                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NO. 2-07-399-CR


KENT EDWARD WINGFIELD                                             APPELLANT

                                      V.

THE STATE OF TEXAS                                                   STATE

                                  ------------

         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                  ------------

                                 OPINION

                                  ------------

                               I. Introduction

     In two issues, Appellant Kent Edward Wingfield appeals his convictions

for burglary of a habitation and aggravated assault. We affirm.

                   II. Factual and Procedural Background

     On April 24, 2005, Nerelyne Pope, accompanied by Tony Russell,

returned home to find that her house had been broken into. When Pope entered
her house, she saw Wingfield, an acquaintance, coming out of a back room.

Pope asked Wingfield to leave but he refused.

      An argument ensued between Wingfield and Russell.                Russell told

Wingfield he needed to leave, and Wingfield responded by punching Russell in

the mouth. When Russell threatened to call the police, Wingfield ran towards

the kitchen. Scared, both Russell and Pope left the house. At some point,

Wingfield began to chase after Russell with a knife he had taken from Pope’s

kitchen. Russell testified at trial that Wingfield said he was going to kill him just

before he stabbed Russell five times.

      The police apprehended Wingfield and charged him with burglary of a

habitation and aggravated assault. A jury convicted Wingfield on both counts,

and the judge sentenced him to ten years’ confinement for the burglary charge

and ninety years’ confinement for the aggravated assault charge. This appeal

followed.

                               III. Double Jeopardy

      In his first issue, Wingfield complains that his Fifth Amendment right to

be free from double jeopardy was violated when the trial court denied his

request to dismiss the charge of aggravated assault and he was convicted of

both aggravated assault and burglary. The essence of his argument is that (1)

the evidence was legally insufficient to show that there were two assaults: one

                                         2
inside the house (punching) and one outside the house (stabbing); (2) the

evidence to support the punching assault was legally insufficient in that Russell

did not directly testify that he experienced pain from Wingfield’s punch; and (3)

since Russell did not experience pain, there was no punching assault, so the

jury could have only found that the stabbing assault occurred; and (4) double

jeopardy was violated by the application of the same assault to create two

offenses, resulting in multiple punishments. See U.S. Const. amend. V; Brown

v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ex parte Herron,

790 S.W.2d 623, 624 (Tex. Crim. App. 1990) (op. on reh’g).

A. Legal Sufficiency

      1. Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether 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, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact 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


                                       3
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).        Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007).      We must presume that the factfinder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      2. Applicable Law

      Burglary of a habitation occurs when a person, without effective consent

of the owner, enters a habitation and commits or attempts to commit an

assault.   Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).          A person

commits an assault “if the person intentionally, knowingly, or recklessly causes

bodily injury to another.” Id. § 22.01(a)(1) (Vernon Supp. 2008). Bodily injury

is defined as “physical pain, illness, or any impairment of physical condition.”


                                       4
Id. § 1.07(a)(8) (Vernon Supp. 2008). The Texas Court of Criminal Appeals has

broadly interpreted the definition of bodily injury to include “even relatively

minor physical contacts so long as they constitute more than mere offensive

touching.” Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).

      A jury may infer that a victim actually felt or suffered physical pain

because people of common intelligence understand pain and some of the natural

causes of it. Randolph v. State, 152 S.W.3d 764, 774 (Tex. App.—Dallas

2004, no pet.). When considering whether evidence is sufficient to establish

that a victim suffered pain, juries may use common sense and apply common

knowledge, observation, and experience gained in the ordinary affairs of life,

using inferences that may reasonably be drawn from evidence. Wawrykow v.

State, 866 S.W.2d 87, 88–89 (Tex. App.—Beaumont 1993, pet. ref’d) (finding

that a rational jury could have inferred that pushes to the chest caused

“physical pain”); see also Goodin v. State, 750 S.W.2d 857, 859 (Tex.

App.—Corpus Christi 1988, pet. ref’d) (stating that people of common

intelligence understand what naturally causes physical pain).

      The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. Const. amend. V.




                                        5
      3. Analysis

      Here, both Russell and Pope testified that while they were standing inside

the house, Wingfield punched Russell in the mouth. Although Russell did not

affirmatively testify to any pain, the State entered into evidence a picture of

Russell’s mouth showing a laceration on his lower lip. Furthermore, Russell’s

medical records, also entered into evidence, stated that the laceration required

sutures. After taking all the evidence into consideration, the jury could have

reasonably inferred that Russell suffered pain as a result of Wingfield punching

him in the mouth. We therefore conclude that the evidence is legally sufficient

to support Wingfield’s conviction for burglary of a habitation.

      Because the evidence is sufficient to support a finding that an assault

occurred inside the house—i.e. Wingfield punching Russell in the mouth—and

because Wingfield does not challenge the assault that occurred outside the

house—i.e. Wingfield stabbing Russell five times—we conclude that the two

assaults support Wingfield’s convictions for burglary of a habitation and

aggravated assault, and that Wingfield’s right to be free from double jeopardy

was not violated. Accordingly, we overrule Wingfield’s first issue.

