Domingo Paredez v. State ( 2010 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DOMINGO PAREDEZ §
No. 08-08-00031-CR
Appellant, §
Appeal from the
v. §
204th Judicial District Court
§
THE STATE OF TEXAS of Dallas County, Texas
§
Appellee. (TC# F-03-57092-Q)
§
O P I N IO N
This is an appeal from a conviction for aggravated assault of a public servant with a
deadly weapon. A jury found Appellant guilty of first degree felony for aggravated assault
against a public servant, and the trial judge sentenced him to 15 years’ confinement. On appeal,
Appellant challenges the legal and factual sufficiency of the evidence supporting the conviction.
On October 30, 2003, Dallas Police Officers Yzaguirre and Johse responded to a call
about a man with a knife in the 7500 block of Gayglen Drive in Dallas. They found Appellant
with blood on his shirt and one of his wrists. When Officer Yzaguirre asked him if he was okay,
Appellant pulled a razor blade out of his pocket and put it against his own throat. The officers
first backed away, then Officer Johse sprayed Appellant with mace without effect. The officers
tried to maintain a safe, reactionary distance of about twenty feet between themselves and the
Appellant. Appellant charged at the officers, yelling at them to kill him. The officers drew their
weapons. Appellant then turned and fled. Officer Johse chased Appellant on foot, and Officer
Yzaguirre pursued in a squad car. When the officers lost track of him, they called for assistance.
Other officers arrived to assist Officers Johse and Yzaguirre and eventually found
Appellant after a pursuit. Appellant was very irate. He told the officers: “[Y]’all are going to
have to kill me; I’m going to kill you.” He smashed a chair, waived a piece of the broken chair
and a large stick back and forth as he yelled at the police, and threw a piece of the chair at the
officers.
The collection of police officers surrounded the Appellant and tried to maintain a
reactionary distance. Appellant ignored continued commands to drop his weapons and get on the
ground, but continued to yell and swing a stick all the while holding the razor blade to his neck.
When Appellant lunged at Officer Howard, another officer shot and wounded Appellant. The
officers were then able to handcuff him on the ground.
Appellant was charged with aggravated assault of a public servant, and he pled not guilty
to the charge. The jury found him guilty as charged in the indictment. In December 2007, the
trial court sentenced him to fifteen years’ confinement. Appellant then filed a motion for new
trial and a notice of appeal challenging his conviction based on legal and factual sufficiency.
Appellant raises four issues on appeal and contends the trial court erred in entering his
conviction because the evidence is both legally and factually insufficient.
In a legal sufficiency review, we must consider all of the evidence in a light most
favorable to the verdict, and determine whether a reasonable minded juror could have found the
essential elements were proven beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13
(Tex.Crim.App. 2007). We must give deference 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 v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61
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L.Ed.2d 560 (1979). As the fact finder, the jury has the right to accept or reject all or any part of
the evidence presented by either side. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.
2000). The reviewing court may not reevaluate the weight and credibility of the evidence, nor
may we substitute our own judgment for that of the fact finder. King v. State, 29 S.W.3d 556,
562 (Tex.Crim.App. 2000). Any inconsistencies in the evidence are resolved in favor of the
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).
In reviewing the factual sufficiency of the evidence to support a conviction, we view all
evidence neutrally to determine whether the fact finder was rationally justified in finding guilt
beyond a reasonable doubt. See Whipple v. State, 281 S.W.3d 482, 495 (Tex.App.--El Paso
2008, pet. ref’d). A court finds evidence to be factually insufficient in two ways: (1) the
evidence supporting the verdict or judgment, considered by itself, is too weak to support the
finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and
contradicting the verdict or judgment, weighing all evidence, the contrary evidence is so strong
that the prosecution cannot prove defendant’s guilt beyond a reasonable doubt. See Roberts v.
