      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00766-CR



                                    Gerald Herrera, Appellant

                                                 v.

                                   The State of Texas, Appellee




  FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT
       NO. 2002-076, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Gerald Herrera appeals his conviction of aggravated assault with a deadly weapon.

See Tex. Pen. Code Ann. § 22.02(a)(2) (West Supp. 2005). A jury acquitted appellant of two counts

of assault and found him guilty on a third count, assessing punishment at eight years in prison. The

trial court entered an affirmative finding that a knife exhibited in the incident constituted a deadly

weapon. In four issues, appellant complains that the evidence was legally and factually insufficient

and that the trial court erred in admitting into evidence an unrecorded oral statement taken while he

was incarcerated on an unrelated charge. Because the evidence is sufficient and the statement was

properly admitted, we affirm the judgment of conviction.


                      FACTUAL AND PROCEDURAL BACKGROUND

               The evidence at trial showed that in the early morning hours of July 22, 2001, a fight

broke out between Hispanic patrons of the Mira Mar Bar in Lockhart and a group of African-
Americans outside the bar. The Herrera family was at the bar celebrating appellant’s birthday.

Several African-American males who had been across the street in the park, playing basketball and

drinking beer, entered the bar to shoot pool. The owner asked them to leave because they were

prohibited from bringing alcohol into the bar. As they gathered on the porch to finish their beers,

words were exchanged between appellant’s sister, Gerismisa Herrera, and Richard Asberry, one of

the African-American males, as Gerismisa left the bar and hit Asberry with the door. He told her

to watch where she was going and she went back into the bar to get her brothers. She returned with

her brothers, appellant and David Herrera, and her father, Natividad Herrera.

               As David Herrera exited the bar, witnesses Javon Haggard and Shaun Russell

observed him holding a knife or box cutter in one hand. They started to leave the premises. As they

returned to the park across the street, they observed numerous patrons coming from the bar into the

street and a fight erupted between the two groups.

               Sheena Russell, Shaun’s sister, reported the fight to her mother, Shari, who was at

her sister-in-law’s nearby house. Shari Russell testified that, when she arrived at the scene, the boys

were across the street at the park and the Hispanics began “charging” the African-Americans. She

recognized appellant because she had worked with his wife and mother at a local nursing home. She

observed David Herrera trying to “cut a group of boys in the street.” She also observed appellant

and his mother holding knives. Brandishing the knife, appellant then “sucker-punched” her in the

eye. She fell unconscious to the ground.

               During the disturbance, several individuals were cut or stabbed, including Javon

Haggard (the complainant in count one), Shaun Russell (the complainant in count two), Dywane



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Ralston, Alex Boyd, Lester Britton, and Angelita Martinez. Witnesses observed appellant and his

brother David using knives during the fight. Shari Russell, the complainant in count three, was not

stabbed, but was punched in the eye.

                As the police arrived, they stopped a car in which appellant and his parents were

leaving. Appellant was in the back seat. A search of the car revealed a pocket knife on the back

floorboard. Appellant was arrested on an outstanding warrant for failure to appear in court on an

unrelated charge.

                Lockhart Police Officer David Powell began to question witnesses immediately after

the incident. He spoke with appellant later that morning at the jail in an effort to determine what had

happened. Appellant told Powell that he had participated in the fight and had possessed the knife

recovered from the back floorboard. Powell testified that appellant said that he was celebrating his

birthday when he learned that a fight had started outside. Appellant went outside the bar, saw his

sister arguing with some black males and his brother actually fighting with them. He looked for his

father and saw his father fall to the ground as a black male backed away. Appellant went out into

the street but was hit, lost his glasses and could not see because of his poor eyesight, and fell to the

ground. Powell testified that appellant admitted that he had a pocket knife and had removed the

knife from his pocket and dropped it on the floorboard when his parents’ car was stopped by the

police. He told Powell that he had tried to pull the knife out of his pocket after he was knocked to

the ground, but could not do so because he was being kicked or punched while lying on the ground.

The statement was not recorded and the officer did not advise appellant of his statutory or

constitutional rights.



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                That same day, Officer Powell went to the Herrera home and spoke with Gerismisa

and her father, Natividad Herrera, as part of his “preliminary investigation as to what happened.”

