Full Opinion (html_with_citations)

                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                              FORT WORTH

                            NO. 02-09-00357-CR


SHAWN KELLY VINCE VINSON                                         APPELLANT
A/K/A SHAWN KELLY VINSON
A/K/A SHAWN VINCE VINSON

                                        V.

THE STATE OF TEXAS                                                     STATE


                                    ------------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ------------

                       MEMORANDUM OPINION1
                                     ----------
                                  I. Introduction

      Appellant Shawn Kelly Vince Vinson, a/k/a Shawn Kelly Vinson and Shawn

Vince Vinson, appeals his two convictions for aggravated assault with a deadly




      1
      See Tex. R. App. P. 47.4.
weapon.2 In two points, Appellant contends that the evidence is legally and

factually insufficient to establish the aggravating element of the assaults—that he

used or exhibited a deadly weapon. We affirm.

                             II. Factual Background

      On September 4, 2008, Tracy Geer was driving his fourteen-year-old

daughter Tara and his twelve-year-old son Julian home from school when

Appellant suddenly backed his car out onto the roadway, causing Geer to slam

on his brakes to avoid an accident. As both cars moved forward, Geer began

tailgating Appellant, who then slammed on his brakes. As Geer attempted to

pass, Appellant angled his car across the road and stopped.           When Geer

attempted to back up, Appellant followed. Finally, both men stopped, exited their

cars, and exchanged words. Geer testified that Appellant hopped out of his car

and hollered, ―You want some, Bitch?‖ and ―Do you want some?‖               As he

approached Geer, Appellant ―made sure‖ Geer saw him open what ―looked like a

utility kind of knife, that—the newer ones that you pop open.‖ In response, Geer

threw up his hands and said, ―Okay. Dude. I didn‘t know you was [sic] going to

come out with a knife.‖     As Geer turned to walk back to his car, Appellant

approached him from behind, grabbed him by the neck, and stuck the knife‘s

blade to his throat.    As the knife was ―sticking‖ into his throat, Geer felt a



      2
         See
Tex. Penal Code Ann. §§ 22.01
(a)(1), (2), 22.02(a)(2) (Vernon Supp.
2010).


                                        2
―stinging.‖3 In describing how he felt when he saw the knife, Geer testified, ―Well,

I guess you could say scared, yeah, scared for me and my kids.‖             He then

explained that he was ―scared maybe he—I would end up getting killed, cut,

killed or whatever right in front of my kids.‖ Geer testified that he felt like there

was an imminent threat to his person. When Appellant finally released him, Geer

got inside his car and saw ―all the blood.‖

      Geer felt trapped when he noticed Appellant hovering around the back of

the car. In an attempt to get Appellant to move his car and let them leave, Geer

pulled out his nine millimeter pistol (for which he had a valid concealed handgun

license) from the glove compartment and exited his car. Upon seeing the gun,

Appellant ran toward Geer, yelling, ―You want some more, bitch? What do you

got there? What have you got there?‖ As the two men stood within five feet of

one another, Appellant ―threw a punch‖ and ―cold-cocked [Geer],‖ breaking his

sunglasses in half and popping his head back. Geer responded by shooting

Appellant in the leg.    Appellant stepped back and sat down on the ground.

Appellant‘s claimed common-law wife, Amanda, who had been riding with

Appellant, hopped out of the car and went to Appellant‘s side.4


      3
        When the prosecutor asked Geer whether it hurt when Appellant placed
the knife to his throat, Geer answered, ―Yes and no. I think I was kind of in, you
know just shock or surprised. I could feel the sting but—.‖
      4
       Amanda and Appellant married shortly after the offense. At trial, Amanda
invoked her privilege not to testify against her husband. See Tex. R. Evid.
504(b).


                                          3
      As Geer paced back and forth, Appellant stated, ―It‘s okay. You can go

ahead and go. Just – just leave. I‘ll take care of this. Just go.‖ Geer got into his

car and drove approximately 100 yards, but then told his daughter to call 9-1-1

and returned to the scene.       As he waited for the authorities, Geer heard

Appellant say to a few people gathered around: ―We got in an argument and he

shot me.‖ When Geer approached the group and stated, ―because he brought

out a knife and stuck me with it,‖ Appellant responded, ―What knife? There‘s no

knife.‖ After an emergency medical technician (EMT) cleaned Geer‘s wound,

Geer went to the police station and gave a statement.5

      Geer‘s children, Tara and Julian, witnessed much of the incident from

inside the car—Julian sitting in the front passenger seat and Tara sitting in the