                              IV. Jury Instruction

      In his second issue, Wingfield argues that the trial court erred by refusing

to instruct the jury on the lesser included offense of assault with regard to the


                                        6
aggravated assault charge in the indictment. He contends that the State did

not prove beyond a reasonable doubt that the knife he used to wound Russell

was a deadly weapon and that the jury could have interpreted that the knife

was not a deadly weapon.

A. Lesser Included Offense

      1. Standard of Review

      We use a two-step analysis to determine whether an appellant was

entitled to a lesser included offense instruction. Hall v. State, 225 S.W.3d

524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666,

672–73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). First, the lesser

offense must come within article 37.09 of the code of criminal procedure. Tex.

Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v. State, 969 S.W.2d

4, 8 (Tex. Crim. App. 1998).

      “An offense is a lesser included offense if . . . it is established by proof

of the same or less than all the facts required to establish the commission of

the offense charged.” Tex. Code Crim. Proc. Ann. art. 37.09(1); see also Hall,

225 S.W.3d at 536. This inquiry is a question of law. Hall, 225 S.W.3d at

535. It does not depend on the evidence to be produced at the trial but is

performed by comparing the elements of the offense as they are alleged in the




                                        7
indictment or information with the elements of the potential lesser included

offense. Id. at 525, 535–36.

      Second, some evidence must exist in the record that would permit a jury

to rationally find that if the appellant is guilty, he is guilty only of the lesser

offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741

(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73.             The evidence

must be evaluated in the context of the entire record. Moore, 969 S.W.2d at

8. There must be some evidence from which a rational jury could acquit the

appellant of the greater offense while convicting him of the lesser included

offense. Id. The court may not consider whether the evidence is credible,

controverted, or in conflict with other evidence. Id. Anything more than a

scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.

Hall, 225 S.W.3d at 536.

      2. Applicable Law

      Because the State concedes that assault is a lesser included offense of

aggravated assault with a deadly weapon, our sole inquiry is to determine if

some evidence exists that would permit a jury to rationally find Wingfield guilty

only of the lesser offense of assault. See Rousseau, 855 S.W.2d at 672–73.

A lesser included offense instruction was required if the record contains some




                                        8
evidence that Wingfield did not use or exhibit a deadly weapon. Moreno v.

State, 38 S.W.3d 774, 778 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

      Section 22.01 of the penal code states that a person commits assault if

he “intentionally, knowingly, or recklessly causes bodily injury to another.”

Tex. Penal Code Ann. § 22.01(a)(1).        A person commits the offense of

aggravated assault if he intentionally, knowingly, or recklessly causes bodily

injury to another and “uses or exhibits a deadly weapon during the commission

of the assault.” Id. § 22.02(a)(2). 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. § 1.07(a)(17)(B); Gordon v. State, 173 S.W.3d 870, 873 (Tex.

App.—Fort Worth 2005, no pet.); Dotson v. State, 146 S.W.3d 285, 299 (Tex.

App.—Fort Worth 2004, pet. ref’d).

      Although a knife is not a deadly weapon per se, the court of criminal

appeals has held that an object, such as a knife, can be a deadly weapon if the

actor intends to use the object in a way in which it would be capable of causing

death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 502–03 (Tex.

Crim. App. 2000); Russell v. State, 804 S.W.2d 287, 290 (Tex. App.—Fort

Worth 1991, no pet.). Serious bodily injury means bodily injury that creates a

substantial risk of death or that causes death, serious permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or organ.


                                       9
Tex. Penal Code Ann. § 1.07(a)(46).          Factors considered in determining

whether a knife is capable of causing death or serious bodily injury include the

physical proximity of the parties, the threats or words used by the defendant,

the size, shape, and sharpness of the weapon, the manner in which the

defendant used the weapon, and the wounds inflicted on the victim. Brown v.

State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986); Bailey v. State, 46

S.W.3d 487, 491–92 (Tex. App.—Corpus Christi 2001, pet. ref’d); Garcia v.

State, 17 S.W.3d 1, 4–5 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

      3. Analysis

      According to Wingfield, due to the size, shape, and intended use of the

knife in this case, its “character as a deadly weapon is subject to different

interpretations.”   And, because the knife’s character is subject to different

interpretations, the trial court erred when it refused to give the jury an

instruction for the lesser included offense of assault. However, the record is

devoid of evidence that would support Wingfield’s “interpretation” theory, and

he has failed to direct us to any in his brief.

      The State, on the other hand, presented evidence to support the jury’s

finding that the knife in question is a deadly weapon. Specifically, the State

elicited evidence through Russell’s testimony that W ingfield stated he was

going to kill him, that Wingfield chased him down, and that Wingfield stabbed


                                        10
him five times.   Officer Ryan Piper of the Wichita Falls Police Department,

testified that, based on his experience, the four–inch bladed knife, as conceded

by Wingfield, would be considered a deadly weapon if used to stab a person in

the head or body. The evidence showed that Russell had been stabbed once

in the head, once in the neck, and three times in the back. Furthermore, there

was evidence that one of the wounds resulted in a punctured lung that required

a chest tube and a stay of about four days in the hospital.

