Rufo Atiogue Reyes v. State

• Court: Court of Appeals of Texas
• Decided: May 8, 1991
• Docket: 03-90-00294-CR
• Status: Published

Opinion

Reyes v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-90-294-CR

RUFO ATIOGUE REYES,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY, NO. 2C90-93,903, HONORABLE JOHN BARINA, JUDGE

PER CURIAM

Appellant was convicted in a nonjury trial of unlawfully carrying a weapon and fined $150.00. Tex. Pen. Code Ann. § 46.02 (1989). In a single point of error, appellant contends the evidence is insufficient to support a conviction because the object found in appellant's car does not fit the statutory definition of a "club." We will affirm the judgment of conviction.

Appellant contends that the object the police found is a table leg and not a club. The Penal Code defines a "club" as "an instrument that is specially designed, made, or adapted for the purpose of inflicting bodily injury or death by striking a person with the instrument, and includes but is not limited to the following: (A) blackjack; (B) nightstick; (C) mace; (D) tomahawk." The State does not dispute that the object was originally a table leg, but argues that appellant turned this table leg into a nightstick by drilling a hole in it and adding a nylon cord.

The commentary to section 46.02 notes that:

[i]nstruments readily capable of inflicting serious 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 . . . .

Searcy & Patterson, Practice Commentary, 3 Tex. Pen. Code Ann. 432 (1989). Thus, appellant's conviction must be overturned unless there is sufficient evidence in the record that he carried about his person an instrument specifically designed, made, or adapted for the purpose of inflicting serious bodily injury or death. See Alexander v. State, 617 S.W.2d 269, 270 (1981).

In reviewing a point of error that alleges the evidence was factually insufficient to support the verdict, we must review the record in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Cr. App. 1981). After examining the object, we conclude that sufficient evidence exists to support the conviction. The object looks like a nightstick; it has a cord like a nightstick; it can be held like a nightstick: it is a nightstick. Appellant's point of error is overruled.

The judgment of conviction is affirmed.

[Before Justices Powers, Aboussie and Kidd]

Affirmed

Filed: May 8, 1991

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