Full Opinion (html_with_citations)

                                  IN THE
                          TENTH COURT OF APPEALS

                                   No. 10-22-00037-CR

CHRISTOPHER WAYNE HOGAN,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 440th District Court
                              Coryell County, Texas
                             Trial Court No. 20-26280


                          MEMORANDUM OPINION

      The jury convicted Christopher Hogan of the offense of aggravated assault with a

deadly weapon and assessed his punishment at fifteen years confinement. We affirm.

                             SUFFICIENCY OF THE EVIDENCE

      In the first issue, Hogan argues that the evidence is legally insufficient to support

his conviction for aggravated assault. In the second issue, he argues that the evidence of

a deadly weapon is insufficient.
       The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

       When addressing a challenge to the sufficiency of the evidence, we consider
       whether, after viewing all of the evidence in the light most favorable to the
       verdict, 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
,
61 L. Ed. 2d 560
 (1979); Villa v. State,
514 S.W.3d 227, 232
 (Tex.
       Crim. App. 2017). This standard requires the appellate court to defer “to
       the responsibility of the trier of fact fairly to resolve conflicts in the
       testimony, to weigh the evidence, and to draw reasonable inferences from
       basic facts to ultimate facts.” Jackson,
443 U.S. at 319
. We may not re-weigh
       the evidence or substitute our judgment for that of the factfinder. Williams
       v. State,
235 S.W.3d 742, 750
 (Tex. Crim. App. 2007). 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. Villa,
514 S.W.3d at 232
. Although juries may not speculate about the meaning of facts or
       evidence, juries are permitted to draw any reasonable inferences from the
       facts so long as each inference is supported by the evidence presented at
       trial. Cary v. State,
507 S.W.3d 750, 757
 (Tex. Crim. App. 2016)
       (citing Jackson,
443 U.S. at 319
); see also Hooper v. State,
214 S.W.3d 9, 16-17
       (Tex. Crim. App. 2007). We presume that the factfinder resolved any
       conflicting inferences from the evidence in favor of the verdict, and we
       defer to that resolution. Merritt v. State,
368 S.W.3d 516, 525
 (Tex. Crim.
       App. 2012). This is because the jurors are the exclusive judges of the facts,
       the credibility of the witnesses, and the weight to be given to the
       testimony. Brooks v. State,
323 S.W.3d 893, 899
 (Tex. Crim. App.
       2010). Direct evidence and circumstantial evidence are equally probative,
       and circumstantial evidence alone may be sufficient to uphold a conviction
       so long as the cumulative force of all the incriminating circumstances is
       sufficient to support the conviction. Ramsey v. State,
473 S.W.3d 805, 809
       (Tex. Crim. App. 2015); Hooper,
214 S.W.3d at 13
.
               We measure whether the evidence presented at trial was sufficient
       to support a conviction by comparing it to “the elements of the offense as
       defined by the hypothetically correct jury charge for the case.” Malik v.
       State,
953 S.W.2d 234, 240
 (Tex. Crim. App. 1997). The hypothetically
       correct jury charge is one that “accurately sets out the law, is authorized by
       the indictment, does not unnecessarily increase the State’s burden of proof
       or unnecessarily restrict the State’s theories of liability, and adequately
Hogan v. State                                                                              Page 2
       describes the particular offense for which the defendant was tried.” Id.; see
       also Daugherty v. State,
387 S.W.3d 654, 665
 (Tex. Crim. App. 2013). The “law
       as authorized by the indictment” includes the statutory elements of the
       offense and those elements as modified by the indictment. Daugherty,
387 S.W.3d at 665
.

Zuniga v. State,
551 S.W.3d 729, 732-33
 (Tex. Crim. App. 2018).

       Hogan and Kayla were in a dating relationship, and Hogan lived in Kayla’s home.

Kayla testified that on June 18, 2020, when she returned home from work Hogan wanted

her phone. She said it was not unusual for Hogan to go through her phone when she

came home. Kayla gave Hogan her phone, and she went into the bedroom and fell asleep.

She was awakened when Hogan came into the room screaming at her and said, “Tell me

why I shouldn’t smash your face in.” Kayla testified that Hogan jumped on top of her

and began to choke her by squeezing her neck. He eventually let go of her neck, but when

she tried to get up from the bed, he pulled her down by her hair.

       Kayla testified that Hogan then pulled out a knife and told her he was going to slit

her throat. Kayla was in fear for her life. She was able to call Hogan’s mother on the

phone, and they tried to calm him down. Hogan’s mother and her neighbor later arrived

at Kayla’s residence, and Hogan eventually left.

       Hogan returned the following morning, and Kayla called the Copperas Cove

Police Department. Officer Danny Belk responded to the call, and he testified that when

he arrived, Kayla was frantic. Officer Belk stated that Hogan was very upset and was

yelling at Kayla. Kayla told Officer Belk that she wanted Hogan to leave the house.


Hogan v. State                                                                         Page 3
Officer Belk told Kayla he could not make Hogan leave the house because it was his

residence, but he advised her how to begin the eviction process. Officer Belk testified

that at that time he had no reason to believe an assault had occurred. He then overheard

Kayla on the phone with Hogan’s grandmother, and Kayla told her that Hogan had

choked her. Officer Belk then pleaded with Kayla to tell him what had happened. Officer

Belk testified that Kayla said she did not want to get Hogan in trouble and that she did

not want Hogan to go back to jail. Officer Belk eventually left the residence.

