Is or can a BB gun be a deadly weapon?

Yes.
43 TXPRAC § 38.102
Adame v. State, 69 S.W.3d 581 (Tex.Crim.App. 2002).

Shelton v. State, 10 S.W.3d 689, 695 (Tex.App.--Amarillo 1999) (pellet gun can be a deadly weapon based on testimony that it is capable in its manner of use of causing death or serious bodily injury)

Holder v. State, 837 SW2d 802, pet ref'd

Corte v. State, 630 S.W.2d 690 (App.1981) rev.ref'd.

Adame v. State, CCA 594-01

I wrote a brief a few months ago regarding the sufficiency of proving up a bb / pellet gun as a deadly weapon. Not only was it a BB gun, there was no proof it was loaded. While the COA has not set the case, the analysis may be helpful to you.

In Adame v. State, the Court of Criminal Appeals held that whether a defendant�s BB gun is loaded or unloaded is not significant in the analysis of determining whether the evidence was sufficient to prove that the BB gun was a deadly weapon. 69 S.W.3d 581, 582 (Tex. Crim. App. 2002). Adame pointed a BB gun at a store clerk and demanded money. Id. at 581. A police investigator testified that the BB gun could cause serious bodily injury if it were pointed and fired at a person. Id. The Waco appellate court found it significant in its deadly weapon analysis whether the BB gun was loaded when the court found the evidence insufficient to support the jury�s deadly weapon finding. Id. However, the Court of Criminal Appeals held that what is significant is whether the weapon is capable of causing serious bodily injury. Id. at 582.
It is not necessary, however, to place an additional evidentiary burden on the State to affirmatively prove that a BB gun, which is not a deadly weapon per se, was loaded at the time of the commission of the offense. Rather, in proving use of a deadly weapon other than a deadly weapon per se, the State need show only that the weapon used was capable of causing serious bodily injury or death in its use or intended use.

Id. As such, the Court of Criminal Appeals held that the evidence was sufficient to support the jury�s deadly weapon finding when (1) the defendant pointed weapon at the clerk and (2) the weapon was capable of causing serious bodily injury if pointed and fired at a person. Id.

David and Stacey are both right, but those concurrent answers may be confusing.

Just to clarify, I think the upshot of Adame, et al., is that a BB gun is not a deadly weapon because it is a firearm (which it is not), but it may be a deadly weapon in the manner of its use or intended use. Therefore, be sure to develop or highlight facts that support the "use" aspect to help out your local prosecutor.

Factors to look at:

- type of delivery system (spring-loaded, air-pump, CO2 cartridge)

- type of ammunition (BB, pellet)

- manner of use (pointing at the eye or face, striking in the head)

- velocity of BB or pellet (e.g., ability to puncture skin or eye)

- loaded or unloaded

Good luck. It is worth pursuing.

I know this is tagential but I don't belive a criminal would use a BB gun if he didn't think the victim would fear it was a real gun. So he is intentionally causing someone to fear for his life... he is intentionally creating a situation where the victim would be justified in using deadly force to protect himself. The criminal is betting his life on it.

Like JB said, look at the particulars of the weapon. Some of the more high power air rifles have velocities that rival or exceed regular firearms. Many of the chinese made barrel cocking rifles exceed 1200 fps, which with a .22 caliber projectile is pretty darn fast.

I recall one prosecutor years ago that had his expert do a demonstration by shooting a high power air rifle into a phone book. It went pretty far into the phone book, as far as a regular .22 LR would penetrate.

[This message was edited by Greg Gilleland on 02-29-08 at .]

You could call my mother as an expert witness, she always swore you could put an eye out with one of those things.

I have an x-ray of a pellet in a man's chest. It was about three hours after the shooting before anyone realized that it had penetrated. He survived and still has the pellet in his chest. Maybe he would qualify as an expert!

Pellet in the chest?

Check this out:
Texas Teenager Fighting Efforts by Police to Remove Bullet From Head