                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-078-CR


RUTH ELAINE ADKINS                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                   ------------

                                  OPINION

                                   ------------

      Appellant Ruth Elaine Adkins appeals her conviction for aggravated

assault with a deadly weapon. In two issues, she contends that the evidence

is legally and factually insufficient to support her conviction for aggravated

assault, and that the trial court erred by refusing her requested jury charge on

a lesser-included offense. We affirm.
                                I. Background

      Appellant lived in Hood County, Texas, for about ten years along with her

two children, James Arthur Newell and Jennifer Louise Newell. Appellant used

methamphetamine for most of those years. She got methamphetamine from

her son, James, supplied methamphetamine for her daughter, Jennifer, and

smoked methamphetamine with both of her children. James had previously

been to prison and was a member of the Aryan Brotherhood prison gang.

      When Jennifer and her boyfriend, James Padgett, began “shooting up”

with methamphetamine, appellant became upset and angry. Appellant accused

Padgett of “making Jennifer pass out” and then “doing sexual things” with her.

Appellant even choked Padgett in her driveway because she was so angry over

his drug use with Jennifer.

      In April 2006, Jennifer and Padgett broke up briefly and Jennifer moved

back in with appellant. Appellant told Jennifer she knew what Jennifer and

Padgett were doing, she was mad about it, and, if she had anything to do about

it, they would “never get back together.” Shortly thereafter, appellant’s son,

James, brought Robert Byrd, another Aryan gang member, to appellant’s home

for a meeting.

      Around April 29, 2006, appellant and James were at a gathering in

Brazos River Acres where everyone was drinking beer and hanging out on the

                                      2
beach. Appellant told a friend and neighbor, Arvil Wayne Lee, that she was

upset and she was going to “get even” with Padgett because he was shooting

up her daughter. She said she had friends who would take care of Padgett for

her, and that she “had [the situation] under control.” That evening, appellant’s

son, James, asked Arvil to “be his alibi.”

      A few days later, appellant met with Johnny Freeman, another Aryan

gang member, at Johnny’s residence. Johnny then went to Cleburne to meet

with fellow Aryan gang member, Robert.

      On May 6, 2006, Robert and Daniel Roof, yet another Aryan gang

member, contacted Jennifer Perez about borrowing her truck for some

“errands” around Granbury. Rather than allow them to take her truck, Perez

insisted on accompanying the men.       Daniel and Robert met Johnny at his

residence. Johnny told his girlfriend, Amber Gorman, he needed to “take care

of some business” with some friends and that he would meet her later that day.

The three men talked together in a back room. Daniel, Robert, Johnny, and

Perez then drove to a convenience store where they met James and appellant

and talked for about fifteen minutes.

      After meeting with appellant, Daniel, Robert, and Johnny went looking for

Padgett. On the way to Padgett’s house in Oak Trail Shore, they talked about

how Padgett was hurting James’s sister, Jennifer. When they got to Padgett’s

                                        3
house, Jennifer answered the door and told them that Padgett was not home,

so they left. On their way out of the Oak Trail Shores neighborhood, they saw

Padgett entering the gates and turned around. After stopping Padgett’s vehicle,

they jumped out of the truck with knives in hand. About five minutes later,

they returned to the truck with blood on them and breathing heavily. As they

left the scene, Robert used a stuffed animal in the truck to wipe the blood off

his arm and then threw the bloodied toy, as well as the knives, out of the truck

window. The three men then bought some new clothes at a Wal-Mart, stopped

at a truck stop to change, and drove to a motel in Desoto, Texas.

      When Johnny’s girlfriend, Amber, returned home late that afternoon and

found that Johnny was not home, she called several people, including appellant,

looking for Johnny. Appellant told Amber that there had been a stabbing in Oak

Trail Shores and that the police thought Johnny did it.     Shortly thereafter,

appellant called Amber and asked her to meet appellant at Brazos River Acres.

Once there, appellant told Amber that Johnny wanted to meet them in

Hillsboro.

      Appellant and Amber drove to Hillsboro, where they met Robert and

Johnny at a gas station. Amber noticed that the men were wearing different

clothes than they had been wearing earlier. Appellant rented a nearby motel

room where the four of them went to talk.

