Christopher C. Brisker v. State

Opinion issued April 9, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00841-CR

__________

CHRISTOPHER C. BRISKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1049108

MEMORANDUM OPINION

Appellant, Christopher C. Brisker, with an agreed punishment recommendation

from the State, pleaded guilty to the offense of aggravated assault of a family

member. (1) The trial court deferred adjudication of appellant's guilt, placed him on

community supervision for seven years, and ordered him to pay restitution in the

amount of $3,500 and to perform 320 hours of community service.

The State subsequently filed a motion to adjudicate appellant's guilt, alleging

that he violated the terms and conditions of community supervision by, among other

things, committing the offense of aggravated assault in violation of the laws of the

State of Texas. (2) Appellant pleaded not true to these allegations. After conducting a

hearing on the State's motion, the trial court found, by a preponderance of the

evidence, the State's allegations to be true, found appellant guilty, and assessed his

punishment at confinement for twenty years.

In two points of error, appellant contends that the evidence is "legally and

factually insufficient" to support the trial court's adjudication of his guilt for

violations of the conditions of his deferred adjudication community supervision and

the trial court erred in assessing a sentence that is "excessive and disproportionate to

the crime committed."

We affirm. Factual Background Adelina Rodriguez, a community supervision officer, testified that, as a

condition of appellant's community supervision, appellant could not commit an

offense against the laws of the State of Texas. (3)

Canzata Drakes, appellant's friend, testified that in April 2008, she and her

husband, Michael Drakes, went to a company function with appellant. After the

function, the Drakes and appellant went to appellant's house to drop off the Drakes'

children and pick up appellant's girlfriend to visit a club. After staying at the club for

three hours, Canzata, the group's driver, told the group that it was time to leave, but

appellant, who had become intoxicated, did not want to leave. Appellant and Michael

argued over "petty stuff " on the drive to appellant's house, and, when the group

returned to appellant's house, appellant told Michael, "[Y]ou got to be glad that you

my cousin, you and your wife be dead right now." The Drakes were shocked and

scared and got out of their car to take their children from appellant's house. At some

point, appellant and Michael began arguing again and hitting each other. Canzata did

not see any weapons on her husband, and, when she then got out of the car, she saw

that her husband was "getting cut" by appellant, who was holding something small

in his hand and slashing it back and forth. Canzata realized that appellant had a knife

in his hands when she saw "so much blood" on her husband's torso and shoulders.

Michael told Canzata to get back in their car and take him to the hospital. The

Drakes then ordered their children, who had also exited the car during the fight, to get

back into the car. Canzata then drove her family away from appellant's house, but,

approximately five minutes later, appellant pulled up in a car next to the Drakes at a

stoplight. The Drakes tried to ask appellant why he was following them. Believing

that appellant had a gun, Michael exited the Drakes' car to block appellant from

hurting his family. Appellant, who was leaning out of the window of his car, reached

over and stabbed Michael again, this time in the face and hand. While appellant was

stabbing Michael, appellant kept saying, "he don't know me." Canzata saw her

husband grab something and then she heard a knife drop on the ground. Canzata

confirmed that her husband did not have any weapons on him. After Michael got

appellant's knife, appellant drove away, and Canzata called for emergency assistance.

To treat his injuries, Michael underwent surgery on his shoulder and in his lung

area. Canzata explained that her husband had also suffered internal bleeding, and the

doctors told her that appellant had missed stabbing her husband's lung by an inch.

Michael also received staples in his chest area and stitches on his face.

On cross-examination, Canzata agreed that as she and her husband left

appellant's house after picking up their daughters, her husband kicked a laundry

basket outside of appellant's house and that is when appellant and appellant's

girlfriend came out of their house. Canzata further testified that she saw a "little bit"

of the knife in appellant's hand at the stoplight and she could see appellant had

something in his hand.

Monesha Harris, the Drakes' daughter, testified that she saw her father and

appellant get into a fight outside of appellant's house, and she realized after her father

had started bleeding that he had been stabbed in his stomach. The Drakes all got into

their car, and the children began putting pressure on Michael's wounds to stop the

bleeding. Appellant then met up again with the Drakes at a stoplight, and he stabbed

Michael again in the face and hand. Harris saw a metallic blade in appellant's hand.

The family continued to apply pressure to Michael's wounds "so he wouldn't die."

Lannette Webb, appellant's fiancé, testified that on the evening in question, the

Drakes and appellant, who had been at a company function together, came to the

house she shared with appellant. The Drakes and Webb left their children at the

house, and then the four adults left together to go to a sports bar, where both Michael

and appellant became intoxicated. Michael became upset in the bar, and Michael and

appellant began arguing in the car on the way home. At some point, Michael opened

the back door of the car to try to push appellant out of the car. When the group got

to the house, appellant went inside the house to get the children. When Webb

returned outside, she saw Michael in the garage "cussing" and throwing things.