back. They generally corroborated the events described by their father. 6 Tara

testified that both men were making hand gestures and glaring at one another

before getting out of their cars. As Appellant approached their car from behind,

her father threw up his hands and said, ―All right, buddy. I didn‘t think you had to

pull out a knife.‖   When her father turned around to walk back to their car,

Appellant approached him from behind holding ―something silver in his hand‖ that


      5
        Geer was not charged with an offense. Lieutenant Johnny Rose testified
that, as lead investigator, he determined that Geer had acted within his lawful
rights in defending himself and his family.
      6
       Appellant and Geer‘s initial physical confrontation is most directly relevant
to the charged offenses; therefore, we focus primarily on testimony relevant to
this aspect of the incident.


                                         4
he ―swung up.‖        Tara testified that ―when he put my dad in a headlock, I‘m

guessing he stabbed him.‖ After a minute, Appellant released her father, who got

into the car with blood all over his shirt. Tara could not see her father‘s wound.

During cross-examination, Tara testified that she saw ―a flash of silver,‖ that she

was ―pretty sure it was a knife,‖ and that she did not see the knife‘s size.

          Julian testified that, when his father and Appellant exited their cars, they

were making faces and hand gestures and were yelling at one another. Julian

heard his father yell, ―What the hell is your problem?‖ Julian testified that, as the

two men approached one another, his father said, ―Man, I didn‘t know you were

going to pull out a knife.‖ As his father turned and walked back to the car,

Appellant grabbed him from behind and put his arm over his neck. From inside

the car, Julian could see only the two men from their chests down and could not

see Appellant‘s hands or whether he had a knife. After Appellant ordered Geer

back inside the car, Julian saw a cut on his father‘s neck and blood all over his

shirt.7

          Several other individuals witnessed various aspects of the offense. Three

young adults, Alston Herring, Ashley Watson, and Brandon Bobo, were riding in

the car together when they saw two cars parked on the side of the road and two

men arguing. They remained in their car parked approximately thirty yards away.


          7
        Julian identified photographs taken a few hours after the offense of his
father‘s neck wound and blood-stained T-shirt and of the dried blood on his
father‘s bare chest.


                                            5
Herring testified that one individual approached the other carrying ―what looked

like a knife in his hand,‖ although Herring was not ―a hundred percent sure‖ it was

a knife.8 He saw the two men engage in a struggle and then separate. When

defense counsel asked Herring if he was speculating that Appellant had a knife in

his hand, Herring stated, ―[F]rom what I saw with the man on the cut on his neck,

obviously it was [a] knife, some kind of sharp object.‖ Ashley Watson testified

that she did not remember seeing a knife. Brandon Bobo testified that, as the

two men (whom Bobo identified in court as Appellant and Geer) argued, Geer

turned around toward his car. Appellant suddenly grabbed Geer from behind,

and the two men scuffled. Bobo testified that ―[t]here was definitely something in

[Appellant‘s] hand. If – I don‘t know – there was definitely a blade. I don‘t know if

it was a steak knife, pocket knife, what it was.‖9

      EMT Samuel Daugherty testified that he was dispatched to the scene and

that he cleaned Geer‘s wound and covered it with gauze. Daugherty‘s written

report stated in part, ―Patient states that he was assaulted by an individual and

was struck in the head and neck with what appeared to be a box cutter.‖

Daugherty‘s report also stated that Geer‘s neck laceration was one-half or .5


      8
        On cross-examination, Herring acknowledged that his written statement to
the police did not mention a knife, explaining that he was focused on the shooting
at that time.
      9
       On cross-examination, Bobo testified that he did not remember whether
his written statement to the police mentioned a knife, and defense counsel
suggested that it did not.


                                          6
centimeters deep and about the size of a fingernail, and it described Geer‘s

wound as a ―minor laceration.‖      When defense counsel asked Daugherty if

Geer‘s laceration could have been caused by ―anything,‖ he replied, ―Obviously

some kind of trauma was sustained.‖

      Several witnesses testified that the knife was never recovered from the

crime scene. Geer identified a knife—displayed by the State for demonstrative

purposes only—as similar to the knife used by Appellant.10 Geer demonstrated

Appellant‘s use of the knife as he approached. Lieutenant Johnny Rose testified

that he was a fifteen-year veteran in the Hood County Sheriff‘s Department and

that, in his opinion, a box cutter is a knife and is capable of causing death or

serious bodily injury. When shown the State‘s demonstrative knife, Lieutenant

Rose testified that it was ―definitely‖ the type of knife that is capable of causing

death or serious bodily injury. Patrol Lieutenant Jim Cromwell testified that he

had thirty years of law enforcement experience and that he also participated in

this investigation. Regarding the State‘s demonstrative knife, Cromwell testified

that, ―without a doubt,‖ ―that knife is capable of creating serious bodily injury.‖




