Moreno v. State

• Decision Date: 29 June 1988
• Docket Number: No. 763-86,763-86
• Citation: 755 S.W.2d 866
• Parties: Ricardo MORENO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 866

755 S.W.2d 866

Ricardo MORENO, Appellant, v. The STATE of Texas, Appellee.

No. 763-86.

Court of Criminal Appeals of Texas En Banc.

June 29, 1988.

Robert G. Turner, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Timothy G. Taft, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appeal is taken from a conviction for attempted capital murder of a peace officer. After finding appellant guilty, the jury assessed punishment at twenty-three years imprisonment.

The Fourteenth Court of Appeals, in a published panel opinion, reversed the conviction on five separate issues. Moreno v. State, 711 S.W.2d 382 (Tex.App.--Houston [14th Dist.] 1986). We granted the State's petition to review each of these and, after having done so, will reverse the judgment of the Court of Appeals as to the sufficiency of the evidence and affirm as to the remaining issues.

The State, in three grounds for review, attacks the Court of Appeals' determination that the evidence was insufficient to sustain the verdict. Specifically, in its first ground, the State asserts the evidence was sufficient to prove that the knife was a deadly weapon, in its second, that the evidence was sufficient to prove appellant's intent to commit murder and, in its fourth, the State asserts a general attack on the court's sufficiency analysis. We agree with each of the State's contentions and because they all refer to the sufficiency issue will address them collectively.

At the outset, we emphasize that the proper standard of review is that announced in Jackson v. Virginia: that the evidence must be viewed 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); Carlsen v. State, 654 S.W.2d 444, 448-449 (Tex.Cr.App.1983) (Opinion on State's Motion for Rehearing); Combs v. State, 643 S.W.2d 709, 716-717 (Tex.Cr.App.1982). This rule is by now axiomatic as well as committed to the memories of most. However, the drawback of such axiomatic law is that it becomes a rule which is often cited yet rarely seriously considered--a habit the State appropriately terms "lip service." Thus, it becomes necessary to quote, once again, the language from Jackson explicating this standard,

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must not be simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. [footnote omitted]. But this inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [citation omitted]. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [citation omitted].

Jackson, supra 443 U.S. at 318-319, 99 S.Ct. at 2788-2789.

Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence. Rather, it is to position itself as a final, due process safeguard ensuring only the rationality of the factfinder. The court is never to make its own myopic determination of guilt from reading the cold record. It is not the reviewing court's duty to disregard, realign or weigh evidence. This the factfinder has already done. The factfinder, best positioned to consider all the evidence firsthand, viewing the valuable and significant demeanor and expression of the witnesses, has reached a verdict beyond a reasonable doubt. ¹ Such a verdict must stand unless it is found to be irrational or unsupported by more than a "mere modicum" of the evidence, with such evidence being viewed under the Jackson light. Concrete application of the Jackson standard is made by resolving inconsistencies in the testimony in favor of the verdict. The court is to review the evidence as it is already weighted by the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, supra at 319-320, 99 S.Ct. at 2789-2790; Carlsen, supra at 448-449; Combs, supra at 716.

It is with this proper standard of review in mind that we now proceed to address the sufficiency issue. The relevant facts follow. At approximately 3:30 p.m. on July 10, 1984, Officer Salazar of the Houston Police Department was called to an apartment complex for an unrelated matter. While at the complex, the officer's attention was directed toward another disturbance, across the street from the complex involving appellant, who was intoxicated and brandishing a large hunting knife. ² As the officer approached, appellant began coming toward him with the knife. The officer, upon seeing appellant coming at him, stopped and began backing away and ordering appellant, in both Spanish and English, to drop the knife. Appellant shouted "Mata Me!" (Spanish for "Kill Me"!), continued his advance and refused to drop the knife. The officer, while backing away, dropped his clipboard and nightstick in order to draw his service revolver and radio for backup officers.

Appellant, undaunted by the officer's gun and repeated orders to drop the knife, continued to force the officer back for a total of thirty to forty feet, slowly narrowing the distance between the two. Throughout this two to three minute timespan the officer continually ordered appellant to drop the knife and appellant responded with statements like "no, you will have to kill me first" and "shoot me in front of all these people."

When appellant came within four feet from the officer, he lunged out with the knife directed at the officer's midsection. The officer jumped back to avoid being stabbed and shot appellant once in the hand. Appellant halted a moment and then lunged at the officer again with the knife. The officer then shot appellant a second time in the stomach. Appellant fell to the ground still clinching the knife and a bystander stepped on his hand, trying to remove the knife. Appellant broke free and stood up again attempting to get to the officer but only had enough energy to wave the knife in the air, take a few more steps and collapse.

The officer testified that he was in fear for his life, and numerous bystanders testified that they thought the officer was in life threatening danger. Appellant, testifying in his own behalf, stated that he had been drinking since 9:30 that morning and did not remember anything until waking up in the hospital.

The Court of Appeals found this evidence insufficient to prove an intent to commit murder. It approached the sufficiency question from the standpoint that murderous intent can be presumed from the use of a deadly weapon per se. Because a knife is not a deadly weapon per se, the court reasoned, its manner of use determines whether it is a deadly weapon. The court, utilizing circuitous reasoning, then concluded that because the knife was not used in a manner which evidences an intent to murder, it was not a deadly weapon, thus, the evidence was insufficient to prove an intent to murder. We disagree with both the analysis used and conclusion reached.

The Court of Appeals is correct only in that specific intent to kill may be inferred from the use of a deadly weapon per se, ³ Flanagan v. State, 675 S.W.2d 734 744 (Tex.Cr.App.1984) (Opinion on Rehearing), and that, although a knife is not a deadly weapon per se, it can qualify as such through the manner of its intended use. V.T.C.A., Penal Code Sec. 1.07(a)(11)(B); Tisdale v. State, 686 S.W.2d 110 (Tex.Cr.App.1984) (Opinion on State's Motion for Rehearing). The utility and logic of the rule that, in the appropriate context, murderous intent can be inferred from the use of a deadly weapon per se is self-evident. It is simply a means to provide due deference to the jury's determination of guilt. However, expansion of this rule to include such an inference where the weapon is not deadly per se, but where its manner of use exhibits an intent to kill, represents tautological reasoning. An inference in the latter case is superfluous.

When a defendant uses a weapon in such a manner that an intent to kill is exhibited, then an intent to kill can be directly concluded. It is unnecessary to take an extra step to determine whether the weapon is now a deadly weapon in order to infer an intent to kill. The very fact that a weapon was used in a deadly manner answers the question. See, e.g., Windham v. State, 162 Tex.Cr.R. 620, 288 S.W.2d 90, 92 (1956); Hatton v. State, 31 Tex.Cr.R. 586, 21 S.W. 679 (1893). Thus, our sufficiency review will focus on the relevant inference of appellant's intent from his acts, words and deeds, given the attendant circumstances, and dispense with the superfluous consideration of whether the knife can actually be defined as a deadly weapon. ⁴

The jury was charged on the lesser included offense of aggravated assault but chose to disregard such in order to convict appellant of attempted capital murder. Appellant's continuous encroachment on the officer, the threatening manner in which he brandished the knife, which was uncontrovertedly capable of causing death, his tenacious refusal to drop the knife and his final strikes out at the officer even after being shot, constitute sufficient evidence to support the jury's verdict.

The Court of Appeals' blanket conclusion that there was "no testimony that appellant at any time threatened to cause ... death to the officer" is absolutely...