William David Brumbalow v. State, 432 S.W.3d 348

Brumbalow was convicted of aggravated assault against a public servant and sentenced to 40 years.
Indictment alleged Brumbalow threatened with a knife and used a deadly weapon during an assault on a public servant, who was lawfully discharging duty.
Trial court instructed on a lesser-included offense for felony resisting arrest; Brumbalow sought a lesser-included instruction for misdemeanor resisting arrest.
Evidence centered on a confrontation with Hamilton County Sheriff’s Investigator Lance McLean where Brumbalow displayed a knife and was in close proximity during the arrest.
Jury found aggravated assault against a public servant; Brumbalow appealed, challenging the lesser-included-offense ruling and the deadly-weapon determination.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Lesser-included-offense instruction available	Brumbalow asserts misdemeanor resisting arrest is a lesser offense.	State concedes first-step test satisfied but argues not a lesser-included offense.	First step not met; misdemeanor resisting arrest not a lesser offense of aggravated assault.
Knife as deadly weapon	Brumbalow contends knife was not shown to be a deadly weapon in the manner used.	State argues knife was capable of causing serious injury and used to threaten.	Evidence supports that the knife was capable of causing serious injury and used in a threatening manner; sufficient for deadly-weapon finding.

Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) (two-step analysis for lesser-included-offense inquiry)
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (major step for determining eligibility of lesser offense)
Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) (framework for lesser-included-offense inquiries)
Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) (independent merits review of trial-charge error)
Moore v. State, 969 S.W.2d 4 (Tex. Crim. App. 1998) (definition of lesser-included offenses under art. 37.09)
Thomas v. State, 821 S.W.2d 616 (Tex. Crim. App. 1991) (knife generally not deadly weapon by design; may be deadly weapon by use)
Nickerson v. State, 69 S.W.3d 661 (Tex. App.—Waco 2002) (knife can be deadly weapon depending on use)
Vasquez v. State, 67 S.W.3d 229 (Tex. Crim. App. 2002) (credibility and weight of witness testimony)
Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001) (admission of evidence and review for sufficiency)
Revell v. State, 885 S.W.2d 206 (Tex. App.—Dallas 1994) (sufficiency standard includes consideration of all evidence)
Rivera v. State, 271 S.W.3d 301 (Tex. App.—San Antonio 2008) (factors for determining deadly weapon in knife cases)