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Click here for the full text of this decision FACTS:In December 2002, Michael Jones cashed his paycheck at a liquor store in Buffalo, Texas. Early that evening, Heath M. Herring kicked in Jones’ front door and accosted him in his bedroom. Although he did not know him personally, Jones recognized him as being in the liquor store when Jones had cashed his paycheck that day, as well as from having seen him there several times before. Herring demanded Jones’ money. When Jones refused to give up his money, a struggle ensued. Herring overpowered Jones, held him face down on his bed and tied him up. While face down, Jones was unable to see Herring. Herring told Jones that he had a knife and would kill him if he didn’t give him his money. Jones never saw the knife. Herring took Jones’ wallet out of his pocket, took more than $700 from it and left. The Buffalo police later arrested Herring for the offense. He signed a confession admitting the robbery but not mentioning the knife. Herring waived a jury and requested a bench trial. The judge found Herring guilty of aggravated robbery and, after Herring entered a plea of true to the enhancement paragraph contained in the indictment, sentenced him to a 16-year prison term. The 10th Court of Appeals reversed Herring’s conviction and rendered a judgment of conviction for the lesser-included offense of robbery, remanding the case for a new punishment hearing. In its majority opinion, the court said that “[b]ecause the complainant did not see or feel a knife, the evidence is legally insufficient to prove that Herring used or exhibited a deadly weapon.” HOLDING:The Court of Criminal Appeals (CCA) reversed the judgment of the court of appeals and reinstated the trial court’s judgment. The CCA held that Herring’s possession of the knife constitutes “use” of the weapon as defined in Texas Penal Code �29.02(a)(2). The CCA reiterated that “any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony” constitutes use. The CCA stated that Herring’s admission that he possessed the knife, coupled with his threat to kill and his taking of the money, is legally sufficient evidence of use. OPINION:Keasler, J., delivered the opinion of the court in which Keller, P.J., and Price, Womack, Hervey, Holcomb, and Cochran, J.J., joined. DISSENT:Meyers, J., wrote a dissenting opinion: “While I don’t disagree that the victim’s testimony that Appellant said he had a knife is admissible and is some evidence that he possessed a weapon, I disagree that the statement is conclusive evidence that the judge could find beyond a reasonable doubt that Appellant used or exhibited a deadly weapon.” Johnson, J., dissented without an opinion.

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