MEMORANDUM OPINION

No. 04-09-00759-CR

Esam Asad AZOUZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2009-CR-1227

Honorable Mary D. Roman, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

Sitting: Rebecca Simmons, Justice

Steven C. Hilbig, Justice

Marialyn Barnard, Justice

Delivered and Filed: December 15, 2010

AFFIRMED

Esam Asad Azouz appeals the trial court’s judgment of conviction for aggravated assault 

with a deadly weapon. Azouz contends the evidence is insufficient to support the jury’s finding 

that he used or exhibited a deadly weapon. We affirm the trial court’s judgment.

BACKGROUND

This case grew out of an altercation between Azouz and Mohamed Hafsi at the San 

Antonio airport. The men were cab drivers and got into an argument when both tried to 
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maneuver their cabs into a line of cabs waiting to board passengers. Hafsi testified he was in line 

when Azouz attempted to force his way into the queue. Hafsi got out of his car, walked up to 

Azouz’s cab, and confronted him. Hafsi told the jury he saw Azouz reach for something in his 

vehicle, then Azouz got out of the car and began swinging his arm at Hafsi. Hafsi covered his 

face with his hands and he felt Azouz’s hand strike his. Hafsi heard something hit the ground 

and saw Azouz attempt to retrieve the item. A security guard stopped Azouz from doing so. 

Hafsi identified a multi-purpose tool as the item he saw on the ground after he was struck by 

Azouz. Hafsi did not suffer any injury as a result of the attack.

Kelvin Smith testified he was a cab driver and present at the airport during the 

altercation. He told the jury he heard the sound of car horns and some profanity. He walked to 

the site of the commotion and saw Azouz with a “butterfly” knife in his hand. Smith saw Azouz 

swing at Hafsi in a cutting motion. When Hafsi attempted to block the blow, Smith saw the 

knife fall to the ground and saw that the blade was extended. Lofti Sassi, another cab driver, also 

testified he saw Azouz swing his hand at Hafsi. Sassi said Azouz swung twice at Hafsi. Steven 

Diaz told the jury he was employed as a security guard at the airport. He responded to a call for 

a disturbance and saw a knife1

Sergeant Michael Burkowski of the San Antonio Airport police testified he responded to 

the disturbance call and saw a stainless steel multi-tool with the blade extended on the ground. 

Sergeant Burkowski stated that Azouz later told him the multi-tool fell out of his car door as he 

was exiting his vehicle. Sergeant Burkowski testified that, based on his training and his nineteen 

on the ground. Azouz tried to retrieve the weapon but Diaz 

stopped him. Diaz stated that when he first saw it on the ground, the blade of the Leatherman 

was open.

 1 Diaz also described the object as a silver “Leatherman.”
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years experience as a police officer, he considered the multi-tool with the blade extended to be a 

deadly weapon. 

Azouz testified that although he had an argument with Hafsi, he never used the multi-tool 

to threaten Hafsi. Azouz testified that the tool has a blade, a file, a can opener, and a 

screwdriver, and could be made into a set of pliers. The multi-tool was introduced into evidence 

for the jury’s examination. The tool’s knife blade is approximately two and one quarter inches 

long, and the tool’s total length when the blade is extended is six and one-half inches. 

DISCUSSION

Azouz argues the evidence is legally and factually insufficient to support the jury’s 

verdict that he used a deadly weapon to threaten Hafsi. However, after the briefs were filed in 

this matter, the Court of Criminal Appeals issued its opinion in Brooks v. State, No. PD-0210-09, 

2010 WL 3894613 (Tex. Crim. App. Oct. 6, 2010). Although only four judges joined the 

plurality opinion, a majority of the judges agreed it is no longer appropriate to conduct a separate 

review for factual sufficiency in criminal appeals. Brooks, 2010 WL 3894613, at *14; id. at *15 

(J. Cochran concurring). Accordingly, we will review the evidence to determine whether it is 

legally sufficient under “a proper application of the Jackson v. Virginia standard.” Brooks, 2010 

WL 3894613, at *14. Under that standard, we review the evidence for legal sufficiency by 

looking at 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 offense beyond a reasonable 

doubt. Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 546 U.S. 962 

(2005). We resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 

30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We must defer to the jury’s determination of the 

weight to be given to contradictory testimonial evidence because resolution of the conflict is 
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often determined by the jurors’ evaluation of the witnesses’ credibility and demeanor. Johnson 

v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see also Brooks, 2010 WL 3894613 at *13 

(“direct-appeal courts should review a jury’s verdict under deferential standards”).

Azouz challenges the sufficiency of the evidence to prove he used or exhibited a deadly 

weapon during the assault. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West Supp. 2010). “[A]n 

object that has an obvious purpose apart from causing death or serious bodily injury” is not a per 

se deadly weapon under Texas law. McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim. App. 

