                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       Nos. 07-13-00412-CR
                                            07-13-00413-CR


                            JAMES HENRY GIBSON, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 47th District Court
                                     Randall County, Texas
             Trial Court No. 24,276-A, 24,329-A, Honorable Dan L. Schaap, Presiding

                                        August 25, 2014

                                MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, James Henry Gibson, appeals the trial court’s judgments of conviction

in which he was found guilty of aggravated assault and aggravated sexual assault and

sentenced to 25 years’ imprisonment for each offense, those sentences to run

concurrently.1 On appeal, he challenges the sufficiency of the evidence to support the

deadly-weapon element of aggravated assault and the nonconsensual and deadly-


      1
          See TEX. PENAL CODE ANN. § 22.02 (West 2011), §§ 22.01, 22.021 (West Supp. 2014).
weapon elements of aggravated sexual assault, maintaining that the evidence was

insufficient to support either conviction. We will affirm.


                              Factual and Procedural History


       Sherry Morris’s son, Chaz, introduced her to a man he had known for a couple of

weeks, a man who was later identified as appellant. Chaz asked his mother if she could

drive appellant to go grocery shopping on his food stamp card.         Morris met with

appellant the night before to confirm where he lived. When she found the motel at

which appellant was living, the two made their introductions, and Morris stayed about

five minutes as they made plans to meet the next morning to go grocery shopping. As

planned, Morris arrived at appellant’s motel room the next morning, March 8, 2012, at

about 10:00 a.m. to find that appellant’s room had been burglarized and some of his

medications stolen. In the crowd of investigating officers and spectators, Morris found

appellant, who asked her if he could put the remainder of his belongings in Morris’s car

because appellant did not want to stay at that particular motel any longer.      Morris

agreed.


       After Morris confirmed that she did not have to work later that day, she took

appellant to a pharmacy to refill his prescription medications that had been stolen from

his room. By this time, it was around noon, and the two then decided to go to the liquor

store where appellant bought a bottle of bourbon. The two proceeded to the grocery

store as they had originally planned and then returned to Chaz’s house, where Morris

had been living for the past several months. Morris and appellant remained at Chaz’s

house until approximately 5:00 p.m., when the two decided to go play slot machines.


                                              2
The two played slot machines with appellant’s money and drank the bourbon appellant

had purchased earlier in the day. Over the next two hours or so, the two continued to

drink and visited at least two other gaming establishments before heading to a nearby

bar to have more drinks and play billiards and darts. They stayed at this bar for a few

hours. Citing the need for sleep before working the next day, Morris wanted to call it a

night, but appellant wanted more beer. Knowing that it was too late to purchase beer

legally, appellant explained to Morris that he knew of a bar where he could purchase

some beer to go and asked Morris to take him there. She agreed. The two had to wait

outside in the cold for about an hour to get into the bar, and appellant expressed some

dissatisfaction with or bitterness toward the clientele of that establishment for being so

young. As consolation, Morris promised to make him the envy of the bar once they

were inside and on the dance floor.


      Morris testified that appellant had not made any inappropriate or sexually-explicit

comments toward her the entire day and that the two had not had flirtatious interaction

that day, with, perhaps, the exception being the promise she made to dance with him.

Once inside the very busy establishment, appellant went to the bar in the hope of

buying some beer quickly and then leaving; Morris found a seat near the dance floor to

wait on him. Appellant returned about five minutes later and sat down in the chair

Morris just vacated. As promised, Morris put one foot on the chair and one foot behind

him and “gyrated around a little bit.” She did so only very briefly because someone

inside the bar shouted instructions for her to cease her gyration and she did. She

commented to appellant something to the effect that, yes, she did indeed make every




                                            3
man in the bar wish he could be appellant. She and appellant high-fived one another

and then left so that she could drop him off at his new room.


      Once there and checked in, appellant invited Morris up to his room, an invitation

which she initially declined, again citing work. But appellant persisted and persuaded

her to come up to the room so, at least, she would know where he was in case he

needed her for something.


      When the two arrived at the new room and Morris acknowledged that she now

knew where his new room was, she indicated she was ready to leave. At that point,

according to Morris, appellant hit her in the head with the base or foundation part of

some spiked brass knuckles and spun her around and put her on the bed.


      After appellant forced Morris onto the bed, he straddled her, wielded a knife in

one hand, and placed the spiked portion of his brass knuckles on the other hand on her

face near her left eye. He deemed her “a tease” and “a whore” who “deserved to die.”

He moved the knife back and forth across her abdomen and announced his intention to

“gut” her. Appellant repeated many of the same threats, and Morris repeatedly begged

him not to kill her. She described her fear of what it was going to feel like when

appellant stabbed her. Appellant inflicted two minor cuts or abrasions on Morris with the

knife, and she began to struggle and bargain with appellant, explaining that she did not

want to die and asking what he wanted. Appellant responded that “it was too late,” but,

when Morris asked if he wanted to have sexual intercourse, his answer was yes.


