                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00453-CR

                                        Cody Shane PIEPER,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                      From the 216th Judicial District Court, Kerr County, Texas
                                      Trial Court No. A16199
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 8, 2018

AFFIRMED

           Cody Shane Pieper appeals his conviction for aggravated assault with a deadly weapon.

His sole issue is that there is legally insufficient evidence that he used a deadly weapon in the

commission of the offense. We affirm the trial court’s judgment.

                                            BACKGROUND

           Pieper and Kenneth Clayburg were in a physical altercation outside of Pieper’s residence.

Clayburg was in the course of repossessing a car belonging to Pieper’s girlfriend. During the

altercation, Clayburg received two cuts to his back. Several neighbors, as well as Pieper’s
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girlfriend and her daughter, A.C., saw parts of the altercation or saw Pieper before or after the

altercation.

        The indictment alleged Pieper “intentionally or knowingly cause[d] bodily injury to

Kenneth Clayburg by stabbing him with a knife, and did then and there use or exhibit a deadly

weapon, to-wit a knife during the commission of said assault.” The case proceeded to a jury trial,

and Pieper pled not guilty. After both sides rested and presented closing arguments, the jury

returned a guilty verdict and assessed punishment at fifty years in prison. The trial court imposed

the sentence, and Pieper timely appealed.

                                            DISCUSSION

        Pieper’s sole issue on appeal is that there is legally insufficient evidence that he used a

deadly weapon in the commission of the offense. In reviewing the legal sufficiency of the evidence,

we must determine whether “any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We view all of the evidence in the light

most favorable to the verdict. Id. We must defer to the jury’s responsibility to fairly resolve

conflicts in testimony, weigh the evidence, and draw reasonable inferences. Id.

        An assault is aggravated if the defendant uses or exhibits a deadly weapon during the

assault. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011); Rivera v. State, 271 S.W.3d 301, 304

(Tex. App.—San Antonio 2008, no pet.). A deadly weapon is “anything that in the manner of its

use or intended use is capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN.

§ 1.07(a)(17)(B) (West Supp. 2017). “Serious bodily 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.” Id. § 1.07(a)(46). “Bodily injury”

is “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8).
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       “[A] knife is not a deadly weapon per se.” Rivera, 271 S.W.3d at 304. However, “it can

qualify as such through the manner of its use, its size and shape and its capacity to produce death

or serious bodily injury.” Id. “[W]hether a particular knife is a deadly weapon depends upon the

evidence.” Id. at 305. “The State may establish the knife was capable of causing death or serious

bodily injury through witnesses’ descriptions of the knife’s size, shape, and sharpness; testimony

of the knife’s life-threatening capabilities; the manner in which the knife was used; the words

spoken by the defendant; the physical proximity between the victim and the knife; and the nature

of any wounds caused by the knife.” Id. at 304. “Expert testimony is not required but it may be

useful when the evidence on the deadly nature of the knife is meager.” Id. “These, however, are

just factors used to guide a court’s sufficiency analysis; they are not inexorable commands.”

Johnson v. State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017).

A. The Evidence

       Because Pieper does not challenge the sufficiency of the evidence as to any other element

of the aggravated assault offense, our analysis must focus on the evidence that Pieper used or

exhibited a deadly weapon when assaulting Clayburg. Clayburg did not testify at trial. The

evidence about whether Pieper used a deadly weapon consisted of testimony from other witnesses,

a knife found in the grass close to Pieper’s residence, photographs, and medical records.

       A.C., the sixteen-year-old daughter of Pieper’s girlfriend, testified she, her siblings, and

her mother were at Big Lots, and Clayburg arrived to repossess the car they were driving. Clayburg

drove A.C., her mother, and siblings back to their home, and A.C.’s mother called Pieper. A.C.

testified that when they arrived home, Pieper approached the car and hit the driver’s side window.

A.C.’s mother went to park the car, and A.C. took her siblings across the street where A.C. watched

Pieper and Clayburg’s altercation. She said she saw “something small enough to fit in your hand

that was black.” A.C. testified Pieper threw the object into the backyard near the side of the house.
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       Joshua Gilbreath, a deputy with the Kerry County Sheriff’s Office, was dispatched to the

scene. He testified that when he pulled up to the scene, Pieper’s niece Brittany Trevino approached

and told him that Pieper had stabbed Clayburg in the back with a knife. Deputy Gilbreath stated

Clayburg, who was also present, lifted up his shirt and showed him a wound on his back. Deputy

Gilbreath testified there was a large amount of blood. Deputy Gilbreath also testified that when he

detained Pieper, he saw that Pieper had a cut on his finger. Photographs of Pieper’s cut and

bleeding right hand were admitted into evidence.

