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McCain v State14 S.W.3d 300March 1, 2000 No. 716-99 Link to corrected opinion of March 22, 2000 IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. 716-99 TYWOO KEYONDI MCCAIN, Appellant v. THE STATE OF TEXAS ON STATES PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS FORT BEND COUNTY KELLER, J., delivered the unanimous opinion of the Court. OPINION ON STATES PETITION FOR DISCRETIONARY REVIEW Appellant was convicted of aggravated robbery. On appeal, he alleged that the evidence was legally and factually insufficient to prove the aggravating element of aggravated robbery that he used or exhibited a deadly weapon. See Texas Penal Code §29.03(a)(2). Agreeing with appellant that the evidence was legally insufficient to prove that element, the Court of Appeals reformed the conviction to robbery and remanded the case for a new trial on punishment.1 McCain v. State, 987 S.W.2d 134, 137-138 (Tex. App.--Houston [14th] 1998). The District Attorney (DA) and the State Prosecuting Attorney (SPA) petitioned for discretionary review. We granted ground 1 of the SPAs petition. We will reverse. I. BACKGROUND A. The Case The indictment alleged that appellant did use and exhibit a deadly weapon, to wit: a knife, which in the manner of its use and intended use was capable of causing death or serious bodily injury. At trial, the evidence showed that appellant kicked in the door of the complainants kitchen and hit her numerous times with his fist. During the attack, the complainant saw a long, dark object partly sticking out of appellants back pocket. She believed that the object was a knife and was worried that appellant would cut her with it. There was no evidence that appellant touched, brandished, referred to, or overtly displayed the knife in any way other than having it partly sticking out of his pocket. Eventually the complainant escaped appellants attack and later returned to her house with the police. Upon her return home, she discovered that her car and pager were missing. Appellant was later arrested, and the police found, on appellants person, a butcher knife with a nine-inch blade. B. The Court of Appeals Opinion The Court of Appeals first determined that the knife was not a deadly weapon per se because it was not a type designed to be used as a weapon. Id. at 136. The court then proceeded to determine whether the knife was a deadly weapon due to its use or intended use. Id. The Court of Appeals initially offered an explanation for finding that the knife was indeed a deadly weapon:
Id. (bracketed material inserted). Despite this reasoning, however, the Court of Appeals was unwilling to find that the knife was a deadly weapon due to its intended use because we have found no Texas Court of Criminal Appeals opinion in which the carrying of a potentially deadly weapon in this manner, without at least some form of threatening conduct relating to it, was found sufficient to show either the existence or use of a deadly weapon. Id. The Court of Appeals then discussed caselaw interpreting the portion of the community supervision statute relating to deadly weapon findings. Id. The court observed that, under Article 42.12 §3g(a)(2), the existence and use of a deadly weapon includes not only the wielding of a potential weapon with effect but also extends to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony. Id. at 136-137 (quoting Hill v. State, 913 S.W.2d 581, 583 (Tex. Crim. App. 1996) and discussing, in a footnote, Patterson v. State, 769 S.W.2d 928 (Tex. Crim. App. 1989)). Although the Court of Appeals characterized the deadly weapon finding statute as analogous and stated that we perceive no difference in the policy underlying aggravated offense statutes and the community supervision provision, that court nevertheless refused to apply the reasoning of the community supervision cases because we have found no Texas case in which the broader community supervision rationale was applied to review the sufficiency of evidence to prove the aggravating element of an aggravated offense. Id. Instead, the Court of Appeals relied upon the reasoning of the United States Supreme Court in Bailey v. United States, 516 U.S. 137 (1995). The court observed that the Supreme Court held that use, in the context of a federal statute, involves employing a firearm in a way that makes it an operative factor in the offense, such as brandishing, displaying, striking with, firing, or attempting to fire the firearm, or making a verbal reference to a firearm that is calculated to change the circumstances. McCain, 987 S.W.2d at 137. The Court of Appeals noted the existence of a conflict between Bailey and our opinion in Patterson. McCain, 987 S.W.2d at 137 n. 5. The court further stated that we have found no authority that any lesser use [than that described in Bailey], such as mere possession or carrying of a potentially deadly weapon, is adequate to show the existence and use of a deadly weapon under Texas Penal Code §29.03(a)(2). McCain, 987 S.W.2d at 137 (bracketed material inserted). The Court of Appeals concluded:
