      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00602-CR



                                 Adalberto Mendez, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
         NO. 2025008, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Adalberto Mendez appeals his conviction by a jury for aggravated assault

with a deadly weapon and sentence of seven years’ confinement. See Tex. Pen. Code Ann. § 22.02

(West Supp. 2005). In two issues, he argues that the evidence was insufficient to support his

conviction and that the trial court erred by denying his request for an instruction on the lesser-

included offense of assault. We will affirm.


                                        BACKGROUND

               On December 25, 2002, Austin police and paramedics responded to a call regarding

Hispanic males fighting at a soup kitchen on East Cesar Chavez Street. Officer William Williamson

arrived and observed a Hispanic male, Enoc Salas, sitting on the curb. Salas does not speak English,

and Williamson is not fluent in Spanish. However, Williamson noticed a tear in Salas’s jacket just
above the belt line, and saw that there was blood on his shirt. After Williamson pointed at the blood,

Salas lifted his shirt and Williamson saw that Salas’s stomach had been punctured at the area where

the jacket was torn. Salas was very upset and, while speaking in Spanish, pointed at a Hispanic man

who was standing across the street at a bus stop.

                Gil Torres, a City of Austin paramedic who is fluent in Spanish, arrived and began

treating Salas and translating for the police.1 Torres testified that Salas said he was stabbed with a

pair of scissors and identified Mendez as the person who stabbed him. Williamson and another

officer, Corporal Miller, then approached Mendez.2 Williamson immediately patted him down for

a weapon, see Terry v. Ohio, 392 U.S. 1, 30-31 (U.S. 1968), and confiscated a pair of scissors that

were bent at the tip. Mendez was arrested and charged with aggravated assault with a deadly

weapon. Salas was transported to the emergency room at Brackenridge Hospital where he was

treated and gave a written statement regarding the incident.

                At trial, seven witnesses, including the police officers at the scene and medical

personnel, testified for the State. Salas did not testify.3 However, his medical records and

photographs of his injury were admitted. The State rested, and the court denied Mendez’s motion

for a directed verdict, in which he argued that there was no evidence that the scissors constituted a

deadly weapon. Shortly thereafter, the defense rested without calling any witnesses. At the jury


        1
         The paramedics arrived in the area before the police, but were advised not to enter until the
police determined that the area was safe.
        2
        Mendez originally identified himself as “Hector Suarez” but after being arrested, the police
determined that he was Adalberto Mendez.
        3
           In its opening statement, the State told the jury that they were unable to locate Salas before
the trial; he was difficult to locate because he was homeless and was not a United States citizen.

                                                    2
charge conference, the court denied Mendez’s request for an instruction regarding the lesser-included

offense of assault. The jury found Mendez guilty of aggravated assault with a deadly weapon and,

after considering his previous conviction for burglary of a habitation, the court sentenced him to

seven years’ confinement. This appeal followed.


                                          DISCUSSION

               In two issues, Mendez contends that the evidence was insufficient to support a deadly

weapon finding and that the trial court erred by denying his request for an instruction on the lesser-

included offense of assault.


Sufficiency of the evidence

               First, Mendez urges us to find that the evidence was factually and legally insufficient

to support his conviction. Specifically, he argues that because neither the victim nor the defendant

testified, there was no evidence that either (1) the weapon caused death or serious bodily injury or

(2) the weapon was capable of causing serious bodily injury and was displayed or used in a manner

that establishes the intent to use the weapon to cause serious bodily injury. See Tex. Pen. Code Ann.

§ 22.02.


    Standard of review

               In a factual-sufficiency analysis, the evidence is viewed in a neutral light. Drichas

v. State, No. PD-1015-04, 2005 Tex. Crim. App. LEXIS 1775, at *9 (Tex. Crim. App. October 19,

2005) (citing Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996)). There is only one

question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral

                                                  3
light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144

S.W.3d 477, 484-85 (Tex. Crim. App. 2004). However, there are two ways in which the evidence

may be insufficient—either the evidence supporting the finding, considered alone, is too weak to

support the jury’s finding beyond a reasonable doubt or the contravening evidence may be so strong

that the State could not have met its burden of proof. Drichas, 2005 Tex. Crim. App. LEXIS 1775,

at *9 (citing Zuniga, 144 S.W.3d at 484-85).

