      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00279-CR



                                   Timothy Harper, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
         NO. 3022559, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Timothy Harper of the offense of aggravated assault with

a deadly weapon. See Tex. Pen. Code Ann. § 22.02(a)(2) (West Supp. 2006). Punishment was

assessed at eight years’ confinement. In three issues on appeal, Harper contests the legal and factual

sufficiency of the jury’s deadly weapon finding and asserts that the district court erred by not

instructing the jury on the definitions of various standards of proof. We will affirm.


                                         BACKGROUND

               The jury heard evidence that, at approximately 1:30 a.m. on November 15, 2002,

Harper assaulted Joseph Hanson with a knife. Hanson testified that he was “hanging out” with

some of his friends outside their fraternity house when Harper and Jason Cavitt, two homeless men,
walked by the house. Hanson observed one of the men drop a piece of trash in the yard and asked

him twice to pick it up. As Cavitt turned around to pick up the trash, Harper told Cavitt that he

didn’t have to “pick up the [expletive] trash.” Becoming irritated, Hanson then repeated his request,

at which point Harper turned around and approached Hanson. When asked to describe how Harper

approached him, Hanson testified:


       A: I can describe it as—I would classify it as an aggressive walk.

       Q: And how so?

       A: It was very intent. There is a look on his face of a definite intention to walk
       towards me at a quick pace that would give me the idea that it was an aggressive—a
       move of aggression.

       Q: What did you think was about to happen?

       A: From my interpretation, that some sort of fight was about to occur.

       ...

       Q: When he was coming at you, could you see his hands?

       A: Not clearly.

       ...

       Q: And as he’s walking towards you and you can’t see his hands, what happened
       next?

       A: He continued to walk towards me. And as he approached me within about three
       feet, his right hand came up in a sort of upward punching motion, at which point he
       hit me in the chest and knocked me back. As he drew his hand away, I noticed a
       metal object in his right hand as he pulled it away.




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Hanson described the object as having “a metallic shape like a small knife you’d have in your

kitchen, like a paring knife.”

               After Hanson felt the blow to his chest, he “immediately felt a warm sensation” on

his chest, looked down, and noticed a “growing pool of blood” on his shirt. Hanson then ran into

the house and his friends helped tend to the wound. Patrick Birdsong, a fraternity member who

witnessed the incident, testified that Harper and Cavitt calmly “walked away” from the scene.

Cavitt testified that as he and Harper walked away, he saw Harper throw the knife over a fence into

someone’s backyard. The knife was never recovered, although a picture of a similar knife was

admitted into evidence for demonstrative purposes.

               EMS and police officers were called to the scene, and Hanson was transported to the

emergency room at Brackenridge Hospital. Hanson testified that it “was very difficult to get the

bleeding to stop” and that the doctors had to close his wound with four staples. Hanson explained

that he had to dress the injury at least once a day because it would regularly “ooze” blood and black

fluid for six weeks after the assault. Hanson testified that, over a year and a half after the incident,

there remained visible scar tissue and numbness in the muscles surrounding the wound.

               Harper was apprehended and charged with the offense of aggravated assault with a

deadly weapon. The jury found him guilty and punishment was assessed at eight years’ confinement.

This appeal followed.


                                           DISCUSSION

Legal and factual sufficiency

               In his first and second issues, Harper asserts that the evidence is legally and factually


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insufficient to support the jury’s deadly weapon finding. Specifically, Harper contends that the

evidence is insufficient to prove that the knife used in the assault was a deadly weapon because “the

possibility of serious bodily injury or death was based entirely upon hypothetical circumstances.”

               When there is a challenge to the legal sufficiency of the evidence to sustain a criminal

conviction, we consider whether a rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim.

App. 2005). We review all the evidence in the light most favorable to the verdict and assume that

the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable

inferences in a manner that supports the verdict. See Griffin v. State, 614 S.W.2d 155, 159 (Tex.

Crim. App. 1981). It is not necessary that every fact point directly and independently to the

defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force

of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.

1993). We consider even erroneously admitted evidence. Id. The jury is the exclusive judge of the

credibility of witnesses and of the weight to be given their testimony. Jones v. State, 944 S.W.2d

642, 647 (Tex. Crim. App. 1996). Reconciliation of any conflicts in the evidence is within the

exclusive province of the jury. Id. The jury is free to accept or reject any or all of the evidence

presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

               In a factual sufficiency review, we view the evidence in a neutral light and will set

aside the verdict only if the supporting evidence is so weak that the verdict is clearly wrong or the

contrary evidence is so strong that the jury could not have found all the elements of the crime beyond




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a reasonable doubt. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A verdict is

clearly wrong and unjust if the “jury’s finding is ‘manifestly unjust,’ ‘shocks the conscience,’ or

‘clearly demonstrates bias.’” Id. (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App.

