[464]*464OPINION
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for the offense of aggravated robbery. The jury assessed punishment at thirty-five years.
Appellant, by way of pro se brief, urges that the evidence is insufficient to show that the weapon used was a deadly weapon.
Appellant was indicted for the offense of aggravated robbery under V.T.C.A. Penal Code, Sec. 29.03(a)(2), with the indictment reading, in pertinent part, that on or about June 5, 1976, the appellant
“ . . . did unlawfully, then and there while in the course of committing theft and with intent to obtain and maintain control of the property, of ROBERT J. HARPER, hereinafter called ‘Complainant’ the said property being current money of the United States of America, without the effective consent of the Complainant and with intent to deprive the said complainant of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a knife, intentionally and knowingly threaten and place the said complainant in fear of imminent bodily injury.”
On September 7, 1976, appellant entered a plea of not guilty before a jury, and represented himself pro se during the trial of this case, with the assistance of court-appointed counsel. The State’s evidence reflected that the complaining witness, Robert J. Harper, had been to a Dallas nightclub on the evening of June 4,1976, leaving that establishment at approximately 1:00 a.m. on the morning of June 5th to walk to his home a few blocks away. While walking down the street, he was accosted by appellant, who stated, “I have a knife and I want your money, your billfold.” A struggle ensued during which the complaining witness received cuts on his right elbow, his chin, and under his throat. The appellant managed to secure Harper’s billfold during the struggle and, as appellant attempted to flee the scene, he was arrested by a nearby police officer. At the time of appellant’s arrest, he was searched and a pocket knife with a four-inch blade was found on his person.
The complaining witness further testified that, while he never saw appellant with a knife, he believed that appellant did have a knife, and that the injuries incurred had left scars on his body. No medical testimony was presented concerning the severity of the injuries. The complaining witness stated that he did not go to a hospital or receive any medical attention or stitches on these cuts.
Officer E. W. Smith, an eyewitness to the incident in question, testified, “ . . .1 felt like one of them had some type of weapon, but it was dark and I couldn’t tell for sure.” Smith related that he felt that appellant was the one with the weapon because of “The way he made a movement towards the victim. * * * It was kind of a slashing move.” The record reflects that the prosecutor then asked, “ . Indicating that he might have had a knife or something to slash with?” and Smith answered, “Yes, sir.”
Officer James D. Mercer testified that he arrived at the scene after appellant had been taken into custody. His testimony relative to Harper’s injuries reflects the following:
“Q. [Prosecutor] Did you have occasion to observe any wounds on Mr. Harper?
“A. Yes, sir, he had several.
“Q. Okay. Do you recall any in particular?
“A. I saw them all.
“Q. Where were they, as best you recall?
“A. There was a slash wound on the right side of his neck about two or three inches long; there was a small nick here; he had a cut on his elbow; and he raised his shirt to tell us about a cut on his stomach. * * * * ⅜ ⅝
“Q. Did they appear to be serious to the extent that he would require any hospitalization or stitches or anything like that?
“A. No, sir, they weren’t that serious.”
[465]*465Mercer stated that he had over sixteen years of experience as a police officer, had seen “many injured in every type of way,” and that “at least three of these wounds appeared to be cut wounds. . . . ”
Appellant urges that under our recent decision in Danzig v. State, Tex.Cr.App., 546 S.W.2d 299, the evidence is insufficient to sustain a conviction for aggravated robbery since the knife was not a deadly weapon per se and there was no testimony that the injuries inflicted upon the complaining witness could have caused “death or serious bodily injury.”
V.T.C.A. Penal Code, Sec. 1.07(a)(11), defines “Deadly Weapon”:
“(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.”
The dissent, in urging that the evidence is sufficient to sustain the conviction and that Danzig should be overruled, states that while this Court has often held that a pocket knife is not a deadly weapon per se, it has held with equal frequency that it may qualify as a deadly weapon through the mode and manner of its use and that the wounds inflicted on the injured party may be looked to in determining this issue. We agree with this statement of the law and examine cases cited by the dissent for the proposition that the evidence herein is sufficient to prove deadly weapon.
In McElroy v. State, Tex.Cr.App., 528 S.W.2d 831, our opinion sets forth the following relative to the wound and weapon:
“Dr. Terrell, who treated the injury, testified the weapon used by appellant was capable of causing death and could be a deadly weapon through the manner of its use. He further testified that the stab wound was six inches long, penetrated to the cartilage of the rib cage, and required approximately thirty sutures to close it.”
In Abels v. State, Tex.Cr.App., 489 S.W.2d 910, our opinion includes the following:
“Appellant then cut his wife across the throat with what he described as a ‘pocket knife’ and chased her across the room, stabbing her a total of 15 times. Her injuries consisted of a ruptured kidney and an injured spleen which were surgically removed, and a punctured lung, stomach and intestines. Dr. Ferris, who treated the injured party, testified that the wounds were serious and the injured party would have died if she had not received prompt medical attention.”
