

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 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, 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 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).   
            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 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.  
 
 
Mistake of Law[2]
 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 8.03[3]
was not created to allow a criminal defendant to rely upon old ‘interpretive
opinions, opinions that conflict with others, or on overruled opinions’”).
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.  




[1]John T. Boyd, Senior Justice, sitting by assignment.


[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).  