      Appellant and Morris did have sexual intercourse. Appellant maintains it was

consensual; however, when, at trial, Morris was asked if she had wanted to have

                                            4
intercourse with appellant, she responded, “No. I wanted to live.” When appellant was

finished, she pushed him away, grabbed her clothes, hurriedly left the room, and fled in

a panic toward the hotel exit. She jumped down a flight of stairs, fell, and injured her

right knee and her right hand. In fear and confusion, she could not find her bearings in

that particular part of town and drove to a nearby small town where her parents lived

and where she knew she would be safe.


      She made it as far as Fritch and stopped at a convenience store to buy

cigarettes. The convenience store clerk had known Morris for years and would not

permit her to leave the store out of concern for the disheveled and disoriented Morris.

When Morris told the clerk that she had been raped and was just trying to get to her

mother, the clerk summoned local police, who directed Morris to return to Amarillo to be

examined and report the matter to local authorities there.      She was examined and

evidence was gathered.


      Officers from the Amarillo Police Department persuaded Morris to place a

recorded phone call to appellant to confront him about the events of the late night and

early morning of March 8–9, 2012, and see what, if anything, he would confess. During

that recorded conversation, the following exchange occurred in which appellant did not

deny the conduct and, instead, seemed to point to his overindulgence in alcohol as the

a reason or excuse for his misconduct:


      Morris: Even if I was playing you, I have the right to die . . . . You have a
      right to kill me because I made you spend too much money on alcohol? Is
      that what you’re telling me? This is your excuse here?

      Appellant: No, my excuse is that I had way too much to drink.


                                           5
       Morris: And when you have too much to drink you try to kill people?

       Appellant: Usually, yes.


       A Randall County jury found appellant guilty of aggravated assault and

aggravated sexual assault and assessed punishment at twenty-five years’ imprisonment

for each offense. The trial court imposed judgment and sentence accordingly, and

appellant has appealed those judgments. On appeal, he challenges the sufficiency of

the evidence of certain elements of each offense. We will affirm both judgments.


                                   Standard of Review


       In assessing the sufficiency of the evidence, we review all 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, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single


                                             6
evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


                                    Aggravated Assault


Applicable Law


       A person commits assault if he “intentionally, knowingly, or recklessly causes

bodily injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1). An assault becomes

aggravated if the actor commits assault and uses or exhibits a deadly weapon during

commission of the assault. See id. § 22.02(a)(2). Again, appellant challenges only the

sufficiency of the evidence showing that the instrument alleged—here, a knife—was a

“deadly weapon.” We need, then, to focus our review only on the evidence relevant to

the character of the knife appellant used in his assault on Morris.


       The Texas Penal Code defines a “[d]eadly weapon” as “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) (West Supp. 2014).        We first observe that the State need not

introduce the object into evidence for the trier of fact to find that such object was a

deadly weapon.     See Morales v. State, 633 S.W.2d 866, 868–69 (Tex. Crim. App.

[Panel Op.] 1982); see also Billey v. State, 895 S.W.2d 417, 420 (Tex. App.—Amarillo

1995, pet. ref’d) (concluding that “the actual knife used in the commission of an offense

need not be introduced into evidence if a witness is able to testify about the knife and

the manner in which it was used”). Even without a description of the weapon, the

victim’s injuries can, by themselves, serve as a sufficient basis for the fact-finder to infer

                                              7
that an appellant used a deadly weapon. See Tucker v. State, 274 S.W.3d 688, 691–92

(Tex. Crim. App. 2008); see also Morales, 633 S.W.2d at 868–69 (concluding that

photographic evidence of a deep slash requiring stitches and running from below

victim’s earlobe across her cheek to the corner of her mouth was sufficient to show that

a deadly weapon was used).


       In fact, regardless of whether any wounds were inflicted, a deadly weapon finding

may be made if it is otherwise supported by the evidence. See McCain v. State, 22

S.W.3d 497, 503 (Tex. Crim. App. 2000); Villarreal v. State, 255 S.W.3d 205, 209 (Tex.

App.—Waco 2008, no pet.).         To determine whether a particular knife is a deadly

weapon, courts consider the following factors: (1) the size, shape, and sharpness of the

knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted

wounds; (4) any testimony of the knife’s life-threatening capabilities; and (5) words

spoken by the accused. See Thomas v. State, 821 S.W.2d 616, 619 (Tex. Crim. App.

