Full Opinion (html_with_citations)

Opinion issued December 18, 2014




                               In The

                         Court of Appeals
                              For The

                     First District of Texas
                      ————————————
                         NO. 01-13-00532-CR
                      ———————————
                 WENFORD LETTSOME, Appellant
                                   V.
                  THE STATE OF TEXAS, Appellee



               On Appeal from the 351st District Court
                       Harris County, Texas
                   Trial Court Case No. 1347045



                     MEMORANDUM OPINION
      A jury found appellant, Wenford Lettsome, guilty of the offense of

aggravated assault of a family member.1         After appellant pleaded true to the

allegation in one enhancement paragraph that he had been previously convicted of

a felony offense, the trial court assessed his punishment at confinement for 25

years. The trial court also found that he used a deadly weapon, namely, a machete,

in the commission of the offense. In two issues, appellant contends that the

evidence is legally insufficient to support his conviction and the trial court erred in

denying him the right of allocution2 prior to the pronouncement of his sentence.

      We affirm.

                                    Background

      The complainant, Elleston Lettsome, testified that he lived in a house with

his wife, Alphonsine Lettsome, his cousin, appellant, appellant’s brother, Perseus

Penn, and various other individuals. He explained that appellant had “moody

ways,” would start arguments, and was “very controlling.” And appellant had

previously threatened the complainant, stating, “Bitch, I will bust you up, you

know that?” However, appellant did not have a weapon on him at the time he




1
      See TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011); see also TEX. PENAL
      CODE ANN. § 22.01(a)(2) (Vernon Supp. 2014); TEX. FAM. CODE ANN.
      §§ 71.0021, 71.003, 71.005 (Vernon 2014).
2
      See TEX. CODE CRIM. PROC. ANN. art. 42.07 (Vernon 2006).

                                          2
made the threat. The complainant further explained that appellant’s threats had

been “[g]etting worse” over time.

      On May 6, 2012, the complainant, while preparing a meal in the kitchen,

overheard appellant say unprovoked to Alphonsine, “If you touch me, I bust your

head open.” The complainant then confronted appellant, asking him why he was

“swearing at [his] wife.” In response, appellant “c[a]me up in [his] face” and said,

“You want to do something about it?” The complainant then, with his Bible, went

outside to sit on the front porch with Penn. Alphonsine also walked outside and sat

in the car parked in the driveway. The complainant then proceeded to discuss

Bible scriptures with Penn.

      Appellant subsequently exited the house, “came up” to the complainant with

a “machete in his hand,” and “sharpen[ed]” it. He “walked real close to [the

complainant], real close” and, while “[t]he machete was in his hand,” told the

complainant, “I’m going to chop you up.” From approximately five to six feet

away from the complainant, appellant spoke directly to him and “[p]oint[ed] right

at [him]” with the machete. He held the machete “like he was actually chopping,”

and he “pointed” and “shook” it at the complainant.

      The complainant felt “fearful,” “scared,” and “threatened,” and he “really”

thought that appellant would “chop [him].” The complainant “fear[ed] for [his]

life” and thought that appellant “would attack [him] with the machete for real.” He

                                         3
therefore went over to the car where Alphonsine was sitting, and they left the

house because they were both afraid.

      Alphonsine testified that on May 6, 2012, while appellant was in the living

room of the house cleaning, she “ease[d] around” him in order to get to the kitchen.

She explained that although she did not touch appellant, he told her that “if [she]

had touched him, he would bust [her] head open.” Appellant followed Alphonsine

into the kitchen and continued to say that “if [she] . . . touch[ed] him, he was going

to bust [her] head open.” The complainant, who had heard appellant, told him to

“[l]eave [Alphonsine] alone.” She then “went outside” to “avoid the angry man”

and sat in the car. She felt “very bad,” “upset,” “scared,” and “threatened.”

      While Alphonsine sat in the car, appellant “came out” of the backdoor of the

house “with the machete in his hand.” Appellant held the machete by the handle,

with its blade “pointed out,” and he “was very, very angry.” Alphonsine, however,

lost sight of appellant as he walked, and she could not hear what was happening

outside of the car. Although she did not see appellant “point the machete” at the

complainant, the complainant subsequently came over to the car, and they left the

house to get away from appellant.

      Alphonsine described living with appellant as “chaos.”          He would get

“[a]ngry about certain things,” and when angry, “[h]e just goes on and on talking,”

“raise[s] his voice,” “use[s] bad language,” and acts “like he want[s] to fight.”

