IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE TENTH COURT OF APPEALS
LEON COUNTY
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.