

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
In the
Matter of L.F.L.T.B., a juvenile
No. 11-03-00408-CV B
Appeal from Taylor County
 
This is an appeal from a
judgment adjudicating a juvenile of delinquent conduct.  The jury found that L.F.L.T.B. engaged in the
aggravated assault of G.J.A.  The trial
court committed L.F.L.T.B. to the Texas Youth Commission until his 21st
birthday.  We affirm.
In a sole issue on appeal,
L.F.L.T.B. contends that the evidence is insufficient to support the jury=s finding that he engaged in delinquent
conduct.  The State alleged that
L.F.L.T.B. exhibited or used a deadly weapon Ato-wit:
a large pocket knife, which in its manner of use or intended use [was]
capable of causing death or serious bodily injury@
when he intentionally, knowingly, or recklessly caused bodily injury to
G.J.A.  (Emphasis added)  In his brief, L.F.L.T.B. argues that, by
specifically alleging the weapon was a large pocket knife, the State undertook
a higher burden and was required to prove the type of knife used.  L.F.L.T.B. bases his argument on his
contention that there is no evidence the knife was a pocket knife and on G.J.A.=s testimony that the knife looked like
a letter opener, that Ait
couldn=t
have been a folding knife,@
and that Ait could
not have been a pocket knife.@[1]




The adjudication of a
juvenile as a delinquent is based on the criminal standard of proof: beyond a
reasonable doubt.  TEX. FAM. CODE ANN. ' 54.03(f) (Vernon Supp. 2004).  The appellate court, therefore, applies the
same standards applicable to challenges to the sufficiency of the evidence in
criminal cases.  In the Matter of
Z.L.B., 115 S.W.3d 188 (Tex.App. - Dallas 2003,
no pet=n); In
the Matter of E.R.L., 109 S.W.3d 123 (Tex.App. -
El Paso 2003, no pet=n);
In the Matter of J.D.P., 85 S.W.3d 420 (Tex.App.
- Fort Worth 2002, no pet=n).  In order to determine if the evidence is
legally sufficient, we must review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.  Jackson v. Virginia, 443
U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the evidence is
factually sufficient, we must review all of the evidence in a neutral light and
determine whether the evidence supporting guilt is so weak as to render the
conviction clearly wrong and manifestly unjust or whether the evidence
supporting guilt, although adequate when taken alone, is so greatly outweighed
by the overwhelming weight of contrary evidence as to render the conviction
clearly wrong and manifestly unjust.  Vasquez
v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66
S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11
(Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126
(Tex.Cr.App.1996).  The jury, as the
finder of fact, is the sole judge of the weight and credibility of the
witnesses=
testimony.  TEX. CODE CRIM. PRO. ANN.
arts. 36.13 & 38.04 (Vernon 1979 & 1981).
In essence, L.F.L.T.B. is
arguing that the evidence is insufficient because there is a variance between
the type of deadly weapon the State alleged was used (large pocket knife) and
the type of deadly weapon the State proved was used (a knife that by its manner
of use caused serious bodily injury). The Court of Criminal Appeals held in Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App.1997),
that the Asufficiency
of the evidence should be measured by the elements of the offense as defined by
the hypothetically correct jury charge for the case.@  The court broadened the ramifications of Malik by holding that, for the purposes of a
sufficiency of the evidence review, Aa
hypothetically correct charge need not incorporate allegations that give rise
to immaterial variances.@  Gollihar
v. State, 46 S.W.3d 243, 256 (Tex.Cr.App.2001).  Therefore, the question before this court is
whether the variance in this case is 
material or immaterial.  Gollihar v. State, supra; Wilson v. State, 113 S.W.3d
785 (Tex.App. - Tyler 2003, no pet=n).
G.J.A. testified that, during
his fist fight with L.F.L.T.B., he saw L.F.L.T.B. reach into his pocket and
pull out a knife.  L.F.L.T.B. then
stabbed G.J.A. in his left side.  G.J.A.
testified that he saw the knife as L.F.L.T.B. pulled it out of his side.  The blade was chrome.  The knife Alooked
like a letter opener, kind of,@
and it was A[a]bout
six and a half inches@
in length.  G.J.A. stated that the knife
was Askinny@ and that it was Aa little more than an inch@ wide. 
There was blood on the knife, and a piece of G.J.A.=s intestine was Ahanging
out.@




G.J.A. testified that he did not have a gun, a
knife, or any other type of weapon during the fight.  When asked if he could have accidently fallen on the knife, G.J.A. responded:  AI
know I didn=t
fall on the knife.@  G.J.A. repeatedly testified that he saw the
knife in L.F.L.T.B.=s right
hand.
G.J.A. was hospitalized for six days as a result
of the knife wound.  He required surgery
to repair and reconnect his intestines.
During L.F.L.T.B.=s
cross-examination of G.J.A., the following occurred:
Q:  But let=s get back to the letter opener.  Tell me what it looked like.  What color was it?
 
