                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00427-CR

WILLIAM DAVID BRUMBALOW,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 220th District Court
                             Hamilton County, Texas
                             Trial Court No. CR07663


                                     OPINION


      A jury convicted Appellant William David Brumbalow of aggravated assault

against a public servant and assessed his punishment at forty years’ imprisonment.

This appeal ensued.

                         Lesser-Included-Offense Instruction

      In his first issue, Brumbalow contends that the trial court erred in overruling his

request for a lesser-included instruction on the offense of misdemeanor resisting arrest.

      Appellate review of alleged jury-charge error involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, the court must

determine whether error actually exists in the charge. If error is found, the court must

then evaluate whether sufficient harm resulted from the error to require reversal. Id. at

731-32.

       We use a two-step analysis to determine whether an appellant was entitled to a

lesser-included-offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App.

2007); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). First, the lesser

offense must be a lesser-included offense of the charged offense as defined by article

37.09 of the Code of Criminal Procedure. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim.

App. 1998); see TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006).             Article 37.09

provides:

       An offense is a lesser included offense if:

       (1) it is established by proof of the same or less than all the facts required
       to establish the commission of the offense charged;

       (2) it differs from the offense charged only in the respect that a less serious
       injury or risk of injury to the same person, property, or public interest
       suffices to establish its commission;

       (3) it differs from the offense charged only in the respect that a less
       culpable mental state suffices to establish its commission; or

       (4) it consists of an attempt to commit the offense charged or an otherwise
       included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09. Second, there must be some evidence in the

record that would permit a jury to rationally find that if the appellant is guilty, he is

guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734,


Brumbalow v. State                                                                       Page 2
741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672-73.

       The State concedes that the first step of the lesser-included-offense analysis is

satisfied; however, we must conduct an independent examination of the merits of the

claim of error. See Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002). The first

step in the lesser-included-offense analysis, determining whether an offense is a lesser-

included offense of the charged offense, is a question of law. Hall, 225 S.W.3d at 535. It

does not depend on the evidence produced at trial. Id. To determine if the lesser

offense is a lesser-included offense of the charged offense, we instead compare the

elements of the charged offense, as modified by the particular allegations in the

indictment, against the elements of the lesser offense. Wortham v. State, 412 S.W.3d 552,

555 (Tex. Crim. App. 2013); Hall, 225 S.W.3d at 536.

       The indictment alleged that Brumbalow:

       did then and there intentionally or knowingly threaten Lance McLean
       with imminent bodily injury by displaying a knife, and did then and there
       use or exhibit a deadly weapon, to-wit: a knife, during the commission of
       said assault, and the defendant did then and there know that the said
       Lance McLean was then and there a public servant, to wit: a Hamilton
       County Sheriff’s Deputy, and that the said Lance McLean was then and
       there lawfully discharging an official duty, to-wit: arresting defendant.

       The elements of aggravated assault against a public servant, as modified by the

indictment, are therefore:

       (1) A person

       (2) intentionally or knowingly

       (3) threatened another with imminent bodily injury;

       (4) used or exhibited a deadly weapon during the commission of the assault; and

Brumbalow v. State                                                                  Page 3
       (5) knew that the person upon whom he committed the aggravated assault was a

public servant

       (6) while the public servant was lawfully discharging an official duty.

See TEX. PENAL CODE ANN. § 22.01(a)(2) (West Supp. 2013), § 22.02(a)(2), (b)(2)(B) (West

2011). The elements of misdemeanor resisting arrest are:

       (1) A person

       (2) intentionally

       (3) prevented or obstructed a peace officer from effecting an arrest,

       (4) knowing the person was a peace officer,

       (5) by using force against the peace officer or another.

See id. § 38.03(a) (West 2011).

       A comparison of these elements demonstrates that the first step of the lesser-

included-offense analysis is not satisfied. The elements of misdemeanor resisting arrest

require at least one element that the elements of aggravated assault, as modified by the

indictment, do not—using force against a peace officer. See Petersen v. State, 01-11-

00740-CR, 2012 WL 2106720, at *2 (Tex. App.—Houston [1st Dist.] Jun. 7, 2012, no pet.)

(mem. op., not designated for publication); Dunklin v. State, 194 S.W.3d 14, 22 (Tex.

