









Affirmed and Majority and Dissenting Opinions filed June 13, 2002








Affirmed and Majority and Dissenting Opinions filed June 13, 2002.
 





 





 
In The
 
Fourteenth Court of Appeals
 
NO.
14-01-00398-CR
____________
 
ALONZO CHOPPS, JR.,
Appellant
 
V.
 
THE STATE OF TEXAS , Appellee
 

 
On
Appeal from the 361st District Court 
Brazos County, Texas
Trial
Court Cause No. 2700-00
 

 
M
A J O R I T Y   O P I N I O N 
A
jury convicted appellant, Alonzo Chopps, Jr., for
unlawfully carrying a weapon.  See
Tex. Pen. Code Ann. '
46.02 (Vernon Supp. 2002).  In one point
of error, appellant claims the evidence is legally insufficient to support his
conviction.  We affirm.  
Background
and Procedural History




Deputy
Constable Steven Emert was on patrol when he saw a
vehicle parked in the middle of the street with the driver=s
door open and engine running.  He then
saw appellant chasing a man down the street, carrying an object that Emert referred to as a Aclub.@  Emert
activated his emergency lights and appellant responded by returning to the
vehicle.  Appellant dropped the object at
Emert=s request.  At trial, Emert described the object as long, cylindrical in nature,
reddish and green in color, with an image of an Aztec warrior holding a shield
and club.  Joe Aguilar, an employee of
the Texas Department of Corrections, was riding along with Emert.  Aguilar testified that he witnessed the chase
and he also described the item as a Aclub.@  Appellant was charged
with unlawfully carrying a weapon and with attempted assault.  
The
jury acquitted appellant of the attempted assault charge but found him guilty
of unlawfully carrying a weapon.  Punishment
was assessed at sixty days= confinement.  This
appeal followed. 
Legal
Sufficiency 
In
one point of error, appellant claims the evidence is legally insufficient to
prove the item he carried was a Aclub@ as defined by Texas Penal Code section 46.01(1).  When reviewing legal sufficiency, we view the
evidence in the light most favorable to the verdict and determine whether a
rational trier of fact could have found the elements
of the offense beyond a reasonable doubt. 
Jackson v. Virginia, 443 U.S. 307, 318‑19, 99 S. Ct. 2781,
2788-89,(1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000).  If
a reviewing court determines the evidence is insufficient under the Jackson
standard, it must render a judgment of acquittal because if the evidence is
insufficient under Jackson, the case should never have been submitted to
the jury.  See Jackson, 443 U.S.
318-19.  In a legal sufficiency challenge,
we do not re-weigh the evidence.  King
v. State, 29 S.W.3d 556, 562 (Tex. Crim. App.
2000).
A
person commits an offense if that person intentionally, knowingly, or
recklessly carries on or about his person a handgun, illegal knife, or
club.  See Tex. Pen. Code Ann. ' 46.02 (Vernon Supp. 2002). 
A Aclub@ is an instrument that is specially designed, made, or adapted
for the purpose of inflicting serious bodily injury or death by striking a
person with the instrument, and includes but is not limited to the following:
blackjack; nightstick; mace; tomahawk.  Tex. Pen. Code Ann. '
46.01 (Vernon Supp. 2002).  Here,
appellant was charged by information with carrying an illegal club, Ato-wit:
a wooden club approximately 2 2 feet long.@ 




The
State=s
evidence is sufficient to support the jury=s finding that the item was a Aclub.@  The object was
described as being a two-and-a-half-foot long, red and green cylindrical wooden
stick, with an image of an Aztec warrior holding a shield and club.  Emert testified
that the item had no purpose other than as a weapon and that its Amere
existence is a weapon.@  In addition, Aguilar
testified that he was familiar with the item and that its designed purpose was
to inflict serious bodily injury.  The
State presentedBwithout objectionBthe following testimony regarding the item=s
designed purpose:
Q:
Mr. Aguilar, have you ever seen a club like that before?  
A:
Yes, sir.  
Q:
Where?  
A:
Usually they sell them in Mexico.  
Q:
Have you ever seen them for sale here in the United States?
A:
I=ve
seen them a couple of times at a flea market. 