      10
         In attempting to introduce the demonstrative knife as an exhibit, the
prosecutor asked Geer if he believed it would aid the jury. Defense counsel
objected that Geer‘s opinion was irrelevant to the knife‘s admissibility. The trial
court sustained the objection and did not allow the State to introduce the knife
into evidence.


                                         7
The State also presented evidence suggesting that Amanda removed Appellant‘s

knife from the crime scene.11

      Appellant did not testify.   His primary defensive theory during the guilt

phase of trial was that the two men engaged in mutual, hand-to-hand combat but

that he never used or exhibited a knife.

                            III. Procedural Background

      Appellant pleaded not guilty to a two-count indictment charging him with

(1) intentionally, knowingly, or recklessly causing bodily injury to Tracy Geer by

cutting his neck and (2) intentionally or knowingly threatening imminent bodily

injury to Tracy Geer. Both counts alleged that Appellant ―use[d] or exhibit[ed] a

deadly weapon during the commission of the assault, to wit: a knife, that in the

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

injury.‖ As to each count, the jury found Appellant guilty of aggravated assault

      11
         Rachel Thompson testified that she saw the entire incident from the
passenger seat of her vehicle. Although she did not see a knife during the
altercations, Thompson testified that when Appellant was shot, ―it looked like he
was holding onto something [in his right hand] as he fell to the ground.‖ She also
testified that, while Appellant was sitting on the ground, the woman sitting next to
him, whom she identified as Amanda, got up, got into her car, sped away, and
came back.

       In addition, Nancy Covey testified that, after hearing a gunshot outside her
home, she saw Appellant and Amanda (both of whom she knew) in her driveway.
Once outside, Covey heard Appellant order Amanda to leave. According to
Covey, Amanda left and returned ten to fifteen minutes later. Covey also testified
that, one month before trial, she and others were at a neighborhood bar
discussing the type of knife used in this case, that Amanda was also at the bar
within earshot of the conversation, and that Amanda displayed a box blade that
resembled the State‘s demonstrative knife.


                                           8
with a deadly weapon as charged in the indictment.12 During the punishment

phase, Appellant pleaded ―true‖ to two enhancement paragraphs alleging prior

sequential felony convictions for assault of a public servant and burglary of a

building. The jury assessed punishment at ninety-nine years‘ confinement for

each count (to run concurrently), and the trial court sentenced Appellant

accordingly.   The trial court‘s judgment in each case reflects an affirmative

deadly weapon finding.

                             IV. Sufficiency of the Evidence

      In two points, Appellant contends that the evidence is legally and factually

insufficient to support the jury‘s finding that the knife used or exhibited during the

assault was a deadly weapon.13




      12
        In addition to instructing the jury on counts one and two, the court
instructed the jury on the lesser-included offense of assault as to each count.
      13
         Although Appellant does not concede that he used a knife during the
assault, we do not construe his arguments to include a challenge regarding the
sufficiency of the evidence to support this element of the offense. While
Appellant asserts that the evidence is legally and factually insufficient to establish
that he used or exhibited a deadly weapon, he specifies that the evidence is
legally insufficient ―[i]n particular‖ because ―a rational trier of fact must have had a
reasonable doubt that [he] intended a use of a knife in a manner which it would
be capable of causing serious bodily injury or death.‖ Because we ultimately
hold the evidence sufficient to prove that Appellant‘s knife constituted a deadly
weapon, we necessarily hold the evidence sufficient to prove that Appellant used
a knife while committing the assault.


                                           9
A. Standard of Review

      The court of criminal appeals recently held that there is ―no meaningful

distinction‖ between a legal-sufficiency standard under Jackson v. Virginia14 and

a factual-sufficiency standard under Clewis v. State.15      Brooks v. State,
323 S.W.3d 893, 912
 (Tex. Crim. App. 2010). ―[T]he Jackson v. Virginia standard is

the only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the State

is required to prove beyond a reasonable doubt. All other cases to the contrary,

including Clewis, are overruled.‖
Id.
 Accordingly, we will conduct a single review

of Appellant‘s sufficiency complaints under the Jackson standard, which asks

whether, in considering all the evidence in the light most favorable to the verdict,

the jury was rationally justified in finding guilt beyond a reasonable doubt. See

Jackson, 443 U.S. at 391, 99 S. Ct. at 2789; Clayton v. State,
235 S.W.3d 772, 778
 (Tex. Crim. App. 2007).

