
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




ON MOTION FOR REHEARING





NO. 03-01-00732-CR


Raymond Navarro, AKA Raynaldo Navarro, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 2010978, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



To address concerns raised in appellant's motion for rehearing, we withdraw our
original opinion and judgment issued August 30, 2002, and substitute this opinion in its place.
	After a bench trial, appellant Raynaldo Navarro was convicted of the offense of
aggravated assault and sentenced to twenty-five years' imprisonment.  See Tex. Pen. Code Ann.
§ 22.02(a) (West 1994). (1)  In two points of error, Navarro challenges the legal sufficiency of the
evidence.  We will affirm the judgment of conviction.  

BACKGROUND
	Navarro lived in his aunt's home with his girlfriend, Mona Lisa Gonzales.  One
evening in July 2001, Gonzales was waiting for Navarro to pick her up at the H-E-B grocery store 
where she had just finished her work shift.  When he failed to arrive on time, she walked to a nearby
bus stop.  Navarro finally arrived on foot, drunk, and possibly "high" on crack cocaine.  Gonzales
also noticed that Navarro was wearing a pinky ring that she had never seen before.  An argument
ensued.  Gonzales told Navarro she wanted to end the relationship; he told her that she was coming
home with him.  Gonzales began to run in the direction of the H-E-B store where a police officer was 
on duty, but Navarro caught up with her before she got there.  Gonzales testified that he grabbed her,
shoved her against the wall and choked her, and then pulled a knife from his pocket and held it
against her, yelling that she was going home with him.  Employees inside the store witnessed the
assault and called the police.  When a store employee notified Gonzales that the police were on their
way, Navarro fled; the police subsequently arrested him at his aunt's home.  
	Nichole Postelle, the employee who called the police, testified that she saw something
in Navarro's hand that looked like either a box cutter or a knife; she did not see precisely what the
object was.  The police officers did not find a knife on Navarro when he was arrested and they did
not look for one at the house.  Austin Police Department Officer Reginald Parker, who interviewed
Gonzales at the scene, testified that Gonzales described the knife to him.  Based on that description
and his experience, he testified that he considered the knife to be a deadly weapon.  Gonzales
testified that after the attack she found the knife under a sofa cushion in the home of Navarro's aunt. 
She testified that she did not think to call the police to let them know she had found it, and the knife
later disappeared.

