Opinion filed October 14, 2021

In The

Eleventh Court of Appeals __________

No. 11-19-00344-CR

__________

JACOB ADAM GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 27130A

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

The jury convicted Appellant, Jacob Adam Garcia, of the second-degree 

felony offense of aggravated assault with a deadly weapon: to wit, a knife. 

Following Appellant’s plea of true to an enhancement allegation, the jury found the 

enhancement to be true and assessed punishment at confinement in the Institutional 

Division of the Texas Department of Criminal Justice for a term of forty-five years.

Appellant presents two issues on appeal: (1) that the trial court erred in denying 
2

Appellant’s requested jury instruction on the lesser included offense of deadly 

conduct and (2) that the evidence at trial was legally insufficient to support the 

deadly weapon finding. We affirm.

Background Facts

On September 30, 2016, Roy Martinez Jr., his girlfriend Jamie Dickerson, and 

his niece Stephanie Maldonado were out together at the Western Edge bar in 

Abilene. The three arrived sometime after 9:00 p.m. for drinks and karaoke. Shortly 

after Martinez, Dickerson, and Maldonado arrived at the bar, another group arrived,

consisting of Appellant, Cherokee Miller, and four others. The men in the second

group, including Appellant, were wearing Villista T-shirts. The Villista is known to 

be a support group for the Banditos motorcycle club. Dickerson testified that she 

was sitting at a table near the karaoke booth when she was approached by Miller. 

Words were exchanged between Miller and Dickerson. Michelle Browning, 

a Western Edge bartender, testified that Miller hit Dickerson with a beer bottle and 

threw her into a pool table. Chairs and tables were knocked down and several other 

patrons, including Martinez, attempted to stop the fight and to pull the women apart. 

After Dickerson was able to free herself from Miller’s assault, she saw Martinez 

lying on a table, bleeding, and she heard Maldonado cry out, “Please stop!” 

Maldonado testified that during the chaos of the fight, she, Dickerson, and 

Martinez were separated but that, when she located Martinez, she witnessed

Appellant stab him at least eight times. She screamed at Appellant to leave Martinez 

alone, and when Appellant stopped, she heard Appellant say, “Let’s get the hell out 

of here, let’s get the F out of here.” Maldonado testified that she saw Appellant close 

the folding knife that he was holding and exit the bar. Dickerson also testified that 

she saw Appellant folding up a knife with a silver, six-to-eight-inch tapered blade

and running out the door of the bar following the stabbing. 
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Martinez testified that, as he was attempting to break up the fight between 

Dickerson and Miller, he was attacked by Appellant and another man. According to 

Martinez, Appellant had a knife and used it to stab Martinez several times. The 

injuries to the left side of Martinez’s body resulted from Appellant stabbing Martinez 

with a knife. The other assailant, Danny Machado, stabbed Martinez in the back of 

the head and the back of the neck.

After Miller, Appellant, and the four others left the bar, Martinez was 

discovered to have multiple stab wounds that were bleeding profusely. Despite 

efforts by Dickerson, Maldonado, the owner of the bar, and several others, they were 

not able to control the bleeding. Bartender Taylor Bien testified that over fifty bar 

towels were used to attempt to control the loss of blood. Dickerson testified that 

with the loss of blood, Martinez was having trouble maintaining consciousness.

After Browning’s call to 9-1-1, officers and paramedics quickly arrived on the scene.

Officer Bradley Hambright, Officer Sterling Riddle, and Dr. Kelly Hyde all 

testified that Martinez’s injuries were consistent with knife wounds. Martinez was 

transported by ambulance to Hendrick Medical Center in Abilene. Upon arrival, 

Martinez was examined by Dr. Hyde in the Hendrick emergency Dr. Hyde observed 

more than seven penetrating injuries to Martinez’s neck and left side, with two

“fairly substantial open lacerations” to the left flank and one to the thorax that

required surgery. One laceration exposed his left lower rib, which was partially 

severed in the attack. Dr. Hyde focused his care primarily on the two injuries to the 

left flank because these presented a risk of serious injury to internal organs. Martinez 

underwent surgery. Martinez convalesced for approximately five days in the 

hospital. He was not able to return to work for two months, and at the time of trial, 

Martinez testified that he continued to have trouble lifting objects and using his left

hand. 
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The grand jury indictment alleged that Appellant “intentionally and 

knowingly use[d] a deadly weapon, to-wit: a knife, that in the manner of its use and 

intended use was capable of causing death or serious bodily injury, and the said

[Appellant] did then and there intentionally and knowingly cause bodily injury to 

Roy Martinez, Jr. by stabbing the said Roy Martinez, Jr. with said deadly weapon. 