Webb and Canzata told Michael to leave, and he did. Then, appellant came out of the

house, Michael began "cussing" again, and appellant and Michael began fighting.

Webb did not see any weapons on either man. After the fight ended, the Drakes left,

Webb began to clean up the mess, and then appellant left to go to the store.

Appellant returned with a cigar, and Webb noticed a cut on appellant's hand. Webb

stated that there was blood in the driveway of her home, but she said it could have

been either Michael's or appellant's blood.

Appellant testified that he and the Drakes went to the company function, where

both he and Michael had "a couple" of drinks. The group then returned to appellant's

house and decided to go to a sports bar, along with appellant's fiancé. Michael

became intoxicated at the bar. Appellant stated that he did not get into any altercation

with Michael at the bar. However, on the way home, Michael tried to push him out

of the car, and appellant and Michael argued on the way home. When they got home,

appellant went inside the house, but, after receiving a phone call from a concerned

neighbor, he returned to the garage and saw that Michael had made a mess in the

garage and put holes in the sheet rock. Michael then began "cussing" at appellant

and ran up to appellant to fight him, but appellant fought off Michael. Appellant

denied having any weapon. As an explanation for Michael's injuries, appellant said

that, during the fight, he had lost his balance and had ended up on the ground. When

Michael placed his forearm on appellant to hold appellant down, appellant started

trying to fight Michael off. Appellant noticed something poking him while he was

on the ground, "like a little piece of metal or something," and he grabbed it and tried

to get Michael off of him. Appellant stated that he sustained a cut on his thumb in the

fight.

After the Drakes left, appellant went to the store to get a cigar, but then saw the

Drakes again on the road at an intersection a few minutes later. Michael came toward

appellant's car and began swinging at appellant, and appellant tried to push him off.

When the stoplight changed, appellant "peeled on off."

Standard of Review

Appellate review of an order adjudicating guilt is limited to determining

whether the trial court abused its discretion. Tex. Code Crim. Proc. Ann. art. 42.12,

§ 5(b) (Vernon Supp. 2008) ("This determination [to adjudicate guilt] is reviewable

in the same manner as a revocation hearing conducted under Section 21 of this article

in a case in which an adjudication of guilt had not been deferred."); see Rickels v.

State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) ("Appellate review of an order

revoking probation is limited to abuse of the trial court's discretion."). The trial

court's decision should be supported by a preponderance of the evidence. See id .

The evidence meets this standard when the greater weight of the credible evidence

creates a reasonable belief that a defendant has violated a condition of his community

supervision. Id . at 764 (quoting Scamardo v. State , 517 S.W.2d 293, 298 (Tex. Crim.

App. 1974)).

We must examine the evidence in the light most favorable to the trial court's

order. Garrett v. State , 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). As the sole

trier of fact, a trial court determines the credibility of witnesses. See id. ; Jones v.

State , 787 S.W.2d 96, 97 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd). To

support the trial court's order to adjudicate guilt, the State need only establish one

sufficient ground for revocation. See Moore v. State , 605 S.W.2d 924, 926 (Tex.

Crim. App. 1980) (stating that one sufficient ground for revocation is enough to

support trial court's decision); Joseph v. State , 3 S.W.3d 627, 640 (Tex.

App.--Houston [14th Dist.] 1999, no pet.).

Adjudication of Guilt

In his first point of error, appellant argues that the evidence is "legally and

factually insufficient" to support the trial court's adjudication of his guilt because he

testified that he was defending himself against Michael, he did not have a knife, he

only poked Michael with the unknown object because Drakes was beating on him, it

was pure accident that he met back up with the Drakes at the stoplight after the first

fight, and Michael approached him in his car during the second fight. Appellant also

asserts that Conzata never saw appellant with a knife and that Michael approached

appellant in his car at the intersection during the second fight. In sum, appellant

contends that "the greater weight of the evidence supports his contention that he

defended himself against the aggressor, [Michael] Drakes."

A person commits the offense of aggravated assault if the person intentionally

or knowingly threatens another with imminent bodily injury and uses or exhibits a

deadly weapon during the commission of the assault. Tex. Penal Code Ann.

§§ 22.01 (a)(2), 22.02(a)(2) (Vernon Supp. 2008). A deadly weapon is defined as

"anything that in the manner of its use or intended use is capable of causing death or

serious bodily injury." See id. § 1.07(a)(17)(B) (Vernon Supp. 2008). Although a

knife is not a deadly weapon per se, a knife can be found to be a deadly weapon based

on the nature of its use or intended use. Garcia v. State , 17 S.W.3d 1, 4 (Tex.

App.--Houston [1st Dist.] 1999, pet. ref'd). To determine whether a particular knife

is a deadly weapon, courts have 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; and (4) testimony about the knife's life-threatening capabilities. Id . The

physical proximity of the accused and the victim during the commission of the

offense may also be considered. See Brown v. State , 716 S.W.2d 939, 946 (Tex.

