Curry v. State

674 S.W.2d 495, 1984 Tex. App. LEXIS 5868
CourtCourt of Appeals of Texas
DecidedAugust 1, 1984
Docket2-83-362-CR
StatusPublished
Cited by6 cases

This text of 674 S.W.2d 495 (Curry v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Curry v. State, 674 S.W.2d 495, 1984 Tex. App. LEXIS 5868 (Tex. Ct. App. 1984).

Opinions

OPINION

HILL, Justice.

This is an appeal from a conviction for aggravated robbery. Punishment, enhanced by two prior felony convictions, was assessed by the jury at 90 years imprisonment in the Texas Department of Corrections.

In two grounds of error, Curry contends that the evidence was insufficient to show that the knife displayed in the commission of the offense was a deadly weapon and complains of the trial court’s refusal to quash a pretrial identification by the complaining witness.

We affirm.

The indictment in the instant case alleged, in pertinent part, that appellant, while in the course of committing theft, “did then and there use and exhibit a deadly weapon, to-wit: a knife that in the manner of its use and intended use was capable of causing serious bodily injury and death;..."

The record reflects that on February 4, 1983, Curry entered a convenience store, purchased an item, and returned to his car. Moments later, he again entered the store and presented another item for purchase. At that time, the only persons present in the store were Curry, the clerk (Carol Shet-ter), and a young boy (John Dollar) who was standing by the counter. After Curry [497]*497paid for the second item, the clerk took the change from the register and closed it, but when she attempted to return the change, Curry took a knife from his pocket and ordered her to reopen the register. He said, “I am not going to hurt you; just give me the money.” When Curry displayed the knife, Shetter was across the counter from him, a distance of approximately one and one-half to two feet. According to Shet-ter’s testimony, the distance was close enough that Curry could have struck her with the knife. Shetter also testified that although she noticed few details about the knife itself, she was afraid that Curry would hurt her with it. She said she was scared to death. She was five feet one inch tall while the appellant was more than six feet tall.

The evidence showed that when Shetter reopened the register, she immediately backed away from it. At that point, Curry leaned across the counter and removed the money from the register. According to Shetter’s testimony, Curry held the knife in one hand while he took the money out of the register with his other hand. He held the knife up where it could be seen. He never went toward the clerk with it. After he had taken the money, Curry warned Shetter and Dollar not to move, and then left the store. A security camera took a picture of the appellant as he left the store with the knife still in his hand.

Curry was arrested several days after this incident. Two knives, confiscated from the trunk of the automobile Curry was driving at the time of his arrest, were admitted into evidence at the trial. One of the knives appeared to be a “steak knife” and the other a “pocket knife.”

At issue is whether the evidence is sufficient to establish that the appellant committed aggravated robbery.

TEX.PENAL CODE ANN. § 29.03 (Vernon 1974) defines “aggravated robbery” as follows:

(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
(1) causes serious bodily injury to another; or
(2) uses or exhibits a deadly weapon.

[498]*498The definition of “deadly weapon” is contained in TEX.PENAL CODE ANN. § 1.07 (Vernon 1974):

(11) “Deadly weapon” means:
(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 is capable of causing death or serious bodily injury.

A knife is not a deadly weapon per se. Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983). The State can, without expert testimony, prove a particular knife to be a deadly weapon by showing its size, shape, and sharpness, the manner of its use, or intended use, and its capacity to produce death or serious bodily injury. Blain v. State, supra. In determining the deadliness of a weapon, the jury may consider all of the facts of a case, including words spoken by the accused. Blain v. State, supra.

In the instant case, there were no injuries. The knife was used to carry out a robbery. The appellant held the knife up so that it could be seen by his victim. The knife blade was at least three inches long. A picture of the knife was taken at the time of the robbery by the store security camera. The knife in the picture appears to have a blade longer than three inches. In any event, the blade of the knife in the picture appears to be long and it appears to be sharp. The appellant threatened the victim when he pulled out his knife and said, “I am not going to hurt you; just give me the money.” His statement carried the implied threat that if she did not give him the money that he would hurt her. As already noted, the appellant was much larger than the victim in that he was six feet tall or more, whereas she was only five feet one inch tall. He was in close physical proximity to her, so that he could have carried out his threat.

The real question at issue is whether, in the absence of expert testimony, a knife can be a deadly weapon in the absence of its actual use, either in terms of a wound to the victim or being placed next to the neck or side of the victim.

Expert testimony is not essential to establish that a knife is a deadly weapon, Denham v. State, 574 S.W.2d 129, 131 (Tex.Crim.App.1978), nor must wounds be inflicted before a knife can be determined to be a deadly weapon. Denham v. State, supra. It is also apparent from the penal code that the actual use of the knife is not necessary to support a finding that it is a deadly weapon. Section 29.03, in setting forth the elements of aggravated robbery, refers to one who uses or exhibits a deadly weapon. The definition of deadly weapon refers to the use or intended use of the weapon.

We hold that the factors in this robbery, such as the disparity in size of the appellant and the victim, the threat made by the appellant, coupled with the fact that he was carrying the long, sharp knife exhibited in the photograph and was close enough to the victim to use it, constitute sufficient evidence to establish that the knife by its use or intended use was capable of causing death or serious bodily injury and was therefore a deadly weapon.

The appellant, in asserting that the evidence is insufficient to establish that the knife is a deadly weapon, relies on the cases of Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744 (1942); Davidson v. State, 602 S.W.2d 272 (Tex.Cr.App.1980); Alvarez v. State, 566 S.W.2d 612 (Tex.Cr.App.1978); and Harris v. State, 562 S.W.2d 463 (Tex.Cr.App.1978).

The case of Ammann v. State, supra

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Curry v. State
674 S.W.2d 495 (Court of Appeals of Texas, 1984)

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674 S.W.2d 495, 1984 Tex. App. LEXIS 5868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curry-v-state-texapp-1984.