                                      NO. 07-10-0221-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                      MAY 2, 2011
                             _____________________________

                                THOMAS JOSEPH STAUDER,

                                                                Appellant
                                                  v.

                                    THE STATE OF TEXAS,

                                                                Appellee
                             _____________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

               NO. 21,299-C; HONORABLE ANA ESTEVEZ, PRESIDING
                         _____________________________

                                  Memorandum Opinion
                             _____________________________


Before QUINN, C.J., HANCOCK , J. and BOYD, S.J.1

      Thomas Joseph Stauder was convicted, after a bench trial, of possessing a

prohibited weapon, that is, intentionally or knowingly possessing a chemical dispensing

device. The weapon in question was a device labelled “Mighty Midget,” a “Continuous

Discharge Tear Smoke CN Grenade” made by Smith & Wesson. He contends that

conviction should be reversed because 1) the evidence is legally insufficient to support


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       John T. Boyd, Senior Justice, sitting by assignment.
his conviction, 2) the statute is unconstitutionally vague, and 3) he acted under a

mistake of law and fact. We affirm the judgment.

      Sufficiency of the Evidence

      We review the sufficiency of the evidence under the standard set forth in Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Brooks v. State,

323 S.W.3d 893, 902 (Tex. Crim. App. 2010). Next, appellant argues that the evidence

was insufficient to support his conviction because the State failed to establish that 1)

“the device [possessed by him] was a chemical dispensing device which fell outside the

statutory exception for small devices purchased for personal protection,” 2) the tear gas

grenade was “in fact capable of dispensing chemical at the time it was removed from

[appellant’s] possession,” and 3) he was the one who committed or was charged with

committing the crime. We overrule the issue.

      As previously mentioned, appellant was charged with intentionally and knowingly

possessing a chemical dispensing device. See TEX. PENAL CODE ANN. §46.06(a)(8)

(Vernon 2003) (stating that a person commits an offense if he intentionally or knowingly

possesses, manufactures, transports, repairs, or sells a chemical dispensing device).

Such a device is defined as “a device, other than a small chemical dispenser sold

commercially for personal protection, that is designed, made, or adapted for the

purpose of dispensing a substance capable of causing an adverse psychological or

physiological effect on a human being.” Id. §46.01(14) (Vernon Supp. 2010). As can be

seen from this definition, nothing is said about the item being presently capable of

discharging a substance that causes adverse effects.         Instead, it need only be

designed, made, or adapted for the purpose of dispensing such a substance. Thus,



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whether or not the grenade could actually dispense a chemical was unimportant given

the evidence that it was made for that purpose.

       Next, also appearing of record was the following evidence: 1) to discharge the

contents of the “grenade,” a pin must be pulled and a plunger pushed after which it will

start burning in three seconds, 2) the “grenade” was not to be used indoors given the

risk of fire caused by the quantum of heat emanating from the canister once activated,

3) the chemical substance within the “grenade” was for “riot control,” that is, the item

was “specifically designed for riot control” as opposed to personal defense, 4) the

device can be thrown by hand or it can be shot “from various weapons that have been

modified to project” it, 5) it can be activated by percussion, that is, it being struck against

a hard surface, 6) the content of the “grenade” affects the eye ducts, causes tearing and

involuntary closing of the eyes, creates a burning sensation on the skin, “exposed

surfaces and . . . moist areas of the body . . . ,” irritates mucous membranes, causes

involuntary coughing and a “little heaviness in the chest,” makes you feel like “you can’t

breathe,” and causes eye tearing, burning to exposed skin, irritation to the nose,

coughing, a feeling of inability to breathe, and psychological effects, 7) the heat

“produced can catch objects on fire pretty easily” which explained the warning on the

item to forego use indoors, 8) the device has caused death, 9) the “grenade” was not

known to be “commercially available at [W]almarts or K-Marts or anything like that,” 10)

law enforcement entities purchase such weapons through a distributor after showing

appropriate “credentials and paperwork,” 11) there was no control over where the

contents of the device spread once activated, 12) the substance disbursed consists of

chemical compounds as opposed to “natural product[s]” like cayenne pepper, oleoresin



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and capsicum which are derived from peppers, 13) the device appeared operative

despite its age, 14) the dispensed substance is comparable to tear gas since it causes

tearing, 15) the “grenade” is a “device that is manufactured to distribute or disperse a

chemical agent,” 16) the chemical expert and supervisor of the local police department

bomb squad presented as a witness by the State was unaware of any device containing

the substance found in this particular “grenade” to be “commercially available for

personal defense,” 17) the local SWAT unit no longer maintained the device in its

inventory due to the deaths associated with it, and 18) the “grenade” canister was

approximately five inches tall with a three-inch circumference.          The foregoing

constituted some evidence from which a reasonable factfinder could conclude, beyond

reasonable doubt, that the “grenade” possessed by appellant was a device designed,

made, or adapted for the purpose of dispensing a substance capable of causing an

adverse psychological or physiological effect on a human being.          And, from the

testimony that it was used for riot control, could cause fires, was not recommended for

indoor use, and was purchased through a distributor (as opposed to a commercial retail

establishment) by law enforcement entities after showing appropriate credentials, the

same factfinder could also conclude, beyond reasonable doubt that the “grenade” fell

outside the scope of chemical dispersing devices allowed by the statute. See Briggs v.