                                          4
Alphonsine explained that when appellant does this, she feels “[r]eally upset” and

“scare[d].”

      Penn testified that on May 6, 2012, while he sat outside the house with the

complainant reading the Bible, appellant “c[a]me outside with a machete, sharp

like this.” He then said to the complainant, “I’m going to chop you up. . . . You

motherfucker, I going to chop you up.” Appellant, who “was mad,” told the

complainant that “he [was] going to chop him up into ground wheat.” Penn noted

that appellant also had a file in his hand and “was sharpening the machete” as he

approached the complainant. He “wav[ed]” the machete and “pointed” it at the

complainant when he said that he was going to chop him up. Penn estimated that

appellant stood approximately eight to ten feet away from the complainant at the

time that he threatened him, and Penn believed that appellant intended to hurt the

complainant. The complainant, who did “nothing,” then “got in the car [with

Alphonsine] and . . . left.” After Penn explained that he had used the machete to

cut vegetation overgrowth around the house, the trial court admitted it into

evidence.

      Houston Police Department Officer R. Smajstrla testified that a machete is

“a long . . . knife used to cut weeds and shrubs.” He explained that machetes vary

in lengths, but the ones he has seen are “1 to 2 feet in length.” Based on his




                                        5
experience, he opined that a machete is a deadly weapon because it can cause

serious bodily injury due to the length and sharpness of its blade.

                            Sufficiency of the Evidence

      In his first issue, appellant argues that the evidence is legally insufficient to

support his conviction because the State did not establish “that the

machete . . . [a]ppellant allegedly used qualified as a deadly weapon.”

      We review the legal sufficiency of the evidence by considering all of the

evidence “in the light most favorable to the prosecution” 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
, 318–19,
99 S. Ct. 2781
,

2788–89 (1979). Our role is that of a due process safeguard, ensuring only the

rationality of the trier of fact’s finding of the essential elements of the offense

beyond a reasonable doubt. See Moreno v. State,
755 S.W.2d 866, 867
 (Tex. Crim.

App. 1988). We give deference to the responsibility of the fact finder to fairly

resolve conflicts in testimony, weigh evidence, and draw reasonable inferences

from the facts. Williams v. State,
235 S.W.3d 742, 750
 (Tex. Crim. App. 2007).

However, our duty requires us to “ensure that the evidence presented actually

supports a conclusion that the defendant committed” the criminal offense of which

he is accused.
Id.




                                          6
       A person commits an assault if he “intentionally, knowingly, or recklessly

threatens another with imminent body injury.”           TEX. PENAL CODE ANN.

§ 22.01(a)(2) (Vernon Supp. 2014). A person commits the offense of aggravated

assault if he “commits assault as defined in [section] 22.01 and [he] . . . uses or

exhibits a deadly weapon during the commission of the assault.” Id. § 22.02(a)(2)

(Vernon 2011). A “deadly weapon” includes “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) (Vernon Supp. 2014). “‘Bodily injury’ means physical pain,

illness, or any impairment of physical condition.”         Id. § 1.07(a)(8).   And

“‘[s]erious bodily injury’ means bodily injury that creates a substantial risk of

death . . . .” Id. § 1.07(a)(46).

       Generally, a machete is “a large heavy knife used for cutting sugarcane and

underbrush and as a weapon.” Hill v. State, No. 13-05-00274-CR,
2006 WL 2382787
, at *3 (Tex. App.—Corpus Christi August 17, 2006, no pet.) (mem. op.,

not designated for publication) (internal quotation marks omitted); see also Francis

v. State, No. 01-11-01019-CR,
2013 WL 1694854, at *6
 (Tex. App.—Houston [1st

Dist. Apr. 18, 2013) (noting that machete is “a knife with a blade exceeding five

and one-half inches”), aff’d,
428 S.W.3d 850
 (Tex. Crim. App. 2014). While a

knife is not a deadly weapon per se, it may be a deadly weapon based on the nature

of its use or intended use. Thomas v. State,
821 S.W.2d 616
, 619–20 (Tex. Crim.
7 App. 1991
); Miller v. State,
177 S.W.3d 1, 4
 (Tex. App.—Houston [1st Dist.]

2004, no pet.). In fact, almost anything can be a deadly weapon depending upon

the evidence shown. Lane v. State,
151 S.W.3d 188
, 191 n.5 (Tex. Crim. App.

2004).

