Opinion filed August 21, 2014




                                      In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-12-00232-CR
                                    __________

                 BALTAZAR MONJE-MORA, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 385th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR38220

                      MEMORANDUM OPINION
      Baltazar Monje-Mora appeals his jury conviction for aggravated assault with
a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a) (West 2011). Upon
finding two prior felony convictions alleged for enhancement purposes to be true,
the jury sentenced Appellant to confinement in the Institutional Division of the
Texas Department of Criminal Justice for a term of forty years. In a single issue,
Appellant challenges the sufficiency of the evidence supporting his conviction.
Specifically, he contends that the evidence was insufficient to show that he used or
exhibited a deadly weapon in committing the assault. We affirm.

                                  Background Facts
      The indictment alleged that, on or about July 3, 2010, Appellant
intentionally, knowingly, and recklessly caused bodily injury to Jesse Gonzalez by
cutting and stabbing him with a knife.        The indictment further alleged that
Appellant used and exhibited a deadly weapon, to wit: a knife, during the
commission of the said assault.
      Gonzalez testified that he was at a bar called “Club Libra” in Midland,
Texas, on the night of July 2, 2010, when he went outside to the parking lot and
found two men inside his pickup. Gonzalez identified Appellant as one of those
men and noted that he was seated in the driver’s seat of the pickup. When
Gonzalez told the two men that they needed to get out of the pickup because it was
his, the men claimed that the pickup belonged to them. To prove that the pickup
was his, Gonzalez put his key in the pickup’s ignition and started the vehicle.
      Gonzalez testified that, as he attempted to go to the other side of the pickup,
the man on the passenger’s side grabbed him while Appellant stabbed him with a
knife. Although Gonzalez did not see the item that was used to stab him, he stated
that he knew it was a knife because he felt a blade go inside him. Gonzalez
believed that he had been stabbed by the knife he kept in the center console of his
pickup because he had left the knife in his pickup that night and it was gone after
the attack.
      Gonzalez explained that he was stabbed approximately ten times and that he
suffered stab wounds under his chin, on both of his arms, and on the side of his
stomach. Gonzalez stated that the injuries bled and that they caused him pain.



                                          2
Gonzalez was treated by paramedics at the scene, but he refused to go to the
hospital.
      During cross-examination, Gonzalez stated that he was not certain that
Appellant was the one who stabbed him. Gonzalez later clarified that he was sure
that Appellant participated in the attack and that Appellant either stabbed him or
held him while he was being stabbed.
      Guadalupe Hernandez, the owner of Club Libra, testified that she refused to
serve Appellant alcohol on the night of July 2, 2010, because he was intoxicated.
Hernandez noted that she asked Appellant to leave and eventually had him
escorted out of the bar. Hernandez recalled that Gonzalez came into the bar around
midnight with blood dripping from his head and arm. Gonzalez asked Hernandez
for help and told her that someone had just stabbed him. Hernandez then followed
Gonzalez outside and Gonzalez identified Appellant as the person that stabbed
him. Hernandez confronted Appellant about the situation, and Appellant hit her in
the face.
      Midland Police Department (MPD) Lieutenant B.J. Land testified that she
responded to Club Libra in the early morning hours of July 3, 2010, after she
received a call informing her that a stabbing had occurred there. Once Lieutenant
Land arrived at Club Libra, she was informed that Appellant, the main suspect in
the stabbing, had fled the scene. Lieutenant Land found Appellant in the nearby
area and told him several times to stop. Appellant ignored Lieutenant Land’s
instructions and continued to walk away from the officer. Appellant was finally
apprehended after another officer took him down to the ground. Lieutenant Land
testified that a brief struggle ensued before Appellant was detained. Lieutenant
Land then searched Appellant and found a “folding pocketknife” in his pocket.
      Lieutenant Land turned the knife over to another officer who logged it in as
evidence. The knife was admitted into evidence during Gonzalez’s testimony
                                        3
based upon his identification of it as as the knife that he had left in his pickup.
Gonzalez specifically identified the knife as the knife that Appellant used to stab
him.
       MPD Officer Juan Gutierrez testified that he also responded to the scene at
Club Libra on July 3, 2010. Once he arrived at the scene, he interviewed Gonzalez
and noted that Gonzalez was upset, shaking, and bleeding from his head and torso.
Gonzalez told Officer Gutierrez that Appellant had stabbed him but that he was not
sure what Appellant had used to stab him.
       MPD Detective Kay Therwhanger testified that she interviewed Gonzalez at
the police station. Gonzalez told her that he had been stabbed but that he did not
know what his assailant had used to stab him.              Detective Therwhanger
photographed Gonzalez’s injuries, and she recalled that he had what appeared to be
blood on his jeans and boots.
       Forensic Scientist Naomi McDonald testified as an expert in the field of
DNA analysis and comparison.         McDonald stated that she conducted DNA
analysis on the shorts, shirt, socks, and boots Appellant was wearing at the time of
his arrest. McDonald noted that Appellant’s shorts tested positive for blood and
that this blood matched the DNA profile obtained from a buccal swab taken from
Gonzalez.    McDonald also tested the knife that Lieutenant Land took from
Appellant, and she determined that the knife tested negative for blood. McDonald
explained that any evidence on the knife could have easily been removed by
cleaning the knife.
                                     Analysis
       We review a sufficiency of the evidence issue, regardless of whether it is
denominated as a legal or factual claim, under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). 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.—
                                         4
Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the 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). In conducting a sufficiency review, we defer to the jury’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson,
443 U.S. at 326; Clayton, 235 S.W.3d at 778.
      Appellant argues that the evidence presented at trial was insufficient to show
that he used or exhibited a deadly weapon. He contends that the State failed to
directly link the knife it offered into evidence to the stabbing. Appellant also
argues that Gonzalez suffered only “slight” stab wounds.
      Under the variant of the offense of aggravated assault with which Appellant
was charged, a person commits an offense if he commits an assault and “uses or
exhibits a deadly weapon during the commission of the assault” See PENAL §
22.02(a)(2). A deadly weapon is “a firearm or anything manifestly designed,
made, or adapted for the purpose of inflicting death or serious bodily injury; or . . .
anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.” PENAL § 1.07(a)(17) (West Supp. 2013); see McCain v.
State, 22 S.W.3d 497, 502–03 (Tex. Crim. App. 2000). “Serious bodily injury”
means “bodily injury that creates a substantial risk of death or that causes death,