                                       4
      While in the motel room, Robert detailed Padgett’s stabbing. He acted

proud of what he had done, and appellant appeared happy and excited. The

more Robert talked about the stabbing, the more excited and “turned on”

appellant became.

      Appellant and Robert stepped out for about thirty minutes while Johnny

and Amber talked inside the motel room. Johnny cried as he told Amber about

the stabbing. When appellant and Robert returned to the room, appellant’s

demeanor had changed from excited and “turned on” to relaxed and calm.

Appellant told Amber that she needed to go to the bathroom to “wipe herself,”

which Amber understood to mean that appellant and Robert had just engaged

in sex. The next day Amber, Johnny, and appellant went to Glen Rose. Robert

did not accompany them.

      Padgett was airlifted to Harris Methodist Hospital in Fort Worth after the

stabbing. Having suffered massive blood loss, he underwent surgery to repair

multiple stab wounds in his heart and his torso. He was eventually transferred

to a nursing home facility where he died of pneumonia nearly a year later. The

medical examiner listed Padgett’s cause of death as complications from multiple

stab wounds.

      A Hood County grand jury indicted appellant in July 2006 for aggravated

assault with a deadly weapon.

                                       5
      Before testifying at trial, Amber received threats from members of the

Aryan Brotherhood and Aryan Circle concerning her testimony. Jennifer also

feared retaliation from the Aryan gang members. On February 12, 2008, a jury

convicted appellant of aggravated assault with a deadly weapon and sentenced

appellant to twenty years in prison and a fine of $10,000.

                        II. Sufficiency of the Evidence

      In her first issue, appellant contends that the evidence is legally and

factually insufficient to prove that she knew a deadly weapon would be used

in the assault or that she contributed in some part toward the execution of the

attack. Appellant asserts that the evidence establishes only that she is guilty

of assault.

                           A. Standard of Review

      In reviewing legal sufficiency, we consider all the evidence in the light

most favorable to the verdict and determine whether a rational juror, based on

the evidence and reasonable inferences supported by the evidence, could have

found the essential elements of the crime beyond a reasonable doubt. 1 We

defer to the “responsibility of the trier of fact to fairly resolve conflicts in

testimony, to weigh evidence, and to draw reasonable inferences from basic


      1
      … Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                                       6
facts to ultimate facts.” 2 The jury is permitted to draw multiple inferences as

long as each inference is supported by the evidence presented at trial. 3 Each

fact need not point directly and independently to appellant’s guilt, as long as

the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.4    Circumstantial evidence is as probative as direct

evidence in establishing guilt, and circumstantial evidence alone can be

sufficient to support a conviction. 5 On appeal, the standard of review is the

same for both circumstantial and direct evidence cases. 6

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.7

We then ask whether the evidence supporting the conviction, although legally

sufficient, is nevertheless so weak that the factfinder’s determination is clearly



      2
     … Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789; Hooper, 214
S.W.3d at 13.
      3
          … Hooper, 214 S.W.3d at 15.
      4
      … Id. at 13; see Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993), cert. denied, 511 U.S. 1046 (1994).
      5
       … Hooper, 214 S.W .3d at 13; Guevara v. State, 152 S.W.3d 45, 49
(Tex. Crim. App. 2004).
      6
          … Hooper, 214 S.W.3d at 13; Guevara, 152 S.W.3d at 49.
      7
      … Watson v. State, 204 S.W .3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).

                                        7
wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. 8 To reverse under the second ground, we

must determine, with some objective basis in the record, that the great weight

and preponderance of all the evidence, though legally sufficient, contradicts the

verdict.9

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by evidence that is legally sufficient,

it is not enough that this court “harbor a subjective level of reasonable doubt

to overturn [the] conviction.” 10 We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. 11     We may not simply substitute our judgment for the

factfinder’s.12    Unless the record clearly reveals that a different result is


      8
       … Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000).
      9
          … Watson, 204 S.W.3d at 417.
      10
           … Id.
      11
           … Id.
      12
       … Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997).

