      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-07-00237-CR




                                Richard Alan Ashcraft, Appellant

                                                   v.

                                    The State of Texas, Appellee



   FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
       NO. A-06-1247-S, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found appellant Richard Alan Ashcraft guilty of aggravated assault with a

deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (West Supp. 2007). The district court

assessed punishment, enhanced by a previous felony conviction, at twenty-five years’ imprisonment.

In a single point of error, appellant contends that the evidence does not support the jury’s finding that

a deadly weapon was used in the assault. We overrule this contention and affirm the conviction.

                Around midnight on July 2, 2006, appellant and Daniel Sandoval drove from

Ballinger to San Angelo to visit Alfred Parks. What happened after they arrived was a matter of

some dispute. Parks testified that he was awakened by Sandoval’s knock on his door. Parks said

that he first told Sandoval and appellant that he did not want company, but he relented and admitted

them. According to Parks, both Sandoval and appellant were intoxicated. After thirty or forty-five

minutes, Sandoval and appellant got up to leave, and Parks accompanied them outside. Parks
testified that as they stood on the porch, appellant began “hitting me in the back.” Parks said that

he ran toward the alley, where appellant caught up with him and “hit me again.” Parks testified that

he did not realize initially that appellant had in fact stabbed him. According to Parks, “I didn’t feel

it until I reached around behind my back and went like that and I seen the blood on my hand.”

During cross-examination, Parks added, “I didn’t feel no puncture or nothing. I’ve been stabbed

before so I know how it feels. . . . I didn’t even feel this.” Parks said that he never saw the weapon,

and he acknowledged that he told conflicting stories to the police following the incident.

               In his own testimony, appellant said that Parks became angry when he saw appellant

with Sandoval. Appellant asked Parks why he was angry, but Parks did not reply. Instead, Parks

reentered the house, leaving appellant and Sandoval on the porch, and then returned holding a small

pocket knife with a two-inch blade. According to appellant, Parks “came at me” with the knife.

Appellant fled to the alley, where he and Parks began to wrestle and fell to the ground. In

the scuffle, Parks dropped the knife. Appellant said that he picked up the knife and stabbed Parks

“to get him off of me.” Appellant testified that after stabbing Parks, he dropped the knife in the

alley and fled. Appellant said that he regretted stabbing Parks, and that he had done so only to

defend himself.

               The police officer who first responded to the emergency call found Parks lying on a

bed, with blood “all over the bed and his back.” Parks was transported to the hospital, where he was

found to have four stab wounds to his back. Medical records and photographs in evidence reflect

that two of the stab wounds were just to the right of Parks’s spine, below the shoulder blade. One

of these wounds was 2 centimeters across and 2.5 centimeters deep, while the other was 1 centimeter



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across and 2.5 centimeters deep. The other two wounds were on the left side of Parks’s back, also

below the shoulder blade. One of these wounds was 1 centimeter across and 5 centimeters deep, and

the other was 1 centimeter across and 3 centimeters deep.

               There is no evidence that Parks lost a life-threatening amount of blood, but a

photograph of the pants he was wearing shows that there were large blood stains. A pattern of blood

drops was found running from Parks’s porch and along the ground toward the alley. The knife was

never recovered, but it is undisputed that it was the weapon used by appellant to stab Parks.

               The jury rejected appellant’s self-defense claim and convicted him of aggravated

assault. Appellant challenges the sufficiency of the evidence only with respect to the jury’s finding

that the knife was a deadly weapon. Appellant does not indicate whether he is raising a legal or a

factual sufficiency challenge. In the interest of justice, we will review the evidence under both

standards. Under the legal sufficiency standard, the question presented is whether, viewing the

evidence in the light most favorable to the verdict, a rational trier of fact could have found that the

knife was a deadly weapon. See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Griffin v. State,

614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981). Under the factual sufficiency standard, the

evidence is viewed neutrally, and the evidence will be deemed insufficient if the evidence supporting

the jury’s finding is so weak as to make the finding clearly wrong or manifestly unjust, or if the

finding is against the great weight and preponderance of the available evidence. See Watson v. State,

204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.

App. 2000).




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                An ordinary knife is not a deadly weapon per se; that is, it is not an object manifestly

designed, made, or adapted for the purpose of inflicting death or serious bodily injury. Tex. Penal

Code Ann. § 1.07(a)(17)(A) (West Supp. 2007); McCain v. State, 22 S.W.3d 497, 502-03

(Tex. Crim. App. 2000). Instead, a knife becomes a deadly weapon if, in the manner of its use or

intended use, it is capable of causing death or serious bodily injury. Tex. Penal Code Ann.

