By Benjamin I. Kaminar
Assistant County & District Attorney in Lamar County
There is a long-running thread on the TDCAA user forums entitled “A Frog is a Deadly Weapon.” Over the years, prosecutors from around the nation have collected and shared cases and stories with unusual weapons. In the end, dozens of pages memorialize defendants’ violent creativity. Of course, the more creative the defendant, the greater the effort for the prosecutor to prove a case at trial.
In this article, we’ll look at what a deadly weapon is, themes and techniques for proving deadly weapons at both voir dire and trial, and some of the effects of a deadly weapon finding.
What is a deadly weapon?
The Penal Code defines a deadly weapon as:
1) a firearm,
2) anything manifestly designed, made, or adapted for inflicting death or serious bodily injury, or
3) anything that in the manner of its use or intended use is capable of causing serious bodily injury or death.
Firearms could be the subject of an entire article in their own right, and indeed, they are the subject of an excellent talk that Bill Wirskye, First Assistant Criminal District Attorney in Collin County, gives at many TDCAA seminars.
Items manifestly designed or adapted for causing serious bodily injury or death cover basically any sort of weapon. Pipe bombs, swords, land mines, and prison shanks are all examples of objects designed or adapted for causing serious bodily injury or death. When you look at these items, they instantly prompt the thought, “Yep, that could kill you.”
The third category includes pretty much any object in existence that doesn’t already fall into one of the first two groups. The key with this category is that the manner of use or intended use refers to the defendant’s use or intended use, not the manufacturer’s intended use. This covers improvised weapons (such as frogs shot out of potato guns) rather than designed weapons. Hammers, rocks, pipes, bricks, the defendant’s own hands and feet, and motor vehicles (one of the most popular) can all fall into this category. Of course, a weapon may qualify under more than one criterion. A handgun is a firearm, but it is also both designed for causing death or serious bodily injury and capable of causing them.
Death may not require much explanation, but what is serious bodily injury? It is bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. All of those are fact-specific, and the individual case will have to be tailored to the injuries. For instance, an assault that causes the total loss of an eye, as happened in the example of the frog and the potato gun, may not require expert testimony or evidence (although it certainly wouldn’t hurt to have it). On the other hand, a stab wound that cuts an artery or injures internal organs may need expert testimony regarding the risk of death or the unseen, long-term effects of such internal wounds.
When it comes to proving that something is capable of causing serious bodily injury or death, the logic can be a bit circular. The simplest way to show that it was capable of causing that degree of injury is to show that it actually did cause serious bodily injury or death. After all, it’s hard to argue a lightsaber isn’t a deadly weapon when there’s a severed arm on the cantina floor. In many cases, though, we’ll be dealing with cases where the defendant didn’t actually succeed in causing serious bodily injury, or perhaps he only exhibited a deadly weapon as part of a threat. For these situations, prosecutors must show the jury just how that weapon could have caused serious bodily injury, and for that, the State should start laying the groundwork during voir dire.
Voir dire and trial
As we all learned as far back as baby prosecutor school, proving our case at trial begins during voir dire as we prosecutors educate future jurors. While we can throw a definition up on a slide, rattle off a couple of examples, and move on, crowdsourcing our examples from the panel can be far more engaging (and interesting). One technique I’ve used in the past is to walk the panel through the three categories of deadly weapons and ask for examples of each along the way. Asking for types of firearms usually prompts responses such as Glocks, AR-15s, and shotguns. Firearms is a good category to start with because it’s so well-defined and easy to understand. From there, we discuss the items manifestly made or designed for causing serious bodily injury. Examples that may frequently pop up are knives, swords, and bows and arrows (especially if hunters are on the panel). This is a good time to get the panel thinking about things that can be specifically adapted into weapons. A prison guard or jailer might be called upon and asked about weapons made in prisons and jails.
When it comes to the third category, though, I like to provide the first example with what we in my office call the “fluffy pillow” voir dire. This method works best with an actual pillow as a demonstrative. Hold it up and ask if it’s a deadly weapon; most of your panel will say no. “What if I swing it and hit my co-counsel with it?” (Bonus points if you actually hit her with it.) The answer should still be no. “Now what if my co-counsel takes the pillow away, holds it over my face, and suffocates me?” (Again, bonus points if she actually takes the pillow and holds it over your face for a moment.) By now, everyone should be on board with how even a fluffy pillow can be a deadly weapon. To reinforce the point, you can use a couple more examples of you and co-counsel creatively murdering each other with everyday objects before crowdsourcing from the panel a bit more. By the end of this part of voir dire, the panel should understand that anything can be a deadly weapon, depending on how it is used.
However, just because prosecutors educated the panel on this topic doesn’t mean our work is done. We still have to show how this particular deadly weapon in this particular case could have caused serious bodily injury. This is much simpler if the weapon actually did cause serious bodily injury. It’s the cases where it caused only bodily injury or where the weapon was merely exhibited that are more challenging.