State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). Our review should not substantially intrude
upon the fact finder’s role as the sole judge of the weight and credibility given to witness
testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Marshall v. State, 210
S.W.3d 618, 625 (Tex.Crim.App. 2006). We may only reverse a judgment for factual
insufficiency if it is necessary to do so to “prevent manifest injustice.” See Laster v. State, 275
S.W.3d 512, 518 (Tex.Crim.App. 2009).
In Issues One and Two, Appellant argues the evidence is legally and factually insufficient
to prove that he threatened Officer Howard with imminent bodily injury. First, he contends the
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evidence is legally insufficient because he never intended to cause bodily injury to Officer
Howard, and that instead he intended to cause the officers to shoot him. He argues his testimony
that he was ten feet away from the officers establishes that it was physically impossible for him
to cause any bodily injury to Officer Howard.
A person commits assault if he intentionally or knowingly threatens another with
imminent bodily injury. TEX .PENAL CODE ANN . § 22.01(a)(2)(Vernon Supp. 2009). The statute
elevates simple assault to aggravated assault when the person “uses or exhibits a deadly weapon
during the commission of the assault.” Id. at § 22.02(a)(2). When a person commits aggravated
assault against a person he knows is a public servant while the public servant is lawfully
discharging an official duty, the offense is a first degree felony. Id. at § 22.02(b)(2)(B).
The Penal Code provides that “[a] person acts intentionally . . . with respect to the nature
of his conduct or to a result of his conduct when it is his conscious objective or desire to engage
in the conduct or cause the result.” TEX .PENAL CODE ANN . § 6.03(a)(Vernon 2003). Moreover,
“[a] person acts knowingly, or with knowledge, 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. at § 6.03(b). Finally, “[a] person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his conduct is reasonably certain to
cause the result.” Id. A defendant’s intent or knowledge is a question of fact, which is
determined from the totality of the circumstances. See Smith v. State, 965 S.W.2d 509, 518
(Tex.Crim.App. 1998); Dobbins v. State, 228 S.W.3d 761, 764 (Tex.App.--Houston [14th Dist.]
2007, pet. dism’d). The State can prove a defendant’s knowledge or intent without evidence of
threatening language or gestures, and the jury may infer the existence of either mental state from
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any facts tending to prove it existence, including the defendant’s acts, words, and conduct.
Dobbins, 228 S.W.3d at 765.
The Court of Criminal Appeals has defined “threaten” to mean “a menacing indication of
(something dangerous, evil, etc.).” Olivas v. State, 203 S.W.3d 341, 345 (Tex.Crim.App. 2006).
A person commits a threatening conduct when he causes fear in another, creates an unacceptable
risk that another may be placed in fear, or increases the likelihood that he will carry through on a
threat and cause a physical injury. Id. at 347. The Court of Criminal Appeals has defined
“imminent” to mean “near at hand; mediate rather than immediate; close rather than touching;
impending; on the point of happening; threatening; menacing; perilous.” Devine v. State, 786
S.W.2d 268, 270 (Tex.Crim.App. 1989).
The testimonies of several witnesses at trial show that Appellant held the razor blade up
to his throat and had a stick in his hand when the officers arrived, and that as Appellant waved
the stick, he lunged forward in the direction of Officer Howard and the other officers. Officer
Howard testified the way Appellant used the stick and the razor blade placed him in fear of
imminent bodily injury and fear of death. Appellant told the officers to kill him, and that if they
did not kill him, he would kill them. Viewing the evidence in the light most favorable to the
verdict, a reasonable minded juror could have found Appellant intended to threaten Officer
Howard with imminent bodily injury. See Hooper, 214 S.W.3d at 13. As such, the evidence was
legally sufficient to establish that Appellant intended to threaten the officer with imminent bodily
injury.
