Lewis v. State

852 S.W.2d 667, 1993 Tex. App. LEXIS 887, 1993 WL 91641
CourtCourt of Appeals of Texas
DecidedApril 1, 1993
DocketNo. A14-92-00178-CR
StatusPublished
Cited by19 cases

This text of 852 S.W.2d 667 (Lewis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. State, 852 S.W.2d 667, 1993 Tex. App. LEXIS 887, 1993 WL 91641 (Tex. Ct. App. 1993).

Opinion

OPINION

J. CURTISS BROWN, Chief Justice.

The state charged the appellant by indictment with the felony offense of possession of a prohibited weapon. Tex.Penal Code Ann. § 46.06(a)(3) (Vernon Supp.1993). The appellant entered a plea of not guilty. A jury found him guilty as charged. The trial court assessed punishment, enhanced by two previous convictions, at forty years imprisonment.

The appellant raises fourteen points of error. Of these, points one, four, five, seven, eight, nine ten, eleven, twelve, thirteen and fourteen cite no authority. They present nothing for review. Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.1992). We will address the remaining three points of error.

Points two and six are closely related, and will be considered together. In point two, the appellant argues the trial court erred by refusing to allow questions on the weapon’s capability of firing during voir dire. In his sixth point, he contends the trial court erred by denying his motion for instructed verdict, because the evidence showed the weapon was inoperable at the time of the arrest. The preliminary issue presented by both of these points is whether the state must prove capability of firing under Tex.Penal Code Ann. § 46.06(a)(3).

[669]*669A person commits an offense under § 46.06(a)(3) if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells a short-barrel firearm. The term “short-barrel firearm” is defined as “[a] rifle with a barrel length of less than sixteen inches or a shotgun with a barrel length of less than eighteen inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than twenty-six inches.” Tex.Penal Code Ann. § 46.01(10) (Vernon 1989). Neither section mentions capability of firing.

The appellant relies on Campbell v. State, 633 S.W.2d 592 (Tex.App.—Amarillo 1982, pet.ref d). That case held that in a prosecution for possession of a short-barrel firearm, the state does not have to prove capability of firing unless the issue is raised by the evidence. Id. at 594. The issue was not raised in that case. Accordingly, the court held it was not error to deny a jury instruction on capability of firing. Id.

The appellant argues that since the evidence showed the weapon he possessed was incapable of firing, the conviction cannot stand. We disagree. The Campbell decision relies upon the following cases: Tolbert v. State, 157 Tex.Cr.R. 101, 246 S.W.2d 896 (1952); Johnson v. State, 571 S.W.2d 170 (Tex.Crim.App.1978); and Hawkins v. State, 535 S.W.2d 359 (Tex.Crim.App.1976). The Tolbert and Johnson cases both involved the offense of unlawful possession of a handgun. See Tex.Penal Code Ann. § 46.02. Each of these cases states that the prosecution need not prove capability of firing unless the issue is raised by the evidence. Tolbert, 246 S.W.2d at 897; Johnson at 174. Neither of these cases involved possession of a short-barrel firearm.

The Hawkins decision did involve possession of a short-barrel firearm. The Campbell opinion cites Hawkins for the proposition that the state does not have to prove capability of firing unless raised by the evidence. Campbell at 594. However, the Hawkins opinion makes no such statement. In a different context, Hawkins states that the offense of possession of prohibited weapon is complete when the defendant is placed in possession of the weapon. Hawkins at 362. If anything, Hawkins supports the state’s position. We decline to follow the Campbell decision.

We find the opinion of Walker v. State, 543 S.W.2d 634 (Tex.Crim.App.1976) to be persuasive. In that case, the court of criminal appeals held that an automatic pistol, recovered without a clip or firing pin, was a deadly weapon. Id. at 637. The court stated that even if the clip and firing pin were missing at the time of the offense, the pistol was still a firearm under Tex.Penal Code Ann. § 46.01(3). Walker at 637. Since the weapon was manifestly designed for the purpose of inflicting death or serious bodily injury, and this fact was evident to the victim, the evidence was sufficient to prove the defendant used a deadly weapon. Id. Although the Walker decision concerned Tex.Penal Code Ann. § 46.01(3), we believe the same reasoning applies in the instant case.

We also note that case law construing the federal counterpart to § 46.01(3) does not require the weapon to be capable of firing. See 18 U.S.C. 921(a)(3)(A) (1976); United States v. Perez, 897 F.2d 751, 754 (5th Cir.1990), cert. denied, 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990); United States v. York, 830 F.2d 885, 891 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); United States v. Harris, 792 F.2d 866, 868 (9th Cir.1986). The wording of the federal statute is substantially the same as Tex.Penal Code Ann. § 46.01(3). Both statutes define firearms as any device designed to propel a projectile by the use of an explosion, or any device “readily” converted to that use. The plain language of the state and federal statutes does not require the weapon to be capable of firing. Similarly, nothing in Tex.Penal Code Ann. § 46.01(10) or § 46.06(a)(3) requires a short-barrel firearm to be capable of firing in order to sustain a conviction.

Furthermore, requiring the state to prove capability of firing substantially weakens § 46.06(a)(3). To impose this burden upon the state would enable criminals [670]*670to hold victims at gunpoint, with an inoperable weapon, and avoid prosecution for aggravated robbery.

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Bluebook (online)
852 S.W.2d 667, 1993 Tex. App. LEXIS 887, 1993 WL 91641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-texapp-1993.