









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0476-05


HEATH MATTHEW HERRING, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS

LEON COUNTY



 Meyers, J., filed a dissenting opinion.

O P I N I O N


	While I don't disagree that the victim's testimony that Appellant said he had a
knife is admissible and is some evidence that he possessed a weapon, I disagree that the
statement is conclusive evidence that the judge could find beyond a reasonable doubt that
Appellant used or exhibited a deadly weapon. (1)  If a felon said that he carried a gun but no
one saw it, would that be conclusive evidence to convict him for unlawful possession of a
firearm?  If someone said they had some marijuana, would that be sufficient to convict
him of possession of marijuana?  Probably not. 
	I agree with the court of appeals that Appellant's statement to the victim that he
had a knife is legally insufficient to prove that he used or exhibited a deadly weapon and 
I would affirm the judgment of conviction for the lesser-included offense of robbery. 
Therefore, I respectfully dissent.

Filed: September 27, 2006
Publish



1. It seems to me that if Appellant had a knife then he would have shown it during the
scuffle with the victim.
