Opinion filed July 20 , 2017



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 5

- 00 119

- CR

__________ MARK PALOMO , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 161st District Court

Ector County, Texas Trial Court Cause No. B

- 41,526

M E M O R A N D U M O P I N I O N
The jury found Mark Palomo guilty of the offense of aggravated assault with a deadly weapon

. 1 The jury found two enhancement paragrap hs for prior felony
convictions 2 to be “true” and assessed his punishment at confinement for twenty

five years

. The trial court sentenced Appellant accordingly

. On appeal, Appellant

assert s two sufficiency

- of

- the

- evidence is sues , and he assert s in a third issue that the

1 See T EX

. P ENAL C ODE A NN

. § 22.02(a) (West 2011 ).

2 See id. § 12.42(d) (West Supp. 2016 ).2

trial court erred when it instructed the jury that a knife was a deadly weapon. We
affirm.
I. The Charged Offense The grand jury indicted Appellant for the offense of aggravated assault with a deadly weapon and alleged two enhancement paragraphs. The indictment charged that Appellant “ intentionally , knowingly, or recklessly cause d bodily injury to Luke Brown by cutti ng him with a knife, and [Appellant] did then and there use or exhibit a deadly weapon, to

- wit: a knife, during t he commission of said assault.” A person commits the offense of aggravated assault with a deadly weapon if he uses or exhibits a deadly weapon during the commission of an assault. P ENAL § 22.02(a)(2). Appella nt pleaded not guilty and proceeded to trial.
II. Evidence at Trial Luke Anthony Brown , the victim, testified that h e met Debbie Jenkins through Facebook and that he had a son about the same age as Jenkin s ’s daughter. H e thought Jenkins was un married , and he was with her on the night of March 23, 2012

. Jenkins and the victim had planned to go to a motel that evening for a romantic
liaison

. The victim later learned that Jenkins had been in a relationship with Appellant for several years, but she told the victim that she had asked Appellant to
leave her house.
A. The fight between the victim and Appellant.
When t he victim went with Jenkins to her house, Appellant came out of the house “on a mission.” Appellant came to the driver’s side door of the victim’s Mustang , hit his fist against the window
, and kicked the driver ’s side door. The victim said that he got out of his Mustang to defend his property. As he exited his

car , he and Appellant “faced off
, ” and Appellant swung at him ; a fight then started

o n the sidewalk in Jenkins’s front yard

.3

During the fight , the victim felt warm water on his neck ; he later realized the

water was blood. Appellant then picked up a board
, swung it at the victim
, and fled

. Afterward, the victim felt a cut on his throat
, but he testified that he did not see Appellant hold ing a knife

. At the scene, the victim received emergency medical care
and was a lso treated at the hospital and released

. After the incident, Appellant apologized to the victim

. B. Eyew itnesses to the fight.
Keishawn Pardue , who was Jenkin s ’s son

- in

- law , testified that he saw the entire fight

. Pardue testified that the fight began when Appellant struck the victim’s

car window three times and then swung at the victim after the victim exited his car

. Appellant also swung a wooden board at the victim, and the victim had a lot of blood on his jersey

. Pardue never saw a knife.
C

. G

. , the fourteen

- year

- old daughter of Jenkins, testified that she was walking
back from 7

- Eleven when she heard screams close to her house and that, when she got there
, Appellant and the victim were in an argument. Her brother, Brian Jenkins
, tried to s top the fight between Appellant and the victim

. C.G. testified that she saw Appellant move his hand to the victim’s throat and slit his throat with a sharp object.
The wound on the victim was about an inch from his jugular vein
, and it bled “a lot.”
C.G

. recounted that Appellant had picked up a wooden board and swung it at the
victim and that she called the police. At the time of the incident, C.G. lived with her
mother and her brother at the house on North Hancock

. She said that Appellant also lived at the house, acted as a father figure to her
, and was engage d to her mother.
C. Police Response and Investigation Sergio Spencer , a detective with the Odessa Police Department, testified that he responded to a disturbance on North Hancock. When he arrived, he observed that
the victim had been cut on the left side of his throat and had “lots of blood across his4

chest.” Officer Spencer noted that it looked like, prior to his arrival, the victim’s throat had been bleeding profusely. Officer Spe ncer explained that a sharp

