                                   NO. 12-13-00384-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

BRANDON ANTHONY MAHONEY,                         §       APPEAL FROM THE 217TH
APPELLANT

V.                                               §       DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §       ANGELINA COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Brandon Anthony Mahoney appeals his conviction for aggravated robbery, for which he
was sentenced to imprisonment for fifteen years. In one issue, Appellant argues that the evidence
is legally insufficient to support his conviction. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with aggravated robbery and pleaded “not guilty.”
The matter proceeded to a bench trial.
       The evidence at trial reflects that Francisco Padilla was an employee of La Unica Express
restaurant. On December 7, 2012, Padilla was working the late afternoon/evening shift. During
his shift, Padilla exited the back door of the restaurant to dispose of cooking oil. As Padilla
returned to the restaurant, someone grabbed him from behind. Padilla struck his assailant with his
elbow and turned around to see his former friend and former coworker Gabriel Perez. Appellant,
whom Padilla also recognized, was standing next to Perez.
       Padilla and Perez continued to fight one another. As they did so, Padilla, who was
wearing two layers of shirts, felt a knife pressed against his stomach, but could not see it. He was
then thrown to the ground. According to Padilla, he continued to resist, but stopped struggling
when he saw Appellant move a small knife near his neck.1 Perez tied up Padilla, and Appellant
and Perez covered his face with his apron before searching his pockets. The two took everything
out of Padilla‟s pockets, including his cellular telephone, approximately $300 in cash, Kool brand
cigarettes, and his pay stub from the restaurant. When they finished, Appellant and Perez threw
Padilla into a dumpster.
        Padilla was able to untie himself and escape from the dumpster. From there, he ran to the
restaurant‟s drive through window and yelled to the person working there to call the police.
Padilla was described as noticeably distraught. His clothing was torn. He had “stickers” on his
pants and blood on his head and his knee.
        Officers from the Lufkin Police Department arrived at the scene soon afterward. Officer
José Santana noticed that Padilla had a mark on his abdomen consistent with an injury from a
sharp object. He also observed that Padilla had bruises on his face. Santana went to the dumpster
area behind the restaurant with Padilla and noticed that gravel and dirt had been kicked around as
if there had been a scuffle there. Later, officers apprehended Perez and Appellant, who were lying
on the ground in a wooded area with very dense underbrush. No knife was found on either of the
suspects.2 However, Padilla‟s cellular telephone, paycheck stub, and cigarettes were recovered
nearby and returned to him along with $229 in cash found on Appellant. The officers brought
Appellant and Perez back to the restaurant where Padilla identified them as his assailants.
        Appellant testified on his own behalf. He stated that he and Perez were walking near the
restaurant on their way to get a ride to Nacogdoches, Texas. Appellant further stated that Perez
wanted to confront someone about an issue he had with that person. Appellant testified that he
watched while Perez and Padilla argued with one another in Spanish. 3 Appellant further testified
that the two got into a scuffle and Perez threw Padilla into the dumpster. Appellant denied any
involvement in the altercation, but admitted that he ran away with Perez afterward. Appellant
stated that the reason no knife was found is because no knife was used.



        1
         At trial, Padilla was shown a three to four inch knife for demonstrative purposes. He identified the knife he
was shown as being approximately the same length as the knife with which he was threatened.
        2
          Officer Lonnie Dodd testified that the wooded area was so thick that it would be difficult to find a knife,
even with a metal detector.
        3
            Appellant testified that he does not speak Spanish.




                                                            2
       Upon the close of evidence, the trial court found Appellant “guilty” as charged. Following
a trial on punishment, the trial court sentenced Appellant to imprisonment for fifteen years. This
appeal followed.


                                         EVIDENTIARY SUFFICIENCY
       In his sole issue, Appellant argues that the evidence is legally insufficient to support the
trial court‟s finding that he used a deadly weapon during his commission of the robbery.
Standard of Review
       The Jackson v. Virginia4 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal
conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo v. State, 6
S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref‟d). The standard for reviewing a legal
sufficiency challenge is whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see
also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined
in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789;
Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of
an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211,
2217–18, 72 L. Ed. 2d 652 (1982).
       An individual is guilty of aggravated assault if he commits assault as defined in Section
22.01 of the penal code and uses or exhibits a deadly weapon during the commission of the
assault. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). A “deadly weapon” means


                  (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.




