No. 05-03-01217-CR
Opinion filed November 3, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-83642-02. Reversed and Acquitted.
Before Justices O'NEILL, LANG, and LANG-MIERS.
Opinion by Justice LANG.
In three points of error, Randall Ethern Low, Jr. appeals his conviction for the unlawful carrying of a weapon, specifically, a club. See Tex. Pen. Code Ann. §§ 46.01(1), .02 (Vernon 2003). On a plea of not guilty, the jury found him guilty of the misdemeanor offense and sentenced him to fifteen days' confinement in the county jail. In points one and three, appellant contends the evidence is legally and factually insufficient to prove that he had the requisite culpable mental state to support his conviction. In his second point, appellant contends the evidence is legally insufficient to prove that the weapon was a club, as alleged in the information. For the reasons below, we sustain appellant's second point, reverse the trial court's judgment, and render judgment of acquittal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Officer Brian Pfahning of the Plano Police Department testified that he was on duty in a movie theater parking lot investigating a car break-in when he saw appellant exiting the lot, squealing his tires. Pfahning followed appellant and initiated a traffic stop. Because he thought appellant was uncooperative and aggressive, Pfahning called for backup. Pfahning could see appellant and his wife "moving around a lot in the vehicle." The backup officer approached the passenger side, where appellant's wife was sitting, and Pfahning approached the driver's side. The backup officer yelled, "He's got a stick, he's got a weapon." The backup officer retrieved the "stick" from the passenger's side of the vehicle. Appellant was charged by information for "intentionally, knowingly, and recklessly carry[ing] on and about his person a club." II. SUFFICIENCY OF THE EVIDENCE
In his second point of error, appellant challenges the legal sufficiency of the evidence supporting his conviction. Specifically, he contends that the trial court erred in not granting his motion for instructed verdict pertaining to the definition of "club" because the State failed to prove beyond a reasonable doubt that he carried "a club," as alleged in the information. A. Standard of Review and Applicable Law
A complaint about the denial of a motion for directed verdict is an attack upon the sufficiency of the evidence to sustain the conviction. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App. 1997). The standard for reviewing the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve any part of any witness's testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App. 1984). A person commits an offense if that person intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club. Tex. Pen. Code Ann. § 46.02. Section 46.02 regulates the carrying of weapons that have lawful as well as unlawful uses. Coleman v. State, 790 S.W.2d 369, 372 (Tex.App.-Dallas 1990, no pet.). A "club" is "an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is not limited to the following: blackjack; nightstick; mace; tomahawk." Tex. Pen. Code Ann. § 46.01(1)(A)-(D). "The fact that an object is capable of inflicting serious bodily injury or death alone does not bring the object within the definition of club set forth" in section 46.01(1). Meza v. State, 652 S.W.2d 399, 400 (Tex.Crim.App. 1983). According to Meza, Instruments readily capable of inflicting serious bodily injury but not specifically designed to do so, such as baseball bats and rolling pins, are excluded[;] if a person carrying one of them has intent to use them to inflict injury and his criminal design progresses far enough, however, he can be prosecuted for an attempted or completed assault. . . .
Id. (quoting Alexander v. State, 617 S.W.2d 269, 269 (Tex.Crim.App. 1981)). The relevant inquiry is whether an instrument is specifically designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument. Id.; Coleman, 790 S.W.2d at 372; see Tex. Pen. Code Ann. § 46.01(1). B. Discussion
Pfahning testified that State's Exhibit 3 was the "stick that was found in [appellant's] vehicle." He said that it appeared to be a cut-off shovel handle or a broom handle that had been adapted by having been cut "to a certain length" with a hole drilled at one end and a lanyard attached. He testified that the "stick" was a "club" under the law and was "similar to a night stick that a police officer would carry" which was "used to control subjects and also to defend the officers by striking." He testified that the "stick" could be used "to inflict injury on another." Finally, Pfahning testified that he did not know who manufactured the device or the purpose for which it had been manufactured. The only evidence in the record as to the design, making, or adaptation of the "stick" was from appellant's father and was offered by appellant. Appellant's father testified that he made the instrument from a broken shovel handle (he also testified it was a broom handle). He described the process by which he made the "stick" by saying he cut off the handle, eliminated the sharp edges, drilled a hole through it, and laced a leather strap through the hole. Further, he said he made the instrument and used it for the sole purpose of testing the fitness and air pressure of the tires on a