Gregory Earl Draw v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-195-CR

GREGORY EARL DRAW,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-159-C

O P I N I O N

A jury convicted Gregory Earl Draw of aggravated robbery, assessed punishment of fifteen years and one day in prison, and found that he used a deadly weapon to commit the offense. He appeals on two points. His first contention is that the evidence is insufficient to support the deadly weapon finding. He further contends that the court erred in admitting the testimony of two police officers that the knife was capable of causing death or serious bodily injury. We will overrule the points and affirm the judgment.

On the night of the incident, David Dodd and a friend were sitting in Dodd's truck in the parking lot of the First Baptist Church Activity Center. Eric Wiley approached Dodd and hit the hood of his truck. Wiley pulled Dodd out of the truck. Draw then approached Dodd with a pocket knife, held it close to Dodd's stomach, and told Dodd to give him his wallet and his money.

Draw's first point is that the evidence is insufficient to prove that the pocket knife is a deadly weapon. A deadly weapon is defined by section 1.07(a)(11) of the Texas Penal Code:

"Deadly weapon" means:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex. Penal Code Ann. 1.07(a)(11)(A), (B) (Vernon 1974).

A knife is not usually a deadly weapon per se under subparagraph (A); however, it may be shown to be a deadly weapon under subparagraph (B) by showing the manner of its use, its size and shape, and its capacity to produce death or serious bodily injury. Thomas v. State, 821 S.W.2d 616, 619-20 (Tex. Crim. App. 1991). When a weapon is not actually used to cause death or serious bodily injury, to support a deadly weapon finding under subparagraph (B) two elements must be proved. Hernandez v. State, 649 S.W.2d 720, 722 (Tex. App. Amarillo 1982, no pet.). First, the item used must be capable of causing the requisite harm. Id. The capability of the weapon to cause death or serious bodily injury may be apparent from the nature of the weapon and may be established by lay testimony. Id. Second, there must be evidence that the weapon was displayed or used in a manner indicating an intent to cause death or serious bodily injury. Id. However, an injury need not be inflicted for the evidence to establish that a knife was used as a deadly weapon. Villarreal v. State, 809 S.W.2d 295, 297 (Tex. App. Corpus Christi 1991, pet. ref'd).

The jury heard testimony from two police officers that they had seen stabbings with knives with one and one-half inch blades, as used in this case, and that such pocket knives are capable of causing death or serious bodily injury. The same jury heard testimony from Dodd that he felt "nervous" and "scared" and in fear of imminent bodily injury or death when Draw held the knife within inches of Dodd's stomach.

The standard of review for sufficiency challenges is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Rivera v. State, 808 S.W.2d 80, 91 (Tex. Cr. App. 1991). We believe a rational trier of fact could have found the pocket knife possessed by Draw was a deadly weapon by its use. See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Tex. Penal Code Ann. 1.07(a)(11)(B). We overrule the first point.

Draw's second point of error is that the court erred in allowing the officers to testify that the knife was a deadly when they were not tendered by the State as expert witnesses. However, officers can testify that a knife is capable of causing death or serious bodily injury without being tendered as experts. Hernandez, 649 S.W.2d at 722. The capability of the weapon may be established by lay testimony. Id.

Draw's counsel further argues that the officers' testimony was inadmissible since they were the investigating officers and were therefore biased. This complaint was waived because Draw failed to object and obtain a ruling on this ground. See Tex. R. App. P. 52(a). We overrule point two.

We affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 16, 1992

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