Opinion issued December 18, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00532-CR

———————————

WENFORD LETTSOME, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Case No. 1347045

MEMORANDUM OPINION
2

A jury found appellant, Wenford Lettsome, guilty of the offense of 

aggravated assault of a family member.

1

 After appellant pleaded true to the 

allegation in one enhancement paragraph that he had been previously convicted of 

a felony offense, the trial court assessed his punishment at confinement for 25

years. The trial court also found that he used a deadly weapon, namely, a machete, 

in the commission of the offense. In two issues, appellant contends that the 

evidence is legally insufficient to support his conviction and the trial court erred in 

denying him the right of allocution2prior to the pronouncement of his sentence.

We affirm.

Background

The complainant, Elleston Lettsome, testified that he lived in a house with 

his wife, Alphonsine Lettsome, his cousin, appellant, appellant’s brother, Perseus 

Penn, and various other individuals. He explained that appellant had “moody 

ways,” would start arguments, and was “very controlling.” And appellant had 

previously threatened the complainant, stating, “Bitch, I will bust you up, you 

know that?” However, appellant did not have a weapon on him at the time he 

 

1

See TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011); see also TEX. PENAL 

CODE ANN. § 22.01(a)(2) (Vernon Supp. 2014); TEX. FAM. CODE ANN.

§§ 71.0021, 71.003, 71.005 (Vernon 2014).

2

See TEX. CODE CRIM. PROC. ANN. art. 42.07 (Vernon 2006).
3

made the threat. The complainant further explained that appellant’s threats had 

been “[g]etting worse” over time.

On May 6, 2012, the complainant, while preparing a meal in the kitchen, 

overheard appellant say unprovoked to Alphonsine, “If you touch me, I bust your 

head open.” The complainant then confronted appellant, asking him why he was 

“swearing at [his] wife.” In response, appellant “c[a]me up in [his] face” and said, 

“You want to do something about it?” The complainant then, with his Bible, went 

outside to sit on the front porch with Penn. Alphonsine also walked outside and sat 

in the car parked in the driveway. The complainant then proceeded to discuss 

Bible scriptures with Penn.

Appellant subsequently exited the house, “came up” to the complainant with 

a “machete in his hand,” and “sharpen[ed]” it. He “walked real close to [the 

complainant], real close” and, while “[t]he machete was in his hand,” told the 

complainant, “I’m going to chop you up.” From approximately five to six feet 

away from the complainant, appellant spoke directly to him and “[p]oint[ed] right 

at [him]” with the machete. He held the machete “like he was actually chopping,” 

and he “pointed” and “shook” it at the complainant.

The complainant felt “fearful,” “scared,” and “threatened,” and he “really” 

thought that appellant would “chop [him].” The complainant “fear[ed] for [his] 

life” and thought that appellant “would attack [him] with the machete for real.” He
4

therefore went over to the car where Alphonsine was sitting, and they left the 

house because they were both afraid.

Alphonsine testified that on May 6, 2012, while appellant was in the living 

room of the house cleaning, she “ease[d] around” him in order to get to the kitchen. 

She explained that although she did not touch appellant, he told her that “if [she]

had touched him, he would bust [her] head open.” Appellant followed Alphonsine 

into the kitchen and continued to say that “if [she] . . . touch[ed] him, he was going 

to bust [her] head open.” The complainant, who had heard appellant, told him to 

“[l]eave [Alphonsine] alone.” She then “went outside” to “avoid the angry man” 

and sat in the car. She felt “very bad,” “upset,” “scared,” and “threatened.”

While Alphonsine sat in the car, appellant “came out” of the backdoor of the 

house “with the machete in his hand.” Appellant held the machete by the handle, 

with its blade “pointed out,” and he “was very, very angry.” Alphonsine, however, 

lost sight of appellant as he walked, and she could not hear what was happening 

outside of the car. Although she did not see appellant “point the machete” at the 

complainant, the complainant subsequently came over to the car, and they left the 

house to get away from appellant.

Alphonsine described living with appellant as “chaos.” He would get 

“[a]ngry about certain things,” and when angry, “[h]e just goes on and on talking,” 

“raise[s] his voice,” “use[s] bad language,” and acts “like he want[s] to fight.” 
5

Alphonsine explained that when appellant does this, she feels “[r]eally upset” and 

“scare[d].”

