Mosley v. State, 545 S.W.2d 144 (Tex. Crim. App. 1977). · Go Syfert
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Mosley v. State, 545 S.W.2d 144 (Tex. Crim. App. 1977). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case · …that the b.b. gun projectile could not penetrate skin, but that there was a good probability it could cause loss of sight if a person were shot in the eye. ✓
112 citation events (70 in the last 25 years) across 5 distinct courts.
Strongest positive: John James Williams v. State (texapp, 2019-06-19) · Strongest negative: Mark Anthony Tillman v. State (texapp, 2014-03-06)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited "but see" Mark Anthony Tillman v. State
Tex. App. · 2014 · signal: but see · confidence high
See, e.g., Tucker, 274 S.W.3d at 691 (unknown object, possibly a key); Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App.1983) (hands or knees); Kennedy v. State, 402 S.W.3d 796, 802 (Tex.App.-Fort Worth 2013, no pet.) (television set); but see Mosley v. State, 545 S.W.2d 144, 145-46 (Tex.Crim.App.1976) (holding BB gun did not fit definition of “deadly weapon” when expert testified that its projectiles could not penetrate skin).
discussed Cited "but see" Charles Blackburn, Jr. v. State (2×) also: Cited as authority (rule)
Tex. App. · 2010 · signal: but see · confidence high
But see Mosely , 545 S.W.2d at 146 (op. on reh'g) (addressing the State's concern that the opinion on original submission held that an air pistol could never be a deadly weapon and concluding that the original opinion did not attempt to exclude all types of air guns from the definition of a firearm).
discussed Cited "but see" Charles Blackburn, Jr. v. State (2×) also: Cited as authority (rule)
Tex. App. · 2010 · signal: but see · confidence high
But see Mosely, 545 S.W.2d at 146 (op. on reh'g) (addressing the State's concern that the opinion on original submission held that an air pistol could never be a deadly weapon and concluding that the original opinion did not attempt to exclude all types of air guns from the definition of a firearm).
discussed Cited "but see" Charles Blackburn, Jr. v. State (2×) also: Cited as authority (rule)
Tex. App. · 2010 · signal: but see · confidence high
But see Mosely, 545 S.W.2d at 146 (op. on reh'g) (addressing the State's concern that the opinion on original submission held that an air pistol could never be a deadly weapon and concluding that the original opinion did not attempt to exclude all types of air guns from the definition of a firearm).
discussed Cited "but see" McDonald Scott Hollis and Xcel Energy Third Party Defendent v. Sherri Lee Hollis (2×) also: Cited as authority (rule)
Tex. App. · 2003 · signal: but see · confidence high
But see Mosely , 545 S.W.2d at 146 (op. on reh'g) (addressing the State's concern that the opinion on original submission held that an air pistol could never be a deadly weapon and concluding that the original opinion did not attempt to exclude all types of air guns from the definition of a firearm).
cited Cited "but see" McCaskill v. State
Ala. Crim. App. · 1994 · signal: but see · confidence high
But see Mosley v. State, 545 S.W.2d 144, 145 (Tex.Cr.App.1976) (BB gun was not “deadly weapon” where it was unloaded and was not used to strike at the victim).
discussed Cited as authority (quoted) John James Williams v. State
Tex. App. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
if the weapon used is not a deadly weapon, a conviction for aggravated assault obtained under ... penal code sec. 22.02(a)(3), cannot be upheld.
discussed Cited as authority (rule) United States v. Juan Castillo-Rivera (2×)
5th Cir. · 2017 · confidence medium
We do not reach that question in this case.” Id. at 146 (emphasis added).
discussed Cited as authority (rule) Thien Quoc Nguyen v. State
Tex. App. · 2015 · confidence medium
Instead, the State should have been “stuck” with the proof that, as used, 60 the vehicle “was not calculated to produce death or serious bodily injury.” See Mosley v. State, 545 S.W.2d 144, 146 (Tex. Crim.
