The opinion
STEPHENS, Justice,
dissenting.
On motion for rehearing, I am persuaded that the majority opinion of this panel is erroneous both in its analysis of the evidence, and its interpretation of the applicable law. The judgment of the trial court should have been reversed and the cause remanded for a new trial on a charge not greater than robbery, because the evidence offered was insufficient to prove that the knife, or knives used in this case were deadly weapons, as charged in the indictment. Consequently, I respectfully dissent.
Appellant was tried jointly with one Charles Callahan for aggravated robbery. He was found guilty and sentenced by the *475 jury to eighty years’ confinement in the Texas Department of Corrections, together with a $5,000.00 fine.
The pertinent part of the indictment charged that appellant:
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.
First, I agree with the majority that the case must be reversed because the charge failed to apply the law of parties to the facts. At this point, however, I part company with my colleagues.
Appellant contended on appeal that the evidence was insufficient to prove that the knife, allegedly used, was a deadly weapon, and re-urges this contention on motion for rehearing. I agree with appellant.
Late one evening, around midnight, three black men, one who was described as tall, and two who were described as short, approached the complaining witness who was sitting on the hood of his car in a secluded, unlighted parking lot, near a club, where he had been drinking. Appellant was smoking a cigarette, and the tall man asked for a light. After complainant gave him a light from his cigarette, the tall man sat down beside complainant, put a knife at complainant’s side, and told him not to move. Complainant did not see the knife, but he felt it against his side. He next felt another knife against his other side. The second knife was held by one of the shorter men. Next a gun was placed at appellant’s side, and the tall man took complainant’s wallet and keys. He was then told by the tall man to get up real slow and walk around the side, of the car. The tall man then got into the driver’s seat, unlocked the doors, and the complainant got into the front passenger seat, while the two shorter men got into the back seat. One of the men in the back seat took hold of complainant’s shirt, pulled his head back against the back of the seat, and placed a gun to the back of his head. The other short man in the back seat stuck a knife between the seat and the door and put it to complainant’s side. Complainant was told not to move and he would not get hurt. The tall man drove the car, while the complainant was held in position with the gun to the back of his head and the knife to his side, to a remote area where complainant was tied and left. The complainant testified that he only saw one to one and one-half inches of the knife blade, and never did see the handle. This is the extent of the direct evidence of the knife and the threats made.
Later, when complainant’s car was recovered by the police he found a putty knife and a gun in his car. He testified that neither had been there prior to the incident. The putty knife was introduced into evidence upon complainant’s testimony that it was similar to the one used in the commission of the crime.
The majority relies on Denham v. State, 574 S.W.2d 129 (Tex.Cr.App.1978) (en banc), for the proposition that wounds need not be inflicted before a knife can be determined to be deadly; on Williams v. State, 575 S.W.2d 30 (Tex.Cr.App.1979), for the proposition that words spoken by the assailant, such as threats, may be considered in determining the knife’s deadly character; on Herbert v. State, 631 S.W.2d 585 (Tex.App.—El Paso 1982, no pet.), for the proposition that the distance between assailant and the victim is a “critical evi-dentiary factor; ” and on English v. State, 647 S.W.2d 667, 668-69 (Tex.Cr.App.1983) (en banc), for the proposition that expert testimony is not necessary; that lay testimony will suffice in most instances; and that, although admission of 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 where no knife was introduced or clearly seen by witnesses. I have no quarrel with the propositions of law for which these cited cases stand. However, an analysis of the facts of those cases will not support the legal conclusion as to the sufficiency of the evidence found by the majority under the facts of this case.