      To determine whether a particular knife is a deadly weapon, the following

may be 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; (4) the

proximity of the defendant and the complainant; (5) the use of any brandishing

motions; (6) statements, including threats, made by the defendant; (7) the

complainant’s fear of serious bodily injury or death; and (8) evidence of the

knife’s capacity to produce death or serious bodily injury. See Blain v. State,
647 S.W.2d 293, 294
 (Tex. Crim. App. 1983); Wingfield v. State,
282 S.W.3d 102, 107

(Tex. App.—Fort Worth 2009, pet. ref’d); Victor v. State,
874 S.W.2d 748, 751

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Notably, it is not necessary to

show that a complainant suffered any injury to establish that a particular knife is a

deadly weapon. Victor,
874 S.W.2d at 751
.

      Further, a fact finder may consider all the surrounding facts in determining

whether a knife constitutes a deadly weapon. Blain,
647 S.W.2d at 294
; Garcia v.

State,
17 S.W.3d 1, 4
 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Evidence

is sufficient to show that a knife was used in a manner that constitutes a deadly

                                         8
weapon when the knife was “displayed in a manner conveying an express or

implied threat that serious bodily injury or death [would] be inflicted.” Billey v.

State,
895 S.W.2d 417, 422
 (Tex. App.—Amarillo 1995, pet. ref’d). Expert or lay

testimony may be “independently sufficient” to support a deadly weapon finding.

Banargent v. State,
228 S.W.3d 393
, 398–99 (Tex. App.—Houston [14th Dist.]

2007, pet. ref’d).

      Appellant argues that “[t]he [e]vidence [d]id [n]ot [e]stablish the [m]achete

was [c]apable of [c]ausing [s]erious [b]odily [i]njury or [d]eath” because “the

machete held by . . . [a]ppellant was dull,” “[t]here was no testimony presented as

to the length of the machete . . . [or] aspects of th[e] particular machete [which]

gave it the potential to do harm,” and Officer Smajstrla only spoke “in general

terms and not specifically about the machete recovered” in this case.

      It is true that Officer Smajstrla did generally explain that a machete is “a

long . . . knife used to cut weeds and shrubs” and may cause serious bodily injury

due to the length and sharpness of its blade. However, the complainant specifically

testified that appellant “walked real close to [him]” with “[t]he machete in his

hand,” which appellant was “sharpening.”        And appellant, while holding the

machete, expressly told the complainant that he was “going to chop [him] up.”

Standing approximately five to six feet away from him, appellant spoke directly to

the complainant and “[p]oint[ed] right at [him]” with the machete, and he held the

                                         9
machete “like he was actually chopping” and “pointed” and “shook” it at the

complainant. The complainant explained that he “really” thought that appellant

was going to “chop [him],” and he felt “fearful,” “scared,” and “threatened.” The

complainant “fear[ed] for [his] life” and thought that appellant “would attack [him]

with the machete.”

      Penn similarly testified that appellant “c[a]me outside with a machete, sharp

like this,” and he told the complainant, “I’m going to chop you up. . . . You

motherfucker, I going to chop you up.” Appellant also said that “he [was] going to

chop [the complainant] up into ground wheat.” He “was mad,” and he sharpened

the machete as he approached the complainant, “wav[ed]” it, and “pointed” it at the

complainant as he said that he was going to chop him up. Penn estimated that

appellant stood approximately eight to ten feet away from the complainant at the

time he threatened him. And Penn believed that appellant intended to hurt the

complainant.

      Contrary to appellant’s assertions, there is no evidence in this case that the

machete was “dull.”     Instead, both the complainant and Penn attested to the

machete’s sharpness. Further, although neither the complainant, Penn, nor Officer

Smajstrla specifically described the machete used by appellant, we note that the

machete itself was admitted into evidence, thereby allowing the jury to observe its

characteristics. See Rodriguez v. State,
129 S.W.3d 551, 556
 (Tex. App.—Houston

                                        10
[1st Dist.] 2003, pet. ref’d) (“[B]ecause the knife found on [defendant] was

admitted into evidence, there was no need for testimony about the size and shape

of the knife, as [defendant] contends on appeal.”); see also Robertson v. State,
163 S.W.3d 730, 734
 (Tex. Crim. App. 2005) (explaining when “knife was admitted

into evidence, the fact-finder was in a position to observe all of [its]

characteristics”).

      In support of his argument that the evidence is legally insufficient to

establish that the machete was a deadly weapon, appellant relies on Davidson v.

