Brian Lee Turner v. State

Opinion issued November 15, 2018

In The

Court of Appeals

For The

First District of Texas

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NO. 01-17-00563-CR

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BRIAN LEE TURNER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Burleson County, Texas

Trial Court Case No. 14,833*

MEMORANDUM OPINION

Appellant Brian Lee Turner pleaded not guilty to aggravated assault with a

deadly weapon. After a bench trial, the trial court found Turner guilty and sentenced

*

Pursuant to its docket equalization authority, the Supreme Court of Texas

transferred this appeal from the Court of Appeals for the Tenth District of Texas to

this Court. See Misc. Docket No. 17–9066, Transfer of Cases from Courts of

Appeals (Tex. June 20, 2017); see also TEX. GOV’T CODE § 73.001 (authorizing

transfer of cases). We are unaware of any conflict between precedent of that court

and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.

him to seven years’ imprisonment. On appeal, Turner asserts that the evidence was

insufficient to support his conviction. It was not. We therefore affirm.

Background

Turner lived with his girlfriend, Lori Griffin, in a camper located on his

mother’s property. Both Turner and Griffin used methamphetamine and planned to

go to rehabilitation treatment on April 1, 2015. The night before they were scheduled

to go to treatment, Turner expressed a desire to postpone treatment, and an argument

ensued. Turner began hitting Griffin while yelling at her. Turner’s mother, Linda

Turner, heard the argument from the main house and came to investigate. Turner

said that he was going to kill Griffin, so Turner’s mother allowed Griffin to stay in

her house (away from Turner) overnight.

Early the next morning, April 1, 2015, Turner sent a text message to Griffin

requesting a towel, washcloth, soap, and methamphetamine. He said that he would

like to come to the main house to get these items. Griffin told him not to come; she

instead agreed to leave the items on the hood of her car, located halfway between

the camper and the main house. She did not leave methamphetamine for Turner

because she believed they were going to rehabilitation treatment that day. When

Turner realized he did not receive methamphetamine, he became angry and started

banging around the camper. Griffin testified that it sounded like he was taking a

hatchet or hammer to the walls of the camper.

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At Turner’s mother’s request, Griffin reluctantly went to the camper to check

on Turner. Turner’s mother agreed to stay on the porch while Griffin did this, but

she instead left and took Turner’s child to school. When Griffin looked in the open

doorway of the camper, she saw Turner on his knees holding a pocket knife to his

throat. Turner demanded that Griffin admit she was having an affair or he would kill

himself. Griffin did not answer his question and turned away.

As Griffin turned away, she saw Turner stand and “sling” the pocket knife at

her. She testified that as she turned away from Turner, all she could think was, “I’m

going to feel [the knife] in my back.” She had a broken screw in her back and was

not sure she would be able to run fast enough to escape. She left because she “wasn’t

waiting around to find out what he was going to do; whether he was going to throw

the knife, whether he was going to come beat the [cr-p] out of me, try to kill me like

he had promised the night before.”

Griffin ran from the camper to Turner’s mother’s house, locked the door, and

called 911. Griffin told the 911 operator that she wanted a welfare check on Turner.

After Turner started banging on the doors and windows of the main house and

threatening to kill her, Griffin made a second call to 911, in which she expressed

fear that Turner was going to kill her.

When the police arrived, Turner was banging on the door to his mother’s

house. The investigator at the scene recovered the pocket knife on the floor next to

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the doorway in the camper. Turner was taken into custody. In an interview with

police, Turner identified the knife as his and admitted that he had threatened to take

his own life.

At trial, Griffin testified that she was in an abusive relationship with Turner

and that she feared for her life “multiple times a day” for at least five months before

the knife incident. She explained that Turner once made her write a letter to a

constable confirming his delusions and stating that people in the community were

“out to get him.” She wrote the letter, even though it was untrue, because she

believed Turner would beat her if she did not write it. She testified that when she

occasionally went places without Turner, Turner timed her and imposed

consequences if she did not return in the allotted time.