Powell also spoke with Mrs. Herrera, appellant’s mother, and the individuals who had been injured

in the fight. Powell testified that from July 22 until August 8 or 10, he worked on the investigation

full time, trying to sort out the events. Appellant gave a written statement on July 31, 2001, in which

he admitted to participating in the fight, and possessing the knife. At trial, neither party offered into

evidence the written statement.

                In separate proceedings, appellant’s brother, David Herrera, and sister, Gerismisa

Herrera, pleaded guilty to assault. David Herrera testified at appellant’s trial, admitting to

brandishing and using the knife to “cut” four individuals. He testified that he and his brother were

often mistaken for one another as well as their father, and that he never saw appellant with a knife

that night: “I know he has one on him, but . . . I didn’t see him use it.” David Herrera attributed the

conflict between the parties to an incident in 1992 in which he cut Shaun Russell and Dywane

Ralston and pleaded guilty to assault. He denied that appellant participated in the fight and claimed

that he was the one who hit Shari Russell.

                The jury acquitted appellant of the assaults against Haggard and Shaun Russell in

counts one and two, but found him guilty of aggravated assault with a deadly weapon against Shari

Russell in count three.




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                                             ANALYSIS

                 In his first two issues, appellant contends that the trial court erred in admitting his

unrecorded oral statements to Officer Powell while in custody. Specifically, he complains that his

statements that he participated in the fight and possessed a knife were inadmissible because the

statements were obtained without Miranda warnings1 and did not comply with article 38.22 of the

Texas Code of Criminal Procedure.2 The State acknowledges that appellant did not receive Miranda

warnings prior to making the challenged statements to Powell, but it argues that the evidence was

correctly admitted by the trial court because the statements were not the product of custodial

interrogation.

                 Although appellant filed a motion to suppress statements obtained in violation of

Miranda and article 38.22, he did not seek a hearing on the motion prior to trial. At trial, when the

State introduced the statements through the testimony of Officer Powell, appellant objected and a

brief hearing was conducted out of the presence of the jury. The trial court overruled the objection

and admitted the statements.

                 As to his first issue, appellant alleges that the trial court’s decision to admit

statements at trial that were made by appellant to a law enforcement official without Miranda

warnings violated his Fifth Amendment right against self-incrimination. The Fifth Amendment

requirements of Miranda v. Arizona apply only if the statements at issue were the result of

“interrogation” of a suspect who was at the time in “custody.” Miranda v. Arizona, 384 U.S. 436,



       1
           See Miranda v. Arizona, 384 U.S. 436 (1966).
       2
           See Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (West 2005).

                                                   5
444 (1966). Custodial interrogation exists when a law enforcement official questions an individual

and that questioning was (i) conducted in custodial settings that have inherently coercive pressures

that tend to undermine the individual’s will to resist and to compel him to speak, Miranda, 384 U.S.

at 467, and (ii) when the inquiry is conducted by officers who are aware of the potentially

incriminatory nature of the disclosures sought, Garner v. United States, 424 U.S. 648, 657 (1976).

Only questioning that reflects a measure of compulsion above and beyond that inherent in custody

itself constitutes interrogation, the fruits of which may be received in evidence only after Miranda

warnings have been given. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). Courts generally

have declined to equate incarceration with custody for purposes of Miranda. See, e.g., United States

v. Newton, 369 F.3d 659, 670 (2nd Cir. 2004); United States v. Menzer, 29 F.3d 1223, 1232-33 (7th

Cir. 1994); Garcia v. Singletary, 13 F.3d 1487, 1491 (11th Cir. 1994); United States v. Conley, 779

F.2d 970, 973-74 (4th Cir. 1985).3 The questions asked must have been both likely to elicit an

incriminating response and to produce psychological pressures that will subject the individual to the

“will” of his examiner. Innis, 446 U.S. at 300-01; Miranda, 384 U.S. at 457-58.

               Here, appellant argues that “[n]otwithstanding Powell’s claim that he was merely

trying to clarify what had happened in the altercation, the purpose of the interview was to elicit an

‘incriminating response’ from Appellant about his participation in the offense.” But there is no

support in the record for this assertion. On direct examination, Powell testified: “I asked Gerald

some questions. At that time, I was gathering information and didn’t know Mr. Herrera’s


       3
          The Supreme Court has declined to address the question of whether incarceration
constitutes custody for purposes of Miranda. See Bradley v. Ohio, 497 U.S. 1011 (1990) (Marshall,
J., dissenting from denial of certiorari).

