                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00052-CV

                  IN THE MATTER OF L.A., A JUVENILE




                     From the County Court at Law No. 2
                           Johnson County, Texas
                            Trial Court No. J04609


                         MEMORANDUM OPINION


      A jury found that L.A. had engaged in delinquent conduct by committing an

aggravated assault against her stepfather. The court committed her to the Texas Youth

Commission for an indeterminate sentence. L.A. contends among other things that the

evidence is legally and factually insufficient to prove that she used a deadly weapon

“during the commission of the assault.” We will reverse and remand.

                            Sufficiency of the Evidence

      L.A. contends in her first issue that the court erred by denying her motion for

instructed verdict in which she argued that the State failed to produced any evidence

that she “used or exhibited a deadly weapon while hitting [the complainant] on the
head as specifically charged in the petition.”1 She claims in her second issue that her

right to due process was violated because the evidence is legally and factually

insufficient. And she contends in her fifth issue, that the court abused its discretion by

denying her motion for new trial premised primarily on legal and factual insufficiency.

        In evaluating the legal sufficiency of the evidence in a juvenile delinquency

appeal, we view all the evidence in the light most favorable to the verdict and ask

whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. See In re K.B., 143 S.W.3d 194, 199 (Tex. App.—Waco 2004,

no pet.). “This ‘familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” Klein v. State, 273 S.W.3d 297,

302 (Tex. Crim. App. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789, 61 L. Ed. 2d 560 (1979)).

        In evaluating the factual sufficiency of the evidence, we ask whether a neutral

review of all the evidence, though legally sufficient, demonstrates either that the proof

of guilt is so weak or that conflicting evidence is so strong as to render the factfinder’s

verdict clearly wrong and manifestly unjust. See In re M.M.L., 241 S.W.3d 546, 558 (Tex.

App.—Amarillo 2006, no pet.); In re S.S., 167 S.W.3d 108, 112-13 (Tex. App.—Waco 2005,

no pet.).



1
        L.A.’s first issue challenges the legal sufficiency of the evidence. See Hyman Farm Serv., Inc. v.
Earth Oil & Gas Co., 920 S.W.2d 452, 455 (Tex. App.—Amarillo 1996, no writ) (“We review the denial of an
instructed verdict by a legal sufficiency or ‘no evidence’ standard of review.”).



In re L.A.                                                                                         Page 2
        The State’s petition alleges in pertinent part that L.A. did “intentionally or

knowingly threaten Cristobal Lisboa with imminent bodily injury by hitting him in the

head and did then and there use or exhibit a deadly weapon, to wit: a large kitchen

knife, during the commission of said assault.”

        This Court has recently addressed what must be proved to establish that a

deadly weapon was used or exhibited “during the commission” of an assault. See

Johnson v. State, 271 S.W.3d 756, 760-63 (Tex. App.—Waco 2008, pet. ref’d).              The

evidence must show that the deadly weapon was “used [or exhibited] at the same time

as the assault.” Id. at 762 (quoting Wade v. State, 951 S.W.2d 886, 889 (Tex. App.—Waco

1997, pet. ref’d)). Defining “when” the assault occurred depends in part on whether the

offense alleged is a result-oriented offense or a nature-of-conduct offense. Id. at 760-61.

But it also depends in part on the factual allegations of the charging instrument. Id. at

760.

        We explained that there are three categories of penal statutes proscribing the use

or exhibition of a deadly weapon. Id. at 760 n.1.

               According to our research, statutes governing the use or exhibition
        of a deadly weapon may be divided in three categories: (1) those which,
        like section 22.02(a)(2), proscribe the use or exhibition of a deadly weapon
        “during the commission” of the offense; see TEX. PEN. CODE ANN. §
        20.04(b) (Vernon 2003), § 22.02(a)(2) (Vernon Supp. 2008), § 30.05(d)(2)
        (Vernon Supp. 2008); (2) those which proscribe the use or exhibition of a
        deadly weapon “in the course of the same criminal episode”; id. §
        22.021(a)(2)(A)(iv) (Vernon Supp. 2008); and (3) those which proscribe the
        use or exhibition of a deadly weapon “during the commission of the
        offense or during immediate flight following the commission of the
        offense.” Id. § 12.35(c)(1) (Vernon Supp. 2008); see also TEX. CODE CRIM.
        PROC. ANN. art. 17.291(b)(2)(B) (Vernon 2005), art. 42.12, § 3g(a)(2) (Vernon
        Supp. 2008).


