Trial coming on agg assault, manner and means is by placing the victim in a bathtub, full, and holding a running blow dryer over the tub. (This during the course of a domestic beating) Have a doctor who'll testify that could reasonably be expected to cause death or serious injury. Only remotely possible hole I can see is a challenge as to electrical expertise, but it seems to me that with as many electricity-specific consumer product warnings as we all see every day, the potential for electric shock is a danger any lay person could foresee. Any ideas?

First let me say that I'm not a lawyer so take the following with a grain of salt.

Penal Code 1.07 (a)(17)"Deadly Weapon" means:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Your scenario might fit under either (A) "adapted" or (B) "manner of its use"

I'm not sure but a tub of water might be a deadly weapon on its own, without the hairdryer, if there was a threat of drowning.

The hairdryer by itself doesn't seem all that dangerous but (1) it was plugged into the electrical outlet and (2) it was held over tub of water.

What purpose could one possibly have for doing this EXCEPT to put the victim in fear of her life?

Suppose he was holding something else... suppose he was holding a hamburger... is she going to be afraid of a hamburger?

This might be outdated but:
"When a defendant points an automatic pistol at another person, pulls the trigger, but the gun fails to discharge, aggravated assault is committed. The weapon need not be functioning during the assault. What is necessary is that the defendant be using a deadly weapon to 'intentionally or knowingly threaten another with imminent bodily injury.'" Gaston v. State 672 S.W.2d 819, 821 Tex.App. Dallas 1983, no pet.

Well my first post didn't answer the real question: Is a hairdryer a deadly weapon when used together with a tub?

This post won't give you the answer but hopefully it will shed some light on the circumstances that an appeals court will consider when presented with the question of whether something qualifies as a deadly weapon.


Alvarez v. State says that a knife is not always a deadly weapon... and from way back in 1889 Gladney said that even an AXE was not automatically a deadly weapon.

quote:

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Alvarez v. State 566 S.W.2d 612 Tex.Cr.App.,1978.
It is well established that a knife is not a deadly weapon per se, although a knife can qualify as a deadly weapon through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972). Thus, the essential question is whether there is sufficient evidence to show that the appellant used the knife or intended to use the knife in such a way that it was "capable of causing death or serious bodily injury." Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977); Harris v. State, 562 S.W.2d 463 (Tex.Cr.App.1978).

In the present case, Weaver suffered no wounds. There was no testimony as to the size of the knife's blade, although Weaver testified it looked sharp. Weaver did testify that he was in fear of serious bodily injury or death while the appellant brandished the knife.

We find the evidence regarding "the manner of its use or intended use" insufficient to show that the linoleum knife was "capable of causing death or serious bodily injury." Harris v. State, supra; Danzig v. State, supra. We therefore find the evidence insufficient to show that the appellant used a deadly weapon. The State's evidence, at best, revealed only the commission of an assault under V.T.C.A., Penal Code, Section 22.01(a)(2).

The judgment is reversed and the cause remanded.

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Lafon v. State is unpublished but it has some good language discussing why the evidence of the knife in this case is sufficient to distinguish it from Alvarez.

quote:

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Lafon v. State *** Not Reported in S.W.2d
Tex.App.-Dallas,1999.
In his third point of error, appellant contends the evidence is legally insufficient to prove the knife he used was a deadly weapon. Stuart testified appellant took a knife, put it to her throat, and threatened to kill her. The knife appellant used was recovered and admitted into evidence for the factfinder to view. According to Dean, the knife was capable of causing serious bodily injury or death. This is sufficient to show that the knife, in the manner of its use or intended use, was capable of causing death or serious bodily injury. See Hughes v. State, 787 S.W.2d 193, 194-95 (Tex.App.-Corpus Christi, pet. ref'd); see also Revell v. State, 885 S.W.2d 206, 210 (Tex.App.-Dallas 1994, pet. ref'd).

We reject appellant's assertion that the evidence is insufficient to show the knife's capacity to cause death or serious bodily injury because there is no testimony concerning the size of the blade, its sharpness, and its shape. To support his contention that such testimony is required, appellant relies on Blain v. State, 647 S.W.2d 293 (Tex.Crim.App.1983); Alvarez v. State, 566 S.W.2d 612 (Tex.Crim.App.1978); and Hester v. State, 909 S.W.2d at 174. In each of these cases, the State relied entirely on live lay witness testimony to show the weapon used was capable of causing death or serious bodily injury. In this case, however, the State offered the actual weapon appellant used into evidence. Thus, there was evidence before the factfinder of the knife's physical characteristics. See, e.g., Hughes, 787 S.W.2d at 194-95. Furthermore, the State offered expert testimony that the actual weapon used was capable of causing death or serious bodily injury. See id. Thus, appellant's authorities are inapplicable. We overrule appellant's third point of error.

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So introduce the hairdryer and maybe a picture of the bathtub.

When you buy a new hairdryer, it comes with a large paper warning tag on the cord... This tag has a large pictogram of a bathtub with a big red X and a warning like "DANGER: ELECTROCUTION POSSIBLE IF USED OR DROPPED IN TUB"

On newer units, you might also find a warning like this etched into the plastic of the device itself.

Does the doctor need "electrical" expertise? It seems like MEDICAL expertise is more important.

[This message was edited by AlexLayman on 07-01-04 at .]

thanks for the response, you're thinking more or less along the same lines as I had been. I believe that the "manner of use" argument will be pretty overwhelming. The hairdryer in this case does in fact have a large paper warning tag on the cord, which goes pretty directly to the facts of the case. Looks pretty good.