Affirmed as Modified; Opinion Filed November 24, 2015.




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-14-01604-CR

                             AUSTIN BILL HIXSON, Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 416-81668-2014

                              MEMORANDUM OPINION
                           Before Justices Lang, Evans, and Whitehill
                                    Opinion by Justice Lang

       A jury convicted Austin Bill Hixson of aggravated assault with a deadly weapon, not a

firearm. The jury assessed punishment at three years’ imprisonment, and recommended that the

sentence be probated. The trial court sentenced appellant to three years’ imprisonment, and

probated the sentence for ten years. In a single issue, appellant contends the evidence is legally

insufficient to support his conviction. We modify the trial court’s judgment and affirm as

modified.
                                         EVIDENCE PRESENTED

       On May 20, 2014, Frisco police were dispatched to the home of appellant’s parents,

Jason and Kimberly Hixson, after police received a 911 call from Jason stating his son had

assaulted his mother. Jason testified that on the date of the assault, neither appellant nor

Kimberly were “on their meds” for their bipolar conditions. Jason testified he did not remember

making a 911 call that evening, but he acknowledged his voice was on the 911 recording, along

with his wife’s and the dispatcher’s voices. Jason testified he believed the entire incident was

“blown out of proportion” and the case was “just a waste of time.” Jason further testified he did

not remember telling the responding officer that his wife was telling the truth about what had

happened and about appellant holding a knife to her throat, nor did Jason remember giving a

written statement to the police that stated appellant “got into a confrontation with his Mom.”

Jason did, however, acknowledge that the written statement given to the police had his name on

it and was in his handwriting.

       Kimberly Hixson, the complainant, testified that when she smelled marijuana in the

house that morning, she asked appellant not to smoke in the house and they began arguing.

Kimberly left to go to the store. Appellant followed Kimberly to her car and asked for an item

that was in the back seat. When Kimberly refused to unlock the car door, appellant “punched the

hood” of the vehicle three times. He then walked to the back of the vehicle and “took out the

license plate.” Kimberly called Jason and told him what appellant had done. Jason told her to

stay away for the rest of the day. That evening, Kimberly met Jason at a local store and they

went home together. Appellant’s friends Donovan and Kristian were at the house with appellant.

       Kimberly testified that when she entered the house and saw the kitchen was dirty, she

was “livid.”   She and appellant exchanged “heated words.”         Kimberly threatened to call



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appellant’s bail bondsman and “go off his bond.” Kimberly explained that she was a co-signer

on a bond for appellant for a different offense. Kimberly stood at the kitchen sink cleaning up.

Appellant came up behind her and pulled a “bread knife” from the knife block on the counter.

Kimberly testified appellant put his left arm around her arm and held the knife out near her neck.

Kimberly testified she did not remember if appellant said anything while holding the knife.

However, she acknowledged that in her written statement to the police she said appellant held the

knife close to her neck and said, “If I’m going to jail, it would be for a reason.” Kimberly

testified she did not feel scared, she felt “annoyed,” and the only reason her written statement to

the police stated she was scared was because she was “really angry.” Kimberly admitted her

written statement said she believed appellant would “hurt me fatally and I believe that he was a

ticking time bomb.”

       During cross-examination, Kimberly testified she did not remember the day of the

assault, and she was basing her testimony on “what the State showed me today.” Kimberly

testified she did not feel threatened when appellant held the knife close to her neck; she felt

angry. Kimberly acknowledged her voice was in the background on the audiotape of the 911 call

saying, “He held a knife to my neck.” Kimberly also acknowledged the written statement had

her name and handwriting on it. Kimberly testified she did not recall what ended the argument

she had with appellant, but she remembered appellant left the house with his friend Donovan.

       Frisco police officer Matthew Poe testified he responded to the Hixsons’ home about

6:00 p.m. and talked with Jason and Kimberly. They stated their son had assaulted Kimberly and

had already left the location. Poe testified Kimberly was “very, very aggravated, angry, and

upset.” When Poe questioned Jason separately from Kimberly, Jason confirmed Kimberly’s

statements that appellant held a knife near her throat and threatened her. Poe testified he did not



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see any marks on Kimberly’s neck or body. When Kimberly took Poe into the kitchen where the

assault occurred, Poe saw a large knife sitting on the countertop. Poe testified he believed both

Kimberly and Jason were telling the truth. Kimberly gave a written statement. Jason initially

refused to give a written statement because he did not want to get appellant into trouble.

However, Jason eventually gave a written statement to Poe.

       Poe testified that while he was questioning Jason, appellant called the house. Poe talked

to appellant and agreed to meet him at a nearby store parking lot. Poe and another officer meet

with appellant and his friend Donovan Hayes. Poe testified appellant stated he argued with his

mother but he never touched her. Appellant said the argument began that morning after his

mother said she smelled marijuana coming from his room. Appellant admitted he followed his

mother out to her car and hit the hood of her car when she would not let him get something from

the back seat. Appellant said he argued with his mother again when she returned to the house

that evening. Appellant said at some point, his father told him to leave the house and he left.

The 911 call recording and photographs of Kimberly, the kitchen, the knife block, and the knife

were admitted into evidence.

