The opinion
In the Court of Criminal
Appeals of Texas
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No. PD-0514-24
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MICHAEL DONELL GLOVER, Appellant
v.
THE STATE OF TEXAS
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On State’s Petition for Discretionary Review
From the Fifth Court of Appeals
Kaufman County
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YEARY, J., delivered the opinion of the Court in which SCHENCK,
P.J., and WALKER, FINLEY, and PARKER, JJ., joined. WALKER, J., filed a
concurring opinion in which SCHENCK, P.J., and FINLEY and PARKER,
JJ., joined. RICHARDSON and NEWELL, JJ., concurred in the result. KEEL
and MCCLURE, JJ., dissented.
Can a pocketknife be a deadly weapon? For present purpose, a
“deadly weapon” is “anything that in the manner of its use or intended
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use is capable of causing death or serious bodily injury.” TEX. PENAL
CODE § 1.07(a)(17)(B). The court of appeals in this case found that,
“[e]ven when viewed in the light most favorable to the verdict, nothing
in the State’s evidence sufficiently support[ed] either a direct or
inferential conclusion that the manner of [Appellant’s] use or intended
use of the pocketknife made it capable of causing death or serious bodily
injury.” Glover v. State, No. 05-23-00571-CR, 2024 WL 2763658, at *3
(Tex. App.—Dallas May 30, 2024) (mem. op., not designated for
publication); see TEX. PENAL CODE § 29.03(a)(3) (providing that “[a]
person commits an offense if he commits robbery . . ., and he . . . uses or
exhibits a deadly weapon”). We disagree and will reverse.
I. FACTS AND PROCEDURAL POSTURE
At about 6:00 a.m. on January 10, 2022, Appellant was observed
in a Buc-ee’s convenience store, in Terrell, completely filling up a Buc-
ee’s soft-side cooler with, among other things, dozens of cigarette packs.
When he left the store without paying for either the cigarettes and other
items, or for the cooler, an employee, Delbert DeWayne Parks, followed
him outside and requested that he return the merchandise. Appellant
replied, “Just let me go.” Parks testified that “it came to a point where
we both stopped[.]”
At this point, Parks “grabbed” what he called “the duffel bag” and
tried to wrest it from Appellant. Again, he urged Appellant to relinquish
control of the cooler, but Appellant replied, “Let me have it.” At about
this same time, as they struggled for the cooler, Appellant reached for
his pocket.
Uncertain of what Appellant might retrieve, Parks said, “Don’t do
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that, dude.” And when Parks could tell that Appellant had pulled a knife
from his pocket, he told Appellant, “Dude, I’ll fuck you up.”
Notwithstanding this bravado, once Appellant had “brandished the
weapon[,]” Parks became fearful that Appellant would “cut” him. But
Appellant instead began to cut the nylon strap to the soft-side cooler,
keeping the knife “close to him" as he did so. As they continued to
struggle for possession of the cooler, and as Appellant continued cutting
the strap, Appellant apparently noticed Parks’ name tag, and he said,
“Come on, DeWayne.” At this point, fearful of the knife, Parks let go of
the cooler and backed away.
On cross-examination, Parks could not describe the knife in any
detail, but he had “no doubt” it was a knife. He knew it was sharp
enough to successfully cut through the nylon strap. Parks confirmed
that Appellant did not at any time swing the knife at him or point it at
him. Nor did Appellant pursue Parks once Parks had relinquished
possession of the cooler.
When Appellant was arrested a short time after the robbery,
police recovered a folding knife from his back pocket. The knife had a
blade that was “roughly two, maybe three inches long[.]” Such a knife,
one of the arresting officers opined, could “kill somebody[.]” The other
arresting officer described the knife as “pretty sharp” and “very pointed,”
and he also opined that such a knife could be a deadly weapon. The knife
itself was introduced into evidence.
The jury convicted Appellant of aggravated robbery as charged in
the indictment—that is, the use or exhibition of a deadly weapon, to wit:
a knife, while committing robbery by intentionally or knowingly
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threatening or placing Parks in fear of imminent bodily injury or death.