Penn testified that on May 6, 2012, while he sat outside the house with the 

complainant reading the Bible, appellant “c[a]me outside with a machete, sharp 

like this.” He then said to the complainant, “I’m going to chop you up. . . . You 

motherfucker, I going to chop you up.” Appellant, who “was mad,” told the 

complainant that “he [was] going to chop him up into ground wheat.” Penn noted 

that appellant also had a file in his hand and “was sharpening the machete” as he 

approached the complainant. He “wav[ed]” the machete and “pointed” it at the 

complainant when he said that he was going to chop him up. Penn estimated that 

appellant stood approximately eight to ten feet away from the complainant at the 

time that he threatened him, and Penn believed that appellant intended to hurt the 

complainant. The complainant, who did “nothing,” then “got in the car [with 

Alphonsine] and . . . left.” After Penn explained that he had used the machete to 

cut vegetation overgrowth around the house, the trial court admitted it into 

evidence.

Houston Police Department Officer R. Smajstrla testified that a machete is 

“a long . . . knife used to cut weeds and shrubs.” He explained that machetes vary 

in lengths, but the ones he has seen are “1 to 2 feet in length.” Based on his 
6

experience, he opined that a machete is a deadly weapon because it can cause 

serious bodily injury due to the length and sharpness of its blade.

Sufficiency of the Evidence

In his first issue, appellant argues that the evidence is legally insufficient to 

support his conviction because the State did not establish “that the 

machete . . . [a]ppellant allegedly used qualified as a deadly weapon.”

We review the legal sufficiency of the evidence by considering all of the 

evidence “in the light most favorable to the prosecution” 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, 318–19, 99 S. Ct. 2781, 

2788–89 (1979). Our role is that of a due process safeguard, ensuring only the 

rationality of the trier of fact’s finding of the essential elements of the offense 

beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.

App. 1988). We give deference to the responsibility of the fact finder to fairly 

resolve conflicts in testimony, weigh evidence, and draw reasonable inferences 

from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

However, our duty requires us to “ensure that the evidence presented actually 

supports a conclusion that the defendant committed” the criminal offense of which 

he is accused. Id.
7

A person commits an assault if he “intentionally, knowingly, or recklessly 

threatens another with imminent body injury.” TEX. PENAL CODE ANN.

§ 22.01(a)(2) (Vernon Supp. 2014). A person commits the offense of aggravated 

assault if he “commits assault as defined in [section] 22.01 and [he] . . . uses or 

exhibits a deadly weapon during the commission of the assault.” Id. § 22.02(a)(2) 

(Vernon 2011). A “deadly weapon” includes “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) (Vernon Supp. 2014). “‘Bodily injury’ means physical pain, 

illness, or any impairment of physical condition.” Id. § 1.07(a)(8). And 

“‘[s]erious bodily injury’ means bodily injury that creates a substantial risk of 

death . . . .” Id. § 1.07(a)(46).

Generally, a machete is “a large heavy knife used for cutting sugarcane and 

underbrush and as a weapon.” Hill v. State, No. 13-05-00274-CR, 2006 WL 

2382787, at *3 (Tex. App.—Corpus Christi August 17, 2006, no pet.) (mem. op., 

not designated for publication) (internal quotation marks omitted); see also Francis 

v. State, No. 01-11-01019-CR, 2013 WL 1694854, at *6 (Tex. App.—Houston [1st 

Dist. Apr. 18, 2013) (noting that machete is “a knife with a blade exceeding five 

and one-half inches”), aff’d, 428 S.W.3d 850 (Tex. Crim. App. 2014). While a 

knife is not a deadly weapon per se, it may be a deadly weapon based on the nature 

of its use or intended use. Thomas v. State, 821 S.W.2d 616, 619–20 (Tex. Crim. 
8

App. 1991); Miller v. State, 177 S.W.3d 1, 4 (Tex. App.—Houston [1st Dist.] 

2004, no pet.). In fact, almost anything can be a deadly weapon depending upon 

the evidence shown. Lane v. State, 151 S.W.3d 188, 191 n.5 (Tex. Crim. App. 

2004). 

To determine whether a particular knife is a deadly weapon, the following 

may be considered: (1) the size, shape, and sharpness of the knife; (2) the manner 

of its use or intended use; (3) the nature or existence of inflicted wounds; (4) the 

proximity of the defendant and the complainant; (5) the use of any brandishing 

motions; (6) statements, including threats, made by the defendant; (7) the 

complainant’s fear of serious bodily injury or death; and (8) evidence of the 

knife’s capacity to produce death or serious bodily injury. See Blain v. State, 647 

S.W.2d 293, 294 (Tex. Crim. App. 1983); Wingfield v. State, 282 S.W.3d 102, 107 

(Tex. App.—Fort Worth 2009, pet. ref’d); Victor v. State, 874 S.W.2d 748, 751 

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Notably, it is not necessary to 

show that a complainant suffered any injury to establish that a particular knife is a 

deadly weapon. Victor, 874 S.W.2d at 751.

