Is That a Real Knife?

by Rick Wetzel on February 4, 2011

A Texas criminal appeals lawyer will tell you that prosecutors often allege the use or exhibition of a deadly weapon during the offense for three reasons.  Those reasons concern the available range of punishment, parole eligibility, and eligibility for community supervision.  A lawyer with an emphasis on criminal appeals will be able to determine whether a deadly weapon finding was properly made by the fact finder and entered in the judgment.

Manner of Use or Intended Use

Unlike a handgun, a knife is not manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury, and therefore is not a deadly weapon per se under Texas law.  However, depending on the facts of the case, a knife may be shown to be a deadly weapon if in the manner of its use or intended use it is capable of causing death or serious bodily injury.  McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Tex. Pen. Code § 1.07(a)(17)(B).

Factors to Consider

The State may establish that a knife was in fact deadly through evidence of the nature and use of the knife, including the knife itself or a facsimile of knife, witnesses’ descriptions of the knife’s size, shape, and sharpness, any verbal threats, the manner in which the knife was used, and the nature of any wounds caused.   Although expert testimony is not required to establish that a specific knife is a deadly weapon, it may still be particularly useful in supplementing meager evidence on the issue in order to meet the sufficiency requirement.

Remedies for Improper Deadly Weapon Finding

Even after the trial is over, a lawyer with an emphasis on criminal appeals can challenge an improper deadly weapon finding.  An improper finding may be challenged on direct appeal to a Texas criminal appeals court.  An improper finding may be challenged by way of an application for writ of habeas corpus.  Finally, under the Texas Rules of Appellate Procedure, the trial court retains the authority to correct the judgment if it improperly contains a deadly weapon finding.

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