Johnson v. State
2017 Tex. Crim. App. LEXIS 213
| Tex. Crim. App. | 2017Background
- Kevin Kimp was indicted for aggravated robbery after he took cash from two RaceTrac cashiers while displaying a knife (described by one victim as resembling a butter knife).
- At trial the jury convicted Kimp of aggravated robbery and found a deadly-weapon enhancement; he was sentenced to 18 years and a $10,000 fine.
- The court of appeals reversed, holding insufficient evidence that the butter knife was a deadly weapon capable of causing death or serious bodily injury.
- Facts: security video showed Kimp pull a knife from his pants, approach within a foot or two of the victims, wave/brandish the knife and order them to back up; one victim saw the knife and felt threatened; the other saw only a silver object.
- The State sought review, arguing the video and victim testimony provided sufficient evidence that the knife, as used/brandished, was capable of causing serious bodily injury or death.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kimp) | Held |
|---|---|---|---|
| Whether evidence suffices to support a jury finding that the butter knife was a deadly weapon under Penal Code §1.07(a)(17) | Video and testimony show Kimp brandished the knife, was in close proximity, and used threatening language/movements — a jury could find the knife, as used, capable of causing serious injury or death | Knife was a common butter/kitchen knife; victims did not describe size/shape fully; video does not show lunging/stabbing or explicit threats — insufficient to prove capability or intent | Reversed the court of appeals: evidence sufficient that the knife, by its manner of use and intended use (brandishing, proximity, threats), was capable of causing serious bodily injury or death and was exhibited/used during the robbery |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (legal-sufficiency standard for criminal convictions)
- McCain v. State, 22 S.W.3d 497 (Tex. Crim. App.) (definition and proof requirements for "used or exhibited" deadly weapon)
- Tisdale v. State, 686 S.W.2d 110 (Tex. Crim. App.) (factors: physical proximity and threatening actions relevant to deadly-weapon analysis)
- Blain v. State, 647 S.W.2d 293 (Tex. Crim. App.) (weapon size/shape/sharpness and manner of use inform capability)
- Williams v. State, 575 S.W.2d 30 (Tex. Crim. App.) (verbal threats relevant to deadly-weapon determination)
- Brown v. State, 716 S.W.2d 939 (Tex. Crim. App.) (defendant need not inflict actual harm; use/intended use can suffice)
- Thomas v. State, 821 S.W.2d 616 (Tex. Crim. App.) (discussion of statutory shift to capability standard for deadly weapons)