               In assessing the legal sufficiency of the evidence to support a conviction, we consider

all of the evidence in the light most favorable to the jury’s verdict and determine whether, based on

the evidence and reasonable inferences, a rational jury could have found the accused guilty of all of

the elements of the offense beyond a reasonable doubt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.

Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), and Ladd v. State, 3

S.W.3d 547, 557 (Tex. Crim. App. 1999)). To hold evidence legally sufficient to sustain a deadly

weapon finding, the evidence must demonstrate that (1) the object meets the statutory definition of

a dangerous weapon, see id.; (2) the deadly weapon was used or exhibited “during the transaction

from which” the felony conviction was obtained, see Ex parte Jones, 957 S.W.2d 849, 851 (Tex.

Crim. App. 1997); and (3) that other people were put in actual danger. See Drichas, 2005 Tex. Crim.

App. LEXIS 1775, at *6 (citing Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003)).


    Evidence of aggravated assault

               An individual commits assault if he “intentionally, knowingly, or recklessly causes

bodily injury to another.” Tex. Pen. Code Ann. § 22.01(a)(1) (West Supp. 2005). Aggravated

assault is committed if the individual commits assault as defined in section 22.01 and (1) causes

                                                  4
serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly

weapon during the commission of the assault. See id. § 22.02(a).

               The jury was charged that a “deadly weapon” means 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)(B)

(West Supp. 2005). To determine whether in the manner of their use or intended use the scissors

were “capable” of causing death or serious bodily injury, the “capability” must be evaluated in light

of the facts that actually existed when the assault was committed. Drichas, 2005 Tex. Crim. App.

LEXIS 1775, at *10 (citing Williams v. State, 946 S.W.2d 432, 435 (Tex. App.—Fort Worth 1997,

pet. dism’d)). Objects that are not usually considered dangerous weapons may become so,

depending on the manner in which they are used during the commission of an offense. Id. at *7

(citing Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991)). The nature of the inflicted

wounds is a factor to be considered, but wounds are not a prerequisite to a deadly weapon finding.

Dominique v. State, 598 S.W.2d 285, 286 (Tex. Crim. App. 1980); see Denham v. State, 574 S.W.2d

129, 130 (Tex. Crim. App. 1978). The most important criteria is the manner in which the weapon

was used. Dominique, 598 S.W.2d at 286.

               Dr. Josh Trutt, an emergency room physician at Brackenridge Hospital, testified that

Salas came into the emergency room on December 25th with “a half-centimeter laceration that was

a couple of centimeters above his navel.” Trutt documented that Salas had been stabbed with a pair

of scissors.4 Salas’s medical records state that the scissors used in the assault were approximately


       4
          Trutt is not fluent in Spanish and did not recall who told him that Salas had been stabbed
with a pair of scissors. Leonard Sepeda, a medical interpreter at Brackenridge, testified that he asked
Salas how he had been stabbed, and that Salas told him he thought he was stabbed with scissors.

                                                  5
three inches long and were bent after the first inch. Scissors matching that description were

confiscated from Mendez near the scene of the assault. The scissors were introduced into evidence

and there was testimony that they were made of metal and bent at the tips.

               Trutt testified that a puncture wound to the abdomen can be “very dangerous” because

if it punctures the inner lining of the abdominal wall, the peritoneum, it could “leak intestinal

contents which are heavily contaminated with bacteria” and could cause a life-threatening infection.

In that case, emergency surgery would be performed immediately to ensure that there were no holes

in the bowel. Trutt also testified that the peritoneum can be an inch under the surface and that

Salas’s peritoneum was “not more than two inches” under the surface. Thus, according to Trutt, the

scissors that were used in the assault, if used to stab someone in the abdomen, were capable of being

a deadly weapon. In fact, although Trutt’s physical examination revealed that the scissors probably

did not perforate Salas’s peritoneum, he ordered a CAT scan “because this is potentially a life-

threatening problem.”5

               Mendez argues that there was no evidence regarding how sharp the scissors were or

how or why they were used against Salas. He contends that if we include scissors within the

statutory definition of “deadly weapon,” then any injury caused by a butter knife, paper clip, or

sharpened pencil could subject an individual to charges for aggravated assault. Furthermore, he

asserts, “without providing anything more than a translated statement that he was stabbed, a rational




       5
        As Trutt explained, a CAT scan “is a fancy X-ray where you lie on a table and a camera
moves around your body and takes pictures in multiple dimensions that can then be reconstructed
by a computer into a virtual three-dimensional picture of your insides.”