 B. Discussion

    A weapon can be deadly by design or use.16 See
Tex. Penal Code Ann. § 1.07
(a)(17)(A), (B). An ordinary knife is not a deadly weapon per se; that is, it is



      14
443 U.S. 307, 319
,
99 S. Ct. 2781, 2789
 (1979).
      15
922 S.W.2d 126, 129
 (1996), overruled by Brooks,
323 S.W.3d at 912
.
      16
        The penal code defines ―deadly weapon‖ as: (A) a firearm or anything
manifestly designed, made, or adapted for the purpose of inflicting death or
serious bodily injury; or (B) anything that in the manner of its use or intended use

                                        10
not an object manifestly designed, made, or adapted for the purpose of inflicting

death or serious bodily injury.
Id.
 § 1.07(a)(17)(A); Tucker v. State,
274 S.W.3d 688, 691
 (Tex. Crim. App. 2009) (citing McCain v. State,
22 S.W.3d 497
, 502–03

(Tex. Crim. App. 2000)). Instead, a knife becomes a deadly weapon if, in the

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

injury.
Tex. Penal Code Ann. § 1.07
(a)(17)(B); McCain,
22 S.W.3d at 503
. The

State‘s indictment and the court‘s jury instructions tracked this statutory

language, and the State bore the burden of proving that Appellant ―use[d] or

exhibit[ed] a deadly weapon during the commission of the assault, to wit: a knife,

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

serious bodily injury.‖

      Citing Thomas v. State, Appellant initially contends that the State bore the

burden of proving that he used, or intended to use, the knife in a manner that

would cause death or serious bodily injury.17 See
821 S.W.2d 616
, 620 (Tex.

Crim. App. 1991) (stating in part that ―utility knives . . . do not qualify as deadly

weapons unless actually used or intended to be used in such a way as to cause

death or serious bodily injury‖). Appellant asserts that a rational trier of fact

would have had a reasonable doubt about this ―manner of use‖ prong because



is capable of causing death or bodily injury.
Tex. Penal Code Ann. § 1.07
(a)(17)
(Vernon Supp. 2010).
      17
        Appellant also quotes from McCain to support his position, but as
explained below, Appellant reads McCain too narrowly. See
22 S.W.3d at 503
.


                                         11
the evidence demonstrates that he was merely ―trying to run off Geer, not kill

him.‖ Appellant emphasizes that (1) he never threatened to kill Geer; (2) any

exhibition or use of a knife was for a ―short duration‖; (3) Geer suffered only a

minor wound; and (4) Geer escaped from—or was released by—Appellant and

got back into his car.

      Appellant‘s reliance on Thomas is misplaced.         The court of criminal

appeals has held that the State is not required to prove specific intent to use the

object as a deadly weapon:

      The provision‘s plain language does not require that the actor
      actually intend death or serious bodily injury; 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. The placement of
      the word ―capable‖ in the provision enables the statute to cover
      conduct that threatens deadly force, even if the actor has no
      intention of actually using deadly force.

McCain,
22 S.W.3d at 503
 (citing Tisdale v. State,
686 S.W.2d 110
, 114–15 (Tex.

Crim. App. 1984)); see Bailey v. State,
38 S.W.3d 157
, 158–59 (Tex. Crim. App.

2001) (quoting McCain).      Notably, the McCain court also explained that the

language in its earlier Thomas opinion—stating that certain objects are not

deadly weapons ―unless actually used or intended to be used in such a way as to

cause death or serious bodily injury‖—was ―somewhat misleading‖ in that it made

a ―short-hand reference to subsection (B)‘s requirement while the Court focused




                                        12
upon the applicability of subsection (A).‖18 McCain,
22 S.W.3d at 503
. The court

noted that ―[a] subsequent paragraph in the opinion rectifies this omission by

including the word ‗capable‘ in its discussion.‖
Id.
 Thus, we rely on the above-

quoted language in McCain in analyzing Appellant‘s claim.

