Affirmed and Opinion Filed March 26, 2014




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-12-01497-CR

                        MICHAEL D'ANGELO MASON, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 199th Judicial District Court
                                   Collin County, Texas
                           Trial Court Cause No. 199-80929-10

                            MEMORANDUM OPINION
                          Before Justices Bridges, O'Neill, and Brown
                                  Opinion by Justice Bridges
       Michael D’Angelo Mason appeals his aggravated sexual assault conviction. The trial

judge found appellant guilty and sentenced him to sixty-two years’ confinement. In two issues,

appellant challenges the sufficiency of the evidence to show the knife used in the commission of

the offense was a deadly weapon and argues the trial court erred in allowing evidence of an

extraneous offense. We affirm the trial court’s judgment.

       In February 2010, the sixty-three-year-old female complainant lived next door to

appellant and his family. Complainant and appellant would “say hello” when they saw each

other, and complainant drove appellant to the mall “from time to time.” At the beginning of

February, appellant and his family moved out of the house next door. On the night of February

12, appellant rang complainant’s doorbell.      Complainant looked outside and recognized
appellant. She opened the front door and spoke with appellant through a locked storm door.

Appellant said his car had stalled and he needed to call for help. Complainant gave appellant her

cell phone through the door, and appellant called someone but couldn’t get through. Appellant

said his aunt was going to call him back, and he handed the cell phone back through the door.

Complainant kept the screen door locked, but appellant “started kind of dancing around” and

said he had to go to the bathroom. There was “a lot of snow on the ground,” and appellant was

not “dressed for the snow weather.” Complainant let appellant inside, and he went into a

bathroom. When he came out, complainant was sitting at the kitchen table sewing and “waiting

for this phone to ring again.” Appellant expressed an interest in the sewing machine and got

behind complainant during the conversation. From behind complainant, appellant grabbed her

around the neck, started choking her, and made her stand up. Appellant “had a knife” and said,

“just do what I say or I’ll cut you, I’ll cut you.”

        Complainant could only see the tip of the knife, but “it was pointy, and it kind of came

and around and over.”       Complainant had no doubt she was looking at a deadly weapon.

Complainant tried to “talk [appellant] down” and thought she could hurt him and get away, but

she did not know if she could “get away from this knife.” At that point, complainant thought

appellant “was just going to rob.” Appellant repeatedly stated, “I’ll cut you, do as I say,” and he

pushed complainant into another room. Complainant continued to ask appellant “Why are you

doing this?” and told him her purse was on the counter and he could just “take it and go.”

Appellant continued pushing complainant back into the master bedroom. Complainant was “still

trying to stay calm” and still thinking how she could “get away from this knife.” In the bedroom,

complainant said she did not have any money, and appellant said, “No, take off your pants.”

Complainant pulled her pants down because she could not get away from appellant and “that

knife [was] always there.” Appellant pushed complainant to the bed, took his pants off, and said

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he was “going to lick [complainant] down there.” Appellant licked complainant’s sexual organ

and then penetrated her vagina with his penis. The knife was “always present” during the sexual

assault, and appellant was “always threatening.”       Appellant finished and told complainant,

“Don’t do anything stupid or I’ll cut you.” Appellant told complainant not to move, took a

portable phone from the nightstand and complainant’s cell phone from the floor, and left the

room. Appellant closed the bedroom door when he left. Complainant got up and locked the

door before activating a silent alarm. After the police arrived and it was apparent appellant was

out of the house, complainant noticed her purse was gone. In her purse, among other things,

were credit cards, her driver’s license, and a Coach wristlet.        An ambulance arrived and

transported complainant to the hospital where she was given a sexual-assault exam.

       Plano police detective Beth Chaney was assigned to complainant’s case and interviewed

complainant at the hospital and later conducted a walk-through at complainant’s house.

Complainant gave Chaney appellant’s name, and detectives obtained an arrest warrant and

arrested him. Appellant was indicted for aggravated sexual assault. Specifically, the indictment

alleged appellant committed sexual assault and “exhibited a deadly weapon, to wit: a knife, that

in the manner of its use and intended use was capable of causing death and serious bodily

injury.”

       At a subsequent trial before the court, the State introduced into evidence, among other

things, a video showing appellant using one of complainant’s credit cards to make a purchase at

Wal-Mart. Appellant objected to the video on the ground that it demonstrated an extraneous

offense and was therefore inadmissible. The trial judge overruled appellant’s objection but

stated the video was admitted “for the sole or limited purpose of identity as it relate[d] to the

indictment before the Court and for no other extraneous reasons.” At the conclusion of the

guilt/innocence phase of trial, the judge found appellant guilty of aggravated sexual assault.

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       At the punishment phase of trial, the defense offered evidence of appellant’s troubled

childhood and the fact that appellant was receiving social security disability insurance payments

for a mental health condition.      The State presented two additional witnesses who testified

appellant had raped them at knifepoint. Additionally, the State introduced evidence of prior

convictions for assault with bodily injury, theft of more than $50 but less than $500, and failure

to identify a fugitive from justice. At the conclusion of the punishment phase, the judge

sentenced appellant to sixty-two years’ confinement, and this appeal followed.

