Limuel v. State

• Decision Date: 03 May 1978
• Docket Number: No. 2,No. 54592,54592,2
• Citation: 568 S.W.2d 309
• Parties: Farris Eugene LIMUEL, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 309

568 S.W.2d 309

Farris Eugene LIMUEL, Appellant, v. The STATE of Texas, Appellee.

No. 54592.

Court of Criminal Appeals of Texas,Panel No. 2.

May 3, 1978.

Rehearing En Banc Denied May 24, 1978.

Laird Palmer, Austin, for appellant.

Ronald D. Earle, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Austin, for the State.

Before ONION, P. J., and DALLY and VOLLERS, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated robbery, where the punishment was assessed at sixteen (16) years' confinement in the Department of Corrections following a bench trial on a plea of not guilty.

Appellant first contends the evidence was insufficient to support the trial court's finding of guilty.

The State's evidence reflects that on the evening of December 25, 1974 about 7:30 or 8 p. m. fifty-six year old Leslie Floyd was walking in the 1000 block of Lydia Street in Austin when he was accosted by the appellant and one Joe Newman. Appellant pulled a knife and stabbed Floyd in the stomach. A $1.50 in money, a Timex watch and a chicken lunch were taken in the robbery. When the appellant was arrested a short time later, he was in possession of a bloody knife.

Appellant testified that Floyd and Joe Newman were engaged in a fight and that he had tried to break it up. He denied that he robbed or stabbed Floyd. Joe Newman testified he had committed the robbery and had stabbed Floyd and that the appellant had not taken part in the robbery but had only tried to " break up the fight." Holoman Bracy and James Hunt, patrons of a bar across the street from where the events took place, corroborated Newman's testimony. Bracy related he heard and saw Newman arguing with some old man, and saw the appellant leave the bar and break up the fight. Hunt testified he saw the appellant run across the street and take a knife away from Newman after an old man had hollered for help. Appellant's sister testified that seven months after the event Floyd had told her he did not know who stabbed him and that all he knew was "what they told me."

Although Floyd identified the appellant as his assailant, appellant argues Floyd's memory was hazy about the event and that he was shown one or two photographs while he was in the hospital and that Floyd's nephew was present at the time and told him the appellant was the one who had stabbed him.

After stating he did not know the appellant prior to the alleged robbery, Floyd stated he had pointed out to the police the two men who had robbed him as they fled from the scene. The record reflects the following interrogation on cross-examination.

"Q All right. So, when these men, whoever stabbed you, and they ran, you told the police. You pointed

"A I told the police. I pointed them out.

"Q Now, what name did you tell them?

"A I told them one of them was Limuel.

"Q I thought you said you didn't know that

"A Well, I pointed I asked another boy who was it. It was Floyd Arnold. He was the one told me it was Farris Limuel.

"Q Oh, I see.

"A And then my nephew heard about it and they come up and they was up there when he brought the picture. My nephew showed me told me I told him which size it was.

"Q So, you were told by somebody else the person who stabbed you was Farris Limuel, is that correct?

"A Uh-huh.

"Q Is that right?

"A Yeah. And when the policeman come, he no, he wasn't no policeman. I guess he's a secret detective or something came and pulled a picture out and said here's my watch. I don't know who it was."

It appears from the above that Floyd learned the name of his assailant at the scene from a Floyd Arnold and pointed him out to the police. Austin police officer Larry Stafford testified that at the time in question he saw the appellant and Newman, both of whom he knew, running in the 1000 block of Lydia Street and then enter a bar. They fled from the bar as an older man, later identified by Stafford as being Floyd, came up. Floyd then told the officers, "That's them, stop them." A "pickup" was placed by Stafford for the appellant and Newman and an ambulance was ordered for Floyd. Austin police officer Jerry Morgan testified that about 8:30 p. m. on the day in question he stopped a car in which the appellant was a passenger and arrested him, and that at the time appellant was in possession of a Timex watch and a brown and cream colored pocket knife with blood still on the blade.

It is clear from the above that there was sufficient evidence to support the trial court's finding. The trial court was the trier of the facts, the credibility of the witnesses and the weight to be given to their testimony. The court was free to accept or reject the testimony of any witness. It is obvious that the court chose to believe the State's version of the facts. The above quoted testimony reflects the events concerning the identification of appellant's picture by Floyd in the hospital were not well developed, nor was the language used in some of the answers very clarifying. Under any circumstances, it was not such as to render the evidence insufficient to support the trial court's finding of guilt.

By supplemental brief appellant urges that the evidence was insufficient to show that the knife used was a deadly weapon as alleged in the aggravated robbery indictment.

V.T.C.A., Penal Code, § 1.07(a)(11), reads:

" 'Deadly weapon' means:

"(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

"(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."

An ordinary pocket knife is not manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury. Therefore, if such pocket knife becomes a "deadly weapon," proof must show that it became one because in the manner of its use or intended use it was capable of causing death or serious bodily injury.

It has been held under the former Penal Code, as well as the present Penal Code, that a knife is not a deadly weapon per se. Harris v. State, 562 S.W.2d 463 (Tex.Cr.App.1978); Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977); Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975); Williams v. State, 477 S.W.2d 24, 25 (Tex.Cr.App.1972); Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679 (1961); Henderson v. State, 55 Tex.Cr.R. 170, 115 S.W. 588 (1909); 4 Branch's Ann.P.C., 2nd ed., § 1573, p. 132.

Although a knife is not a deadly weapon per se, it has been held that it can qualify as such through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. Richards v. State, 147 Tex.Cr.R. 118, 178 S.W.2d 517 (1944); McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Abels v. State, 489 S.W.2d 910 (Tex.Cr.App.1973). Under the former Penal Code there was no statutory definition of deadly weapon, Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1976) (footnote # 3). The current Penal Code, as observed, does contain such a definition and broadens the above considerations to include "or its intended use." Further, it has been held that the wounds inflicted on the injured is also a factor that is considered in determining the character of the weapon. Reed v. State, 149 Tex.Cr.App. 208, 192 S.W.2d 890 (1946); Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972). This does not, however, mean that wounds must be inflicted before a knife can be determined to be a deadly weapon. See and cf. Richards v. State, supra.

In the instant case while there was no medical testimony as to the nature of the wounds, and while the knife taken from appellant's possession was not introduced into evidence, we conclude the evidence sufficient to show the knife used to be a deadly weapon.

Floyd testified that the appellant slipped up behind him and grabbed him, placed a knife in his throat. Appellant then stated, "Give me what you got," and after taking Floyd's money, he came around to the front and stabbed Floyd in the stomach. Floyd explained that "he stick into my liver. Had to operate on me that night." Floyd testified that he was in the hospital from December 25, 1974 to January 3, 1975 and that "they had me all sewed up, and I was too sore to raise up." Officer Stafford related that when he first saw Floyd on the night in question he observed blood on Floyd's abdomen and when Floyd pulled his shirt up he saw a one inch cut across the stomach.

The manner in which the knife was used and the wound inflicted were sufficient to bring the knife within the definition of the deadly weapon. V.T.C.A., Penal Code, § 107(a)(11)(B).

Appellant also complains he was denied his due process rights by an improper pre-trial identification...