      Here, Geer testified that Appellant hopped out of his car, displayed an

open utility knife, and stated angrily, ―Do you want some, Bitch. Do you want

some?‖ Appellant then wrapped his arm around Geer‘s neck, stuck the point of a

blade to his throat, and cut him. Geer testified that he was scared Appellant

would kill him or ―cut him up‖ in front of his kids and that he felt an imminent

threat to his person. Additionally, Geer reenacted how Appellant approached

him with the knife. When the prosecutor demonstrated how the knife opened,

Geer agreed that Appellant opened his knife that way.19 Based on the evidence,

the jury could have reasonably construed Appellant‘s words as threatening harm




      18
       In Thomas, the issue was whether a ―shank‖ was a deadly weapon within
subsection (A) of the penal code‘s deadly weapon definition. See 821 S.W.2d at
617.
      19
         In conducting a sufficiency review, we presume the undescribed
demonstrations supported the jury‘s verdict. See Rogers v. State,
756 S.W.2d 332, 336
 (Tex. App.—Houston [14th Dist.] 1988 pet. ref‘d) (citing Gaona v. State,
733 S.W.2d 611
, 613–14 n.1 (Tex. App.—Corpus Christi 1987, pet. ref‘d)); see
also Morales v. State,
293 S.W.3d 901, 909
 (Tex. App.—Texarkana 2009, pet.
ref‘d) (holding that, as an appellate court, it was ―constrained to defer to the jury‘s
findings, based on its observation of the gestures and demonstrations at trial‖
which were ―not transcribed and which we cannot see‖).


                                          13
or injury20 and his conduct as assertive and aggressive. The jury also could have

reasonably considered that Appellant cut Geer in a particularly vulnerable part of

the body.21   Thus, the evidence was sufficient for the jury to conclude that

Appellant intended a use of the knife in which it would be capable of causing

death or serious bodily injury. See id. at 503. Cf. Stewart v. State,
198 S.W.3d 60
, 63–64 (Tex. App.—Fort Worth 2006, no pet.) (holding that knife taken by

defendant from the victim‘s residence during the burglary was capable of causing

serious bodily injury or death but that there was no evidence that, in the manner

of its use or intended use, it was capable of causing such injury where defendant

never threatened, tried to stab, cut, or otherwise hurt victim with the knife).

      Appellant additionally asserts that a rational juror could not have concluded

that the knife was capable of causing serious bodily injury because there is no

evidence that it was functioning.      In support of his position, Appellant cites

Mosley v. State,
545 S.W.2d 144
, 145–46 (Tex. Crim. App. 1976). The Mosley

court held that, in an assault-by-threat prosecution, an unloaded BB gun was not

a deadly weapon where the testimony showed that the gun‘s pellets would not

penetrate the skin; that it was never pointed at the victim‘s face; and that the


      20
        See Bailey v. State, No. 10-07-00381-CR,
2008 WL 5246683
, at *4 (Tex.
App.—Waco June 3, 2008, pet. ref‘d) (mem. op., not designated for publication)
(viewing as an expression of intent to inflict harm, ―‗You better get out of here
bitch ass n----‘ or something like that‖).
      21
         See Tucker,
274 S.W.3d at 692
 (noting common wisdom that the throat
is a particularly vulnerable part of the body (citing Morales, 633 S.W.2d at 868)).


                                          14
defendant never used the gun or threatened to use it as a bludgeon.             Id.

Appellant emphasizes that, in his case (1) the knife was never recovered (and

therefore no one examined it); (2) the demonstrative knife was insufficient to

establish, and should not be used to determine, whether the actual knife

functioned either fully or partially and how far the blade was capable of

protruding; and (3) Geer failed to testify to the size, length, or sharpness of the

blade of either the actual or the demonstrative knife.

      The State need not introduce the weapon into evidence when the victim

describes the weapon and the manner in which it was used. Billey v. State,
895 S.W.2d 417, 420
 (Tex. App.—Amarillo 1995, pet. ref‘d) (citing Morales v. State,
633 S.W.2d 866, 868
 (Tex. Crim. App. 1982)); see Magana v. State,
230 S.W.3d 411, 414
 (Tex. App.—San Antonio 2007, pet. ref‘d). Further, Texas caselaw

permits counsel to use jury aids that are not admitted into evidence to assist the

jury in understanding the evidence actually introduced.     Garner v. State,
939 S.W.2d 802, 807
 (Tex. App.—Fort Worth 1997, pet. ref‘d); see Runnels v. State,
193 S.W.3d 105, 114
 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (Keyes, J.,

concurring); Buie v. State, No. 14-95-00620-CR,
1998 WL 507750
, at *11 (Tex.

