             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00325-CR
          No. 02-18-00326-CR
     ___________________________

 ROBERT EVERETT WINSETT, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 372nd District Court
           Tarrant County, Texas
   Trial Court Nos. 1488017D, 1488018D


 Before Sudderth, C.J.; Gabriel and Kerr, JJ.
 Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

         Appellant Robert Everett Winsett appeals from his two convictions for

aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2). He

argues that the evidence was insufficient to support the jury’s deadly-weapon findings

and that he was harmed by the trial court’s failure to include a mistake-of-fact

instruction in one of the jury charges. Because Winsett’s sufficiency arguments go to

credibility issues, which is not a proper inquiry in a sufficiency review, and because he

was not entitled to a mistake-of-fact instruction, we affirm the trial court’s judgments.

                                 I. BACKGROUND

         Amy Miller, her adult daughter Amber, and Amy’s boyfriend Winsett lived

together in Winsett’s home. On February 17, 2017, at around 3:00 a.m., Amber was

awakened by Winsett, who was being loud because he was “very drunk” and angry.

Amber asked Amy to do something to calm Winsett down. According to Amber,

Winsett overheard her and angrily responded, “‘What the [expletive] did she just say,’

something about me telling him what to do in his house and we ‘can get the

[expletive] out.’” Winsett then punched Amber in the face multiple times with his fist.

Amy stepped in front of Amber, and Winsett pushed her and hit her in the face as

well.1 Winsett then briefly left the room and reappeared, holding a knife. Winsett



         Amy stated that the hardness of Winsett’s punch was a ten on a ten-point
         1

scale.


                                            2
said, “You’re going to die. We’re all going to die tonight.”2 Amber and Amy began

screaming, and Amy again stepped between Winsett and Amber. Winsett continued

to threaten them with the knife for several minutes. Winsett got distracted at some

point, and Amber fled the house and called the police.

      Drake spoke with Amber about the assault that same day. Amber recounted

what happened and described the knife Winsett brandished as being a “10- to 12-inch

blade knife with an 8- or 7-inch handle, with a black handle on it.” Amy gave Wilson

her statement and described the knife Winsett brandished as a “large knife.”3 Officers

obtained a search warrant for Winsett’s home to find a butcher knife that was

approximately 12 inches long with a black and metal handle. Officers found a knife in

the kitchen that was approximately 13 inches long from the bottom of the handle to

the tip of the blade. The blade was approximately eight inches long, and the handle

was dark brown with three silver rivets. Officer Joseph Pawlewicz, a certified forensic

death investigator who found the knife in Winsett’s kitchen, opined that it was

capable of causing death or serious bodily injury and would be considered a deadly

weapon. No forensic analysis of the knife was conducted.


      2
        Amber told Officer David Drake that Winsett, “while holding a large knife,”
also said, “I’ll cut you from your [slang for female sexual organ] to your mouth!”
Amy reported this same statement to Detective Kendra Wilson on the day of the
assaults.
      3
        A few days later, Amy gave Wilson a written statement in which she described
the knife “as a butcher knife that [Winsett] retrieved out of the drawer in the kitchen.”


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       Winsett was indicted with the aggravated assaults of Amy and Amber with a

deadly weapon—the knife. The indictments included repeat-offender notices, alleging

that Winsett had been convicted of murder in 1993. Winsett pleaded not guilty to the

indicted charges, and true to the repeat-offender notices. At trial, Amber testified that

the knife found at and seized from Winsett’s home was the same knife he brandished

at her and Amy. Amy described the knife Winsett used as a “butcher knife” and also

identified the knife seized from Winsett’s house as the knife Winsett brandished

during the assaults. A jury found Winsett guilty of both assaults, found that he had

used a deadly weapon during their commission, found that the repeated-offender

notices were true, and assessed his punishment at 22 years’ confinement for each

offense. The trial court entered judgments in accordance with the jury’s verdicts and

ordered the sentences to run concurrently.

     II. SUFFICIENCY TO SUPPORT DEADLY-WEAPON FINDINGS

       Winsett contends in his first point that the evidence was insufficient to support

the jury’s deadly-weapon findings because the knife found in Winsett’s house was five

inches shorter than the knife Amber described to Drake, because Amber’s and Amy’s

“stories of the event differed,” and because no forensic evidence showed that the

knife actually was the knife used in the assaults.

       In our due-process review of the sufficiency of the evidence to support a

conviction, we view all the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of

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the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The trier of fact is the

sole judge of the weight and credibility of the evidence; thus, we may not re-evaluate

those determinations and substitute our judgment for that of the fact-finder. See Tex.

Code Crim. Proc. Ann. art. 38.04; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App.

2016). We must presume that the fact-finder resolved any conflicting inferences in

favor of the verdict and defer to that resolution. Murray v. State, 457 S.W.3d 446, 448–

49 (Tex. Crim. App. 2015); see Blea, 483 S.W.3d at 33. In other words, a fact-finder is

entitled to “believe all, some, or none of the testimony presented by the parties.”

