Affirmed and Memorandum Opinion filed October 25, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00852-CR

                    JASON WAYNE CHARLEY, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 412th District Court
                           Brazoria County, Texas
                       Trial Court Cause No. 79882-CR

                  MEMORANDUM OPINION

      A jury convicted appellant Jason Wayne Charley of aggravated assault of a
public servant and harassment of a public servant. In a single issue, appellant
challenges the sufficiency of the evidence to support his conviction for aggravated
assault. Specifically, appellant contends the evidence is legally insufficient to prove
that he used or displayed a deadly weapon during his assault of a police officer. We
affirm.
                                   Background

      Angleton Police Department (“APD”) Officer Roxanne Raper, in uniform and
in a marked police vehicle, responded to a 911 call reporting a disturbance at a home
in Angleton, Texas. When she arrived, she heard yelling and screaming coming
from inside the home as she walked from her patrol vehicle to the front of the home.
She drew her firearm, knocked on the door, and announced “police department.”

      A nude male, bloody and holding a knife, opened the door. Raper radioed for
back-up and entered the doorway. The nude male, later identified as appellant, stood
in front of his sister, who appeared “terrified” and was “crying and screaming”; the
sister also held a knife. Raper, with her weapon drawn, told appellant to drop the
knife. Appellant began pacing and rambling incoherently. Then, he stepped towards
Raper and said, “I will fucking kill you,” while brandishing the knife. Appellant
dropped the knife, charged Raper, and pushed her backward with his fist, which
knocked her outside the doorway. Appellant slammed the door closed.

      Raper again radioed for back-up, then kicked the door open and re-entered the
doorway to the home to protect appellant’s sister. Raper saw that appellant held the
knife again so she ordered him to drop it, and appellant complied. Appellant began
squeezing a laceration on his arm and started to masturbate with his bloody hand,
then he turned around and “grabb[ed] his bottom.” Shortly after Raper re-entered
the doorway to the home, Micah Edwards, a federal wildlife officer with the United
States Fish and Wildlife Service, arrived in response to Raper’s call for assistance.
When Edwards arrived, he saw Raper with her weapon drawn and heard her order
appellant to “drop the knife.” Edwards drew his weapon to assist Raper. As he
approached, appellant came into his view. Appellant was no longer holding a knife
but had blood “all over his right arm and his crotch area.” Edwards holstered his
gun and put on sterile gloves to protect himself from the blood covering appellant.

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Appellant made confusing remarks, and Edwards believed that he “was either a
mental health patient or he was on some type of narcotics.” Appellant refused to
obey the officers’ commands and started “flailing his arms” around. Edwards drew
his taser and warned appellant he was “going to tase him” if he failed to comply with
the officers’ commands.

      By this point, several other APD officers also arrived. Appellant resisted
efforts to restrain him and “flicked” blood from his fingers toward the officers. After
a brief struggle, the officers managed to handcuff appellant. Emergency medical
technicians arrived at the scene and provided treatment to appellant. Neither the
knife appellant brandished nor the knife his sister held were recovered at the scene.
However, on the audio from Edwards’s body camera recording, appellant can be
heard asking for his knife and telling the officers that “it’s in the room on the floor”
when they asked where the knife was located.              A crime scene technician
photographed a kitchen knife on the floor in a bedroom.

      Appellant was arrested and charged with aggravated assault of a peace officer
and harassment of a public servant. A jury found him guilty as charged in the
indictment. Appellant pleaded true to several enhancing offenses, and the jury
sentenced him to sixty years’ confinement for the aggravated assault charge and
twenty-five years’ confinement for the harassment charge. The trial court entered
judgment on the jury’s verdict, ordering the sentences to run concurrently. This
appeal timely followed.




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                                              Analysis

        In a single issue, appellant challenges the evidentiary sufficiency to support
his conviction for aggravated assault of Officer Raper because the State did not
establish that appellant used or exhibited a deadly weapon.1

        We apply a legal-sufficiency standard of review 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. Jackson v. Virginia, 443 U.S. 307,
318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
Under this standard, we examine all the evidence adduced at trial in the light most
favorable to the verdict to determine whether a jury was rationally justified in finding
guilt beyond a reasonable doubt. Temple, 390 S.W.3d at 360; Criff v. State, 438
S.W.3d 134, 136-37 (Tex. App.–Houston [14th Dist.] 2014, pet. ref’d).
Accordingly, we will uphold the jury’s verdict unless a rational fact finder must have
had a reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512,
518 (Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.–
Houston [14th Dist.] 2013, pet. ref’d).

        A person commits the offense of aggravated assault on a public servant if he
(1) intentionally or knowingly threatens a person that the actor knows to be a public
servant with imminent bodily injury while the public servant is lawfully discharging
an official duty and (2) uses or exhibits a deadly weapon during the assault. See
Tex. Penal Code §§ 22.01(a)(2); 22.02(a)(2), (b)(2)(B). In today’s case, appellant
limits his sufficiency challenge to whether the evidence is legally sufficient to show

        1
          Appellant does not challenge his conviction for harassment of a public servant. See Tex.
Penal Code § 22.11(a)(3) (providing that a person commits harassment of a public servant “if, with
the intent to assault, harass, or alarm, the person . . . causes another person the actor knows to be
a public servant to contact the blood . . . of the actor . . . while the public servant is discharging an
official duty”).