discussed Cited as authority (rule) Josha Renee Prior v. State
Tex. App. · 2015 · confidence medium
Not a 9-millimeter or anything, not a gun that’s going to hurt somebody, a BB gun. 16 But see Mosley v. State, 545 S.W.2d 144, 145 (Tex.Crim.App.1976) (A BB gun that was unloaded, never pointed at the victim’s face, and never used to “bludgeon” or threaten to bludgeon the victim, however, may not be a deadly weapon because it could cause neither death nor serious bodily injury.) 22 I want to read the definition of a deadly weapon to you.
examined Cited as authority (rule) Patrick E. Coleman v. State (4×) also: Cited "see"
Tex. App. · 2014 · confidence medium
For instance, in Mosley v. State, 545 S.W.2d 144, 145 (Tex. Crim.
cited Cited as authority (rule) Lorenzo Alonzo v. State
Tex. App. · 2014 · confidence medium
But in Mosley v. State, 545 S.W.2d 144, 145-46 (Tex. Crim.
cited Cited as authority (rule) Robert Veshone Monroe v. State
Tex. App. · 2008 · confidence medium
App. 2002); Mosley v. State , 545 S.W.2d 144, 145 (Tex. Crim.
discussed Cited as authority (rule) Robert Anthony Brown v. State
Tex. App. · 2006 · confidence medium
App. 2002) (“With testimony that a BB gun is capable of causing serious bodily injury, it is reasonable for a jury to make a deadly weapon finding.”); Mosley v. State , 545 S.W.2d 144, 146 (Tex. Crim.
cited Cited as authority (rule) Antonio Garcia v. State
Tex. App. · 2006 · confidence medium
As appellant points out, the term “gun” is broader than the term “firearm.” See Mosley v. State , 545 S.W.2d 144, 145-46 (Tex. Crim.
discussed Cited as authority (rule) State v. Hardy
Conn. · 2006 · confidence medium
See, e.g., Holder v. State, 837 S.W.2d 802, 808 (Tex. App. 1992) (although air pistol could shoot BB with muzzle velocity of 180 feet per second and thus was capable of penetrating human eye, expert witness testified that spring-piston BB or pellet pistol was not manifestly designed, made, or adapted for purpose of inflicting death or serious bodily injury and state therefore had to prove air pistol was loaded); Mosley v. State, 545 S.W.2d 144, 145 (Tex. Crim.
examined Cited as authority (rule) Adame v. State (4×) also: Cited "see, e.g."
Tex. Crim. App. · 2002 · confidence medium
Mosley v. State, 545 S.W.2d 144, 145-46 (Tex.Crim.App.1976).
cited Cited as authority (rule) Eliodoro De Jesus Perez v. State of Texas
Tex. App. · 2001 · confidence medium
Mosely v. State , 545 S.W.2d 144, 145-46 (Tex. Crim.
discussed Cited as authority (rule) Williams v. State
Tex. App. · 1998 · confidence medium
PENAL CODE ANN. § 46.01(3) (Vernon 1994) (defining firearm); Mosely v. State, 545 S.W.2d 144, 145-46 (Tex. Crim.App.1977) (B.B. gun, which uses compressed air to discharge projectile, is not deadly weapon).
discussed Cited as authority (rule) Vaughn v. State (2×)
Tex. App. · 1994 · confidence medium
NOTES [1] We should follow this pre-1974 Penal Code precedent, she contends, because "prior decisions on the meaning of `deadly weapon' do and should have instructional significance under the new [1974] Penal Code." Mosley v. State, 545 S.W.2d 144, 145-46 (Tex.Crim.App.1976). [2] Effective September 1, 1994, the Texas Legislature has abolished the common law "right to arm yourself and seek a peaceful resolution." TEX.PENAL CODE ANN. § 9.31(b)(5) (Vernon 1994). [1] "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.…
discussed Cited as authority (rule) Mixon v. State (2×)
Tex. Crim. App. · 1991 · confidence medium
“Our prior opinions [under former penal codes] on the meaning of ‘deadly weapon’ do and should have instructional significance under the new Penal Code.” Mosley v. State, 545 S.W.2d 144, 145-146 (Tex.Cr.App.1976); Turner v. State, 664 S.W.2d 86, at 89-90 (Tex.Cr.App.1983).
discussed Cited as authority (rule) Higginbotham v. State
Tex. App. · 1989 · confidence medium