State,
602 S.W.2d 272
 (Tex. Crim. App. 1980).            However, his reliance is

misplaced.    In Davidson, a jury convicted the defendant of the offense of

aggravated robbery, and he asserted on appeal that the evidence was insufficient to

prove that the knife he brandished during the robbery was a deadly weapon.
602 S.W.2d at 272
. The Texas Court of Criminal Appeals agreed, holding that the

evidence was “insufficient to show that the defendant used or intended to use the

knife so as to inflict serious bodily injury or death.”
Id. at 274
. In reaching its

decision, the court noted that the complainant suffered no wounds and he testified

that the blade of the knife was, at most, three inches long, he was five or six feet

away from the defendant, and he feared seriously bodily harm or death because a

friend of his had been previously hurt in a similar situation.
Id.
 The knife was not

introduced into evidence.
Id.

                                        11
      Notably, unlike in Davidson, the jury here was able to view the machete

used by appellant and observe and inspect its characteristics because it was

admitted into evidence.   The jury did not solely have to rely on testimony

regarding the machete’s characteristics. See Gosdin v. State, No. 2-08-274-CR,
2009 WL 1905378
, at *2 (Tex. App.—Fort Worth July 2, 2009, pet. ref’d) (mem.

op., not designated for publication) (distinguishing Davidson because in Gosdin

“actual knife was admitted into evidence, allowing the jury to assess whether the

knife was capable of causing death or serious bodily injury”); Hatchett v. State,
930 S.W.2d 844
, 848–49 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)

(distinguishing Davidson where knife used by defendant in Hatchett admitted into

evidence and holding evidence sufficient to show defendant used or exhibited

deadly weapon); Nunez v. State, No. 01-95-00106-CR,
1995 WL 679078
, at *1

(Tex. App.—Houston [1st Dist.] Nov. 16, 1995, pet. ref’d) (not designated for

publication) (distinguishing Davidson because knife used to commit robbery in

Nunez admitted into evidence and holding evidence sufficient to support deadly

weapon finding).

      Further, unlike the defendant in Davidson, appellant did not simply hold the

knife in his hand, but instead held the machete “like he was actually chopping,”

and “pointed,” “shook,” and “wav[ed]” it at the complainant. See McAnally v.

State, Nos. 05-91-01567, 05-91-01568-CR,
1993 WL 52469
, at *3 (Tex. App.—

                                       12
Dallas Feb. 26, 1993, no pet.) (not designated for publication) (distinguishing

Davidson because knife admitted into evidence in McAnally and defendant “made

slashing motions at the police officers with the knife, unlike Davidson who simply

held the knife in his hand”).

      And, the complainant in this case feared for his life because of the manner in

which appellant held the machete, “like he was actually chopping” and “pointed”

and “shook” it at him. Conversely, the complainant in Davidson merely feared

serious bodily injury or death because his friend had been injured in a similar

incident—in other words, the complainant’s fear had nothing to do with the

manner in which the defendant actually used the knife. See Vasquez v. State, No.

07-04-0482-CR,
2005 WL 2000705
, at *3 (Tex. App.—Amarillo Aug. 19, 2005,

no pet.) (mem. op., not designated for publication) (distinguishing Davidson where

complainant’s fear in Vasquez was “due to the manner in which [the rock] was

being used,” unlike complainant in Davidson who “feared the weapon because his

friend had been injured in a similar encounter”).

      Here, the evidence presented at trial revealed that: (1) the machete was

sharp and large enough for Penn to use it to cut vegetation overgrowth; (2) a

machete, in general, is a long knife, capable of inflicting serious bodily injury due

to the length and sharpness of its blade; (3) appellant, at the time of the offense,

was “real close” to the complainant; (4) appellant held the machete “like he was

                                         13
actually chopping” and “pointed,” “shook,” and “wav[ed]” it at the complainant;

(5) appellant told the complainant, “I’m going to chop you up. . . . You

motherfucker, I going to chop you up” and that “he [was] going to chop him up

into ground wheat”; and (6) the complainant felt threatened and afraid, thought

appellant would attack him with the machete, and feared for his life. See Blain,
647 S.W.2d at 294
; Wingfield,
282 S.W.3d at 107
; Victor,
874 S.W.2d at 751
. The

jury also was able to view the machete used by appellant because it was admitted

into evidence.

      Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that the jury could have reasonably found that the machete was capable

of causing death or serious bodily injury. Accordingly, we hold that the evidence

is legally sufficient to support appellant’s conviction of the offense of aggravated

assault of a family member.