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        Here, the jury heard that both Amber and Amy told police on the day of the

assaults that Winsett brandished a knife while threatening them with death. The knife

recovered by police from Winsett’s kitchen was admitted into evidence and shown to

the jury. Amber’s specific description of the knife differed in certain minor respects

from the knife found in Winsett’s kitchen; but both Amber and Amy testified that the

knife seized from Winsett’s kitchen was the knife he had used to threaten them. We

defer to the jury’s resolution of weight and credibility determinations inherent in its

deadly-weapon findings and conclude that the evidence was sufficient to support

them.    See, e.g., Johnson v. State, 509 S.W.3d 320, 324 (Tex. Crim. App. 2017)

(“[A]lthough Amelia testified that she could not describe the length, size, or shape of

the blade, the jury could have inferred some information about the knife from the

                                           5
video [of the crime] even though the knife was not entered into evidence.”); Black v.

State, No. 2-05-388-CR, 2006 WL 2507325, at *5 (Tex. App.—Fort Worth Aug. 31,

2006, pet. ref’d) (mem. op., not designated for publication) (“Although Officer

Dunn’s testimony regarding Ashley’s description of the knife potentially conflicts with

her description at trial, this conflict does not render the evidence insufficient.”). We

overrule point one.

       III. MISTAKE-OF-FACT INSTRUCTION: ASSAULT ON AMY

      In his second point, Winsett argues that in the jury charge regarding Winsett’s

assault on Amy, the trial court erred by not instructing on mistake of fact after

including an instruction on transferred intent. The State requested an instruction on

transferred intent, which the trial court included in the charge. See Tex. Penal Code

Ann. § 6.04(b). Winsett did not object to the inclusion of transferred intent but

asserted that because it was included, he was “entitled to a mistake of fact

instruction.”   The trial court denied Winsett’s request, and Winsett submitted

proposed language, which was nothing more than a photocopy of the mistake-of-fact

statute. See Tex. Penal Code Ann. § 8.02.

      We agree with the State that by failing to specify for the trial court what

mistake of fact Winsett was relying on to justify the instruction, he failed to preserve

this alleged error for our review.4 See Goodrich v. State, 156 S.W.3d 141, 147–48 (Tex.


      4
       We recognize that even unpreserved jury-charge errors are subject to appellate
review for egregious harm. See Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App.

                                            6
App.—Dallas 2005, pets. ref’d) (citing Williams v. State, 930 S.W.2d 898, 903 (Tex.

App.—Houston [1st Dist.] 1996, pet. ref’d)). See generally Tex. Code Crim. Proc. Ann.

art. 36.14 (requiring objection to omissions from charge to be distinct and specific as

to each ground of objection); Tex. R. App. P. 33.1(a)(1)(A) (requiring specificity of

objection to preserve error for appellate review). In any event, the inclusion of a

transferred-intent instruction does not automatically require the inclusion of mistake

of fact. A defendant “must always establish that, ‘through mistake,’ he ‘formed a

reasonable belief about a matter of fact’ such that ‘his mistaken belief negated the

kind of culpability required for commission of the offense.’”           Rodriguez v. State,

538 S.W.3d 623, 630 (Tex. Crim. App. 2018) (quoting Tex. Penal Code Ann.

§ 8.02(a)). Because there is no evidence that Winsett did not intend to assault Amy,

negating the alleged culpable mental state, he did not make the requisite showing to be

entitled to a mistake-of-fact instruction. See, e.g., Maupin v. State, 930 S.W.2d 267, 268–

69 (Tex. App.—Fort Worth 1996, pet. ref’d). We overrule point two.

                                 IV. CONCLUSION

      Because Winsett’s sufficiency argument rests on evidence that was subject to

weight and credibility determinations made by the jury, which we may not second-


2013). However, the charge itself, the state of the evidence and the record, and
statements made to the jury reveal that Winsett was not egregiously harmed by the
exclusion of mistake of fact, which was not raised by the evidence. See Murray v. State,
No. 10-15-00123-CR, 2016 WL 4573087, at *5–6 (Tex. App.—Waco Aug. 31, 2016,
pet. ref’d) (mem. op., not designated for publication).


                                            7
guess, we conclude that the evidence was sufficient to support the jury’s deadly-

weapon findings. We also conclude that because Winsett’s objection to the absence

of a mistake-of-fact instruction was too general and because of the lack of any

evidence to support a mistake-of-fact instruction, the trial court did not err by denying

Winsett’s requested instruction. Accordingly, we affirm the trial court’s judgments.

See Tex. R. App. P. 43.2(a).

                                                      /s/ Lee Gabriel

                                                      Lee Gabriel
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: May 23, 2019




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