Tisdale v. State

• Decision Date: 06 June 1984
• Docket Number: No. 743-83,743-83
• Citation: 686 S.W.2d 110
• Parties: William TISDALE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 110

686 S.W.2d 110

William TISDALE, Appellant, v.The STATE of Texas, Appellee.

No. 743-83.

Court of Criminal Appeals of Texas En Banc.

June 6, 1984.

On Rehearing March 13, 1985.

Barry L. Elliott, Odessa, for appellant.

William Michael Holmes, Dist. Atty. and David R. Rosado, Asst. Dist. Atty., Odessa, Robert Huttash, State's Atty., and Cathleen Riedel, Asst. State's Atty., Austin, for the State.

Before the court en banc.

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of the offense of aggravated robbery, the jury assessed punishment at fifteen years.The conviction was affirmed in an unpublished opinion by the El Paso Court of Appeals, Eighth Supreme Judicial District.We granted appellant's petition for discretionary review in order to examine the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)(11) 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);Beller 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.

McCORMICK, Judge, dissenting.

Because the record before us does not support the conclusion of the majority, I must vigorously dissent.

The Court of Appeals, in an unpublished, yet well-reasoned opinion, concluded that the evidence was sufficient to show that the knife used by appellant was a deadly weapon.I set forth that opinion:

"This is an appeal from a conviction for aggravated robbery.The jury assessed punishment at fifteen years imprisonment.We affirm.

"The sole ground of error challenges the sufficiency of the evidence on the issue of whether or not the knife employed during the robbery was a deadly weapon.A knife is not a deadly weapon per se, but may be found to be a deadly weapon if its use or manner of intended use during the commission of an offense renders it capable of causing death or serious bodily injury.Davidson v. State, 602 S.W.2d 272(Tex.Cr.App.1980);Danzig v. State, 546 S.W.2d 299(Tex.Cr.App.1977).It is not necessary that wounds be actually inflicted, or express verbal threats be made in conjunction with the display or use of the weapon.Dominique v. State, 598 S.W.2d 285(Tex.Cr.App.1980);Denham v. State, 574 S.W.2d 129(Tex.Cr.App.1978).Its characterization as a deadly weapon may flow from its physical characteristics, the proximity of the parties, and the physical manner of its use.Nor is expert testimony necessary to support a jury's conclusion as to the deadly capacity of such an instrument.Denham, supra;Cruz v. State, 576 S.W.2d 841(Tex.Cr.App.1979);Lewis v. State, 628 S.W.2d 276(Tex.App.--Amarillo, 1982).

"In this case, the Appellant entered a grocery store and carried several items to the cashier.When she opened the register to insert his money, he placed his left hand over the cash tray.The clerk grabbed his hand and said, '[n]o.'He replied, '[y]es,' and produced a lock-blade knife with his right hand.The clerk backed up, Appellant removed the money from the drawer and backed out of the store.The knife was recovered and introduced as State's Exhibit A.A photograph appears in the record.An adjacent ruler indicates a blade length of two and one-fourth inches.

"Appellant was within reach of the complainant, thus within range of inflicting injury with the knife.The common experience and understanding of the lay juror is sufficient to assess the ability of a two and one-fourth inch blade to inflict death or serious bodily injury, as defined by Tex. Penal Code sec. 1.07(a)(34).This capacity was clearly utilized by Appellant in his non-verbal communication to the complainant that further efforts to forestall the robbery would result in actual use of the knife.Sufficient evidence was before the jury to justify its conclusion that the knife was a deadly weapon within this context.Tex. Penal Code Ann. secs. 1.07(a)(11)(B)and29.03 (Vernon 1974).Ground of Error No. One is overruled.

"The judgment is affirmed."

In overruling the Court of Appeals, the majority concludes "[n]o 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."I ask, what was he going to do with the knife, clean his fingernails while cleaning out the cash register?

During the trial, the complaining witness testified:

"Q.(Prosecutor)Would it be implicit, do you feel like he would have to swing the knife around or come at you with it to feel threatened, or did you feel threatened when he held it up in front of you?

"A.I felt threatened then.

"Q.Threatened of fear of death or serious bodily injury?

"A.Yeah, I figured he could have--as a matter of fact, I thought he would have."

The witness' response clearly indicates that she felt threatened, that she figured the appellant could have caused her death or serious bodily injury, and that he would have done so had she not stepped back and allowed him to have the money.

The case at bar is obviously stronger than the one presented in Vaughn v. State, 634 S.W.2d 310(Tex.Cr.App.1982).The facts of Vaughn, which were held sufficient to show that the knife used was a deadly weapon, show:

"... Although the sixty-seven year old complainant, Stanford Phifer, testified, 'No, sir,' when asked if the appellant placed him in fear of imminent bodily injury, he also testified that: 'He[appellant] had his knife.''He was holding it like this [indicating].''He told me to give him my money.''I guess he was going to cut me.'In addition the evidence shows that the complainant felt threatened with bodily injury by the...