Johnson, J., filed a concurring opinion.

Appellant was indicted for aggravated robbery, pursuant to §§ 29.03(a)(2) and 1.07(a)(17)(B) of the Texas Penal Code.¹ The pistol used by appellant was later found and identified as a BB gun, which fires projectiles with energy from compressed air rather than from an explosion or burning material. Thus, it is not a “firearm” and not a deadly weapon per se.”² The indictment in the instant case properly alleged that appellant “did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Susan Stone in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a BB gun that in the manner of its use or intended use was capable of causing death or serious bodily injury.”

At trial, when asked by the state on direct examination whether she was “in fear of imminent bodily injury or death,” the attendant answered, “Most definitely.” Officer Gonzales, who was involved in the investigation of the robbery, testified that, based on his past experience, the pistol could cause serious bodily injury, if pointed and fired at someone.

The court of appeals observed that “[t]he fact that a BB pistol is loaded or unloaded is significant in the deadly weapon analysis,” and that “a BB pistol is generally not ‘capable’ of causing death or serious bodily injury unless it is loaded.” Adame, 37 S.W.3d at 143-44. The court of appeals correctly stated that this Court “recently held in McCain that ‘objects used to threaten deadly force are in fact deadly weapons’” and that “the key to a deadly weapon finding is whether the weapon is ‘capable,’ in the manner of its use or intended use, of causing death or serious bodily injury.” Id. at 144. However, in McCain, we also stated:

[The] plain language [of § 1.07(a)(17)(B) of the Texas Penal Code] does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. The placement of the word ‘capable’ in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.

McCain, 22 S.W.3d at 503. Here, appellant’s conduct threatened deadly force, regardless of his intent or lack of intent to actually use deadly force or, indeed, his actual ability to use deadly force. Id.; see also Bailey v. State, 38 S.W.3d 157, 158-59 (Tex. Crim. App. 2001) (per curiam).

Johnson, J.

Date Filed: March 6, 2002
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¹Section 29.03(a)(2) provides that “[a] person commits an offense if he commits robbery as defined in Section 29.02, and he . . . uses or exhibits a deadly weapon.” Section 1.07(a)(17)(B) provides that “[i]n this code . . . ‘Deadly weapon’ means . . . anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”
² Tex. Penal Code Ann. § 46.01(3) (2000).