2000); see TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West Supp. 2010). In a particular case, an 

object may be a deadly weapon if “‘in the manner of its use or intended use [it] is capable of 

causing death or serious bodily injury.’” McCain, 22 S.W.3d at 503 (quoting TEX. PENAL CODE 

ANN. § 1.07(a)(17)(B) and adding emphasis). “Serious bodily injury” is “bodily injury that 

creates a substantial risk of death or that causes death, serious permanent disfigurement, or 

protracted loss or impairment of the function of any bodily member or organ.” TEX. PEN. CODE 

ANN. § 1.07(a)(46) (West Supp. 2010). An object need not actually cause serious bodily injury 

or death to be a deadly weapon within the meaning of the Penal Code; however, the evidence 

must establish “the actor intend[ed] a use of the object in which it would be capable of causing 

death or serious bodily injury.” McCain, 22 S.W.3d at 503. When no wounds result, or the 

wounds caused by the weapon do not result in serious bodily injury or death, an object is a 

deadly weapon only if the State proves it “(1) was capable of causing serious bodily injury; and 

(2) was displayed or used in a manner that establishes the intent to use the [weapon] to cause 

death or serious bodily injury.” Lockett v. State, 874 S.W.2d 810, 814 (Tex. App.—Dallas 1994, 

pet. ref’d); see Johnson v. State, 919 S.W.2d 473, 477 (Tex. App.—Fort Worth 1996, pet. ref’d) 
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(holding that State must prove “the thing used as a weapon was capable of causing death or 

serious bodily injury”).

Although the item used in this case was designed as a multi-purpose tool, we consider it a 

knife because the jury apparently credited the witnesses’ testimony that the blade was open when 

Azouz wielded it. The State may establish that a knife was in fact “deadly” through evidence of 

the nature and use of the knife, including the knife itself or a facsimile of the knife, witnesses’ 

descriptions of the knife’s size, shape, and sharpness, appellant’s verbal threats, the manner in 

which the knife was used, and the nature of any wounds caused. See Lockett, 874 S.W.2d at 814; 

Victor v. State, 874 S.W.2d 748, 751-52 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). And, 

although expert testimony is not required to establish that a specific knife is a deadly weapon, “it 

may still be particularly useful in supplementing meager evidence on the issue in order to meet 

the sufficiency requirement.” Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. [Panel 

Op.] 1980).

Hafsi testified he covered his face with his hands when Azouz swung at him, and he felt 

Azouz’s hand strike his just before he heard the tool fall to the ground. Two witnesses testified 

they saw Azouz swing his hand at Hafsi. One of them testified Azouz had an object in his hand 

and was swinging his hand in a “cutting motion.” When Hafsi blocked the blow, the witness saw 

the object fall to the ground. The object on the ground was the multi-tool with the blade 

extended, which Sergeant Burkowski testified was a deadly weapon. Viewing the evidence in 

the light most favorable to the verdict, a reasonable jury could conclude that Azouz used the tool 

to attack Hafsi in the face and head and that when so used, with the blade extended, the tool was 

capable of causing serious bodily injury See, e.g., Banargent v. State, 228 S.W.3d 393, 399 

(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (knife held deadly weapon when used to 
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inflict wounds to neck); Revell v. State, 885 S.W.2d 206, 210 (Tex. App.—Dallas 1994, pet. 

ref’d) (knife held deadly weapon when assailant held knife to victim’s throat). 

Azouz relies on Beller v. State, 635 S.W.2d 739 (Tex. Crim. App. [Panel Op.] 1982) and 

Alvarez v. State, 566 S.W.2d 612 (Tex. Crim. App. [Panel Op.] 1978), to argue the evidence is 

insufficient. However, both cases are easily distinguished. In Alvarez, the defendant was threeto-four feet away when he swung a linoleum knife at an officer, he did not make any contact, and 

no evidence was introduced about the size of the blade. Alvarez, 566 S.W.2d at 614. The Court 

of Criminal Appeals held the evidence legally insufficient to prove the knife was a deadly 

weapon. Id. Here, Azouz made contact with the victim while wielding a knife with a two and 

one quarter inch blade. In Beller, the weapon used during a robbery was never introduced into 

evidence, and there was no testimony describing the knife or its size. Beller, 635 S.W.2d at 740. 

The court concluded the evidence was insufficient to prove it was a deadly weapon. Id. Here, 

the weapon was placed in evidence and the jury could evaluate the length, size, and sharpness of 

the blade.

CONCLUSION

A rational trier of fact could have found from the evidence that the multi-tool was 

capable of causing serious bodily injury and that Azouz used it in a manner that established his 

intent to use it to cause serious bodily injury or death. Accordingly, the evidence is sufficient to 

support the verdict, and the judgment of the trial court is affirmed.

Steven C. Hilbig, Justice

DO NOT PUBLISH