Oscar Rosas Hernandez v. State ( 2011 )

NO. 07-10-0150-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 18, 2011
______________________________
OSCAR ROSAS HERNANDEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_______________________________
FROM THE 413TH DISTRICT COURT OF JOHNSON COUNTY;
NO. F43722; HON. WILLIAM C. BOSWORTH, Jr., PRESIDING
______________________________
Memorandum Opinion
______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Oscar Rosas Hernandez (appellant) appeals his conviction for aggravated
robbery. Through a single issue, appellant contends the evidence is legally insufficient
to show that the knife used in the commission of the crime was used in a manner
capable of causing serious bodily injury. We affirm.
Background
Delilah Ball testified that on the day of the robbery she was working at Flamingo
Bingo. After the business had closed, Ball went to lock the back door. Before she got
to the door, a person came out from the back and “had a silver handle[d] knife, waving
like this (indicating).” She further testified that he had a “silver handled butcher knife.”
Ball stated that the person was “taking and going like this at me (indicating), and trying
to - - I held on my purse and scuffled with him just a little bit, but he was trying to cut the
handles of my purse.” She further described the person “swinging the knife at [her].”
According to Ball, the owner of the business, Steve Talavera, started toward Ball and
the intruder; however, he was told to get back while the knife was swung at him. Ball
eventually let go of her purse, and the man ran to his car. Ball testified that her arm had
been grabbed “real hard” and that it hurt and was scratched.
When asked to give a description of the knife, Ball described it as follows: “It’s
about this long, silver handle butcher knife.” She also stated that she was “scared” and
that a knife could kill a human being. Furthermore, she believed had she not let go of
the purse, she would have been stabbed. Ball’s statement to the police was introduced
and in it she described the weapon as a large knife that appeared to be a butcher knife.
Talavera, the owner, testified that, as he approached Ball to assist her, he saw
appellant with “a knife or a gun or something in his hand.” He then told Ball to let
appellant have the purse, and he was afraid appellant would hurt her. He later
described the knife as “big and silver,” and as a butcher knife, “a big, large, . . . a big ol’
knife.” Furthermore, the State had Talavera draw the shape of the knife on a board for
the jury.
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Officer Danny Rodgers with the Cleburne Police Department testified that
“through [his] experience” he considered “a knife a deadly weapon.” Furthermore, he
considered “a knife that appears to be a butcher’s knife possibly up to 14 inches long a
deadly weapon.” Moreover, Officer Dennis Ney with the Cleburne Police Department
testified that a knife with a twelve to fourteen-inch blade would be considered a deadly
weapon.
Issue – Legal Sufficiency
Specifically, appellant contends that the only evidence regarding whether the
knife was a deadly weapon did not show that it was capable of even cutting the purse
handles. We overrule the issue.
The Law
“Although a knife is not a deadly weapon per se, it has been held that it can
qualify as such through the manner of its use, its size and shape and its capacity to
produce death or serious bodily injury.” Limuel v. State, 568 S.W.2d 309, 311 (Tex.
Crim. App. 1978); see Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991)
(holding that kitchen knives, utility knives, straight razors, and eating utensils are not
deadly weapons per se); see also TEX. PENAL CODE ANN. §1.07(a)(17)(B) (Vernon Supp.
2010) (defining a deadly weapon as “anything that in the manner of its use or intended
use is capable of causing death or serious bodily injury”). Moreover, an object is a
deadly weapon if the injuries produced result in death or serious bodily injury. See Tyra
v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995). But if a knife did not cause
serious bodily injury or death, to qualify as a deadly weapon the evidence must prove
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“the actor intend[ed] a use of the [knife] in which it would be capable of causing death or
serious bodily injury.” McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).
The State may establish the knife was capable of causing death or serious
bodily injury through witnesses' descriptions of the knife's size, shape, and sharpness;
testimony of the knife's life-threatening capabilities; the manner in which the knife was
used; the words spoken by the defendant; the physical proximity between the victim and
the knife; and the nature of any wounds caused by the knife. Lowe v. State, 211
S.W.3d 821, 827 (Tex. App.–Texarkana 2006, pet. ref'd); Victor v. State, 874 S.W.2d
748, 751-52 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd). Expert testimony is not
required but it may be useful when the evidence on the deadly nature of the knife is
meager. Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. 1980). Clearly,
whether a particular knife is a deadly weapon depends upon the evidence. Thomas v.
State, 821 S.W.2d at 620.
Furthermore, we review the legal sufficiency of the evidence by considering all of
the evidence 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 other words, viewing the evidence in the light most favorable to the verdict,
the record must show that the manner of the use of the knife was, at a minimum,
capable of causing serious bodily injury or death in each case. See Tucker v. State,
274 S.W.3d 688, 691 (Tex. Crim. App. 2008). The Court of Criminal Appeals has
explained: “The placement of the word 'capable' is crucial to understanding this method
of determining deadly-weapon status. The State is not required to show that the 'use or
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intended use causes death or serious bodily injury' but that the 'use or intended use is
capable of causing death or serious bodily injury.'” Id. quoting McCain v. State, 22
S.W.3d at 503.
Application of the Law
It is clear that appellant used and exhibited a knife to facilitate the robbery. The
weapon was described as a large, silver-handled butcher knife. Appellant not only
swung it towards Ball and Talavera as he wrestled for the purse but also attempted to
use it to cut the purse handles. While swinging the knife at Talavera, he also uttered
“get back.” Ball testified that she feared being hurt or stabbed, while Talavera feared
appellant was going to hurt Ball. Finally, two police officers testified that a knife
described by the witnesses could be considered a deadly weapon. Based on the
foregoing facts, we find the evidence legally sufficient to support the finding that the
knife was a deadly weapon. Lowe v. State, supra; Victor v. State, supra.
Accordingly, we affirm the judgment of the trial court.
Per Curiam
Do not publish.
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