In re L.A.                                                                              Page 3
Id. The statute applicable to L.A.’s prosecution lies in the first category. See TEX. PEN.

CODE ANN. § 22.02(a)(2).

        The petition alleges that L.A. assaulted Lisboa by threatening him with imminent

bodily injury. This is a nature-of-conduct offense which can be considered a continuing

offense, depending on what threatening conduct is alleged. See Johnson, 271 S.W.3d at

761; Hall v. State, 145 S.W.3d 754, 758-59 (Tex. App.—Texarkana 2004, no pet.). Because

the petition alleges that L.A. threatened Lisboa “by hitting him in the head,” the petition

alleges a single, discrete threatening act rather than a continuous offense. Cf. Hall, 145

S.W.3d at 759 (indictment alleged that defendant threatened complainant with

imminent bodily injury and used and exhibited a deadly weapon during the

commission of the assault but did not allege with any more specificity how defendant

threatened complainant). Thus, the State had to present evidence that she used or

exhibited the kitchen knife “at the same time as” she hit him in the head. See Johnson,

271 S.W.3d at 762; Wade, 951 S.W.2d at 889.

        Three witnesses presented testimony pertinent to this issue. Lisboa testified that

they had “a big argument” and then L.A. “punched [him] in the forehead.” They

continued arguing as his wife (and L.A.’s mother) called the police. A few moments

later, “she grabbed the knife” and raised it up pointing in his direction. She was about

five feet away from him at the time. Lisboa left the kitchen to get a stick for his own

defense. When he returned to the kitchen, L.A. had gone into her bedroom.




In re L.A.                                                                           Page 4
         Deputy Kenneth Bartlett testified on direct examination that he was told L.A.

“tried to stick [Lisboa] with the knife.” On cross-examination, however, he clarified

that he was told L.A. hit Lisboa with her hand and then grabbed the knife. No one

reported to Bartlett that L.A. had any physical contact with Lisboa when she held the

knife.

         Deputy Dusty Ford testified without objection that he had been informed L.A.

displayed the knife “in a threatening manner.” Like Deputy Bartlett, however, he

agreed on cross-examination that L.A. first hit Lisboa and then later grabbed the knife.

         Viewing the evidence in a light most favorable to the verdict and focusing in

particular on the deputies’ testimony on direct examination, the evidence is legally

sufficient to establish that L.A. used or exhibited a deadly weapon “during the

commission” of the assault. See Klein, 273 S.W.3d at 302 (legally sufficiency standard

allows trier of fact to resolve conflicts in testimony).

         Regarding factual sufficiency, the State contends that the evidence is sufficient

because L.A.’s brandishing of the knife was “part of the same criminal activity.”

However, this contention is misplaced because neither of the latter two categories of

deadly weapon statutes2 we identified in Johnson are applicable. See Johnson, 271 S.W.3d

at 760 n.1. Rather, the question is whether the evidence shows that L.A. brandished the

knife “at the same time as” she hit Lisboa in the head. Id. at 762; Wade, 951 S.W.2d at

889.


2
        The latter two categories are statutes proscribing the use or exhibition of a deadly weapon “in the
course of the same criminal episode” or “during immediate flight following the commission of the
offense.” See Johnson v. State, 271 S.W.3d 756, 760 n.1 (Tex. App.—Waco 2008, pet. ref’d).


In re L.A.                                                                                          Page 5
        When the deputies’ testimony on direct examination is considered with the other

testimony referred to above, we must conclude that the conflicting evidence is so strong

as to render the jury’s verdict clearly wrong and manifestly unjust regarding whether

L.A. used or exhibited a deadly weapon “during the commission” of the assault. See

M.M.L., 241 S.W.3d at 558; S.S., 167 S.W.3d at 112-13. Thus, we hold that the evidence is

factually insufficient.

        We overrule L.A.’s first issue and those portions of her second and fifth issues

challenging the legal sufficiency of the evidence, but we sustain those portions of her

second and fifth issues challenging the factual sufficiency of the evidence. We do not

address her remaining issues.

        We reverse the judgment and remand this cause for further proceedings

consistent with this opinion.



                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissenting with note)*
Reversed and remanded
Opinion delivered and filed June 10, 2009
[CV06]

*      (Chief Justice Gray dissents. A separate opinion will not issue. He notes,
however, that what he forecast in the case relied upon by the Court, and the Court’s
reliance on a footnote therein, is now upon us. See Johnson v. State, 271 S.W.3d 756, 764
n.* (Tex. App.—Waco 2008, pet. ref’d) (Gray, C.J., concurring).)




In re L.A.                                                                         Page 6
