dissenting.
I respectfully dissent because there is insufficient evidence that the object in question is a club specially designed, made, or adapted for the purpose of inflicting serious bodily injury.
At trial, both Constable Embry and Joe Aguilar described appellant’s bat1 as a *262club and a weapon. Constable Embry-opined that the bat was specially designed or made to inflict serious bodily injury or death. Witness Joe Aguilar similarly concluded that the bat’s sole purpose was to hurt someone. However, when pressed to explain the reasoning for their conclusions, both witnesses stated that it was appellant’s use of the bat that made it an illegal club. Constable Embry agreed that whether the bat was an illegal weapon depends on how it was used and the possessor’s “purpose for it.” According to Constable Embry, the bat was an illegal weapon because appellant adapted it to cause serious bodily injury. Joe Aguilar’s conclusion was similarly based on “what you’re doing with it” and “why this person has it at the time.” According to Mr. Aguilar, “[appellant] ... was chasing an individual with that club, and that’s the difference.” There was no testimony or other evidence that the bat in question had been physically altered to enhance one’s ability to cause serious bodily injury.
The State argues that the bat meets the statutory definition of a club because a jury could conclude that appellant meant to harm the complainant with it. Certainly, the conclusions of Constable Embry and Joe Aguilar were based on such reasoning. Appellant counters that a benign object cannot be transformed into or “adapted” as an unlawful weapon by the manner of its use. I agree. Otherwise, every possible instrument would be an illegal weapon if used in an assault or attempted assault. The offense of unlawfully carrying a weapon is defined by the inherent characteristics of the object and not by the manner in which an appellant uses it. See Ex Parte Andrews, 814 S.W.2d 839, 841 (Tex.App.-Houston [1st Dist.] 1991, pet. dism’d).
“As originally made, a baseball bat, crowbar, or axe handle could be used to inflict serious bodily injury or death; however, to bring such an object within the definition of a ‘club,’ it is necessary to prove that such an object was specially designed, made, or adapted to inflict serious bodily injury or death.” Reisner v. State, 627 S.W.2d 728, 729 (Tex.Crim.App.1982).2 Instruments readily capable of inflicting serious bodily injury but not specifically designed to do so are excluded from the definition of “illegal club.” See Meza v. State, 652 S.W.2d 399, 400 (Tex.Crim.App.1983) (reasoning that a person may be prosecuted for an attempted or completed assault by carrying an object with intent to inflict injury if his criminal design progresses far enough); Alexander v. State, 617 S.W.2d 269, 270 (Tex.Crim.App.1981).
Apart from Constable Embry’s and Mr. Aguilar’s conclusions, based solely on appellant’s use of the bat, there is no evidence that the bat was made or designed to inflict serious bodily injury or harm. The majority refers to appellant’s description of the item in question as a “baseball bat,” “piñata bat” or “walking stick.” Additionally, the majority concludes the item does not have a well-known purpose. This conclusion reveals a defect in the analysis of the majority. If 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. I cannot conclude that an object with all the physical characteristics of a baseball bat, merely described as a “club” *263by the officer and his passenger, is an instrument specially made, designed, or adapted for the purpose of inflicting serious bodily injury or death. See Coleman v. State, 790 S.W.2d 369, 372 (Tex.App.Dallas 1990, no pet.). If unsubstantiated and conclusory testimony were sufficient, any arbitrary instrument, like a telephone, could be considered a club or other illegal weapon.3
Additionally, there is no evidence that the bat was adapted to inflict serious bodily injury or death. See Meza, 652 S.W.2d at 400. In its ordinary use, “adapted” means “to make suitable or fit (as for a particular use, purpose or situation), by means of physical change, modification, or alteration.” Webster’s ThiRd New Int’l DICTIONARY 23 (3d ed.1993).4 Such a physical change, modification, or alteration must be accomplished for the specific purpose of inflicting serious bodily injury or death. See Alexander, 617 S.W.2d at 270 (mere presence of nylon cord in last link of motorcycle chain insufficient to prove adaptation as a club). Thus, appellant’s intended use of the bat to strike the complainant was not an adaptation of it.
Without citing any authority, the majority considers “appellant’s use a factor in determining if it is a club within the meaning of the Texas Penal Code, Section 46.01(1).” The majority fails to recognize that this consideration is repugnant to the jury verdict of acquittal for the attempted assault charge. If the jury did not convict appellant for using the bat to commit an assault, why should this court consider “use” to be a factor in concluding the bat is an illegal weapon? Consideration of “use” as a factor is more problematic than helpful. For example, a group of young men form an association called “The Louisville Sluggers.” Members of the association use physically unaltered baseball bats to resolve disputes with their enemies. Many members of the association paint a depiction of a war eagle on their bats. No one knows the manufacturer of the bats, but they are variously used to play baseball, hit piñatas and, occasionally, as walking sticks. One member loans his bat to a friend who has never used a bat to resolve a dispute. The friend is arrested while carrying the bat in a public park. Apparently, the majority would have no problem affirming the friend’s conviction for carrying an illegal weapon because the bat has previously been used to inflict bodily injury.
The State failed to prove beyond a reasonable doubt that the bat here was “specially made or designed to inflict serious bodily injury.” Reisner, 627 S.W.2d at 729. Accordingly, I respectfully dissent.
. The record contains a picture of the object in question. It is has all the physical characteristics of a little league baseball bat.
. In Reisner, the alleged illegal club was a wrist bracelet containing metal spikes. 627 S.W.2d at 728. A police officer testified how the object could be used to inflict injury but did not testify the object was specially made, designed, or adapted to inflict death or serious bodily injury. Id. The court held the bracelet did not meet the definition of a club. Id. at 729.
. "[A] duck which is called a horse does not become a horse; a duck is a duck.” City of Corpus Christi v. Bayfront Assocs., Ltd., 814 S.W.2d 98, 109 n. 4 (Tex.App.-Corpus Christi 1991, writ denied).
. Words, phrases, and terms used in the penal code are given their ordinary meaning in common language, except where specially defined. Neumuller v. State, 953 S.W.2d 502, 511 (Tex.App.-El Paso 1997, pet. ref'd); see Tex Pen Code Ann. § 1.05(b) (Vernon 1994) ("Unless a different construction is required by the context, Sections 311.011, 311.012, 311.014, 311.015, and 311.021 through 311.032 of Chapter 311, Government Code (Code Construction Act), apply to the construction of this code.”); Tex Gov’t Code Ann. § 311.011 (Vernon 1998) (“(a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage, (b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”). "Adapted” is not defined in chapter 46 of the penal code.