When the current penal code came into existence the Court of Criminal Appeals stated: "our prior opinions on the meaning of ‘deadly weapon’ do and should have instructional significance under the new Penal Code ... in light of the fact that the Legislature has apparently codified our prior case law definition of the term.” Mosley v. State, 545 S.W.2d 144, 145-46 (Tex.Crim.App.1976).
discussed Cited as authority (rule) Turner v. State
Tex. Crim. App. · 1983 · confidence medium
The State counters that the fist and hands falls under the definitions in § 1.07(11)(B) of “anything that in the manner or intended use is capable of causing death or serious bodily injury.” (Emphasis supplied.) In Mosley v. State, 545 S.W.2d 144, 145 (Tex.Cr.App.1976), this court quoted from Branch’s Ann.Tex.Penal Statutes, 3rd Ed., § 1.07(11), p. 27: “It would appear that prior Texas law provided, as here, that an instrument may become a deadly weapon by the manner of its use or capability for use.” The Mosley opinion further stated: “Our prior opinions on the meaning of ‘dea…
discussed Cited as authority (rule) Danzig v. State (2×)
Tex. Crim. App. · 1977 · confidence medium
In determining whether the evidence was sufficient to show that the knife was a deadly weapon, as alleged, we turn first to Section 1.07(a)(ll) of our new Penal Code, which defines “deadly weapon” as “(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or “(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” What we said on original submission in Mosley v. State, 545 S.W.2d 144, 146 (Tex.Cr.App.1977), No. 51,972, delivered October 27, 1976 (opinion on…
discussed Cited "see" Jaaron Alexander Nealy v. State (2×)
Tex. App. · 2019 · signal: see · confidence high
See Mosley 13 v. State, 545 S.W.2d 144, 146 (Tex. Crim.
discussed Cited "see" Henderson v. State (2×)
Tex. App. · 1998 · signal: see · confidence high
See id.
cited Cited "see, e.g." Justin Eugene Clark v. State
Tex. App. · 2014 · signal: compare · confidence low
Compare Mosley, 545 S.W.2d at 145 with Adame, 69 S.W.3d at 8 582.
discussed Cited "see, e.g." Melvin Auston v. State
Tex. App. · 2014 · signal: see also · confidence medium
Cf. Morales, 633 S.W.2d at 868 ; see also Mosley v. State, 545 S.W.2d 144, 145 (Tex. Crim.
discussed Cited "see, e.g." Merlin James v. State
Tex. App. · 2012 · signal: compare · confidence medium
Compare Campbell v. State, 577 S.W.2d 493, 495-96 (Tex.Crim.App.1979) (finding sufficient evidence of an air pistol’s deadly-weapon status when testimony established that it could kill a person if fired at close range), with Mosley v. State, 545 S.W.2d 144, 145-46 (Tex.Crim.App.1976) (holding that BB gun did not fit the statutory definition of a “deadly weapon” when expert witness testified that its projectiles could not penetrate the skin).
discussed Cited "see, e.g." Adame v. State (2×)
Tex. App. · 2001 · signal: see also · confidence medium
Id.; see also Mosley v. State, 545 S.W.2d 144, 146 (Tex.Crim.App.1976).
cited Cited "see, e.g." Shelton v. State
Tex. App. · 1999 · signal: see also · confidence low
See also Mosley v. State, 545 S.W.2d 144 (Tex.Crim.App.1977) (op. on reh’g).
discussed Cited "see, e.g." Ex Parte Campbell (2×)
Tex. Crim. App. · 1986 · signal: see, e.g. · confidence low
See, e.g., Mosley v. State, 545 S.W.2d 144 (Tex. Cr.App.1976).
cited Cited "see, e.g." Hubbard v. State
Tex. Crim. App. · 1979 · signal: see also · confidence low
See also Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1977).
Retrieving the full opinion text from the archive…
Jarvis Charles MOSLEY, Appellant,
v.
the STATE of Texas, Appellee
51972.
Court of Criminal Appeals of Texas.
Jan 12, 1977.
545 S.W.2d 144
Melvyn Carson Bruder, Dallas, for appellant., Henry Wade, Dist. Atty. and Donald H. Flanary, Jr., Kelly W. Loving and Mike E. Keasler, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
Odom, Onion.
Cited by 69 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 82%
Citer courts: Court of Appeals of Texas (1)