       4
           443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).


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TEX. PENAL CODE ANN. § 1.07(17) (West Supp. 2013).
Knife as a Deadly Weapon
       When the purported deadly weapon is a knife, there must be some evidence describing the
physical characteristics of the knife or other evidence to allow the conclusion that the knife is a
deadly weapon.     See Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983) (“In
determining the deadliness of a weapon[,] the jury may consider all of the facts of a case. . . .”).
This is because a knife is not a deadly weapon per se. See TEX. PENAL CODE ANN. § 1.07(17)(A);
Robertson v. State, 163 S.W.3d 730, 732 (Tex. Crim. App. 2005) (“[D]escribing an object
generically 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 (e.g. butcher knives, kitchen knives,
utility knives, straight razors, and eating utensils).”); Sledge v. State, No. 12-11-000026-CR, 2012
WL 3104392, at *3 (Tex. App.–Tyler July 31, 2012, pet. ref‟d) (mem. op., not designated for
publication).
       Subsection (17)(B)‟s definition encompasses conduct that threatens deadly force, even if
the actor has no intention of actually using deadly force because it defines a deadly weapon as an
object “capable of causing death or serious bodily injury.” See McCain v. State, 22 S.W.3d 497,
503 (Tex. Crim. App. 2000). We have held that a knife was a deadly weapon where the testimony
showed it was used “in such a manner as to convey a threat of serious bodily injury” if the victim
did not comply with the instructions of the person wielding the knife. Sledge, 2012 WL 3104392,
at *3 (citing In re D.L., 160 S.W.3d 155, 166 (Tex. App.–Tyler 2005, no pet.)).
       The state may establish that a knife is capable of causing death or serious bodily injury
through testimony about (1) the knife‟s size, shape, and sharpness; (2) the knife‟s life-threatening
capabilities; (3) the manner in which the knife was used; (4) the words spoken by the defendant;
(5) the physical proximity between the victim and the knife; and (6) the nature of any wounds
caused by the knife. Rivera v. State, 271 S.W.3d 301, 304 (Tex. App.–San Antonio 2008, no
pet.). Whether a particular knife is a deadly weapon depends on the evidence. Id. at 305.
Discussion
       Here, several factors favor the trial court‟s finding that this knife, in light of the evidence
of record, is a deadly weapon. The evidence indicates that Padilla was cut on his abdomen with
the knife. His wound was superficial. But the trial court reasonably could consider the fact that
the knife used wounded him despite the fact that he was wearing two shirts. Further, when Padilla



                                                 4
saw the knife being moved in close proximity to his neck, he stopped struggling. Further still,
Padilla‟s testimony indicates that Appellant used the knife to threaten and subdue him––once by
placing it near his abdomen after he hit Perez with his elbow and, again, by placing it in close
proximity to his neck to cause him to stop struggling. Moreover, Officers Dale Jowell and Lonnie
Dodd testified that, based on their respective training and experience, a knife like the knife shown
to Padilla at trial, which Padilla testified was similar in size to the one Appellant used, was
capable of causing serious bodily injury or death.
         Of course, the knife Padilla described was not recovered. But even accepting Padilla‟s
description of the knife as true, the fact remains that his description indicates the knife was small.
And the wound inflicted on Padilla by the knife was not severe. These factors weigh against the
trial court‟s finding.
         Having considered these factors and the evidence at hand in a light most favorable to the
trial court‟s verdict, we conclude that the trial court reasonably could have found that the evidence
of these factors weighed more heavily in favor of a finding that the knife was, in the manner of its
use or intended use, capable of causing death or serious bodily injury. Therefore, we hold that the
evidence is legally sufficient to support the trial court‟s deadly weapon finding. Appellant‟s sole
issue is overruled.


                                                    DISPOSITION
         Having overruled Appellant‟s sole issue, we affirm the trial court‟s judgment.

                                                                       SAM GRIFFITH
                                                                          Justice
Opinion delivered July 23, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                               (DO NOT      PUBLISH)




                                                            5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JULY 23, 2014


                                          NO. 12-13-00384-CR


                               BRANDON ANTHONY MAHONEY,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                 Appeal from the 217th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2013-0072)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
