Opinion filed July 18, 2013




                                         In The


        Eleventh Court of Appeals
                                      __________

                                  No. 11-11-00220-CR
                                      __________

                               JOSE DURAN, Appellant

                                           V.

                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court

                                  Midland County, Texas

                              Trial Court Cause No. CR37862



                      MEMORANDUM OPINION
       The jury convicted Jose Duran of aggravated assault with a deadly weapon
and, after finding that he had previously been convicted of two prior felony
offenses, assessed his punishment at confinement for sixty years in the Institutional
Division of the Texas Department of Criminal Justice.
      Duran presents five issues on appeal: (1) the evidence was insufficient to
support the verdict; (2) the conviction based on insufficient evidence denied Duran
due process of law; (3) the State’s comment during closing argument that the
victim’s wounds were “obviously caused by a knife” amounted to bolstering of a
witness’s testimony; (4) the State’s remarks concerning the omission of an
instruction on self-defense amounted to a comment on Duran’s failure to testify;
and (5) the State’s suggestion that the jury should answer “yes” to the question
whether the victim had been stabbed invaded the jury’s province and was
improper. We affirm.
                                Background Facts
      Johnny Robertson met Jennifer Sackie where they worked at a landscaping
company. Robertson moved in with Sackie and her common-law husband, Jose
Duran. Sometime prior to the event in this case, Duran moved out to date another
woman. Apparently, the three remained friends. Both Robertson and Sackie
testified that they were “just” friends; they had no romantic involvement.
      Robertson, Sackie, and Duran went to the Sundown Market in Midland
around 8:00 a.m. on September 9, 2010. They bought at least two six-packs of
beer. After drinking the beer, they walked toward the Soup Kitchen for lunch.
Sackie stopped in Hidalgo Park, and Robertson and Duran went on to the Soup
Kitchen. After the Soup Kitchen closed at 1:00 p.m., Robertson took a plate of
food from the Soup Kitchen to Sackie who had remained in the park. Duran stayed
at the Soup Kitchen, visiting with friends. Sackie ate her lunch and then went back
to the Sundown Market to buy more beer, leaving Robertson in the park. While
she was gone, Ricky Acosta arrived and sat nearby.
      When Sackie returned to the park, Duran and others arrived. Duran and
Sackie began arguing over money; Sackie claimed that Duran owed her forty
dollars. When she told Duran not to call her a “bitch,” Duran became angry.
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Robertson tried to intercede, telling Duran to leave Sackie alone. Sackie said that
she turned to visit with Acosta and walked toward the Soup Kitchen to cool down.
Duran did not follow her, and he did not threaten her or show her a knife. Sackie
admitted that she was intoxicated that day and that she did not see anyone with a
knife.
         As Sackie walked away, Duran approached Robertson (who was sitting
down) and mumbled something. Robertson did not understand Duran and thought
that Duran was patting him on the back. Robertson got up and started walking
toward Acosta because he did not want to argue with Duran. Robertson said that,
as Robertson walked toward Acosta, Duran stuck a knife to his throat and said, “I
ought to kill you.” Duran had followed behind Robertson and put his arm around
Robertson’s neck. Robertson felt a poke on his neck and felt blood “tingling”
down his throat. Robertson testified that he was also stabbed in the back, side, and
elbow. When he reached his hand to his back, his hand became bloody. He did
not see the knife. Robertson remembered going in an ambulance to the hospital
where they stitched and stapled his wounds.
         Acosta witnessed the argument between Duran and Sackie, and said that
Duran slapped her with his open hand. When Robertson intervened, Duran went to
where Robertson was sitting and said, “You want some too?”               Duran hit
Robertson’s back two or three times. Duran pulled a knife from his back pocket
and stabbed Robertson in the back. As Robertson got up and came toward Acosta,
Acosta saw Duran stab Robertson in the back again. Acosta described the knife as
being six or seven inches in length with an open blade and a black handle.
According to Acosta, when Robertson got by a garbage can, Duran “dagged” him
again.
         Acosta then told Duran to leave Robertson alone, and Duran left with the
knife. Acosta said that Robertson did not have a knife and that he never saw
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anyone stab Robertson other than Duran. When the police and the ambulance
arrived a few minutes later, Acosta described Robertson as having a shirt with the
back being full of blood.
        Grady McGowan works for the City of Midland on a survey crew. He
noticed a crowd around one of the tables in Hidalgo Park. He then saw a fight.
The “big man” was striking the “little guy” on the head, and you could see his head
“pop off the table.” McGowan said that the big man was coming down on top of
the little man from behind. McGowan could see that the big man was hitting the
