[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 472
Our former opinion is withdrawn. The following corrected opinion is substituted for it.
Appellant was convicted of aggravated robbery. Punishment was assessed by the jury at confinement for 80 years in the Texas Department of Corrections and a $5,000 fine. Appellant complains in five grounds of error that: (1) the evidence was insufficient to show that the knife used was a "deadly weapon"; (2) the trial court erred in failing to charge the jury on the lesser included offense of robbery; (3) the trial court erred in admitting a prior deferred adjudication order during the punishment phase; (4) the trial court erred in failing to apply the law of parties to the facts in its charge; and (5) the trial court erred in overruling appellant's objection to improper prosecutorial argument. We agree with appellant's contention under his fourth ground of error, and accordingly, we reverse.
Appellant contends that the trial court erred in failing, over proper objection, to apply the law of parties to the facts in the charge to the jury. In order to determine whether a charge on the law of parties is required:
McCuin v. State, 505 S.W.2d 827, 830 (Tex.Cr.App. 1974).[T]he trial court should first remove from consideration the acts and conduct of the non-defendant [or co-defendant] actor[s]. Then, if the evidence of the conduct of the defendant then on trial would be sufficient, in and of itself, to sustain the conviction, no submission of the law of principals [parties] is required. . . . On the other hand, if the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State's case rests upon the law of principals [parties] and is dependent, at least in part, upon the conduct of another. In such a case, the law of principals [parties] must be submitted and made applicable to the facts of the case.
Appellant and two cohorts robbed the complainant in a dark parking lot outside a Dallas dance hall. Appellant admitted in a written statement introduced at trial that he participated in the robbery and that one of the other robbers wielded a knife. Complainant testified that all three robbers were armed. He could not identify appellant or his co-defendant; he testified, however, that they were similar in size to the two shorter robbers and that one of the short robbers had a knife and the other had a gun. Thus, although there is sufficient evidence of appellant's presence and active participation in the offense to find him guilty of the offense as a party, there is no probative evidence that appellant personally used or exhibited "a deadly weapon, to-wit: a knife," as alleged in the indictment. The charge on parties was, therefore, required, and the failure to include it was reversible error.
The trial court gave an abstract statement of the law of parties and then made the following application:
*Page 473Now if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of July, 1982, in Dallas County, Texas, the defendant, Charles Ray Brown, either acting alone or as a party, did unlawfully, then and there while in the course of committing theft and with intent to obtain or maintain control of the property of Tom Meyer,
hereinafter called complainant, the said property being current money of the United States of America, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a knife, knowingly and intentionally threaten and place the said complainant in fear of imminent bodily injury, then you will find the defendant guilty of aggravated robbery.If you do not so believe or you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "not guilty." [emphasis added]
The only reference in this application to the law of criminal responsibility is the phrase, "either acting alone or as a party." This charge did not require the jury to find that any other persons had committed all or part of the robbery in question, and whether appellant was criminally responsible for the acts of that other party (or parties). The Court of Criminal Appeals has held that such an application is insufficient when a charge on parties is required. Jayconv. State, 651 S.W.2d 803 (Tex.Cr.App. 1983) (enbanc ). This case must therefore be reversed.
Appellant further contends, in his first ground of error, that the evidence was insufficient to prove that the knife used in the offense was a deadly weapon. Appellant admitted in a written statement introduced into evidence that a knife was wielded by one of the three robbers involved in the instant offense; therefore the only issue before us is whether the knife or knives used were deadly weapons.
A knife is not a deadly weapon per se, but 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. Wounds need not be inflicted before a knife can be determined to be deadly. Denham v. State, 574 S.W.2d 129 (Tex.Cr.App. 1978) (en banc ). Words spoken by the assailant, such as threats, may be considered in determining the knife's deadly character, Williams v. State, 575 S.W.2d 30 (Tex.Cr.App. 1979), and the distance between assailant and victim has been termed a "critical evidentiary factor," Herbert v. State, 631 S.W.2d 585 (Tex.App. — El Paso 1982, no pet.). Expert testimony on this issue is not necessary; lay testimony will suffice in most instances.English v. State, 647 S.W.2d 667, 669 (Tex.Cr.App. 1983) (en banc ). Although descriptions of the knife by witnesses and introduction of the knife into evidence are of aid to the jury in its determination of the knife's deadly character, evidence has been held sufficient to sustain the jury's finding where no knife was introduced or clearly seen by witnesses. English. Each case must be examined on its own facts to determine "whether the manner of the weapon's use and intended use was such as to allow the jury to infer that the weapon was deadly." English,647 S.W.2d at 669.
