The opinions from the Court of Criminal Appeals just keep getting better and better. Today, Judge Barbara Hervey explained that a BB gun can, indeed, be a deadly weapon, even if there is no direct evidence it was loaded with a BB.
During my short stint as a defense attorney ("the dark years"), I represented a multiple ex-con who tried to rob a pharmacy with a CO2 pellet gun. He was so doped up the pharmicist was able to jump him and literally sit on him until the police arrived. At trial (of course he refused to plead, preferring to gamble with the mandatory life sentence of the old habitual criminal law), I gave the prosecutor fits when she tried to prove the pellet gun was a deadly weapon. It wasn't loaded (!), was not used as a club, and the officer who testified couldn't recall having heard of one ever hurting anyone real bad. After a hastily requested recess, the ADA produced one of the DA's office investigators who opined that the gun might (you got it, John) put somebody's eye out. Based on that evidence, the Court of Appeals found the pellet gun to be capable of causing serious bodily injury and affirmed the life sentence. Corte v. State, 630 S.W.2d 690 (App.1981) rev.ref'd. There is nothing new under the sun.
Posts: 3 | Location: Seguin, Guadalupe County | Registered: October 04, 2001
I tried an aggravated robbery with a BB gun case a few years ago and got 60 years in prison. The defendant, unhappy with the work of his trial lawyer, decided to do a pro se appeal. He argued that the BB gun was not loaded and, therefore, couldn't be a deadly weapon.
The Court of Appeals bought it, despite my arguments that it didn't matter whether the gun was loaded: Holder v. State, 837 SW2d 802, pet ref'd). They reversed the aggravated robbery conviction, reformed it to a conviction for robbery and remanded for a new trial on punishment.
The defendant represented himself at the retrial and got a life sentence (he was enhanced with two prior robbery convictions). But, I still would rather have the original 60 for aggravated robbery. Any way I can get it back?
For the reasons noted by the court in Daughtery, 62 S.W.3d at 917, the decision in Holder may not conflict with Adame. Besides, I know your query is tongue-in-cheek since a final decision by an appellate court (even if blatantly wrong) is carved in stone so far as that defendant is concerned. It is interesting that defendants can come back and challenge a decision by habeas corpus based on a change in the law, yet the state must live with the intitial decision. The state, of course, has no right to a "just" result.