COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00195-CR

AUGUSTIN CANTU III APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1293877D

----------

MEMORANDUM OPINION1

----------

Appellant Augustin Cantu III challenges the sufficiency of the evidence to 

support his conviction of aggravated assault with a deadly weapon and argues 

that his twenty-five-year sentence is excessive. We affirm. 

The first paragraph of Cantu’s indictment alleged that he had intentionally 

or knowingly caused bodily injury to his wife by striking her with his hand and 

 

1See Tex. R. App. P. 47.4.
2

used or exhibited a deadly weapon (a sword), and the second paragraph alleged 

that he intentionally or knowingly threatened his wife with imminent bodily injury 

while using or exhibiting a deadly weapon (a sword). The trial court heard the 

evidence and granted Cantu’s motion for directed verdict on the first paragraph. 

The trial court denied Cantu’s motion on the second paragraph, found that a 

deadly weapon had been used based on the sword’s capability in the manner of 

its use or intended use of causing death or serious bodily injury, convicted Cantu 

of aggravated assault with a deadly weapon, and sentenced him to twenty-five

years’ confinement.2 See Tex. Penal Code Ann. § 1.07(a)(17)(B) (West 2011 & 

Supp. 2013) (defining “deadly weapon” as anything that in the manner of its use 

or intended use is capable of causing death or serious bodily injury), 

§ 22.01(a)(2) (West 2011 & Supp. 2013) (defining assault as intentionally or 

knowingly threatening another with imminent bodily injury), § 22.02(a)(2) (West 

2011) (defining aggravated assault as committing assault while using or 

exhibiting a deadly weapon).

In his first issue, Cantu argues that the evidence is insufficient to show that 

he intended to assault his wife with the sword and claims that while he “may have 

picked up the sword and made idle threats, he never came close to hurting [her] 

 

2Cantu pleaded true to, and the trial court found true, the repeat offender 

notice in the indictment, which listed a 2001 conviction for sexual assault of a 

child under seventeen years old, resulting in a punishment range of five to ninetynine years’ confinement or life. See Tex. Penal Code Ann. §§ 12.32(a), 12.42(b) 

(West 2011).
3

with the sword.” The record reflects that Cantu and his wife S.C. had a fight that 

lasted several hours. During the fight, Cantu yelled at her, punched her in the 

hip, ripped her shirt, called her “ugly names,” tossed juice on her, and sprayed 

her with water from a spray bottle. At some point, S.C. dialed 911 on her phone, 

and part of the argument was recorded and admitted into evidence, along with 

photographs of her bruises.

With regard to Cantu’s use of the sword, S.C. testified,

And the next thing I know, he’s standing up with [the sword],

and he said[,] “Did you call 9-1-1?” And I said, “Look at my phone.” 

And he couldn’t really look at it because he’s got the sword in his 

hand and he’s got it raised up in the air, and he said, “Did you call 9-

1-1?” And I said, “Yes, I did.” And he says, “Well, I ain’t got nothing 

to lose right now,” and he says, “I’m just going to chop you into little 

pieces and chop your head off.”

S.C. did not recall seeing Cantu remove the sword from its sheath at that time 

but said that his words frightened her. S.C. said that the sword was out of its 

sheath when Cantu asked her again if she had called 911.

S.C. said that Cantu told her to call 911 back and tell them it was a mistake 

and that she did not need them. She called 911 but instead reported that Cantu 

had told her to call, that he had punched her earlier, that she did need them, that 

he was leaving, and that he had put his sword in the closet.

Cantu left before Fort Worth Police Officers Joshua Yates and Johnny 

Kovar arrived. S.C. talked to them, and Officer Kovar retrieved the sword from 

the closet. Officer Yates stated that the sword was a weapon that could cause 

serious injury, and Officer Kovar said that when removed from its sheath, the 
4

sword appeared to be sharp and capable of causing death or serious bodily 

injury. The trial court admitted the sword into evidence.

The trial court admitted Cantu’s recorded police interview into evidence. In 

the recording, Cantu admitted that he ripped S.C.’s shirt, said that he did not pull 

the sword all the way out of its sheath, and said that he realized that he had 

scared S.C. when she started praying upon his displaying the sword but that he 

did not intend to scare her.

In our due-process review of the 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 any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768 

(Tex. Crim. App. 2013). In determining the sufficiency of the evidence to show 

an appellant’s intent, and faced with a record that supports conflicting inferences, 

we “must presume—even if it does not affirmatively appear in the record—that 

the trier of fact resolved any such conflict in favor of the prosecution, and must 

defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 

1991). The trier of fact is the sole judge of the weight and credibility of the 

evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393 

S.W.3d at 768.

Here, the trial court could have found beyond a reasonable doubt that 

Cantu had intentionally or knowingly threatened S.C. with imminent bodily injury 
5

while exhibiting his sword during their argument when he threatened to “chop 

[her] into little pieces and chop [her] head off,” that she perceived this behavior 

as a threat, and that the sword was a deadly weapon. Therefore, we conclude 

that the evidence is sufficient, and we overrule Cantu’s first issue.

In his second issue, Cantu argues that his sentence is cruel, unusual, 

disproportionate, a violation of both the Eighth Amendment to the federal 

constitution and article I, section 13 of the state constitution, and “tantamount of a 

life sentence” because of his age.3 However, Cantu did not object to his 

sentence at pronouncement and, while he filed a motion for new trial raising the 

issue, there is no indication that he presented the motion to the trial court. See

Tex. R. App. P. 21.6; Means v. State, 347 S.W.3d 873, 874 (Tex. App.—Fort 

Worth 2011, no pet.) (stating that appellant must present motion raising 

punishment complaint to preserve error). Therefore, we overrule Cantu’s second 

issue as unpreserved. See Tex. R. App. P. 33.1(a).

Having overruled both of Cantu’s issues, we affirm the trial court’s 

judgment.

 

3Cantu also contends that S.C. said that she still loved him, there was no 

evidence of injury, and “even five years would have been excessive punishment” 

under these facts.
6

PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: July 3, 2014