                                                 6
trier of fact does not have enough evidence to make the conclusion that the scissors were meant to

be used as a deadly weapon.” We disagree.

               The legislature has defined a deadly weapon as anything that in the manner of its use

or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann.

§ 1.07(a)(17)(B) (emphasis added). Trutt testified that the scissors used to stab Salas were three

inches long, that Salas’s peritoneum was not more than two inches below the surface, and that

puncturing the peritoneum could cause death or serious bodily injury. Moreover, the fact that neither

Salas nor Mendez testified about the manner in which the scissors were used does not preclude the

jury’s determination that the scissors were a deadly weapon. There was testimony that Salas

identified Mendez as his assailant; that Salas had been stabbed in the abdomen a few inches above

the belt line; and that the stabbing was severe enough to bend the tips of the scissors after the first

inch of metal. Although Trutt agreed on cross-examination that the width of the laceration was less

than a quarter of an inch and that the CAT scan revealed that the injury was not actually life-

threatening, the nature of the wound is only one factor which we consider, and wounds are not a

prerequisite to a deadly weapon finding. See Dominique, 598 S.W.2d at 286.

               Furthermore, a jury may use its common sense and apply common knowledge,

observation, and experience gained in the ordinary affairs of life when giving effect to the inferences

that may reasonably be drawn from the evidence. Guia v. State, No. 03-99-00190-CR, 2000 Tex.

App. LEXIS 2556, at *14-15 (Tex. App.—Austin, April 20, 2000, no pet.) (not designated for

publication); see Jones v. State, 900 S.W.2d 392, 399 (Tex. App.—San Antonio 1995, pet. ref’d);

Wawrykow v. State, 866 S.W.2d 87, 88 (Tex. App.—Beaumont 1993, pet. ref’d). Although scissors



                                                  7
are not per se dangerous, the manner in which they were used during the assault—a stabbing in the

abdomen which resulted in bending the tips of the metal—qualified them as a deadly weapon in this

case. We conclude that in light of the facts that actually existed when the assault was committed,

the scissors were capable of causing death or serious bodily injury. See Drichas, 2005 Tex. Crim.

App. LEXIS 1775, at *10. We hold that the evidence supporting the finding, considered alone, was

not too weak to support the jury’s finding beyond a reasonable doubt and the contravening evidence

was not so strong that the State could not have met its burden of proof. See Zuniga, 144 S.W.3d at

484-85. Furthermore, considering all of the evidence in the light most favorable to the jury’s verdict,

a rational jury could have found Mendez guilty of all of the elements of the offense beyond a

reasonable doubt. See Guevara, 152 S.W.3d at 49. We overrule Mendez’s first issue.


Whether assault should have been submitted as a lesser-included offense

                In his second issue, Mendez contends that the trial court should have given an

instruction on misdemeanor assault as a lesser-included offense of aggravated assault because “the

minor nature of the injury, the size of the scissors, and the lack of fear reported by [Salas] all suggest

a different interpretation that this was an assault and not an aggravated assault.” We will review the

trial court’s decision for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex.

Crim. App. 2004).

                A defendant is entitled to a lesser-included offense instruction in the jury charge if

(1) the requested charge is a lesser-included offense of the offense charged, and (2) there is some

evidence that if the defendant is guilty, he is guilty only of the lesser offense. Irving v. State, No.



                                                    8
PD-91-04, 2005 Tex. Crim. App. LEXIS 1956, at *5 (Tex. Crim. App. Nov. 9, 2005) (citing

Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005) and Jacob v. State, 892 S.W.2d 905,

907 (Tex. Crim. App. 1995)). Simple assault is not always a lesser-included offense of aggravated

assault. See Irving, 2005 Tex. Crim. App. LEXIS 1956, at *6.