- edged
instrument , like a knife or a box cutter, the latter of which is a razor blade, had cut
th e victim’s throat

. Officer Spencer explained that a knife and box cutter are the
same and that both are capable of causing seriou s bodily injury or death. In his experience, Officer Spencer thought that the deadly weapon would not have been
left at the scene.
Marshal Williams , a n officer with the Odessa Police Department, testified
that
, when he arrived on scene
, he observed that th e victim had severe lacerations on
his chest and throat
, that the wounds bled profusely
, and that the victim had been cut or stabbed with something. Officer Williams indicated that the location of the throat wound was very close to the jugular vein, which
, if cut, could have caused death.
H e also testified that any sharp object could be used as a deadly weapon and could cause serious bodily injury. Officer Williams indicated that he thought there was a difference between a knife and a sharp object.
III. Anal ysis Appellant advances three issues on appeal

. W e will initially address his first
and second issue s on sufficiency of the evidence. We will then address his third
issue on alleged jury charge error.
A. Issue s One and Two : The State adduced sufficient evidence for a rational jury to find Appellant guilty beyond a reasonable doubt of the offense of aggravated assault with a deadly weapon

. In his first and second issue s , Appellant contends that there was insufficient
evidence to show that he cut the vict im with a knife or that he used or exhibited a knife during the offense

. The standard of review for sufficiency of the evidence is whether any rational jury could have found Appellant guilty beyond a reasonable
doubt. Jackson v. Virginia , 443 U.S. 307, 318 (1979); Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim.5

App. 2007). We review the evidence in the light most favorable to the verdict and determine whether any rational trier o f fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). T he trier of fact may believe all, some, or none of a witness’s testimony beca use the factfinder is the sole judge of the weight and credibility of the witnesses. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State
, 258 S.W.3d 244, 248 (Tex. App.

— Eastland 2008, pet. ref ’ d). We defer to the trier of fact ’ s resolution of any conflicting inferences raised in the evidence and presume that the trier of fact resolved such conflicts in
favor of the verdict. Jackson , 443 U.S. at 326; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Shortly after Jenk ins went into her house to get some belongings, Appellant came out of Jenkins’ s house “on a mission,” hit the car window of the victim, and
kicked the car door. When the victim got out of his car, Appellant swung at him, and a fight ensued. At some point , Appellant cut the victim’s throat. Other witnesses, Pardue and C. G

. , never saw a knife, but C. G

. acknowledged that Appellant must have had a sharp object in his hand. C.G. noted that the victim was cut within an inch of his jugular vein

. Officers Spencer and Williams observed that the victim had been cut on his throat and chest, had bled profusely, and was treated at the hospital

. B oth officers said the sharp instrument
, as used, was a deadly

weapon

. Officer Spencer said that a knife or box cutter or razor blade were the same thing, while Officer Williams thought there was a difference between a knife and a sharp object. 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). We note that the evidence is conflicting

. T h e jury chose to believe
Officer Spencer and the victim. Moreover, any variance between the manner and6

means as alleged in the indictment

— a knife

— and the manner and means proved by
the evidence at trial involve d a non

- statutory allegation that d id not affect the allowable unit of prosecution ; thus, the variance did not render the evi dence legally insufficient to support Appellant’s conviction. See Johnson v. State , 364 S.W.3d 292, 293 (Tex. Crim. App. 2012)

. After a review of the record, we hold that a rational jury could have found beyond a reasonable doubt that Appellant committed the offense of aggravated assault with a deadly weapon

. We overrule Appellant’s first and second issues on appeal.
B. Issue T

hree : Although trial court provided an incorrect instruction in the jury charge, Appellant did not object at trial and has not suffered egregious harm. Appellant asserts that the trial court erred when it instructed the jury that a
knife is a deadly weapon

. Texas law provides that a trial court shall “deliver to the jury

. . . a written charge distinctly setting forth the law applicable to the case [and] not expressing any opinion as to the weight of the evidence.” T EX