Complainant in this case testified that he was seated on the hood of his car in the parking lot of a club in Dallas, late at night, when 3 black men, one of whom was appellant, approached him and asked for a light. He gave one of the three his cigarette lighter, and as the man returned the lighter to complainant, he put a knife to complainant's left side and told him not to move. Complainant then felt one of the other men put a knife to his right side, about 5 inches above his waist. Complainant felt both knives, and "it felt like they were fixing to go into my skin, and they told me not to move." The men then also held a gun to complainant and forced him into his car, which the three men also entered. (Although a gun was used, appellant was indicted for use of only a knife.) Complainant's money was taken from him, and with one knife still held against his right side and the gun held to the back of his head, complainant was driven to an underpass where he was tied up and left. Complainant was afraid "they were going to kill me," although the only verbal threats were "don't move," and "don't move and you won't get hurt." [We note that the Court of Criminal Appeals has held that language such as "you won't get hurt *Page 474 if you cooperate" constitutes an implied threat of death or serious bodily injury when coupled with use of a knife,Berry v. State, 579 S.W.2d 487 (Tex.Cr.App. 1979).] Complainant saw only 1 1/2 inches of one blade and did not see the other knife at all; a knife, however, was found in complainant's car after the car was recovered from two of the three robbers. This knife was a workman's utility or putty knife with a 4 inch blade, dull on one edge and sharp on the other. It was admitted into evidence, and complainant identified it as "similar to" the one used during the robbery and stated positively that it was not in the car prior to the robbery. The jury could believe from this circumstantial evidence that this knife was one of those used in the robbery. They were therefore entitled, from examining the knife and considering the circumstances surrounding its use, to conclude that the knife used was a deadly weapon as alleged in the indictment. Appellant's first ground of error is overruled. Accordingly, we remand this case for a new trial.
We also address appellant's third ground of error, because resolution of the issue presented may be necessary to the trial court on remand. In appellant's third ground of error, he complains that the trial court erred in admitting, at the punishment stage, a deferred adjudication order placing appellant on probation on a charge of burglary of a building. Appellant objected at trial and now contends that this order is inadmissible because it is not a "prior criminal record" as defined in TEX CODE CRIM.PROC.ANN. art. 37.07(3)(a) (Vernon 1981). We are fully cognizant of the opinion of the Court of Criminal Appeals in Baehr v. State, 615 S.W.2d 713 (Tex.Cr.App. 1981), in which Judge Clinton held a deferred adjudication order to be inadmissible as a prior criminal record. Baehr, however, did not address the effect of TEX CODE CRIM.PROC.ANN. art. 42.12, § 3d(c) (Vernon 1979) upon such an order's admissibility. We are persuaded thatBaehr is not controlling and agree with that portion of the opinion by the Beaumont Court of Appeals in Verrettv. State, 648 S.W.2d 712, 715 (Tex.App.-Beaumont 1982), pet. ref'd, 646 S.W.2d 448 (Tex.Cr.App. 1983), which held that:
Sec. 3d(c) of Art. 42.12 allows "upon conviction of a subsequent offense, the fact that the defendant had previously received probation [to] be admissible before the court or jury to be considered on the issue of penalty." We believe that the State's admission into evidence of appellant's deferred adjudication order complied with this statute.
Unlike the appellant in Verrett, appellant in the instant case was still serving out his probation at the time of this trial. TEX CODE CRIM.PROC.ANN. art. 42.12, § 3d(c), expressly authorizes admission of evidence of prior deferred adjudication probation after probation has been served, the charge has been dismissed, and all other legal disabilities have been removed. If admissible afterwards, there is even better reason for a deferred adjudication order to be admissible where probation is still being served. We hold, therefore, that on the issue of penalty a deferred adjudication order is admissible under article 42.12, section 3d(c), whether or not the full probation period has been served. Appellant's third ground of error is overruled.
We need not consider appellant's other grounds of error. The judgment is reversed and the cause remanded.