TEX. PENAL CODE §§ 29.03(a)(2), 29.02(a)(2). Appellant pled “true” to two
enhancement counts, and the trial court sentenced him to life
imprisonment. He appealed.
Appellant’s single point of error on appeal was a challenge to the
legal sufficiency of the State’s evidence to prove the aggravating element
of use or exhibition of the knife as a deadly weapon. The court of appeals
sustained this point of error. Glover, 2024 WL 2763658, at *3−4. It
concluded that:
nothing in [A]ppellant’s words or actions would permit a
jury to rationally infer that he had any intention of using
the pocketknife to inflict death or serious bodily injury.
Given the absence of evidence rationally supporting the
jury’s finding that [A]ppellant’s use or intended use of the
pocketknife to cut the cooler’s straps could cause death,
serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ,
we conclude the evidence is legally insufficient to support
the aggravating element of [A]ppellant’s conviction.
Id. at *3. Accordingly, the court of appeals reformed Appellant’s
judgment to reflect conviction for the lesser-included offense of robbery,
reversed his life sentence, and remanded the case to the trial court for
resentencing. Id. at *4.
II. THE APPLICABLE STATUTES
As alleged in this case, a person commits robbery “if, in the course
of committing theft as defined in Chapter 31 [of the Texas Penal Code]
and with intent to obtain or maintain control of the property, he . . .
intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death.” TEX. PENAL CODE § 29.02(a)(2). The
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robbery offense is “aggravated,” and thus boosted from a second-degree
felony to a first-degree felony, “if [the person] commits robbery as
defined in Section 29.02, and he . . . uses or exhibits a deadly weapon[.]”
TEX. PENAL CODE § 29.03(a)(2). “[D]eadly weapon” is defined in the Penal
Code as, among other possible options, “anything that in the manner of
its use or intended use is capable of causing death or serious bodily
injury.” TEX. PENAL CODE § 1.07(a)(17). “Serious bodily injury[,]” in turn,
“means bodily injury that creates a substantial risk of death or that
causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” TEX. PENAL
CODE § 1.07(a)(46).
The question in this case is whether the evidence was sufficient
to prove that Appellant used or exhibited a deadly weapon in the course
of intentionally or knowingly threatening or placing Parks in fear of
imminent bodily injury or death. The Court has often said that “[a] knife
is not a deadly weapon per se.” E.g., Brown v. State, 716 S.W.2d 939, 946
(Tex. Crim. App. 1986) (citing Blain v. State, 647 S.W.2d 293, 294 (Tex.
Crim. App. 1983)). What the Court has meant by this is that implements
such as utility knives, straight razors, pocketknives, and even butcher
knives, which are not manifestly designed or even, of themselves,
adapted for the purpose of causing death or serious bodily injury to
persons, “do not qualify as deadly weapons” under Section 1.07(a)(17)(A)
of the Penal Code. See McCain v. State, 22 S.W.3d 497, 502−03 (Tex.
Crim. App. 2000) (citing Thomas v. State, 821 S.W.2d 616, 619−20 (Tex.
Crim. App. 1991)) (“Apparently, what we now sometimes mean by the
expression [‘deadly weapon per se’] is any object meeting the definition
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set out in” what is now Section 1.07(a)(17)(A) of the Penal Code).
Thus, the court of appeals did not err to examine the evidence
presented here to determine whether it was legally sufficient to
establish that the pocketknife in this case constituted a deadly weapon
under the alternative definition found in Section 1.07(a)(17)(B):
whether, in the manner of its use or intended use, it was capable of
causing death or serious bodily injury. Glover, 2024 WL 2763658 at *2.
But in asking itself whether the evidence was sufficient to satisfy this
alternative definition, the court of appeals focused almost exclusively on
evidence relating to the most obvious aspect of Appellant’s use of the
pocketknife when he wielded it, namely, to cut the cooler strap.
