                                    NO. 07-05-0314-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                           PANEL C

                                  MARCH 30, 2006
                          ______________________________

                               NAPOLEON J. FIGUEROA,

                                                               Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2003-402,738; HON. CECIL G. PURYEAR, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

       Napoleon J. Figueroa (appellant) appeals his two convictions for aggravated sexual

assault. His sole issue concerns the legal sufficiency of the evidence underlying the

findings that a deadly weapon was used or exhibited during the course of the rape. That

is, the State allegedly failed to prove that the knife he brandished was a deadly weapon and

that it was used or exhibited during the same criminal episode. We overrule the issue and

affirm the judgments of the trial court.
       The standard by which we review the legal sufficiency of the evidence is well

established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979) and Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004) for its

explanation.

       Deadly Weapon

       Next, when a person is charged with “us[ing] or exhibit[ing] a deadly weapon, to-wit:

a knife,” the evidence must establish that the knife used was actually deadly. Lockett v.

State, 874 S.W.2d 810, 814 (Tex. App.–Dallas 1994, pet. ref’d). The Penal Code defines

a “deadly weapon” as “anything manifestly designed, made, or adapted for the purpose of

inflicting death or serious bodily injury; or . . . anything that in the manner of its use or

intended use is capable of causing death or serious bodily injury . . . . “ TEX . PEN . CODE

ANN . §1.07(a)(17)(A) & (B) (Vernon Supp. 2005). Although a knife is not a deadly weapon

per se, Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991), it may be shown

to be so via evidence of its size, shape, sharpness, manner of use or intended use, and its

capacity to produce death or serious injury. Billey v. State, 895 S.W.2d 417, 420 (Tex.

App.–Amarillo 1995, pet. ref’d). Additionally, evidence of the use of expressed or implied

threats, the distance between the accused and the victim, and the victim’s description of

the knife are also indicia susceptible to consideration. Id. Finally, while expert testimony

regarding the deadly nature of a knife need not be produced to secure a conviction, it can

nonetheless be useful. Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. 1980);

Lockett v. State, 874 S.W.2d at 814.

       The victim, appellant’s former girlfriend, testified that while in the living room of

appellant, he began beating, choking, and biting her. So too did he throw her to the floor,

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spread her legs, kick her in the vagina, and demand that she remove her clothes. While

this occurred, the victim attempted to scream; however, appellant covered her mouth and

threatened to kill her. Then, she was taken by appellant into the kitchen where he placed

her head in the freezer, fondled her vaginal area, grabbed a knife with “little creases” on

the end of it, and stated he wanted to both kill himself and “cut off” her vagina. The victim

testified that she was “very scared” and believed that he could badly hurt or kill her.

       Additionally, an investigating officer testified that the victim described the knife as

a “steak knife” or “paring knife” with a six-inch blade. She further informed him that

appellant “held [the knife] to her and threatened to kill her again.” And, when asked, the

officer opined that the knife described to him was capable of causing death or serious

bodily injury. He further thought it to be a deadly weapon.

        From 1) the description of the knife, 2) appellant’s verbal threats of death and

maiming that accompanied its exhibition, 3) appellant’s act of holding the knife “to her,” 4)

the extreme fear of the victim and her belief that appellant could kill her, and 5) the

testimony by the officer regarding the harm that the knife was capable of causing, there are

indicia sufficient to allow a rational jury to conclude, beyond a reasonable doubt, that the

weapon was capable of causing death or serious bodily injury in the manner of its use or

intended use. Billey v. State, 895 S.W.2d at 422 (holding that the evidence was sufficient

to support a finding that a knife was capable of causing serious bodily injury or death in the

manner of its intended use when the defendant exposed a concealed knife, impliedly

threatened to use the knife to inflict serious bodily injury or death if the money from the

cash register was not given to him, and he was in close proximity to the victim where he



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could do so if she did not comply with his demands). This being so, the finding that the

knife constituted a deadly weapon was and is supported by legally sufficient evidence.

        Same Criminal Episode

        Next, appellant questions whether the deadly weapon at issue was used during the

same criminal episode encompassing the rape. It purportedly was not because it was not

brandished when the actual rape occurred. Nor purportedly did it facilitate the rape,

according to appellant.

        A sexual assault becomes aggravated when a person uses or exhibits a deadly

weapon in the course of the same criminal episode.                             TEX . PEN . CODE ANN .

§22.021(a)(2)(A)(iv) (Vernon Supp. 2005). Furthermore, the criminal episode begins when

the assailant restricts, in any way, the victim’s freedom of movement and ends with the final

release or escape of the victim from the attacker’s control. Burns v. State, 728 S.W.2d

114, 116 (Tex. App.–Houston [14th Dist.] 1987, pet. ref’d). Finally, the use or exhibition of

the weapon at any time during that period elevates the crime to aggravated sexual assault.1

Id.

        Again, the evidence of record illustrates that appellant first restricted his victim’s

freedom while in the living room. The restriction continued into the kitchen wherein he held

the knife and through the bedroom wherein he forcibly committed the act of sodomy and

required her to perform fellatio. Moreover, throughout this entire period, appellant’s actions



        1
          Though the State alleged, in its indictm ent, that app ellant “used and exhibited a deadly weapon
[em phasis added]” during the criminal ep isode, the charge required the jury to determine whether appellant
used “or” exhibited the instrument during that period. See G arrett v. S tate, 682 S.W.2d 301, 309 (Tex. Crim.
App. 1984) (holding perm issib le such interchange between the conjunctive and disjunctive). So, the jury need
only have found that the weapon was exhibited during the criminal episode to convict appellant of the
accusa tions.

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had sexual overtones. For instance, while in the living room he spread her legs and

directed her to disrobe. In the kitchen, he fondled his victim’s genitalia, and in the

bedroom, he anally and orally assaulted her. Given this evidence, a rational jury could

conclude beyond reasonable doubt that appellant exhibited the deadly weapon during the

same criminal episode as the rape.

      Having overruled the sole issue of appellant, we affirm the trial court’s judgments.



                                               Brian Quinn
                                               Chief Justice



Do not publish.




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