Harris v. State

*467 DOUGLAS, Judge,

dissenting.

Appellant was convicted for the offense of aggravated robbery as denounced by V.T.C.A., Penal Code, Section 29.03.

The majority is in error in reversing this conviction. The knife used had a four-inch blade. To say that a four-inch bladed knife, whether it is a pocket knife or some other type, is not a deadly weapon unless an expert so testifies is to strain the bounds of reason. V.T.C.A., Penal Code, Section 1.07(a)(11)(B), includes in the category of deadly weapons anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

The present penal code, V.T.C.A., Section 46.01(7), provides:

“ ‘Knife’ means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.”

With this and the provision of Section 1.07(a)(11)(B), supra, the Legislature does not require that the manner of the use of a knife with a four-inch blade must be considered to determine if it is deadly.

If a knife with a four-inch blade is not capable of producing serious bodily injury or death, why are there so many bodies in our cemeteries as a result of injuries received from such a weapon?

In Gay v. State, 134 Tex.Cr.R. 356 , 115 S.W.2d 929 (1938), Judge Krueger wrote for the Court:

“It occurs to us that a knife or other instrument which is capable of inflicting a wound four inches deep is an instrument reasonably calculated to produce death.”

While this Court has often held that a pocket knife is not a deadly weapon per se, Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975), it has held with equal frequency that it may qualify as a deadly weapon through the mode and manner of its use and that the wounds inflicted on the injured party may be looked to in determining this issue. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Abels v. State, 489 S.W.2d 910 (Tex.Cr.App.1973).

At a time when the sufficiency of the evidence was always considered by this Court whether it was raised or not, this Court in Ellison v. State, 419 S.W.2d 849 (Tex.Cr.App.1967), held the evidence was sufficient to uphold a conviction for robbery with a deadly weapon when a knife was exhibited during the robbery. Article 1408 of the 1925 Code, like the present code, provided for additional punishment if robbery was committed by using or exhibiting a deadly weapon.

In the present case, the manner in which appellant used a four-inch knife to inflict injury on the complaining witness qualified that knife as a deadly weapon. The testimony of Officer E. W. Smith reflected that he saw appellant slashing at the complainant, Robert L. Harper, at the time of the offense. The officer observed that, in addition to the wounds inflicted to his stomach and elbow, Harper suffered a slash wound to the throat approximately three inches in length. Harper himself testified to having received knife wounds to the stomach, elbow, chin and throat and displayed to the jury the scars remaining from these cuts. In Gillingham v. State, 318 S.W.2d 659 (Tex.Cr.App.1958), as in the present case, the complainant escaped death and serious bodily injury in the course of robbery with a deadly weapon. Nevertheless, we held that a three and one-quarter inch blade knife, used to slash in the vicinity of the face and neck, unquestionably came within the definition of a deadly weapon. Where sufficient evidence exists to support a jury’s verdict, this Court should not substitute its findings for those of the jury. Ferrell v. State, 464 S.W.2d 851 (Tex.Cr.App.1971). In this case, ample evidence came before the jury to show that the complainant suffered slash wounds to the face and neck. It is common knowledge that a four-inch knife blade used to slash at the throat is deadly, whether or not the weapon is utilized to its full lethal potential. In Douglas v. State, 89 Tex.Cr.R. 39 , 229 S.W. 326 (1921), the defendant cut the injured party in front of the neck and also in the hip three times. The Court held there was sufficient evi *468 dence to support a conviction for assault with intent to murder. In Hunter v. State, 161 Tex.Cr.R. 225 , 275 S.W.2d 803 (1954), this Court again held that the wounds may be looked to to justify the inference that a deadly weapon was used.

How deep would the majority require that the victim’s wounds go before finding that a knife is a deadly weapon? The statute defines a deadly weapon as anything by its use or intended use that is capable of causing death or serious bodily injury. It does not require that death must occur by the use of a weapon before it can be classified as deadly. In Davis v. State, 532 S.W.2d 626 (Tex.Cr.App.1976), and in Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975), the convictions were for aggravated robbery under the present code. Knives were displayed by the defendants in the commission of the robberies. In each case the complaining witness suffered no injuries. This Court affirmed each conviction without requiring experts to testify as to the status of knives as deadly weapons. In light of the foregoing cases, it appears that when a knife is merely displayed in the course of a robbery, but not used to actually inflict injury, no expert testimony is required to establish it as a deadly weapon. The appellant used the knife to make the victim believe that it was a weapon capable of causing death or serious bodily injury to accomplish the robbery. This is what the Legislature intended — to punish for the use of such a weapon to accomplish robbery whether or not injuries were inflicted. Yet, by today’s decision the majority holds that when a knife is actually used to slash the throat but the victim is fortunate enough to escape death or serious bodily injury deadliness may not be inferred by the use of the weapon and from the complainant’s wounds but must be proven by the use of medical testimony.

In Duhon v. State, 136 Tex.Cr.R. 404 , 125 S.W.2d 550 (1939), this Court held that where an automobile is used in a manner likely or calculated to produce death the instrument as well as the wounds inflicted may be looked to in determining the defendant’s intent. The Court did not require proof from an expert that the automobile could cause death. This Court should not overlook prior decisions and adopt such an unreasonable rule.

Under the opinion by the majority, it would follow that an irate two hundred-pound athlete while intending to kill could swing a heavy sword at another’s neck while stating, “I am going to kill you, you s.o.b.,” and this would be insufficient to constitute an assault with a deadly weapon if somehow the intended victim were not killed. This would ignore the definition in the present code that a weapon is deadly if by its intended use it is capable of inflicting death or serious bodily injury. That definition was ignored by the majority in the present case.

In Boazman v. State, 501 S.W.2d 894 (Tex.Cr.App.1973), the Court wrote:

“ . . . Even though a pocket knife is not a deadly weapon per se, the mode and manner in which it is used along with the wounds inflicted on the injured party, are some of the factors used in determining whether the accused had specific intent to kill. See Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972).”

In that case, Boazman urged that the Court adopt the reasoning in Blount v. State, 376 S.W.2d 844 (Tex.Cr.App.1964), concerning the seriousness of the wounds inflicted in establishing an attempt to kill. This Court stated:

“ . . . Upon re-examination of that case, we conclude that the better rule is that expressed in the dissenting opinion, wherein Presiding Judge Wood-ley stated:

“ ‘If it was possible that death might have been inflicted by the weapon, and the defendant intended to take life, though the weapon was not a deadly weapon, still he might be guilty of an assault with intent to murder. . . ” (Emphasis supplied)

The Court in Boazman held that there was sufficient evidence to determine that appellant had specific intent to kill and that the evidence was sufficient even though *469 there was no expert testimony that the knife used was a deadly weapon. The Boazman case has not been overruled. It should be followed. It is in line with the present statutes. Everyone knows that a four-inch bladed knife used to cut the throat of another is capable of producing death or serious bodily injury. It is a fact so well known that any court should take judicial notice of it. See Gay v. State, supra, and the statement by Judge Krueger. This writer knows of no rule that would require judges to wear blinders and disregard facts of such common knowledge. This is especially true in the face of the statute defining knives as instruments that are capable of inflicting serious bodily injury or death by cutting or stabbing.

To the extent that Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977), or any other case, is contrary, it should be overruled.

The question is simple. If a knife with a four-inch blade is capable of producing serious bodily injury or death, the majority is wrong according to the statute enacted by the Legislature.

The judgment should be affirmed.

VOLLERS and W. C. DAVIS, JJ., join in this dissent.