A:  I didn=t
see the handle part because his hand was on it, but I was looking at the blade
and it was pretty chrome.
 
Q:  Did you
get the impression it was just a straight - -
 
A:  No.  It was a straight -- it was straight.
 
Q: 
Okay.  Is it the kind that folds
up?
 
A:  I don=t know, but I just seen it -- I just
seen it out and he could -- it couldn=t have been a folding knife because
[L.F.L.T.B.]=s not
that fast.
 
Q:  What do
you mean Ahe=s not that fast@?
 
A:  He=s not that fast.
 
Q:  So it couldn=t
have been a B
 
A:  Because
my eye ain=t
-- my eye is not slow.  I seen him just
pull it out quick.  He can=t open it and stab me, so it was
already open in the class.
 
Q: 
Okay.  So it could not have been a
pocket knife then, right?
 
A:  No.
 
Q:  Are you
sure?
 
A:  I=m sure.
 
Q:  You are
positive it was not a pocket knife?
 
A:  Well, it
was pretty long.
 
On redirect, G.J.A. stated that the knife came
from L.F.L.T.B.=s pocket,
that it was Amedium-sized,@ that the blade was Apretty big,@
and that the blade was Astraight@ and Asharp
on both sides.@  G.J.A. testified that the knife was open when
he saw it and that he could not tell if the knife would fold up.
J.A. testified that he saw the fight.  After the stabbing, J.A. saw L.F.L.T.B.
walking with a knife in his hand.  J.A. described
the knife as Alike one
of them little switch blade things.@  The blade was about four to six inches long
and was silver or chrome.
L.F.L.T.B. testified that he did not have a knife
and that he did not stab G.J.A. 
L.F.L.T.B. stated that he had Ano
idea@ how
G.J.A. received a knife wound.  Although
he did not see a knife on G.J.A., L.F.L.T.B. thought that maybe G.J.A. fell on
his own knife.
TEX. PENAL CODE ANN. '
22.02 (Vernon Supp. 2004 ) provides that a person commits the offense of
aggravated assault if he uses or exhibits a deadly weapon during the commission
of an assault.  A deadly weapon is
defined as Aanything
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(17)(B) (Vernon Supp. 2004).  A knife
is not a deadly weapon per se, and it is the manner of or intended manner of
use or exhibition of a knife capable of causing death or serious bodily injury
that makes it a deadly weapon pursuant to Sections 1.07(17)(B) and 22.02.  McCain v. State, 22 S.W.3d 497
(Tex.Cr.App.2000).  It is the use or the
exhibition of a deadly weapon, not the identification or the name of a
particular type of knife, that is an element of aggravated assault.  Section 22.02.
Therefore, the State=s
addition of the words Alarge@ and Apocket@ to its allegation that a Aknife, which in its manner of use or
intended use [was] capable of causing death or serious bodily injury@ were immaterial allegations.  The material allegation was that the knife, Ain its manner of use or intended use
[was] capable of causing death or serious bodily injury.@  Gollihar
v. State, supra; Wilson v. State, supra.




The record clearly establishes that the knife used
in the offense was a deadly weapon. 
G.J.A. testified that, when he watched the knife being pulled out of his
side, he saw a portion of his intestines protruding.  The medical testimony established that the
injury was serious, that it could have caused death, that a portion of G.J.A.=s colon had to be removed, and that the
remaining sections had to be reattached. 
There is sufficient testimony to establish the material allegation that
the Aknife,
which in its manner of use or intended use [was] capable of causing death or
serious bodily injury.@
The sole evidence is both legally and factually sufficient to support the jury=s verdict.  The sole issue is overruled.
The judgment of the trial court is affirmed.
 
W. G. ARNOT, III
CHIEF JUSTICE
 
May 13, 2004
Panel
consists of:  Arnot,
C.J., and
Wright,
J., and McCall, J.




[1]L.F.L.T.B. argues that there is Ano evidence@ to
support the verdict (a legal sufficiency argument) and requests a remand
(factual sufficiency relief).  In the
interest of justice, we will treat the issue as challenging both the legal and
factual sufficiency.  TEX.R.APP.P.
38.1(e) & 38.9.


