# Adame v. State

> Court of Criminal Appeals of Texas · March 6, 2002 · 69 S.W.3d 581

URL: https://www.frixlaw.com/law-library/cases/9748818

## Case

- **Full name:** Bobby ADAME, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 6, 2002
- **Citations:** 69 S.W.3d 581; 2002 Tex. Crim. App. LEXIS 43; 2002 WL 342713
- **Precedential status:** Published
- **Opinion:** Concurrence by Johnson
- **Judges:** Hervey, Keller, Womack, Kealser, Holcomb, Cochran, Meyer, Price, Johnson
- **Cited by:** 129 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9748818

## How later opinions describe it (automated extraction)

- finding that evidence that appellant displayed a BB gun to convenience store clerk and that the gun was capable of causing serious bodily injury if pointed and fired at someone was sufficient to support jury's deadly weapon finding
- holding that “in proving use of a deadly weapon other than deadly weapon per se, the State need [only show] that the weapon used was capable of causing serious bodily injury or death in its use or intended use”
- holding that, “[w]ith testimony that a BB gun is capable of causing serious bodily injury, it is reasonable for a jury to make a deadly weapon finding”
- holding that State had presented sufficient evidence that a particular BB gun was capable of causing serious bodily injury
- stating that “[i]t is reasonable to infer that defendants use loaded guns to facilitate convenience store robberies”

## Opinion text

JOHNSON, J.,
filed a concurring opinion.
Appellant was indicted for aggravated robbery, pursuant to §§ 29.03(a)(2) and 1.07(a)(17)(B) of the Texas Penal Code. 1 *586 The pistol used by appellant was later found and identified as a BB gun, which fires projectiles with energy from compressed air rather than from an explosion or burning material. Thus, it is not a “firearm” and not “a deadly weapon per se.” 2 The indictment in the instant case properly alleged that appellant “did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Susan Stone in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a BB gun that in the manner of its use or intended use was capable of causing death or serious bodily injury.”
At trial, when asked by the state on direct examination whether she was “in fear of imminent bodily injury or death,” the attendant answered, “Most definitely.” Officer Gonzales, who was involved in the investigation of the robbery, testified that, based on his past experience, the pistol could cause serious bodily injury, if pointed and fired at someone.
The court of appeals observed that “[t]he fact that a BB pistol is loaded or unloaded is significant in the deadly weapon analysis,” and that “a BB pistol is generally not ‘capable’ of causing death or serious bodily injury unless it is loaded.” Adame, 37 S.W.3d at 143-44. The court of appeals correctly stated that this Court “recently held in McCain that ‘objects used to threaten deadly force are in fact deadly weapons’ ” and that “the key to a deadly weapon finding is whether the weapon is ‘capable,’ in the manner of its use or intended use, of causing death or serious bodily injury.” Id. at 144. However, in McCain, we also stated:
[The] plain language [of § 1.07(a)(17)(B) of the Texas Penal Code] does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. The placement of the word ‘capable’ in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.
McCain, 22 S.W.3d at 503. Here, appellant’s conduct threatened deadly force, regardless of his intent or lack of intent to actually use deadly force or, indeed, his actual ability to use deadly force. • Id.; see also Bailey v. State, 38 S.W.3d 157, 158-59 (Tex.Crim.App.2001) (per curiam).
. Section 29.03(a)(2) provides that "[a] person commits an offense if he commits robbery *586 as defined in Section 29.02, and he ... uses or exhibits a deadly weapon.” Section 1.07(a)(17)(B) provides that "[i]n this code ... 'Deadly weapon’ means ... anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”
. Tex. Penal Code Ann. § 46.01 (3) (2000).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748818. Public record. Not legal advice.