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that he used or exhibited a deadly weapon during the commission of this offense.
See id. § 22.02(a)(2). Based on the proposition that a knife is not a deadly weapon
per se, appellant argues that the State failed to present evidence sufficient to establish
the particular knife appellant held as deadly. Specifically, appellant contends that
the deadly weapon element is unsupported by legally sufficient proof because Raper
was not injured, she did not provide “a positive description of the knife,” and the
knife was not introduced into evidence.

         Under the Texas Penal Code, a weapon may be “deadly” either by design or
use. See Tex. Penal Code § 1.07(a)(17); see also Tucker v. State, 274 S.W.3d 688,
691 (Tex. Crim. App. 2008). A kitchen knife is not a deadly weapon by design. See
Tex. Penal Code § 1.07(a)(17)(A) (defining “deadly weapon” to include “a firearm
or anything manifestly designed, made, or adapted for the purpose of inflicting death
or serious bodily injury”); see also McCain v. State, 22 S.W.3d 497, 502-03 (Tex.
Crim. App. 2000) (explaining that kitchen knives “are manifestly designed for other
purposes and consequently, do not qualify as deadly weapons under subsection
(A)”).     However, the Penal Code also defines a “deadly weapon” to include
“anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.” Tex. Penal Code § 1.07(a)(17)(B).

         The State need not show that the use or intended use of the weapon in question
caused death or serious bodily injury; rather, the State must show only that the “use
or intended use is capable of causing death or serious bodily injury.” Tucker, 274
S.W.3d at 691-92; see also McCain, 22 S.W.3d at 503 (“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”). Further, the State need not introduce the weapon into
evidence. Banargent v. State, 228 S.W.3d 393, 399 (Tex. App.—Houston [14th
Dist.] 2007, pet. ref’d). Instead, either expert or lay testimony may suffice to support

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a deadly weapon finding. Id. Finally, in determining whether an object qualifies as
a deadly weapon, a fact finder may “consider words and other threatening actions
by the defendant, including the defendant’s proximity to the victim; the weapon’s
ability to inflict serious bodily injury or death, including the size, shape, and
sharpness of the weapon; and the manner in which the defendant used the weapon.”
Johnson v. State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017); see also Romero v.
State, 331 S.W.3d 82, 83-84 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)
(“Intent to inflict serious bodily injury or death may be shown by evidence of
assertive conduct by an attacker.”).

       Raper testified that appellant was holding a serrated table knife when she first
confronted him.2 According to Raper, appellant stood about ten feet away from her.
Appellant took a step towards Raper and said, “I will fucking kill you.” Raper
testified that she feared for her life.

       Based on this evidence, the jury reasonably could have inferred that the knife
described by Raper was a deadly weapon from appellant’s threatening words, his
proximity to Raper, and his threatening actions in brandishing the knife. See, e.g.,
Johnson, 509 S.W.3d at 324 (“A jury could have also reasonably inferred from
Kimp’s threats, his proximity to Amelia, and the brandishing of the knife, that the
manner in which he used the knife, or intended to use the knife, rendered it capable
of causing serious bodily injury or death.”); Clark v. State, 444 S.W.3d 671, 678
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (jury may determine whether an
appellant used a knife as a deadly weapon by weighing the evidence before it on
case-by-case basis and drawing reasonable inferences from the evidence); Hatchett


       2
           Raper described the serrated knife, with “possibly a wooden handle,” as not being “super
sharp like a steak knife. It looked like more kind of a little bit rounded but not as round as a butter
knife, if that makes sense.”

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v. State, 930 S.W.2d 844, 848 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)
(concluding that evidence sufficiently supported finding that pocket knife was a
deadly weapon even though appellant did not open the blade). Moreover, as noted
above, appellant was recorded stating that his knife was “in the room on the floor,”
and a photograph of a sharp kitchen knife on the floor of a bedroom of the home was
admitted into evidence.

      Appellant relies on Alvarez v. State, 566 S.W.2d 612, 614 (Tex. Crim. App.
[Panel Op.] 1978), to support his legal sufficiency challenge. In Alvarez, a panel of
the Court of Criminal Appeals held that there was insufficient evidence of a deadly
weapon in an aggravated assault case. Id. Alvarez predates the Court of Criminal
Appeals’ adoption of the legal sufficiency standard set forth in Jackson v. Virginia,
443 U.S. 307, 318-19 (1979), and it is unclear what standard of review the panel
employed. See Alvarez, 566 S.W.2d at 614. At any rate, in Alvarez, the record
lacked testimony concerning the size of the knife blade, although there was
testimony that the knife looked sharp and that appellant’s motions with the knife
caused the victim to fear serious bodily injury or death. Id. In today’s case, however,
appellant verbally threatened to kill Raper while brandishing the knife and then
lunged towards her and pushed her in the chest. These facts distinguish the situation
in Alvarez from the present case.

      Viewing this evidence in the light most favorable to the jury’s verdict, we
conclude that a rational fact finder could have found beyond a reasonable doubt that
appellant used or exhibited a deadly weapon when he intentionally or knowingly
threatened Officer Raper with imminent bodily injury. See Tex. Penal Code §
22.02(a)(2), (b)(2)(B), (c).

      Accordingly, we overrule appellant’s sole appellate issue.



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                                   Conclusion

      Having overruled appellant’s issue, we affirm the trial court’s judgment.




                                      /s/       Kevin Jewell
                                                Justice



Panel consists of Justices Donovan, Wise, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




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