
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-03-00222-CR


Osiris Barrientos, Appellant

v.

The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 9024217, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Osiris Barrientos appeals from his conviction of aggravated robbery.  Barrientos was
convicted on his plea of not guilty of the offense of aggravated robbery.  See Tex. Pen. Code Ann.
§§ 29.02, 29.03(a) (West 2003).  After the court found appellant guilty, it assessed punishment at
fifteen years' confinement in the Texas Department of Criminal Justice-Institutional Division.  In
one issue on appeal, appellant contends there was legally insufficient evidence to support the finding
that he used a deadly weapon.  We will affirm the trial court's judgment.

BACKGROUND

		Walid Jomaa testified that on November 12, 2001, appellant Barrientos entered the
Quick Stop store on East Cesar Chavez where Jomaa was working alone.  Jomaa recognized
Barrientos because he is a regular customer at the store.  Barrientos attempted to purchase beer with
pennies.  Jomaa would not accept the pennies.  Barrientos retrieved a knife from his jacket, pulled
Jomaa to the wall, and took money from the cash register.
		Jomaa described the knife which was held against his stomach as a kitchen knife, a
"big knife," that cannot be closed.  Jomaa feared for his life.  However, Jomaa did not suffer any cuts
to his clothing or wounds to his body from the knife.  As Barrientos ran out of the store, he told
Jomaa that if he called the police, he would kill him.  Austin Police Department responded to
Jomaa's call.  The police officer testified that Jomaa seemed disturbed and upset from the event that
had occurred.  Barrientos testified on his behalf.  He admitted that he had been a regular customer
in the store but denied that he was involved in any robbery of the store.
		The trial judge found that Barrientos used a deadly weapon and found him guilty of
aggravated robbery.

DISCUSSION

Legal Sufficiency

 In his only issue on appeal, Barrientos argues that the evidence in this case is legally
insufficient to support his conviction of aggravated robbery.  Specifically, he alleges that there is no
evidence to prove that the alleged knife is a deadly weapon.  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 verdict
to determine whether a rational finder of fact could have found the essential elements beyond a
reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d
1, 7 (Tex. Crim. App. 2000); Hayes v. State, 132 S.W.3d 147, 155 (Tex. App.--Austin 2004, no
pet.).
		This standard gives responsibility to the trier of fact to resolve conflicts in testimony,
weigh evidence, and draw reasonable conclusions from the evidence.  See Garcia v. State, 57 S.W.2d
436, 441 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003).  When reviewing legal
sufficiency of the evidence "we are not to sit as a thirteenth juror re-weighing the evidence or
deciding whether we believe the evidence established the element in contention beyond a reasonable
doubt."  Blankenship v. State, 780 S.W.2d 198, 207 (Tex. Crim. App. 1989).  Sufficiency of the
evidence is a question of law, and the appellate court does not determine credibility issues.  Hayes,
132 S.W.3d at 155.  We are not to substitute our judgment for that of fact finder.  See Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  Rather we are to ask ourselves whether the trier
of fact could have found the essential elements of a crime beyond a reasonable doubt.