                                                 6
involvement, if any, in the assault.” Relying on his motion to suppress and arguing that appellant

was already a suspect when he spoke with Powell, appellant’s counsel objected to the admissibility

of the statement. Outside the presence of the jury, defense counsel elicited that, at the time Powell

interviewed appellant on the morning following the fight, Powell had spoken with another police

officer who advised him that the Herrera family was “involved in the altercation” but not that they

were suspects. The State then established that appellant was in custody on an unrelated offense, was

not a suspect, and was not detained on the instant offense. Overruling appellant’s objection, the trial

court admitted the officer’s testimony about the statement. Although appellant knew he was being

questioned by Powell and was incarcerated, there is no evidence in the record of coercive pressure

or that appellant was compelled to speak. Apart from the fact of incarceration, there is no evidence

of compulsion or that the statement was otherwise one of custodial interrogation.4 We cannot say

the trial court erred in admitting the statements. Appellant’s first issue is overruled.

               Appellant next argues that the statement was inadmissible because it did not comply

with article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art.

38.22 (West 2005). Article 38.22 governs the admissibility of oral statements made by an accused

during custodial interrogation. Id. Section 3(a) of article 38.22 requires (i) oral statements to be

electronically recorded, (ii) the accused to be given the warnings set out in section 2, and (iii) the




       4
         Although the Texas Court of Criminal Appeals has not addressed who bears the burden of
proving that the statement was not the result of custodial interrogation, the Court of Appeals for the
Fifth Circuit has held that a defendant bears the burden of proving that a prosecution-offered
statement is one to which Miranda applies. United States v. Davis, 792 F.2d 1299, 1309 (5th Cir.
1986); United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984); see also 41 George E. Dix &
Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 13.384 (2d ed. 2001).

                                                  7
accused to knowingly, intelligently, and voluntarily waive any rights set out in the warning. Id.

§ 3(a). The statute, however, does not preclude admission of a statement that does not stem from

“custodial interrogation.”5 Because the statement did not stem from custodial interrogation, it was

not improper for the trial court to admit it into evidence.

                In his third and fourth issues, appellant challenges the legal and factual sufficiency

of the evidence to support the deadly weapon finding. He urges specifically that the evidence does

not establish that appellant used a knife to commit the assault against Shari Russell.

                The indictment charged appellant with aggravated assault by striking Shari Russell

with his hand and by use and exhibition of a deadly weapon, to wit, a knife, that in the manner of

its use and intended use was capable of causing death and serious bodily injury. A person commits

the crime of assault if he (i) intentionally, knowingly, or recklessly (ii) causes bodily injury to

another. See Tex. Pen. Code Ann. § 22.01(a)(1) (West Supp. 2005). If a person uses or exhibits a

deadly weapon during the commission of an assault, he can be convicted of aggravated assault. See

id. § 22.02(a)(2). Appellant contends that the evidence of his use of a deadly weapon was legally

and factually insufficient because appellant punched Mrs. Russell in the eye, temporarily knocking

her unconscious, but he did not motion at her with the knife he had in his other hand. Thus, he urges

that, even if he is found to have had a knife, he did not use or exhibit the pocket knife for the purpose

of facilitating the offense. The possession of the knife was only incidental to, and not a component




        5
         See 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and
Procedure §§ 13.384, .386 (2d ed. 2001) (defendant probably has initial burden of establishing
applicability of article 38.22).

                                                   8
of, the commission of the assault. But he also claims that he never removed the knife from his

pocket except to discard it on the floorboard.

               Although a knife is not a deadly weapon per se, the State can, without expert

testimony, prove a particular knife to be a deadly weapon by showing the manner of its use or

intended use and its capacity to produce death or serious bodily injury. Blain v. State, 647 S.W.2d

293, 294 (Tex. Crim. App. 1983). 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. McCain v. State, 22

S.W.3d 497, 503 (Tex. Crim. App. 2000).