. C ODE C RIM

. P ROC

. A NN

. art. 36.14 (West 2007 ). A trial court is required to instruct the jury on statutory defenses, affirmative defenses, and justifications w hen they are raised by
the evidence. Walters v. State
, 247 S.W.3d 204, 208

– 09 (Tex. Crim. App. 2007). We note that Appellant did n ot o bject to the jury charge at trial. We review an alleged jury charge error that the defendant did not object to at trial in two steps: w e determine “(1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal.” Ngo v. State , 175 S.W.3d 738, 744 (Tex.
Crim. App. 2005). We will not reverse for charge error “unless the record shows

‘ egregious harm ’ to the defendant.” Id.
1. The trial court provided an erroneous instruction because a knife is not a deadly weapon per se. The court charged the jury as follows: “‘deadly weapon’ means anything that in the manner of its use or intended use is capable of causing death or serious bodily7

injury. ” The charge also provide d , “‘Knife’ means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cuttin g or stabbing a person
with the instrument. You are instructed that a knife is a deadly weapon.” Appellant
asserts that this is an in correct statement of the law because a knife is not a deadly weapon per se. The State concedes that a knife is not a dea dly weapon per se. We

agree. The t rial court’s statement in the charge that “ a knife is a deadly weapon”

was an incorrect statement of the law because a knife is not a deadly weapon per se.
Hawkins v. State
, 605 S.W.2d 586 , 588 (Tex. Crim. App. [Panel O p.] 1980). The Court of Criminal Appeals has outlined that
, “ [ a ] lthough 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)

. T o prove aggravated assault with a deadly weapon, the State was required to prove that the
knife Appellant exhibited was a deadly weapon because, in the manner of its use or intended use, it was capable of causing serious bodily injury or death. See P E N AL § 1.07(a)(17)(B) ; Jackson v. State
, 913 S.W.2d 695 , 697 (Tex. App.

— Texarkana 1995, no pet.). Thus, it was error to charge the jury that a knife is a deadly weapon because that was an issue for the jury to decide

. See Alvarado v. State , 317 S.W.3d 749, 752

– 53 (Tex. App.

— Beaumont 2010, pet. ref ’ d)

. 2. The error in the charge did not cause Appellant to suffer egregious harm. Because Appellant did not object to the charge at trial, we now determine if Appellant suffered egregious harm because of this err or. See N go , 175 S.W.3d at
744 ; Martinez v. State , No. 11

- 13

- 00080

- CR, 2015 WL 1322315, at *5 (Tex. App.

— Eastland Mar. 20, 2015, pet. ref’d) (mem. op., not designated for publication) ; Alvarado , 317 S.W.3d at 750

. “Errors that result in egregious harm are those that affect ‘the very basis of the case,’ ‘deprive the defendant of a valuable right,’ or8

‘vita lly affect a defensive theory.’ ” Ngo , 175 S.W.3d at 750 (quoting Hutch v. State
, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)); see Almanza v. State , 686 S.W.2d 157, 172 (Tex. Crim. App. 1985)

. “[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, th e argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza
, 686 S.W.2d at 171. When we analyze whether an error caused egregious harm, we review (a) the charge itself; (b ) the state of the evidence, including contested issues and the weight of the probative evidence ; (c) arguments of counsel; and (d ) any other relevant information revealed by the record of the trial as a whole. Ngo , 175 S.W.3d at 750 n.48; see Hutch
, 922 S.W.2d at 171 ; Martinez , 2015 WL 1322315, at *5

.

a. The entire jury charge

. As we have previously explained, the trial court included an incorrect
instruction that “ a knife is a deadly weapon. ” As we review the entire charge, we have to review whether that error caused Appellant egregio us harm. The trial court
instructed the jury as follows in the jury chard:

Now if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of March, 2012, in Ector County, Texas, the Defendant, MARK PALOMO, did then and there in tentionally, knowingly or recklessly cause bodily injury to Luke Brown by cutting him with a knife, and the defendant did then and there use or exhibit a deadly weapon, to

- wit: a knife, during the commission of said assault, as alleged in the Indictment, t hen you will find the Defendant guilty of Aggravated Assault as charged in the indictment.
The charge explained:

A person commits aggravated assault if the person commi ts an assault . . . and uses or exhibits a deadly weapon during the commission of the assault. ‘Bodily injury’ means physical pain, illness, or any impairment or physical condition.9 ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted lo ss or impairment of the function of any bodily member or organ. The jury charge also provided that “‘ [k]n ife ’ means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.” For deadly weapon, the charge provided, “ ‘ Deadly weapon ’ means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. ” T he charge provided that the State had the burden to prove beyond a reasonable doubt that Appellant intentionally, knowingly
, or recklessly cause d bodily injury to the victim by cutting him with a knife and that Appellant exhibited or used a de adly weapon during the assault. The charge was erroneous because it removed from the jury’s consideration
wh ether the knife, as it was used, was a deadly weapon. However, the pho tograph
of the victim’s neck and the testimony of Officer s Spencer and Williams , as well as the testimony of Pardue, C. G

. , and the victim , indicated that the cut on the victim’s
neck , which bled profusely, was serious. Officer Spencer explained that a kni fe and
a box cutter were the same thing and that the instrument, as used in this case, was a deadly weapon that could cause serious bodily inj u ry or death

. In addition, C. G

. saw App ellant cut the victim’s throat within an inch of the jugular vein. The ju ry could
infer that the sharp

- edged object was a bladed instrument, a knife
, and that Appellant
held the instrument in his hand when he cut the victim’s throat and chest. See
Tucker , 274 S.W.3d at 692

. M oreover, the jur y could infer that the way Appellant exhibited, wielded
, and used the bladed instrument , a knife, and caused the injuries

to the victim, made the knife a deadly weapon. See i d. As the charge instructed, the jurors are the “ exclusive judges of the facts proved, of the credibility o f the witnesses, and the weight to be given their testimony, but the law you must be governed by you shall receive in these written instructions. ” Although the trial10

court’s error certainly weighs in Appellant’s favor, it is not enough by itself to show

e gregious harm. See Alvarado , 317 S.W.3d at 754.

b. T he probative evidence was more than sufficient to prove that Appellant committed the charged offense

. As we previously explained, t he State adduced evidence that Appellant cut the victim’s throat during a fight in Jenkins’ s front yard. When asked if Appellant had something in his hand “sharp enough” to cut the victi m’s throat, C.G. responded,
“Yeah .” Officers Spencer and Williams noted that the victim’s throat had been cut by a sharp object, a bladed ins trument, which
, as used, was a deadly weapon.

c. The arguments of counsel weighed both for and against harm

. In closing arguments, the State argued that the jury could infer from the evidence presented that Appellant used a deadly weapon when he cut or slit the victim’s throat and that the deadly weapon used by Appellant was capable of caus ing
serious bodily injury or death. Later, the State repeated that the k nife was a deadly weapon, an argument that focused on the trial court’s erroneous instruction. The
State also argued that Appellant had no justification for his assault of the victim even
if the victim had a relationship with Appellant’s girlfriend or wife

. D efense counsel
, during its closing argument
, pointed out that Appellant had been in a long

- term relationship with Jenkins, was a father figure to the children, and had become upset when he learned of Jenkins’ s involvement with the victim.
Defense counsel assert ed that Appellant had simply defend ed himself. In addition, defense counsel argued t hat
, without a knife presented as evidence or a witness that saw a knife in Appellant’s hand, the State ha d failed to prove its case beyond a
reasonable doubt.
Defense c ounsel asserted that the jury had to first decide, beyond a reasonable doubt, that wha t cut the victim was a knife and that Appellant used the knife as a deadly weapon. However, defense counsel also stated in closing argument
,11

“Anything close to your jugular, anything that can cut you and is right there, it is a deadly weapon. That part y ou know we don ’ t know what it was, but we know it was a deadly weapon. ” Defense counsel further argued that:

So they proved the deadly weapon part and they are required to, but the Judge is telling you they have to prove that whatever cut him was a deadly weapon. That is one thing they have to prove. But the Judge says they also have to prove that it was a knife. Those are your two separate things they have to prove. Thus, defense counsel conceded that the bladed instrument was a deadly weapon,
but he claimed that the State failed to produce any evidence that the bladed
instrument was a knife. Defense counsel’s concession militates against a conclusion
in favor of egregious harm.