       A few days later, Kayla went to the Copperas Cove Police Department and gave a

statement. Kayla also provided Officer Belk with pictures of bruises on her wrists that

she said occurred during the assault. Officer Belk then obtained an arrest warrant for

Hogan.

       Hogan first argues that the evidence is insufficient to support his conviction for

aggravated assault. He specifically argues that the jury could not have “rationally”

arrived at the verdict of guilt.

       A person commits the offense of aggravated assault with a deadly weapon if he

he: (1) intentionally, knowingly, or recklessly caused bodily injury to a person, and (2)

used or exhibited a deadly weapon during the commission of the assault. TEX. PENAL

CODE ANN. §22.01 (a) & § 22.02 (a) (West). Bodily injury is defined as “means physical

pain, illness, or any impairment of physical condition.” TEX. PENAL CODE ANN. § 1.07 (a)

(8) (West). This definition is purposefully broad and seems to encompass even relatively


Hogan v. State                                                                     Page 4
minor physical contacts so long as they constitute more than mere offensive touching.

Lane v. State,
763 S.W.2d 785, 786
 (Tex. Crim. App. 1989). Any physical pain, however

minor, will suffice to establish bodily injury. Garcia v. State,
367 S.W.3d 683, 688
 (Tex.

Crim. App. 2012).

       Kayla testified that Hogan put both of his hands around her neck and squeezed

her neck very hard. Kayla said that it left red marks on her neck, but no bruising. Kayla

further testified that Hogan pulled her down by her hair. Hogan threatened to smash in

her face, and he took out a knife and threatened to slit her throat. Kayla had pictures of

bruises on her wrists that she says occurred during the assault.

       The State also introduced messages between Kayla and Hogan in which Kayla told

Hogan “you could have killed me,” and he responded, “No. Or I would have. I stopped.”

The jury also saw the video from Officer Belk’s car. In that video, Kayla can be heard

telling Hogan’s grandmother that Hogan choked her. A jury could have rationally found

that Hogan intentionally, knowingly, or recklessly caused bodily injury to Kayla.

       Hogan next contends that there is insufficient evidence that he used or exhibited a

deadly weapon. The Texas Penal Code defines deadly weapon as, “anything that in 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). Serious bodily injury is defined as,

“bodily injury that creates a substantial risk of death or that causes death, serious




Hogan v. State                                                                      Page 5
permanent disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” TEX. PENAL CODE ANN. § 1.07 (a) (46) (West).

       While it is well settled that a knife is not a deadly weapon per se, it can be a deadly

weapon if the person using it intends to use it in a way in which it would be capable of

causing death or serious bodily injury. Williams v. State,
575 S.W.2d 30, 32
 (Tex. Crim.

App. 1979); Magana v. State,
230 S.W.3d 411, 414
 (Tex. App. —San Antonio 2007, pet.

ref’d). When no actual injury is sustained by the victim, the prosecution must introduce

evidence of other factors to establish that the knife is a deadly weapon. Magana v. State,
230 S.W.3d at 414
. The factors to consider include: (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) evidence of the knife's life-threatening capabilities, (5) the physical proximity

between the victim and the knife and (6) any words spoken by the one using the knife.
Id.

       The State does not have to introduce the knife into evidence to prove the knife was

a deadly weapon. Magana v. State,
230 S.W.3d at 414
. Expert testimony is not required to

prove that an object is a deadly weapon. Brickley v. State,
623 S.W.3d 68
, 76 (Tex. App. —

Austin 2021, pet. ref’d). The State is not required to prove that the actor actually intended

death or serious bodily injury.
Id.
 An object is a deadly weapon if the actor intends a use

of the object in which it would be capable of causing death or serious bodily injury.
Id.




Hogan v. State                                                                          Page 6
       Kayla did not suffer any injuries from the knife. Although the injuries suffered by

the victim can by themselves be a sufficient basis for inferring that a deadly weapon was

used, wounds need not be inflicted before an object can be determined to be a deadly

weapon. See Tucker v. State,
274 S.W.3d 688, 691-92
 (Tex. Crim. App. 2008); Brickley v.

State, 623 S.W.3d at 76. Kayla testified that the knife had a black handle, was wider than

a pocketknife, and that it got “got wider at the tip.” Kayla stated that Hogan used the

knife to scratch off lottery tickets. Kayla further testified that Hogan intended for her to

see the knife and feel threatened by the knife. Hogan was standing over Kayla while

holding the knife. Hogan told Kayla that he was going to slit her throat.

       The jury could have rationally found that Hogan used or intended to use the knife

in a way in which it would be capable of causing death or serious bodily injury. We find

that the evidence is sufficient to support the jury’s finding that he used or exhibited a

deadly weapon during the assault. We overrule the first and second issues on appeal.

                                       CONCLUSION

       We affirm the trial court’s judgment.




                                                 STEVE SMITH
                                                 Justice




Hogan v. State                                                                        Page 7
Before Chief Justice Gray,
       Justice Johnson, and
       Justice Smith
Affirmed
Opinion delivered and filed December 28, 2022
Do not publish
[CR25]




Hogan v. State                                  Page 8