When asked why she requested a welfare check in the first 911 call, Griffin

said that she wanted someone to come and she was afraid no one would help her

because she had asked for help in the past and had not received it. She also worried

that Turner would retaliate if he heard her say something negative about him on the

phone. She explained that Turner’s arrest did not alleviate her fears because he had

been arrested before and then released. She worried that once he was released again,

he could “come after” her and kill her. When asked why she told several people,

including Turner, that she was not afraid, she stated that she lied because she was

afraid Turner would get out of jail and retaliate. She thought that if he believed she

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was helping him, he would be less likely to “come after” her when he got out of jail.

And she explained that the day she learned that he would be getting out of jail, she

packed her belongings and lived in her truck for a week.

The State presented an expert witness on domestic violence. The expert

testified that leaving an abuser places a victim of domestic violence in heightened

danger. Therefore, the expert often coaches victims to prepare for the abuse to

escalate when the relationship ends. For safety’s sake, she routinely advises victims

to continue telling the abuser they love them and following old routines.

In addition, Investigator Andrea Murray, the investigating officer, testified.

Investigator Murray said that Griffin looked scared and spoke in a whisper when

Murray interviewed her on the day of the incident. Murray observed that Griffin had

a black eye and a wrist brace. Griffin told her that the injuries were from other

altercations with Turner. Investigator Murray testified that she found the pocket

knife in the camper, just inside the doorway, next to the wall. The knife blade was

open. She explained that both Turner and Griffin described the knife that she found.

The knife was admitted into evidence.

Turner identified the knife as belonging to him. He also admitted that he made

threats to his life with the knife.

The defense, in turn, presented witnesses and recorded phone calls between

Turner and Griffin. One of the defense’s witnesses recalled Griffin saying that

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Turner did not throw the knife at her. In the recordings of the phone calls between

Turner and Griffin while Turner was in jail, Griffin can be heard professing her love

for him and denying that Turner threw the knife at her. The testimony and recordings

also indicated that Griffin told several people that she was not threatened by Turner

and was upset that Turner was going to “get in trouble.”

Following the presentation of evidence, the trial court found Turner guilty of

aggravated assault with a deadly weapon and sentenced him to seven years’

imprisonment. Turner appealed.

Sufficiency of the Evidence

In his sole issue, Turner asserts there was legally insufficient evidence to

support his conviction. Specifically, he argues that there was insufficient evidence

to establish that the knife he used was a deadly weapon or that he threatened another

with imminent bodily harm. We disagree.

A. Standard of Review

We review the sufficiency of the evidence in the light most favorable to the

prosecution and then determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Villa v. State, 514

S.W.3d 227, 232 (Tex. Crim. App. 2017); see also Robinson v. State, 466 S.W.3d

166, 172 (Tex. Crim. App. 2015) (stating that the standard applies both to jury and

bench trials). This standard of review requires the appellate court to defer to the “trier

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of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Id. (citing Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). With respect to testimony

of witnesses, the factfinder is the sole judge of the testimony’s credibility and

weight, and when the record supports conflicting inferences, we presume that the

factfinder resolved the conflicts in favor of the verdict, and we defer to that

determination. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789). The weight given to contradictory

testimony is at the discretion of the trier of fact who evaluates demeanor and

credibility. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997).

In a sufficiency inquiry, direct and circumstantial evidence is equally

probative. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Deference to

the trier of fact extends to the inferences drawn from the evidence as long as the

inferences are reasonable ones supported by the evidence and are not mere

speculation. Id. Not every fact presented must directly show that the defendant is

guilty, so long as the cumulative force of the evidence is sufficient to support a

finding of guilt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015); see

also Villa, 514 S.W.3d at 232 (“The court conducting a sufficiency review must not

engage in a ‘divide and conquer’ strategy but must consider the cumulative force of

all the evidence.”).

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B. Applicable Law

A person commits an assault if the person “intentionally or knowingly

threatens another with imminent bodily injury.” TEX. PENAL CODE § 22.01(a)(2). “A

person acts intentionally, or with intent, with respect to the nature of his conduct or

to a result of his conduct when it is his conscious objective or desire to engage in the

conduct or cause the result.” Id. § 6.03(a). “A person acts knowingly, or with

knowledge, with respect to the nature of his conduct or to circumstances surrounding

his conduct when he is aware of the nature of his conduct or that the circumstances

exist.” Id. § 6.03(b). And “[a] person acts knowingly, or with knowledge, with

respect to a result of his conduct when he is aware that his conduct is reasonably

certain to cause the result.” Id. Bodily injury is defined as “physical pain, illness, or

any impairment of physical condition.” Id. § 1.07(a)(8).

