Thomas v. State

801 S.W.2d 540, 1990 WL 176992

Opinions

OPINION

JUNELL, Justice.

A jury convicted appellant of carrying a deadly weapon in a penal institution and assessed punishment, enhanced by two pri- or convictions, at imprisonment for life. Appellant brings four points of error. For the purpose of this appeal we find it necessary to address only appellant’s second point of error. We reverse and acquit.

On May 13, 1988, guards at the Darring-ton Unit, Texas Department of Corrections, were conducting a random cell search. Two guards went to the cell of appellant and informed him he would be strip searched and that his cell would be searched. Appellant removed his clothing except for his left shoe which he refused to give to the guards. The guards told appellant that unless he surrendered the shoe, a “use of force” measure would be used to get the shoe. Appellant then bent over and picked up an object out of his left shoe and tossed the item on the bottom bunk of the cell. He then handed the shoe to the guard. A guard ordered appellant to hand over the object on the bunk. Appellant complied and the guard observed the object was a homemade stabbing device known as a “shank.” A “shank” is an instrument made by sharpening a hard object to a point. Appellant was subsequently indicted and convicted under Tex.Penal Code Ann. § 46.11(a), of carrying a deadly weapon in a penal institution.

In his second point of error appellant argues there was insufficient evidence to sustain the conviction. Specifically, appellant argues the evidence was insufficient for the jury to find beyond a reasonable doubt that he carried a deadly weapon as required for a conviction under Tex.Penal Code Ann. § 46.11(a). We agree.

In reviewing challenges to the sufficiency of the evidence to support a conviction, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1970); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989) (reconfirming the Jackson standard of review).

Under the Tex.Penal Code Ann. § 1.07(a)(ll), a deadly weapon is defined as:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

The first part of the definition refers to weapons that are deadly weapons per se. A knife is not a deadly weapon per se. Denham v. State, 574 S.W.2d 129, 130 (Tex.Crim.App.1978). A homemade stabbing device, a “shank” in this case, is not a deadly weapon per se. Thus, in order for the “shank” to qualify as a deadly weapon, we must look to “the manner of its use or intended use.”

At trial the prosecution presented two Texas Department of Correction guards as witnesses. Both testified that they had seen homemade stabbing devices, i.e. “shanks”, used to cause serious bodily injury and death. However, during cross-examination, the guards testified they did not see the appellant make threatening movements with the “shank” or that he had it displayed other than to remove it from his shoe and hand it to the guard as requested. There was no testimony that appellant used any threatening words or gestures toward the guards. Further, the guards testified that they had no idea what appellant’s intended use for the “shank” was at the time it was discovered.

The Amarillo Court of Appeals in Hernandez v. State, 649 S.W.2d 720, 722 (Tex.App.-Amarillo 1982, no pet.) held that where a weapon was not actually used to cause death or serious bodily injury, two elements must be proven in order to find the weapon was a deadly weapon under Tex.Penal Code Ann. § 1.07(a)(11)(B). See also Garza v. State, 695 S.W.2d 726, 728 (Tex.App.-Dallas 1985, pet. granted), aff'd on other grounds, 725 S.W.2d 256. First, the item used as a weapon must be capable of causing the requisite harm. Hernandez, 649 S.W.2d at 722.

Second, there must be evidence that the weapon was displayed or used in a manner indicating an intent to cause death or serious bodily injury. Orosco v. State, 590 S.W.2d 121, 124 (Tex.Crim.App.1979); Hernandez, 649 S.W.2d at 722. It is not necessary, however, that wounds actually be inflicted. Dominique v. State, 598 S.W.2d 285, 286 (Tex.Crim.App.1980); Limuel v. State, 568 S.W.2d 309, 311-312 (Tex.Crim.App.1978).

When the evidence in this case is evaluated in light of the foregoing principles, its insufficiency is apparent. While the testimony revealed that the “shank” was capable of causing serious bodily injury or death, there was no evidence that the “shank” was displayed or used in a manner showing an intent to cause death or serious bodily injury. The prosecution did not meet the requirements of Tex.Penal Code Ann. § 1.07(a)(ll)(B). Thus, the evidence was insufficient for the jury to find beyond a reasonable doubt that the “shank” was a deadly weapon as is required for a conviction under Tex.Penal Code Ann. § 46.11(a). Appellant’s second point of error is sustained.

Sustaining appellant’s second point of error disposes of the case. Appellant’s third point of error is based on grounds similar to the point we have sustained. We have examined appellant’s other points of error and find them to be without merit. They are overruled. The conviction is reversed and the court below is directed to enter a judgment of acquittal.