1991) (en banc); Tisdale v. State, 686 S.W.2d 110, 111 (Tex. Crim. App. 1984) (en

banc). Both expert testimony and lay testimony may be independently sufficient to

support a deadly weapon finding. Banargent v. State, 228 S.W.3d 393, 398–99 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d). No one factor is determinative, and the

fact-finder must examine each case on all of its facts to determine whether the

instrument is a deadly weapon. See Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.—

Houston [1st Dist.] 1999, pet. ref’d).




                                            8
Analysis


       Both appellant and the State have represented that a knife was not introduced

into evidence at trial. However, it appears from the record that a pocketknife taken from

appellant at the time of his arrest was introduced at trial. Indeed, the exhibits volume of

the reporter’s record indicates that the State introduced as its Exhibit 25 a “black

stainless steel pocketknife.” Although we do not have the physical exhibit itself, the

exhibits volume and the testimony surrounding the introduction of that exhibit suggest

that a knife was, in fact, introduced into evidence at trial contrary to both appellant’s and

the State’s representations in briefing. At the time the knife was introduced, Sergeant

Richard Anderson of the APD testified, basing his conclusion on examination of the

knife and his twenty-three years’ experience with the APD, that the knife was “capable

of causing serious bodily injury or death to another person.” Even were we confronted

with the record of a trial in which the alleged instrument was not introduced at trial, its

absence would not be fatal to the State’s case; here, sufficient evidence otherwise

supports the jury’s finding that appellant used a deadly weapon during the assault

against Morris. See Thomas, 821 S.W.2d at 619; Morales, 633 S.W.2d at 868–69.


       From Morris’s account of the incident, appellant struck her, then held her down,

and ultimately used the knife—in conjunction with the spiked brass knuckles he held

near her left eye—to threaten her and coerce her into offering to have sexual

intercourse with him in the hope of either appeasing or escaping him. Morris testified to

a “burning” sensation as appellant moved the knife back and forth across her abdomen,

called her names, told her repeatedly that she deserved to die, and threatened to “gut”

her. Indeed, from Morris’s perspective, it would have appeared that appellant had the

                                             9
then-present intent and capacity to do just that to her. Certainly, appellant’s use of the

knife in such a manner lends itself in support of the jury’s finding that appellant used or

exhibited a deadly weapon during the commission of the assault on Morris.


       Further, the record contains evidence depicting the injuries Morris sustained in

the attack.     The sexual assault nurse examiner observed the following injuries on

Morris: redness to the corner of her left eyebrow and eye, a linear swollen area on her

head, a three-centimeter linear abrasion on her left upper abdomen, and a four-

centimeter curved abrasion on her right flank area, both of these abrasions being

consistent with a knife wound. APD officers involved in the investigation noted similar

observations.     The jury was able to study and consider both photographic and

testimonial evidence relating to those injuries, both the knife-inflicted and otherwise-

inflicted injuries from the encounter, and was able to consider, too, the context in which

those injuries were suffered. In conjunction with Anderson’s testimony regarding the

capacity of the knife to inflict serious bodily injury or death, the nature of the injuries

Morris sustained and the context in which she sustained them lend further weight to the

evidence showing that appellant used a deadly weapon during the commission of the

assault on Morris. See Thomas, 821 S.W.2d at 619.


       Based on the record evidence, the fact-finder could have reasonably found that

appellant used a deadly weapon during his assault against Morris. See Brooks, 323

S.W.3d at 906–07.       Accordingly, we overrule appellant’s contention regarding the

sufficiency of the evidence to sustain his conviction for aggravated assault.




                                            10
                                Aggravated Sexual Assault


       From two directions, appellant challenges the evidence in support of his

conviction for aggravated sexual assault.         First, he contends that the evidence is

insufficient to prove beyond a reasonable doubt that Morris did not consent to sexual

intercourse. Second, much like he argued with respect to the knife in relation to the

aggravated assault conviction, appellant again challenges the evidence that the knife

used in the interaction was a deadly weapon, effectively contending that, even if the

State could prove simple sexual assault, it failed to prove that said offense was

aggravated. See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(iv).


Applicable Law


       A person commits the offense of aggravated sexual assault if (1) that person

intentionally or knowingly causes the penetration of the anus or sexual organ of another

person by any means, without that person’s consent and (2) that person uses or

exhibits a deadly weapon in the course of the same criminal episode.           See id. §

22.021(a)(1)(A)(i), (a)(2)(A)(iv).   To “[c]onsent,” within the meaning ascribed by the

Texas Penal Code, is to “assent in fact, whether express or apparent.”              Id. §

1.07(a)(11).   Section 22.021(c) incorporates by reference Section 22.011(b)’s fairly

extensive list of circumstances in which the assault is considered “without consent” by

statute. Id. § 22.021(c); see id. § 22.011(b) (West 2011) (criminalizing simple sexual

assault). Here, the most pertinent of that list would characterize as nonconsensual a

situation in which “the actor compels the other person to submit or participate by

threatening to use force or violence against the other person, and the other person


                                             11
believes that the actor has the present ability to execute the threat.”          See id. §

22.011(b)(2).