The jury was instructed on the indicted offense of aggravated assault with a deadly 

weapon. At the conclusion of the guilt/innocence phase, and before the charge was 

read to the jury, Appellant’s trial counsel requested the submission of the lesser 

included offense of deadly conduct. The trial court denied the request, and the jury 

convicted Appellant of aggravated assault with a deadly weapon. 

Appellant raises two issues. First, Appellant challenges the trial court’s 

refusal to instruct the jury on the lesser included offense of deadly conduct. Second, 

Appellant contends that the evidence was insufficient to support a jury finding that 

the knife used by Appellant was a deadly weapon.

I. Issue One: No Evidence Supporting Only the Lesser Included Offense of Deadly

Conduct

Appellant argues in his first issue that the trial court erred when it denied 

Appellant’s request to instruct the jury on the lesser included offense of deadly 

conduct.1 We disagree. 

A. Lesser Included Jury Instruction

1. Standard of Review

First, we must determine, as a matter of law, whether the offense to be 

submitted is a lesser included offense of the charged offense. Safian v. State, 543 

1

We are aware of the decision in Williams v. State, No. PD-0477-19, 2021 WL 2132167 (Tex. Crim. 

App. May 26, 2021), which is currently pending rehearing before the Court of Criminal Appeals. The 

Williams opinion is subject to change, and its application to this case is currently unclear. For the purposes 

of our opinion, we will assume that, regardless of Williams, Appellant preserved Issue No. 1 for appeal.
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S.W.3d 216, 219−20 (Tex. Crim. App. 2018); Rice v. State, 333 S.W.3d 140, 144

(Tex. Crim. App. 2011). This is a question of law that does not depend on the 

evidence presented at trial. Safian, 543 S.W.3d at 220; Rice, 333 S.W.3d at 144.

Because the first prong of the analysis concerns a question of law, we “do not 

consider the evidence that was presented at trial. Instead, we consider only the 

statutory elements of [the offense] as they were modified by the particular

allegations of the indictment. . . . We then compare them with the elements of the 

[requested] lesser offense.” Wortham v. State, 412 S.W.3d 552, 555 (Tex. Crim. 

App. 2013) (alterations in original) (quoting Hall v. State, 225 S.W.3d 524, 536

(Tex. Crim. App. 2007)). An offense is a lesser included offense if “it is established 

by proof of the same or less than all the facts required to establish the commission 

of the offense charged.” TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006); 

Wortham, 412 S.W.3d at 554−55.

Second, we determine whether there is some evidence in the record that would 

permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the 

lesser included offense. Safian, 543 S.W.3d at 219; Rice, 333 S.W.3d at 145. We 

review all of the evidence presented at trial. Rousseau v. State, 855 S.W.2d 666, 673 

(Tex. Crim. App. 1993); Ybarra v. State, 621 S.W.3d 371, 379 (Tex. App.—Eastland 

2021, pet. ref’d). This requirement is satisfied if there is “(1) evidence that directly 

refutes or negates other evidence establishing the greater offense and raises the lesser 

-included offense or (2) evidence that is susceptible to different interpretations, one 

of which refutes or negates an element of the greater offense and raises the lesser 

offense.” Ritcherson v. State, 568 S.W.3d 667, 671 (Tex. Crim. App. 2018). If there 

is more than a scintilla of evidence raising the lesser offense or negating or rebutting 

an element of the greater offense, the defendant is entitled to a jury instruction on 

the lesser included offense. Id. This evidence cannot be speculative; it must consist 
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of affirmative evidence that raises both the lesser included offense and rebuts or 

negates an element of the greater offense. Ybarra, 621 S.W.3d at 379 (citing 

Wortham, 412 S.W.3d at 558).

