, Metcalfe turned around and threatened that he was
    “strapped.” Metcalfe then showed Ochoa a shiny weapon that Ochoa believed to be a
    knife. Ochoa stopped pursuing Metcalfe at this point because he did not want to get hurt.
    Furthermore, Robinson testified that, during the pursuit, Metcalfe brandished a
    knife, flipped off Robinson, and stated that he is a “concealed carrier. When I get to my
    truck, you’re going to get it.” Robinson believed that he could be seriously injured and,
    thus, stopped pursuing Metcalfe.
    Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
    that the evidence is sufficient to support the jury’s determination that Metcalfe threatened
    Robinson and Ochoa with imminent bodily injury.               See TEX. PENAL CODE ANN. §
    22.02(a)(2); Garcia, 367 S.W.3d at 689; Devine, 786 S.W.2d at 270; see also Jackson, 
    443 U.S. at 318-19,
     
    99 S. Ct. 2788
    -89; Zuniga, 551 S.W.3d at 732-33.
    A KNIFE AS A DEADLY WEAPON
    With respect to Metcalfe’s second contention regarding the deadly-weapon
    element, we note that a “knife” is defined as “any bladed hand instrument that is capable
    of inflicting serious bodily injury or death by cutting or stabbing a person with the
    Metcalfe v. State                                                                      Page 5
    instrument.” TEX. PENAL CODE ANN. § 46.01(7). The Court of Criminal Appeals has held
    that a knife is not a per se deadly weapon. See Robertson v. State, 
    163 S.W.3d 730
    , 732 (Tex.
    Crim. App. 2005); see also Thomas v. State, 
    821 S.W.2d 616
    , 620 (Tex. Crim. App. 1991).
    Generally describing an object “as a ‘knife’ does not by itself establish the object as a
    deadly weapon by ‘design’ because many types of knives have an obvious other purpose
    (e.g., butcher knives, kitchen knives, utility knives, straight razors, and eating utensils).”
    Robertson, 
    163 S.W.3d at 732
    . Other types of knives, such as “[b]ayonets, scimitars, and
    various kinds of swords,” are deadly by design “because they are designed to cause
    death.” 
    Id.
    Whether a particular knife is a deadly weapon by design, a deadly weapon by
    usage, or not a deadly weapon at all depends on the evidence. Thomas, 
    821 S.W.2d at 620
    ;
    see Brown v. State, 
    716 S.W.2d 939
    , 947 (Tex. Crim. App. 1986). When determining the
    deadliness of a weapon, the jury may consider all of the facts of a case. Blain v. State, 
    647 S.W.2d 293
    , 294 (Tex. Crim. App. 1983). In our review of the evidence, we consider the
    following factors: (1) the size, shape, and sharpness of the blade; (2) the manner of its use
    or intended use; (3) its capacity to produce death or serious bodily injury; (4) the physical
    proximity of the parties; (5) the nature of any wounds inflicted; and (6) any words spoken
    by the assailant, such as threats. Brown, 
    716 S.W.2d at 946-47
    ; see Johnson v. State, 
    509 S.W.3d 320
    , 323 (Tex. Crim. App. 2017). “These, however, are just factors used to guide
    Metcalfe v. State                                                                       Page 6
    a court’s sufficiency analysis; they are not inexorable commands.” Johnson, 509 S.W.3d at
    323.
    Additionally, the State need not introduce expert testimony to establish the deadly
    nature of a knife, although such evidence could be useful. Denham v. State, 
    574 S.W.2d 129
    , 131 (Tex. Crim. App. 1978). Moreover, there is also no requirement that the victim
    sustain any injury. Ford v. State, 
    828 S.W.2d 525
    , 527 (Tex. App.-Houston [14th Dist.] 1992,
    pet. ref'd); see Tucker v. State, 
    274 S.W.3d 688
    , 692 (Tex. Crim. App. 2008) (noting that the
    blade need not actually have caused any injuries for it to be considered a deadly weapon).
    Here, the State’s evidence demonstrates that Metcalfe threatened that he was
    “strapped” with a weapon, told Ochoa to “get away,” and then showed Ochoa what
    Ochoa believed to be a knife when the two were approximately six feet apart. Based on
    his familiarity with weapons, Ochoa recounted that the knife in Metcalfe’s waistband was
    shiny, skinny, and resembled a fish-fillet knife without a point. Ochoa discontinued his
    pursuit of Metcalfe at this point because he was scared of “[g]etting hurt or starting a
    fight or something because I didn’t know him.”
    Robinson testified that Metcalfe brandished a knife and flipped him off when the
    two were approximately ten feet apart.        Robinson recalled that the knife Metcalfe
    brandished was silver in color and about four to five inches long, longer than Metcalfe’s
    middle finger. Metcalfe then threatened Robinson by stating that he is “a concealed
    carrier. When I get to my truck, you’re going to get it.”
