If a knife is alleged in state's intent to seek deadly wpn finding and there is no evidence in the record to show that the knife is capable of causing death or serious bodily injury and victim did not see knife during attack is there case law to show that the knife can be a deadly weapon. McCain 22 SW3d 497 suggests that but the facts of that case show that the victim saw what she believed to be a knife. Here, the victim never knew about the knife until the police recovered it in her bedroom. I know that in Skinner 274 SW 133 it appears that the court has stated that the jury cannot determine by observation of the weapon whether it is a deadly weapon. Although this seems as though the remark is in dicta. This knife is certainly the type of knife that looks like a deadly weapon. Any suggestions? The second question is whether the appellant can have a retrial based on the fact that the election of have jury assess punishment specifically gives the reason as the denial of the motion to quash the intent to seek a deadly weapon finding.

It appears the jury must have found there was an assault of some sort with a deadly weapon, even though no one testified to any actual threatening or dangerous use of the knife. I would say it is unlikely this type proof would meet the requirements of cases like McCain, 987 S.W.2d at 136 (even though McCain was reversed by the CCA in the context of a robbery). No doubt "the manner in which a potentially deadly weapon is employed in an offense is [still] central to determining . . . whether it is a deadly weapon." I do not think just the appearance of something will "cut" it.

That the defendant was mistaken concerning the strength of the proof as to his ineligibility under sec. 3G(a)(2) of 42.12 (which is why I presume you ask your second question) should be no basis for him to claim ineffective assistance of counsel in making his election under 37.07 sec. 2(b)(2). He was never entitled to have the allegation of use of a deadly weapon struck from the indictment. You cannot attack an indictment based on sufficiency of the evidence (except maybe where you prove a prior alleged conviction is void). How could he ever prove there would be a different result if he had elected the other way?

Thanks for your input. I think I am going to try to argue that the knife is a deadly weapon under 1.07(a) because it was an assault knife, but I also think that argument is weak. (compare it to Thomas v. State 821 SW2d 616, 620 in which knives that are manifestly designed to cause death may be a deadly weapon under 1.07(a)) However, I still have the hurdle of no testimony. He is not claiming ineffective assistance of counsel, he is claiming harm since prior to the state seeking a deadly weapon finding he elected to go to judge but the mere fact that the state sought the finding forced him to go to jury in the hopes of probation. I have talked the Jeff Van Horn and there are several arguments to use. First, I think I can argue that this is not error - so no harm analysis is appropriate, second argue that defendant's always must make that decision any time a deadly weapon finding is sought and third even if there is insufficient evidence to make a deadly weapon finding the remedy is to delete ddly weapon finding, or give the defendant what he wantes - resentencing with the judge with no deadly weapon finding. I am investigating cases which say that even if the jury does not make a deadly weapon finding, if sentence is before the judge he may still enter an affirmative finding of a deadly weapon at punishment for a possible harm analysis.

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

Merely because the State alleged something which it was to have difficulty in proving is not the basis for any claim that an error was made by either the prosecution or the court. 37.07 sec. 2 (b) gives the Defendant an option. The basis on which he makes his choice is totally up to him with the assistance of counsel. Besides, electing to have the jury assess punishment is generally considered to be a huge advantage (particularly since it gives him a second opportunity for a mistrial) and not a disadvantage. I guess your Defendant is merely arguing the jury imposed a more harsh sentence than he thought he might get from the judge. So what. That is what a jury trial is all about-- uncertainty and disappointment of expectations. I would not waste too much time on that point of error.