                An offense is a lesser-included offense only 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 (West 1981); see Irving, 2005 Tex. Crim. App.

LEXIS 1956, at *5-6.

                In reviewing a trial court’s decision to deny a requested instruction for a lesser-

included offense, we consider the charged offense, the statutory elements of the lesser offense, and

the evidence actually presented at trial. Hayward, 158 S.W.3d at 478 (citing Jacob, 892 S.W.2d at

907-08). More specifically, we examine the statutory elements of the charged offense as modified

by the indictment. Id. Next, we examine the elements of the offense claimed to be a lesser-included

offense to see if the elements are functionally the same as or less than those required to prove the

charged offense. Id. Then we examine the evidence actually presented to prove the elements of the

charged offense to see if that proof also shows the lesser-included offense. Id. at 478-79. In other

words, there must be some evidence from which a rational jury could acquit Mendez of aggravated

                                                   9
assault while convicting him of the lesser-included offense of assault. See Hall v. State, 158 S.W.3d

470, 473 (Tex. Crim. App. 2005) (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App.

1994)). In making this decision, we evaluate the evidence in the context of the entire record, but do

not consider whether the evidence is credible, controverted, or in conflict with other evidence. See

id. (citing Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim. App. 1990) (op. on reh’g)).

                First, we consider whether assault was a lesser-included offense of aggravated assault

in this case. The indictment alleges that Mendez committed the offense of aggravated assault:

“intentionally, knowingly, and recklessly” causing bodily injury to Enoc Salas by stabbing and

cutting him. The indictment also alleges that Mendez used and exhibited a deadly weapon, to-wit:

scissors, during the commission of the offense. The statutory elements of aggravated assault are:

(1) assault as defined in section 22.01 of the penal code, and (2) use or exhibition of a deadly weapon

during the commission of the assault. See Tex. Pen. Code Ann. § 22.02(a)(2). An individual

commits assault as defined in section 22.01 if he “intentionally, knowingly, or recklessly causes

bodily injury to another.” Id. § 22.01. In this case, Mendez stabbed Salas with a pair of scissors.

Unlike Irving, he does not base his argument on a different factual scenario. See Irving, 2005 Tex.

Crim. App. LEXIS 1956, at *6-7. The elements of misdemeanor assault are less than what was

required to prove aggravated assault because the aggravated assault charge in this case required the

State to prove use of a deadly weapon. Thus, assault was a lesser-included offense.

                Next, we consider the evidence actually presented to prove the elements of aggravated

assault to see if that proof also shows the offense of assault. In this case, the only difference between




                                                   10
the charges of aggravated assault and misdemeanor assault involves whether a deadly weapon was

used in the assault.

                There was uncontroverted evidence that Salas had been stabbed. Torres testified that

Salas said he was stabbed with a pair of scissors and identified Mendez as the person who stabbed

him. Trutt testified that he was told that Salas had been stabbed with a pair of scissors. Officer

Williamson confiscated from Mendez a pair of scissors with bent tips, which had apparently caused

Salas’s injury.6 Trutt also testified that the scissors were capable of causing death or serious bodily

injury.

                Mendez complains that Trutt’s testimony did not establish serious bodily injury and

that “the minor nature of the injury, the size of the scissors, and the lack of fear reported by [Salas]

all suggest a different interpretation that this was an assault and not an aggravated assault.”

However, a finding of aggravated assault does not require evidence of serious bodily injury, a certain

type of injury, a large deadly weapon, or an expression of fear by the victim. See Tex. Pen. Code

Ann. §§ 22.01, .02. Mendez does not otherwise explain how the evidence presented at trial could

result in a rational jury acquitting him of aggravated assault while convicting him of misdemeanor

assault. See Hall, 158 S.W.3d at 473. We hold that the trial court did not abuse its discretion by

denying Mendez’s request for an instruction on the lesser-included offense of assault.




          6
           The scissors that were confiscated from Mendez were admitted into evidence. Torres
testified that he saw the scissors that were used to stab Salas and that they were the same ones which
were admitted into evidence.

                                                  11
                                       CONCLUSION

              Having overruled Mendez’s issues, we affirm the order of the district court.




                                            __________________________________________

                                            W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: December 22, 2005

Do Not Publish




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