Further, a fact finder may consider all the surrounding facts in determining 

whether a knife constitutes a deadly weapon. Blain, 647 S.W.2d at 294; Garcia v. 

State, 17 S.W.3d 1, 4 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Evidence 

is sufficient to show that a knife was used in a manner that constitutes a deadly 
9

weapon when the knife was “displayed in a manner conveying an express or 

implied threat that serious bodily injury or death [would] be inflicted.” Billey v. 

State, 895 S.W.2d 417, 422 (Tex. App.—Amarillo 1995, pet. ref’d). Expert or lay 

testimony may be “independently sufficient” to support a deadly weapon finding. 

Banargent v. State, 228 S.W.3d 393, 398–99 (Tex. App.—Houston [14th Dist.] 

2007, pet. ref’d).

Appellant argues that “[t]he [e]vidence [d]id [n]ot [e]stablish the [m]achete 

was [c]apable of [c]ausing [s]erious [b]odily [i]njury or [d]eath” because “the 

machete held by . . . [a]ppellant was dull,” “[t]here was no testimony presented as 

to the length of the machete . . . [or] aspects of th[e] particular machete [which] 

gave it the potential to do harm,” and Officer Smajstrla only spoke “in general 

terms and not specifically about the machete recovered” in this case.

It is true that Officer Smajstrla did generally explain that a machete is “a 

long . . . knife used to cut weeds and shrubs” and may cause serious bodily injury 

due to the length and sharpness of its blade. However, the complainant specifically

testified that appellant “walked real close to [him]” with “[t]he machete in his 

hand,” which appellant was “sharpening.” And appellant, while holding the 

machete, expressly told the complainant that he was “going to chop [him] up.” 

Standing approximately five to six feet away from him, appellant spoke directly to 

the complainant and “[p]oint[ed] right at [him]” with the machete, and he held the 
10

machete “like he was actually chopping” and “pointed” and “shook” it at the 

complainant. The complainant explained that he “really” thought that appellant 

was going to “chop [him],” and he felt “fearful,” “scared,” and “threatened.” The 

complainant “fear[ed] for [his] life” and thought that appellant “would attack [him] 

with the machete.”

Penn similarly testified that appellant “c[a]me outside with a machete, sharp 

like this,” and he told the complainant, “I’m going to chop you up. . . . You 

motherfucker, I going to chop you up.” Appellant also said that “he [was] going to 

chop [the complainant] up into ground wheat.” He “was mad,” and he sharpened

the machete as he approached the complainant, “wav[ed]” it, and “pointed” it at the 

complainant as he said that he was going to chop him up. Penn estimated that 

appellant stood approximately eight to ten feet away from the complainant at the 

time he threatened him. And Penn believed that appellant intended to hurt the 

complainant.

Contrary to appellant’s assertions, there is no evidence in this case that the 

machete was “dull.” Instead, both the complainant and Penn attested to the 

machete’s sharpness. Further, although neither the complainant, Penn, nor Officer 

Smajstrla specifically described the machete used by appellant, we note that the 

machete itself was admitted into evidence, thereby allowing the jury to observe its 

characteristics. See Rodriguez v. State, 129 S.W.3d 551, 556 (Tex. App.—Houston 
11

[1st Dist.] 2003, pet. ref’d) (“[B]ecause the knife found on [defendant] was 

admitted into evidence, there was no need for testimony about the size and shape 

of the knife, as [defendant] contends on appeal.”); see also Robertson v. State, 163 

S.W.3d 730, 734 (Tex. Crim. App. 2005) (explaining when “knife was admitted 

into evidence, the fact-finder was in a position to observe all of [its] 

characteristics”).

In support of his argument that the evidence is legally insufficient to 

establish that the machete was a deadly weapon, appellant relies on Davidson v. 

