Adame v. State
In Adame v. State, 69 S.W.3d 581 (Tex. Crim. App. 2002), the defendant entered a convenience store with a BB gun; the store clerk feared for her life when he pointed the gun at her and demanded all the money; and a police investigator testified that the defendant's BB gun "could cause serious bodily injury if it were pointed and fired at someone." Id. at 581.
The intermediate appellate court held that the evidence was insufficient to support the jury's deadly weapon finding because the State did not present evidence that the BB gun was loaded. Id.
The court of criminal appeals concluded, however, that whether the gun was loaded was not significant to the analysis. Id. at 582.
"What is significant is that appellant's BB gun was capable of causing serious bodily injury." Id.
The court stated that it is not necessary to place an additional evidentiary burden on the State to affirmatively prove that a BB gun was loaded at the time of the commission of the offense. Id.
"In proving the use of a deadly weapon other than a deadly weapon per se, the State need show only that the weapon used was capable of causing serious bodily injury or death in its use or intended use." Id.
The court held that, 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. Id.
The court also held that a jury may rationally infer that the BB gun used during a convenience store robbery is loaded when a defendant threatens serious bodily injury to the clerk and points the BB gun at her. Id. at 582.