App.—Tyler 2006, no pet.); Potts v. State, No. 03-05-00009-CR, 2006 WL 664211, at *4

(Tex. App.—Austin Mar. 17, 2006, pet. ref’d) (mem. op., not designated for publication);

Schreyer v. State, No. 05-03-01127-CR, 2005 WL 1793193, at *8 (Tex. App.—Dallas Jul. 29,

2005, pet. ref’d) (not designated for publication). Thus, the offense of misdemeanor

resisting arrest is not a lesser-included offense of the charged offense of aggravated

Brumbalow v. State                                                                Page 4
assault against a public servant according to article 37.09 of the Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.09; Moore, 969 S.W.2d at 8. Because

the first step of the lesser-included-offense analysis was not met, we need not discuss

the second step.

       Brumbalow notes that the trial court gave a lesser-included-offense instruction

on felony resisting arrest and that misdemeanor resisting arrest is a lesser-included

offense of felony resisting arrest.      The issue in this case, however, is whether

misdemeanor resisting arrest is a lesser-included offense of the charged offense, which is

aggravated assault against a public servant. See TEX. CODE CRIM. PROC. ANN. art. 37.09.

Brumbalow also supports his position by citing to this Court’s majority opinion in

Campbell v. State, 128 S.W.3d 662 (Tex. App.—Waco 2003, no pet.), in which the majority

concluded that felony resisting arrest was a lesser-included offense of aggravated assault

by threat against a public servant. Id. at 670-72. However, to the extent our holding in

this opinion conflicts with the majority opinion in Campbell, we overrule it. We overrule

Brumbalow’s first issue.

                                Sufficiency of the Evidence

       In his second issue, Brumbalow contends that the evidence is insufficient to

prove that the knife he possessed was used as a deadly weapon. We disagree.

       The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

              In determining whether the evidence is legally sufficient to support
       a conviction, a reviewing court must consider all of the evidence in the
       light most favorable to the verdict and determine whether, based on that

Brumbalow v. State                                                                   Page 5
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). 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." Jackson, 443 U.S. at 319. "Each fact need not point
       directly and independently to the guilt of the appellant, as long as the
       cumulative force of all the incriminating circumstances is sufficient to
       support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

       The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326. Further,

direct and circumstantial evidence are treated equally: “Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it

is well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

       A person commits an assault if he intentionally or knowingly threatens another

with imminent bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(2). The assault is

aggravated if the person uses or exhibits a deadly weapon during the commission of the

assault. Id. § 22.02(a)(2). The offense is a first-degree felony if it is committed against a


Brumbalow v. State                                                                         Page 6
person the actor knows is a public servant while the public servant is lawfully

discharging an official duty. Id. § 22.02(b)(2)(B).

       A deadly weapon is: “(A) a firearm or anything manifestly designed, made or

adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that

in the manner of its use or intended use is capable of causing death or serious bodily

injury.” Id. § 1.07(a)(17) (West Supp. 2013). “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).

       It is a well-settled rule of Texas criminal jurisprudence that a knife is generally

not a deadly weapon per se or by design. See Thomas v. State, 821 S.W.2d 616, 620 (Tex.

Crim. App. 1991); Nickerson v. State, 69 S.W.3d 661, 670 (Tex. App.—Waco 2002, pet.

ref’d); see also TEX. PENAL CODE ANN. § 1.07(a)(17)(A). A knife can be a deadly weapon,

however, if in the manner of its use or intended use it was capable of causing death or

serious bodily injury. See Thomas, 821 S.W.2d at 620; Nickerson, 69 S.W.3d at 670; see also

TEX. PENAL CODE ANN. § 1.07(a)(17)(B). To determine whether a knife is a deadly

weapon in the manner of its use or intended use, we examine the following factors: (1)

the knife’s size, shape, and sharpness; (2) the manner of the knife’s use or intended use;

(3) the nature or existence of inflicted wounds; (4) testimony of the knife’s life-

threatening capabilities; (5) the physical proximity between the victim and the knife;

and (6) the words spoken by the appellant. Rivera v. State, 271 S.W.3d 301, 304 (Tex.

Brumbalow v. State                                                                   Page 7
App.—San Antonio 2008, no pet.); Lowe v. State, 211 S.W.3d 821, 827 (Tex. App.—

Texarkana 2006, pet. ref’d); Nickerson, 69 S.W.3d at 670.

       The relevant evidence presented in this case was as follows: Hamilton County

Sheriff’s Investigator Lance McLean testified that on April 11, 2011, he responded to a

disturbance call at a residence in Hamilton. He saw a pickup truck turn into the

driveway of the residence and two men get out of the truck and enter the house

through a door on the north side. McLean pulled into the driveway behind the pickup,

got out of his vehicle, and walked up to the door. He was wearing a leather gun rig

with a Hamilton County Sheriff’s badge on the belt.          McLean also announced

“Hamilton County Sheriff’s Office” two or three times before he went inside the

residence.

