Affirmed and Memorandum Opinion filed August 28, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00628-CR

                          DEIGO ROJAS, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1391739

                MEMORANDUM                     OPINION


      Today we decide whether a pocket knife used in a robbery can be a deadly
weapon. Appellant Deigo Rojas challenges the legal sufficiency of the evidence to
support his aggravated robbery conviction, contending that the pocket knife was
not a deadly weapon. We affirm.
                                       Background

       A woman was exiting a small bathroom stall at a flea market when she was
approached by appellant. Appellant held a pocket knife to her shirt underneath her
ribcage and told her to throw herself to the ground. Instead, she backed into the
stall where appellant held her captive for an undetermined amount of time.
Appellant asked the woman if she had any money. After she responded “no,”
appellant searched her with one hand while continuously pressing the knife to her
chest. He found three cell phones and took them. He then told her that he was
going to sexually abuse her and pulled down his pants with his free hand. 1

       The woman heard the doorknob on the bathroom door turning and screamed.
A woman outside of the bathroom then yelled, “somebody sexually abusing the
lady,” and appellant pulled up his pants. One of the flea market vendors heard the
commotion, opened the bathroom door and the bathroom stall door, and heard the
woman crying. The vendor could see that appellant had a knife and the woman
“was terrified.” The vendor stood between the bathroom and the bathroom stall
doors, holding them open in a way that he could shield himself from appellant.
The vendor called 911 and, for approximately 20 minutes, talked to appellant to try
to calm him down while waiting for the police to arrive. At some point during the
confrontation, the vendor talked appellant into letting the woman go. She was able
to move to another part of the bathroom, and the vendor kept appellant cornered
until officers arrived.

       When officers arrived, appellant dropped the knife and surrendered a cell
phone that he admitted belonged to the woman.                  Appellant volunteered the


       1
          Appellant denies making this statement and pulling down his pants. It is unclear
whether the woman told the police about it. However, as set forth below, appellant volunteered
to an officer that he did not rape her because she refused to take off her pants.

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following statements to one of the officers, “I didn’t rape her because she wouldn’t
let me take her pants off” and “I didn’t steal her cell phones. I held them [so] she
wouldn’t call the police.” 2

       Appellant was charged with aggravated robbery. The jury found him guilty
and assessed punishment at seven years’ imprisonment.

                                         Discussion

       In his sole issue, appellant challenges the legal sufficiency of the evidence to
support the jury’s finding that the pocket knife appellant wielded was a deadly
weapon. When reviewing the legal sufficiency of the evidence, we examine all of
the evidence in the light most favorable to the verdict and determine whether a
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). Although we consider everything presented at trial, we do not reevaluate
the weight and credibility of the evidence or substitute our judgment for that of the
factfinder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id.


       2
         One of the cell phones was in appellant’s pocket. The other two phones were not in
appellant’s possession when the officer arrived, but the complainant testified that appellant had
taken them all from her, which is consistent with appellant’s statement. Apparently, at least one
of the phones had been on the bathroom floor and the vendor picked it up.

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      As relevant here, a person commits the felony offense of aggravated robbery
when, in the course of committing theft, with intent to obtain and maintain control
of property, he knowingly or intentionally threatens or places another in fear of
imminent bodily injury or death and uses or exhibits a deadly weapon in the
commission of the offense. Tex. Penal Code §§ 29.02(a)(2), 29.03(a)(2). A deadly
weapon is 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). Appellant disputes
only the jury’s finding that the pocket knife was a deadly weapon.

      Although a knife is not considered a deadly weapon per se, the State can
prove a knife is a deadly weapon by presenting evidence such as the manner of its
use or intended use and its capacity to cause death or serious bodily injury. Blain
v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). Relevant factors also
include threats made by the accused, the physical proximity of the accused and the
victim, and the complainant’s fear of serious bodily injury or death. Victor v.
State, 874 S.W.2d 748, 751 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

      The woman testified that appellant pressed the knife against her shirt under
her ribcage during the entire confrontation. Appellant was very close to her in the
small bathroom stall. She said she was afraid because “appellant was threatening
[her] with a knife”; although appellant did not put pressure on the knife; she was
afraid he would; she was “[v]ery scared” and “crying”; and she asked him “not to
hurt her.” She thought he might kill or harm her with the knife.

      When the vendor went into the bathroom, he heard the woman crying “like
she[ was] terrified” and saw her shaking, and saw that appellant “had a knife in his
hand” pointed at the woman. The vendor testified that appellant kept the knife in
his hand with the blade out during the entire confrontation and appellant “was
threatening [the woman] because he had the knife pointed at her,” which action

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was “very aggressive.” From the vendor’s perspective, the knife was “inches”
from the woman. According to the vendor, appellant eventually stopped pointing
the knife at the woman; only then was the vendor able to get the woman away from
appellant.

         The officer testified that appellant dropped a “folding knife” when
confronted. The State introduced the knife at trial, and the officer demonstrated
how to hold the knife with the blade open. Thus, the jury was able to examine the
knife and make its own determination as to the knife’s capacity to cause injury or
death.

         Viewing all of the evidence in the light most favorable to the verdict, we
conclude the jury could have found beyond a reasonable doubt that the pocket
knife appellant wielded during the commission of the offense was a deadly
weapon. See, e.g., Barnett v. State, 344 S.W.3d 6, 12-13 (Tex. App.—Texarkana
2011, pet. ref’d) (holding evidence was legally sufficient to support deadly weapon
finding when defendant placed pocket knife blade on complainant’s lower ribs and
threatened to “cut” and “kill” him); Pleasant v. State, 755 S.W.2d 204, 207 (Tex.
App.—Houston [14th Dist.] 1988, no pet.) (concluding evidence was legally
sufficient to support deadly weapon finding when “the blade of the pocket knife
was two or three inches long and had a point on it”).



                                 /s/          Martha Hill Jamison
                                              Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).



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