other man from the back, but McGowan was too far away to see if the big man had
anything in his hand. As the big man left, McGowan followed him in his van.
McGowan next saw him in police custody.
        Officer Tony Jacquez with the Midland Police Department said that he
received a dispatch to go to Hidalgo Park because of a stabbing there. When he
arrived, he saw Robertson, who had been stabbed and was bleeding. Officer
Jacquez saw fresh blood on the park table and on the ground. Officer Jacquez told
Officer Aaron Smith, who had arrived first, to look for the suspect.
        Officer Clark William Owen with the Midland Police Department was
working traffic near Hidalgo Park, and he received a broadcast with the description
of the suspect and the suspect’s name. Almost immediately, Officer Owen saw the
suspect walking away from the area of the assault. Officer Owen said that the
suspect confirmed that he was Jose Duran. They were only two blocks from the
park.    Officer Owen noticed fresh blood on Duran’s shirt, pants, and hands.
Sergeant Richard W. Lewis with the Midland Police Department heard Duran
identify himself to Officer Owen, and Sergeant Lewis also observed the blood on
the palms of Duran’s hands and the blood on his shirt and pants. The officers did
not find a weapon on Duran. Sergeant Lewis called in a canine unit to help search
for the knife, but it was never found.
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      Officer Owen contacted Officer Christopher Bryan Lumas because Lumas’s
patrol car had a prisoner cage in it. When Officer Lumas arrived, he saw that
Officer Owen had Duran in handcuffs. Duran appeared to be intoxicated and
smelled of alcohol. After being taken to the Midland County jail, Duran asked
Officer Lumas, “So I’ve got a count of aggravated assault?” Officer Lumas told
him yes. Duran then said, “I should’ve killed him.” Officer Lumas did not say
anything further and simply completed the booking process.
      In viewing photographs of Robertson’s injuries, the jury saw the laceration
to the left side of Robertson’s neck under his jaw, a stab wound to the midsection
of his back, another stab wound to his lower left side, and a cut to his left elbow.
Detective Charles Sims, who had taken the photographs, testified that the wounds
shown in the photographs were consistent with stab wounds; they were still
bleeding when he took the photographs. He based his opinion on his experience of
observing stab wounds over the years.
      The medical records described the stab wounds as having been closed with
staples and sutures. In Dr. Lawrence A. Wilson’s report to Robertson, he told
Robertson that the stab wounds should be treated with care to avoid complications
and to ensure complete recovery.
      The jury took only thirty minutes to deliberate and return with its verdict of
guilty.
                            Sufficiency of the Evidence
      We review a challenge to the sufficiency of the evidence under the same
standard, the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979),
regardless of whether it has been presented as a legal or a factual sufficiency
challenge. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v.
State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the
Jackson standard, we examine all of the evidence in the light most favorable to the
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verdict and determine whether, based on that evidence and any reasonable
inferences from it, any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
      Under the above standard, all evidence, including circumstantial evidence, is
considered. Nguyen v. State, 54 S.W.3d 49, 52 (Tex. App.—Texarkana 2001, pet.
ref’d). Circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence can be sufficient to establish
guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
      Duran argues that the evidence was insufficient because there was no knife
or other weapon found in Duran’s possession and because there was no testimony
that any weapon used was capable of causing death or serious bodily injury. In
addition, the only one who testified that he saw a knife was Acosta, and the State
stipulated that he had previously been found to be mentally deficient. As to this
additional argument, Duran has cited no case holding that a person who has been
found to be mentally deficient cannot accurately describe what he or she observed
as a witness. We are not aware of any such case. We found that Acosta’s
testimony was lucid and consistent with other descriptions of the stabbing. Acosta
may have been the most sober one there; he said he only had one can of beer three
hours earlier. Robertson was the only person who said he thought Acosta was
intoxicated; however, Robertson drank a quart of beer before they went to the
Sundown Market, and he then drank at least a six-pack. It is not surprising that
Robertson did not feel much pain from the stabbings.
       The indictment alleged that Duran did the following:
      [D]id then and there intentionally, knowingly and recklessly cause
      bodily injury to Johnny Robertson by cutting and stabbing the said
      Johnny Robertson with a knife and a bottle and an object to the Grand
      Jury unknown, and the said JOSE DURAN did then and there use and
                                          6
      exhibit a deadly weapon, to-wit: a knife and a bottle and an object to
      the Grand Jury unknown, during the commission of the said assault.

