Appellant was convicted by a jury for the offense of aggravated robbery. The jury found that appellant had two prior felony convictions, and the court, pursuant to V.T. C.A., Penal Code, Sec. 12.42(d), assessed punishment at life imprisonment.
Appellant's court-appointed counsel has filed a brief in which he has concluded that the appeal is frivolous and without merit. We do not agree, but instead perceive unassigned error which must be considered in
Appellant was charged with having committed aggravated robbery by use of a deadly weapon.
Shortly thereafter, the car became the object of police pursuit, and, after a high speed chase, it collided into a tree and stopped. In the car were Jerry Wayne Hubbard, a woman, appellant (who was driving), a butcher knife and the money taken in the robbery.
In Harris v. State, 562 S.W.2d 463 (Tex. Cr.App.1978),
In contrast with Harris, the knife used in this case by Jerry Wayne Hubbard was described by the State's witnesses as a "butcher knife" and a "long-bladed knife." When Jerry Wayne Hubbard testified for the appellant, he stated on cross-examination that the knife had a blade five or six inches long. He admitted that he had placed the knife against the employee's throat and had told her that "I'd cut her throat."
The facts of this case are thus distinguishable from those in Harris. And see Danzig v. State, 546 S.W.2d 299 (Tex.Cr. App.1977). As we pointed out in Harris and Danzig, a knife is not a deadly weapon per se; therefore, we look to its use and intended use to determine whether it is a deadly weapon. V.T.C.A., Penal Code, Sec. 1.07(a)(11). See also Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1977). It follows that "whether opinion evidence, if any, is necessary, and whether lay or expert opinion is required in proving that a knife is a deadly weapon, is going to depend upon a case-by-case analysis of the evidence." Denham v. State, 574 S.W.2d 129 (Tex.Cr. App.1978); (concurring opinion of Tom G. Davis, Judge).
In the case before us, we conclude from the evidence that the manner of the weapon's use and intended use was such as to allow the jury to infer that the weapon was deadly.
Accordingly, the judgment is affirmed.
DOUGLAS, J., concurs in the result.