§ 1.07(a)(17)(B); McCain, 22 S.W.3d at 503. This capability must be evaluated in light of the facts

that existed when the offense was committed. Brown v. State, 716 S.W.2d 939, 946-47 (Tex. Crim.

App. 1986).

                Appellant argues that the knife at issue was not shown to be a deadly weapon

because: (1) the blade was only two inches long and there is no evidence that a blade of this length

is capable of inflicting serious bodily injuries or death; (2) the wounds inflicted were not serious and

did not require stitches; and (3) there is no evidence that appellant threatened Parks or intended

to seriously hurt him. He relies primarily on the opinion in Tucker v. State, 221 S.W.3d 780

(Tex. App.—Corpus Christi 2007, pet. granted). In that case, the defendant stabbed the complainant

twice with a two-inch folding knife, once in the neck near the spine and once on her arm. Id. at 782.

The court held that the evidence did not support the finding that the knife was a deadly weapon

because the wounds inflicted were not serious, there was no evidence of threats by the defendant,

there was no testimony that the knife (which was not in evidence) was capable of causing serious

bodily injury or death, and “there was no evidence whatsoever regarding the manner” of the knife’s

use by the defendant. Id. at 784.




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                We are not persuaded by the Tucker court’s analysis. For one thing, the court was

simply wrong when it stated that there was no evidence regarding the manner of the knife’s use by

the defendant. To the contrary, the evidence showed that the defendant used the knife to stab the

complainant twice, once in the neck near the spine. Id. at 782. It is not necessary to introduce a

knife into evidence in order to prove that it was a deadly weapon. Victor v. State, 874 S.W.2d 748,

751 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Expert testimony is also not required.

Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. 1980). Moreover, it is not necessary for

the State to prove that the wounds inflicted were serious; in fact, no wounds need be inflicted at all.

Id. Finally, it is not necessary that the actor actually intend to cause death or serious bodily injury;

it is sufficient that the actor intended a use of the knife in which it would be capable of causing death

or serious bodily injury. McCain, 22 S.W.3d at 503.

                In McCain, the defendant burst into the complainant’s house, struck her several times

with his fist, and stole her car and pager. Id. at 499. The complainant testified that during the attack,

she saw an object that appeared to be a knife sticking out of the defendant’s back pocket, and the

defendant had a butcher knife in his pocket when he was arrested. Id. The defendant did not

verbally threaten the complainant, brandish the knife, or even refer to the knife during the assault.

Id. The court of criminal appeals held that “the mere carrying of a butcher knife during such a

violent attack . . . was legally sufficient for a factfinder to conclude that the ‘intended use’ of the

knife was that it be capable of causing death or bodily injury.” Id. at 503. Hence, the knife was

proved to be a deadly weapon under the circumstances. Id.




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                A pocket knife with a two-inch blade is not a particularly fearsome weapon.

Nevertheless, the evidence before us shows that appellant used the knife to stab Parks four times in

the back. Although the wounds were not shown to be serious, they did require hospital treatment.

Moreover, two of the stab wounds were very close to Parks’s spine, and the jury could have

reasonably inferred that, but for luck, the injuries inflicted by appellant might have been much worse.

Even without the assistance of expert testimony, the jury could reasonably conclude that a knife

long enough and sharp enough to penetrate a body as deeply as 5 centimeters, when used to

repeatedly stab a person in the back during a close physical struggle, is capable of causing serious

bodily injury. We hold that the evidence in this case, viewed in the light most favorable to the

verdict, was legally sufficient to support a finding that appellant intended to use and did use the knife

as a deadly weapon.

                We also find the evidence to be factually sufficient. Appellant points out that Parks

and Sandoval (who also testified for the State) gave conflicting stories to the police on the night of

the offense, and told yet another story at trial. But appellant also had a credibility problem; he

admitted having nine felony convictions since 1983. And in any event, the conflicting testimony had

to do with why appellant and Sandoval had gone to Parks’s house and who initiated the fight. The

State did not seek to refute appellant’s description of the weapon as a pocketknife with a two-inch

blade, and appellant admitted in his own testimony that he repeatedly stabbed Parks in the back with

the knife as the two men struggled in the alley. Viewing all the evidence in a neutral light, we hold

that the jury’s finding that the knife was a deadly weapon in the manner of its use and intended use

by appellant was not manifestly unjust or against the great weight of the evidence.



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              The point of error is overruled and the judgment of conviction is affirmed.




                                            __________________________________________

                                            Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: February 21, 2008

Do Not Publish




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