Christian v. State

686 S.W.2d 930, 1985 Tex. Crim. App. LEXIS 1218
CourtCourt of Criminal Appeals of Texas
DecidedFebruary 13, 1985
Docket436-84
StatusPublished
Cited by75 cases

This text of 686 S.W.2d 930 (Christian v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christian v. State, 686 S.W.2d 930, 1985 Tex. Crim. App. LEXIS 1218 (Tex. 1985).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

On appeal to the Dallas Court of Appeals appellant contended, inter alia, that the evidence was insufficient to sustain his conviction for unlawfully carrying a weapon under V.T.C.A. Penal Code, § 46.02, for which he was given 30 days in jail, probated, and fined $250. In an unpublished opinion the court of appeals reversed and remanded on another ground of error not relevant here, recognized its obligation nevertheless to review the sufficiency ground, see Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980), but concluded without setting forth the facts of the case that the evidence was sufficient. We granted review to examine the sufficiency question.

The facts of the case are quite simple. The State presented only one witness, the arresting officer, Terry Dunn of the Sherman Police Department. He related that at approximately 10:04 a.m. on January 11, 1983 he answered a dispatch on a suspicious vehicle call. Pursuing the call he found appellant behind the wheel of a white Ford automobile “parked on some grass” off the street on the 600 block of West Center Street in Sherman. Dunn testified that the car was “running” but not moving when he arrived at the scene. Dunn approached the automobile and obtained appellant’s driver’s license for identification. A routine warrant check revealed an outstanding traffic warrant. Appellant was arrested and placdd in the patrol car. Proceeding to inventory the vehicle, Dunn found a pair of nun-chucks protruding two to three inches from beneath the driver’s side of the front seat, with the connecting chain visible. Dunn testified that nun-chucks are a “swinging type of a club,” capable of causing injury that would be “serious if not fatal in some cases.”

Appellant directs our attention to the following testimony elicited from Officer Dunn on cross examination:

“Q: Now, tell the jury everything, all the evidence that you have; take a free shot; that leads you to believe that those nun-chucks, state’s exhibit number one, belonged to Freddy Christian [appellant]?
A: I don’t know that they do belong to him.
Q: You weren’t able to find any witnesses that can tell us that he bought them?
A: It’s not my place to find the witnesses, sir.
Q: You did not find any witnesses that could tell us that he made them?
A: No.
Q: And we know for a fact that the car that Mr. Christian was sitting in did not belong to Mr. Christian?
A: Correct.
Q: It belonged to Mr. Gentry; did it not?
A: Yes.
Q: That is the gentleman that came in on the crutches, the bearded gentleman? There is nothing wrong with beards, you understand; that was sworn in as a witness this morning with you?[1]
A: Yes.
Q: And I presume that in going forward with your investigation, did you at [932]*932least discount that the nun-chucks belonged to Mr. Géntry?
A: No, I did not, no.
* # ⅜ * * ⅜
Q: .... Again, I put it to you, on what basis did you arrest Freddy Sanford Christian for possession of this deadly weapon, the nun-chucks?
A: Because they were on or about his person.
Q: Anything else?
A: They are an illegal weapon.
Q: Anything else?
A: No.”

Appellant would have us analyze the sufficiency of the evidence under rules we have adopted for determining the sufficiency of evidence in cases of possession of a controlled substance, and contends that this case is “squarely controlled” by Bush v. State, 631 S.W.2d 760, 761 (Tex.Cr.App.1982). In cases too numerous to cite this Court has held that to establish unlawful possession of a controlled substance the State must show (1) that the accused exercised care, control and management over the contraband and (2) that the accused knew the matter possessed was contraband.2 Furthermore, whether the State’s theory is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and that he exercised control over it. Sinor v. State, 612 S.W.2d 591 (Tex.Cr.App.1981) and cases cited therein. We understand appellant to argue that because the evidence in this case demonstrated that someone else owned the car he was found in, additional facts and circumstances had to be proved which would indicate his knowledge of and control over the nun-chucks.3

We decline, however, to equate uncritically the element of “carrying on or about [the] person” contained in § 46.02, supra,4 with the element of unlawful “possession” prescribed in the possessory offenses listed in the Controlled Substances Act, V.T.C.A., Article 4476-15, and other possessory offenses found in the penal code.5

V.A.C.S., Article 5429b-2, § 2.01 provides that “[wjords and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” The Legislature has given a technical meaning to the term “possession:” “actual care, custody, control, or management.” Y.A.P.C., § 1.07(a)(28). For possession to be considered voluntary (ergo culpable) conduct, the possessor must knowingly obtain or receive the thing possessed or be aware of his control of the thing for a sufficient time for him to terminate his control. Id., § 6.01(a) and (b). Furthermore, the possessor must possess intentionally or knowing[933]*933ly with respect to the nature of his conduct.6 Id., § 6.03(a) and (b).

By contrast, the phrase “carry on or about [the] person” has acquired no technical or particular meaning legislatively or otherwise. Webster’s New Collegiate Dictionary (1979) defines “carry” to mean, in those aspects most appropriate to our analysis: “1: to move while supporting (as a package): TRANSPORT... 8a: to wear or have on one’s person b: to bear upon or within <is [carrying an unborn child. > ...” Were we to apply the latter definition literally in construing § 46.02, then the word “carrying” would simply be redundant of its modifier “on or about [the] person.” In order to give effect to the entire phrase it is necessary to construe “carry” to denote an element of asportation.

As noted in the Practice Commentary following § 46.02, supra:

“Under prior [Article 483] the courts never defined ‘carrying’ and consequently its application is not certain. The cases indicate that carrying includes some sort of transport and that possession alone is not

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Cite This Page — Counsel Stack

Bluebook (online)
686 S.W.2d 930, 1985 Tex. Crim. App. LEXIS 1218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christian-v-state-texcrimapp-1985.