heavy load-hauling vehicle and trailer, which he called a "triple axle low boy." According to this witness, one hits the tires with the "stick," which he called a "tire knocker," to see if it "recoiled." If it did not recoil, the tire pressure was likely insufficient and unsafe. Appellant relies on Coleman to support his argument that the State failed to prove that the "stick" met the definition in section 46.01(1) of a "club." In Coleman, this Court considered whether an alleged club, made of hickory wood, eighteen inches long and cylindrical in shape, with a leather thong tied through the handle and "V B TIRE KNOCKER" printed on it met the section 46.01(1) definition of a "club." Coleman, 790 S.W.2d at 370. The only evidence presented in Coleman was that the alleged club was "designed for tapping truck tires on 18-wheelers" to "determine if they have the right amount of air pressure." Id. Also, there was testimony that the alleged club "had not been altered or adapted in any manner from the way it would be bought in a store." Id. The State argued that the device met the statutory definition because the trial court could not distinguish the device from a "nightstick" and because it "was clearly `adapted' for the purpose of inflicting serious bodily injury when `adapted' is given its ordinary meaning." Id. at 371. Relying on Meza, this Court held that there was no evidence that an instrument "merely described" as a "club" was an instrument specifically designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person. Id. at 372. The State argues the evidence is legally sufficient since Pfahning's testimony as to how the "stick" would be used is a factor the jury could consider in determining whether it was a club as defined by the penal code. To support this proposition, the State relies on Chopps v. State, 79 S.W.3d 258 (Tex.App.-Houston [14th Dist.] 2002, no pet.). There, the jury heard conflicting evidence about the purpose of the item in question, a two-and-a-half-foot long, cylindrical wood stick, on which there was an image of an Aztec warrior holding a shield and club. Id. at 259. A witness testified that it had no purpose other than to hurt someone. In contrast, the defendant testified that the item was a baseball or piñata bat or walking stick. Id. at 260. Concluding the evidence was legally sufficient to support the jury's finding that the "item" was a "club," the Houston Fourteenth Court of Appeals said that "[t]he conflicting descriptions were possible because the item in question is not one that has a common purpose or usage." Id. Further, the court opined that "in this case the jury was entitled to consider evidence of an item's use as a factor in determining whether the item was `designed' for the purpose of inflicting serious bodily injury." Id. at 261 (emphasis in the original). However, the dissent concluded that "[i]f the item has no well-known purpose, absent testimony regarding design, there is no evidence that it was specially made or designed for the purpose of inflicting serious bodily injury or death." Id. at 262 (Seymore, J., dissenting) (emphasis in original). Citing Coleman, the dissent reasoned that an item "with all the physical characteristics of a baseball bat, merely described as a `club,'" does not satisfy the statutory definition of a "club." Id. at 262-63 (Seymore, J., dissenting) (citing Coleman, 790 S.W.2d at 372). It is our view that the holding in Chopps is contrary to the decision of the court of criminal appeals in Meza and our decision in Coleman. Accordingly, we decline to follow Chopps. We conclude, as in Meza, 652 S.W.2d at 400, and Coleman, 790 S.W.2d at 372, there is no evidence in the record before us that the "stick" was specifically designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person. Pfahning's testimony that the "stick" was "similar to a night stick," could be used to inflict injury, and was a "club" under the law amounts to virtually the same evidence we rejected in Coleman, where we concluded that "merely describ[ing]" an instrument as a "club" is no evidence that the instrument was adapted for use as a "club." See Coleman, 790 S.W.2d at 372. As in Coleman, the only evidence in the record here that addressed the statutory definition of "club" shows that the "stick" was made for the sole purpose of checking tire pressure and had not been altered since the time it was made. See id. at 370. Although undoubtedly capable of inflicting serious bodily injury, the "tire knocker," in the case before us, was no more a "club," as defined by section 46.01(1), than a rolling pin. See Meza, 652 S.W.2d at 400 (baseball bats and rolling pins not specially designed to inflict serious bodily injury); Coleman, 790 S.W.2d at 372; Heerema v. State, 786 S.W.2d 532, 533 (Tex.App.-Dallas 1990, no pet.). Consequently, we conclude that the State did not meet its burden to prove that the "stick" was a "club" pursuant to section 46.01(1). We sustain appellant's second point. III. CONCLUSION
Because the evidence is insufficient to prove that appellant was carrying a club, which is an element of the alleged offense of the unlawful carrying of a weapon pursuant to section 46.02, we reverse his conviction for that offense and render a judgment of acquittal. See Coleman, 790 S.W.2d at 372. We need not address appellant's remaining two points.