Again, at trial, Officer Howard testified that Appellant’s conduct in handling the razor
blade and the stick placed him in fear of imminent bodily injury and fear of death. Based on this
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testimony and the testimony that Appellant told the officers to kill him or he would kill them
while swinging his stick in an aggressive manner, the jury could infer Appellant had the intent to
cause a reasonable apprehension of imminent bodily injury to Officer Howard. Officer Evenden
testified that a person can cover twenty-one feet in one and a half seconds. Because Appellant
was less than twenty-one feet from Officer Howard and the other officers at various points, the
record does not support Appellant’s argument that an actual assault was physically impossible.
As such, the evidence is factually sufficient to establish that Appellant intended to threaten
Officer Howard with imminent bodily injury. Issues One and Two are overruled.
In Issues Three and Four, Appellant argues the evidence is legally and factually
insufficient to prove that he used or exhibited a deadly weapon. He contends the evidence is
insufficient to show that the razor blade was a deadly weapon because it was not sharp enough to
do any serious damage.
The Penal Code provides that a “deadly weapon” means “a firearm or anything manifestly
designed, made, or adapted for the purpose of inflicting death or serious bodily injury,” or
“anything that in the manner of its use or intended use is capable of causing death or serious
bodily injury.” TEX .PENAL CODE ANN . § 1.07(a)(17)(Vernon Supp. 2009). In determining if an
item is considered a deadly weapon, a court considers the following relevant factors: (1) the size,
shape, and sharpness of the weapon; (2) the manner in which the defendant used the weapon; (3)
the nature or existence of inflicted wounds; (4) testimony of the weapon’s life-threatening
capabilities; (5) the physical proximity between the victim and the weapon; and (6) the words
spoken by the defendant. See Thomas v. State, 821 S.W.2d 616, 619 (Tex.Crim.App. 1991);
Lowe v. State, 211 S.W.3d 821, 828 (Tex.App.--Texarkana 2006, pet. ref’d). An appellate court
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reviews the facts to determine if a rational trier of fact could have concluded from the
surrounding circumstances that an item was used as a deadly weapon. Hester v. State, 909
S.W.2d 174, 179 (Tex.App.--Dallas 1995, no pet.).
Neither a razor blade nor a stick is “manifestly designed, made, or adapted for the
purpose of inflicting death or serious bodily injury.” See TEX .PENAL CODE ANN . §
1.07(a)(17)(A). Evidence at trial shows that the razor blade was a small blade for roofing with
hooks on the ends, and the cutting edges of the razor was inside the hooks. The blade was
designed to cut through shingles. In his deposition, Appellant stated that he was unable to
commit suicide using such a blade, but the officers testified that it could be used as a deadly
weapon. During the incident, Appellant told the officers, “Kill me or I’ll kill you,” as he held the
razor blade. The officers also observed self-inflicted wounds on Appellant that resulted from the
razor.
The officers testified that the stick Appellant used was four feet long and one inch in
diameter. Appellant was not close enough to any officer to actually hit them with the stick at the
time of the incident. However, Appellant held the stick aggressively and lunged forward toward
the officers, and Officer Evenden testified that a person can cover twenty-one feet in one and a
half seconds. The officers testified that the stick could be used to cause serious bodily injury or
death. Appellant also testified that he wanted to use the stick to incite the officers so that they
would shoot him.
Viewing the evidence in the light most favorable to the verdict, a reasonable minded juror
could have found the razor blade and the stick to constitute deadly weapons because they were
capable of causing death or serious bodily injury. See Hooper, 214 S.W.3d at 13. As such, the
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evidence was legally sufficient to show Appellant used or exhibited a deadly weapon.
Viewing the evidence neutrally, we determine that the jury was rationally justified in
finding that the razor blade and the stick were deadly weapons. As such, the evidence was
factually sufficient to show Appellant used or exhibited a deadly weapon. Accordingly, we
overrule Issues Three and Four.
Having overruled all of Appellant’s issues, we affirm the judgment of the trial court.
March 31, 2010
DAVID WELLINGTON CHEW, Chief Justice
Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)
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