       McLean testified that when he went inside the residence, he saw three men in the

kitchen—Brumbalow, whom he knew by sight and was aware had an outstanding

warrant; S. L. Brewer, whom he also knew; and Jeff David Brumbalow (Jeff), whom he

did not know but later identified. McLean immediately asked Brumbalow if there was

anyone else in the residence, and Brumbalow replied that there was not. McLean

quickly went into the living room and looked in the door of another bedroom but did

not see anyone else, so he came back to the kitchen where Brumbalow was leaning

against the kitchen bar.

       McLean testified that he asked Brumbalow for his driver’s license but that

Brumbalow shook his head and asked McLean why he was there.              McLean told

Brumbalow that someone had called the police about a disturbance. Brumbalow again

Brumbalow v. State                                                               Page 8
shook his head and said no. McLean asked Brumbalow again for his driver’s license.

McLean stated that Brumbalow either said no or that he did not have one. McLean then

asked Brumbalow to go outside. Brumbalow responded that he was not going outside.

At that point, McLean told Brumbalow to turn around and put his hands behind his

back and that he was under arrest. McLean said that Brumbalow then “made a quick

movement with his hands behind him. He pulled out a knife and took a step forward,

which was in the -- in the direction of where I was standing.” It startled McLean, and

McLean testified that he felt threatened. McLean estimated that Brumbalow was three

to four feet from him when he pulled the knife, and Brumbalow did not say anything.

The knife was admitted into evidence.

       McLean testified that he made eye contact with Brumbalow and immediately

grabbed his arm and stretched it out. McLean then pushed Brumbalow into the wall,

trying to get the knife away from the both of them. Brumbalow pushed off the wall,

and both McLean and Brumbalow went to the floor in the dining room. Brumbalow

was on his stomach; McLean was on top of Brumbalow’s back and still had

Brumbalow’s arm stretched out. McLean commanded Brumbalow to stop resisting, but

they continued to struggle for several minutes. McLean told the other two men to call

9-1-1, and Brewer did. McLean then told Jeff to help him get the knife away from

Brumbalow.      Jeff attempted to break Brumbalow’s fingers away from the knife.

Brumbalow was somehow able to get his hand and arm away from McLean and Jeff

and bring the knife in toward his chest area; however, McLean and Jeff were able to

force Brumbalow’s arm back out. McLean then began to notice a large pool of blood

Brumbalow v. State                                                              Page 9
forming from a wound to Brumbalow’s hand.

       McLean testified that he and Jeff were eventually able to get the knife away from

Brumbalow. Jeff threw it away from them, and McLean believed it ended up on the

floor in the corner of the kitchen. McLean remembered Brumbalow say at some point

that he wanted to kill himself. Roy Brumbalow (Roy), Brumbalow’s older brother, then

came into the residence. Roy told Brumbalow to “quit fighting or he was going to

knock him in the head.” At that point, Brumbalow did relax his body and said he was

going to stop fighting. McLean then allowed Brumbalow to get up. McLean walked

Brumbalow over to the kitchen sink and allowed Brumbalow to wash his wound out.

McLean was not injured, but he had blood on his face, neck, and all over his clothes.

       Brewer testified that Brumbalow is his first cousin. Brewer recalled that the

incident between McLean and Brumbalow on April 11 happened so quickly that he did

not see what happened very well. He did not see the knife until after Brumbalow was

on the ground. Brewer stated that when Brumbalow was on the ground, he was trying

to get away from McLean and trying to stab himself in the chest. It did not appear to

Brewer that Brumbalow was trying to stab McLean. At some point, McLean told

Brewer to call 9-1-1, and he did.

       Jeff testified that Brumbalow is his uncle. Jeff remembered that on April 11, the

officer twice asked Brumbalow nicely to step outside. Brumbalow was not saying

anything; he was just standing there. At some point, the officer told Brumbalow to put

his hands behind his back.          Brumbalow just stood there, so the officer grabbed

Brumbalow’s arm and went to put it behind his back. Brumbalow resisted, and the

Brumbalow v. State                                                                Page 10
officer slammed Brumbalow up against the wall and then slammed him on the ground.