1997)). All the evidence is considered equally, including the testimony of defense witnesses and the

existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992,

no pet.). Although due deference must be accorded the fact-finder’s determinations, particularly

those concerning the weight and credibility of the evidence, the reviewing court may disagree with

the result in order to prevent a manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App.

2000). The evidence will be deemed factually insufficient to sustain the conviction if the proof of

guilt is too weak or the contrary evidence is too strong to support a finding of guilt beyond a

reasonable doubt. See id. at 11.

               In order to establish the use of a deadly weapon during the commission of an offense,

the State must show that the defendant used 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. Tex. Pen. Code Ann.

§ 1.07(a)(17) (West Supp. 2006). The penal code defines “serious bodily injury” as “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).

               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). However,

a knife may become a deadly weapon depending on the manner in which the actor uses it:




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       The provision’s plain language does not require that the actor actually intend death
       or serious bodily injury; an object is a deadly weapon if the actor intends a use of the
       object in which it would be capable of causing death or serious bodily injury. The
       placement of the word “capable” in the provision enables the statute to cover conduct
       that threatens deadly force, even if the actor has no intention of actually using deadly
       force.


McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).

                 Factors to be considered in determining whether a knife is intended to be used as a

deadly weapon include: (1) the distance between the accused and the victim; (2) threats or words

used by the defendant; (3) the size and shape of the weapon; (4) the weapon’s ability to inflict death

or serious injury; and (5) the manner in which the defendant used the weapon. Bailey v. State, 46

S.W.3d 487, 491 (Tex. App.—Corpus Christi 2001, pet. ref’d); Billey v. State, 895 S.W.2d 417, 420-

21 (Tex. App.—Amarillo 1995, pet. ref’d). Also, an intent to inflict serious bodily injury or death

may be shown by evidence of assertive conduct by an attacker. Ortiz v. State, 993 S.W.2d 892, 894

(Tex. App.—Fort Worth 1999, no pet.). Additionally, the jury may consider the nature, location, and

severity of the wounds inflicted. Garcia v. State, 17 S.W.3d 1, 5 (Tex. App.—Houston [1st Dist.]

1995, pet. ref’d). The actual knife used in the commission of an offense need not be introduced into

evidence if a witness is able to testify about the knife and the manner in which it was used. Billey,

895 S.W.2d at 420. Either expert testimony or lay testimony may be sufficient to support a deadly

weapon finding. English v. State, 647 S.W.2d 667, 668-69 (Tex. Crim. App. 1983); Bailey, 46

S.W.3d at 492.




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                  There is sufficient evidence in the record to support the jury’s deadly weapon finding.

First, Harper’s assertive conduct suggests that he intended to use the knife as a deadly weapon.

Hanson testified that Harper walked “aggressively” towards him with a “definite intention” to “fight”

and, once Harper was “within about three feet” from Hanson, Harper’s right hand “came up in a sort

of upward punching motion,” stabbing Hanson in the chest. Hanson’s testimony was corroborated

by Birdsong, Cavitt, and Patrick Wigle, another fraternity member who witnessed the incident.

Birdsong testified that Harper “basically picked up his arm and just hit him in the chest . . . it wasn’t

like he was throwing his fist at him like a punch. It was more like a stabbing motion.” Cavitt

testified that, although he did not see Harper stab Hanson, he saw Harper “run up” to Hanson. Wigle

testified that when Harper walked “swiftly” towards Hanson, he thought “there was about to be a

fight.” Wigle further testified that Harper was “the aggressor” and got “right up in Joe’s face” before

he stabbed him.

                  Second, there was testimony indicating that the knife used in the assault was capable

of producing death or serious bodily injury. Travis County deputy medical examiner Dr. Elizabeth

Peacock reviewed Hanson’s medical records and testified to the extent of his injuries. Peacock

testified that Hanson suffered a hematoma or bruise in his right pectoral muscle. Although this

injury was not serious, Peacock testified that it could have been, because a stab wound to the chest

could result in serious damage to several major arteries, the heart, and the lungs, all of which are in

the chest area:


        Q: It did not cause serious bodily injury; is that right?

        A: Correct.



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       Q: All right. But in the manner of its use, was it capable of causing serious bodily
       injury?

       A: Certainly.

       Q: And is that because the knife was inserted into his body in the chest where there
       are several major blood vessels and major organs that are nearby?

       A: Yes.


Peacock also testified that she had seen two victims die from stab wounds in the area of

Hanson’s injury.

