STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND
COURT OF APPEALS TARRANT COUNTY
issue in this case is whether there is sufficient evidence to
affirm the jury's deadly-weapon finding elevating robbery
to aggravated robbery. Because we conclude that there is and
that the court of appeals erred to hold otherwise, we will
reverse its judgment and remand this cause for the lower
court to address Appellant's remaining points of error.
Kimp,  Appellant, was charged by indictment with
aggravated robbery after he robbed two cashiers working at a
RaceTrac convenience store using a butter knife. The
indictment alleged that Kimp intentionally or knowingly
threatened Amelia Martinez(Amelia) or placed her in fear of
imminent bodily injury or death while in the course of
committing robbery. It further alleged that Kimp used or
exhibited a deadly weapon, to-wit: a knife that in the manner
of its use or intended use was capable of causing death or
serious bodily injury. Both aggravated robbery and the
lesser-included offense of robbery were submitted to the
jury, and the jury found Kimp guilty of aggravated robbery.
In accordance with the jury's verdict, the judge entered
a deadly-weapon finding. Kimp was sentenced to 18 years'
confinement and fined $10, 000. Kimp appealed his conviction,
and the court of appeals reversed, holding that there was
insufficient evidence to sustain the deadly-weapon finding.
We subsequently granted the petition for discretionary review
filed by the State Prosecuting Attorney asking whether,
the evidence [is] sufficient to support a jury's finding
that a butter knife is a deadly weapon when it can rationally
be determined that it was capable of causing death or serious
bodily injury because it was brandished aggressively during a
convenience store robbery?
night of the robbery, two employees were working at the
RaceTrac: Amelia who was the cashier and Aaron Martinez
(Aaron), the night manager, who was also working as a
cashier. Between about 11:00 p.m. and midnight, Kimp entered
the store and walked towards the back to get a fountain drink
at the soda machine. From there, he looked around the store,
killing time before approaching Aaron's cash register,
presumably to pay for his drink. But Kimp just stared at
Aaron and then walked behind the counter towards Amelia,
Aaron, and the cash registers. As he approached Amelia, he
pulled a knife out of his pants and waved it at her and Aaron
in a threatening manner and told them to "[b]ack the
fuck up." They both moved to the corner of the
back-counter area, as far away from Kimp as possible. Aaron
only saw a silver object protruding from Kimp's hand, but
Amelia saw the knife. Kimp swung the knife at her as she
moved to let him take the money from the register. Amelia
testified that she did not know how long the blade was, but
the tip of it was rounded and looked like a butter knife. She
also testified that she felt threatened and was scared even
though Kimp had a butter knife "[b]ecause, like, even
though it is a butter knife, that it still can do some
damage, you know. I never got robbed like that in my
life." After Kimp took the cash from Amelia's
register, he went to the other register. Security camera
footage showed that, as Kimp approached the register, he
briefly confronted Amelia and Aaron, but during that portion
of the video, Kimp's back is to the camera and Amelia and
Aaron are just outside of the camera's view. Aaron
explained what happened during that confrontation: Kimp
approached them, "kind of stuck his chest out, "
and told them to get in the corner and keep their faces down.
When Aaron did not comply quickly enough, Kimp advanced on
him even faster with the knife. Aaron felt "[a] little
threatened, " although he was not too scared to act
because he knew he had to take charge of the situation.
Amelia said that when Kimp approached them, he made
aggressive movements towards them to "frighten us."
On his way out of the store, Kimp told Amelia and Aaron to
"[h]ave a nice fucking day." Once Kimp was gone,
Aaron immediately closed and locked the register drawers,
called 9-1-1, removed the remaining customers from the store,
and locked the doors until police arrived.
reviewing the record for legal sufficiency, we consider the
combined and cumulative force of all admitted evidence and
reasonable inferences therefrom in the light most favorable
to the verdict to determine whether a jury was rationally
justified in finding guilt beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
only element of aggravated robbery at issue here is whether
Kimp "use[d] or exhibit[ed] a deadly
weapon." Tex. Pen. Code § 29.03(a)(2). To meet
its burden, the State was required to prove that the knife
Kimp had was a deadly weapon as defined by statute and that,
if it was, he also used or exhibited the knife while
committing robbery. Id. A deadly weapon is defined
as "a firearm or anything manifestly designed, made, or
adapted for the purpose of inflicting death or serious bodily
injury" or "anything that in the manner of its use
or intended use is capable of causing death or serious bodily
injury." Tex. Penal Code § 1.07(a)(17); McCain
v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000).
"Serious bodily injury" is defined as "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." Tex. Penal Code § 1.07(a)(46). Because not
all knives are manifestly designed, made, or adapted for the
purpose of inflicting serious bodily injury or death,
evidence is sufficient to support the finding in this case
only if the jury could have rationally found that Kimp used
the knife in such a way, or intended to use the knife in such
a way, that it was capable of causing serious bodily injury
or death. Id. § 1.07(a)(17).
determining whether a weapon is deadly in its manner of use
or intended manner of use, the defendant need not have
actually inflicted harm on the victim. See Brown,
716 S.W.2d at 946. Instead, we consider words and other
threatening actions by the defendant, including the
defendant's proximity to the victim; the weapon's
ability to inflict serious bodily injury or death, including
the size, shape, and sharpness of the weapon; and the manner
in which the defendant used the weapon. See Tisdale v.
State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984) (op.
on reh'g) (physical proximity); Blain, 647
S.W.2d at 294 (size, shape, and sharpness of the weapon;
ability of the weapon to inflict death or serious injury; and
the manner in which the defendant used the ...