Affirmed and Opinion Filed March 26, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-12-01497-CR MICHAEL D'ANGELO MASON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-80929-10 

### MEMORANDUM OPINION Before Justices Bridges, O'Neill, and Brown Opinion by Justice Bridges Michael D’Angelo Mason appeals his aggravat ed sexual assault conv iction. The trial judge found appellant guilty and sentenced him to si xty-two years’ confinement. In two issues, appellant challenges the sufficiency of the evid ence to show the knife us ed in the commission of the offense was a deadly weapon and argues the tr ial court erred in allowing evidence of an extraneous offense. We affi rm the trial court’s judgment. In February 2010, the sixty-three-year-old female complainant lived next door to appellant and his family. Complainant and appe llant would “say hello” when they saw each other, and complainant drove appellant to the ma ll “from time to time.” At the beginning of February, appellant and his family moved out of the house next door. On the night of February 12, appellant rang complainant’s doorbell. Complainant looked out side and recognized–2– appellant. She opened the fron t door and spoke with appellant through a lock ed storm door. Appellant said his car had stalled and he needed to call for help. Complainant gave appellant her cell phone through the door, and appellant called so meone but couldn’t get through. Appellant said his aunt was going to call him back, and he handed the cell phone back through the door. Complainant kept the screen door locked, but appellant “started kind of dancing around” and said he had to go to the bathr oom. There was “a lot of snow on the ground,” and appellant was not “dressed for the snow weather.” Complainan t let appellant inside, and he went into a bathroom. When he came out, complainant was si tting at the kitchen tabl e sewing and “waiting for this phone to ring again.” Appellant expre ssed an interest in the sewing machine and got behind complainant during the conversation. From behind complainant, appellant grabbed her around the neck, started choking her, and made he r stand up. Appellant “had a knife” and said, “just do what I say or I’ll cut you, I’ll cut you.” Complainant could only see the tip of the knife, but “it was pointy, and it kind of came and around and over.” Complainant had no doubt she was looking at a deadly weapon. Complainant tried to “talk [appellant] down” a nd thought she could hurt him and get away, but she did not know if she could “get away from this knife.” At that point, complainant thought appellant “was just going to rob.” Appellant re peatedly stated, “I’ll cut you, do as I say,” and he pushed complainant into another room. Compla inant continued to ask appellant “Why are you doing this?” and told him her purse was on the counter and he could just “take it and go.” Appellant continued pushing compla inant back into the master bedroom. Complainant was “still trying to stay calm” and still thi nking how she could “get away from this knife.” In the bedroom, complainant said she did not have any money, a nd appellant said, “No, take off your pants.” Complainant pulled her pants down because she c ould not get away from appellant and “that knife [was] always there.” Appe llant pushed complainant to the be d, took his pants off, and said–3– he was “going to lick [complainant] down there. ” Appellant licked comp lainant’s sexual organ and then penetrated her vagina w ith his penis. The knife was “al ways present” during the sexual assault, and appellant was “always threatening.” Appellant finished and told complainant, “Don’t do anything stupid or I’ ll cut you.” Appellant told co mplainant not to move, took a portable phone from the nightstand and complain ant’s cell phone from the floor, and left the room. Appellant closed the bedroom door when he left. Complainant got up and locked the door before activating a silent alarm. After th e police arrived and it was apparent appellant was out of the house, complainant noticed her purse was gone. In her purse, among other things, were credit cards, her drive r’s license, and a Coach wristl et. An ambulance arrived and transported complainant to the hospital wher e she was given a sexual-assault exam. Plano police detective Beth Chaney was assi gned to complainant’s case and interviewed complainant at the hospital a nd later conducted a walk-thr ough at complainant’s house. Complainant gave Chaney appellant’s name, a nd detectives obtained an arrest warrant and arrested him. Appellant was indi cted for aggravated sexual assau lt. Specifically, the indictment alleged appellant committed sexual assault and “e xhibited a deadly weapon, to wit: a knife, that in the manner of its use and intended use wa s capable of causing d eath and serious bodily injury.” At a subsequent trial before the court, th e State introduced into evidence, among other things, a video showing appellant using one of co mplainant’s credit cards to make a purchase at Wal-Mart. Appellant objected to the video on the ground that it demonstrated an extraneous offense and was therefore inadmissible. The trial judge overruled appellant’s objection but stated the video was admitted “for the sole or limited purpose of identity as it relate[d] to the indictment before the Court and for no other ex traneous reasons.” At the conclusion of the guilt/innocence phase of trial, the judge found a ppellant guilty of aggrav ated sexual assault.–4– At the punishment phase of trial, the defens e offered evidence of appellant’s troubled childhood and the fact that appell ant was receiving social security disability insurance payments for a mental health condition. The State pr esented two additional witnesses who testified appellant had raped them at knifepoint. Additi onally, the State introduced evidence of prior convictions for assault with bodily injury, theft of more than $50 but less than $500, and failure to identify a fugitive from justice. At the conclusion of the punishment phase, the judge sentenced appellant to sixty-two years’ confinement, and this appeal followed. In his first issue, appellant argues the evid ence did not establish the knife described by complainant was a deadly weapon. The only relevant standard wh en reviewing the sufficiency of the evidence is the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See Adames
v. State , 353 S.W.3d 854, 859 (Tex. Crim . App. 2011). In determining the sufficiency of the evidence, an appellate court is to consider all 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 crime beyond a reasonable doubt. Jackson , 443 U.S. at 319. We de fer to the factfinder’s determinations of the witnesses’ credibility and the weight to be given their testimony, because the factfinder is the sole judge of those matters. Id. at 326. A person commits aggravated sexual assault if, in the course of committing sexual assault, he uses or exhibits a deadly weapon in the course of the same criminal episode. T EX