Analysis


       Lack of Consent


       After pointing out what he perceives as inconsistencies between Morris’s account

of the incident and the physical evidence, primarily the SANE examination observations,

appellant maintains that “[n]o rational trier of fact based on the totality of the evidence

could find the evidence sufficient that Ms. Morris did not consent.” The State responds

to appellant’s perceived inconsistencies by characterizing some of them as

misrepresentations. For instance, appellant contends on appeal that Morris testified

that she was hit on the head with the two-inch spikes of the brass knuckles that

appellant wielded that night but exhibited no puncture wounds to her head that would be

consistent with such a strike. The State points out that Morris did not testify that she

was hit in the head with that particular side of the brass knuckles; rather, she testified

that she was struck with the base or “bottom” side of the brass knuckles. That said,

when the SANE examination showed that Morris had a raised and swollen linear injury

to the back of her head, it was entirely consistent with Morris’s account of the incident.


       In his brief, appellant also points to evidence of conduct which he seemingly

characterizes as suggestive of Morris’s consent to the later intercourse.        The State

seems to concede that some of Morris’s conduct that night may not have been in

keeping with ladylike behavior but maintains that any misbehavior on her part does not

equate to consent. Appellant points out that she voluntarily spent the day with him and

                                             12
“even cooked a meal for him at her son’s residence.” The record also suggests that

Morris and appellant drank a great deal that evening.        Appellant also emphasizes

Morris’s dance at the bar during which she “gyrated around” suggestively as appellant

sat in a chair, such that every man in the bar must have wished he could be appellant.

It was after this demonstration that the two went to appellant’s hotel, and after

appellant’s persuasive efforts, ended up in his hotel room. Appellant describes the

sequence of events as follows: the two went up to the hotel room, he grabbed Morris

and put her on the bed, she asked if he wanted to have sexual intercourse, he

answered affirmatively, and the two engaged in intercourse per that discussion. He

omits any reference to spiked brass knuckles, a knife, or any alleged threat to “gut” her.


      Morris testified that she offered to have intercourse only as a means of either

appeasing or distracting appellant so that she might be able to escape the situation in

which appellant had her pinned down and was threatening her life while wielding a knife

and spiked brass knuckles.       At trial, she plainly denied wanting to have sexual

intercourse with appellant and maintained that she only wanted to live. The injuries she

sustained as a direct consequence of her interaction with appellant were consistent with

her characterization of the exchange and suggested that she was forced into the

situation and did not freely consent to having sexual intercourse with appellant. She

also testified to her later efforts to escape appellant during which she sustained further

injuries to her right knee and hand. Jumping down a flight of stairs is conduct that

would appear inconsistent with the account offered by appellant in which the two had

engaged in consensual intercourse.




                                            13
       Again, per the Texas Penal Code, we must consider an assault nonconsensual if

“the actor compels the other person to submit or participate by threatening to use force

or violence against the other person and the other person believes that the actor has

the present ability to execute the threat.” See id. § 22.011(b)(2). Such is the scenario

the record demonstrates here: Morris was forced to submit to intercourse with appellant

when he restrained her and held her down while exhibiting weapons and threatening

her life. In that circumstance, it is fair to say, and the record certainly supports, that

intercourse, though perhaps offered by Morris’s desperate invitation as an effort to save

her life, was nonetheless nonconsensual on Morris’s behalf. We overrule appellant’s

contention that the evidence was insufficient to show as much.


       Deadly Weapon


       Advancing similar contentions as he did with regard to his conviction for

aggravated sexual assault, appellant maintains that the evidence was insufficient to

prove that the knife allegedly used in the interaction was a deadly weapon. We reiterate

that it appears to us that the State did introduce a pocketknife, which it presumably

identified as the weapon used or exhibited during the assault. In light of the jury’s ability

to assess the characteristics and capacity of the knife, the APD officer’s testimony that

the knife was capable of causing serious bodily injury, the nature of the injuries to

Morris, and the context in which those injuries were inflicted, we conclude that the

evidence is sufficient to establish that appellant used or exhibited a deadly weapon

during the sexual assault against Morris, making the sexual assault an aggravated

offense. See id. § 22.021(a)(2)(A)(iv).



                                             14
      Accordingly, we overrule appellant’s contention regarding the sufficiency of the

evidence to support the finding that the knife he used in the incident was a deadly

weapon with respect to his conviction for aggravated sexual assault as well.


                                      Conclusion


      Having overruled appellant’s contentions on appeal, we affirm the trial court’s

judgments of conviction. See TEX. R. APP. P. 43.2(a).




                                        Mackey K. Hancock
                                            Justice


Do not publish.




                                           15
