                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00004-CR

JAMES BRIAN PETRIE,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                          From the 52nd District Court
                              Coryell County, Texas
                          Trial Court No. FAM-11-21096


                           MEMORANDUM OPINION


      James Brian Petrie was convicted of aggravated assault and sentenced to six

years in prison. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). Because the evidence

was sufficient to support the conviction, we affirm the trial court’s judgment.

BACKGROUND

      Officers had been called to a location in Gatesville for a disturbance and were

given a description of Petrie’s vehicle, a Suburban. When Officer Strouth approached

the Suburban, he saw Petrie in the driver’s seat, leaned back. He then saw Petrie take a
folded pocket knife out of his pocket. Petrie started to exit his Suburban quickly and,

just as quickly, Strouth backed away, with his weapon drawn and aimed at Petrie.

Petrie continued toward Strouth for a few steps and stopped. Petrie still had the knife

in his hand and refused Strouth’s orders to drop it. Strouth did not know when the

knife was opened but eventually was able to visually confirm that it had been opened

and was open when it was recovered from the driver’s seat of Petrie’s Suburban.

Deputy Smallridge, with the Coryell County Sheriff’s Department, arrived in time to see

Petrie exit the Suburban and Strouth back away. By the time Smallridge approached

Petrie and Strouth, Petrie had the knife open. Officer Williams then arrived as Strouth

and Smallridge were pointing their weapons at Petrie, ordering him to drop the knife.

As Williams approached, he saw that Petrie had an open knife in his hand. Williams,

too, ordered Petrie to drop the knife. As Petrie had done with the other officers, he

responded with expletives. Petrie finally threw the open knife into the driver’s seat of

his Suburban and put his hands on the top of the Suburban.

SUFFICIENCY OF THE EVIDENCE

        In one issue, Petrie argues that the State failed to prove that the knife was a

deadly weapon; in essence, the evidence was insufficient to prove the deadly weapon

element of the offense.

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:


Petrie v. State                                                                   Page 2
               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly 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. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose 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).


Petrie v. State                                                                             Page 3
Deadly Weapon

        A person commits the offense of aggravated assault if he uses or exhibits a

deadly weapon during the commission of an assault.           TEX. PENAL CODE ANN. §

22.02(a)(2) (West 2011). What constitutes a "deadly weapon" is determined by § 1.07 of

the Texas Penal Code. Robertson v. State, 163 S.W.3d 730, 732 (Tex. Crim. App. 2005). In

the context of this appeal, a deadly weapon includes anything that in the manner of its

use or intended use is capable of causing death or serious bodily injury. Id. §

1.07(a)(17)(B) (West Supp. 2013) (emphasis added).      “Serious bodily injury" means

bodily 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. Id. § 1.07(a)(46).

        Whether any particular knife is a deadly weapon by design or usage or not a

deadly weapon at all depends on the evidence. Thomas v. State, 821 S.W.2d 616, 620

(Tex. Crim. App. 1991). The plain language of the statute does not require the actor to

actually intend death or serious bodily injury; 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.    McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).        The

placement of the word "capable" in the provision enables the statute to cover conduct

that threatens deadly force, even if the actor has no intention of actually using deadly

force. Id.


Petrie v. State                                                                    Page 4
        Expert or lay testimony may be sufficient to support a deadly-weapon finding,

and police officers can be expert witnesses with respect to whether a deadly weapon

was used. Tucker v. State, 274 S.W.3d 688, 692 (Tex. Crim. App. 2008). Furthermore, the

blade need not actually have caused any injuries for it to be considered a deadly

weapon. Id. at 691.

Argument and Evidence

        Petrie contends the evidence shows that the knife was not open when it was

used, Petrie was not very close to the officers, and the officers could not say whether the

knife was capable of causing serious bodily injury. Thus, his argument continues, the

evidence was insufficient to support the deadly weapon element.

        The knife was introduced into evidence. Closed, the knife measures four inches

long. There was evidence that, opened, the full length of the knife measured seven and

a half inches long. Additionally, there was evidence that soon after Petrie exited his

vehicle, the knife was open. Further, the evidence showed that Strouth backed away

from Petrie quickly and that, simultaneously, Petrie advanced toward Strouth. Strouth

testified that he was placed in fear when Petrie took the knife out of his pocket, opened

the door, and advanced toward Strouth. He knew that knives could be opened quickly.

Further, Strouth and Williams testified that the knife was capable of causing serious

bodily injury.




Petrie v. State                                                                      Page 5
CONCLUSION

        In considering all of the evidence in the light most favorable to the verdict, we

determine that, based on that evidence and reasonable inferences therefrom, a rational

jury could have found the deadly weapon element beyond a reasonable doubt. Petrie’s

sole issue is overruled, and the trial court’s judgment is affirmed.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 13, 2014
Do not publish
[CR25]




Petrie v. State                                                                    Page 6
