Chopps Jr., Alonzo v. State

MAJORITY OPINION

LESLIE BROCK YATES, Justice.

A jury convicted appellant, Alonzo Chopps, Jr., for unlawfully carrying a weapon. See Tex. Pen.Code Ann. § 46.02 (Vernon Supp.2002). In one point of error, appellant claims the evidence is legally insufficient to support his conviction. We affirm.

Background and Procedural History

Deputy Constable Steven Emert was on patrol when he saw a vehicle parked in the middle of the street with the driver’s door open and engine running. He then saw appellant chasing a man down the street, carrying an object that Emert referred to as a “club.” Emert activated his emergency lights and appellant responded by returning to the vehicle. Appellant dropped the object at Emert’s request. At trial, Emert described the object as long, cylindrical in nature, reddish and green in col- or, with an image of an Aztec warrior holding a shield and club. Joe Aguilar, an employee of the Texas Department of Corrections, was riding along with Emert. Aguilar testified that he witnessed the chase and he also described the item as a “club.” Appellant was charged with unlawfully carrying a weapon and with attempted assault.

The jury acquitted appellant of the attempted assault charge but found him guilty of unlawfully carrying a weapon. Punishment was assessed at sixty days’ confinement. This appeal followed.

Legal Sufficiency

In one point of error, appellant claims the evidence is legally insufficient to prove the item he carried was a “club” as defined by Texas Penal Code section 46.01(1). When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App.2000). If a reviewing court determines the evidence is insufficient under the Jackson standard, it must render a judgment of acquittal because if the evidence is insufficient under Jackson, the case should never have been submitted to the jury. See Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781. In a legal sufficiency challenge, we do not re-weigh the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000).

A person commits an offense if that person intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club. See Tex. Pen.Code Ann. § 46.02 (Vernon Supp. 2002). 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 *260instrument, and includes but is not limited to the following: blackjack; nightstick; mace; tomahawk. Tex. PeN.Code Ann. § 46.01 (Vernon Supp.2002). Here, appellant was charged by information with carrying an illegal club, “to-wit: a wooden club approximately 2½ feet long.”

The State’s evidence is sufficient to support the jury’s finding that the item was a “club.” The object was described as being a two-and-a-half-foot long, red and green cylindrical wooden stick, with an image of an Aztec warrior holding a shield and club. Emert testified that the item had no purpose other than as a weapon and that its “mere existence is a weapon.” In addition, Aguilar testified that he was familiar with the item and that its designed purpose was to inflict serious bodily injury. The State presented — without objection — the following testimony regarding the item’s designed purpose:

Q: Mr. Aguilar, have you ever seen a club like that before?
A: Yes, sir.
Q: Where?
A: Usually they sell them in Mexico.
Q: Have you ever seen them for sale here in the United States?
A: I’ve cseen them a couple of times at a flea market.
Q: Is it your- — has your police training given you a definition of what a club is?
A: Yes. A club is something to — for use to commit bodily harm on another individual.
Q: Okay.
A: The sole purpose is that.
Q: Do you know of any other purpose for that item there other than to hurt someone?
A: No sir. That’s the only reason that this would be.1

In response to questioning about whether the item was a “piñata bat,” Aguilar testified that he had never seen this type of club used as a piñata bat. In contrast, appellant argued the item is a “baseball bat,” “piñata bat,” or “walking stick.”2 The conflicting descriptions were possible because the item in question is not one that has a common purpose or usage.

The lack of a clearly designed purpose is what distinguishes this case from those cited by the dissent, in which the object in question was clearly designed for some purpose other than to inflict serious injury. See Reisner v. State, 627 S.W.2d 728, 728 (Tex.Crim.App. [Panel Op.] 1982) (leather bracelet with metal studs); Alexander v. State, 617 S.W.2d 269, 270 (Tex.Crim.App. [Panel Op.] 1981) (motorcycle chain); Coleman v. State, 790 S.W.2d 369, 370 (TexApp.-Dallas 1990, no pet.) (wooden cylinder imprinted with words “V & B *261TIRE KNOCKER”).3 Here, the evidence presented showed the object was a two- and-a-half-foot long, red and green cylindrical wood stick, with an image of an Aztec warrior holding a shield and club. The jury heard conflicting evidence from the State’s witnesses and from appellant about the item’s purpose. Reconciliation of conflicts in the evidence is within the exclusive province of the jury. See Wyatt, 23 S.W.3d at 30. The jury concluded the item was a “club.” We find Aguilar’s testimony that he is familiar with the item and its designed purpose “enough credible testimony” to support the conviction under a legal sufficiency challenge. Id.

Further, even if the dissent’s interpretation of the witness’s testimony is correct that the item was a “club” based in part on how appellant used it, we believe that in this case the jury was entitled to consider evidence of the item’s use as a factor in determining whether the item was “designed” for the purpose of inflicting serious bodily injury. The dissent relies upon Ex parte Andrews, in refusing to consider appellant’s use of the item. 814 S.W.2d 839, 841 (Tex.App.-Houston [1st Dist.] 1991, pet. dism’d). However, the issue in that case was whether a bicycle lock was a “criminal instrument” under Texas Penal Code section 16.01. See Tex. Pen.Code Ann. § 16.01(b) (Vernon 1994). The court concluded an object does not become a criminal instrument by the context of its use, but by the limited nature and specialized criminal use of its own distinctive properties. Andrews, 814 S.W.2d at 841. Likewise, when it is clearly established that an item was “designed” to be something other than a weapon, then evidence of the use of that item in committing an offense is insufficient to bring the item within the definition of a club. See Alexander, 617 S.W.2d at 270 (recognizing that items such as baseball bats and rolling pins that are capable of inflicting serious injury but not specifically designed to do so are excluded from the statutory definition of “club”). However, when the issue is whether the item was “specially designed or made” to be used as a weapon, and conflicting evidence exists as to the designed purpose, we find that evidence regarding how the item was being used may be considered by the fact finder to assist in its determination of whether the item was specially designed or made for the purpose of inflicting serious bodily injury or death. In this case, the item held by appellant does not have a well-known designation or purpose, and the jury heard conflicting testimony about this item’s purpose. Therefore, appellant’s use may be a factor in determining if it is a “club” within the meaning of Texas Penal Code section 46.01(1).

Viewing the evidence in the light most favorable to the verdict, a rational jury could have found the essential elements of unlawfully carrying a weapon. Accordingly, appellant’s point of error is overruled. The judgment of the tidal court is affirmed.

SEYMORE, J. dissenting.

. The dissent simply dismisses this testimony because it concludes that Aguilar’s identification of the item as a club was based solely on its use by appellant. On cross-examination, Aquilar testified that whether someone carrying the item in question was committing an offense depended on "what you're doing with it” and “why this person has it at the time.” This is true, because section 46.02 does not apply to persons who, for example, are traveling or are engaged in lawful sporting activities. See Tex. Pen.Code Ann. § 46.15(b) (Vernon Supp.2002). We do not read Aguilar’s testimony regarding the significance of how a weapon is used to suggest that appellant’s use of the item in this case transformed a non-weapon into a weapon.

. The record indicates that appellant complied with the State’s request and demonstrated for the jury how he used this two-and-a-half-foot item as a walking stick, to which the prosecutor replied "that’s an awful short stick” and pointed out the stick was not worn down. As the exclusive judge of the credibility of the witnesses, the jury was free to disregard appellant's testimony. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App.2000).

. In Meza v. State, the only evidence concerning the object’s design was the arresting officer’s description of it as a “club.” 652 S.W.2d 399, 400-01 (Tex.Crim.App.1983).