State, 602 S.W.2d 272 (Tex. Crim. App. 1980). However, his reliance is 

misplaced. In Davidson, a jury convicted the defendant of the offense of 

aggravated robbery, and he asserted on appeal that the evidence was insufficient to 

prove that the knife he brandished during the robbery was a deadly weapon. 602 

S.W.2d at 272. The Texas Court of Criminal Appeals agreed, holding that the 

evidence was “insufficient to show that the defendant used or intended to use the 

knife so as to inflict serious bodily injury or death.” Id. at 274. In reaching its 

decision, the court noted that the complainant suffered no wounds and he testified 

that the blade of the knife was, at most, three inches long, he was five or six feet 

away from the defendant, and he feared seriously bodily harm or death because a 

friend of his had been previously hurt in a similar situation. Id. The knife was not 

introduced into evidence. Id.
12

Notably, unlike in Davidson, the jury here was able to view the machete

used by appellant and observe and inspect its characteristics because it was 

admitted into evidence. The jury did not solely have to rely on testimony 

regarding the machete’s characteristics. See Gosdin v. State, No. 2-08-274-CR, 

2009 WL 1905378, at *2 (Tex. App.—Fort Worth July 2, 2009, pet. ref’d) (mem. 

op., not designated for publication) (distinguishing Davidson because in Gosdin

“actual knife was admitted into evidence, allowing the jury to assess whether the 

knife was capable of causing death or serious bodily injury”); Hatchett v. State, 

930 S.W.2d 844, 848–49 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) 

(distinguishing Davidson where knife used by defendant in Hatchett admitted into 

evidence and holding evidence sufficient to show defendant used or exhibited 

deadly weapon); Nunez v. State, No. 01-95-00106-CR, 1995 WL 679078, at *1 

(Tex. App.—Houston [1st Dist.] Nov. 16, 1995, pet. ref’d) (not designated for 

publication) (distinguishing Davidson because knife used to commit robbery in 

Nunez admitted into evidence and holding evidence sufficient to support deadly 

weapon finding).

Further, unlike the defendant in Davidson, appellant did not simply hold the 

knife in his hand, but instead held the machete “like he was actually chopping,” 

and “pointed,” “shook,” and “wav[ed]” it at the complainant. See McAnally v. 

State, Nos. 05-91-01567, 05-91-01568-CR, 1993 WL 52469, at *3 (Tex. App.—
13

Dallas Feb. 26, 1993, no pet.) (not designated for publication) (distinguishing 

Davidson because knife admitted into evidence in McAnally and defendant “made 

slashing motions at the police officers with the knife, unlike Davidson who simply 

held the knife in his hand”).

And, the complainant in this case feared for his life because of the manner in 

which appellant held the machete, “like he was actually chopping” and “pointed” 

and “shook” it at him. Conversely, the complainant in Davidson merely feared 

serious bodily injury or death because his friend had been injured in a similar 

incident—in other words, the complainant’s fear had nothing to do with the 

manner in which the defendant actually used the knife. See Vasquez v. State, No. 

07-04-0482-CR, 2005 WL 2000705, at *3 (Tex. App.—Amarillo Aug. 19, 2005, 

no pet.) (mem. op., not designated for publication) (distinguishing Davidson where

complainant’s fear in Vasquez was “due to the manner in which [the rock] was 

being used,” unlike complainant in Davidson who “feared the weapon because his 

friend had been injured in a similar encounter”). 

Here, the evidence presented at trial revealed that: (1) the machete was 

sharp and large enough for Penn to use it to cut vegetation overgrowth; (2) a 

machete, in general, is a long knife, capable of inflicting serious bodily injury due 

to the length and sharpness of its blade; (3) appellant, at the time of the offense,

was “real close” to the complainant; (4) appellant held the machete “like he was 
14

actually chopping” and “pointed,” “shook,” and “wav[ed]” it at the complainant; 

(5) appellant told the complainant, “I’m going to chop you up. . . . You 

motherfucker, I going to chop you up” and that “he [was] going to chop him up 

into ground wheat”; and (6) the complainant felt threatened and afraid, thought 

appellant would attack him with the machete, and feared for his life. See Blain,

647 S.W.2d at 294; Wingfield, 282 S.W.3d at 107; Victor, 874 S.W.2d at 751. The 

jury also was able to view the machete used by appellant because it was admitted 

into evidence. 

Viewing the evidence in the light most favorable to the jury’s verdict, we 

conclude that the jury could have reasonably found that the machete was capable 

of causing death or serious bodily injury. Accordingly, we hold that the evidence 

is legally sufficient to support appellant’s conviction of the offense of aggravated 

assault of a family member.

