Hawkins v. State
| Decision Date | 10 September 1980 |
| Docket Number | No. 2,No. 64352,64352,2 |
| Citation | 605 S.W.2d 586 |
| Parties | James Milton HAWKINS, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Randy Schaffer, Houston, court appointed on appeal only, for appellant.
John B. Holmes, Jr., Dist. Atty., Joan Fisher and Carl Haggard, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, ODOM and DALLY, JJ.
This is an appeal from a conviction for the offense of aggravated assault. The punishment, enhanced by a prior felony conviction, is imprisonment for ten years.
The appellant contends that the evidence is insufficient to sustain his conviction for aggravated assault; he asserts that the evidence does not support a finding that the knife used was a deadly weapon as alleged or that he intentionally or knowingly threatened the complainant. He also argues that the jury charge was fundamentally erroneous.
The indictment charging appellant with aggravated assault alleges that appellant did:
"intentionally and knowingly threaten imminent bodily injury to ARTHUR MATAMOROS, with the use of a deadly weapon, namely, a knife."
On October 1, 1978, at about 1:30 a. m., Arthur Matamoros and Harmon Smith, both employed as wrecker drivers, were waiting for the police to arrive at an accident scene. Matamoros was sitting in the driver's seat of his parked truck talking through the open window on the driver's side with Smith, who was standing outside, when the appellant approached the truck on the passenger side and tapped on the closed window. Matamoros, unable to understand what the appellant was saying, motioned for him to come around to the driver's side. The appellant staggered as he approached, mumbled what Matamoros believed to be an offer to sell drugs. After Matamoros refused the offer he realized that the appellant was clutching a "folder knife" with a five or six-inch blade. The appellant, who was partially leaning against the truck, told Matamoros he had a knife, and then lunged at him through the open window. The knife came within five or ten inches of Matamoros, who avoided it by leaning back away from the driver's side. Matamoros, who testified that he was in fear of serious bodily injury or death, told appellant he had a shotgun, and would protect himself if appellant came at him again. The appellant then turned on Smith with the knife, and chased him completely around the wrecker. Matamoros pulled a shotgun from under the seat, laid it down on the seat where appellant could see it, and told him to leave. The appellant responded that he was going home to get something to get even with Matamoros, and left.
When the police arrived at the accident scene shortly thereafter, Matamoros and Smith related the incident. Matamoros then saw the appellant returning, and pointed him out to the officers, who pursued him into a house he entered, and there arrested him. A search of the appellant did not reveal any weapons.
Officer H. S. Kennedy of the Houston Police Department, who was qualified as an expert, testified that he was familiar with the type of knife the appellant was said to have used, and that such a knife, with a blade from four to six inches long, was capable of inflicting serious bodily injury or death. Smith testified the knife was a pocket knife, "a big one "; the blade was shaped like a butcher knife; it was four or five inches long and could have caused serious bodily injury or death.
V.T.C.A. Penal Code, Sec. 1.07(a)(11) provides:
Although a knife is not a deadly weapon per se, Williams v. State, 575 S.W.2d 30 (Tex.Cr.App.1979); Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.1978) it may be shown to be a deadly weapon by showing the manner of its use, its size and shape, and its capacity to produce death or serious bodily injury. Denham v. State, 574 S.W.2d 129 (Tex.Cr.App.1978). McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975).
The appellant argues that the evidence in the present case fails to establish that the knife used was a deadly weapon. We disagree. We find that the testimony that the knife blade was from four to six inches long, that the appellant, with his knife in his hand, lunged at Matamoros and chased Smith around the truck, together with the testimony of Smith about the knife and the expert testimony of Officer Kennedy that such a knife would be capable of inflicting serious bodily injury or death, is sufficient to support a finding that the knife was a deadly weapon. This evidence shows the knife in the manner of its use was capable of causing serious bodily injury or death, and the knife was adapted for the purpose of inflicting serious bodily injury or death; it was a deadly weapon as alleged under either subsection (A) or (B) of V.T.C.A. Penal Code, Sec. 1.07(a)(11). See Hart v. State, 581 S.W.2d 675 (Tex.Cr.App.1979); Hubbard v. State, 579 S.W.2d 930 (Tex.Cr.App.1979); Denham v. State, supra.
The appellant's reliance on Alvarez v. State, 566 S.W.2d 612 (Tex.Cr.App.1978), is misplaced. In Alvarez, we reversed the defendant's conviction for aggravated assault because we found there was insufficient evidence to prove the linoleum knife he wielded three or four feet from the complainant was a deadly weapon. The evidence in the present case may be distinguished from Alvarez : in Alvarez, there was neither testimony concerning the size of the knife, nor was there expert...
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