                                        8
appropriate, we must defer to the jury’s determination of the weight to be given

contradictory testimonial evidence because resolution of the conflict “often

turns on an evaluation of credibility and demeanor, and those jurors were in

attendance when the testimony was delivered.” 13 Thus, we must give due

deference to the factfinder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” 14

                         B. Elements of Aggravated Assault

      A person commits aggravated assault when he or she commits an assault

as defined in Texas Penal Code section 22.01 while using or exhibiting a deadly

weapon.15      Assault is intentionally, knowingly, or recklessly causing bodily

injury to another. 16

           C. Criminal Responsibility for Aggravated Assault as a Party

      A person may be convicted of aggravated assault as a party “if, acting

with intent to promote or assist the commission of the aggravated assault, he

or she solicits, encourages, directs, aids, or attempts to aid” another person to




      13
           … Johnson, 23 S.W.3d at 8.
      14
           … Id. at 9.
      15
           … Texas Penal Code Ann. § 22.02(a)(2)(Vernon Supp. 2008).
      16
           … Id. § 22.01(a)(1).

                                        9
commit the aggravated assault.17       The intent to promote or assist in the

commission of the offense goes to each element of the offense charged.18 We

look at “events occurring before, during and after the commission of the

offense and may rely on actions of the defendant which show an understanding

and common design to do the prohibited act.” 19

      When a deadly weapon is alleged in the indictment as an element of the

offense, the jury is authorized to find the defendant guilty as a party only if the

State meets its burden of proving beyond a reasonable doubt that the defendant

knew a deadly weapon would be used or exhibited.20 If the jury returns a

verdict of guilty as charged in the indictment, we presume that the jury has

implicitly found beyond a reasonable doubt that the defendant used or exhibited



      17
       … See Texas Penal Code Ann. § 7.02(a)(2)(Vernon 2003); Hooper, 214
S.W.3d 14 n.3; Frank v. State, 183 S.W.3d 63, 72 (Tex. App.— Fort Worth
2005, pet. ref’d).
      18
       … See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App.
1986); Duke v. State, 950 S.W.2d 424, 427 (Tex. App.—Houston [1st Dist.]
1997, pet. ref’d).
      19
       … Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d
107, 111 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1101 (1986)).
      20
       … Tex. Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2008);
Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d); Barnes v. State, 62 S.W.3d 288, 303–04 (Tex. App.—Austin
2001, pet. ref’d); Taylor v. State, 7 S.W.3d 732, 740–41 (Tex. App.—Houston
[14th Dist.] 1999, no pet.).

                                        10
a deadly weapon or, if acting as a party, knew that a deadly weapon would be

used or exhibited.21

                                 D. Analysis

      In this case, the jury implicitly found beyond a reasonable doubt that

appellant knew a deadly weapon would be used. The evidence supporting this

implied finding is as follows:

      Appellant was angry at Padgett and blamed him for her daughter’s

injecting methamphetamine. She had told her daughter that, if she had her

way, the two would never get together again. Appellant admitted at trial that

she wanted someone to beat Padgett up for her. She had bragged to a friend

and neighbor that she was going to stop Padgett, that she had a lot of friends,

and that she had the matter “under control.” During the same conversation,

her son, James, a member of the Aryan Brotherhood gang, asked the neighbor

to be his “alibi.” Appellant asked Johnny, also an Aryan gang member and

someone whom appellant considered a “tough guy,” to beat up Padgett for her.

A week before the attack, Robert visited James at appellant’s home while

appellant was present. Less than an hour before the stabbing, appellant and

James met the attackers at a convenience store. Immediately after the attack,


      21
       … Sarmiento, 93 S.W.3d at 570; see Polk v. State, 693 S.W.2d 391,
394 (Tex. Crim. App. 1985).

                                      11
when appellant got word that Padgett had been stabbed, the evidence shows

that appellant knew who was responsible.        Appellant’s daughter, Jennifer,

believed appellant was behind the attack. Appellant drove the girlfriend of one

of the attackers to Hillsboro, rented a motel room for all the attackers, and

listened with apparent approval as Robert relayed the details of the stabbing.

