Tisdale v. State

CLINTON, Judge,

concurring.

Proper resolution of the thorny issue presented in the cause has pricked the judgment of past and present members of this Court for a considerable period of time. Though the precise question is whether in the circumstances evidence is sufficient to show that a knife held by appellant was a deadly weapon, the answer depends upon judicial construction of a part of the legislative definition of “deadly weapon” in V.T.C.A. Penal Code, § 1.07(a)(ll), viz:

*116“ ‘Deadly weapon’ means:
(A) * * *[1]
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”2

With advent of the 1974 penal code, early on the Court focused on the “capability” feature of the definition of deadly weapon in determining sufficiency of evidence, often indicating that opinion evidence may be required to prove up that feature. See generally Denham v. State, 574 S.W.2d 129 (Tex.Cr.App.1978)3 But we came to understand that whether a knife is “capable” enough to constitute a deadly weapon depended more on what the evidence in a given case shows as to “the manner of its use or intended use.” See Blain v. State, 647 S.W.2d 293 (Tex.Cr.App.1983):

“A knife is not a deadly weapon per se. [Citation omitted.] The State can, without expert testimony, prove a particular knife to be a deadly weapon by showing its size, shape, sharpness, the manner of its use or intended use and its capacity to produce death or serious bodily injury. [Citations omitted.] In determining the deadliness of a weapon the jury may consider all of the facts of a case, including words spoken by the accused. [Citation omitted].”4

With that construction of the definition in mind, we turn to the facts in the instant cause.

Janet Lynn Presley was working as cashier in a convenience store located by Andrews Highway in Ector County when at about two thirty of a late January morning appellant came in, walked around and talked a bit about the weather and, after another customer left, approached her counter with two small items; she rang them up for a total of exactly one dollar. Appellant produced a five dollar bill but saying “Wait a minute, reached into the other pocket and extracted a one dollar bill. Presley took the dollar bill, opened the cash register drawer and put the bill in the drawer. Routinely Presley started to close the drawer, but she could not because, as she then saw, appellant’s left hand was in it. She “grabbed his left hand” and said, “No.” Appellant said, “Yes,” and when Presley reacted by looking up she saw a knife in his right hand. She threw up her hands, backed off and “let him take the money.” Appellant made off with several twenty dollar bills.

As both opinions on original submission and the current opinion of the Court recount, Presley testified to being “frightened,” “feeling threatened,” being in “fear of death” and like subjective feelings. However, she also elaborated objective observations. Thus, “he is holding the knife and is looking at me, and he is getting the money out ... [and he] is still looking at me [a]nd he gets the money out ... [and] he backs all the way out of the door.” She noticed that “the tip of [the knife] was broken off,” just as the one portrayed in a photograph that became State’s Exhibit 4 was shown to be. There was blood on his right hand.

On cross-examination at his request, counsel for appellant and Presley demonstrated before the jury how appellant held *117the knife in relation to her position.5 She confirmed that the knife was not “moved, waved or anything like that,” but the blade was “sticking up ... or out a little bit. Mostly up, I guess, you know.” After counsel sympathized that she “can’t be perfect” and reassured her that he was “not asking for degrees,” Presley said the blade was “sticking up or maybe leaning over a little bit like that.” After more demonstrating, counsel remarked, “So, more or less, I believe what you are telling me is you are kind of facing one another, more or less front to front,” and Presley agreed.

On redirect Presley was asked whether when she first saw the knife in his hand appellant “was holding it up, what, in front of himself, as [counsel for appellant] brought out,” and she responded, “Not right in front of him,” but “[o]ff to the side a little bit.” In another demonstration that reveals nothing to us, the jury was shown “how far away” from her appellant was at the time, and iterated that she “felt threatened” when appellant “held it up in front of [her].” 6

The Court has discerned that the definition of “deadly weapon” in § 1.07(a)(ll)(B) “broadens [former] considerations to include ‘or its intended use.’ ” Denham v. State, 574 S.W.2d 129, 130 (Tex.Cr.App.1978). Coupled with all the facts, including words spoken by appellant, the evidence is sufficient to support a jury finding that from the manner of its intended use the knife held by appellant was capable of causing death or serious bodily injury.

It is not so much that a robbery victim testifies to having felt threatened, been in fear of death or serious bodily injury and like subjective conditions, for that goes more to elements of robbery than to definitional ingredients of “deadly weapon.” To determine in a given situation whether a knife is a deadly weapon a factfinder should consider its intended use from the attitude indicated by the perpetrator. When a suspect acts in a way that shows his purpose is to convey to his victim that he will thwart resistance to a taking by using the knife to harm the person of the victim, he intends for the victim “to believe that the knife [is] capable of producing serious bodily injury or death to obtain the money,” Cruz v. State, 576 S.W.2d 841, 843 (Tex.Cr.App.1979), and the factfinder is warranted in concluding that knife is capable of causing death or serious bodily injury. That the victim later recounts subjective emotions means little more than the suspect accomplished what he intended.7

The evidence in this instant cause shows by word and deed that appellant made it abundantly clear to Presley that if she did not release her hold on his left hand in the cash drawer and cease her resistance to his taking the money, he would use the knife to harm her person. Even after she threw up her hands and backed off, he continued to hold the weapon “in front of her face” as he collected the bills and then backed away from the counter and out of the store. Thus the manner of use of this lockblade knife intended by appellant rendered it capable of causing death or serious bodily injury, and the evidence is sufficient to support an implied finding by the jury that it was a deadly weapon.

For those reasons I join the judgment of the Court.

. This part of the definition is not implicated since by now it is axiomatic that a knife is not a deadly weapon per se; e.g., Davidson v. State, 602 S.W.2d 272, 273 (Tex.Cr.App.1980); Danzig v. State, 546 S.W.2d 299, 301, n. 2 (Tex.Cr.App.1977).

. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

. Indeed, in the instant cause the court of appeals believed that “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

.Illustrative of the analysis is Rodriguez v. State, 645 S.W.2d 273 (Tex.Cr.App.1982), where the Court examined sufficiency in four aggravated robbery convictions and concluded that while the same knife was not used or exhibited, "the testimony of each victim of or witness to the robberies justifies the inference obviously drawn by the jury from the facts before it that each was a deadly weapon.”

. There are many of the inevitable “like this” and “right there” that do not serve to enlighten a reader of the record, but may have made sense to jurors. See our caution in this respect in Rodriguez v. State, supra, at 275, n. 5. Moreover, the volume of the statement of facts said by the index to contain State’s exhibits is a copy of the original, where the exhibits must be since they are not in Volume III of our record.

. While we are unable to say from the record made of those demonstrations, we note that, testifying in his own behalf, appellant admitted taking the currency, but denied that he held the knife “in front of her face.” From that we surmise that jurors saw a demonstration reflecting that appellant had held the knife in front of her face.

.However, if from actual observations made at the time of the offense, the victim should express an opinion as to the "capability” of the knife exhibited, it has probative value. See Rodriguez v. State, supra, at 276 (manager testified that knife was “big enough to cut me up"); see generally Denham v. State, supra, at 131.