Denham v. State
| Decision Date | 13 December 1978 |
| Docket Number | No. 56136,56136 |
| Citation | 574 S.W.2d 129 |
| Parties | Mary Helen DENHAM, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for aggravated assault; the punishment assessed is imprisonment for 10 years. The indictment alleges that the appellant used a knife, a deadly weapon, intentionally to threaten imminent bodily injury to the complainant.
Appellant's sole contention is that the evidence is insufficient to prove that the knife she used to stab the complainant was a deadly weapon. The knife, which was not offered for identification nor introduced in evidence, was described by the complainant, without contradiction, as a butcher knife with a blade seven or eight inches long.
The complainant was a supervisor at a laundry where appellant had been employed. Two days after he had fired appellant for absenteeism, the complainant was on the way to visit a friend when he saw appellant walking along the sidewalk. He stopped and gave appellant a ride as far as his destination. A few minutes after the complainant had entered his friend's house, appellant came to the door and asked to use the bathroom. She entered the house, walked into a back room, and shortly thereafter returned with her hands behind her back. Appellant walked over to where the complainant was sitting, leaned over as if to whisper in his ear, and stabbed him in the shoulder. She then backed away several feet and shouted, "Get up because you're next on my list." The complainant, who testified that he was in fear for his life, grabbed a chair with which to fend off appellant, after which appellant retreated to the front door and left.
"Deadly weapon" is defined in V.T.C.A., Penal Code, Section 1.07(a)(11) as:
It has been held under the former Penal Code, as well as the present Penal Code, that a knife is not a deadly weapon per se. Harris v. State, 562 S.W.2d 463 (Tex.Cr.App.1978); Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977); Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975); Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972); Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679 (1961); Henderson v. State, 55 Tex.Cr.R. 170, 115 S.W. 588 (1909); 4 Branch's Ann.P.C., 2nd., ed., section 1573, p. 132.
Although a knife is not a deadly weapon per se, it has been held that it can qualify as such through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. Richards v. State, 147 Tex.Cr.R. 118, 178 S.W.2d 517 (1944); McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Abels v. State, 489 S.W.2d 910 (Tex.Cr.App.1973). Under the former Penal Code there was no statutory definition of deadly weapon, Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1976). The current Penal Code, as above set out, does contain such a definition and broadens the above considerations to include "or its intended use." Further, it has been held that the wounds inflicted on the injured is also a factor that is considered in determining the character of the weapon. Reed v. State, 149 Tex.Cr.R. 208, 192 S.W.2d 890 (1946); Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972). This does not, however, mean that wounds must be inflicted before a knife can be determined to be a deadly weapon. Richards v. State, supra.
The evidence introduced at the trial showed that the complainant was stabbed with a seven or eight inch blade butcher knife and that he felt that the knife was a deadly weapon. The complainant testified as follows:
"Q. Okay. Now, after she stabbed you and backed off with the knife, started coming at you again, were you scared at that point?
A. Sure, Yes.
Q. What were you afraid she was going to do to you?
A. She was going to kill me. Thought she was going to stab me again.
Q. So you at that time you were in fear for your life?
A. Yes, sir.
Q. And this particular knife, did you feel that it was a deadly weapon?
A. Yes, sir.
Q. Did you feel that it could kill you?
A. Yes, sir.
Q. How long was the blade again, about how long?
A. (Indicating)
Q. About like that, about what seven, eight inches?
A. About seven or eight inches.
Q. It's a butcher knife, is that right?
A. Butcher, Yes, sir."
In this State, the opinions of lay witnesses, when competent, are admissible concerning sanity, insanity, value, handwriting, intoxication, physical condition health and disease, estimates of age, size, weight, quantity, time, distance, speed, identity of persons and things. McCormick and Ray, Texas Law of Evidence, Sections 1421 through 1436. Surely one who observes and receives a wound from a butcher knife is capable of testifying that the knife is a deadly weapon capable of causing death or serious bodily injury. We decline to hold that further testimony is needed to justify the jury in finding such knife to be a deadly weapon. This is common knowledge that any lay witness is competent to testify to.
In the case of Acosta v. State, 77 Tex.Cr.R. 643, 179 S.W. 870 (1915), this Court held:
In the recent case of Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.1978), a robbery victim named Floyd testified that the appellant slipped up behind him and grabbed him, placed a knife in his throat, and stated, "Give me what you got." After taking Floyd's money, appellant came around to the front and stabbed him in the stomach. In connection with his wound, Floyd testified, There was no medical testimony as to the nature or severity of the wounds or the operation, nor was there any evidence as to the size of the knife or expert testimony that it was capable of causing death or serious bodily injury. In a unanimous opinion by Panel No. 2, Second Quarter, 1978, this Court held:
As stated in the dissent in Harris v. State, supra, "To say that a four-inch bladed knife, whether it is a pocket knife or some other type, is not a deadly weapon unless an expert so testifies is to strain the bounds of reason."
Insofar as Harris v. State, supra, or ...
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