Id. C. The States Arguments We granted the SPAs first ground for review:
In support of this ground the SPA makes several arguments. First, the SPA contends that an object can be a deadly weapon by design, under Texas Penal Code §1.07(a)(17)(A), even though the object may have been designed for a manifest purpose apart from being a deadly weapon (a kitchen knife, for example). The SPA criticizes, as being too broad, language in Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991), which stated that certain objects, such as a kitchen knife, that have a designed purpose other than as a deadly weapon cannot be considered deadly weapons unless actually used or intended to be used in such a way as to cause death or serious bodily injury within the meaning of Section 1.07(a)(11)(B). The SPA also contends that this language in Thomas is inconsistent with other Texas caselaw holding that a knife can be a deadly weapon if it is used to threaten someone or to place someone in fear of death or serious bodily injury, even if the perpetrator had no intention of following through on his threat. Further, the SPA cites the California case of People v. Raleigh, 128 Cal. App. 105, 16 P.2d 752 (1932) as establishing an instructive approach to deadly weapon issues. According to the SPA, the Raleigh standard requires: (1) the instrument must be capable of being used in a deadly fashion, and (2) the possessor must intend that it serve such a purpose when the crime is committed. The SPA concludes: an instrument that may be innocent by design may become a deadly weapon through the nature of its usage. According to the SPA, these above arguments are reasons for interpreting more expansively the design part of the deadly weapon definition (i.e. §1.07(a)(17)(A)). The SPA apparently concedes that the butcher knife was not a deadly weapon under §1.07(a)(17)(B), which defines deadly weapon by its use or intended use: As to subsection (B)....We do not disagree with the courts conclusion that there was no evidence that the appellant used or intended to use the knife to inflict death or serious bodily injury. However, the SPA contends that the nature of the knifes usage should have been taken into account in analyzing whether the knife was deadly by design under §1.07(a)(17)(A). In connection with this contention, the SPA also argues that the words designed, made, or adapted in subsection A indicate that an object may be a deadly weapon under subsection (A) for reasons other than the objects physical design. II. ANALYSIS A robbery becomes an aggravated robbery if the actor uses or exhibits a deadly weapon. Texas Penal Code §29.03(a)(2).3 Deadly weapon is defined as follows:
Texas Penal Code §1.07(a)(17). In interpreting a statute, we adhere to our cardinal rule of statutory construction: We must interpret a statute in accordance with the plain meaning of its language, unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). As the Court of Appeals pointed out, we have already interpreted a similar statute in the past. Article 42.12 §3g addresses deadly weapon findings that adversely affect eligibility for community supervision. That statute incorporates the Penal Code definition of deadly weapon and contains use or exhibit language parallel to that contained in the aggravated robbery statute:
Article 42.12 §3g(a)(2). The caselaw interpreting §3g(a)(2) focuses solely upon the language of the provision. Patterson, 769 S.W.2d at 940. Given the similarity of this language to that found in the aggravated robbery statute, we conclude that Patterson and its progeny are indeed relevant to interpreting the aggravated robbery section. Hence, in accordance with Patterson, a person uses or exhibits a deadly weapon under the aggravated robbery statute if he employs the weapon in any manner that facilitates the associated felony. Id. at 941. The Court of Appeals reliance upon the Supreme Courts opinion in Bailey is misplaced. We have recently declined to follow Bailey in the community supervision context because the federal statute involved in Bailey contained materially different language than found in the state provision. Gale v. State, 998 S.W.2d 221, 225 (Tex. Crim. App. 1999). The reasoning in Gale applies equally to the case before us. However, Patterson and Gale do not, by themselves, resolve the case before us. Those cases involved objects that were admittedly deadly weapons, and the issue posed was whether such objects were used or exhibited in the criminal transaction. In the present case, the question first arises: Could the object (the butcher knife) be a deadly weapon under the facts of the case? If that question is answered in the affirmative, then we would have occasion to ascertain whether that object was used or exhibited during the offense. To begin with, we reject the SPAs contention that an object can be a deadly weapon under §1.07(a)(17)(A) for reasons other than the objects physical characteristics. Subsection (A), by its clear language, describes a deadly weapon by its physical characteristics. The subsection first mentions a firearm