Page 50 - TPA Journal May June 2025
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Parks testified that “it came to a point where we imminent bodily injury or death. TEX. PENAL
both stopped[.]” CODE §§ 29.03(a)(2), 29.02(a)(2). Appellant pled
At this point, Parks “grabbed” what he called “the “true” to two enhancement counts, and the trial
duffel bag” and tried to wrest it from Appellant. court sentenced him to life imprisonment. He
Again, he urged Appellant to relinquish control of appealed.
the cooler, but Appellant replied, “Let me have it.” Appellant’s single point of error on appeal was a
At about this same time, as they struggled for the challenge to the legal sufficiency of the State’s
cooler, Appellant reached for his pocket. evidence to prove the aggravating element of use
Uncertain of what Appellant might retrieve, Parks or exhibition of the knife as a deadly weapon. The
said, “Don’t do that, dude.” And when Parks could court of appeals sustained this point of error. It
tell that Appellant had pulled a knife from his concluded that:
pocket, he told Appellant, “Dude, I’ll fuck you nothing in [A]ppellant’s words or
up.” Notwithstanding this bravado, once actions would permit a jury to
Appellant had “brandished the weapon[,]” Parks rationally infer that he had any
became fearful that Appellant would “cut” him. intention of using the pocketknife
But Appellant instead began to cut the nylon strap to inflict death or serious bodily
to the soft-side cooler, keeping the knife “close to injury. Given the absence of evi-
him” as he did so. As they continued to struggle dence rationally supporting the
for possession of the cooler, and as Appellant con- jury’s finding that [A]ppellant’s
tinued cutting the strap, Appellant apparently use or intended use of the pock-
noticed Parks’ name tag, and he said, “Come on, etknife to cut the cooler’s straps
DeWayne.” At this point, fearful of the knife, could cause death, serious perma-
Parks let go of the cooler and backed away. nent disfigurement, or protracted
On cross-examination, Parks could not describe loss or impairment of the function
the knife in any detail, but he had “no doubt” it of any bodily member or organ, we
was a knife. He knew it was sharp enough to suc- conclude the evidence is legally
cessfully cut through the nylon strap. Parks con- insufficient to support the aggra-
firmed that Appellant did not at any time swing the vating element of [A]ppellant’s
knife at him or point it at him. Nor did Appellant conviction.
pursue Parks once Parks had relinquished posses-
sion of the cooler. Accordingly, the court of appeals reformed
When Appellant was arrested a short time after the Appellant’s judgment to reflect conviction for the
robbery, police recovered a folding knife from his lesser-included offense of robbery, reversed his
back pocket. The knife had a blade that was life sentence, and remanded the case to the trial
“roughly two, maybe three inches long[.]” Such a court for resentencing.
knife, one of the arresting officers opined, could As alleged in this case, a person commits robbery
“kill somebody[.]” The other arresting officer “if, in the course of committing theft as defined in
described the knife as “pretty sharp” and “very Chapter 31 [of the Texas Penal Code] and with
pointed,” and he also opined that such a knife intent to obtain or maintain control of the proper-
could be a deadly weapon. The knife itself was ty, he . . . intentionally or knowingly threatens or
introduced into evidence. places another in fear of imminent bodily injury or
The jury convicted Appellant of aggravated rob- death.” TEX. PENAL CODE § 29.02(a)(2). The
bery as charged in the indictment—that is, the use robbery offense is “aggravated,” and thus boosted
or exhibition of a deadly weapon, to wit: a knife, from a second-degree felony to a first-degree
while committing robbery by intentionally or felony, “if [the person] commits robbery as
knowingly threatening or placing Parks in fear of defined in Section 29.02, and he . . . uses or
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