Crim. App. 1986).

Here, Conzata testified that appellant had become intoxicated at the sports bar,

appellant threatened the Drakes once they returned to his house, appellant and

Michael began fighting, appellant was holding something small in his hand and

slashing back and forth at Michael, and this item caused her husband to start bleeding

profusely on his torso and shoulders. After the initial fight and stabbing, the Drakes

left appellant's house, but appellant followed them in a car. The Drakes believed that

appellant was trying to harm them further, and Michael exited their car to protect his

family. Appellant then leaned out of his window and stabbed Michael again, and

Canzata saw her husband grab something and then heard a knife drop. Although she

never saw the weapon clearly, Canzata stated that she saw a "little bit" of the knife

in appellant's hand at the stoplight. Canzata also stated that her husband did not

have any weapons. Finally, Canzata testified that her husband suffered significant

injuries, including internal bleeding. Harris, the Drakes' daughter, also testified that

appellant had stabbed her father at the house and later at the intersection. Harris saw

a metallic blade in appellant's hand at the intersection, and, after the stabbing, she

applied pressure to her father's wounds and feared for his life.

Although appellant and appellant's fiancé testified to a different version of

events, even appellant testified that, during the fight, he had grabbed "a little piece

of metal or something" and tried to get Michael off of him. Appellant also agreed

that the Drakes left the house after the first fight, but he met up with the Drakes again

at an intersection. Although appellant contended that this second meeting was a

coincidence and that Michael was the aggressor, the trial court, as the sole trier of

fact, was entitled to determine the credibility of witnesses and reject appellant's and

Webb's testimony. The trial court could have reasonably found by a preponderance

of the evidence that appellant violated a term or condition of his community

supervision by committing the offense of aggravated assault by stabbing Michael

with a knife. As noted above, the State need only establish one sufficient ground for

revocation in order to support the trial court's order to adjudicate guilt. See Moore ,

605 S.W.2d at 926 . Accordingly, we hold that the trial court did not abuse its

discretion in adjudicating appellant's guilt.

We overrule appellant's first point of error.

Excessive or Disproportionate Sentence

In his second point of error, appellant argues that the trial court erred in

assessing its sentence because it is "excessive and disproportionate to the crime

committed" and violates the Eighth Amendment of the United States Constitution (4)

and article I, section 13 of the Texas Constitution. (5) Appellant asserts that the trial

court erred in failing to reinstate his community supervision.

The Eighth Amendment requires that a criminal sentence be proportionate to

the crime for which a defendant has been convicted. Solem v. Helm , 463 U.S. 277,

290 , 103 S. Ct. 3001, 3009 (1983) (citing U.S. Const. amend. VIII); see also

Baldridge v. State , 77 S.W.3d 890, 893 (Tex. App.--Houston [14th Dist.] 2002, pet.

ref'd) (stating that Eighth Amendment has narrow proportionality principle). The

Texas Constitution prohibits "cruel or unusual punishment." Tex. Const. art. I, § 13.

However, in order to preserve for appellate review a complaint that a sentence

is grossly disproportionate, constituting cruel and unusual punishment, a defendant

must present to the trial court a timely request, objection, or motion stating the

specific grounds for the ruling desired. See Tex. R. App. P. 33.1(a); Rhoades v. State ,

934 S.W.2d 113, 119-20 (Tex. Crim. App. 1996).

Here, after the trial court announced its sentence at the punishment hearing,

appellant made no objection to the trial court about the punishment assessed and did

not assert his claim under the Eighth Amendment and the Texas Constitution in the

trial court. Accordingly, we hold that appellant has waived his Eighth Amendment

cruel and unusual punishment complaints. See Ladd v. State , 3 S.W.3d 547, 564

(Tex. Crim. App. 1999) (concluding that defendant did not preserve cruel and unusual

punishment complaint for appellate review).

We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).

1. See Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2008).

2.

The State also alleged that appellant failed to report to his community supervision

officer, obtain suitable employment, perform community service at the ordered rate,

and pay required fees and restitution.

3.

Rodriguez also testified that appellant had to report to a community supervision

officer, obtain suitable employment, participate in a community restitution program,

perform community service, and pay certain fees. Rodriguez stated that appellant had

failed to report to his community supervision for a period of three months, had been

unemployed for several months, had failed to perform community service hours, and

had been delinquent in his payment of ordered fees and restitution. On cross-examination, Rodriguez admitted that she only had personal knowledge of appellant's

failure to report during a one-month period, and she agreed that appellant had

completed 208 of the 320 hours of required community service and that appellant had

been paying the required fees whenever he could.

4.

U.S. Const. amend. VIII .

5.

Tex. Const. art. I, § 13.