The offense is enhanced to aggravated assault, a second-degree felony, if the

person “uses or exhibits a deadly weapon during the commission of the assault.” Id.

§ 22.02(a)(2), (b). A deadly weapon is “anything that in the manner of its use or

intended use is capable of causing death or serious bodily injury.”

Id. § 1.07(a)(17)(B).

C. Analysis

With the standard of review and the elements of the crime in mind, we turn to

the evidentiary record before us. Sufficient evidence supported the conviction. We

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reject Turner’s contentions that the evidence did not support the conclusions that

(1) he used a deadly weapon during the commission of the assault or (2) he

intentionally or knowingly threatened Griffin with imminent bodily injury. We

address each of Turner’s arguments in turn.

1. Deadly weapon

Turner argues that insufficient evidence supports the trial court’s

determination that he used or exhibited a deadly weapon during the commission of

the offense See TEX. PENAL CODE § 22.02 (a)(2). We disagree.

A knife is not per se a deadly weapon. See, e.g., Alvarez v. State, 556 S.W.2d

612, 614 (Tex. Crim. App. [Panel Op.] 1978); Hicks v. State, 723 S.W.2d 238, 240

(Tex. App.—Houston [1st Dist.] 1986, no writ.). But it can become one when “the

manner of its use or intended use is capable of causing death or serious bodily

injury.” TEX. PENAL CODE § 1.07(a)(17)(B); see also Johnson v. State, 509 S.W.3d

320, 323 (Tex. Crim. App. 2017) (not all knives are designed for the purpose of

inflicting serious bodily injury or death, so “the evidence is sufficient to support the

finding in this case only if the jury could have rationally found that [the defendant]

used the knife in such a way, or intended to use the knife in such a way, that it was

capable of causing serious bodily injury or death.”).

To determine whether the knife here was capable of being a deadly weapon

in its manner or intended use, we consider the size, shape, and sharpness of the knife,

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as well as its capacity to cause death or serious bodily injury, defendant’s proximity

to the victim, the manner in which the defendant used the knife, and the defendant’s

words or other threatening actions. See Johnson, 509 S.W.3d at 323. “These,

however, are just factors used to guide a court’s sufficiency analysis; they are not

inexorable commands.” Id. A knife does not need to inflict wounds nor is expert

testimony required before it can be determined to be a deadly weapon. Davidson v.

State, 602 S.W.2d 272, 273 (Tex. Crim. App. [Panel Op.] 1980).

Here, the knife was admitted into evidence. See Robertson v. State, 163

S.W.3d 730, 734 (Tex. Crim. App. 2005) (stating when knife is admitted into

evidence, the factfinder has “the opportunity to examine the weapon and ascertain

for itself whether the weapon had physical characteristics that revealed its deadly

nature.”). We presume the court observed the knife and its qualities, such as its size,

shape, and sharpness. See id. Investigator Murray testified that the blade was about

two inches long. See Johnson, 509 S.W.3d at 324 (“The video shows that [the

defendant] was holding the knife by its handle and that just the blade of the knife

appears to be a couple of inches long. Based on this, the jury could have reasonably

inferred that the knife was large enough and long enough such that it was capable of

causing serious bodily injury or death.”); Hicks, 723 S.W.2d at 239–40 (knife with

blade length of two and one-fourth inches was a deadly weapon). The trial court was

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free to evaluate the knife’s characteristics to determine whether it was capable of

causing death or serious bodily injury.

The trial court also had before it evidence concerning Turner’s words and

actions, the manner in which he used the knife, and his proximity to Griffin. Griffin

testified that she encountered Turner with the knife to his throat. When Griffin

opened the door, Turner was on his knees near the doorway. She explained that he

threatened to kill himself if she did not admit to having an affair. When she turned

to leave, he threw the knife in her direction. Griffin ran away and believed she would

feel the knife in her back. Investigator Murray’s testimony places the knife, blade-

open, near the entrance to the camper. Finally, Turner identified the knife and

admitted that he initially intended to use it to kill himself.