2. Analysis

a. Step One: Is it a lesser included offense?

As relevant here, a person commits the offense of assault if he “intentionally 

[or] knowingly . . . causes bodily injury to another.” TEX. PENAL CODE ANN.

§ 22.01(a)(1) (West Supp. 2020).

2 An assault is elevated to aggravated assault if, 

while committing the assault, the person “uses or exhibits a deadly weapon.” Id.

§ 22.02(a)(2) (West 2019). A person commits the offense of deadly conduct if “he 

recklessly engages in conduct that places another in imminent danger of serious 

bodily injury.” Id. § 22.05(a). When the State establishes the higher culpable mental 

state of intentionally or knowingly, it necessarily establishes the lower mental state 

of recklessness. Guzman v. State, 188 S.W.3d 185, 190 (Tex. Crim. App. 2006); 

Bell v. State, 693 S.W.2d 434, 438−39 (Tex. Crim. App. 1985). There is no dispute

in this case that deadly conduct is a lesser included offense of aggravated assault. 

See Guzman, 188 S.W.3d at 190–91; Whitfield v. State, 408 S.W.3d 709, 718 (Tex. 

App.—Eastland 2013, pet. ref’d). Therefore, the first step in the analysis is satisfied,

and we must now determine whether the record presents some evidence that would 

support a rational finding that the defendant is guilty only of the lesser included 

offense. 

2

We note that, although Section 22.01(a)(1) provides that an assault of this nature may also be 

committed “recklessly,” the indictment in this case does not include the culpable mental state of 

“recklessly.”
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b. Step Two: Is there affirmative evidence supporting a lesser 

included offense?

There must be affirmative evidence in the record that either “(1) . . . directly 

refutes or negates other evidence establishing the greater offense and raises the 

lesser-included offense or (2) . . . is susceptible to different interpretations, one of 

which refutes or negates an element of the greater offense and raises the lesser 

offense.” Ritcherson, 568 S.W.3d at 671. The defendant will be entitled to a jury 

instruction on a lesser included offense if there is more than a scintilla of evidence 

to this effect. Id.

Here, there is no affirmative evidence supporting an instruction on a lesser 

included offense. Therefore, the second step of the Safian analysis has not been met. 

See Safian, 543 S.W.3d at 217. Appellant argues that common sense and life 

experiences are enough to show more than a scintilla of affirmative evidence in this 

case. We disagree. Both are, at best, subjective and fall far short of affirmative 

evidence. The only evidence regarding Appellant’s mental state was presented by 

the State and included witnesses who saw Appellant holding a knife and stabbing 

Martinez. Martinez did not have a weapon and was not involved in the original 

altercation at the bar. The evidence indicates that Appellant approached Martinez 

and stabbed him multiple times before fleeing. There was no evidence or alibi 

negating the evidence presented by the State that Appellant acted knowingly and 

intentionally. 

Absent any affirmative evidence that Appellant merely acted recklessly, 

instead of intentionally or knowingly, a rational factfinder could not have found 

Appellant guilty only of deadly conduct. See Whitfield, 408 S.W.3d at 718–19.

Therefore, the trial court did not err in refusing to submit a charge on the lesser 

included offense of deadly conduct. We overrule Appellant’s first issue. 
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II. Issue Two - Sufficient Evidence that the Knife was Used as a Deadly Weapon

In his second issue, Appellant contends that the evidence presented in this 

case was insufficient to establish that the knife he used in the assault against 

Martinez was a deadly weapon. We disagree. 

A. Standard of Review

We review a challenge to the sufficiency of the evidence, regardless of 

whether it is framed as a legal or factual sufficiency challenge, under the standard of 

review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288−89

(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all

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 charged offense

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d 

729, 732 (Tex. Crim. App. 2018); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. 

App. 2010). 

Viewing the evidence in the light most favorable to the verdict requires that 

we consider all the evidence admitted at trial, including improperly admitted 

evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. 

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As such, we defer to the 

factfinder’s credibility and weight determinations because the factfinder is the sole 

judge of the witnesses’ credibility and the weight their testimony is to be afforded. 

Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is 

deferential and accounts for the factfinder’s duty to resolve conflicts in the 

testimony, to weigh the evidence, and to draw reasonable inferences from the facts. 

Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778.

We may not reevaluate the weight and credibility of the evidence to substitute our 
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judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. 

Crim. App. 1999). Therefore, if the record supports conflicting inferences, we 

presume that the factfinder resolved the conflicts in favor of the verdict, and we defer 

to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516, 

525−26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.

B. Analysis

The indictment charged Appellant with aggravated assault, alleging that he 

intentionally and knowingly caused bodily injury to another, by stabbing with a 

deadly weapon, to-wit: a knife. The Penal Code defines “deadly weapon” as 

“anything that in the manner of its use or intended use is capable of causing death or 

serious bodily injury.” PENAL § 1.07(a)(17)(B) (West 2021). The Penal Code’s 

“plain language” does not require that the actor actually intend to cause death or 

serious bodily injury. McCain, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). The 

critical inquiry is “whether the object ‘could be a deadly weapon under the facts of 

the case’” based upon the defendant’s manner of use or intended use. Flores v. State, 

620 S.W.3d 154, 158−59 (Tex. Crim. App. 2021) (quoting McCain, 22 S.W.3d at 

502 (first emphasis added)). Although the Court of Criminal Appeals has outlined 

that “a knife is not a deadly weapon per se, it has been held that it can qualify as 

such through the manner of its use, its size and shape[,] and its capacity to produce 

death or serious bodily injury.” Denham v. State, 574 S.W.2d 129, 130 (Tex. Crim. 

App. 1978). 

Appellant contends that there is insufficient evidence to support the jury’s 

determination that the knife could have caused death or serious bodily injury. He 

asserts that only two witnesses, Dickerson and Martinez, claim to have seen the knife 

used by Appellant; that the knife was only described as “silver”; that the injuries 

sustained by Martinez did not create a substantial risk of death; and that the officers 
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who testified did not specifically state that the knife used by Appellant was a deadly 

weapon. 

Appellant’s argument understates the testimony that was presented to the 

jury. Officer Hambright and Officer Riddle testified that a knife wound could cause

death or serious bodily injury and that Martinez’s injuries were consistent with knife 

wounds. Three witnesses (Dickerson, Maldonado, and Martinez himself) identified

Appellant as the one holding a knife during (and immediately after) the altercation 

with Martinez. Further, Dickerson described the knife as having a silver, six-toeight-inch tapered blade. See Tucker v. State, 274 S.W.3d 688, 692 (Tex. Crim. App. 

2008) (jury could infer from injuries of victim and police testimony that a two-inch 

folding knife or a key was a deadly weapon because it was capable of causing serious 

bodily injury).

Dr. Hyde, a board-certified general surgeon, testified regarding the knife 

wounds received by Martinez. Based on the stab wounds to the left side of 

Martinez’s abdomen, Dr. Hyde was concerned that Martinez’s internal organs and 

structures—including the lungs, heart, diaphragm, spleen, kidneys, large intestine, 

and ureter—had been penetrated. He stated that “there is certainly a potential for 

life-threatening injuries to vital structures from here.” Thus, it was necessary to do 

an exploratory laparotomy, surgically opening Martinez’s abdomen to explore for 

possible penetration of internal organs and structures. Dr. Hyde testified that, in his 

experience, a knife can be a deadly weapon and that, in his opinion, the injuries 

sustained by Martinez on September 30, 2016, would create a substantial risk of 

death. 

In this case, Appellant used a knife with a six-to-eight-inch blade during the

bar fight and he stabbed Martinez with that knife multiple times, causing several 

puncture wounds—some of which required invasive surgery— a fractured rib, and 
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a threat of injury to Martinez’s vital organs. Here, there is sufficient evidence that 

the knife, in the manner of its use or intended use and its demonstrated capacity to 

produce serious bodily injury, qualified as a deadly weapon. Accordingly, viewed 

in the light most favorable to the verdict, we hold that a rational trier of fact could 

have concluded that sufficient evidence demonstrated that the knife, as used by 

Appellant to stab Martinez, was a deadly weapon. We overrule Appellant’s second 

issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

W. BRUCE WILLIAMS

JUSTICE

October 14, 2021

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.