“The court of appeals erred where it held the evidence to be sufficient to prove the use of a deadly weapon where the alleged weapon was not used in a way that was capable of causing death or serious bodily injury.”
Flores robbed a convenience store. He pointed a drill secreted inside his pocket at the clerk and ordered her to give him the store’s cash. The clerk believed the drill was a gun and was afraid. The video of the robbery showed it was a drill, and police later found a drill and other evidence from the robbery at Flores’s home. Flores was convicted of aggravated robbery with a deadly weapon.
On appeal, Flores challenged the deadly weapon finding on sufficiency grounds. Under the facts, Flores asserted, the drill as it was “actually” used—pointed like a gun and not raised to strike the clerk—was not capable of causing death or serious bodily injury. The court of appeals rejected this claim, holding that possession, employment, or display of a deadly weapon to facilitate a felony is sufficient. Here, Flores used the drill to intimidate the clerk; she had been afraid. A detective also testified the drill could have been used to bludgeon and a drill bit can be used to stab.
Flores argues that the fact the drill could be used as a deadly weapon is not conclusive as to its use here. He did not attempt to strike the clerk with it; he only led her to believe it was a gun. Further, the lower court’s reliance on its simple possession to facilitate a felony improperly assumes the object is a deadly weapon per se.