      We overrule appellant’s first issue.

                               Right of Allocution

      In his second issue, appellant argues that the trial court erred in denying him

the right of allocution because it failed to inquire, prior to pronouncing his

sentence, as to whether appellant had anything to say as to why the sentence should

not be pronounced.




                                         14
      The Texas Code of Criminal Procedure provides:

      Before pronouncing sentence, the defendant shall be asked whether he
      has anything to say why the sentence should not be pronounced
      against him. The only reasons which can be shown, on account of
      which sentence cannot be pronounced, are:

      1. That the defendant has received a pardon from the proper
         authority, on the presentation of which, legally authenticated, he
         shall be discharged[;]

      2. That the defendant is incompetent to stand trial; and if evidence be
         shown to support a finding of incompetency to stand trial, no
         sentence shall be pronounced, and the court shall proceed under
         Chapter 46B; and

      3. When a person who has been convicted escapes after conviction
         and before sentence and an individual supposed to be the same has
         been arrested he may before sentence is pronounced, deny that he
         is the person convicted, and an issue be accordingly tried before a
         jury, or before the court if a jury is waived, as to his identity.

TEX. CODE CRIM. PROC. ANN. art. 42.07 (Vernon 2006). The purpose of this

provision is to allow a defendant to alert the trial court to any legal reason that may

not be of record that bars the imposition of punishment. Eisen v. State,
40 S.W.3d 635
 (Tex. App.—Waco 2001, pet. ref’d).

      The State asserts that appellant failed to preserve this issue for our review.

To preserve error for appeal, a party is required to make a timely, request,

objection, or motion to the trial court and obtain an express or implied ruling. See

TEX. R. APP. P. 33.1; Tenon v. State,
563 S.W.2d 622
, 623–24 (Tex. Crim. App.

1978) (holding defendant failed to preserve issue for review because did not object

                                          15
to trial court’s “failure to inquire of the appellant if she had anything to say why

the sentence should not be pronounced against her”); Nicholson v. State,
738 S.W.2d 59, 63
 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (“No error is

preserved, however, when an appellant does not object to the court’s failure to

provide appellant his right of allocution or when appellant fails to timely assert the

existence of any statutory reason set forth in art. 42.07 to prevent pronouncement

of sentence.”). Moreover, the complaining party on appeal must have clearly

conveyed to the trial court the particular complaint raised on appeal by “‘let[ting]

the trial judge know what he wants [and] why he thinks he is entitled to it,

. . . clearly enough for the judge to understand him at the time when the judge is in

the proper position to do something about it.’” Norton v. State,
434 S.W.3d 767, 771
 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (quoting Pena v. State,
285 S.W.3d 459, 464
 (Tex. Crim. App. 2009)).

      In his brief, appellant candidly admits that,

      the record does not contain any indication that the three legal reasons
      laid out in article 42.07 as to why sentencing should not be
      pronounced are present. That is, there is no indication that the
      [a]ppellant has received a pardon, was incompetent to stand trial, or
      that he escaped custody following conviction and was subsequently
      rearrested.

Nevertheless, appellant asserts that he preserved error through the following

exchange:



                                         16
      THE COURT:          All right. Stand up, Mr. Lettsome.

      ...

      THE COURT:          I’m going to find the punishment enhancement
                          paragraph to be true.

                          Upon that, I’m going to sentence you, Mr.
                          Lettsome, to 25 years confinement.

                          There will be an affirmative finding of a deadly
                          weapon. You will get credit for your back time.
                          See the bailiff.

      ...

      [Appellant]:        Your Honor, can I say something?

      THE COURT:          Step in the back.

      [Appellant]:        Thank you, Ms. Summers.

      [Trial counsel]:    You’re welcome, sir.

(Emphasis added.)

      Neither appellant nor his trial counsel clearly conveyed to the trial court

either a request that appellant be allowed to exercise his right of allocution or an

objection that the trial court violated his right. Simply, asking a trial court “can I

say something?” is not sufficient to preserve error.           See TEX. R. APP. P.

33.1(a)(1)(A) (requiring objecting party to “state[] the grounds for the ruling that

the complaining party sought from the trial court with sufficient specificity to

make the trial court aware of the complaint”); Norton,
434 S.W.3d at 771

                                         17
(defendant’s question, “[c]an I talk to you?” did not preserve error regarding trial

court’s denial of right of allocution). Accordingly, we hold that appellant has not

preserved this issue for appellate review.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Sharp, and Massengale.

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




                                         18