      As relevant to this case, the elements of an aggravated assault are that a
defendant (1) intentionally, knowingly, or recklessly caused bodily injury to
another and (2) used or exhibited a deadly weapon during the assault. TEX. PENAL
CODE ANN. § 22.02(a)(2) (West 2011).
      The jury was entitled to believe Acosta and his detailed description of
Duran’s aggravated assault on Robertson.       Even without that testimony, the
circumstantial and physical evidence was sufficient to prove Duran’s assault:
McGowan described Duran as the “big man” who was assaulting the “little guy”
from behind; Detective Sims took police photographs that showed stab wounds
that were confirmed by the medical evidence; Detective Sims identified the
wounds as stab wounds; Robertson testified concerning the wounds from Duran
stabbing him, his loss of blood, and Duran’s statement (“I ought to kill you”);
numerous officers saw fresh blood on Duran’s hands and clothing; Duran told
Officer Lumas that “[Duran] should’ve killed [Robertson]”; and the treating
physician cautioned Robertson that the stab wounds were serious and needed to be
treated with care.
      A knife is not a deadly weapon per se. Blain v. State, 647 S.W.2d 293, 294
(Tex. Crim. App. 1983); Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App.
1978). Expert testimony is not required to prove a knife was used as a deadly
weapon. Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. 1980). The
State may establish that a knife was capable of causing death or serious bodily
injury through witness descriptions of the size, shape, and sharpness of the knife;
the manner in which the knife was used; words spoken by the defendant; physical
proximity between the victim and the knife; and the nature of any wounds caused


                                         7
by the knife. Lowe v. State, 211 S.W.3d 821, 827 (Tex. App.—Texarkana 2006,
pet. ref’d).
       As shown in the Background Facts in this opinion, the State provided
sufficient evidence to establish that the knife or weapon that Duran used was a
deadly weapon. Acosta described the knife as being six to seven inches long with
an open blade and stated that he saw Duran stab Robertson two or three times.
Robertson testified that, “when [Duran] first stuck that knife up under my throat,
[Duran] said, ‘I ought to kill you.’” Robertson admitted that he did not see the
knife, but he felt something at his throat that “[f]elt like metal.” Robertson felt a
poke in his neck and blood “tingling” down his throat. The back of Robertson’s
shirt was covered in blood. Duran told Officer Lumas, “I should’ve killed him.”
The medical evidence showed that the wounds were serious.             It appears that
Robertson was released early from the hospital by signing a consent form; medical
personnel did not want to release him.
       We overrule Duran’s first issue. Because the evidence was legally sufficient
to support the verdict, we also overrule Duran’s second issue. Duran was not
denied due process of law.
                  The State’s Comments During Closing Argument
       Duran failed to preserve his last three issues for appellate review. Generally,
as a prerequisite to presenting a complaint for appellate review, an appellant must
make a timely request, objection, or motion at the trial court level. See TEX. R.
APP. P. 33.1; Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). The
purpose of this requirement is to give the trial court and the State an opportunity to
correct a mistake early in the proceeding.        Hull, 67 S.W.3d at 217.        This
requirement applies even when the issue on appeal alleges a deprivation of due
process. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see also


                                          8
Hull, 67 S.W.3d at 217. Nevertheless, we also find that Duran’s last three issues
lack merit.
      In Duran’s third issue, he argues that the State’s comment during closing
argument that the victim’s wounds were “obviously caused by a knife” amounted
to bolstering of a witness’s testimony. We disagree. The prosecutor was simply
summarizing the evidence and suggesting a reasonable deduction based on the
evidence. That is proper argument. Landry v. State, 706 S.W.2d 105, 111 (Tex.
Crim. App. 1985).
      In Duran’s fourth issue, he argues that the State’s explanation of why there
was no instruction on self-defense in the charge amounted to a comment on
Duran’s failure to testify. Again, we disagree. The State was explaining the
charge to the jury. The State only commented that there was no instruction on self-
defense because there was no evidence in this case that Duran was acting in self-
defense.      The comment was to remind the jury that Acosta, Robertson, and
McGowan had described Duran as an aggressor who approached Robertson from
behind. There was no evidence that Duran was defending himself. The comment
was not an inappropriate argument.
      In Duran’s fifth issue, he argues that the State’s suggestion to the jury that it
answer “yes” to the question concerning whether the victim had been stabbed was
improper because it invaded the province of the jury as trier of fact. The question
was not in the charge; it was posed by the State during its reply argument. There
was overwhelming evidence that Robertson had been stabbed by Duran. The State
reminded the jury of the evidence showing that Duran was the one who stabbed
Robertson multiple times. The State also reminded the jury that Duran had stated
to Officer Lumas that “[Duran] should’ve killed [Robertson].” The comment was
a summation of that evidence and a reasonable inference from the evidence. We
overrule Duran’s third, fourth, and fifth issues.
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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   TERRY McCALL
                                                   JUSTICE


July 18, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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