The girlfriend testified that, as Robert spoke, appellant got more and more

excited and apparently engaged in sex with him after he had finished his

account.

      Viewing this direct and circumstantial evidence in the light most favorable

to the verdict, we hold that a rational jury could reasonably infer that appellant

solicited and encouraged the attack, was aware that it would involve the use

of a deadly weapon, and condoned its execution after it was accomplished.

Therefore, the evidence is legally sufficient to support the verdict.

      Furthermore, when we examine all the evidence in a neutral light, we

cannot say that this evidence is so weak as to render the verdict clearly wrong

and manifestly unjust. Nor can we say the great weight and preponderance of

the evidence contradicts the verdict.22     The only evidence contrary to the




      22
       … See Watson, 204 S.W.3d at 417; Brown v. State, 212 S.W.3d 851,
863 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (op. on reh’g), cert.
denied, 128 S. Ct. 1088 (2008).

                                       12
verdict is the testimony of appellant’s friend and neighbor, Arvil Wayne Lee,

and of appellant herself.    Arvil testified that he did not feel that appellant

wanted Padgett killed. Although appellant admitted at trial she asked Johnny

to beat up Padgett, she said she “never once wanted anyone harmed like that.”

She “figured that Johnny would kick his ass, like I asked him to. I never once

thought that it would take more than Johnny to do what I asked.”           This

testimony clearly does not outweigh the evidence showing that appellant

solicited and encouraged the attack and was aware that it would likely involve

the use of a deadly weapon. We, therefore, hold that the evidence is also

factually sufficient to support the jury’s implied finding that appellant knew a

deadly weapon would be used.

      Relying on our opinion in Wooden v. State,23 appellant further contends

that there is also no evidence that, at the time of the offense, appellant

contributed in some part toward the execution of the attack.        Wooden is

inapposite to this case.

      In Wooden, the appellant contended that the evidence was legally

insufficient to prove that he was a party to aggravated robbery because it

showed he was merely present at the scene of the offense and assisted in the




      23
           … 101 S.W.3d 542 (Tex. App.—Fort Worth 2003, pet. ref’d).

                                       13
getaway. The question before the court was, therefore, whether proof that an

accused is present at the scene of a crime or assists in a getaway, standing

alone, is sufficient to prove whether the accused is guilty as a party.24 We

concluded it was not. Rather, we held that when the accused is present at the

scene of a crime, “[t]he evidence must show that at the time of the offense,

the parties were acting together, each contributing some part toward the

execution of their common purpose.” 25 Because there was no evidence that

Wooden knew a gun was used or exhibited in the robbery, we held that the

evidence was insufficient to prove Wooden was a party to the aggravated

robbery even though he facilitated the getaway.      We did not address the

circumstances presented here where the accused is not present at the scene

of the crime, but acting with intent to promote or assist the commission of an

offense, solicits and encourages the other person to commit the offense before

the offense is committed.26




      24
           … Id. at 546.
      25
        … Id.; see also Brooks v. State, 580 S.W.2d 825, 831 (Tex. Crim. App.
1979) (holding that under former party statute, in instances where the accused
is present during the commission of an offense, evidence must show that the
accused encouraged the commission of the offense by acts, words, or other
assistance).
      26
           … Tex. Penal Code Ann. § 7.02(a)(2).

                                       14
      Here, the evidence shows that appellant, acting with intent to promote

the commission of the aggravated assault, solicited and encouraged Johnny to

commit the offense. The fact that she was not physically present when the

offense was committed and did not contribute some part to the stabbing of

Padgett at the time of the offense is immaterial under the circumstances of this

case. As we observed in Wooden, section “7.02(a)(2) does not require that a

party’s actions constitute one or more elements of the intended offense, only

that the party’s actions show the intent to promote or assist the offense and

that the party encouraged, solicited, directed, or aided the commission of the

offense.” 27 The plain language of section 7.02(a)(2) requires nothing more, and

we are not inclined to rewrite the statute to require more than the legislature

intended.

      We overrule appellant’s first issue.