Based on the characteristics of the knife, Griffin’s testimony about Turner’s

words and actions, Turner’s proximity to Griffin, and Turner’s admission that he

intended to use the knife to kill himself, the trial court rationally could have found

that the knife was, in the manner of its use or intended use, capable of causing death

or serious injury.

2. Threat

We likewise hold that the trial court, as factfinder, could have found beyond

a reasonable doubt that Turner intentionally or knowingly threatened Griffin with

imminent bodily injury. The factfinder “may infer intent from any facts which tend

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to prove its existence, including the acts, words, and conduct” of the defendant. Hart

v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Dobbins v. State, 228 S.W.3d

761, 765 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d).

Here, there was sufficient evidence for the factfinder to conclude that Turner’s

actions of displaying a knife, threatening to use it, and throwing the knife at Griffin

were reasonably certain to place Griffin in fear or created an unacceptable risk that

she would be placed in fear (and was placed in fear). See, e.g., Keene v. State, No.

10-15-00389-CR, 2017 WL 1750073 at *2 (Tex. App.—Waco May 3, 2017, pet.

ref’d) (mem. op., not designated for publication) (citing Olivas v. State, 203 S.W.3d

341, 350 (Tex. Crim. App. 2006)). Again, when Griffin opened the door to the

camper, Turner was on his knees with a knife to his throat. When Griffin turned to

leave, Turner “came up off his knees and slung the knife at [her].” She ran to the

main house, locked the door, and called 911. He followed her to the house.

The trial court heard testimony from Griffin that she was afraid—and

reasonably so. She testified that, as she ran away, she was afraid she was going to

feel the knife in her back. The record is also replete with evidence that Turner

threatened Griffin on several occasions leading up to the incident. The court heard

testimony that he routinely placed her in fear of her life. At the time of the incident,

she had several other injuries from altercations with him. The night before the

incident, he threatened to kill her (and Turner’s mother therefore allowed Griffin to

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sleep in her home). And immediately before the incident, when Griffin did not give

Turner methamphetamine, he became irate and started “banging around his

house. . . . [I]t sounded like he was taking a hatchet or a hammer to the walls in

there.” See Olivas, 203 S.W.3d at 349 n.41 (Previous incidents with appellant

support logical inference that victim was in more cautious state of mind with

heightened awareness and was more likely to both perceive threat made by appellant

and perceive his acts as constituting threat.).

Turner argues that Griffin later made contrary statements, such as that he did

not throw the knife at her and that he was not trying to hurt her. But it is the duty of

the factfinder to weigh all evidence and testimony presented and assess credibility.

See, e.g., Thomas, 444 S.W.3d at 8. In addition to Griffin’s testimony at trial, the

court (as factfinder) heard the 911 call, Griffin’s interview with the responding

officer, and recorded conversations between the Griffin and Turner while he was

still in jail. The court also heard Griffin’s explanation that she told others that Turner

did not threaten her because she did not want to make the situation worse. A

domestic violence expert provided an explanation for her behavior and statements.

The court was free to examine all of the evidence, including the knife and its

location.

We presume that the trial court resolved the conflicting testimony in favor of

the verdict, and we defer to that determination. Id. This record contains sufficient

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evidence that Turner intentionally or knowingly threatened Griffin with imminent

bodily injury. See, e.g., Schmidt v. State, No. 10-07-00003-CR, 2008 WL 2454084,

at *4 (Tex. App.—Waco June 18, 2008, pet ref’d) (mem. op., not designated for

publication) (“[V]iewed in the light most favorable to the verdict, the evidence is

that Schmidt charged at Vercher brandishing a knife and a flashlight in a threatening

manner. This constitutes legally sufficient evidence to prove that Schmidt threatened

Vercher with imminent bodily injury.”); Keene, 2017 WL 1750073 at *2.

Conclusion

We affirm the judgment of the trial court.

Jennifer Caughey

Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.

Do not publish. TEX. R. APP. P. 47.2(b).

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