                                  NO. 07-08-0148-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                   MARCH 13, 2009

                         ______________________________


                 RAYMOND JOSEPH JARAMILLO, JR., APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                NO. 56,256-D; HONORABLE DON EMERSON, JUDGE

                        _______________________________

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


                               MEMORANDUM OPINION


      Following a plea of not guilty, Appellant, Raymond Joseph Jaramillo, Jr., was

convicted by a jury of aggravated assault. Punishment was assessed at fifteen years

confinement. Presenting a sole point of error, Appellant questions whether the evidence

is factually sufficient to establish that he used a weapon as alleged in the indictment in
such a way that the weapon was capable of causing death or serious bodily injury. We

affirm.


                                      Background Facts


          Appellant and the complainant, Melissa Lucy, have two children together and had

lived together until shortly before the incident giving rise to Appellant’s indictment.

Although the evidence is disputed on the circumstances leading up to the incident, it is

undisputed that in the early morning hours of July 28, 2007, Lucy visited Appellant’s

residence and the two argued. Lucy maintained that Appellant was in her car and that he

“grabbed [her] and stuck a knife in the back of [her] ear.” As she tried to get out of the car,

he grabbed her again and “sliced [her] neck open.” She was able to get out of the car and

run toward the house screaming so as to awake Appellant’s roommate. According to the

roommate, Appellant was refusing to let Lucy leave and the roommate held him back while

Lucy ran to her car, started it, and began rolling up her window.              Appellant then

approached Lucy’s car and the roommate observed him put his hand inside the partially

rolled up window. As Appellant reached into the car, Lucy drove off.


          Lucy testified that when Appellant reached inside the car window, he “hit” her in the

chest. As she was driving away and turned the corner, she “felt wet” and realized she was

bleeding. She pulled into a convenience store parking lot and called 911.




                                                2
       Police Officers Holcomb and Dorris responded to the call. They observed a

laceration on Lucy’s neck and a large blood spot on the upper left part of her chest. Officer

Holcomb observed that Lucy was bleeding from a puncture wound. He described her as

weak and faint. Lucy identified Appellant as her assailant. After Lucy was transported to

the hospital for treatment,1 the officers located and secured Appellant and placed him

under arrest. No weapon was ever located. Appellant remained incarcerated until the time

of trial where he was convicted of aggravated assault with a deadly weapon. See Tex.

Penal Code Ann. § 22.02(a) (Vernon Supp. 2008).2 This appeal ensued.


       Relying on Rivera v. State, 271 S.W.3d 301 (Tex.App.–San Antonio 2008, no pet.),

and other cases, Appellant maintains the evidence is factually insufficient to establish that

he used a weapon as alleged in the indictment in such a way that it was capable of causing

death or serious bodily injury. In light of the recent decision of Tucker v. State, No. PD-

0742-07, 2008 WL 5047699, at *3 (Tex.Crim.App. Nov. 26, 2008), we disagree.


                        Standard of Review-Factual Sufficiency Review


       When conducting a factual sufficiency review, we must begin with the assumption

that the evidence is legally sufficient under Jackson.3 Laster v. State, ___S.W.3d ___, No.

PD-1276-07, 2009 WL 80226, at *2 (Tex.Crim.App. Jan. 14, 2009). A conviction is not

       1
           Her treatm ent in the em ergency room lasted approxim ately five hours.

       2
           All references herein are to the Texas Penal Code Annotated unless otherwise designated.

       3
           Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

                                                       3
subject to reversal on the basis of factually insufficient evidence unless: (1) the evidence

supporting the conviction is “too weak” to support the factfinder’s verdict, or (2) considering

conflicting evidence, the factfinder’s verdict is “against the great weight and preponderance

of the evidence.” Id. In conducting our factual sufficiency review, we must defer to the

jury’s findings and we cannot conclude that the conviction is factually insufficient simply

because we might disagree with the jury’s verdict. Watson v. State, 204 S.W.3d 404, 416-

17 (Tex.Crim.App. 2006); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

Additionally, we measure the factual sufficiency of the evidence by the elements of the

offense as defined by a hypothetically correct jury charge. See Wooley v. State, No. PD-

0861-07, 2008 WL 2512843, at *1 (Tex.Crim.App. June 25, 2008) (citing Malik v. State,

953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997)).


