Green v. State, s. 13-91-123-C

• Decision Date: 21 May 1992
• Docket Number: 13-91-124-CR,Nos. 13-91-123-C,s. 13-91-123-C
• Citation: 831 S.W.2d 89
• Parties: Charles William GREEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 89

831 S.W.2d 89

Charles William GREEN, Appellant, v. The STATE of Texas, Appellee.

Nos. 13-91-123-CR, 13-91-124-CR.

Court of Appeals of Texas,

Corpus Christi.

May 21, 1992.

Rehearing Overruled June 25, 1992.

Alfredo Padilla, Edmund Cyganiewicz, Brownsville, for appellant.

Charles William Green, pro se.

Luis V. Saenz, County Atty., Crim. Dist., John A. Olson, Asst. County Atty., Brownsville, for appellee.

Before NYE, C.J., and GILBERTO HINOJOSA and SEERDEN, JJ.

OPINION

GILBERTO HINOJOSA, Justice.

Charles William Green appeals from a conviction on two charges of aggravated assault with a knife and with a motor vehicle, respectively. After Green pleaded true to habitual enhancement counts, the jury assessed punishment at 40 years in prison. Green brings four points of error. We affirm.

The victim, Marco Antonio Tapia Cardoza, provided the only eyewitness account of these assaults. Cardoza testified to four separate encounters with Green, each of which occurred while Cardoza was working as a clerk at a convenience store during the night shift between 11:00 p.m. and 7:00 a.m. On the first encounter, while apparently intoxicated and standing in line to buy beer, Green had told Cardoza's co-worker that he was going to "let [the co-worker] have it with a pistol." Cardoza then asked Green to leave the store and informed him that, if he had any problem with that, he could take it up with Cardoza's supervisor the next day.

Three weeks later, Cardoza saw Green at around 11:00 p.m., again apparently intoxicated, at the door to the convenience store. Cardoza again told Green that he would not do business with him and to come back the next morning if he wanted to talk to Cardoza's supervisor. Green became angry, asked for the supervisor's name, and, after Cardoza wrote it down for him, Green left the store.

Later that night, at 1:30 a.m. while Cardoza was sweeping the store parking lot, a car arrived in an abrupt manner, with its tires screeching. When the car stopped some twenty to twenty-five feet away from him, Cardoza recognized Green as the driver. Green then accelerated the car at a high rate of speed toward Cardoza. Cardoza ran into the store in order to avoid being hit by the car, and, fearing that Green would drive the car into the store, continued some twelve feet into the store. Green stopped nine or ten feet from the store, gave an angry look, and then quickly drove away.

Later that night, Green drove back to the store. Cardoza did not recognize Green at first when he entered the store, because Green had driven back in a different car, and was wearing a different shirt and a hat with which Green attempted to cover his face while bending his head down. However, Cardoza nevertheless managed to recognize Green as he walked into the store, and Cardoza told Green to stop. Green continued one step farther. Cardoza again told him to stop, and observed that Green "had his hand towards the back." Green then drew a knife and took another step toward Cardoza. Cardoza then jumped on Green and struggled with him, sending both men to the floor and breaking the knife. Green managed to get up and out the door, and fled the scene in his car. Cardoza testified that he thought Green was going to kill him with the knife.

By his first and third points of error, Green challenges the sufficiency of the evidence. In reviewing the sufficiency of the evidence, an appellate court views 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. Baugh v. State, 776 S.W.2d 583, 585 (Tex.Crim.App.1989); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989).

Specifically by his first point of error, Green complains that the evidence is insufficient to prove beyond a reasonable doubt that he intentionally or knowingly threatened Cardoza with imminent bodily injury using a motor vehicle and later a knife. A person commits an assault under Tex.Penal Code Ann. § 22.01(a)(2) (Vernon 1989), if he intentionally or knowingly threatens another with imminent bodily injury. The offense becomes an aggravated assault under Tex.Penal Code Ann. § 22.02(a)(4) (Vernon Supp.1992), if committed using a deadly weapon. See Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.1986).

Threats may be communicated by action or conduct as well as words. McGowan v. State, 664 S.W.2d 355, 357 (Tex.Crim.App.1984). With regard to the car, Green's sudden acceleration toward Cardoza in an open parking lot forcing him to run inside the store is sufficient to show that Green intentionally threatened Cardoza with imminent bodily injury by use of a motor vehicle. See Garcia v. State, 685 S.W.2d 420, 422 (Tex.App.--San Antonio 1985, no pet.). With regard to the knife also, although no specific verbal threats were made, the circumstances suggest that Green intended to threaten Cardoza with imminent bodily injury. Green returned to the scene of the earlier assault in disguise, he continued to approach Cardoza even though he was told to stop, and at the same time he drew a knife which he had concealed behind him. This conduct is sufficient to infer, even without an explicit threat, that Green intentionally threatened Cardoza with imminent bodily injury by use of the knife. See Martinez v. State, 754 S.W.2d 831, 833 (Tex.App.--Houston [1st Dist.] 1988, no pet.). Green's first point of error is overruled.

