                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-001-CR


ENNIS LEE DENSON                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Ennis Lee Denson appeals his conviction for aggravated assault,

contending in two respective points that the evidence is legally and factually

insufficient to show that he used or exhibited a deadly weapon. See Tex. Penal

Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2009). We affirm.




      1
           See Tex. R. App. P. 47.4.
                                  Background Facts

The State’s version of the facts

      In August 2008, Beckie Conyers drove with her sister-in-law to Carver

Avenue in Fort Worth to see a friend, Larry Cooper, and to ask if he would pay

her to clean his house. 2 Cooper was not home, so Conyers tried to get back

in the car when Denson approached her from the porch next to Cooper’s house.

Denson put crack rocks in Conyers’s shirt pocket and said, “[N]ow give me your

money, bitch.” Conyers said she did not want the drugs, and then Denson

grabbed Conyers, threw a cup of water on her, and pushed her into the street.

      Raymond Oliver, a pastor at a church on Carver Avenue, and Gerald

Stiefer, who lived in the same neighborhood as the church, had just finished

mowing the church’s lawn. As Oliver and Stiefer drove in Oliver’s truck, they

saw Conyers “flying” out of the bushes and landing on her back in the middle

of the street.3 Oliver stopped his truck ten to fifteen yards away from Conyers,

and they saw Denson come behind Conyers and start to kick and stomp her.

Denson continued to tell Conyers to give him her money, and as he pulled out

a foot-long butcher knife from his waist, it appeared to Oliver and Stiefer that



      2
       Conyers testified that she was aware that Cooper sells drugs but that
she was not there to buy drugs.
      3
           Oliver and Stiefer testified consistently at trial.

                                           2
Denson tried to cut off Conyers’s fingers as Conyers tried to defend herself and

get Denson away from her.

      Denson grabbed Conyers by her hair and moved the knife toward her

throat; Oliver and Stiefer thought that Denson was going to cut her throat, so

Oliver walked to the front of his truck and “hollered” at Denson. Denson asked

Oliver, “[Y]ou want some[?]” Oliver replied, “Yes,” and Denson then began to

approach Oliver with the knife, but someone in the neighborhood said, “Hey,

that’s pastor,” and Denson ran away with the knife. Conyers, who was heavily

bleeding from a cut to her finger and was hysterical, jumped into Oliver’s truck

as he called the police. Conyers bled in several parts of Oliver’s truck. 4

      Fort Worth Police Officer J.R. Cox received a dispatch call to Carver

Avenue.    When Officer Cox arrived, other officers were speaking with

witnesses and had already taken Denson into custody. Denson had changed

clothes in the fifteen to twenty minutes between his altercation with Conyers

and his arrest. Officer Cox took Denson to jail.

      Denson spoke with Fort Worth Police Detective Darren Darracq and

initially denied taking part at all in the altercation with Conyers. However,




      4
      The trial court admitted a picture of the inside of Oliver’s truck that
showed Conyers’s blood on the door.

                                       3
Denson later told Detective Darracq that he felt that he could take advantage

of Conyers by getting her money without providing drugs.

Denson’s version of the facts

      Denson testified to the following facts. He knew and disapproved of the

fact that Cooper (who lived in the house next to Denson’s mother’s house) sold

drugs, and he thought that if he could “cause some kind of conflict, [he] might

could get the task force or somebody to come through there and get this

place.” When he saw Conyers knocking on Cooper’s door, he asked her what

she was looking for, and she said that she was looking “for a 20.” Denson

gave Conyers some cut up potatoes that looked like crack rocks. Conyers said,

“[T]his is not no 20,” and she reached into the car and pulled out a butcher

knife. Denson threw water in Conyers’s face, grabbed the knife, and pushed her

into the street.     When Oliver arrived, Denson “panicked” and ran away.

Officers arrested him when he tried to come back to the scene to tell his side

of the story.

Procedural history

      A Tarrant County grand jury indicted Denson with aggravated assault; the

indictment included a habitual offender notice that alleged that Denson had




                                      4
already been convicted of two other felonies. 5 Denson waived his right to a

jury trial and entered a plea of not guilty. After the parties presented evidence

and closing arguments, the trial court found Denson guilty and sentenced him

to twenty-five years’ confinement. Denson filed his notice of this appeal.

                            Evidentiary Sufficiency

      To convict Denson of aggravated assault based on the allegations in the

indictment, the State was required to prove that he intentionally, knowingly, or

recklessly caused bodily injury to Conyers and that he used or exhibited a

deadly weapon while doing so. See Tex. Penal Code Ann. §§ 22.01(a)(1),

22.02(a)(2). In his two related points, Denson argues that the evidence is

legally and factually insufficient to prove that he used or exhibited a deadly

weapon.

                             Standards of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.           Jackson v.



      5
         Although aggravated assault is typically a second-degree felony, the
habitual offender notice allowed the State to use the punishment range of a
first-degree felony. See Tex. Penal Code Ann. §§ 12.42(b), 22.02(b) (Vernon
Supp. 2009).

                                       5
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play

to the responsibility of the trier of fact to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown

v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S.

Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we may

not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007).       We must presume that the factfinder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.




                                         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.

Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at

414–15, 417. 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, although legally sufficient, contradicts the judgment. Watson,

204 S.W.3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we

must give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson

v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d

at 246. Evidence is always factually sufficient when it preponderates in favor

of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d

at 417.

