Opinion issued April 7, 2015




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-14-00363-CR
                           ———————————
                     RICHARD PAUL SMITH, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 185th District Court
                           Harris County, Texas
                       Trial Court Case No. 1388225


                                  OPINION

      Appellant Richard Paul Smith was found guilty of the offense of possession

of an explosive weapon, enhanced by two prior felony convictions. See TEX.

PENAL CODE § 46.05(a)(1). The trial court sentenced him to 50 years in prison. In a
single issue, Smith challenges the legal sufficiency of the evidence to support his

conviction. We affirm.

                                   Background

      Houston Police Officers D. Morton and J. Saenz responded to an emergency

call from an apartment complex regarding a man walking around with a bottle of

gasoline. The caller had told the dispatcher that a white male, wearing black pants

and no shirt, had a “Molotov cocktail . . . a 40-ounce bottle full of gasoline with a

rag on top of it.” The caller also reported that the man “said he would bomb

somebody’s house down.” Upon arriving at the apartment complex, the officers

were confronted by people yelling “he’s over there,” pointing toward the side of

the building. As the officers followed their directions around the corner of the

building, they both smelled gasoline. The officers found appellant Richard Paul

Smith hunched on a stoop, with his head between his legs, in front of an apartment.

Within Smith’s reach sat a 40-ounce malt liquor bottle, partially filled with liquid,

with a blue rag sticking out.

      Based on their weapons training, both officers believed the bottle was a

Molotov cocktail. Smith did not initially respond to the officers’ commands to step

away from the bottle, and Officer Morton believed he was high on drugs. As he

was being arrested, Smith claimed he “just wanted to scare them,” motioning to




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people at the apartment complex and across the street at a convenience store. A

search revealed a lighter in Smith’s pocket.

      The officers took photographs of the scene, including this picture of the

bottle that was admitted into evidence at Smith’s trial:




      The officers called the homicide division and bomb squad to ask what to do

about the bottle. Both units declined to come to the scene to dispose of the bottle.

Because the officers did not want keep a bottle with what they thought was

gasoline, they took it to a local fire station, which disposed of the bottle, the rag,

and the liquid.




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                                      Analysis

      In a single issue, Smith argues that the evidence at trial was legally

insufficient to establish that the bottle recovered by the officers was an “explosive

weapon” within the meaning of the Penal Code.

      When reviewing the legal sufficiency of the evidence, we view 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, 319, 99 S. Ct. 2781, 2789 (1979);

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We must defer to

the responsibility of the factfinder to fairly resolve conflicts in testimony, to weigh

evidence, and to draw reasonable inferences from the facts. See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750. “Circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007). As long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction, each fact

need not point directly and independently to the guilt of the appellant. Id.

      A person commits the offense of possession of a prohibited weapon if he

intentionally or knowingly possesses an explosive weapon. TEX. PENAL

CODE § 46.05(a)(1). “Explosive weapon” is defined as:



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      . . . any explosive or incendiary bomb, grenade, rocket, or mine, that is
      designed, made or adapted for the purpose of inflicting serious bodily
      injury, death, or substantial property damage, or for the principal
      purpose of causing such a loud report as to cause undue public alarm
      or terror, and includes a device designed, made, or adapted for
      delivery or shooting an explosive weapon.

Id. § 46.01(2). The words “bomb” and “grenade” are not defined in the Penal

Code, so we must give them their plain meaning. State v. Holcombe, 187 S.W.3d

496, 500 (Tex. Crim. App. 2006). A “bomb” is “an explosive device fused to

detonate      under   special   conditions.”   MERRIAM      WEBSTER’S      COLLEGIATE

DICTIONARY 129 (10th ed. 1993). A “grenade” is a “small missile that contains an

explosive or chemical agent (as tear gas, a flame producer, or a smoke producer)

and that is thrown by hand or projected (as by a rifle or special launcher).” Id. at

512. Although not listed in the statute, a “Molotov cocktail” is defined as “a crude

bomb made of a bottle filled with a flammable liquid (as gasoline) and usually

fitted with a wick (as a saturated rag) that is ignited just before the bottle is hurled.

Id. at 749.

      Smith argues that the evidence is insufficient to establish that the bottle in

his possession was an explosive weapon because the evidence did not establish that

it was, in fact, explosive. He asserts that no evidence established that the liquid

inside the bottle was gasoline and that no evidence established that the bottle was

constructed in a way that would cause it to explode if ignited and thrown, as

opposed to merely shattering and burning. He does not contend, however, that a


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properly constructed Molotov cocktail would not constitute an “explosive weapon”

under section 46.05(a)(1).*

      At trial, the officers testified about their perceptions and evaluation of the

bottle’s contents and its capability of producing an explosion. Morton testified that

he smelled gasoline from about 20 yards away as he approached Smith. He denied

that the liquid could have been beer or urine, stating that he was “certain that it was

gasoline” in the bottle. When asked if the gasoline could have been diluted, he

admitted that “anything is possible.” He testified, based on his training in

identifying weapons, that Smith had constructed a Molotov cocktail, which was an

explosive weapon that was adapted to cause serious bodily injury or substantial

property damage. Saenz echoed Morton’s testimony. He testified that the liquid in

the bottle was gasoline and that he was “100 percent certain that it was gasoline”

*
      The State contends that “Texas courts have not yet had to address the claim of
      whether a Molotov cocktail amounts to an ‘explosive weapon’ under § 46.05 . . . .”
      In one unpublished decision, however, a court has affirmed a conviction under
      section 46.05(a)(1) for the possession of a Molotov cocktail. See McWilliams v.
      State, No. 13-97-830-CR, 1999 WL 33757429, at *2–3 (Tex. App.—Corpus
      Christi Apr. 22, 1999, no pet.) (mem. op., not designated for publication). Other
      states have also reached the conclusion that a Molotov cocktail is an explosive
      device. See People v. Rowerdink, 756 P.2d 986, 994 (Colo. 1988) (holding
      evidence sufficient to establish that a defendant who possessed a Molotov cocktail
      possessed an incendiary device); State v. Arruda, 317 A.2d 437, 439 (R.I. 1974)
      (holding that a Molotov cocktail was a “bomb” under the applicable statute).
      Federal courts have uniformly held that a Molotov cocktail is a “destructive
      device” under 26 U.S.C. § 5861(d), which makes it unlawful to possess an
      unregistered “firearm,” including “any explosive, incendiary, or poison gas (A)
      bomb, (B) grenade . . . or (F) similar device” under section 5845(f)(1). See United
      States v. Simmons, 83 F.3d 686, 687 (4th Cir. 1996) (listing federal cases holding
      that an assembled Molotov cocktail is a destructive device under the statute).

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because “[t]he smell from the bottle was overwhelming.” Smith did not object to

the officers’ testimony. Additionally, pictures of the bottle containing liquid and

stuffed with a rag were entered into evidence.

      Smith contends that the officers did not adequately explain the physics that

would cause the bottle to explode, so a rational juror could not have concluded that

the bottle was an explosive weapon. But he does not dispute their testimony that

the rag, bottle, and liquid constituted a Molotov cocktail which, if ignited, was

capable of causing serious bodily injury or substantial property damage. See TEX.

PENAL CODE § 46.01(2). Viewed in the light most favorable to the verdict, the

officers’ testimony and pictures of the bottle enabled a rational trier of fact to find

beyond a reasonable doubt that Smith intentionally or knowingly possessed an

explosive weapon as defined by the Penal Code. See id. § 46.05(a)(1); Jackson,

443 U.S. at 319, 99 S. Ct. at 2789.

                                      Conclusion

      We affirm the trial court’s judgment.



                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




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