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Alvarado v. State

Appellant contends that the erroneous definition of deadly weapon permeated the entire trial. At trial, appellant presented a defensive theory that he did not threaten the complainant with imminent bodily injury; however, he did not suggest that the knife would not have been capable of inflicting serious bodily injury on the complainant if it had been used forcefully against her. The erroneous definition did not vitally affect his defensive theory. The erroneous jury charge did not result in egregious harm. Accordingly, appellant's sole issue raised on appeal is overruled. Beaumont Court of Appeals, No. 09-09-00436-CR, 05-24-10

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OPINION

A jury found Jesus Daniel Alvarado guilty of aggravated assault with a deadly weapon. In punishment, the trial court found Alvarado to be an habitual offender and imposed a life sentence. See TEX. PEN. CODE ANN. § 22.02(a)(2) (Vernon Supp. 2009). The sole issue raised on appeal contends an erroneous jury instruction on the use or exhibition of a knife as a deadly weapon caused egregious harm. Because the error did not cause egregious harm, we affirm the judgment.

The trial court submitted a jury instruction under Section 1.07(a)(17)(A). See TEX. PEN. CODE ANN. § 1.07(a)(17)(A) (Vernon Supp. 2009) (“Deadly weapon” means “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury[.]“). The knife admitted into evidence in this case is a large kitchen knife with a blade between five and six inches in length. Kitchen knives are designed for purposes other than inflicting death or serious bodily injury; thus, a kitchen knife will not qualify as a deadly weapon unless it is actually used or intended to be used in a manner capable of causing death or serious bodily injury. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991); see also TEX. PEN. CODE ANN. § 1.07(a)(17)(B) (Vernon Supp. 2009) (Deadly weapon means “(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”). Because Alvarado did not object to the instruction that a knife is a deadly weapon, the charge error is reversible error only if that error resulted in egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh‟g).

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