       Several of Pieper’s neighbors, including Jeffrey Weatherford, Phillip Hall, and Fallon Hill,

testified about what they saw. Weatherford and Hall stated they did not see a knife. Hill testified

he saw that Pieper had an object in his hand, but could not tell whether it was a knife. Hill stated

she assumed the object was a knife because of the way Pieper was holding the object. Like

Weatherford and Hall, Pieper’s girlfriend testified she did not see a knife or a stabbing.

       Several other witnesses testified about what happened after the incident. A paramedic with

the Kerrville Fire Department testified Clayburg refused treatment, other than having the wound

cleaned and bandaged. A criminal investigator with the Kerr County’s Sheriff’s Office testified

that the day after the incident, a knife with a black handle was found in the area where A.C. said

Pieper had thrown the black object. The knife was admitted into evidence.

       Carol Twiss, chief criminal investigator with the Kerr County Sheriff’s Office, testified as

an expert witness for the State. She opined that the black-handled knife was a deadly weapon

capable of causing death or serious bodily injury. She also testified the holes in Clayburg’s shirts

were consistent with cutting or a stabbing. Twiss further testified that in nearly every case she has

ever worked on, if the perpetrator has used a knife, he has a cut on his hand in the same area that

Pieper’s hand was cut.



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       The trial court also admitted documents, including photographs and medical records, into

evidence. The photographs showed Clayburg and Pieper after the altercation; Clayburg’s wounds;

blood on Pieper’s face, head, and hands; the area around the house where the altercation occurred;

and the knife as it was found in the yard. Pieper’s medical records note he had a laceration to his

right pinky finger and a head injury.

B. Analysis

       The evidence, viewed in a light most favorable to the verdict, supports an inference that

Pieper cut or stabbed Clayburg with the black-handled knife found in the grass. The jury heard

Deputy Gilbreath’s testimony that Trevino told him Pieper stabbed Clayburg in the back with a

knife. A.C. described the object in Pieper’s hand as a black object, which he threw into the yard

where the black-handled knife was found the following day. Several witnesses testified Pieper and

Clayburg had a physical altercation. The jury saw photographs showing Clayburg sustained two

lacerations on his back and heard testimony that Pieper sustained a laceration to his pinky finger.

The jury saw several photographs depicting a significant amount of blood on Clayburg’s back and

on Pieper’s head, face, and hands. The jury further heard expert witness testimony that Clayburg’s

wounds were consistent with being stabbed with a knife, and that the cut on Pieper’s finger was

consistent with having used a knife. Thus, we must consider whether the evidence shows the black-

handled knife was capable of causing death or serious bodily injury. See Rivera, 271 S.W.3d at

304.

       The knife itself was admitted into evidence. See Robertson v. State, 163 S.W.3d 730, 734

(Tex. Crim. App. 2005) (stating when knife is admitted into evidence, the factfinder has “the

opportunity to examine the weapon and ascertain for itself whether the weapon had physical




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characteristics that revealed its deadly nature”). 1 We presume the jury observed the knife and its

qualities, such as the knife’s size, shape, and sharpness. See id. The photographs in the record show

the knife was several inches long and appeared to be sharp. The jury could have further inferred

from the photos of Clayburg’s wounds, in conjunction with Twiss’s expert testimony, that Pieper

used the knife in a manner to slash or stab Clayburg in the middle of his upper back, and that the

proximity of the knife and Clayburg were sufficiently close so as to enable Pieper to cut or stab

Clayburg twice with the knife. Twiss testified that the knife’s characteristics made it capable of

causing death or serious bodily injury. Considering all of the evidence in a light most favorable to

the verdict, we hold a jury rationally could have found the knife was, in the manner of its use or

intended use, capable of causing death or serious bodily injury. We therefore hold there is legally

sufficient evidence showing Pieper used a deadly weapon in the commission of the offense. See

Johnson, 509 S.W.3d at 324 (holding knife that was a couple of inches long that defendant had

brandished and waved at victim was a deadly weapon, even though the victim could not describe

length, size, or shape of the blade).

                                                 CONCLUSION

        We affirm the trial court’s judgment.

                                                          Luz Elena D. Chapa, Justice

DO NOT PUBLISH




1
 This case is therefore distinguishable from Rivera and Blain v. State, 647 S.W.2d 293 (Tex. Crim. App. 1983), which
Pieper relies on, because in those cases, the knife was not found and admitted in to evidence.

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