State, 746 S.W.2d 331, 332 (Tex. App.–Dallas 1988, pet. ref’d) (finding the evidence

sufficient to support conviction when it showed that the defendant possessed a tear gas

grenade manufactured for the military as a riot control device which could only be

activated by pulling a pin and the user had no control over the direction of the chemical

spray).



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      As for the allegation that the State failed to establish appellant’s identity, the

following exchange took place at trial between the State and Officer Scott Chappell:

      Q.     When Mr. Stauder was booked into jail, was he booked in for
             possession of a chemical dispensing device?

      A.     Yes, he was.

      Q.     Now, Thomas Joseph Stauder, II, was booked into jail that day. Do
             you see that person in the courtroom?

      A.     Yes, I do.

Because the officer did not specifically point to or describe where appellant was sitting,

appellant argues that his identification as the accused was insufficient. We disagree.

      The lack of a formal in-court identification does not necessarily render the

evidence insufficient to establish identity. See Purkey v. State, 656 S.W.2d 519, 520

(Tex. App.–Beaumont 1983, pet. ref’d). The latter may be shown by circumstantial

evidence and reasonable inferences therefrom. Roberson v. State, 16 S.W.3d 156, 167

(Tex. App.–Austin 2000, pet. ref’d). And, the record at bar contains more than the

exchange mentioned above. Also found within it was inquiry by the trial court (i.e. the

factfinder) as to whether “Mr. Stauder” was ready; to that question appellant replied

“[y]es.” Appellant also presented a pro se motion to the trial court immediately before

trial began wherein the court addressed appellant as “Mr. Stauder.” And, when the trial

judge specifically asked “Mr. Stauder” how he pled after the indictment was read aloud,

appellant answered, “Not guilty.”    To this, we add appellant’s own testimony when

appearing on the witness stand wherein he expressly identified himself as “Thomas

Joseph Stauder, II” and described how he possessed the prohibited device. This and

the reasonable inferences that can be made from it were enough to enable a factfinder



                                            5
to conclude, beyond reasonable doubt, that appellant was the person found in the

possession of and indicted and tried for the crime at issue. See Sauceda v. State, No.

07-03-0342-CR, 2005 Tex. App. LEXIS 7375, at *3-5 (Tex. App.–Amarillo September 6,

2005, no pet.) (not designated for publication) (holding the evidence legally and factually

sufficient when the defendant admitted he was the person named in the indictment,

when three witnesses testified that they knew the defendant, Joseph Sauceda, and no

objection was made to the identification procedure).

        Constitutionality of Statute

        Next, appellant argues that §46.05(8) is “unconstitutionally vague.” We overrule

the issue.

        The same argument was addressed in Briggs v. State.          Like appellant here,

Briggs was tried and convicted of having a smoke or tear gas grenade. Furthermore,

the evidence there reveals the substance within the grenade to have a like effect as that

in the “grenade” here. And, it too was made for riot control. Given this, Briggs’ conduct

was found to be clearly within the core of the conduct proscribed by the statute. Briggs

v. State, 746 S.W.2d at 333. And, because one to whose conduct a statute clearly

applies may not successfully challenge it for vagueness, Parker v. Levy, 417 U.S. 733,

756, 41 L.Ed.2d 439, 94 S.Ct. 2547 (1974), Briggs lacked standing to pursue the

vagueness allegation. Briggs v. State, 746 S.W.2d at 333. The same is no less true

here.

         

         




                                            6
        Mistake of Law2

         Finally, appellant asserts that no reasonable factfinder could but conclude that

he acted under the reasonable belief that his conduct was lawful.                         This belief was

founded upon his reading of Briggs v. State, 714 S.W.2d 36 (Tex. App.–Dallas 1986),

vacated, 740 S.W.2d 803 (Tex. Crim. App. 1987). We overrule the issue for the simple

reason that had he studied the litany of Briggs cases, he would have discovered that

Briggs’ conviction for unlawfully possessing a chemical dispensing device ultimately

was upheld. And, it was upheld because having a tear gas grenade akin to the item at

issue here clearly falls within the scope of conduct prohibited by the statute. Briggs v.

State, 746 S.W.2d at 333.

        Appellant admitted at trial that he did not completely review the second Briggs

opinion (that is, the one issued by the Court of Criminal Appeals vacating the one he

allegedly read) or the third Briggs decision wherein Briggs’ conduct was found to clearly

be within the statute’s scope. So, at the very least, the factfinder could have found that

he did not reasonably rely upon a written interpretation of the law. See Green v. State,

829 S.W.2d 222, 223 (Tex. Crim. App. 1992) (stating that “Section 8.033 was not

created to allow a criminal defendant to rely upon old ‘interpretive opinions, opinions

that conflict with others, or on overruled opinions’”).




        2
          Appellant states in the title of his issue that there was also a mistake of fact but he has failed to
brief that complaint.
        3
          Section 8.03 of the Penal Code states that it is an affirmative defense to prosecution that a
person reasonably believed the conduct did not constitute a crime and that, in doing so, he relied upon a
written interpretation of the law contained in an opinion of a court of record. TEX. PENAL CODE ANN.
§8.03(b)(2) (Vernon 2003).


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       And, to the extent that he testified that he did not know that possessing the

“grenade” was prohibited by statute, we can only say that ignorance of the law is not an

excuse. This is especially true given his knowledge about the dispute in Briggs. At the

very least, the factfinder could have opted to disbelieve him.

       Accordingly, we overrule all of appellant’s issues and affirm the judgment.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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