App.—Houston [14th Dist.] Aug. 20, 1998, no pet.) (not designated for

publication) (citing Garner). Jurors are entitled to use their common knowledge

and experience to make connections in terminology, and they are free to use

their common knowledge, observation, and experience gained in the ordinary

affairs of life when giving effect to the inferences that may be reasonably drawn

                                        15
from the evidence. Wawrykow v. State,
866 S.W.2d 87
, 88–89 (Tex. App.—

Beaumont 1993, pet. ref‘d) (citing United States v. Heath,
970 F.2d 1397, 1402

(5th Cir. 1992)); see Moore v. State, No. 03-98-00584-CR,
1999 WL 816743
, at

*2 (Tex. App.—Austin Oct. 14, 1999, no pet.) (not designated for publication)

(noting that juries can use common knowledge and experience to determine that

a box cutter is also known as a utility knife).        Consequently, Appellant‘s

complaints regarding the unavailability of the actual knife, the State‘s use of a

demonstrative knife, and Geer‘s description of the knife‘s blade are without merit.

      Further, the Mosley case cited by Appellant is inapposite.        Unlike the

affirmative evidence in Mosley that the BB gun was not capable of causing death

or serious bodily injury, there was evidence in Appellant‘s case from which a jury

could have rationally inferred that Appellant‘s knife was capable of causing death

or serious bodily injury. See Adame v. State,
69 S.W.3d 581
 (Tex. Crim. App.

2002). In Adame, the defendant entered a convenience store with a BB gun; the

store clerk feared for her life when he pointed the gun at her and demanded all

the money; and a police investigator testified that the defendant‘s BB gun ―could

cause serious bodily injury if it were pointed and fired at someone.‖
Id. at 581
.

The intermediate appellate court held that the evidence was insufficient to

support the jury‘s deadly weapon finding because the State did not present

evidence that the BB gun was loaded.
Id.
   The court of criminal appeals

concluded, however, that whether the gun was loaded was not significant to the

analysis.
Id. at 582
. ―What is significant is that appellant‘s BB gun was capable

                                        16
of causing serious bodily injury.‖
Id.
 (citing McCain,
22 S.W.3d at 503
 and

comparing Mosley, 545 S.W.2d at 145–46).           The court stated that it is not

necessary to place an additional evidentiary burden on the State to affirmatively

prove that a BB gun was loaded at the time of the commission of the offense.
Id.

―[I]n proving the use of a deadly weapon other than a deadly weapon per se, the

State need show only that the weapon used was capable of causing serious

bodily injury or death in its use or intended use.‖
Id.
 The court held that, with

testimony that a BB gun is capable of causing serious bodily injury, it is

reasonable for a jury to make a deadly weapon finding.
Id.
 The court also held

that a jury may rationally infer that the BB gun used during a convenience store

robbery is loaded when a defendant threatens serious bodily injury to the clerk

and points the BB gun at her.
Id. at 582
.

      Here, Geer testified that Appellant‘s knife resembled a ―utility kind of knife,‖

one of the ―newer ones that you pop open,‖22 and he identified the demonstrative

knife as resembling Appellant‘s knife. Geer testified that Appellant stuck the

knife‘s blade to his throat and that he felt a stinging and that he saw blood. The

jury could have reasonably considered that the knife‘s blade was sharp enough

to inflict injury and that Appellant inflicted the wound in a vulnerable area. See

Tucker,
274 S.W.3d at 692
 (noting that a stab wound to the back of the neck

near the spine ―would seem to carry at least some potential for resulting in a

      22
        Geer told EMT Daugherty that Appellant struck him with ―what appeared
to be a box cutter.‖


                                         17
serious bodily injury such as paralysis or death‖). Lieutenant Rose testified that a

box cutter is a knife, that it is capable of causing death or serious bodily injury,

and that the demonstrative knife was ―definitely‖ capable of causing death or

serious bodily injury. Patrol Lieutenant Cromwell also testified that ―without a

doubt‖ the demonstrative knife was capable of causing serious bodily injury.

Thus, the evidence was sufficient for the jury to conclude that the knife Appellant

used was capable of causing serious bodily injury or death in its use or intended

use.

       Viewing the evidence in the light most favorable to the verdict, we hold

that the evidence is sufficient to support the jury‘s findings.       We overrule

Appellant‘s first and second points.

                                       V. Conclusion

       Having overruled each of Appellant‘s two points, we affirm the trial court‘s

judgments.



                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 30, 2010




                                         18