                                    NO. 07-06-0244-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                 NOVEMBER 8, 2006
                          ______________________________

                             SIERRA CRAWFORD JONES,

                                                                Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

                    NO. 4181; HON. STEVEN EMMERT, PRESIDING
                         _______________________________

                                Memorandum Opinion
                          _______________________________

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

       Appellant, Sierra Crawford Jones, appeals from her conviction of aggravated assault

with a deadly weapon by threat. Her issues include: 1) the trial court erred in admitting her

oral statement to a law enforcement officer in violation of art. 38.22 of the Code of Criminal

Procedure and that error was harmful, and 2) the evidence is factually insufficient to show

that the knife used was a deadly weapon. We affirm the judgment.
       Background

       The evidence reveals that appellant and the victim Gracie Payne argued with each

other during a pep rally in Shamrock during which argument appellant pulled a knife and

threatened Payne with it. The evidence is contradictory as to which of the two persons

commenced the argument and whether appellant placed the open knife against the throat

of Payne, merely pointed it at Payne, or merely pulled the unopened knife out of her

pocket.

       Issues One and Two

       In her first and second issues, appellant complains of the trial court’s admission into

evidence of testimony from Police Chief Joe Daniels about an oral statement made to him

by appellant. During appellant’s testimony, she stated that she did not open the knife and

that she did not lift it up to Payne’s face or direct it toward her in any way because she was

physically unable to do so due to a rotator cuff injury. On rebuttal, the State then sought

to have Daniels testify to appellant having told him during her statement at the police

station that the knife was open and that she was also physically able to demonstrate

without difficulty how she had held it out in front of her. Although the complete statement

made by appellant to police was videotaped, the videotape was not offered into evidence

and was apparently inaudible.

       On appeal, appellant argues that the procedure for admission of the videotape did

not meet the requirements of art. 38.22 of the Code of Criminal Procedure in that the State

failed to show that the recording was accurate and failed to identify the voices on the

videotape. Article 38.22 §3 provides that no oral statement of an accused made as a result

of custodial interrogation is admissible against the accused in a criminal proceeding unless

                                              2
an electronic recording is made of the statement and, among other things, the recording

is accurate and all voices on the recording are identified. TEX . CODE CRIM . PROC . ANN . art.

38.22 §3 (Vernon 2005). At trial, appellant objected because it (the videotape) “has not

been admitted, it’s not been shown to the jury, it’s inaudible and therefore is not admissible

and he should not be questioned about it.” The State argues that this was not an objection

based on art. 38.22 and therefore the issue is waived. Even if it could be described as an

objection under some portion of art. 38.22, the objection made at trial was not that the

recording was inaccurate or that the voices were not identified. The objection was that the

recording was inaudible. Because the objection on appeal does not comport with that at

trial, the complaint is waived. Washington v. State, 152 S.W.3d 209, 213 (Tex.

App.–Amarillo 2004, no pet.).

       Moreover, assuming that the issue was not waived, art. 38.22 only applies to

statements made during custodial interrogation. The evidence shows that, although

appellant was asked to come to the police station, she did so without police escort later the

same day of the incident. She was also allowed to leave the police station after her

statement and was not arrested until eleven days later. This evidence, without more,

would have allowed the trial court to find that appellant was not in custody. See May v.

State, 139 S.W.3d 93, 100 (Tex. App.–Texarkana 2004, pet. ref’d) (holding that the trial

court could have determined the defendant was not in custody when he voluntarily went

to the police station, was not physically restrained, and was allowed to leave after the

interview). Thus, the trial court did not abuse its discretion in permitting the police chief to

testify about appellant’s statement. We overrule her first two issues.




                                               3
         Issue Three

         In her third issue, appellant contends the evidence is factually insufficient to show

that the knife was a deadly weapon.1 The standard for factual sufficiency is well settled.

We cite the parties to Watson v. State, No. PD-469-05, 2006 Tex. Crim. App. LEXIS 2040

(Tex. Crim. App. October 18, 2006) for a discussion of it.

         Next, an assault becomes aggravated if the person used or exhibited a deadly

weapon during its commission. TEX . PEN . CODE ANN . §22.02(a)(2) (Vernon Supp. 2006).

When an indictment alleges that appellant “use[d] or exhibit[ed] 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). Next, 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) (Vernon Supp. 2006). 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., as is evidence of wounds caused

by the weapon. Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. 1980). Finally,


         1
          At the end of he r argum ent on this issue, app ellant conc ludes that the ev idence is “legally insu fficient”
although she phrases her issue as one of factual insufficiency. To the extent that she is contesting the legal
sufficiency of the evidence, our resolution of the factual sufficiency also resolves any legal sufficiency claim .



                                                           4
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 at 273;

Lockett v. State, 874 S.W.2d at 814.      The knife used was admitted into evidence at trial.

It was also described as being a lock blade knife with a two to three-inch blade that could

be operated with one hand. Payne and two other witnesses testified the knife was placed

against the victim’s throat. Payne also testified that as the knife was pulled out, appellant

stated, “I’m not scared of you,” Payne called for help when she saw the knife, that it was

“scary,” and that her granddaughter was screaming, “Don’t kill my grandma.” While the

evidence as to whether the knife was placed against the victim’s throat was conflicting, if

the jury chose to believe that it had been so placed, it is evidence of placement next to a

body region particularly susceptible to serious damage to the blood and oxygen supply.

That placement, along with the words spoken, constitutes an implied threat of serious

harm. While no witness testified that the knife was deadly, the evidence presented would

allow a rational jury to conclude that the knife was capable of causing death or serious

bodily injury in the manner of its use or intended use, and such a finding tested against the

entire record is neither manifestly unjust or contrary to the overwhelming weight of the

evidence. Thus, the evidence is factually sufficient to show that appellant used or

exhibited a deadly weapon during the assault.

       Accordingly, the judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




                                             5