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. §22.021(a)(2)(A)(iv). A “deadly weapon” is anything that in the manner of its use or intended use is capable of causi ng death or serious bodily injury.” Id. at §1.07(a)(17)(B). Here, appellant contends the evidence is insuffi cient to show he used or intended to use a knife in a manner capable of cau sing serious bodily injury and, th erefore, he did not use or exhibit a deadly weapon as required to uphol d his conviction. We disagree.–5– In Patterson v. State , 769 S.W.2d 938, 941 (Tex. Crim. A pp. 1989), the court of criminal appeals discussed the difference between the mean ing of “exhibit” and th e meaning of “use” in article 42.12 of the Texas Code of Criminal Proce dure. The Court explained that the word “use” typically means that a deadly weapon must be “u tilized, employed, or applied in order to achieve its intended result: ‘the commissi on of a felony offense or during immediate flight therefrom.’”
Id. “Use” extends to “ any employment of a deadly weapon, even its simple possession, if such possession facilitates th e associated felony.” Id. The word “exhibit,” however, requires a weapon to be “consciously shown, displayed, or pr esented to be viewed during ‘the commission of a felony offense or during im mediate flight therefrom.’” Id. Thus, as the Patterson Court explained, one can “use” a weapon without exhibiting it, but not vice versa. Id. The definition of deadly weapon does not requir e that the actor actu ally intend death or serious bodily injury. See §1.07(a)(17)(B). Rather, 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. Bailey v. State , 38 S.W.3d 157, 158-59 (Tex. Crim. App. 2001). The determining factor is that the deadly weapon was “used” in facilitating the underlying crime. McCain v. State , 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (butcher knife partially exposed dur ing robbery enabled factfinder rationally to conclude kn ife was exhibited during criminal transaction or, at least, its presence was used to instill apprehension in complainant, reducing likelihood of resistance during encounter); Adame v. State , 69 S.W.3d 581, 582 (Tex. Cr im. App. 2002) (BB gun used during robbery; jury may rationall y infer BB gun is loaded, and “it is reasonable to infer that defendants use loaded guns to faci litate convenience store robberies). Appellant argues the only descri ption of the knife was provi ded by complainant, and the trial judge therefore erred in making a deadly weapon finding. The record shows appellant grabbed complainant from behind and threatened to “cut” her. Complainant saw the knife and–6– testified “it was pointy, and it kind of came and around and ove r.” Complainant thought she might get away from appellant, but she did not know if she could “get away from this knife.” During the course of the incident, appellant continued to threaten to “cut” complainant. The knife was “always present” during the sexual assa ult, and appellant was “always threatening.” Thus, appellant exhibited the knife during the se xual assault, repeatedly threatened to “cut” complainant with it, and the knife clearly facilitated the sexual assault. See Adame , 69 S.W.3d at 582; McCain , 22 S.W.3d at 503. Viewing the evidence in the light most favorable to the verdict, we conclude it was rational for the judge, as factfinder, to make the deadly weapon finding. See Jackson , 443 U.S. at 319; Patterson , 769 S.W.2d at 941; see also Revell v. State , 885 S.W.2d 206, 210 (Tex. App.

− Dallas 1994, pet. ref’d) (appellant ’s use of physical force in pl acing knife against victim’s throat shows assertive conduct sufficient to support the deadly weapon finding). We overrule appellant’s first issue. In his second issue, appellant argues the trial court erred in allowing the State to introduce the video of him using co mplainant’s credit card at Wa lmart. Specifically, appellant complains the video is evidence of an extran eous offense offered for the limited purpose of proving identity when appellant never made an issue of his identity. Appellant argues the video could have influenced the judge to his detriment. We review the trial court’s decision to ad mit or exclude evidence under an abuse of discretion standard. Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court does not abuse its discreti on unless its determination lies outside the zone of reasonable disagreement. Id. Although we no longer presume that a trial court will disregard inadmissible evidence, when a case is tried to a trial court rather than to a jury, the danger that the trier of fact will consider extraneous offense evidence for anything other than the limited purpose for which–7– it is admitted is reduced, and the likelihood that the extraneous evidence will unfairly prejudice the defendant is diminished. Corley v. State , 987 S.W.2d 615, 621 (Tex. App.

− Austin 1999, no pet.). In this case, the judge stated the vide o was admitted “for the sole or limited purpose of identity as it relate[d] to the indictment before the Court and for no othe r extraneous reasons.” Thus, the record shows the judge clearly did not c onsider the video at issue as evidence of an extraneous offense. Accordingly, the trial j udge did not abuse her discretion in admitting the video. We overrule appellant’s second issue. We affirm the trial court’s judgment.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MICHAEL D'ANGELO MASON, Appellant

No. 05-12-01497-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court, Collin County, Texas Trial Court Cause No. 199-80929-10. Opinion delivered by Justice Bridges. Justices O'Neill and Brown participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered March 26, 2014

/David L. Bridges/ DAVID L. BRIDGES JUSTICE