DISCUSSION

	In his first point of error, Navarro challenges the legal sufficiency of the evidence. (2) 
In his second point of error, he contends that the trial court erred in denying his motion for instructed
verdict.  A challenge to the trial court's ruling on a motion for instructed verdict is a challenge to the
legal sufficiency of the evidence.  McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997).
Accordingly, we will review both points of error as a single legal sufficiency point.  When the court
reviews the legal sufficiency of a verdict, it looks at the relevant evidence in the light most favorable
to the verdict to 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). 
	Navarro contends that because of inconsistencies in the testimony of the State's
witnesses, no rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt.  The indictment charged Navarro with aggravated assault by use of a deadly
weapon.  The elements of assault are (1) intentionally or knowingly (2) threatening another with
imminent bodily injury.  See Tex. Pen. Code Ann. § 22.01.  If a deadly weapon is used or exhibited
during the commission of an assault, a defendant can be convicted of aggravated assault.  See id.
§ 22.02.  Navarro does not identify the specific elements for which he asserts there is insufficient
evidence; rather, he points to certain parts of Gonzales's testimony that he alleges are inconsistent. 
Most of the testimony to which Navarro directs our attention concerns immaterial matters.  For
example, Navarro points to Gonzales's testimony describing the altercation.  Gonzales stated that
appellant did not touch her at the bus station but only in front of the auto parts store.  When asked
on cross-examination whether Gonzales told him that Navarro grabbed her at the bus stop and in
front of the auto parts store, Officer Parker answered, "I think so."  Appellant asserts that Gonzales's
testimony is inconsistent with that of Officer Parker's.  As Gonzales explained, however, she told
the police officer that they began arguing at the bus stop and the altercation continued when Navarro
chased her to an auto parts store.  The testimony is not inconsistent with Officer Parker's 
recollection of her description of the events.  Moreover, such a detail, even if inconsistent, is
immaterial.  Similarly, the fact that Gonzales may have referred to Navarro once as her common law
husband and at another time as her boyfriend is immaterial.  The trial judge as the trier of fact was
in the best position to determine the credibility of all of the witnesses.
	Concerning other "inconsistencies" in the testimony of the State's witnesses, Navarro
notes that Postelle testified that she saw Navarro grab Gonzales's hair and "throw her around" before
he fled the scene, but neither Gonzales nor Officer Parker testified that he did so.  The fact that one
witness testified to an additional detail about the events does not make her testimony inconsistent
with that of other witnesses who did not or chose not to include that detail.  Moreover, the testimony
does not pertain to an element of the offense. 
	Finally, Navarro appears to argue that the evidence is legally insufficient to establish
that he used a deadly weapon during the commission of the offense.  As noted, the police did not 
recover the knife that Navarro allegedly used to threaten Gonzales.  Navarro suggests that Gonzales's
testimony that she found the knife in the couch but failed to alert the police, and that she later lost
the knife around the house, is not credible.  Gonzales testified with particularity regarding the knife
that she claimed Navarro used during the assault.  She described its color, length, and the way
Navarro held the blade against her body.  The store clerk who testified also stated that she saw
Navarro wield something resembling a knife or box cutter.  Officer Parker testified that shortly after
the attack, Gonzales told him that Navarro used a knife during the incident and that she described
the knife to him.  Based on this testimony, we conclude that a rational trier of fact could have found
beyond a reasonable doubt that Navarro used a deadly weapon during the assault. (3) 
MOTION FOR REHEARING
	In his motion for rehearing, Navarro first complains that we failed to fully address
the legal sufficiency of the evidence supporting his conviction.  Specifically, he argues that we did
not determine whether the evidence is legally sufficient to establish that he used or exhibited a
deadly weapon during the commission of the offense.  In fact, we explicitly found the evidence
legally sufficient to establish both that he used a knife while committing the offense and that the
knife constituted a deadly weapon in this case.  We therefore turn to Navarro's second complaint,
which is that we should not have resolved his appeal without considering his pro se brief.
	Navarro's appointed counsel filed a brief in this case attacking the legal sufficiency
of the evidence.  In addition, Navarro filed a pro se brief alleging essentially the same ground of
error.  There is no provision in Texas law for hybrid representation whereby both the appellant and
his attorney may file separate briefs.  Normand v. State, 686 S.W.2d 275, 279 (Tex. App.--Houston
[14th Dist.] 1985, writ ref'd).  Therefore, Navarro's pro se brief presents nothing for review.  Rudd
v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981).  Nevertheless, in the interest of justice, we
have examined the contentions asserted in his pro se brief and find no error.  
	Navarro argues that the trial court's failure to make a specific deadly weapon finding
in its judgment supports his position that the evidence of use of a deadly weapon is legally
insufficient.  Navarro misunderstands the purpose and effect of a deadly weapon finding.  While use
of a deadly weapon is an element of the offense of aggravated assault, a separate affirmative deadly
weapon finding is not required for conviction.  Indeed, a deadly weapon finding has no effect on the
guilt/innocence stage of trial, nor does it affect the assessment of punishment.  Papke v. State, 982
S.W.2d 464, 467 (Tex. App.--Austin 1998, pet. ref'd, untimely filed); see Tex. Crim. Proc. Code
Ann. art. 42.12, § 3g(a)(2) (West Supp. 2002); Tex. Gov't Code Ann. § 508.145(d) (West 1998). 
The sole effect of a deadly weapon finding is to lengthen confinement by denying the offender
community supervision and restricting his ability to obtain good time credits toward parole.  Tex.
Crim. Proc. Code Ann. art. 42.12, § 3g(a)(2); Tex. Gov't Code Ann. § 508.145(d).  Whether the trial
court, sitting as trier of fact, makes such a finding is a matter of discretion.  See, e.g., Ex Parte Lucke,
742 S.W.2d 818, 820 (Tex. App.--Houston [1st Dist.] 1987, no writ).
	In this case, the State met its burden of proving each element of the offense, including
use of a deadly weapon, and the trial court's decision not to make a separate deadly weapon finding
has no effect on Navarro's conviction.  See Tex. Crim. Proc. Code Ann. art. 42.12, § 3g(a)(2). 
Moreover, Navarro's eligibility for parole has not been adversely affected by the trial court's
decision not to enter a deadly weapon finding. (4)  A deadly weapon finding does not limit a
defendant's eligibility for probation or parole unless it is entered in the trial court's judgment.  Ex
parte Shaw, 724 S.W.2d 75, 77 (Tex. Crim. App. 1987).  Because the trial court declined to enter
such a finding in the judgment in this case, Navarro arguably has benefitted.

CONCLUSION
	Having considered the briefs of both Navarro and his attorney, and having overruled
their points of error, we affirm the judgment.


  
					Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Affirmed
Filed:   October 10, 2002
Do Not Publish
1.   Because of Navarro's prior convictions, twenty-five years was the minimum term for which
he could be sentenced if convicted of this offense.
2.   Navarro does not specify in his brief whether he is challenging the legal or factual
sufficiency of the evidence, but he cites the standard for legal sufficiency only.  Moreover, all of the
decisions to which he cites predate Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996),
which recognized factual sufficiency as a review standard.  Therefore, we will construe his challenge
as one of legal sufficiency.  See Kingsbury v. State, 14 S.W.3d 405, 408 (Tex. App.--Waco 2000, 
no pet.).
3.   Although appellant does not challenge the sufficiency of the evidence to prove that the
knife was a deadly weapon, we note that while a knife is not a deadly weapon per se, see Blain v.
State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983),  

	[t]he State can, without expert testimony, prove a particular knife to be a deadly
weapon by showing its size, shape and sharpness, the manner of its use, or intended
use and its capacity to produce death or serious bodily injury.  In determining the
deadliness of a weapon the jury may consider all of the facts of the case, including
words spoken by the accused.

Tisdale v. State, 686 S.W.2d 110, 111 (Tex. Crim. App. 1984) (citations omitted).  In the instant
case, the State introduced evidence by way of the testimony of Gonzales and Officer Parker
regarding the description of the knife, the manner of its use or intended use, and its capacity to cause
death or serious bodily injury.  Gonzales testified that the weapon was a pocketknife about three
inches in length when closed and about five inches in length when the blade was exposed.  She stated
that Navarro held the knife blade closely against her body and she felt threatened that he would use
the knife to stab her.  She testified that Navarro cursed and yelled at her, demanding that she come
home with him as he held her against the wall, and that he "wasn't in his right mind."  Officer Parker
testified that based on Gonzales's description of the knife to him, he believed that the knife was
capable of being used as a deadly weapon.  The record contains sufficient evidence that the knife
constituted a deadly weapon in this case.
4.   Because Navarro was sentenced to twenty-five years imprisonment, he is not eligible for
probation.  Tex. Code Crim. Proc. art. 42, § 3(e)(1) (West Supp. 2002).