       Hunter Kristian Coleman testified he was at appellant’s house when appellant and

appellant’s mother had an argument. Kristian testified he was in the living room with Donovan

Hayes and appellant’s father and saw everything that happened. At no time did appellant put his

hands on his mother, hold a knife, or threaten her. Kristian testified he saw appellant’s mother

push appellant. After that, he, Donovan, and appellant left the house. Later that evening,

Donovan called Kristian and said appellant had been arrested. Donovan asked Kristian to come

to the location where they were talking to the police and give a witness statement. Kristian

testified his written statement said nothing about appellant and his mother arguing in the



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evening, it only discusses the argument they had in the morning and ends with appellant’s

mother leaving the house.

       Donovan Hayes testified he and Kristian were at appellant’s house on May 20, 2015

when appellant’s parents came home. Donovan had been at appellant’s house all day. As

appellant’s parents carried in groceries, Kristian left. Appellant and his mother began arguing.

Donovan testified he never saw appellant waive a knife at his mother or grab her arm, but he did

see appellant’s mother put her hands on appellant “a couple times.” Donovan testified he did see

appellant go into the kitchen when appellant’s mother was in the kitchen, and he did see

appellant “get close” to his mother while in the kitchen, but he never saw appellant with a knife.

Donovan testified appellant’s mother started the argument, but appellant “kept calm.” Donovan

encouraged appellant to go with him, and they left the house. Donovan testified he gave a

written statement to the police.

                                            APPLICABLE LAW

       In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence

in the light most favorable to the verdict and determine whether a 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 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). We are

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. See Jackson, 443

U.S. at 326.

       To obtain a conviction for aggravated assault with a deadly weapon, a knife, the State had

to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly

threatened Kimberly Hixson with imminent bodily injury, and appellant used or exhibited a



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deadly weapon, a knife, during the commission of the assault. See TEX. PENAL CODE ANN.

§ 22.02(a)(2) (West 2011).

                                            DISCUSSION

       Appellant contends the evidence is legally insufficient to support his conviction because

there was no direct evidence to establish that appellant intentionally, knowingly, or recklessly

committed an assault with a deadly weapon.             Appellant asserts that Kimberly’s testimony

contains inconsistent statements about her anger towards appellant. Appellant argues that the

911 call and subsequent written statements to the police were done out of anger and render the

evidence insufficient. The State responds that the evidence is sufficient to show appellant chose

to pick up a large, serrated knife and hold it near his mother’s throat while threatening her.

       Conflicting evidence was presented at trial. Jason testified he did not remember the

assault, calling 911, or giving a written statement to the police. However, he acknowledged it

was his voice on the 911 call and that his written statement to the police said appellant assaulted

Kimberly. Likewise, Kimberly testified she did not feel threatened when appellant held a knife

close to her neck, but acknowledged her written statement to the police said she believed

appellant would hurt her “fatally” and that he was a “ticking time bomb.” Kristian testified he

witnessed the argument and never saw appellant holding a knife, but his written statement to the

police said he witnessed the argument between appellant and Kimberly that occurred that

morning and it ended when Kimberly left the house. Donovan testified that Kristian had left the

house before appellant argued with Kimberly that evening. Donovan also said he never saw

appellant touch his mother or have a knife in his hand while arguing with his mother, but he

acknowledged seeing appellant go into the kitchen where appellant’s mother was standing and

saw appellant go “close” to his mother.



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       It was the jury’s function as the trier of fact to resolve any conflicts in the evidence, and

the jury was free to accept or reject any and all of the evidence presented by either side. See

TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111

(Tex. Crim. App. 2000). Viewing the evidence under the proper standard, we conclude a rational

trier of fact could find beyond a reasonable doubt that appellant knowingly threatened Kimberly

while holding a knife close to her neck. Thus, the evidence is sufficient to sustain the conviction

for aggravated assault with a deadly weapon. We decide against appellant on his sole issue.

                                       MODIFY JUDGMENT

       We note the trial court’s judgment incorrectly recites the presiding judge was the

Honorable Chris Oldner and that the court assessed the punishment. The record shows the

Honorable James Fry presided over the proceedings and the jury assessed punishment. We

modify the judgment to reflect the judge presiding is the Honorable James Fry and the

punishment was assessed by the jury. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—

Dallas 1991, pet. ref'd).

       As modified, we affirm the trial court’s judgment.




                                                      /s/Douglas S. Lang
                                                      DOUGLAS S. LANG
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47
141604F.U05




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                                Court of Appeals
                         Fifth District of Texas at Dallas

                                       JUDGMENT


AUSTIN BILL HIXSON, Appellant                      Appeal from the 416th Judicial District
                                                   Court of Collin County, Texas (Tr.Ct.No.
No. 05-14-01604-CR        V.                       416-81668-2014).
                                                   Opinion delivered by Justice Lang, Justices
THE STATE OF TEXAS, Appellee                       Evans and Whitehill participating.



       Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED to as
follows:

       The section entitled “Judge Presiding” is modified to show “Hon. James Fry.”

       The section entitled “Punished Assessed by” is modified to show “Jury.”

       As modified, we AFFIRM the trial court’s judgment.



       Judgment entered this 24th day of November, 2015.




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