The distinction between these two cases and the instant case is readily apparent.
In Ellison v. State, Tex.Cr.App., 419 S.W.2d 849, a robbery with a deadly weapon conviction was affirmed where the defendant held a knife to the back of the victim and threatened to kill her. No contention was advanced as to the sufficiency of the evidence and the opinion does not purport to evaluate the sufficiency of the evidence. The weapon used in Ellison is merely described as “a knife” without regard to the type of knife or length of blade.
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[464]*464OPINION
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for the offense of aggravated robbery. The jury assessed punishment at thirty-five years.
Appellant, by way of pro se brief, urges that the evidence is insufficient to show that the weapon used was a deadly weapon.
Appellant was indicted for the offense of aggravated robbery under V.T.C.A. Penal Code, Sec. 29.03(a)(2), with the indictment reading, in pertinent part, that on or about June 5, 1976, the appellant
“ . . . did unlawfully, then and there while in the course of committing theft and with intent to obtain and maintain control of the property, of ROBERT J. HARPER, hereinafter called ‘Complainant’ the said property being current money of the United States of America, without the effective consent of the Complainant and with intent to deprive the said complainant of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a knife, intentionally and knowingly threaten and place the said complainant in fear of imminent bodily injury.”
On September 7, 1976, appellant entered a plea of not guilty before a jury, and represented himself pro se during the trial of this case, with the assistance of court-appointed counsel. The State’s evidence reflected that the complaining witness, Robert J. Harper, had been to a Dallas nightclub on the evening of June 4,1976, leaving that establishment at approximately 1:00 a.m. on the morning of June 5th to walk to his home a few blocks away. While walking down the street, he was accosted by appellant, who stated, “I have a knife and I want your money, your billfold.” A struggle ensued during which the complaining witness received cuts on his right elbow, his chin, and under his throat. The appellant managed to secure Harper’s billfold during the struggle and, as appellant attempted to flee the scene, he was arrested by a nearby police officer. At the time of appellant’s arrest, he was searched and a pocket knife with a four-inch blade was found on his person.
The complaining witness further testified that, while he never saw appellant with a knife, he believed that appellant did have a knife, and that the injuries incurred had left scars on his body. No medical testimony was presented concerning the severity of the injuries. The complaining witness stated that he did not go to a hospital or receive any medical attention or stitches on these cuts.
Officer E. W. Smith, an eyewitness to the incident in question, testified, “ . . .1 felt like one of them had some type of weapon, but it was dark and I couldn’t tell for sure.” Smith related that he felt that appellant was the one with the weapon because of “The way he made a movement towards the victim. * * * It was kind of a slashing move.” The record reflects that the prosecutor then asked, “ . Indicating that he might have had a knife or something to slash with?” and Smith answered, “Yes, sir.”
Officer James D. Mercer testified that he arrived at the scene after appellant had been taken into custody. His testimony relative to Harper’s injuries reflects the following:
“Q. [Prosecutor] Did you have occasion to observe any wounds on Mr. Harper?
“A. Yes, sir, he had several.
“Q. Okay. Do you recall any in particular?
“A. I saw them all.
“Q. Where were they, as best you recall?
“A. There was a slash wound on the right side of his neck about two or three inches long; there was a small nick here; he had a cut on his elbow; and he raised his shirt to tell us about a cut on his stomach. * * * * ⅜ ⅝
“Q. Did they appear to be serious to the extent that he would require any hospitalization or stitches or anything like that?
“A. No, sir, they weren’t that serious.”
[465]*465Mercer stated that he had over sixteen years of experience as a police officer, had seen “many injured in every type of way,” and that “at least three of these wounds appeared to be cut wounds. . . . ”
Appellant urges that under our recent decision in Danzig v. State, Tex.Cr.App., 546 S.W.2d 299, the evidence is insufficient to sustain a conviction for aggravated robbery since the knife was not a deadly weapon per se and there was no testimony that the injuries inflicted upon the complaining witness could have caused “death or serious bodily injury.”
V.T.C.A. Penal Code, Sec. 1.07(a)(11), defines “Deadly Weapon”:
“(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.”
The dissent, in urging that the evidence is sufficient to sustain the conviction and that Danzig should be overruled, states that while this Court has often held that a pocket knife is not a deadly weapon per se, it has held with equal frequency that it may qualify as a deadly weapon through the mode and manner of its use and that the wounds inflicted on the injured party may be looked to in determining this issue. We agree with this statement of the law and examine cases cited by the dissent for the proposition that the evidence herein is sufficient to prove deadly weapon.
In McElroy v. State, Tex.Cr.App., 528 S.W.2d 831, our opinion sets forth the following relative to the wound and weapon:
“Dr. Terrell, who treated the injury, testified the weapon used by appellant was capable of causing death and could be a deadly weapon through the manner of its use. He further testified that the stab wound was six inches long, penetrated to the cartilage of the rib cage, and required approximately thirty sutures to close it.”
