Opinion filed October 14 , 20 2 1



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 9

- 00 3 44

- C R

__________
JACOB ADAM GARCIA , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 42 nd 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 Institution al
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 denying2 Appellant’s requested jury instruction on the lesser included offense of deadly conduct and (2) that th e evidence at trial was legally insufficient to support the deadly weapon finding. We affirm. Background Facts On September 30, 201 6, Roy Martinez Jr. , his girlfriend Jamie Dickerson, and
his niece Stephanie Mald onado were out together at the Western Edge bar in
Abilene. The three arrived sometime after 9:00 p

. m

. for drinks and karaoke. Shortly
afte r Martinez, Dickerson, and Maldonado arrived at the bar , another group arrived , consisting of Appellant, Cherokee Miller, and four others. Th e 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, attempt ed 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.” Maldo nado 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

.3 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. B artend er Taylor B ien 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 Cente r in Abilene

. Upon arrival,
Martinez was examin ed 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 requir ed 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
lef t 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.4 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 Martine z, Jr. with said deadly weapon.
T he 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 E vidence S up porting O nly th e L esser I ncluded O ffense 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 I ssue No. 1 for appeal

.5 S.W.3d 216, 219

− 20 (Tex. Crim. App. 2018) ; Rice v. State , 333 S.W. 3 d 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. 3 d 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 [reques ted] 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 les s than all the facts required to establish the commission of the offense charged.” T EX

. C ODE C RIM

. P ROC

. A NN . 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. 3 d at 145. W e review all of the evidence presented at trial. Rou sseau 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 n egates 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 consist6 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
Wor tham , 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 .” T EX

. P ENAL C ODE A NN

. § 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

. § 22.0 2 (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 knowingl y, 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 ). T herefore, 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

comm itted “recklessly,” the indictment in this case does not include the culpable mental state of “recklessly.”7 b. Step Two: Is the re affirmative evidence supporting a lesser included offense ?
There must b e 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 offen se i f 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 offe nse

. T herefore , 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 experience s are enough t o show more than a scintilla of affirmative evidence in this

case . We disagree. B oth 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
Marti nez. Martinez did not have a weapon and was not involved in the original
altercation at the bar. Th e evidence indicates that Appellant approached Martinez and stabbed him multiple times before fleeing. There was no evidence or ali bi 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 re fusing to submit a charge on the lesser included offense of deadly conduct. We overrule Appellant’s first issue.8 II. Issue Two

- Sufficient Evidence that the Knife was Used as a Deadly Weapon In his second issue, Appellant con t ends that the evidence presented in this
case was insufficient to establish that the knife he used in the assaul t 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.3 d 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 beyon d 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 an d 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 re asonable 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 our9 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; Merrit t 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.” P ENAL § 1.07(a)(1 7)(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 in quiry 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 quali f y 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 officers10 who testified did not specifically state that the kni fe used by Appellant was a deadly

weapon. Appellant’s argument understa tes 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

- to

eight

- 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 wea pon because it was capable of causing serious bodily injury). Dr. Hyde, a board

- certified general surgeon, testified regarding the knife
wounds received b y 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 po tential for
life

- threatening injuries to vital structures from here

. ” Thus, it was necessary to do an exploratory laparotomy , surgical ly opening Martinez’s abdomen to explore for possible penetration of internal organs and structures. Dr. Hyde testified that, i n 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 us ed a knife with a six

- to

- eight

- inch blade during the bar fight and he stab bed Martinez with that knife multiple times, causing several puncture wounds

— some of which requir ed invasive surgery

— a fractured rib, and11 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, v iewed in the light most favorable to the verdict, we hold th at 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 , 20 2 1 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Bailey , C.J., Trotter , J

. , a nd Williams , J.