Tisdale v. State

686 S.W.2d 110, 1985 Tex. Crim. App. LEXIS 1264

• Court: Court of Criminal Appeals of Texas
• Decided: March 13, 1985
• Docket: 743-83
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

After finding the appellant guilty of the offense of aggravated robbery, the jury assessed punishment at fifteen years. The conviction was affirmed in an unpublished opinion by the El Paso Court of Appeals, Eighth Supreme Judicial District. We granted appellant’s petition for discretionary review in order to examine the Court of Appeals’ holding that the evidence was sufficient to show that the knife employed during the robbery was a deadly weapon.

The indictment alleged, in pertinent part, that appellant:

“While in the course of committing theft of property owned by Janet Presley, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely a knife, did threaten and place Janet Presley in fear of imminent bodily injury and death.”

V.T.C.A. Penal Code, Sec. 1.07(a)(ll) provides:

“(11) ‘Deadly weapon’ means:

“(A) a fire arm or anything manifestly designed, made, or adopted 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 (Tex.Cr.App.1983); Better v. State, 635 S.W.2d 739 (Tex.Cr.App.1982).

The appellant, after carrying items to the cash register in a convenience store, paid for same, and upon the cashier opening the register, appellant placed his left hand over the cash tray. The clerk grabbed his hand and said “no.” Appellant replied “yes,” and “in his right hand he had a knife.” The clerk backed up, appellant removed the money from the register and departed the store. The employee testified “I felt threatened then” and in response to a question as to whether she was in fear of death or serious bodily injury she replied “Yeah, I figured he could have — as a matter of fact, I thought he would have.” The knife utilized was introduced into evidence and was shown to have a blade length of two and one-fourth inches.

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. Davidson v. State, 602 S.W.2d 272 (Tex.Cr.App.1980); Blain v. State, supra. In determining the deadliness of a weapon the jury may consider all of the facts of the case, including words spoken by the accused. Williams v. State, 575 S.W.2d 30 (Tex.Cr.App.1979).

In Davidson v. State, supra, relied on by the dissent for the proposition that “a knife may be shown to be a deadly weapon if its use or intended use during the commission of an offense renders it capable of causing death or serious bodily injury,” reversal resulted for failure to prove the knife was a deadly weapon under a factual situation much stronger than the one in the instant case. In Davidson, the defendant was observed taking articles from a store without paying for them. When confronted by employees, the defendant turned on one of the employees with an open knife in his hand and said “if you come any closer I am going to cut you.” The employee pulled a “cardboard box cutter” out of his pocket and the defendant fled. While the knife was not introduced into evidence, testimony by one employee showed the blade to be “two-and-a-half to three inches long and half an inch wide.” Two other employees testified the knife blade was “about four or five inches long” and “about three or four inches long.” The confronted employee testified “that he was placed in fear of imminent bodily injury or death.” In reversing this Court said, “Even though there was proof of the knife’s size, we find as in Alvarez [v. State] [566 S.W.2d 612 (Tex.Cr.App.1978) ] that the evidence in the present case is insufficient to show that the defendant used or intended to use the knife so as to inflict serious bodily harm or death.”

No threat of serious bodily injury, express or implied, was made by appellant. Appellant made no gesture with the knife which would indicate that he was about to use same. The evidence merely reflects that appellant had a knife in his right hand. Cf. Hubbard v. State, 579 S.W.2d 930 (Tex.Cr.App.1979); Hart v. State, 581 S.W.2d 675 (Tex.Cr.App.1979). To hold that the evidence is sufficient to show deadly weapon is tantamount to elevating a knife to the status of a deadly weapon, per se.

The evidence is insufficient to show that appellant used or exhibited a deadly weapon, thereby committing aggravated robbery as alleged in the indictment.

The judgments of the Court of Appeals and the trial court are reversed, and the case is remanded to the trial court with instruction to enter a judgment of acquittal of aggravated robbery.

It is so ordered.