as a deadly weapon. Firearm describes an object of certain physical characteristics, and the Legislature has dictated that such an object is a deadly weapon. The remaining phrase parallels the Legislatures obvious intention when it speaks of something that is designed, made, or adapted for the purpose of inflicting death or serious bodily injury (emphasis added). That three words are used in the statute (designed, made, and adapted) instead of one emphasizes that a deadly weapon may come to possess its physical characteristics through a variety of methods. An object could be manufactured as a deadly weapon, an object could be assembled together with other objects in a physical form that would render it a deadly weapon, or an object could be modified from its original form in such a way as to render the object a deadly weapon. To define a deadly weapon by a method other than the weapons physical characteristics would require an evaluation of the weapons usage in a particular instance. But the Legislature defined deadly weapons by usage in a different subsection, §1.07(a)(17)(B). To import usage into subsection (A) would render subsection (B) meaningless. The SPA also contends that an object can, through its physical characteristics, have more than one purpose, one of which can be as a deadly weapon. Whatever the merits of that position, an object that has an obvious purpose apart from causing death or serious bodily injury cannot be a deadly weapon under subsection (A): the object must be manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury (emphasis added). Hence, as we have explained in the past, kitchen knives, utility knives, straight razors, and eating utensils are manifestly designed for other purposes and, consequently, do not qualify as deadly weapons under subsection (A). Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). Butcher knives, having an obvious purpose apart from inflicting death or serious bodily injury, would also appear to be excluded from the subsection (A) category of objects that are deadly weapons due to their physical characteristics. Nevertheless, we agree with the SPAs contention that objects used to threaten deadly force are in fact deadly weapons.4 The statute does not say anything that in the manner of its use or intended use causes death or serious bodily injury. Instead the statute provides that a deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. §1.07(a)(17)(B)(emphasis added). The provisions plain language 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. See Tisdale v. State, 686 S.W.2d 110, 114-115 (Tex. Crim. App. 1984). Thomas contains language that is somewhat misleading when it states that certain objects are not deadly weapons unless actually used or intended to be used in such a way as to cause death or serious bodily injury within the meaning of Section 1.07(a)(11)(B). 821 S.W.2d at 620. But a closer reading of the opinion shows that the Court was simply making a shorthand reference to subsection (B)s requirement while the Court focused upon the applicability of subsection (A). The modifying phrase within the meaning of Section 1.07(a)(11)(B) requires us to refer back to the statutory text to determine the full meaning of that passage. A subsequent paragraph in the opinion rectifies this omission by including the word capable in its discussion. 821 S.W.2d at 62.5 For legal sufficiency purposes, the question is whether, after viewing the evidence in the light most favorable to the prosecution, 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, 319 (1979)(emphasis in original). Given the foregoing discussion, the mere carrying of a butcher knife during such a violent attack as occurred in the present case was legally sufficient for a factfinder to conclude that the intended use for the knife was that it be capable of causing death or serious bodily injury. Hence, the evidence was legally sufficient to show that the butcher knife was a deadly weapon under the circumstances. The remaining question, then, is whether the butcher knife was used or exhibited during the criminal transaction. Had the knife been completely concealed by appellants clothing, additional facts would have been needed to establish that the butcher knife was used. But the knife was partially exposed, and from that exposure, the factfinder could rationally conclude that the knife was exhibited during the criminal transaction, or at least, that its presence was used by appellant to instill in the complainant apprehension, reducing the likelihood of resistance during the encounter. We are not equating mere possession with use or exhibit under Texas Penal Code §29.03(a)(2). Rather, the determining factor is that the deadly weapon was used in facilitating the underlying crime. See Patterson v. State, 769 S.W.2d 928, 941 (Tex. Crim. App. 1989). The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. KELLER, J. DATE DELIVERED: March 1, 2000 This information is made available as a free public service for your personal, non-commercial use. 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