                                       7
Applicable law and analysis

      The sole question in this case is whether the foot-long butcher knife

involved in the fight between Denson and Conyers qualifies as a deadly

weapon. The penal code’s definition of deadly weapon includes “anything that

in the manner of its use or intended use is capable of causing death or serious

bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2009);

Wingfield v. State, 282 S.W.3d 102, 107 (Tex. App.—Fort Worth 2009, pet.

ref’d); Gordon v. State, 173 S.W.3d 870, 873 (Tex. App.—Fort Worth 2005,

no pet.). “Serious bodily injury” is an 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.” Tex. Penal Code

Ann. § 1.07(a)(46). Losing the use of fingers may comprise a serious bodily

injury.   See Allen v. State, 736 S.W.2d 225, 226–27 (Tex. App.—Corpus

Christi 1987, pet. ref’d). Threatening to cut someone’s throat with a knife is

evidence of the intent to inflict serious bodily injury. See Adams v. State, No.

05-05-01682-CR, 2007 WL 39001, at *3 (Tex. App.—Dallas Jan. 8, 2007, no

pet.) (not designated for publication).

      Although a knife is not a deadly weapon per se, “the court of criminal

appeals has held that an object, such as a knife, can be a deadly weapon if the

actor intends to use the object in a way in which it would be capable of causing

                                          8
death or serious bodily injury.” Wingfield, 282 S.W.3d at 107; see McCain v.

State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Thomas v. State, 821

S.W.2d 616, 618–19 (Tex. Crim. App. 1991); Russell v. State, 804 S.W.2d

287, 290 (Tex. App.—Fort Worth 1991, no pet.). In determining the deadliness

of the knife, the factfinder may consider the knife’s size, shape, sharpness; the

manner of its use and intended use; its capacity to produce death or serious

bodily injury; the threats or words used by the defendant; and the proximity of

the assailant. See Wingfield, 282 S.W.3d at 107; Russell, 804 S.W.2d at 290.

      Expert testimony is not required to show the deadliness of a knife.

Russell, 804 S.W.2d at 290 (holding that testimony from an eyewitness that

the defendant held a knife having a foot-long blade at the victim’s back was

sufficient to show that it was a deadly weapon). The presence and severity of

wounds on the victim are factors to be considered in determining whether an

object was used as a deadly weapon.        Gordon, 173 S.W.3d at 873.        But

wounds are not required before a knife can be determined as a deadly weapon,

and the knife does not have to be introduced into evidence before it is found to

be a deadly weapon. See Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim.

App. 1986); Gorham v. State, 985 S.W.2d 694, 697 (Tex. App.—Fort Worth

1999, pet. ref’d) (holding that a knife that had been used in a threat and had




                                       9
been described but not introduced at trial was a deadly weapon when an officer

testified that it was capable of causing death or serious bodily injury).

      In McCain, the defendant had kicked in the door of the victim’s kitchen

and hit her several times with his fist when she saw that he had a long, dark

object in his back pocket that she believed to be a knife. McCain, 22 S.W.3d

at 499. The defendant did not ever touch or refer to the knife in any way. Id.

When the defendant was arrested, the police found a butcher knife with a nine-

inch blade. Id. The court of criminal appeals held that the butcher knife was

a deadly weapon because it was used to threaten deadly force, even if the

defendant had no intention of actually using deadly force. Id. at 503. The

court explained, “[T]he mere carrying of a butcher knife during such a violent

attack as occurred in the present case was legally sufficient for a factfinder to

conclude that the ‘intended use’ for the knife was that it be capable of causing

death or serious bodily injury.” Id.

      Here, Officer Cox testified that based upon his training and experience,

a large knife is capable of causing death or serious bodily injury, particularly

when the knife is held close to someone’s throat. Oliver testified that Denson

could have caused death or serious bodily injury to Conyers when he moved his

knife close to her throat. Stiefer testified that Denson “reached back behind

[Conyers’s] head, grabbed her by the hair of the head, straddled her and started

                                       10
to cut her throat.” Conyers testified that if Oliver had not been present during

her altercation with Denson, she is “pretty sure [Denson] would have stabbed

[her].” The evidence shows that Denson had already pushed Conyers into the

street, kicked her, and stomped her.

      The knife was about a foot long according to Oliver, and it was obviously

sharp enough to cut skin because it cut Conyers’s hand when, as Oliver

testified, Denson tried to cut Conyers’s fingers off, which shows his intent to

cause serious bodily injury. See Allen, 736 S.W.2d at 226–27. The cut was

deep enough that it caused Conyers’s blood to spill all through Oliver’s truck.

Conyers said about Denson’s attack, “I [saw] my life flash before me. I was

scared.”   She also said that her hand was throbbing in pain.        Viewing this

evidence in the light most favorable to the prosecution, we hold that it is legally

sufficient to show that the butcher knife was, in its use and intended use,

capable of causing death or serious bodily injury; thus, the knife qualifies as a

deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17)(B), (46). We overrule

Denson’s first point.

      As to factual sufficiency, although Denson testified that he did not hold

the knife toward Conyers’s throat and Conyers also did not testify about that




                                        11
fact,6 Oliver and Stiefer did testify about Denson’s act in that regard, and we

must defer to the trial court’s implicit resolution of conflicting evidence in a

factual sufficiency review. See Johnson, 23 S.W.3d at 8–9. For the same

reason, we cannot overturn Denson’s conviction based on his other testimony

and his assertion of self-defense during his altercation with Conyers, which

conflicted with the testimony of the other three eyewitnesses. See id. We hold

that the evidence detailed above, viewed in a neutral light, is factually sufficient

to show that the butcher knife that Denson used was a deadly weapon, and we

overrule his second point. See Steadman, 280 S.W.3d at 246–47; Watson,

204 S.W.3d at 414.




      6
        Conyers said in response to a question about whether she grabbed the
knife to try to keep Denson from cutting her, “It happened so fast, I just don’t
remember.”

                                        12
                              Conclusion

     Having overruled both of Denson’s points, we affirm the trial court’s

judgment.




                                        TERRIE LIVINGSTON
                                        JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 10, 2009




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