Knife as a Deadly Weapon

		A person commits an aggravated robbery if he commits robbery as defined in section
29.02 and uses or exhibits a deadly weapon.  See Tex. Pen. Code Ann. § 29.03(a)(2) (West 2003). 
A deadly weapon is defined as "a firearm or anything manifestly designed, made, or adapted for the
purpose of inflicting death or serious bodily injury"; or "anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury."  See id. § 1.07(a)(17) (West Supp.
2004).  Only the second part of the definition is at issue here, that is, whether a knife is a deadly
weapon.  Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991) (knife generally not deadly
weapon per se).  Knives are manifestly designed and made for purposes other than being a deadly
weapon.  See id.  However, a knife can be a deadly weapon if the "manner of its use or intended use
is capable of causing death or serious bodily injury."  See Tex. Pen. Code Ann. § 1.07(a)(17)(B)
(emphasis added); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).
		Barrientos contends that the evidence is legally insufficient in this case because the
knife was never found or introduced into evidence.  He claims that without viewing the knife the
trier of fact cannot conclude that such knife was used as a deadly weapon.  The actual knife need not
be introduced into evidence to determine whether it is a deadly weapon if a witness is able to testify
about it and describe its manner of use.  See Kent v. State, 879 S.W.2d 80, 83 (Tex. App.--Houston
[14th Dist.] 1994, no pet.).  The Texas Court of Criminal Appeals has considered several factors that
may be used in determining whether an object is a deadly weapon:  physical proximity between the
victim and the object, Tisdale v. State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984); the threats or
words used by the defendant, Williams v. State, 575 S.W.2d 30, 32 (Tex. Crim. App. 1979); (1) the size
and shape of the weapon, Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983); the weapon's
ability to inflict death or serious injury, id.; and the manner in which the defendant used the weapon,
id.  No one factor is determinative, and we must look at each case on its own facts.  Bailey v. State,
46 S.W.3d 487, 491 (Tex. App.--Corpus Christi 2001, pet. ref'd).
		The close proximity between Jomaa and Barrientos and the threats that were used
support the finding that the knife in question was used as a deadly weapon.  Jomaa testified that
Barrientos pushed him against the wall and held the knife pressed to his stomach.  Although he
suffered no cuts on his clothing or his body, wounds need not be inflicted before a knife can be
considered deadly.  See Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1979).  Jomaa also
testified that at the time the knife was touching his body he felt scared and feared for his life.  The
victim's testimony that he was in fear of death can serve as a threat that the accused intends to use
the knife in such a manner as to cause serious bodily injury or death.  See Billey, 895 S.W.2d at 423. 
Also, we can look at the words spoken in deciding if the weapon is deadly.  Williams v. State, 575
S.W.2d at 32.  Barrientos stated, "[I]f you call the police, I am going to come back and kill you." 
The physical proximity between Jomaa and Barrientos and the threatening language used could cause
one to reasonably believe that Barrientos intended to use the knife in a manner capable of causing
death or serious bodily injury.  See McCain, 22 S.W.3d at 503 ("[W]e agree with the SPA's
contention that objects used to threaten deadly force are in fact deadly weapons."; statute covers
conduct that threatens deadly force; actor's intent to use object in a manner in which it is capable of
causing death or serious bodily injury is a factor that fact finder can consider in deadly weapon
analysis).
		Jomaa also testified that about the use of the knife, and the knife's size.  Jomaa
described the knife as a long knife similar to a kitchen knife.  He also testified that the knife was a
"big knife," not one which can be folded.  A knife such as the one described has the capability of
causing death or serious injury.  See McCain, 22 S.W.3d at 503 (butcher knife used in aggravated
robbery was deadly weapon because defendant may have "intended" to use it in a manner capable
of causing death or serious bodily injury); Billey v. State 895 S.W.2d at 423 (evidence about size of 
knife and its injurious capability, appellant's proximity to complainant, and implied threat to use
knife against complainant if she did not comply was sufficient).  Based on these factors, the evidence
is sufficient to support the conviction for aggravated robbery.
		The appellant relies on a set of cases in which a knife was not held to be a deadly
weapon.  In Blain v. State, the court found the evidence insufficient to support an aggravated robbery
conviction.  Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983).  However, unlike in the
present case in Blain there was no testimony establishing the size of the blade, the appearance of
sharpness, brandishing motions, or the victim's fear of serious bodily injury or death.  Id.  Likewise,
the court in Alvarez v. State held there was insufficient evidence of a deadly weapon in an aggravated
assault case.  See Alvarez v. State, 566 S.W.2d 612, 614 (Tex. Crim. App. 1978).  In Alvarez, there
was an absence of testimony as to the size of the blade, although there was testimony that the knife
looked sharp and that appellant's motions put the victim in fear of serious bodily injury or death. 
Id.  However, in the present case there is testimony about Jomaa's fear of serious bodily injury or
death, appellant's threats, and the description of the knife.
		Considering the close proximity between Jomaa and Barrientos, the threats Barrientos
made, and Jomaa's description of the knife, the evidence is legally sufficient to find that Barrientos
intended to use the knife in such a manner that it was capable of causing death or serious bodily
injury.  Accordingly, the fact finder could have rationally found the essential elements of the offense
beyond a reasonable doubt.  See Jackson, 443 U.S. at 319.



CONCLUSION

		Because we overrule all of appellant's issues, we affirm the judgment of conviction.


  
 W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed:   July 1, 2004

Do Not Publish
1.   In fact, if a victim testifies that he or she was in fear of serious bodily injury or death, an
actual verbal threat by the accused is not required for the fact finder to conclude that threats were 
made.  Billey v. State, 895 S.W.2d 417, 422 (Tex. App.--Amarillo 1995, pet. ref'd) (citing Tisdale
v. State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984)).