Lead Opinion

OPINION

ODOM, Judge.

Appellant was convicted of aggravated assault. His punishment, enhanced, was assessed at twenty years.

Appellant asserts that the evidence is insufficient to prove that a pistol was used[*145] during the offense as alleged in the indictment. He argues that the State’s evidence was insufficient to prove that the weapon used during the commission of the offense was a deadly weapon. See, Y.T.C.A. Penal Code Sec. 22.02(a)(3).[1] If the weapon used is not a deadly weapon, a conviction for aggravated assault obtained under V.T.C.A. Penal Code Sec. 22.02(a)(3), cannot be upheld.

The Penal Code defines deadly weapon as:

“(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
“(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” V.T.C.A. Penal Code Sec. 1.07(a)(ll).

The record reflects that appellant accosted the victim in a parking lot, pointed an unloaded B.B. gun at her, and threatened to kill her if she did not follow his instructions. He then had a change of heart, probably because a policeman was in the vicinity, and discontinued his threats.

The evidence establishes that the B.B. gun, an air pistol, was unloaded; that it was never pointed toward the face of the victim; and that appellant never used or threatened to use it as a bludgeon. The State’s expert witness testified that the B.B. gun projectile could not penetrate skin, but that there was a good probability it could cause loss of sight if a person were shot in the eye. This witness also stated that the gun was of sufficient mass to cause serious bodily injury if used as a bludgeon.[2]

A witness for the defense stated that the air pistol used by appellant constantly misfired and, when it did fire, the projectile had a very low velocity and rarely went over five feet. The B.B. gun was fired in front of the jury. It misfired on the first attempt. The record does not demonstrate how far or fast the projectile went when the gun did fire.

We must determine whether the air pistol, as used by appellant, is a deadly weapon as defined in V.T.C.A. Penal Code Sec. 1.07(a)(ll). Prior to enactment of the new Penal Code, we stated:

“Ordinarily, a gun is a deadly weapon, per se. It may, however, be used in such a manner as to show that it is not such, (citations omitted). A deadly weapon is one which, in the manner used, is calculated to produce death or serious bodily injury. In the instant case, the use of the gun produced neither death nor serious bodily injury. The test, then, is whether, by the manner in which it was used, it was calculated to do either.” Brown v. State, 155 Tex.Cr.R. 233, 233 S.W.2d 578, 579.

The threshold question before us is whether our past decisions have any weight now that “deadly weapon” has been defined by the Legislature.[3] One commentary to the new Penal Code observes:

“It would appear that prior Texas law provided, as here, that an instrument may become a deadly weapon by the manner of its use or capability for use.” Branch’s Ann.Tex. Penal Statutes, 3rd Ed., Sec. 1.07(11), p. 27. (emphasis added)

Our prior opinions on the meaning of “deadly weapon” do and should have instructional significance under the new Pe[*146] nal Code. This approach is particularly appropriate in light of the fact that the Legislature has apparently codified our prior case law definition of the term.