               Seizing upon Peacock’s testimony that Hanson’s actual injury was not serious or life-

threatening, Harper argues that the knife was only “hypothetically” capable of producing death or

serious bodily injury. Citing this Court’s opinions in Rodriguez v. State, 31 S.W.3d 772 (Tex.

App.—Austin 2000), aff’d, 104 S.W.3d 87 (Tex. Crim. App. 2003), and Johnston v. State, 115

S.W.3d 761 (Tex. App.—Austin 2003), aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004), Harper

contends that a deadly weapon finding cannot be premised on a hypothetical possibility that a

weapon is capable of producing death or serious bodily injury.

               In Rodriguez, the State attempted to prove that cocaine was a deadly weapon because

“cocaine is a very lethal substance.” 31 S.W.3d at 778. In Johnston, the State attempted to prove

that a lit cigarette, applied to a child’s palm, was a deadly weapon because of a lit cigarette’s

“inherent potential” to cause serious bodily injury. 115 S.W.3d at 763. In both cases, this Court

found that there was insufficient evidence to support a deadly weapon finding because “an alleged

deadly weapon’s capability of causing death or serious bodily injury in the manner of its use must




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be evaluated in light of the facts that actually existed when the felony was committed.” Id. at 764;

Rodriguez, 31 S.W.3d at 779.

                 In this case, however, the facts that existed when the felony was committed do

support a deadly weapon finding. The alleged weapon was a knife. Dr. Peacock’s testimony clearly

establishes that the knife was capable of causing death or serious bodily injury because of the manner

in which Harper used it—to stab Hanson in his chest, in close proximity to major arteries, the heart,

and the lungs.

                 Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational jury could find beyond a reasonable doubt that the knife Harper used in the assault was

capable of causing death or serious bodily injury. We reach the same conclusion considering all the

evidence in a neutral light. Harper produced no evidence controverting Dr. Peacock’s testimony, and

it is undisputed that Harper assaulted Hanson with a knife. The evidence was legally and factually

sufficient to support a deadly weapon finding. We overrule Harper’s first and second issues.


Definitions of standards of proof

                 In his third issue, Harper contends that the district court erred by failing to instruct

the jury on the definitions of various standards of proof, including the “beyond a reasonable doubt”

standard. We review the district court’s decision to include or exclude definitions of “beyond a

reasonable doubt” in the jury charge for abuse of discretion. See Woods v. State, 152 S.W.3d 105,

115 (Tex. Crim. App. 2004).

                 The district court instructed the jury in its charge that the burden of proof was on the

State to prove guilt “beyond a reasonable doubt.” Harper wanted the district court to go further and



                                                    9
define the “beyond a reasonable doubt” standard in accordance with the definition provided in Geesa

v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991). The State objected to this request. When the

district court declined to provide such a definition, Harper requested definitions of lesser standards of

proof, specifically “preponderance of the evidence” and “clear and convincing evidence,” in order to

inform the jury that the “beyond a reasonable doubt” standard “is not these two standards and it

exceeds these two standards.”         The State again objected and the district court overruled

Harper’s request.

                In Paulson v. State, the court of criminal appeals overruled Geesa and held that trial

courts were no longer required to instruct juries on the definition of “beyond a reasonable doubt.” 28

S.W.3d 570, 573 (Tex. Crim. App. 2000). The court acknowledged that “if both the State and the

defense were to agree to give the Geesa instruction to the jury, it would not constitute reversible error

for the trial court to acquiesce to their agreement.” Id. However, the court concluded that the “better

practice is to give no definition of reasonable doubt at all to the jury.” Id. (emphasis added). The court

explained that “[i]t is ill-advised for us to require trial courts to provide the jury with a redundant,

confusing, and logically-flawed definition when the Constitution does not require it, no Texas statute

mandates it, and over a hundred years of pre-Geesa Texas precedent discourages it.” Id.

                Defining lesser standards of proof in relation to the “beyond a reasonable doubt”

standard is simply an indirect attempt to define the “beyond a reasonable doubt” standard. We have

not found, and Harper has not cited, any case holding that a trial court errs in declining to provide such

a definition. Although we can find no case addressing this specific issue, we believe that providing




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a definition that compares the “beyond a reasonable doubt” standard to lesser standards of proof

applicable in civil cases has the potential to confuse a jury even more than a direct definition could.

We hold that the district court did not abuse its discretion in declining to include such a definition in

the jury charge. We overrule Harper’s third issue.


                                           CONCLUSION

                Having overruled Harper’s issues on appeal, we affirm the judgment of

the district court.




                                               Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Waldrop

Affirmed

Filed: November 3, 2006

Do Not Publish




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