The officer then started hollering that he needed help and that Brumbalow had a knife

in his hand. Brumbalow was hollering that he was going to kill himself. Jeff got the

knife out of Brumbalow’s hand and put it on the kitchen counter beside the sink. Jeff

did not know that Brumbalow had a knife in his hand until Brumbalow was already on

the ground.

       Roy testified that when he got to the residence, McLean and Brewer were

holding Brumbalow down on the ground. Roy told them to let Brumbalow go because

he was not going to hurt anybody. McLean and Brewer did so, and Brumbalow got up

and went over to the kitchen sink to wash the blood off his hand. Roy stated that he

saw the knife on the cabinet. While Brumbalow was rinsing his hand, McLean was five

to six feet away from him and Brumbalow was about two feet away from the knife, so

he could have reached over and picked it up again, but he did not.

       The State initially argues that the knife brandished by Brumbalow during

McLean’s attempt to arrest him was designed for the purpose of inflicting serious bodily

injury. See TEX. PENAL CODE ANN. § 1.07(a)(17)(A). The State notes that the blade of the

knife was approximately four to five inches long. The State then details in its brief how

the knife is commonly used by hunters to skin large game animals. But this evidence

about the purpose of the knife is not in the appellate record, and we are precluded from

considering materials outside the appellate record.       The evidence in the record is

insufficient to establish that the knife was designed for the purpose of inflicting serious

bodily injury.

Brumbalow v. State                                                                  Page 11
       We must then determine whether the evidence is sufficient to establish that the

knife, in the manner of its use or intended use, was capable of causing death or serious

bodily injury. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B); Revell v. State, 885 S.W.2d 206,

209 (Tex. App.—Dallas 1994, pet. ref’d) (“If the evidence does not show that the knife

caused death or serious bodily injury, then the State must produce evidence that shows

the knife: (1) was capable of causing serious bodily injury; and (2) was displayed or

used in a manner which establishes the intent to cause death or serious bodily injury.”).

Brumbalow does not argue that the knife itself was incapable of causing serious bodily

injury. The knife was admitted into evidence. And McLean testified that from the

struggle, Brumbalow’s hand was injured by the knife in such a way that a large pool of

blood formed from the wound and caused McLean himself to end up with blood on his

face, neck, and all over his clothes. By finding Brumbalow guilty of aggravated assault

against a public servant, the jury obviously reasonably inferred from this evidence that

the knife was capable of causing serious bodily injury. As the reviewing court, we

“should not substantially intrude upon the jury’s role as the sole judge of the weight

and credibility of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim.

App. 2002).

       Brumbalow does argue, however, that he did not display or use the knife in a

manner that establishes that he intended to cause death or serious bodily injury.

Brumbalow reasons that in the few seconds before McLean attempted to try to take the

knife away from him, he did not point the knife at McLean, and he said nothing to

McLean. Brumbalow claims that there simply was no indication of what his intentions

Brumbalow v. State                                                                 Page 12
were at that time. We disagree.

       McLean’s testimony established that Brumbalow pulled out the knife in response

to McLean’s statement to Brumbalow to turn around and put his hands behind his back

because he was under arrest. McLean further stated that Brumbalow took a step in his

direction and that they made eye contact. These gestures carried an implied, if not an

express, threat that if Brumbalow did not get what he wanted, then he would use the

knife to seriously injure or kill McLean. See Jones v. State, 843 S.W.2d 92, 96-97 (Tex.

App.—Dallas 1992, pet. ref’d) (“[I]t is sufficient if the weapon is capable of causing

death or serious bodily injury or is displayed in a manner conveying an express or

implied threat that serious bodily injury or death will result if the aggressor is not

satisfied.”). McLean also stated that he was only three to four feet from Brumbalow, so

Brumbalow was close enough in proximity to use the knife on McLean. Moreover,

McLean said that he felt threatened by the knife. See Billey v. State, 895 S.W.2d 417, 422

(Tex. App.—Amarillo 1995, pet. ref’d) (“Where the victim testifies that he or she was in

fear of serious bodily injury or death, a verbal threat by the accused is not required for

the fact finder to conclude that threats were actually made.”).

       Viewing all the evidence in the light most favorable to the verdict, we thus

conclude that a rational trier of fact could have found Brumbalow committed the

offense of aggravated assault against a public servant beyond a reasonable doubt. We

overrule Brumbalow’s second issue.




Brumbalow v. State                                                                 Page 13
       Having overruled both of Brumbalow’s issues, we affirm the trial court’s

judgment.




                                              REX D. DAVIS
                                              Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 9, 2014
Publish
[CRPM]




Brumbalow v. State                                                       Page 14