By his third point of error, Green complains that the evidence is insufficient to show that either the automobile or the knife was a "deadly weapon."

An automobile is not a deadly weapon per se. Therefore, we must look to Tex.Penal Code Ann. § 1.07(a)(11)(B) (Vernon 1974), to determine whether it may be a deadly weapon because it "in the manner of its use or intended use is capable of causing death or serious bodily injury." Morgan v. State, 775 S.W.2d 403, 406 (Tex.App.--Houston [14th Dist.] 1989, no pet.) (car on the tail of which person hung as the driver attempted to throw him off by alternately accelerating to high speeds and braking was a deadly weapon in the manner of its use); Roberts v. State, 766 S.W.2d 578 (Tex.App.--Austin 1989, no pet.) (truck that recklessly drove into an intersection at 80 to 100 miles per hour and collided with a car that was stopped at a red light was a deadly weapon in the manner of its use); Parrish v. State, 647 S.W.2d 8, 10 (Tex.App.--Houston [14th Dist.] 1982, no pet.) (car that pulled into driveway and crushed pedestrian's legs between itself and other car was a deadly weapon in the manner of its use).

In the present case, the evidence shows that Green accelerated the automobile toward Cardoza in a threatening manner that caused Cardoza to believe that he had to run into the store in order to avoid being hit. Although Cardoza was not actually hit by the car, wounds need not be inflicted before an automobile is declared to be a deadly weapon. Parrish, 647 S.W.2d at 11. We hold that evidence an automobile has been used to threaten a pedestrian in this manner is sufficient to show that the automobile was used in a manner capable of causing death or serious bodily injury. Thus, the evidence is sufficient to show that the automobile was a deadly weapon in the manner of its use or intended use.

With regard to the knife, neither was it a deadly weapon per se. Limuel v. State, 568 S.W.2d 309 (Tex.Crim.App.1978); Villarreal v. State, 809 S.W.2d 295, 297 (Tex.App.--Corpus Christi 1991, pet. ref'd). In order to be considered a deadly weapon, the knife must likewise be shown in the manner of its use or intended use to be capable of causing death or serious bodily injury. Villarreal, 809 S.W.2d at 297; Tex.Penal Code Ann. § 1.07(a)(11)(B) (Vernon 1974). In the present case, Cardoza testified that Green drew a knife during the second assault. The knife was then broken during the ensuing struggle. Although the whole knife was never entered into evidence, the broken blade end of a kitchen steak knife was found by Cardoza, given to the police, and entered into evidence. Brownsville Police Detective Victor Jackson testified for the State that a knife like the one a portion of which was entered into evidence is a deadly weapon capable of causing bodily injury or death. We hold that the evidence was sufficient to show that the knife was a deadly weapon in the manner of its use or intended use. See Hawkins v. State, 605 S.W.2d 586, 588 (Tex.Crim.App.1980); Sweeten v. State, 686 S.W.2d 680, 685 (Tex.App.--Corpus Christi 1985, no pet.); Garcia v. State, 625 S.W.2d 831, 834 (Tex.App.--Houston [14th Dist.] 1981, pet. ref'd). Green's third point of error is overruled.

By his second point of error, Green complains that the trial court committed reversible error by allowing evidence of extraneous offenses. The general rule is that an accused is entitled to be tried for the offense for which he is charged and not for some collateral crime or for being a criminal in general. Couret v. State, 792 S.W.2d 106, 107 (Tex.Crim.App.1990); Maynard v. State, 685 S.W.2d 60 (Tex.Crim.App.1985). Exceptions to this rule allow extraneous matters to be admitted if the extraneous matter is relevant to a material issue, unless the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to the defendant. Montgomery v. State, 810 S.W.2d 372, 387-89 (Tex.Crim.App.1990) (on rehearing); Couret, 792 S.W.2d at 107; Morgan v. State, 692 S.W.2d 877 (Tex.Crim.App.1985). Thus, evidence of other offenses may generally be introduced to establish the identity of the person or crime, intent, motive, system, or as part of the res gestae. Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972). In the present case, Green contends that the State improperly brought up three separate extraneous offenses.

First, during opening arguments, the prosecution told the jury that Cardoza would testify to an earlier incident...