                                          5
serious permanent disfigurement, or protracted loss or impairment of the function
of any bodily member or organ.” PENAL § 1.07(a)(46).
          A knife is not a deadly weapon per se. See Robertson v. State, 163 S.W.3d
730, 732 (Tex. Crim. App. 2005); Thomas v. State, 821 S.W.2d 616, 620 (Tex.
Crim. App. 1991). The description of an object as a “knife” does not by itself
establish the object as a deadly weapon by design because many types of knives
have an obvious other purpose. Robertson, 163 S.W.3d at 732. However, a knife
can still be shown to be a deadly weapon if “in the manner of its use or intended
use,” the knife “is capable of causing death or serious bodily injury.” See PENAL §
1.07(a)(17)(B). The placement of the word “capable” is crucial to understanding
this method of determining deadly weapon status. Tucker v. State, 274 S.W.3d
688, 691 (Tex. Crim. App. 2008). The State is not required to show that the “use
or intended use causes death or serious bodily injury” but that the “use or intended
use is capable of causing death or serious bodily injury.” Id. A jury may consider
several factors when considering whether an object is a deadly weapon, including
(1) the words of the accused, (2) the intended use of the weapon, (3) the size and
shape of the weapon, (4) testimony by the victim that he feared death or serious
bodily injury, (5) the severity of any wounds inflicted, (6) the manner in which the
assailant allegedly used the object, (7) physical proximity of the parties, and (8)
testimony as to the weapon’s potential for causing death or serious bodily injury.
Romero v. State, 331 S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref’d).
          The State was required to prove that Appellant used a knife to cause bodily
injury to Gonzalez and that, in the manner that Appellant used or intended to use
the knife, the knife was capable of causing serious bodily injury or death.
Gonzalez identified the knife recovered from Appellant as the knife that he had left
in the console of his vehicle. He also testified that he was sure he had been
                                           6
stabbed by a knife because he felt the blade go inside him. Furthermore, Detective
Therwhanger stated her belief that Gonzalez’s injuries had been caused by “a
sharp, thin edge,” and Detective Rosie Rodriguez noted her belief that the injuries
were caused by a “sharp instrument.”           Gonzalez’s identification of the knife,
coupled with his injuries from a knife, provided a basis for a rational trier of fact to
conclude that the knife recovered from Appellant was the knife that he used to
assault Gonzalez.
      Detectives Therwhanger and Rodriguez both testified that the knife could be
used to cause death or serious bodily injury. See Tucker, 274 S.W.3d at 692
(stating that police officers can be expert witnesses with respect to whether a
deadly weapon was used). Gonzalez testified that he was stabbed approximately
ten times and suffered lacerations to his head, neck, arms, and torso that caused
him to lose blood and suffer pain. Photographs of Gonzalez’s injuries were shown
to the jury, and these photographs paralleled the testimony given by Gonzalez. As
noted by the State in its brief, some of Gonzalez’s stab wounds occurred in
locations near vital organs or arteries, including one on his forehead directly above
his right eye, one underneath his chin near his neck, and multiple wounds on the
left side of his abdomen. Additionally, the stab wounds occurred as a result of a
struggle with one assailant holding Gonzalez while Appellant stabbed him.
Gonzalez was very fortunate that he did not sustain more serious injuries. The fact
that Gonzalez did not suffer a serious injury does not preclude a finding that the
weapon that caused his wounds was capable, in its manner of use, of causing
serious bodily injury. See Tucker, 274 S.W.3d at 692. When viewed in the light
most favorable to the verdict, we conclude that the evidence was sufficient for a
rational jury to determine that Appellant used a weapon capable of causing death
or serious bodily injury to assault Gonzalez. We overrule Appellant’s sole issue.


                                           7
                                   This Court’s Ruling
      We affirm the judgment of the trial court.



                                                         JOHN M. BAILEY
                                                         JUSTICE


August 21, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                           8
