We exercised our discretionary authority to decide whether evidence that appellant used a BB gun during a convenience store robbery was sufficient to support the jury's finding that appellant used a deadly weapon. See Adame v. State, 37 S.W.3d 141, 143-44 (Tex.App.-Waco 2001, pet. granted). We decide that the evidence was sufficient to support the jury's deadly weapon finding.

According to the evidence at trial, appellant entered a convenience store with a gun concealed under his sweatshirt. The store clerk feared for her life when appellant pointed the BB gun at her and demanded all the money. A police investigator testified that appellant's BB gun "could cause serious bodily injury if it were pointed and fired at someone." Consistent with current statutory law, the Court's jury charge defined a deadly weapon as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." See Section 1.07(a)(17)(b), Texas Penal Code. The jury found that appellant "did then and there exhibit a deadly weapon in the commission [of the offense], to-wit: a BB gun."

On direct appeal, the Court of Appeals stated that it was "significant in the deadly weapon analysis" whether appellant's BB gun was loaded or unloaded. See Adame, 37 S.W.3d at 143. The Court of Appeals also stated that our recent decision in McCain v. State supported a decision that the BB gun was not capable of causing serious bodily injury because the State presented no evidence that it was loaded. See Adame, 37 S.W.3d at 143-44 citing McCain v. State, 22 S.W.3d 497, 503 (Tex.Cr.App. 2000). The Court of Appeals, therefore, held that the evidence was insufficient to support the jury's deadly weapon finding. See Adame, 37 S.W.3d at 144.

The main issue in McCain was whether the defendant "used or exhibited" a butcher knife which the complainant could see sticking out of the defendant's back pocket while the defendant was beating her up. See McCain, 22 S.W.3d at 499, 503. There was no dispute that the butcher knife in McCain was capable of causing serious bodily injury. Unlike McCain, this case is not a "used or exhibited" case since the evidence clearly shows that appellant used and exhibited the BB gun during the convenience store robbery. The issue here is whether appellant's BB gun was "capable" of causing serious bodily injury.

The evidence that appellant displayed the BB gun to the convenience store clerk and that the gun was capable of causing serious bodily injury if pointed and fired at someone is sufficient to support the jury's deadly weapon finding. Whether appellant's BB gun was loaded or unloaded is not significant in this analysis. What is significant is that appellant's BB gun was capable of causing serious bodily injury. See McCain, 22 S.W.3d at 503 ("an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury"); Campbell v. State, 577 S.W.2d 493, 495-96 (Tex.Cr.App. 1979) (in case where State apparently did not put on any evidence that air pistol was loaded, air pistol was deadly weapon because it was designed to fire a projectile that could kill a person and because defendant pointed it at complainant, demanded money and threatened to kill complainant if he tried to run); compare Mosley v. State, 545 S.W.2d 144, 145-46 (Tex.Cr.App. 1976) (unloaded air pistol not deadly weapon in part because defendant never pointed it at victim's face).

The Court of Appeals erroneously decided that the evidence was insufficient to support the jury's deadly weapon finding because the State did not present evidence that appellant's BB gun was loaded. See Adame, 37 S.W.2d at 144. 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. Further, in cases like this, where during a convenience store robbery a defendant threatens serious bodily injury to the convenience store clerk by pointing a BB gun at her, a jury may rationally infer that the BB gun is loaded. See Delgado v. State, 986 S.W.2d 306, 308 (Tex.App.-Austin 1999, no pet.) (jury could rationally infer that defendant's pistol was loaded from evidence that defendant brandished it, pointed it at robbery victims and threatened to kill them). It is reasonable to infer that defendants use loaded guns to facilitate convenience store robberies. It is not necessary, however, to place an additional evidentiary burden on the State to affirmatively prove that a BB gun, which is not a deadly weapon per se, was loaded at the time of the commission of the offense. Rather, in proving 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.

The judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed.

Hervey, J.

Delivered March 6, 2002

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