       As directed by the Court of Criminal Appeals, in conducting our analysis we are

guided by at least three “basic ground rules”: (1) we must consider all of the evidence in

a neutral light, as opposed to in a light most favorable to the verdict;4 (2) we may only find

the evidence factually insufficient when necessary to “prevent manifest injustice”;5 and (3)

we must explain why the evidence presented is too weak to support the verdict or why the

conflicting evidence greatly weighs against the verdict.6 Laster v. State, 2009 WL 80226,

at *2; Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

       4
           W atson v. State, 204 S.W .3d at 414.

       5
           Cain v. State, 958 S.W .2d at 407.

       6
           W atson v. State, 204 S.W .3d at 414.

                                                   4
       When conducting a factual sufficiency review, we must consider the most important

evidence that an appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d

600, 603 (Tex.Crim.App. 2003). Cognizant that we are to consider all evidence in a neutral

light, we are not, however, required to discuss all evidence admitted at trial. See id. See

also Roberts v. State, 221 S.W.3d 659, 665 (Tex.Crim.App. 2007).


       We must always remain cognizant of the jury’s role and unique position in evaluating

credibility and demeanor of witnesses and giving weight to contradictory testimonial

evidence. Johnson v. State, 23 S.W.3d 1, 8-9 (Tex.Crim.App. 2000). Reconciliation of

conflicts in the evidence is within the exclusive province of the jury. Margraves v. State,

34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Unless the record clearly demonstrates a

different result is appropriate, we must defer to the jury’s determination. Johnson, 23

S.W.3d at 8.


                                  Aggravated Assault


       Appellant was indicted as follows:


       [Appellant] did then and there intentionally or knowingly cause bodily injury
       to Lucy by stabbing her with a knife, and [Appellant] did then and there use
       or exhibit a deadly weapon, to-wit: a knife, that in the manner and means of
       its use and intended use was capable of causing death or serious bodily
       injury . . . .


A deadly weapon is “anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.” § 1.07(17) (Vernon Supp. 2008). Serious bodily

                                            5
injury is “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.” § 1.07(46). Therefore, as indicted, the State was required to prove that

Appellant intentionally or knowingly caused bodily injury to Lucy, see § 22.01, that

Appellant used or exhibited a knife; and that the knife, in the manner of its use or intended

use, was capable of causing death or serious bodily injury. See § 22.02(a)(2).7


I.      Deadly Weapon


        A. Knife


        A knife is not a deadly weapon per se. Thomas v. State, 821 S.W.2d 616, 619

(Tex.Crim.App. 1991). Thus, the State must prove that a knife is, in the manner of its use

or intended use, capable of causing death or serious bodily injury. Id. at 620. The State

may establish that a knife is a deadly weapon by evidence of the size, shape, and

sharpness of the knife; the physical proximity between the victim and the object; threats

or words used by the defendant; the knife’s ability to cause death or serious bodily injury;

and the manner in which the defendant used the weapon. See Rivera, 271 S.W.3d at 304.

It is not, however, necessary for the State to introduce a knife into evidence to prove that

it is a deadly weapon. Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. 1982). Nor




        7
          Appellant’s challenge to the factual sufficiency of the evidence is lim ited to whether the State proved
that the weapon used was capable of causing death or serious bodily injury.

                                                        6
is expert testimony necessary. Davidson v. State, 602 S.W.2d 272, 273 (Tex.Crim.App.

1980).


         Although Lucy testified that Appellant grabbed her and “stuck a knife in the back of

[her] ear,” no knife was introduced into evidence and she did not testify about the size,

shape, or sharpness of the knife. Neither did the doctor who treated Lucy or the police

officers who responded to the 911 call and who conducted the investigation testify about

the size and shape of the knife used. Furthermore, even though Lucy testified that when

Appellant stuck his arm inside her car window and “hit” her in the chest, she did not

mention whether or not he used a weapon . She did not testify about any words spoken

by Appellant during the assault. Neither did she testify about the extent of her injuries or

any pain she experienced.


