Denham v. State

TOM G. DAVIS,

concurring in part and dissenting in part.

I concur in the result reached in the majority opinion insofar as it holds that the size of the knife, the mode and manner of its use, and the wounds inflicted on the injured party support a finding that the knife was a deadly weapon.

As was recognized in Harris v. State, 562 S.W.2d 453 , it has long been held that a knife may qualify as a deadly weapon through the manner of its use and that the wounds inflicted on the injured party may be looked to in determining this issue. Under V.T.C.A. Penal Code, Sec. 1.07, the manner of the weapon’s “intended use” can be considered. See Limuel v. State, 568 S.W.2d 309 . The holding in Harris “ . . . that the evidence regarding the ‘manner of its use or intended use’ is insufficient to show that the pocket knife was capable of causing death or serious bodily injury” was based on facts clearly distinguishable from the instant case. In Harris , neither the victim nor the witness saw a knife, there was no showing of blood on the pocket knife in the defendant’s possession, and the injuries were not considered serious enough by the victim or the investigating officer to require medical attention. While the officer witness in Harris described a movement of the defendant toward the victim as “It was kind of a slashing move,” he was unable to state which one of the parties had a weapon, much less identify what type of weapon was used, as evidenced by his testimony, “I felt like one of them [either the defendant or victim] had some type of weapon.” The tenuous facts of Harris are in sharp contrast to those in the instant case, and I cannot agree that the affirmance herein requires the overruling of Harris .

It is undisputed that a knife cannot qualify as a deadly weapon per se under V.T.C.A. Penal Code, Sec. 1.07(a)(11). The reversal in Danzig v. State, 546 S.W.2d 299 , upon the insufficiency of the evidence to prove a pocket knife a deadly weapon is bottomed upon the facts of that case and does not stand for the proposition that expert testimony is required in every case to prove that a knife is a deadly weapon. In those instances where the manner of its use or intended use, its size and shape, and resulting injuries, if any, fail to prove deadly weapon, opinion evidence as to whether the knife was a deadly weapon may make the difference in meeting the burden of proof. I have no quarrel with the majority’s position that the opinion of a layman who observes and receives a wound from a knife should be able to express an opinion as to whether the instrument was a deadly weapon, but obviously such lay opinion is not entitled to the weight of an opinion expressed by a doctor who has experience in treating knife wounds, or the opinion of a veteran police officer who has investigated altercations in which knives have been used, or morticians who had had an opportunity to examine knife wounds which have resulted in death. Further, it is not unreasonable to expect that anyone who is attacked by a person wielding a knife will be so engulfed with fear as to produce an opinion that any knife, regardless of size or its use, would be a deadly weapon. Thus, insofar as the majority tends to equate lay opinion with that of experts, I cannot agree. In the final analysis, whether opinion evidence, if any, is necessary, and whether lay or expert opinion is required in proving that a knife is a deadly weapon, is going to depend upon a case-by-case analysis of the evidence. No hard and fast rule can be formulated.

Neither the affirmance herein nor the holding that lay testimony may be admissible on the question of whether an instrument is a deadly weapon requires the overruling of Harris and Danzig .

ROBERTS, ODOM and PHILLIPS, JJ., join in this opinion.