concluding that an unloaded BB gun that was never pointed toward the face of the victim and was never used as or threatened to be used as a bludgeon was not a deadly weapon in that case
How later courts described this case
- concluding that an unloaded BB gun that was never pointed toward the face of the victim and was never used as or threatened to be used as a bludgeon was not a deadly weapon in that case
- addressing the State's concern that the opinion on original submission held that an air pistol could never be a deadly weapon and concluding that the original opinion did not attempt to exclude all types of air guns from the definition of a firearm
- holding that BB gun did not fit the statutory definition of a “deadly weapon” when expert witness testified that its projectiles could not penetrate the skin
- holding unloaded BB gun pointed away from complainant was not deadly weapon
Written by the judges who cited it.
The opinion
OPINION ON STATE’S MOTION FOR REHEARING
ONION, Presiding Judge.
On rehearing the State urges that the court was erroneous in its conclusion that the evidence is insufficient to show that the assault was aggravated by the use of a deadly weapon.
The State notes that V.T.C.A., Penal Code, § 22.02(a)(3), makes an assault an aggravated assault if a “deadly weapon” is used. A deadly weapon is defined in V.T. C.A., Penal Code, § 1.07(a)(ll), as “(A) a firearm . . . .” The State argues that the only place in the Penal Code a firearm is defined is in V.T.C.A., Penal Code, § 46.-01(3), which provides that a “ ‘firearm’ means any device designed, made or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. . . . ”
The State argues that the device in question was referred to in the court’s opinion as “an air pistol” and that the device obviously comes within the definition of a firearm. It appears to be the State’s concern that this court in its opinion on original submission has held that an air pistol could never be a deadly weapon.
While the BB pistol was referred to in such opinion as an “air pistol” on several occasions, a careful reading of the opinion shows reference was only to the particular device involved. In holding that the device involved did not constitute a firearm and therefore the evidence was insufficient to show the assault was aggravated by use of a deadly weapon, the opinion did not attempt to exclude all types of air guns or pistols from the definition of a firearm. We do not reach that question in this case. 1
It is observed that Dr. Vincent DeMaio, an associate medical examiner for Dallas County, testified the pistol involved in the instant case was a spring activated air gun. The arresting police officer, after being read the statutory definition of a firearm, stated the BB pistol was not a firearm, and stated, “. . .it does not have a powdered explosion.” A defense witness familiar with the device stated he knew how it worked. The record on direct examination then reflects:
“Q. Is a BB powered by pulling this spring back here?
“A. Right.
“Q. And you put a BB in this hole up here (indicating)?
“A. Right.
“Q. And then you put that back down (indicating)?
“A. Right.
“Q. And you pull the trigger?
“A. Right.
“Q. And it shoots a BB out?
“A. Right.”
It does not appear that the spring in this “air” pistol was any more of an explosive device than the string in Robin Hood’s bow.
*147 Under the circumstances of the instant case, we adhere to our decision on original submission. The State’s motion for rehearing is overruled.
. See and cf. Tendler v. District of Columbia, 50 A.2d 263 (D.C.Mun.App.1946); Schmit v. Guidry, 204 So.2d 646 (La.App.1967).