d. Other relevant information did not show egregious harm. During voir dire, t he State questioned potential jurors about their ability to
review the evidence and convict the defendant if the evidence prove d beyond a reasonable doubt every element of the offense

. The State explained the difference between assault and aggravat ed assault. The prosecutor also discussed that a firearm was a deadly weapon per se but that a car or pillowcase, depending on how it was used, could be a deadly weapon. The prosecutor explained the concept of self

defense and the presumption of innocenc e and asked the venire members whether they could consider the full range of punishment if the defendant was co nvicted of the charged offense. During the defense’s voir dire, Appellant’s trial counsel asked a bout people’s biases, their knowledge of the vic tim, the ir understandin g of the presumption of
innocence , and the level of proof required for conviction

. Defense counsel inquired
about whether they understood of the el ements the charged offense . Defense counsel
also asked if they wo uld improperly convict Appellant because of his prior convictions, and if they could consid er the full range of punishment. He requested12

that the jury only use Appellant ’s prior convictions to evaluate his credibility
, not his character

. Defense counsel also spoke abou t community standards, the presumption of innocence, and who had the burden of proof in the case. In opening, the State outlined for the jury that the evidence would prove that Appellant got into an altercation with the victim and then cut the v ictim with a bladed
instrument

— a knife

— that cause d a wound in the victim’s neck that bled profusely and required medical attention. Defense counsel explained in its opening statement
that Appellant acted reasonably
, that no witness ever saw a knife in Appellant’s
h and
, and that the S tate could not produce a knife.

e. The record as a whole did not show that Appellant suffered egregious harm be c ause of the charge error. To summarize, the jury charge error weighed in Appellant’s favor, as did the part of the State’s closi ng argument that emphasized that error
, as well as certain statements in opening . However, the probative evidence, the balance of opening and closing statements, and the voir dire questions weigh ed against egregious harm

. Appellant’s case is more like Alvarado
, where the court held that there was no

eg r e g ious harm where witnesses saw the defendant h o ld a “large kitchen knife ” to
his wife’s head and threaten to kill her. 317 S.W.3d at 750

– 5 2

. Although the knife in Appellant’s case was never located, C. G

. saw Appellant cut the victim and acknowledged that Appellant must have used a sharp object to do so

. Officers Spencer and Williams agreed that
, as used
, the sharp object, which was

a bladed instrument as defined in the jury charge, was capable of causi ng serious bodily injury or death. See Alvarado , 317 S.W.3d at 751

– 52; see also
Tucker , 274 S.W.3d at 692

. In addition, defense counsel argued in closing that

“ [ a ] nything close to your jugular, anything that can cut you and is right there, it is a deadly weapon

. . . . So they proved the deadly weapon part and they are required

to

. ”13

Defense counsel also argued in closing
, “ B ut the Judge says they also have to prove that i t was a knife. ” Officer Spencer indicated that the sharp object used by Appellant was likely a knife or box cutter, which are the “same thing.” Appellant
claims that the court’s error and the failure of anyon e to say they saw a knife rises

to the level o f egregious error. We disagree

. C. G

. explained that Appellant must have used a sharp object when he cut the victim’s throat

. In addition,
Officer Spencer explained that a sharp object like a knife or box cutter
, which are bladed instruments as defined in the jury charge, was , as used by Appellant, capable of causing serious bodily injury or death. After a review of the record, we hold that the erroneous instruction to the jury that a knife is a deadly weapon did not affect the very basis of the case, deprive Appellant of a valuable right, or vita lly affect a defensive theory

. See N go , 175
S.W.3d at 750; see also Almanza
, 686 S.W.2d at 172. We conclude that the error did not cause Appellant egregious harm. W e over rule Appellant’s third issue on appeal

. I V. This Court’s Ruling
We affirm the j udgment of the trial court.

MIKE WILLSON
JUSTICE

July 20 , 2017 Do not publish. See T EX

. R. A PP

. P. 47.2(b)

. Panel consists of: Wright, C.J., Willson, J., and Bailey, J.