Delgado v. State
In Delgado v. State, 986 S.W.2d 306, 308 (Tex. App.-Austin 1999, no pet.), for instance, the court upheld a deadly weapon finding where the State introduced evidence that the BB gun used by the defendant would have been capable of causing serious bodily injury if loaded and evidence on which the jury could rationally have based an inference that the weapon was loaded. Id.
Specifically, the State introduced evidence that the defendant brandished the BB gun in a threatening manner and actually threatened to kill the victims of the offense.
The court held, "while the question is a close one, we believe the jury could infer that appellant was capable of making good his threats." Id. Cf. Lee v. State, 51 S.W.3d 365, 374-75 (Tex. App.-Austin 2001) (despite expert testimony that some air pistols are capable of causing serious bodily injury, deadly weapon finding was not supported by legally sufficient evidence where pistol was not in evidence, evidence conflicted on whether real or air pistol was used, and defendant held pistol to victim's head and neck but made no threats to kill or bludgeon her with it).
However, if the State fails to introduce any evidence from which a rational jury could infer that a defendant's weapon was capable of causing serious bodily injury during the commission of the offense, i.e. that the weapon was loaded, then it has not met its burden of proving that the defendant used a deadly weapon.