Our office recently tried a case of aggravated assault with a deadly weapon based on a threat to harm a city public works employee with a water meter key. The defendant followed through on his threat by swinging the key and then throwing it at the employee (he missed). “Just what is a water meter key?” you may be asking yourself right now. A water meter key is a long piece of metal the thickness of rebar with another short piece welded on one end to form a T-handle; it has a notch or prongs at the other end. It’s used to turn a residential water meter on or off, and it is not the first thing that comes to mind when you think “deadly weapon.” At trial, we brought in the water meter key that was recovered from the defendant and had the detective testify about its size and weight. After that, he was asked if he had seen injuries from similar objects during his years as a police officer and to describe what injuries he had seen. Finally, he testified that in his opinion, the water meter key could have caused serious bodily injury or death. Ultimately, the jury agreed that the water meter key could have caused serious bodily injury and found the defendant guilty. However, our office would not have been successful if we hadn’t done a thorough job of educating the jury during voir dire and then having the detective give specific examples of injuries caused by similar objects during his career.
One word of caution, though. It’s not enough that in some scenario, the object could theoretically cause serious bodily injury. Someone actually has to be put in danger. This question often arises in cases of evading arrest with a vehicle that allege the vehicle as a deadly weapon. The Court of Criminal Appeals has held that “a deadly weapon finding is appropriate on a sufficient showing of actual danger, such as evidence that another motorist was on the highway at the same time and place as the defendant when the defendant drove in a dangerous manner.” The simple test is to ask who was put in danger by the defendant. If you can’t point to a person or vehicle (if we’re talking about an evading scenario) that was endangered, you may have trouble with a deadly weapon finding.
Deadly weapon findings
Deadly weapons can be an issue in one of two ways. First, the offense could include a deadly weapon allegation as an element of the offense. For example, a deadly weapon allegation is one way an assault becomes an aggravated assault or a robbery becomes an aggravated robbery. In these situations, prosecutors don’t need to submit a deadly weapon finding as a special issue; it is encompassed by the jury charge and verdict on the offense. The Court of Criminal Appeals has held that “if the indictment by allegation specifically places the issue before the trier of fact (i.e., ‘… by stabbing him with a knife, a deadly weapon …’), then an affirmative finding is de facto made when the defendant is found guilty ‘as charged in the indictment.’”
In offenses where a deadly weapon allegation is not an element of the offense, prosecutors still have the option of seeking an affirmative finding. In these situations, they must give notice of intent to seek such finding, much like they would a punishment enhancement. While a written notice of intent may be sufficient, just like with punishment enhancements, the best practice is a deadly weapon paragraph in the indictment, just like with punishment enhancements. The jury charge should then include instructions on the special issue and a verdict form for it.
The effects of a deadly weapon finding upon a defendant can be severe. First, Code of Criminal Procedure Art. 42A.054 restricts a judge from granting community supervision to a defendant found guilty of an offense with a deadly weapon finding. By extension, this means a judge cannot grant shock probation, either. (That restriction, however, does not apply to deferred adjudication.) If sentenced to incarceration, a defendant with a deadly weapon finding must serve the lesser of one-half of the sentence or 30 years before being eligible for parole. There is a specific jury instruction about parole that must be included in the punishment charge that can be found in Art. 37.07 §4.
Finally, a deadly weapon finding can have some unusual effects on state jail felonies. Most state jail felonies are punishable under Penal Code §12.35(a), which provides for the familiar range of 180 days to two years. If the state jail offense has a deadly weapon finding, or if the defendant has ever previously been finally convicted of a felony with a deadly weapon finding, then the state jail offense is punishable under §12.35(c) as an aggravated state jail felony. An aggravated state jail felony is functionally identical to a third-degree felony; it receives the same punishment range as a third-degree felony, it may be enhanced as if it were a third-degree felony, and it may be used to enhance future felonies as if it were a third-degree felony. Section 12.42, the enhancement provision for first-, second-, and third-degree felonies, specifically refers to felonies “other than a felony punishable under §12.35(a)” while §12.425, the state jail enhancement provision, refers specifically to “state jail felon[ies] punishable under §12.35(a).” Many times, judgments for state jail offenses won’t be specific as to which subsection was applicable; in these cases, prosecutors may need to double-check if there was a deadly weapon finding to determine how to properly classify the prior conviction. This can be especially important and catch a prosecutor off-guard when enhancing a non-aggravated state jail with two prior state jail felonies. An overlooked deadly weapon finding on one of the two enhancing state jail convictions will disqualify it from being used to enhance under §12.425. Some of the most frequent culprits here are older convictions for Evading Arrest or Detention with a Vehicle. Not too long ago, that offense was a state jail, rather than third-degree, felony and would often carry a deadly weapon finding.
While a pencil may not be dangerous in most hands, in some it can be deadly. By carefully preparing cases and educating jury panels (or letting panel members educate each other), prosecutors can be just as creative in proving up a deadly weapon finding as some defendants are in wielding deadly weapons.
 It is 42 pages long at the time of this writing: http://tdcaa.infopop.net/eve/forums/a/tpc/f/157098965/m/6063090757/p/1.
 Tex. Penal Code §1.07(a)(17).
 Tex. Penal Code §1.07(a)(46).
 “While expert testimony as to the extent and effects of the injuries regarding their disfiguring or impairing quality has been found sufficient, such testimony is not necessary where the injuries and their effects are obvious.” Taylor v. State, 71 S.W.3d 792, 795 (Tex.App.—Texarkana 2002).
 Star Wars, Lucasfilm, 1977.
 Even a comfy chair, per Monty Python’s Spanish Inquisition.
 Offered as a lay opinion based on his direct perceptions of the water meter key under Tex. Rule of Evidence 701.
 Drichas v. State, 175 S.W.3d 795 (Tex. Crim. App. 2005).
 Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985).
 John Wick: Chapter 2, Lionsgate, 2017.