The opinion
SEARS, Justice,
dissenting.
I respectfully dissent. The evidence is insufficient to establish beyond a reasonable doubt that the knife used was a deadly weapon. The knife was not introduced into evidence. The length of the blade was never established. The complainant was not cut or threatened that she would be cut.
The majority opinion basically says the knife was a deadly weapon because:
(1) It was described as something a survivalist would use;
(2) It looked like something “Rambo” would use; and,
(3) It was held to the victim’s head.
Although one could presume a survivalist might use a huge knife, it is common knowledge that many survivalists use a small Swiss Army knife because of the versatility afforded by its multiple blades. The knife blade on such an instrument is only one to two inches long. We could further assume the victim referred to the movie character “Rambo” and was describing the huge knife he carried in the movie; however, “Rambo” was never identified.
Although I condemn the acts committed by the Appellant, and sympathize with the victim, the state has failed in its burden of proof. We cannot affirm a finding of a deadly weapon merely because we assume the knife qualified as one, and then further assume the state could have proven it to be a deadly weapon by more skillfull questioning of the victim.
The majority fails to cite any case law supporting their opinion that a finding of a deadly weapon can be affirmed when:
(1) The knife is not in evidence.
(2) There is no testimony describing the length of the knife blade.
(3) The knife was not used in a manner that could cause death or serious bodily injury.
(4) No expert witness testified the knife was a deadly weapon.
In the trial of every person accused of rape, the victim’s testimony reveals the inevitable fear experienced by all such victims whether or not a deadly weapon is exhibited by the rapist. The fact that this complainant experienced fear does not make a knife a deadly weapon under our present law. Its manner of use, or intended use, must be such as to cause, or intend to cause, death or serious bodily injury.
One of the crudest looking knives I have ever seen is a linoleum cutting knife. Its specially carved head has a razor sharp point and blade, and it can without a doubt kill and/or cause serious bodily injury. Yet, when such a knife was used in a slashing manner in an attempt to cut a San Antonio police officer, the Court of Criminal Appeals held:
“Weaver suffered no wounds. There was no testimony as to the size of the knife’s blade, although Weaver did testify it looked sharp. Weaver did testify that he was in fear of serious bodily injury or death while the appellant brandished the knife_ We find the evidence regarding ‘the manner of its use or intended use’ insufficient ...”
Alvarez v. State, 566 S.W.2d 612, 614 (Tex.Crim.App.1978).
The majority has failed to cite a single case upholding a finding that a knife is a deadly weapon without evidence that its use or intended use was to cause death or serious bodily injury. We have no testimony from the complainant that Appellant threatened to cut or stab her with the knife. There is simply no evidence that the knife was used or intended to be used in any manner other than as a means to *451 frighten the victim into submission. This has been accomplished in prior cases by fists, feet, broomsticks, bars of metal and numerous other tools and instruments. The use of some instrumentality to induce fear does not elevate that instrumentality to the status of a deadly weapon unless it is used or intended to be used to cause death or serious bodily injury. Tex.Penal Code Ann. § 1.07(a)(ll)(B) (Vernon 1974).
I would reverse the finding of a deadly weapon and the elevation of the offense to aggravated sexual assault. I would affirm a conviction for sexual assault.