*476 In Denham , the weapon used was a butcher knife with a seven or eight inch blade; the complainant was stabbed, and he testified that: “She was going to kill me.” The knife was the only weapon used. In Williams , the defendant stabbed two people with a knife; one was stabbed twice in the back, was treated at a hospital for the wound, and was unable to work for a week and a half. The other victim received multiple stab wounds, one in the shoulder to the extent that the muscle came out of the skin and had to be placed back into the shoulder by a bystander; the wound required twenty-five stitches, and he was unable to lift anything for three months after the attack. The court reasoned that because the wound did in fact inflict a serious injury, shown by the protracted impairment of the function of the victim’s arm, that the evidence was sufficient to prove that the knife was used in such a way that it was capable of causing serious bodily injury. In Herbert , the knife was not offered into evidence. It was described as a kitchen knife which was being used to slice an orange immediately before the assault. Defendant held the knife to his common-law wife’s throat, and threatened to kill her. The skin was not punctured. The court held that to categorize an assaultive weapon as deadly, such finding must be based upon the evidence of the size and shape of the knife, its manner of use and its capacity to inflict death or serious bodily injury, and consideration of any wounds inflicted or words spoken. The court found the evidence sufficient. It also pointed out in its opinion, however, that two recent cases had been reversed because of the insufficiency of the evidence to support the characterization of the weapons used as being deadly. Davidson v. State, 602 S.W.2d 272 (Tex.Cr.App.1980), and Alvarez v. State, 566 S.W.2d 612 (Tex.Cr.App.1978). In Davidson , the assailant, at a distance of six feet, with a three-inch-blade pocket knife, threatened a person, yet no injuries were inflicted. In Alvarez , the assailant advanced on a police officer with a sharp, hook-type, linoleum knife. The officer shot him in the leg and he continued to advance a short distance before surrendering. No evidence was offered as to the knife’s dimensions, and no wounds were inflicted. Finally, in English , the weapon used was not introduced into evidence, and it was described by the victim as a small knife with a curved tip. While the knife was held to the victim’s throat by a confederate; defendant said “I ought to kill you: ” and the complainant testified, “I was scared he was going to kill me right there. He had that knife poked in my throat.” The court held that appellant and his confederate clearly implied by their words and actions that in the manner of its use or intended use the knife was capable of causing death and serious bodily injury, and that the victim’s testimony was sufficient to support the jury’s implied finding that the knife exhibited or used in the robbery was a deadly weapon.
In this case there is no evidence that the putty knife, which was introduced into evidence, was one of the knives actually used. The length of the knife blade, as seen by the complainant, was a maximum of one and a half inches. The knife was not placed near a vital organ. No wounds were inflicted. The threat made was not to kill or to inflict serious bodily injury. It was more in the nature of an admonition to complainant that he would be “hurt” if he moved. The complainant did testify, in response to questions by the prosecutor, “for the record,” that the two knives, in the way they were being used, could have caused “death or serious bodily injury.” He also testified that he had seen the barrel of the gun, and that he believed it to be a real gun that could cause “death or serious bodily injury.” The complainant did testify, that when he was taken out of the car by all three men and told to lie down with his hands behind him, he thought they were going to kill him. I am compelled to believe that the complainant’s fear that he would be killed resulted from the use of the gun, rather than from the use of the knives. I also think it significant, that in a hearing outside the presence of the jury, the complainant testified that none of the *477 words spoken to him were threats. Had the appellant been charged with the use of a firearm in the commission of the robbery, the evidence would have been sufficient to find him guilty as a party. However, I conclude, and I would hold the evidence insufficient to find that the knife was a deadly weapon as charged in the indictment.
Having concluded that the evidence was insufficient to convict appellant of aggravated robbery, I also would hold that the trial court’s failure to submit the lesser included offense of robbery in its charge to the jury, when objection to the charge was properly made by appellant, constitutes reversible error. Eldred v. State, 578 S.W.2d 721 (Tex.Cr.App.1979).
I also disagree with the majority’s instructions to the trial court that, upon retrial of the case, a deferred adjudication order placing appellant on probation on a charge of burglary of a building is admissible. Such a holding is in direct conflict with the holding in Baehr v. State, 615 S.W.2d 713 (Tex.Cr.App.1981). The rationale of Baehr , as well as its explicit wording, prohibits the introduction of such an order. Furthermore, the admission of such an order is not authorized by TEX.CODE CRIM.PROC.ANN. art. 42.12 § 3d(c) (Vernon 1979). This section permits only the fact that a defendant has previously received probation, upon conviction of a subsequent offense, to be offered into evidence at the punishment stage. Consequently, I also disagree with Verrett v. State, 648 S.W.2d 712 (Tex.App.—Beaumont 1982), pet. ref'd, 646 S.W.2d 448 (Tex.Cr.App.1983) (en banc), upon which my colleagues rely. The Court of Criminal Appeals refused appellant’s petition for discretionary review in Verrett, but it specifically stated that its action should not be interpreted as an adoption or approval of the reasoning used by the lower court in disposing of the ground of error concerning the admissibility of a deferred adjudication order at the punishment phase of trial.
I would reverse and remand this cause for a new trial, with instructions that upon re-trial, appellant could be convicted of no crime greater than robbery.