         Appellant’s roommate testified that Appellant had carried a gray knife with a “little

hook on the end.” However, at the time of the altercation, he did not see that knife, or any

other, in Appellant’s hand. Having only scant evidence of a knife, our analysis now focuses

on whether the State proved that the weapon used by Appellant was capable of causing

death or serious bodily injury. (Emphasis added).


         B. Capable of causing serious bodily injury


         The placement of the word “capable” is crucial to understanding a determination of

deadly weapon status. See Tucker, 2008 WL 5047699, at *3. See generally McCain v.


                                               7
State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000) (interpreting § 1.07(a)(17)(B) (deadly

weapon definition)). Even without expert testimony or a description of the weapon, the

injuries suffered by the victim can by themselves be a sufficient basis for inferring that a

deadly weapon was used. See Tucker, 2008 WL 5047699, at *3. See also Denham v.

State, 574 S.W.2d 129, 130 (Tex.Crim.App. 1978) (noting that wounds inflicted on a victim

are a factor to consider in determining whether a weapon qualifies as a deadly weapon).


       Appellant asserts that Lucy’s injuries were not serious: she had a superficial

laceration that did not require suturing; no overnight stay in the hospital was required; and

she was not rendered incapacitated and she left the emergency room to smoke cigarettes.

Appellant argues that the “only reasonable inference from this evidence that the knife

caused only superficial wounds is that the knife, or whatever it was, was not capable of

causing serious bodily injury or death.” (Emphasis in brief).


       Relying on Tucker v. State, 221 S.W.3d 780 (Tex.App.–Corpus Christi 2007), rev’d,

No. PD-0742-07, 2008 WL 5047699, at *3 (Tex.Crim.App. Nov. 26, 2008), Appellant

maintains that if we hold that a knife is a deadly weapon because “a physician had concern

for potential injury,” we negate the requirement that the State prove the knife, or whatever

the weapon may have been, have the capacity to cause serious bodily injury or death.

According to the opinion of the Corpus Christi Court of Appeals, the victim suffered a

puncture wound to the back of her neck near her spine and a puncture mark on her arm.

Her wounds were bandaged but did not require stitches. She spent the night in the


                                             8
hospital. The victim told one of the officers that the appellant carried a two-inch folding

knife.


         In reversing the appellant’s conviction for legally insufficient evidence, the court of

appeals noted that a weapon’s capability of causing death or serious bodily injury must be

supported by evidence relating directly to the circumstances of the criminal episode and

not upon a hypothetical capability of causing death or serious bodily injury. 221 S.W.3d

at 783. In its opinion reversing the court of appeals, the Court of Criminal Appeals recited

the following reasons for the court of appeals’s reversal of the appellant’s conviction:


         C      no evidence of threats by the appellant during the incident;
         C      no testimony about the sharpness of the knife the appellant carried;
         C      neither officer testified that the knife had the ability to inflict death or
                serious injury;
         C      the actual knife was not introduced into evidence;
         C      there was no evidence on the manner in which the appellant used the
                knife;
         C      the complainant was unable to see the knife;
         C      the wounds were not severe enough to require stitches; and
         C      no expert testimony was offered to support a deadly weapon finding.


Tucker, 2008 WL 5047699, at *2. However, in its review, the high Court found the

recitation of the evidence provided by the court of appeals to be incomplete with respect

to one of the officer’s testimony. The Court supplemented the evidence in its opinion. Id.




                                                 9
       According to the opinion of the Court of Criminal Appeals, the officer who

interviewed the victim testified that she had suffered a “‘stab wound to the back of her

neck, close to her spine, and she was in a lot of pain.’” The officer also testified “‘that

whatever object that was used went all the way through her arm.’” The officer also

responded affirmatively when asked if a key had been used to inflict the victim’s injuries,

would it be considered a deadly weapon. Id.


