# Hernandez v. State

> Court of Appeals of Texas · August 31, 2016 · 501 S.W.3d 264

URL: https://www.frixlaw.com/law-library/cases/5285963

## Case

- **Full name:** Jose HERNANDEZ v. The STATE of Texas, State
- **Court:** Court of Appeals of Texas
- **Decided:** August 31, 2016
- **Citations:** 501 S.W.3d 264; 2016 Tex. App. LEXIS 9820; 2016 WL 4539542
- **Precedential status:** Published
- **Opinion:** Dissent by Walker
- **Judges:** Gardner, Livingston, Walker
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5285963

## How later opinions describe it (automated extraction)

- holding circumstantial evidence was sufficient when witness testified she did not see knife, only something shiny, and knife was found in defendant’s car shortly after he was pulled out of it
- holding that circumstantial evidence may support a deadly weapon finding when victim did not see knife that was used
- holding circumstantial evidence sufficient to establish defendant had putty knife and used it in robbery

## Opinion text

SUE WALKER, JUSTICE,
dissenting
I. Introduction
The majority states that Appellant Jose Hernandez “does not challenge ... the jury’s implicit finding that the putty knife qualified as a deadly weapon under the penal code.” Because I believe that Hernandez raised this issue—particularly when considering our duty to- liberally construe his brief—and because the majority does not address it, I respectfully dissent.
II. Did Hernandez Raise the DeadlyWeapon Issue?
A, Hernandez’s Brief
Hernandez raised the following sole point of error in his brief: ‘Was the evidence at trial.sufficient to sustain the conviction for aggravated robbery?” In the argument section of his brief, Hernandez noted that the State is required to prove each element of an offense beyond a rea *272 sonable doubt, and he argued that “there is insufficient evidence for the jury to have found beyond a reasonable doubt that [he] committed the offense of aggravated robbery.” Hernandez specifically complained that “[t]he State failed to prove that [he] committed the offense of aggravated robbery because there is no evidence to support the jury’s finding that he used or exhibited a deadly weapon—a knife.”
The State treated Hernandez’s brief as if it had raised the deadly-weapon issue. The State framed Hernandez’s appeal as a challenge to “the sufficiency of evidence proving he used or exhibited a deadly weapon.” Noting that “[a]n item is a deadly weapon if the manner of its use or intended use is capable of causing death or serious bodily injury,” the State argued that the subject putty knife was “capable of causing serious bodily injury.” Thus, according to the State, “the evidence legally sufficed to prove [Hernandez] used or exhibited a deadly weapon during the robbery.”
Despite both Hernandez and the State making arguments as to whether Hernandez used or exhibited a deadly weapon, the majority does not address whether the subject putty knife was in fact a deadly weapon. Instead, the majority declares that Hernandez did not challenge whether the putty knife was a deadly weapon, and as such, the majority simply concludes that “a rational jury could have found beyond a reasonable doubt that appellant used or exhibited the putty knife” (i.e., not “the deadly weapon”). [Emphasis added.]
B. Sufficiency of the Evidence in Aggravated Robbery Cases
In reviewing whether the evidence is sufficient'to support a conviction; we are to view the evidence in the light most favorable' to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979). One of the essential elements of the offense of aggravated robbery—the offense at issue here—is whether the defendant used or exhibited a deadly weapon in the course of committing a robbery. See Williams v. State, 240 S.W.3d 293, 298 (Tex.App.-Austin 2007, pet. ref'd) (holding that the use or exhibition of a deadly weapon is an essential element of aggravated robbery); Brown v. State, 212 S.W.3d 851, 859 (Tex.App.-Houston [1st Dist.] 2006, pet ref'd) (op. on reh’g) (same), cert. denied, 552 U.S. 1151 , 128 S.Ct. 1088 , 169 L.Ed.2d 825 (2008).
Knives—like the putty knife at issue here—are not deadly weapons per se. Clark v. State, 444 S.W.3d 671, 678 (Tex.App.-Houston [14th Dist.] 2014, pet. ref'd); Stewart v. State, 198 S.W.3d 60, 63 (Tex.App.-Fort Worth 2006, no pet.). An item is a deadly weapon if the “manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07 (a)(17)(B) (West Supp. 2016). To determine whether a knife is a deadly weapon, we may consider: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) any evidence of the knife’s life-threatening capabilities; (4) the nature or existence of any inflicted wounds; (5) threats or gestures used by the defendant; and (6) the physical proximity between the victim and the knife. Martinez v. State, No. 02-11-00100-CR, 2012 WL 1059465 , at *3 (Tex. App.-Fort Worth Mar. 29, 2012, no pet.) (mem. op., not designated for publication) (citing Victor v. State, 874 S.W.2d 748, 751-52 (Tex.App.-Houston [1st Dist.] 1994, pet. refd)).
C. Our Duty to Liberally Construe a Brief
We are to construe briefs liberally. See Tex. R. App. P. 38.9; Goyzueta v. State, *273 266 S.W.3d 126, 133 (Tex.App.-Fort Worth 2008, no pet.). We do this to avoid waiver and to obtain a just, fair, and equitable adjudication of litigants’ rights. Rivera v. State, 130 S.W.3d 454, 459 (Tex.App.-Corpus Christi 2004, no pet.); Marroquin v. State, 112 S.W.3d 295, 303 (Tex.App.-El Paso 2003, no pet.). We are to address every subsidiary question that is fairly included within a particular point or issue. Ramsey v. State, 249 S.W.3d 568 , 577 n. 5 (Tex.App.-Waco 2008, no pet.); see Tex. R. App. P. 38.1(f) (“The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.”). If we are able to ascertain the nature of the complaint from the argument, the issue will be preserved for appellate review. Sanchez v. State, 98 S.W.3d 349, 355 (Tex.App.-Houston [1st Dist.] 2003, pet. ref d).
D. Hernandez Raised the Deadly-Weapon Issue
Hernandez’s sole point of error is that the evidence was insufficient to support his conviction for aggravated robbery. As an essential element of that offense is whether Hernandez used or exhibited a deadly weapon in the course of committing the robbery, the majority should have addressed whether the subject putty knife was a deadly weapon. See Williams, 240 S.W.3d at 298 ; Brown, 212 S.W.3d at 859 ; see also Ramsey, 249 S.W.3d at 577 n. 5 (we are to address “every subsidiary question that is fairly included” within a particular point or issue). Nothing about how Hernandez framed his issue would indicate that he was limiting his argument to only some of the elements of the offense. Hernandez specifically argued that “there is no evidence to support the jury’s finding that he used or exhibited a deadly weapon,” and the State addressed whether the putty knife was a deadly weapon when it stated' that the subject putty knife was “capable of causing serious bodily injury.”
Thus, I believe—particularly when construing Hernandez’s brief liberally in his favor—that Hernandez raised the issue of whether the subject putty knife constituted a deadly weapon. See Tex. R. App. P. 38,9; Goyzueta, 266 S.W.3d at 133 .
III. Conclusion
For the reasons set forth above, I believe the majority should have addressed whether the putty knife at issue constituted a deadly weapon. Because the majority did not, I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5285963. Public record. Not legal advice.