REFORM and AFFIRM; and Opinion Filed September 11, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-01641-CR
                                      No. 05-11-01642-CR

                               CHIUNG-YAU LEE, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                     On Appeal from the 296th Judicial District Court
                                   Collin County, Texas
                    Trial Court Cause Nos. 429-81558-09 & 429-81559-09

                               MEMORANDUM OPINION
                          Before Justices O’Neill, Francis, and Fillmore
                                   Opinion by Justice O’Neill
       Appellant Chiung-Yau Lee appeals two convictions for aggravated assault with a deadly

weapon. After finding appellant guilty of the offenses, the trial court assessed punishment at two

years’ confinement in each case. In two points of error, appellant contends (1) the evidence is

insufficient to show she used or exhibited a deadly weapon in the commission of the offenses,

and (2) the trial court erred in ordering her to pay attorney’s fees for her court appointed counsel

in one of the cases. For the following reasons, we affirm appellants’ convictions in both cases,

but reform the judgment in one case to delete the order that appellant pay court-appointed

attorney’s fees.

       The grand jury indicted appellant for two offenses of aggravated assault. The alleged

victims were appellant’s elderly parents. At the time of the offenses, appellant was fifty-one
years old and had been living with her parents for about two years. While she was living with

her parents, appellant would become angry at them when they told her that she needed to get a

job. On the day of the offenses, appellant’s mother, Chuang Ri, again told appellant she needed

to get a job. After Chuang Ri was finished talking with appellant, she went to the game room to

watch TV. As Chuang Ri walked away, appellant became angry, started shouting and banging

around in the kitchen. Appellant woke her father, Shih, who got up immediately to hide the

knives from appellant because she had threatened them in the past. However, appellant already

had the knives and was beating the countertop with them. Shih went to the game room where

his wife was, locked the door, and hid in the corner with this wife. The game room had a bar

with an opening into the living room. Shih testified appellant threw a large cutting knife, a small

paring knife, and scissors into the game room through the bar opening. Appellant was shouting

when she did so, but Shih did not know what she was saying. Shih testified one knife landed

near him, and he was afraid appellant might hurt him. Shih acknowledged appellant could not

see them when she threw the knives. He said he did not think she was “aiming” at them, but she

was aware they were in the game room.

       Chuang Ri also testified that appellant threw the knives into the game room where she

and Shih hid. Chuang Ri said appellant was yelling and said something that sounded like “kill.”

Chuang Ri was very frightened and thought appellant might kill her. She said she did not call

police during the assault because the phone was out of reach and knives were “flying.” The two

knives appellant threw were admitted into evidence. One was a large butcher knife, the other a

steak knife. Appellant threw one of the knives with such force that it damaged the floorboard.

       Appellant testified in her own defense. She said at the time of the alleged offenses, she

was working intermittently and living with her parents. One day, she was cutting up fruit when

she saw her paycheck in the trash can. She became very upset, thinking her mother had thrown

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the paycheck away. She tried to talk to her mother, but her mother ignored her. Appellant

became increasingly upset and wanted to die. She said she “passed” her parents one knife asking

them to just kill her. She denied throwing any knives or threatening her parents. After hearing

the evidence, the trial court found appellant guilty of aggravated assault with a deadly weapon in

both cases.

       In her first point of error, appellant contends the evidence is legally insufficient to

support her conviction because the State failed to prove she used a deadly weapon in the

commission of the offenses. In determining whether the evidence is legally sufficient to support

a conviction, a reviewing court must consider all of the evidence in the light most favorable to

the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a

rational factfinder could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Brooks v. State, 323 S.W.3d 893, 912

(Tex. Crim. App. 2010). This standard gives full play to the responsibility of the factfinder to

fairly 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. When the record

supports conflicting inferences, we presume the jury resolved the conflicts in favor of the verdict

and defer to that determination. Id. at 326.

       A person commits an assault by threat if he intentionally or knowingly threatens another

with imminent bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(2) (West 2011). An assault by

threat requires proof that the defendant acted with intent to cause a reasonable apprehension of

imminent bodily injury. Garrett v. State, 619 S.W.2d 172, 173 (Tex. Crim. App. 1981); Torres

v. State, 905 S.W.2d 440 (Tex. App.—Fort Worth 1995, no pet.).                 A threat may be

communicated by action or conduct as well as by words. McGowan v. State, 664 S.W.2d 355,

357 (Tex. Crim. App. 1984). An assault is elevated to an aggravated assault if the person uses or

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exhibits a deadly weapon during the commission of the assault.           TEX. PENAL CODE ANN.

§ 22.02(a)(2) (West 2011). A deadly weapon includes 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) (West Supp. 2012).       Objects used to threaten deadly force are in fact deadly

weapons. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).

       The State presented evidence that appellant threw two knives into a room where her

parents were hiding from her. When she did so, appellant was angry and shouting what sounded

like “kill.” Appellant’s father testified that one knife landed near him. Appellant’s mother said

she was afraid appellant was going to kill her. One knife was a steak knife, the other a large

butcher knife.   Appellant threw one knife with such force that she damaged the wooden

floorboard where it landed. We conclude a rational trier of fact could have found “the ‘intended

use’ for the [knives] was that [they] be capable of causing death or serious bodily injury.” See

id. Therefore, the evidence is sufficient to show appellant used or exhibited a deadly weapon.

Id. We overrule appellant’s first point of error.

       In her second point of error, appellant contends the trial court erred in ordering her to pay

her court-appointed attorney’s fees. She raises this point only in trial court cause number 429-

81558-09. Appellant asserts it was error for the trial court to order her to pay her attorney’s fees

because she had been determined to be indigent, and the record does not establish any material

change in her financial circumstances. We agree.

       Once a trial court finds a defendant indigent, the defendant is presumed to remain

indigent for the remainder of the proceeding unless a material change in the defendant’s financial

resources occurs. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012); Youkers v.

State, 400 S.W.3d 200, 212 (Tex. App.—Dallas 2013, pet. ref’d). The State concedes there is no

evidence of any change in appellant’s financial circumstances and agrees the judgment should be

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reformed to delete the order that appellant pay her attorney’s fees. Accordingly, we sustain

appellant’s second point of error, reform the judgment in trial court cause number 429-81558-09

to delete the order that she pay attorney’s fees. We affirm appellants’ convictions in both cases.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O'NEILL
                                                     JUSTICE


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

111641F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CHIUNG-YAU LEE, Appellant                            On Appeal from the 296th Judicial District
                                                     Court, Collin County, Texas
No. 05-11-01641-CR         V.                        Trial Court Cause No. 429-81558-09.
                                                     Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                         Justices Francis and Fillmore participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is REFORMED
to DELETE the language “It is further ordered that the cost to Collin County for the payment of
this defendant’s court appointed attorney, if any, is taxed against this defendant as court cost.
The District Clerk is granted leave to amend the court costs to reflect this amount without
necessity of a further order.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 11th day of September, 2013.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O'NEILL
                                                    JUSTICE




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

CHIUNG-YAU LEE, Appellant                            On Appeal from the 296th Judicial District
                                                     Court, Collin County, Texas
No. 05-11-01642-CR        V.                         Trial Court Cause No. 429-81559-09.
                                                     Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                         Justices Francis and Fillmore participating.

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


Judgment entered this 11th day of September, 2013.




                                                   /Michael J. O'Neill/
                                                   MICHAEL J. O'NEILL
                                                   JUSTICE




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