       We recognize that at the time Appellant’s brief was filed, he did not have the benefit

of the Court of Criminal Appeals’s opinion reversing the Corpus Christi Court. The high

Court criticized the court of appeals for minimizing the officers’ testimony and neglecting

to take into account all the relevant facts, perhaps the most crucial of which was the stab

wound to the victim’s forearm. The Court of Criminal Appeals explained:


       [i]t does not take expert testimony to recognize that such a wound could
       easily have severed a major blood vessel or nerve, placing the victim’s life,
       or at least the use of her arm in jeopardy. Even though the victim was
       fortunate that she did not receive such a serious injury, the weapon that
       caused her wound was capable, in its manner of use, of causing serious
       bodily injury. In addition, the court of appeals unduly minimized the stab
       wound to the back of the neck, near the spine, when it failed to observe that
       this injury generated a lot of pain. Such a wound, received in a vulnerable
       area, would seem to carry at least some potential for resulting in a serious
       bodily injury such as paralysis or death.


Id. at 3. (Emphasis in original).


       In the instant case, when Lucy arrived at the emergency room, she presented a stab

wound to the left upper chest and a laceration to her neck. The doctor testified that the cut

                                             10
on her neck was not very deep and did not require any suturing. The doctor did not testify

as to the specific treatment necessitated by the chest wound other than to state that it did

not require major treatment. His primary concern was the potential injury to her chest just

below the clavicle. He recalled that Lucy was in pain and was given pain medication for

the discomfort. His concern with the stab wound to the chest was “an injury to the lung or

to the heart or major vessels under there.” According to the doctor, the potential risks of

an injury to the lung could lead to a tension pneumothorax, which if left untreated, could

result in death. He ordered a chest x-ray to check for evidence of a collapsed lung or blood

filling up the chest cavity. Although the first x-rays did not show immediate life-threatening

injuries, he repeated them because “those injuries can take a while to show up.” Although

we cannot ascribe to medical knowledge, we do note that the upper left chest of a person

is a vulnerable area.


       When asked to explain to the jury his understanding of “serious bodily injury,” the

doctor testified it is “any injury that has the potential to cause significant mortality, death

or morbidity, which is a significant change in your lifestyle or a significant adverse

outcome.” He was then asked if, in his opinion, the wound suffered by Lucy met the

definition of “serious bodily injury.” He responded,


       [i]t certainly has the potential. It is in an area of the chest that certainly could
       have injured her heart or lungs.
       In this case it turned out fortunately that she did not have a – it was not an
       injury that required any major treatment, but certainly had the potential to do
       it.


                                               11
Regarding the injury to Lucy’s left upper chest, the doctor concluded that based on the

wound he observed, it was consistent with someone being stabbed in the chest.


      In his brief, Appellant emphasizes the doctor’s use of the word “potential” as being

insufficient to satisfy “serious bodily injury” because Appellant maintains that Lucy’s

wounds were “superficial.” However, as quoted above, the Court of Criminal appeals has

now included the word “potential” in its analysis of whether a wound results in serious

bodily injury. Tucker, 2008 WL 5047699, at *3. A wound received in a vulnerable area,

which carries “at least some potential” for resulting in a serious bodily injury, is some

evidence of use of a weapon capable of causing serious bodily injury. Id.


      Additionally, State’s Exhibit 4 is a photograph that depicts the injury to Lucy’s left

upper chest. Although submitted on appeal in black and white, it shows a gaping hole. A

photograph of a wound may be sufficient for a jury to infer that the manner in which a

defendant used a weapon rendered it a deadly weapon. See generally Morales, 633

S.W.2d at 868-69 (concluding that photograph of deep slash from just underneath the

victim’s earlobe across her cheek to the corner of her mouth, closed by sutures, was

sufficient to show that a deadly weapon was used).


                                      Conclusion


      Based on the sum of the doctor’s testimony on the potential risks from Lucy’s injury

to her left upper chest, together with Officer Holcomb’s description of Lucy as bleeding,


                                            12
weak, and faint, and State’s Exhibit 4 depicting the open wound to Lucy’s chest, we

conclude the evidence is factually sufficient to show that the weapon used by Appellant

was capable of causing serious bodily injury. Giving proper deference to the jury’s finding,

we conclude the verdict is not manifestly unjust. Cain, 958 S.W.2d at 407. Appellant’s

sole point of error is overruled.


       Consequently, the trial court’s judgment is affirmed.



                                                 Patrick A. Pirtle
                                                     Justice


Do not publish.




                                            13
