concurring.
I agree that the evidence in this case, that appellant repeatedly struck the complainant with his fists without inflicting serious bodily injury, is insufficient to show a threat of the imminent infliction of serious bodily injury or death. Thus I agree that the evidence does not support a conviction under V.T.C.A. Penal Code, § 21.-03(a)(2).
I do not agree, however, with the implicit holding in Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979) that absent an express verbal threat, the evidence will sustain a conviction under § 21.03(aX2) only when a “knife, gun, or other weapon” is used. Acts not involving the display of a deadly weapon as defined by V.T.C.A. Penal Code § 1.07(a)(ll)(A) can constitute a threat of serious bodily injury or death.1
In Berry v. State, 579 S.W.2d 487 (Tex. Cr.App.1979), the conviction was sustained where the defendant held an unidentified “sharp object” to the complainant’s neck. The object was not shown to be a deadly weapon as defined in § 1.07(a)(ll)(A), supra. Objects that are not designed or adapted as weapons could be used to communicate a threat of serious bodily injury; e. g. a pencil held to the victim’s eye, or a hot branding iron displayed to the victim in a threatening manner. Even further, an assailant’s companion holding the victim’s child over a balcony railing would constitute a clear threat of serious bodily injury or death.
Acts such as these are the functional equivalent of express verbal threats, and could support a conviction under § 21.-03(a)(2).
I concur in the result reached in this case.
. § 1.07(a)(ll)(A) defines “deadly weapon” as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.”