               In a legal sufficiency review, we look at the relevant evidence in the light most

favorable to the verdict and determine whether a rational finder of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The trier of fact is entitled to resolve any

conflicts in the evidence, to evaluate the credibility of witnesses, and to determine the weight to be

given any particular evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

Any inconsistencies in the evidence should be resolved in favor of the verdict. Moreno v. State, 755

S.W.2d 866, 867 (Tex. Crim. App. 1988). This standard of review is the same for both direct and

circumstantial evidence. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).

               Factual sufficiency requires the reviewing court to view the evidence “without the

prism of ‘in the light most favorable to the prosecution.’” Clewis v. State, 922 S.W.2d 126, 129

(Tex. Crim. App. 1996). There are two prongs to a factual sufficiency review: the reviewing court

must ask (i) whether the state’s evidence, taken alone, is so weak that it renders the adverse finding



                                                  9
clearly wrong or manifestly unjust; and (ii) whether the proof of guilt, although adequate if taken

alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d

589, 593-94 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 11. A factual sufficiency review must

employ appropriate deference to the fact finder’s role as the sole judge of the weight and credibility

to be given to witness testimony. Johnson, 23 S.W.3d at 7. A verdict will be set aside “only if the

evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly

outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.”

Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002).

                Because other victims were cut and Shari Russell was not, appellant argues that these

facts render the evidence that he used or exhibited a deadly weapon during the attack legally and

factually insufficient. He also contends that the witnesses’ testimony concerning whether appellant

was exhibiting a knife was contradictory.

                The allegation that the knife was used or exhibited as a deadly weapon is amply

supported by the evidence. By her testimony, Mrs. Russell “heard” the knives and bottles being

broken. She saw the “hispanics” with “blades” “in the reflection of the streetlights . . . in their hands

and . . . swinging them.” She saw appellant with a knife in his hand trying to “cut” the boys. When

asked whether she knew what kind of knife it was, she responded: “It looked like—when—when

I ran up on him, he was going like this (indicating), so I said switchblade, but it was a knife.” She

observed him act as though he was going to cut someone. As she intervened he knocked her out and

she fell unconscious on the ground: “He had the knife in this hand and then he sucker-punched me

in my eye.” Shaun Russell also saw appellant with a knife in his hands and appellant acknowledged



                                                   10
in his statement to Powell that he possessed a knife but that he kept it in his pocket. Javon Haggard

testified that he was cut by David Herrera and did not see appellant with a knife. Shaun Russell

testified that he, too, was cut by David Herrera, but that appellant was also carrying a knife. He

knew that he had been cut by David Herrera, but thought he might also have been cut by appellant.

The fact finder was warranted in concluding from the nature of the encounter between Mrs. Russell

and appellant and her testimony that appellant intended to use the knife in a manner that would be

capable of causing death or serious bodily injury.

               Viewed in the light most favorable to the verdict, the evidence is sufficient to show

that appellant used or exhibited a knife during an assault. We find that a rational trier of fact could

have found beyond a reasonable doubt that appellant used or exhibited a knife as a deadly weapon

during the assault. We therefore conclude the evidence is legally sufficient to support the deadly

weapon finding. Appellant’s third issue is overruled.

               Likewise, we conclude that the evidence was factually sufficient. The evidence is

sufficient to meet the first prong of our factual sufficiency review. The State’s evidence that a knife

was used as a deadly weapon during the assault was not so weak as to render the judge’s finding

clearly wrong or manifestly unjust. See Zuliani, 97 S.W.3d at 593-94. Under the second prong of

a factual sufficiency review, we must ask whether the proof of guilt, although adequate if taken

alone, is against the great weight and preponderance of the available evidence. See id. Appellant

relies on his brother’s testimony that the brother was the assailant and that appellant did not

participate in the fight. But the jury was entitled to evaluate the credibility of the witnesses and to




                                                  11
weigh the evidence. See Johnson, 23 S.W.3d at 9. We conclude the evidence is factually sufficient

to support the deadly weapon finding. We overrule appellant’s fourth issue.


                                         CONCLUSION

               Finding the evidence legally and factually sufficient to support the finding that a

deadly weapon was used or exhibited during the commission of the assault and that the trial court

did not err in admitting appellant’s statement, we affirm the trial court’s judgment.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: December 1, 2005

Do Not Publish




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