Herring, Heath Matthew

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0476-05 HEATH MATTHEW HERRING, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

LEON COUNTY

Meyers, J., filed a dissenting opinion.

O P I N I O N

While I don't disagree that the victim's testimony that Appellant said he had a knife is admissible and is some evidence that he possessed a weapon, I disagree that the statement is conclusive evidence that the judge could find beyond a reasonable doubt that Appellant used or exhibited a deadly weapon. ⁽¹⁾ If a felon said that he carried a gun but no one saw it, would that be conclusive evidence to convict him for unlawful possession of a firearm? If someone said they had some marijuana, would that be sufficient to convict him of possession of marijuana? Probably not.

I agree with the court of appeals that Appellant's statement to the victim that he had a knife is legally insufficient to prove that he used or exhibited a deadly weapon and I would affirm the judgment of conviction for the lesser-included offense of robbery. Therefore, I respectfully dissent.

Filed: September 27, 2006

Publish

1. It seems to me that if Appellant had a knife then he would have shown it during the scuffle with the victim.