       In his first issue, appellant argues the evidence did not establish the knife described by

complainant was a deadly weapon. The only relevant standard when reviewing the sufficiency

of the evidence is the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See Adames

v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). In determining the sufficiency of the

evidence, an appellate court is to consider all evidence in the light most favorable to the verdict

and determine whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. We defer to the factfinder’s

determinations of the witnesses’ credibility and the weight to be given their testimony, because

the factfinder is the sole judge of those matters. Id. at 326.

       A person commits aggravated sexual assault if, in the course of committing sexual

assault, he uses or exhibits a deadly weapon in the course of the same criminal episode. TEX.

PENAL CODE ANN. §22.021(a)(2)(A)(iv). A “deadly weapon” is anything that in the manner of

its use or intended use is capable of causing death or serious bodily injury.”              Id. at

§1.07(a)(17)(B).

       Here, appellant contends the evidence is insufficient to show he used or intended to use a

knife in a manner capable of causing serious bodily injury and, therefore, he did not use or

exhibit a deadly weapon as required to uphold his conviction. We disagree.

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       In Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989), the court of criminal

appeals discussed the difference between the meaning of “exhibit” and the meaning of “use” in

article 42.12 of the Texas Code of Criminal Procedure. The Court explained that the word “use”

typically means that a deadly weapon must be “utilized, employed, or applied in order to achieve

its intended result: ‘the commission of a felony offense or during immediate flight therefrom.’”

Id. “Use” extends to “any employment of a deadly weapon, even its simple possession, if such

possession facilitates the associated felony.” Id. The word “exhibit,” however, requires a

weapon to be “consciously shown, displayed, or presented to be viewed during ‘the commission

of a felony offense or during immediate flight therefrom.’” Id. Thus, as the Patterson Court

explained, one can “use” a weapon without exhibiting it, but not vice versa. Id.

       The definition of deadly weapon does not require that the actor actually intend death or

serious bodily injury. See §1.07(a)(17)(B).    Rather, an object is a deadly weapon if the actor

intends a use of the object in which it would be capable of causing death or serious bodily injury.

Bailey v. State, 38 S.W.3d 157, 158-59 (Tex. Crim. App. 2001). The determining factor is that

the deadly weapon was “used” in facilitating the underlying crime. McCain v. State, 22 S.W.3d

497, 503 (Tex. Crim. App. 2000) (butcher knife partially exposed during robbery enabled

factfinder rationally to conclude knife was exhibited during criminal transaction or, at least, its

presence was used to instill apprehension in complainant, reducing likelihood of resistance

during encounter); Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002) (BB gun used

during robbery; jury may rationally infer BB gun is loaded, and “it is reasonable to infer that

defendants use loaded guns to facilitate convenience store robberies).

       Appellant argues the only description of the knife was provided by complainant, and the

trial judge therefore erred in making a deadly weapon finding. The record shows appellant

grabbed complainant from behind and threatened to “cut” her. Complainant saw the knife and

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testified “it was pointy, and it kind of came and around and over.” Complainant thought she

might get away from appellant, but she did not know if she could “get away from this knife.”

During the course of the incident, appellant continued to threaten to “cut” complainant. The

knife was “always present” during the sexual assault, and appellant was “always threatening.”

Thus, appellant exhibited the knife during the sexual assault, repeatedly threatened to “cut”

complainant with it, and the knife clearly facilitated the sexual assault. See Adame, 69 S.W.3d at

582; McCain, 22 S.W.3d at 503.

        Viewing the evidence in the light most favorable to the verdict, we conclude it was

rational for the judge, as factfinder, to make the deadly weapon finding. See Jackson, 443 U.S.

at 319; Patterson, 769 S.W.2d at 941; see also Revell v. State, 885 S.W.2d 206, 210 (Tex.

App.−Dallas 1994, pet. ref’d) (appellant’s use of physical force in placing knife against victim’s

throat shows assertive conduct sufficient to support the deadly weapon finding). We overrule

appellant’s first issue.

        In his second issue, appellant argues the trial court erred in allowing the State to

introduce the video of him using complainant’s credit card at Walmart. Specifically, appellant

complains the video is evidence of an extraneous offense offered for the limited purpose of

proving identity when appellant never made an issue of his identity. Appellant argues the video

could have influenced the judge to his detriment.

        We review the trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial

court does not abuse its discretion unless its determination lies outside the zone of reasonable

disagreement. Id. Although we no longer presume that a trial court will disregard inadmissible

evidence, when a case is tried to a trial court rather than to a jury, the danger that the trier of fact

will consider extraneous offense evidence for anything other than the limited purpose for which

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it is admitted is reduced, and the likelihood that the extraneous evidence will unfairly prejudice

the defendant is diminished. Corley v. State, 987 S.W.2d 615, 621 (Tex. App.−Austin 1999, no

pet.). In this case, the judge stated the video was admitted “for the sole or limited purpose of

identity as it relate[d] to the indictment before the Court and for no other extraneous reasons.”

Thus, the record shows the judge clearly did not consider the video at issue as evidence of an

extraneous offense. Accordingly, the trial judge did not abuse her discretion in admitting the

video. We overrule appellant’s second issue.

       We affirm the trial court’s judgment.




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47

121497F.U05




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

MICHAEL D'ANGELO MASON, Appellant                 On Appeal from the 199th Judicial District
                                                  Court, Collin County, Texas
No. 05-12-01497-CR       V.                       Trial Court Cause No. 199-80929-10.
                                                  Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                      Justices O'Neill and Brown participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered March 26, 2014




                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE




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