                         III. Lesser Included Offense

      In issue two, appellant claims that the trial court erred in refusing her

requested jury charge on assault as a lesser included offense.        Appellant

contends that there is some evidence that she was unaware that a deadly

weapon would be used. She argues that since the aggravated assault charge


      27
       … Wooden, 101 S.W.3d at 548 n.1; see Tex. Penal Code Ann. §
7.02(a)(2).

                                      15
was based on use of a deadly weapon, any evidence that she was unaware that

a deadly weapon would be used is some evidence that she was not liable for

the aggravating element and therefore, if guilty, guilty only of assault.

      We use a two-step analysis to determine whether appellant was entitled

to a lesser included offense instruction.28 First, the lesser offense must come

within article 37.09 of the code of criminal procedure. 29          Article 37.09(3)

provides, “An offense is a lesser included offense if . . . it differs from the

offense charged only in the respect that a less culpable mental state suffices

to establish its commission.30 Assault satisfies this first step.31

      The next step is to determine whether some evidence exists that would

permit a jury to rationally find that if appellant is guilty, she is guilty only of the

lesser offense. 32 This step acknowledges that there are factual circumstances

in which an offense is indeed a lesser included offense under the first step, but


      28
      … Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007);
Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App.), cert. denied,
510 U.S. 919 (1993).
      29
        … Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v.
State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
      30
           … Tex. Code Crim. Proc. Ann. art. 37.09(3) (Vernon 2006).
      31
           … Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).
      32
       … Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741
(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73.

                                          16
a jury charge instruction is not required because the condition—that the

defendant is not guilty of the greater offense but is guilty only of the lesser—is

not met.33 In such a case, the offense remains a lesser included, but the trial

court is not required to instruct the jury on it.34

      The evidence must be evaluated in the context of the entire record.35

There must be some evidence from which a rational jury could acquit the

defendant of the greater offense while convicting her of the lesser.36 The court

may not consider whether the evidence is credible, controverted, or in conflict

with other evidence. 37   Anything more than a scintilla of evidence may be

enough to entitle a defendant to a lesser charge. 38 A charge on the lesser

included offense is not required when the defendant presents no evidence or

presents evidence that no offense was committed and there is no evidence




      33
        … Pickens v. State, 165 S.W.3d 675, 679 (Tex. Crim. App. 2005); see
also Irving v. State, 176 S.W.3d 842, 845–46 (Tex. Crim. App. 2005);
Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005).
      34
           … Pickens, 165 S.W.3d at 679.
      35
           … Moore, 969 S.W.2d at 8.
      36
           … Id.
      37
           … Id.
      38
           … Hall, 225 S.W.3d at 536.

                                        17
otherwise showing that the defendant is guilty of a lesser included offense.39

A defendant is entitled to a charge on assault only if there is more than a

scintilla of evidence to show that, if guilty at all, the defendant is only guilty of

assault.

      There is nothing in the record of this case to suggest that appellant acted

alone. The evidence is uncontroverted that she acted with others. Further, it

is undisputed that appellant’s cohorts used a deadly weapon in the offense and

the evidence shows that the attack would not have occurred without

appellant’s encouragement. There is no evidence that the attackers would have

acted without appellant’s encouragement, or that they committed only an

assault. The evidence was undisputed that Padgett was assaulted with knives

that in their manner of use and intended use were capable of causing death or

serious bodily injury.

      Because there is no evidence that appellant acted alone and not as a

party, or that the offense committed was a mere assault, the trial court did not

abuse its discretion in refusing appellant’s requested instruction on assault as

a lesser included offense.40 We overrule point number two.



      39
           … Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).
      40
      … See Moore, 969 S.W.2d at 8; Bruton v. State, 921 S.W.2d 531,
537– 538 (Tex. App.—Fort Worth 1996, pet. ref’d)(Evidence that defendant

                                         18
     Having overruled all of appellant’s issues, we affirm the judgment.




                                               JOHN CAYCE,
                                               CHIEF JUSTICE

PANEL: CAYCE, C.J.; HOLMAN and GARDNER, JJ.

PUBLISH

DELIVERED: December 4, 2008




aided accomplice who used deadly weapon was found sufficient to support
defendant’s guilt as a party to aggravated offense).

                                    19
