This is an appeal from a conviction for aggravated assault by using a deadly weapon. After finding the appellant guilty, the jury assessed her punishment at five years.
Appellant's only contention is that the evidence is insufficient to show that the weapon used was deadly. We agree and reverse.
Omitting the formal parts, the indictment alleges that on May 5, 1975, the appellant
The record reflects that at approximately 2:00 a.m. on May 5, 1975, the complaining witness James Naraine and a companion agreed to have intercourse with the appellant and her friend, both of whom were prostitutes. Naraine's companion gave appellant forty dollars after the four had gone to a trailer. However, the women refused to carry out their part of the agreement and also refused to return the forty dollars. Then, with the aid of a male associate, the women forced Naraine and his companion to leave the trailer. The two men left the trailer and went to a nearby bus station.
While waiting for a bus, Naraine saw the two women walking nearby. He approached appellant and again asked for the return of the forty dollars. Appellant responded by swinging at Naraine. She then pulled out a small penknife with a blade "about three or four inches" long. Naraine grabbed her hands, and, while trying to take the knife away from her, he was stabbed in the back by the appellant's companion. In response, he turned around. He was then stabbed in the arm and over the nose by appellant.
At this time, Officer Andrew Samarripa of the Killeen Police Department drove by the scene of the assault in his patrol car. He testified that he saw the "scuffle" and saw the appellant striking Naraine. However, he testified that he was not able to see any knife in her hand. No knife was found on appellant's person or in the area around the disturbance.
Samarripa also testified that when he approached the scene of the assault Naraine was "bleeding profusely." Naraine testified that eight stitches were required to close his wounds. No medical testimony on the nature or extent of the wounds was offered, although Samarripa testified that the wound on Naraine's nose could have been caused by a ring rather than a knife.
In determining whether the evidence was sufficient to show that the knife was a deadly weapon, as alleged, we turn first to Section 1.07(a)(11) of our new Penal Code, which defines "deadly weapon" as
What we said on original submission in Mosley v. State, 545 S.W.2d 144, 146 (Tex. Cr.App.1977), No. 51,972, delivered October 27, 1976 (opinion on rehearing delivered January 12, 1977), applies also to the case before us:
Therefore, we turn to our past decisions for guidance in determining whether the extent of the complainant's injuries is of consequence in deciding whether a knife is
In Williams v. State, 477 S.W.2d 24, 25 (Tex.Cr.App.1972), we held, in a unanimous opinion, that:
We therefore hold that under the new Penal Code the wounds inflicted on the injured party are factors to be considered in determining whether a weapon is a deadly weapon under V.T.C.A., Penal Code, Sec. 1.07(a)(11)(B).
We are aware that in determining whether the evidence is sufficient to support the verdict of the jury the rule is that this Court will not substitute its findings for those of the jury, provided there is sufficient evidence to support the jury's verdict. See, e. g., Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744 (1942).
In Ammann, as in this case, the issue was whether the knife used in the assault was a deadly weapon. In holding that evidence was insufficient, the Court said:
The facts and holding of Ammann are instructive in our consideration of this case. In Ammann the complainant and defendant had had a dispute at a cafe on the night before the alleged assault. The next morning the defendant entered the cafe and, using a small pocketknife, stabbed the complainant. He then ran from the building and was heard to say, "I came over here to do it, and I done it," or something very similar.
The complainant in Ammann was in the hospital for five days after the stabbing. The attending physician testified that the wound was eight or ten inches long, extending from the eighth rib on the left side to a point approximately three inches above the navel. The wound did not enter the abdominal cavity, and the doctor testified that he did not believe it would have brought about the complainant's death, even if it had not been sewn up.
The defendant admitted the stabbing but claimed it was done in self-defense.
In reversing, the Court in Ammann relied heavily upon its previous reversal in Hunt v. State, 94 Tex.Cr.R. 155, 250 S.W. 168 (1923). In Hunt the complaining witness was the defendant's wife. Both parties went to the hospital with knife wounds after the alleged assault. The State presented testimony that the defendant's wounds were self-inflicted and that during the alleged assault the defendant expressed an intent to kill.
The complainant's wounds were around her throat and caused her to be hospitalized for about a week. The doctor who examined the complainant stated that the wound did not extend far enough or go deep enough to be fatal, but, if it had gone a little deeper, it "would have been likely to produce death." Id., at 156, 250 S.W. at 168.