    Metcalfe v. State                                                                      Page 7
    As shown above, neither Ochoa nor Robinson testified that the knife Metcalfe used
    was sharp. However, even a dull knife can be considered a deadly weapon if the knife is
    used in conjunction with “threats and gestures” that cause the complainant to fear serious
    bodily injury or death. See Williams v. State, 
    732 S.W.2d 777
    , 779 (Tex. App.—Corpus
    Christi 1987, no pet.) (concluding that a “butter knife” with a “rounded tip” was a deadly
    weapon based on its usage). Furthermore, the evidence demonstrates that Metcalfe was
    only six feet from Ochoa and ten feet from Robinson when he showed or brandished the
    knife and made threats or menacing gestures, which did not diminish Metcalfe’s
    capability of using the knife to cause serious bodily injury or death to Ochoa and
    Robinson. See Brown, 
    716 S.W.2d at 946-47
    ; Hatchett v. State, 
    930 S.W.2d 844
    , 848-49 (Tex.
    App.—Houston [14th Dist.] 1996, pet. ref’d); see also Alexander v. State, No. 10-10-00279-
    CR, 
    2012 Tex. App. LEXIS 3125
    , at *9 (Tex. App.—Waco Apr. 18, 2012, pet. ref’d) (mem.
    op., not designated for publication) (rejecting an argument that, because the defendant
    and the victim were twenty feet apart, the knife used could not be considered a deadly
    weapon).
    Given the descriptions of the knife by Ochoa and Robinson, as well as the
    testimony regarding Metcalfe’s menacing threats and gestures and his use or intended
    use of the knife, the jury could have reasonably inferred that Metcalfe used the knife to
    threaten to cause serious bodily injury to Ochoa and Robinson had they decided to
    continue the pursuit. See Johnson, 509 S.W.3d at 324 (“A jury could have also reasonably
    Metcalfe v. State                                                                   Page 8
    inferred from Kimp’s threats, his proximity to Amelia, and the brandishing of the knife,
    that the manner in which he used the knife, or intended to use the knife, rendered it
    capable of causing serious bodily injury or death.”); see also Billey v. State, 
    895 S.W.2d 417
    ,
    422 (Tex. App.—Amarillo 1995, pet. ref’d) (“[E]vidence is sufficient if a knife is capable
    of causing death or serious bodily injury or if it is displayed in a manner conveying an
    express or implied threat that serious bodily injury or death will be inflicted if the desire
    of the person displaying the knife is not satisfied.”). Therefore, viewing the evidence in
    the light most favorable to the jury’s verdict, a rational jury could have found beyond a
    reasonable doubt that the knife used by Metcalfe in the commission of these offenses was
    a deadly weapon.1 See Jackson, 
    443 U.S. at 318-19,
     
    99 S. Ct. at 2788-89
    ; Zuniga, 551 S.W.3d
    at 732-33; Thomas, 
    821 S.W.2d at 620
    ; Brown, 
    716 S.W.2d at 946-47
    ; see also Johnson, 509
    S.W.3d at 324. We overrule Metcalfe’s sole issue on appeal.
    Conclusion
    We affirm the judgment of the trial court.
    1 In arguing that the evidence is insufficient to establish that the knife he used was a deadly
    weapon, Metcalfe relies on two decisions from the Court of Criminal Appeals. See Davidson v. State, 
    602 S.W.2d 272
    , 274 (Tex. Crim. App. 1980); Alvarez v. State, 
    566 S.W.2d 612
    , 614 (Tex. Crim. App. 1978).
    However, both Davidson and Alvarez are distinguishable from the case at bar. In Davidson, although many
    of the facts are similar, the evidence established that the length of the blade was two-and-a-half to three
    inches, which is approximately half the size of the knife used by Metcalfe. 
    602 S.W.2d at 274
    . In Alvarez,
    the State did not present any testimony about the size of the knife’s blade. 
    566 S.W.2d at 614
    . This is
    important because the complainant did not suffer any wounds and the only other evidence the Court of
    Criminal Appeals appeared to consider was that the complainant thought the knife was sharp and that he
    was in fear of serious bodily injury or death when the knife was brandished. 
    Id.
     And perhaps more
    importantly, the Court of Criminal Appeals held more recently in Johnson that a knife with a blade “a couple
    of inches long” was a deadly weapon when brandished at victims while threatening them to “get back.”
    Johnson v. State, 
    509 S.W.3d 320
    , 324 (Tex. Crim. App. 2017).
    Metcalfe v. State                                                                                    Page 9
    MATT JOHNSON
    Justice
    Before Chief Justice Gray,
    Justice Johnson, and
    Justice Smith
    Affirmed
    Opinion delivered and filed September 29, 2021
    Do not publish
    [CR25]
    Metcalfe v. State                                           Page 10