Affirmed and Memorandum Opinion filed August 28, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00628-CR

DEIGO ROJAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1391739

MEMORANDUM OPINION

Today we decide whether a pocket knife used in a robbery can be a deadly 

weapon. Appellant Deigo Rojas challenges the legal sufficiency of the evidence to 

support his aggravated robbery conviction, contending that the pocket knife was 

not a deadly weapon. We affirm.
Background

A woman was exiting a small bathroom stall at a flea market when she was 

approached by appellant. Appellant held a pocket knife to her shirt underneath her 

ribcage and told her to throw herself to the ground. Instead, she backed into the 

stall where appellant held her captive for an undetermined amount of time. 

Appellant asked the woman if she had any money. After she responded “no,” 

appellant searched her with one hand while continuously pressing the knife to her 

chest. He found three cell phones and took them. He then told her that he was 

going to sexually abuse her and pulled down his pants with his free hand.1

The woman heard the doorknob on the bathroom door turning and screamed. 

A woman outside of the bathroom then yelled, “somebody sexually abusing the 

lady,” and appellant pulled up his pants. One of the flea market vendors heard the 

commotion, opened the bathroom door and the bathroom stall door, and heard the 

woman crying. The vendor could see that appellant had a knife and the woman

“was terrified.” The vendor stood between the bathroom and the bathroom stall 

doors, holding them open in a way that he could shield himself from appellant. 

The vendor called 911 and, for approximately 20 minutes, talked to appellant to try 

to calm him down while waiting for the police to arrive. At some point during the 

confrontation, the vendor talked appellant into letting the woman go. She was able 

to move to another part of the bathroom, and the vendor kept appellant cornered 

until officers arrived.

When officers arrived, appellant dropped the knife and surrendered a cell 

phone that he admitted belonged to the woman. Appellant volunteered the 

1 Appellant denies making this statement and pulling down his pants. It is unclear 

whether the woman told the police about it. However, as set forth below, appellant volunteered 

to an officer that he did not rape her because she refused to take off her pants.

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following statements to one of the officers, “I didn’t rape her because she wouldn’t 

let me take her pants off” and “I didn’t steal her cell phones. I held them [so] she 

wouldn’t call the police.”2

 

Appellant was charged with aggravated robbery. The jury found him guilty 

and assessed punishment at seven years’ imprisonment.

Discussion

In his sole issue, appellant challenges the legal sufficiency of the evidence to 

support the jury’s finding that the pocket knife appellant wielded was a deadly 

weapon. When reviewing the legal sufficiency of the evidence, we examine all of 

the evidence in the light most favorable to the verdict and determine whether a 

rational trier of fact could have found the essential elements of the offense beyond 

a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 

2013). Although we consider everything presented at trial, we do not reevaluate 

the weight and credibility of the evidence or substitute our judgment for that of the 

factfinder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 

Because the jury is the sole judge of the credibility of witnesses and of the weight 

given to their testimony, any conflicts or inconsistencies in the evidence are 

resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.

Crim. App. 2000). Our review includes both properly and improperly admitted 

evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We 

also consider both direct and circumstantial evidence, as well as any reasonable 

inferences that may be drawn from the evidence. Id.

2 One of the cell phones was in appellant’s pocket. The other two phones were not in 

appellant’s possession when the officer arrived, but the complainant testified that appellant had 

taken them all from her, which is consistent with appellant’s statement. Apparently, at least one 

of the phones had been on the bathroom floor and the vendor picked it up.

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As relevant here, a person commits the felony offense of aggravated robbery 

when, in the course of committing theft, with intent to obtain and maintain control 

of property, he knowingly or intentionally threatens or places another in fear of 

imminent bodily injury or death and uses or exhibits a deadly weapon in the 

commission of the offense. Tex. Penal Code §§ 29.02(a)(2), 29.03(a)(2). A deadly 

weapon is anything that in the manner of its use or intended use is capable of 

causing death or serious bodily injury. Id. § 1.07(a)(17)(B). Appellant disputes 

only the jury’s finding that the pocket knife was a deadly weapon.

Although a knife is not considered a deadly weapon per se, the State can 

prove a knife is a deadly weapon by presenting evidence such as the manner of its 

use or intended use and its capacity to cause death or serious bodily injury. Blain 

v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). Relevant factors also 

include threats made by the accused, the physical proximity of the accused and the 

victim, and the complainant’s fear of serious bodily injury or death. Victor v. 

State, 874 S.W.2d 748, 751 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). 

The woman testified that appellant pressed the knife against her shirt under 

her ribcage during the entire confrontation. Appellant was very close to her in the 

small bathroom stall. She said she was afraid because “appellant was threatening 

[her] with a knife”; although appellant did not put pressure on the knife; she was 

afraid he would; she was “[v]ery scared” and “crying”; and she asked him “not to 

hurt her.” She thought he might kill or harm her with the knife. 

When the vendor went into the bathroom, he heard the woman crying “like 

she[ was] terrified” and saw her shaking, and saw that appellant “had a knife in his 

hand” pointed at the woman. The vendor testified that appellant kept the knife in 

his hand with the blade out during the entire confrontation and appellant “was 

threatening [the woman] because he had the knife pointed at her,” which action

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was “very aggressive.” From the vendor’s perspective, the knife was “inches” 

from the woman. According to the vendor, appellant eventually stopped pointing 

the knife at the woman; only then was the vendor able to get the woman away from 

appellant. 

The officer testified that appellant dropped a “folding knife” when 

confronted. The State introduced the knife at trial, and the officer demonstrated 

how to hold the knife with the blade open. Thus, the jury was able to examine the 

knife and make its own determination as to the knife’s capacity to cause injury or 

death.

Viewing all of the evidence in the light most favorable to the verdict, we 

conclude the jury could have found beyond a reasonable doubt that the pocket 

knife appellant wielded during the commission of the offense was a deadly 

weapon. See, e.g., Barnett v. State, 344 S.W.3d 6, 12-13 (Tex. App.—Texarkana 

2011, pet. ref’d) (holding evidence was legally sufficient to support deadly weapon 

finding when defendant placed pocket knife blade on complainant’s lower ribs and 

threatened to “cut” and “kill” him); Pleasant v. State, 755 S.W.2d 204, 207 (Tex. 

App.—Houston [14th Dist.] 1988, no pet.) (concluding evidence was legally 

sufficient to support deadly weapon finding when “the blade of the pocket knife 

was two or three inches long and had a point on it”).

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Christopher, Jamison, and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).

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