In our view, however, under the circumstances of this case, a
rational jury could find that cutting the cooler strap was not the only use
or intended use to which Appellant put the knife. 1 The jury in this case
could also have rationally concluded that Appellant used and/or
exhibited the pocketknife with the additional intent to persuade Parks
that, if he did not let go of the cooler, Appellant might use it against him
in a way that was capable of causing serious bodily injury, if not death.
And that, we conclude, is sufficient.
III. ANALYSIS
In McCain v. State, 22 S.W.3d 497, 502−03 (Tex. Crim. App.
2000), this Court identified a “two-step process” that reviewing courts
1 “When reviewing the record for legal sufficiency, we consider the
combined and cumulative force of all admitted evidence and reasonable
inferences therefrom in the light most favorable to the verdict to determine
whether a jury was rationally justified in finding guilt beyond a reasonable
doubt.” Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017) (citing
Jackson v. Virginia, 443 U.S. 307, 318−19 (1979)).
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should use to analyze whether a knife (or any other object) has been
shown to be a deadly weapon. The Court explained there that, “the
question first arises: Could the object [here, a pocketknife] be a deadly
weapon under the facts of the case? If that question is answered in the
affirmative, then we would have occasion to ascertain whether that
object was used or exhibited during the offense.” Id. at 502. We shall
conduct these inquiries in turn.
A. Could the Pocketknife Be a Deadly Weapon
under the Facts of this Case?
In answering this first question, we do not ask whether the
implement, in the manner of its use or intended use during the robbery,
actually caused death or serious bodily injury. Id. at 503. Instead, “[t]he
placement of the word “capable” in [Section 1.07(a)(17)(B)] enables the
statute to cover conduct that threatens deadly force, even if the actor
has no intention of actually using deadly force.” Id. (citing Tisdale v.
State, 686 S.W.2d 110, 114−15 (Tex. Crim. App. 1985) (op. on reh’g)).
Indeed, “the defendant need not have actually inflicted harm on the
victim.” Johnson v. State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017).
Instead, in deciding whether the knife in question was capable of
causing death or serious bodily injury, this Court has said:
we consider words and other threatening actions by the
defendant, including the defendant’s proximity to the
victim; the weapon’s ability to inflict serious bodily injury
or death, including the size, shape, and sharpness of the
weapon; and the manner in which the defendant used the
weapon. * * * These, however, are just factors to guide a
court’s sufficiency analysis; they are not inexorable
commands.
Id. Moreover, in determining whether a knife is a deadly weapon under
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the facts of a given case, the Court has said, “a factfinder should consider
its intended use from the attitude indicated by the perpetrator.” Tisdale,
686 S.W.2d at 117 (Clinton, J., concurring on reh’g):
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, and the factfinder is warranted in concluding that
the knife is capable of causing death or serious bodily
injury.
Id. (Clinton, J., concurring on reh’g) (internal brackets, quotation marks
and citations omitted).
In McCain itself, the near-unanimous Court determined that,
under the particular circumstances of that case, “the mere carrying of a
butcher knife” that was plainly visible in, but never removed from, the
defendant’s back pocket as he violently assaulted the victim “was legally
sufficient for a factfinder to conclude that the ‘intended use’ for the knife
was that it be capable of causing death or serious bodily injury.” 22
S.W.3d at 503. “In other words,” as we described McCain’s analysis in
Flores v. State:
it was reasonable for the factfinder to conclude that the
only reason McCain carried a butcher knife in his back
pocket during his violent attack on the victim was that he
intended to use the knife to stab the victim if he needed to
do so to facilitate his crime.
620 S.W.3d 154, 159 (Tex. Crim. App. 2021). Indeed, it did not even
matter to our bottom line in McCain, we also observed in Flores, that
“the defendant never made any verbal threat to use the knife.” Id.
