Miguel Bandy v. The State of Texas

Under our legal sufficiency review, the blackjack qualified as a deadly weapon if

the evidence, when viewed in the light most favorable to the verdict, showed that it was

capable of causing death or serious bodily injury based on the manner in which Bandy

used or intended to use it. See id.; see also Brooks v. State, 323 S.W.3d 893, 906 (Tex.

Crim. App. 2010) (plurality op.) (articulating legal-sufficiency standard of review).

Bandy argues that the blackjack was discovered inside his pocket at the Gonzales

County jail, and therefore, he never “used” it as a deadly weapon. However, Bandy did

not have to actually use the blackjack in order to support a deadly-weapon finding;

instead, the blackjack qualified as a deadly weapon under section 1.07(17)(B) if the

manner in which Bandy intended to use it rendered it capable of causing death or serious

bodily injury. See TEX. PENAL CODE ANN. § 1.07(17)(B) (defining a deadly weapon as

anything that “in the manner of its . . . intended use is capable of causing death or serious

bodily injury”) (emphasis added).

Here, Bandy testified that he purchased the blackjack at a store called “eCops.”

He described the blackjack as “a four-ply, American made leather with . . . really good



However, on appeal, Bandy only challenges his conviction for possession of a deadly weapon inside the Gonzales County Jail. See TEX. PENAL CODE ANN. § 38.11(d) (West, Westlaw through 2017 R.S.).

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stitching; and there's a flat metal—a flat metal weight.” Bandy further described the

blackjack as a tool used by war soldiers and police officers for protection, and he stated

that it could be used to “hit someone and flee.” The blackjack was admitted into evidence

for the jury to view and hold, and two police officers testified that it could be used as a

deadly weapon under the penal code’s definition of deadly weapon.

We conclude that this evidence is legally sufficient to support a finding that the

blackjack possessed by Bandy inside the Gonzales County jail was capable of causing

death or serious bodily injury based on the manner in which Bandy intended to use it.2

See Brooks, 323 S.W.3d at 906; see also Berry v. State, 833 S.W.2d 332, 334 (Tex.

App.—Waco 1992, no pet.) (concluding that a rational jury could have found that a

“shank”—or homemade knife—confiscated from the defendant inside a jail was intended

to be used as a deadly weapon).