      After taking all of the evidence into consideration and using the factors

from Brown as our guide, we hold that the evidence is legally sufficient to

support the jury’s finding that Wingfield’s knife constituted a deadly weapon.

See Brown, 716 S.W.2d at 94. Therefore, a jury instruction on the lesser

included offense was not warranted because there was no evidence presented

at trial that could permit a rational jury to find that Wingfield committed only

simple assault on the basis that the knife used was not a deadly weapon. See

Moore, 969 S.W.2d at 8. Accordingly, we overrule Wingfield’s second issue.

                                V. Conclusion

      Having overruled Wingfield’s two issues, we affirm the trial court’s

judgment.

                                                 BOB MCCOY
                                                 JUSTICE



                                      11
PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: January 22, 2009




                                    12
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                              NO. 2-07-399-CR


KENT EDWARD WINGFIELD                                            APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

                                  ------------

         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                  ------------

                         DISSENTING OPINION

                                  ------------

      The first count of both the indictment and the jury charge describe

burglary as entry into a habitation without the consent of the owner, Nerelyne

Pope, and committing or attempting to commit assault of an unnamed person.

The majority concludes that the evidence shows that Appellant assaulted Tony

Russell by hitting him in the mouth after entering the house while Pope was

away.

      The second count of the indictment and the second count of the jury

charge describe the aggravated assault of Tony Russell with a deadly weapon
in the same episode.     Appellant argues that aggravated assault is a lesser

included offense of burglary as alleged in the indictment and that his

convictions for both burglary and aggravated assault violate double jeopardy

protections. This argument comports with his complaint at trial. The majority

contends that because the assault with bodily injury occurred inside the house

and the assault with the knife occurred after Appellant chased Russell outside

the house, they are two separate offenses, and there is, therefore, no double

jeopardy violation. The record, however, reflects a single, continuing assault.

The unit of prosecution in a burglary offense is the entry, not the number of

persons assaulted.1 Two convictions will lie only if the aggravated assault is

not part of the assault alleged in the burglary count.

      The record reflects that Appellant and Russell were arguing and fighting

in the front room of the house. Appellant hit Russell in the face, and Russell

said he was going to call the police. Pope testified, “He didn’t make it over

there in time to call the police.” The prosecutor asked her what happened to

prevent Russell from calling the police, and she testified, “[Appellant] ran him

down and stabbed him.”




      1
          … Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006).

                                       2
      When asked for further explanation, Pope said that when Russell said that

he was calling 911, Appellant ran into the kitchen to get a knife, and she and

Appellant ran out the front door. Pope ran to her car, and Russell ran toward

the next door neighbor’s house across a vacant lot. Appellant ran Russell down

and stabbed him with the knife that he had grabbed in Pope’s kitchen.

      The Texas Court of Criminal Appeals has discussed stop-action

prosecution in connection with sexual offenses against children, explaining that

there is nothing in the language of the various statutes demonstrating that the

legislature intended harsh penalties for sexual abuse of children to suggest that

it also intended to authorize “stop-action” prosecution:

      Just as a conviction for a completed offense bars prosecution for
      an attempt to commit the same offense, a conviction for an offense
      set out in § 3.03 bars conviction for conduct that, on the facts of
      the case, is demonstrably part of the commission of the greater
      offense.2

      The record before us demonstrates that the assault of Russell began

inside the house and continued outside as Russell attempted to run away from

Appellant. The assault was part of the burglary offense. Had the indictment

charged Appellant with burglary by entering the house and committing or

attempting to commit sexual assault of Pope, the State could have sustained


      2
       … Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004); see
also Tex. Penal Code Ann. § 3.03 (Vernon Supp. 2008).

                                       3
its burden by showing the sexual assault was begun inside the house and

completed outside, whether on the porch, or in her car, or in the yard next

door.

        Similarly, the assault of Russell was an inextricable part of the burglary.

Just as the State could not have convicted Appellant of assaulting Russell in

the back of the house and also in the front room (although the fight began in

the back of the house), the State cannot separate the composite parts of the

assault in order to secure a burglary conviction for the portion of the assault

that occurred inside the house and a separate aggravated assault conviction for

the final portion of the assault that was completed outside.

        Because such stop-action prosecution permits multiple punishments for

both the greater offense of burglary and the lesser included offense of assault,

I would sustain Appellant’s double jeopardy complaint.

        When a defendant is convicted of two offenses that are the “same” for

double-jeopardy purposes, case law tells us that the conviction for the “most

serious” offense is retained, and the other conviction is set aside. 3 “[T]he ‘most

serious’ offenses is the offense . . . for which the greatest sentence was”




        3
            … Cavazos, 203 S.W.3d at 337.

                                         4
imposed.4 The trial court sentenced Appellant to ten years’ confinement for the

burglary of a habitation conviction and ninety years’ confinement for the

aggravated assault with a deadly weapon conviction. I would therefore retain

the aggravated assault conviction with the deadly weapon finding and set aside

the burglary conviction.    Because the majority upholds both convictions,

violating double jeopardy protections, I must respectfully dissent.




                                           LEE ANN DAUPHINOT
                                           JUSTICE

PUBLISH

DELIVERED: January 22, 2009




      4
          … Id.

                                       5
