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Adkins v. State3/24/2003
e distance between the appellant and the victim, and the witnesses' descriptions of the instrument are all relevant in determining whether the evidence is legally sufficient to support a finding that the appellant intended to use the instrument in a manner capable of causing death or serious bodily injury. Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986). In addition, while the State is not required to introduce expert testimony to prove that the intended use of an object is capable of causing death or serious bodily injury, it may be "particularly useful in supplementing meager evidence on the issue." Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. [Panel Op.] 1980).
In this case, Officer Horton testified at trial that in his opinion as a police officer, the stick and similar objects are capable of causing serious bodily injury or death and the way appellant used the stick on the night the officers arrested him could have caused serious bodily injury or death. In addition, Officer Morales agreed that the stick is an object that in the manner of its use or intended use is capable of causing death or serious bodily injury. However, this testimony is not sufficient to establish that the stick is a deadly weapon. Officer Horton did not testify that appellant intended a use of the stick that is capable of causing death or serious bodily injury. And, given the remainder of the officers' testimony in this case, we cannot agree that appellant's grabbing the stick, exiting the truck in a threatening manner, walking toward Officer Horton with the stick in his hand, and stopping about three feet away from Officer Horton is a use of the stick that is capable of causing death or serious bodily injury.
Because appellant did not use the stick in a manner capable of causing death or serious bodily injury, we must determine whether the evidence is sufficient to prove that appellant intended to use the stick in a manner capable of causing serious bodily injury or death. There is no such evidence in the record. Appellant made no verbal threats to the officers. Although appellant approached Officer Horton while holding the stick, according to Officer Morales's testimony, he was standing about the length of the bed of a pickup truck away from Officer Horton when he dropped it. In addition, Officer Morales testified that appellant did not swing the stick at Officer Horton, nor is there any evidence in the record that appellant brandished the stick in any way. While there is evidence that appellant's manner of exiting the truck and holding the stick was threatening, there is no evidence that the nature of the threat was to inflict serious bodily injury or death. At most, the evidence raises a reasonable inference that appellant intended to scare the officers away. Furthermore, while Officers Horton and Morales testified that they were afraid for their safety, they did not testify that they were afraid appellant would cause them serious bodily injury or death.
Appellant correctly concedes that the stick is capable of causing death or serious bodily injury. However, we agree with appellant that even after viewing the evidence in the light most favorable to the verdict, a rational trier of fact could not find that the State proved beyond a reasonable doubt that appellant intended to use the stick in a manner that would cause serious bodily injury or death. Thus, the evidence is legally insufficient to support the jury's deadly weapon finding. We sustain the portion of appellant's additional issue that complains of the legal sufficiency of the evidence to support the jury's deadly weapon finding, but overrule the portion contending that the evidence was insufficient to prove he possessed the dr
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