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In the instant case, several police officers testified that the
pocketknife Appellant produced in this case was both “sharp” and
“pointed,” and, at least hypothetically, capable of causing death or
serious bodily injury. Of course, “under the first step in McCain, the
question is not whether the object ‘could’ possibly be a deadly weapon
under a hypothetical scenario. Instead, it is whether the object ‘could be
a deadly weapon under the facts of the case.’” Id. at 158 (quoting McCain,
22 S.W.3d at 502).
Here, the pocketknife was before the jury, and the jurors could
see for themselves that it had a blade of between two and three inches
long. A knife blade of this length has been found by this Court to be a
deadly weapon under certain circumstances. See Tisdale, 686 S.W.2d at
111 (op. on orig. subm.) (observing that the knife in issue “was shown to
have a blade length of two and one-fourth inches”). And Appellant pulled
out the pocketknife while he was struggling with Parks for possession of
the soft-side cooler.
Given their close quarters, the potential threat to Parks was not
diminished by the fact that evidence showed that Appellant kept the
knife close to his own body. Also, although Appellant made no overt
threat or gesture to actually use the pocketknife to cut Parks, the jury
could rationally have found that a threat to do so was at least implicit
in Appellant’s repeated entreaties for Parks to, e.g., “Just let me go,” and
“Let me have it,” before pulling out the pocketknife, together with his
statement, “Come on, DeWayne,” once the pocketknife was out and
visible. The jury could readily have concluded that Appellant’s intention
was to convey to Parks a willingness, however reluctantly, to use the
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pocketknife “if he needed to do so to facilitate his crime.” Flores, 620
S.W.3d at 159.
Nor does the fact that Appellant in fact used the pocketknife for
the non-deadly purpose of cutting the nylon strap of the soft-side cooler
necessarily mean that this was his only intended use for it, as the court
of appeals seems to have believed. Glover, 2024 WL 2763658, at *3. A
rational jury might readily have found that an intent to use the
pocketknife to intimidate Parks into releasing the cooler could coexist
with an intent to cut the strap. Indeed, the fact that the pocketknife
proved sharp enough to cut through the strap likely contributed to a jury
finding that it was dangerous enough, in the course of the scrum, to
cause Parks actual, not just hypothetical, serious bodily injury. We
cannot say that such a finding would have lacked rational evidentiary
support under the circumstances.
B. Did Appellant “Use or Exhibit” the Pocketknife?
Having determined that the evidence was legally sufficient to
support a jury finding that the pocketknife was, in the manner of its use
or intended use, a deadly weapon, we turn to the second step of the
McCain analysis: whether Appellant “used or exhibited” the pocketknife
during the robbery. McCain, 22 S.W.3d at 503. We said in McCain that
“a person ‘uses or exhibits a deadly weapon’ under the aggravated
robbery statute if he employs the weapon in any manner that ‘facilitates
the associated felony.’” Id. at 502 (quoting Patterson v. State, 769 S.W.2d
938, 941 (Tex. Crim. App. 1989)). “Had the knife been completely
concealed by [McCain’s] clothing,” we observed, “additional facts would
have been needed to establish that the butcher knife was used.” Id. at
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503.
But the knife was partially exposed, and from that
exposure, the factfinder could rationally conclude that the
knife was exhibited during the criminal transaction, or at
least, that its presence was used by [McCain] to instill in
the complainant apprehension, reducing the likelihood of
resistance during the encounter.
Id. Thus, McCain “used” the butcher knife inasmuch as its use, even if
only to intimidate the victim, “facilitate[d] his commission of the
robbery. Id.
Likewise, the jury in this case could rationally have concluded
that Appellant’s display of the pocketknife—regardless of whether he
actually “brandished” it, as Parks asserted at one point—constituted a
“use or exhibition” of it “to instill in the complainant apprehension,
reducing the likelihood of resistance” to his escaping with the stolen
merchandise. And once again, the fact that Appellant actually employed
the pocketknife to sever the nylon strap of the soft-side cooler does not
detract from the rationality of a jury finding that he also “used or
exhibited” it for the purpose of convincing Parks that it was in his best
interest to abandon the cooler and let Appellant escape with it.
IV. CONCLUSION
The court of appeals erred to conclude that the evidence was
insufficient to prove the aggravating element of Appellant’s conviction
for aggravated robbery. We reverse the court of appeals’ judgment and
reinstate the judgment of the trial court.
DELIVERED: April 16, 2025
PUBLISH