The defendant claimed self-defense and denied expressing an intent to kill at the time of the assault.
Similarly, our recent cases have also emphasized the importance of some kind of opinion testimony—generally expert testimony —in such cases. See Washington v. State, 471 S.W.2d 409, 410 (Tex.Cr.App. 1971); Abels v. State, 489 S.W.2d 910, 911 (Tex.Cr.App.1973); Marrero v. State, 500 S.W.2d 818, 819 (Tex.Cr.App.1973); McElroy v. State, 528 S.W.2d 831, 834 (Tex.Cr. App.1975).
What these cases stand for is the basic rule that the State must prove every element of its case beyond a reasonable doubt, and that where the deadly nature of the weapon is an issue the jury will not be allowed to infer deadliness solely from superficial wounds, even though those wounds may have required suturing; thus, the State must provide the trier of fact with some evidence, normally through expert testimony, that the weapon was used or intended to be used in such a way that it was "capable of causing death or serious bodily injury." V.T.C.A., Penal Code, Sec. 1.07(a)(11)(B). See also Boazman v. State, supra, 501 S.W.2d at 896.
In light of the authorities cited and the evidence presented at trial, we conclude that the evidence is insufficient to show that the weapon was deadly, as alleged in the indictment.
The judgment is reversed and the cause remanded.
DOUGLAS, Judge, dissenting.
The majority reverses and holds that the evidence is insufficient to support the conviction. The indictment, omitting the formal parts, alleged that she "did then and there use a knife, a deadly weapon, intentionally threaten imminent bodily injury to James A. Naraine."
The evidence shows that at approximately 3:00 o'clock in the morning on a street in Killeen on May 5, 1975, appellant and Patricia Williams became involved in an altercation with the complaining witness James A. Naraine. Naraine suffered stab wounds in the back, left arm and on his nose near the eye. He was treated at Darnell Army Hospital where eight stitches, including two on the nose, were required to close his wounds. Naraine testified that both appellant and Patricia Williams stabbed him with knives. He described them as folding "penknives" having blades of approximately three to four inches long.
The indictment charges by use of a deadly weapon. The extent of the complaining witness' injuries are of no consequence. The threat of imminent bodily injury with a deadly weapon is all that is required.
Appellant relies on Henderson v. State, 55 Tex.Cr.R. 170, 115 S.W. 588 (1909), which held that an ordinary pocketknife with a three-inch blade is not per se a "deadly weapon." No evidence was introduced in Henderson to show the manner in which the knife was used and the conviction was reversed.
Although a knife is not a deadly weapon per se, it can qualify as such through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Ables v. State, 489 S.W.2d 910 (Tex.Cr.App.1973); Gillingham v. State, 167 Tex.Cr.R. 116, 318 S.W.2d 659 (1958).
The court, in its charge, required the jury to find that the assault was made with a
The jury having found that the knife used was, from the manner of its use, calculated or likely to produce death or serious bodily injury under the evidence mentioned above, their verdict should not be disturbed. In the Gillingham case, the Court held that a switchblade knife with a blade 3¼ inches in length and ½ inch in width would come within the definition of a deadly weapon when used to slash in the vicinity of the face and neck. The Court wrote that whether a knife is to be considered a deadly weapon depends upon its size and the manner of its use and upon its size, shape and capacity to produce death and that, when the use made of the knife produced neither death nor serious bodily injury, the test then is whether the manner in which it was used was calculated to do either. The evidence in the record before us is sufficient to show that appellant used the knife in a manner which was calculated or likely to produce death or serious bodily injury. The jury was the trier of the facts. It was the jury's prerogative to determine the credibility of the witnesses and the weight to be given to their testimony. This Court is not at liberty to substitute its findings for those of the jury. Ferrell v. State, 464 S.W.2d 851 (Tex.Cr.App.1971).
It does not take a doctor's testimony to prove that the knife wielded as it was in this case could cause death.
This Court has held that an automobile is not a deadly weapon per se but, that through its manner of use, it could be one. When someone tries to run over another with an automobile would the majority require proof from an expert that an automobile is a deadly weapon? The majority is not giving jurors credit for knowing facts that are of common knowledge.
The majority has to overrule the well reasoned Gillingham case to reach its erroneous result.
No reversible error having been shown, the judgment should be affirmed.