In the case at bar, the air pistol does not fit the definition provided by the statute. The state’s expert testified that an air pistol is not a firearm. Further, it would be unreasonable to conclude, on the basis of the evidence, that the weapon was “designed, made or adapted for the purpose of inflicting death or serious bodily injury.” V.T.C.A. Penal Code Sec. 1.07(a)(ll)(A).

The air pistol, as used, was not calculated to produce death or serious bodily injury. Brown v. State, supra; V.T.C.A. Penal Code Sec. 1.07(a)(ll)(B). The evidence is insufficient to show that the assault was aggravated by the use of a deadly weapon.

The judgment is reversed and the cause remanded.

1

The State indicted appellant for aggravated assault on the basis that a deadly weapon was used to commit the offense. V.T.C.A. Penal Code Sec. 22.02(a)(3) provides:

“(a) A person commits an offense if he commits assault as defined in Section 22.01 of this code and he:
“(3) uses a deadly weapon.”
2

The pistol was not a deadly weapon as a bludgeon. A pistol is deemed a deadly weapon in this manner only if it is actually used to strike at the victim. See, e.g. Shadle v. State, 34 Tex. 572; Branch v. State, 35 Tex.Cr.R. 304, 33 S.W. 356; Hays v. State, Tex.Cr.App., 480 S.W.2d 635.

3

See our discussion of the relation of prior decisions to the new Penal Code in Day v. State, Tex.Cr.App., 534 S.W.2d 681. It should also be noted that the former Penal Code did not define “deadly weapon.”

Rehearing

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On rehearing the State urges that the court was erroneous in its conclusion that the evidence is insufficient to show that the assault was aggravated by the use of a deadly weapon.

The State notes that V.T.C.A., Penal Code, § 22.02(a)(3), makes an assault an aggravated assault if a “deadly weapon” is used. A deadly weapon is defined in V.T. C.A., Penal Code, § 1.07(a)(ll), as “(A) a firearm . . . .” The State argues that the only place in the Penal Code a firearm is defined is in V.T.C.A., Penal Code, § 46.-01(3), which provides that a “ ‘firearm’ means any device designed, made or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. . . . ”

The State argues that the device in question was referred to in the court’s opinion as “an air pistol” and that the device obviously comes within the definition of a firearm. It appears to be the State’s concern that this court in its opinion on original submission has held that an air pistol could never be a deadly weapon.

While the BB pistol was referred to in such opinion as an “air pistol” on several occasions, a careful reading of the opinion shows reference was only to the particular device involved. In holding that the device involved did not constitute a firearm and therefore the evidence was insufficient to show the assault was aggravated by use of a deadly weapon, the opinion did not attempt to exclude all types of air guns or pistols from the definition of a firearm. We do not reach that question in this case.[1]

It is observed that Dr. Vincent DeMaio, an associate medical examiner for Dallas County, testified the pistol involved in the instant case was a spring activated air gun. The arresting police officer, after being read the statutory definition of a firearm, stated the BB pistol was not a firearm, and stated, “. . .it does not have a powdered explosion.” A defense witness familiar with the device stated he knew how it worked. The record on direct examination then reflects:

“Q. Is a BB powered by pulling this spring back here?
“A. Right.
“Q. And you put a BB in this hole up here (indicating)?
“A. Right.
“Q. And then you put that back down (indicating)?
“A. Right.
“Q. And you pull the trigger?
“A. Right.
“Q. And it shoots a BB out?
“A. Right.”

It does not appear that the spring in this “air” pistol was any more of an explosive device than the string in Robin Hood’s bow.

[*147] Under the circumstances of the instant case, we adhere to our decision on original submission. The State’s motion for rehearing is overruled.

1

See and cf. Tendler v. District of Columbia, 50 A.2d 263 (D.C.Mun.App.1946); Schmit v. Guidry, 204 So.2d 646 (La.App.1967).