In Abels v. State, Tex.Cr.App., 489 S.W.2d 910, our opinion includes the following:
“Appellant then cut his wife across the throat with what he described as a ‘pocket knife’ and chased her across the room, stabbing her a total of 15 times. Her injuries consisted of a ruptured kidney and an injured spleen which were surgically removed, and a punctured lung, stomach and intestines. Dr. Ferris, who treated the injured party, testified that the wounds were serious and the injured party would have died if she had not received prompt medical attention.”
The distinction between these two cases and the instant case is readily apparent.
In Ellison v. State, Tex.Cr.App., 419 S.W.2d 849, a robbery with a deadly weapon conviction was affirmed where the defendant held a knife to the back of the victim and threatened to kill her. No contention was advanced as to the sufficiency of the evidence and the opinion does not purport to evaluate the sufficiency of the evidence. The weapon used in Ellison is merely described as “a knife” without regard to the type of knife or length of blade. In the instant case, after Harper had testified that appellant said, “I have a knife, I want your billfold,” the record reflects the following:
“Q. [Prosecutor] Did he say that he would do anything to you if you didn’t give him your billfold?
“A. No, sir.”
Gillingham v. State, 167 Tex.Cr.R. 116, 318 S.W.2d 659, is probably the most persuasive case cited by the dissent. On appeal from an aggravated assault conviction, the defendant urged that the evidence was insufficient to show that the knife was a deadly weapon. This argument was rejected as follows:
“Used to slash in the vicinity of the face and neck, there appears no question but that a switchblade knife with blade 3¼ inches in length and ½ inch in width would come within the definition of a deadly weapon.”
The opinion in Gillingham noted that the wound produced required six stitches to [466]*466close. In Gillingham, the cases of Fisher v. State, 68 Tex.Cr.R. 297, 151 S.W. 544, and Brown v. State, 155 Tex.Cr.R. 233, 233 S.W.2d 578, were cited for the proposition that whether a weapon is a deadly weapon (if not a deadly weapon per se) may be shown by the manner of its use.
In Fisher, the wounds were inflicted with a “No. 8 saw” and were described as “a cut on his head something like five inches long, a scalp wound, the bones not being in any way injured or hurt; also had a wound on his left hand and a slight one on his right arm. The doctor says the wound on the right arm amounted to nothing. The other wounds were not serious. The physician, Dr. Mathes, who attended Killough, [the victim] stated that he was up in a couple of days and about his business.”
In Fisher, reversal resulted, the opinion reciting, “The wounds were not serious, and there is no evidence from any witness that the saw was a deadly weapon; and it is not a deadly weapon per se.”
In Brown, upon appeal from a murder without malice conviction, it was held that a shotgun fired through a door was not a deadly weapon per se. The use of the gun neither produced death or serious bodily injury, and the manner of its use was such that “more shots failed to penetrate the door than passed through the door.” The injured party was not hospitalized by the shots which struck her and, while she stated she went to a doctor, the extent of injuries was not shown.
In Reed v. State, 149 Tex.Cr.R. 208, 192 S.W.2d 890 (not cited by the dissent), reversal resulted on appeal from a conviction for assault to murder. The major portion of the opinion sets forth the brief of the State’s attorney in which error is confessed. In pertinent part, it states:
“Obviously, we think, the knife was not per se a deadly weapon, and yet we recognized the general rule that where the instrument itself is not a deadly weapon, the intent to kill may be established by other facts — that the wounds inflicted may be looked to in determining whether or not the knife was a deadly weapon; but, in view of the fact that the testimony of the attending physician indicates that the wounds inflicted were not of a serious nature unless infection set in, and in view of the further fact that there is no proof of a specific intent to kill, we are inclined to seriously doubt that the evidence is sufficient to support a conviction . .
In Davis v. State, Tex.Cr.App., 532 S.W.2d 626, and Washington v. State, Tex.Cr.App., 518 S.W.2d 240, this Court affirmed convictions for aggravated robbery where a knife was displayed but not used during a robbery. No contention was advanced as to the sufficiency of the evidence in either case and therefore it was obviously unnecessary for the opinions to address or fully set forth the evidence necessary to sustain the convictions.
In the instant case, the weapon used was not a deadly weapon per se. Serious bodily injury was not shown. We must therefore look to the “manner of its use or intended use” in determining whether the pocket knife herein was a deadly weapon.
The injured party never saw a knife, merely relating that appellant told him, “I have a knife, I want your billfold,” and stated that appellant made no threat to use the knife if he did not give him the billfold.
Officer Smith witnessed the incident in question and did not see a knife. He testified, “I felt like one of them had some type of weapon . . . ” and described appellant’s action, “The way he made a movement toward the victim. * * * It was kind of a slashing move.”
We find that the evidence regarding the “manner of its use or intended use” is insufficient to show that the pocket knife was capable of causing death or serious bodily injury. Thus, the evidence is insufficient to show that appellant used or exhibited a “deadly weapon” as charged in the indictment.
The judgment is reversed and the cause remanded.