We overrule appellant’s first issue.

Right of Allocution

In his second issue, appellant argues that the trial court erred in denying him 

the right of allocution because it failed to inquire, prior to pronouncing his

sentence, as to whether appellant had anything to say as to why the sentence should 

not be pronounced.
15

The Texas Code of Criminal Procedure provides:

Before pronouncing sentence, the defendant shall be asked whether he 

has anything to say why the sentence should not be pronounced 

against him. The only reasons which can be shown, on account of 

which sentence cannot be pronounced, are:

1. That the defendant has received a pardon from the proper 

authority, on the presentation of which, legally authenticated, he 

shall be discharged[;]

2. That the defendant is incompetent to stand trial; and if evidence be 

shown to support a finding of incompetency to stand trial, no 

sentence shall be pronounced, and the court shall proceed under 

Chapter 46B; and

3. When a person who has been convicted escapes after conviction 

and before sentence and an individual supposed to be the same has 

been arrested he may before sentence is pronounced, deny that he 

is the person convicted, and an issue be accordingly tried before a 

jury, or before the court if a jury is waived, as to his identity.

TEX. CODE CRIM. PROC. ANN. art. 42.07 (Vernon 2006). The purpose of this 

provision is to allow a defendant to alert the trial court to any legal reason that may 

not be of record that bars the imposition of punishment. Eisen v. State, 40 S.W.3d 

635 (Tex. App.—Waco 2001, pet. ref’d).

The State asserts that appellant failed to preserve this issue for our review. 

To preserve error for appeal, a party is required to make a timely, request, 

objection, or motion to the trial court and obtain an express or implied ruling. See 

TEX. R. APP. P. 33.1; Tenon v. State, 563 S.W.2d 622, 623–24 (Tex. Crim. App. 

1978) (holding defendant failed to preserve issue for review because did not object 
16

to trial court’s “failure to inquire of the appellant if she had anything to say why 

the sentence should not be pronounced against her”); Nicholson v. State, 738 

S.W.2d 59, 63 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (“No error is 

preserved, however, when an appellant does not object to the court’s failure to 

provide appellant his right of allocution or when appellant fails to timely assert the 

existence of any statutory reason set forth in art. 42.07 to prevent pronouncement 

of sentence.”). Moreover, the complaining party on appeal must have clearly 

conveyed to the trial court the particular complaint raised on appeal by “‘let[ting] 

the trial judge know what he wants [and] why he thinks he is entitled to it, 

. . . clearly enough for the judge to understand him at the time when the judge is in 

the proper position to do something about it.’” Norton v. State, 434 S.W.3d 767, 

771 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (quoting Pena v. State, 285 

S.W.3d 459, 464 (Tex. Crim. App. 2009)).

In his brief, appellant candidly admits that,

the record does not contain any indication that the three legal reasons 

laid out in article 42.07 as to why sentencing should not be 

pronounced are present. That is, there is no indication that the 

[a]ppellant has received a pardon, was incompetent to stand trial, or 

that he escaped custody following conviction and was subsequently 

rearrested.

Nevertheless, appellant asserts that he preserved error through the following

exchange:
17

THE COURT: All right. Stand up, Mr. Lettsome.

. . .

THE COURT: I’m going to find the punishment enhancement 

paragraph to be true.

Upon that, I’m going to sentence you, Mr. 

Lettsome, to 25 years confinement.

There will be an affirmative finding of a deadly 

weapon. You will get credit for your back time. 

See the bailiff.

. . .

[Appellant]: Your Honor, can I say something?

THE COURT: Step in the back.

[Appellant]: Thank you, Ms. Summers.

[Trial counsel]: You’re welcome, sir.

(Emphasis added.)

Neither appellant nor his trial counsel clearly conveyed to the trial court 

either a request that appellant be allowed to exercise his right of allocution or an 

objection that the trial court violated his right. Simply, asking a trial court “can I 

say something?” is not sufficient to preserve error. See TEX. R. APP. P.

33.1(a)(1)(A) (requiring objecting party to “state[] the grounds for the ruling that 

the complaining party sought from the trial court with sufficient specificity to 

make the trial court aware of the complaint”); Norton, 434 S.W.3d at 771
18

(defendant’s question, “[c]an I talk to you?” did not preserve error regarding trial 

court’s denial of right of allocution). Accordingly, we hold that appellant has not 

preserved this issue for appellate review.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice 

Panel consists of Justices Jennings, Sharp, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).