Q:
Is it your B has your
police training given you a definition of what a club is?
A:
Yes.  A club is something to B
for use to commit bodily harm on another individual.
Q:
Okay.
A:
The sole purpose is that.
Q:
Do you know of any other purpose for that item there other than to hurt
someone?
A: No sir.  That=s
the only reason that this would be.[1]





In
response to questioning about whether the item was a Apiñata
bat,@
Aguilar testified that he had never seen this type of club used as a piñata
bat.  In contrast, appellant argued the
item is a Abaseball bat,@ Apiñata bat,@ or Awalking stick.@[2]  The conflicting
descriptions were possible because the item in question is not one that has a
common purpose or usage.  
The
lack of a clearly designed purpose is what distinguishes this case from those
cited by the dissent, in which the object in question was clearly designed for
some purpose other than to inflict serious injury.  See Reisner v.
State, 627 S.W.2d 728, 728 (Tex. Crim. App.
[Panel Op.] 1982) (leather bracelet with metal studs); Alexander v. State,
617 S.W.2d 269, 270 (Tex.
Crim. App.
[Panel Op.] 1981) (motorcycle chain); Coleman v. State, 790 S.W.2d 369,
370 (Tex. App.CDallas
1990, no pet.) (wooden cylinder imprinted with words AV
& B TIRE KNOCKER@).[3]  Here, the evidence presented showed the
object was a two-and-a-half-foot long, red and green cylindrical wood stick,
with an image of an Aztec warrior holding a shield and club.  The jury heard conflicting evidence from the
State=s
witnesses and from appellant  about the
item=s
purpose.  Reconciliation of conflicts in
the evidence is within the exclusive province of the jury.  See Wyatt, 23 S.W.3d at 30.  The jury concluded the item was a Aclub.@  We find Aguilar=s testimony that he is familiar with the item and its designed
purpose Aenough
credible testimony@ to support the conviction under a legal sufficiency
challenge.  Id. 




Further,
even if the dissent=s interpretation of the witness=s testimony is correct that the item was a Aclub@
based in part on how appellant used it, we believe that in this case the jury
was entitled to consider evidence of the item=s use as a factor in determining whether the item was Adesigned@
for the purpose of inflicting serious bodily injury.  The dissent relies upon Ex parte Andrews, in refusing to consider appellant=s
use of the item.  814 S.W.2d 839, 841 (Tex. App.CHouston [1st Dist.] 1991, pet. dism=d).  However, the issue in that case was whether a
bicycle lock was a Acriminal instrument@ under Texas Penal Code section 16.01.  See Tex.
Pen. Code Ann. ' 16.01(b) (Vernon 1994). 
The court concluded an object does not become a criminal instrument by
the context of its use, but by the limited nature and specialized criminal use
of its own distinctive properties.  Andrews,
814 S.W.2d at 841.  Likewise, when it is
clearly established that an item was Adesigned@ to be something other than a weapon, then evidence of the use
of that item in committing an offense is insufficient to bring the item within
the definition of a club.  See
Alexander, 617 S.W.2d at 270 (recognizing that items such as baseball bats
and rolling pins that are capable of inflicting serious injury but not
specifically designed to do so are excluded from the statutory definition of Aclub@).  However, when the issue is whether the item
was Aspecially
designed or made@ to be used as a weapon, and conflicting evidence exists as to
the designed purpose, we find that evidence regarding how the item was being
used may be considered by the fact finder to assist in its determination of whether
the item was specially designed or made for the purpose of inflicting serious
bodily injury or death. In this case, the item held by appellant does not have
a well-known designation or purpose, and the jury heard conflicting testimony
about this item=s purpose.  Therefore,
appellant=s use may be a factor in determining if it is a Aclub@
within the meaning of Texas Penal Code section 46.01(1).  
Viewing the evidence in the light most
favorable to the verdict, a rational jury could have found the essential
elements of unlawfully carrying a weapon. 
Accordingly, appellant=s
point of error is overruled.  The
judgment of the trial court is affirmed. 
                 
 
 
            
/s/  
Leslie Brock Yates
       
Justice
 
Judgment rendered and Opinion filed June
13, 2002.
Panel consists of Justices Yates, Seymore, and Guzman. (Seymore, J.
dissenting)
Publish C Tex. R. App. P.
47.3(b).




Affirmed
and Majority and Dissenting Opinions filed June 13, 2002.
 
 
 
 
 
 
 
 
In
The
 
Fourteenth Court of Appeals
____________
 
NO. 14-01-00398-CR
____________
 
ALONZO CHOPPS, JR., Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On
Appeal from the 361st District Court 
Brazos
County, Texas
Trial
Court Cause No. 2700-00
 

 
D I S S E N T I N G   O P I N I O N
I
respectfully dissent because there is insufficient evidence that the object in
question is a club specially designed, made, or adapted for the purpose of
inflicting serious bodily injury. 




At
trial, both Constable Embry and Joe Aguilar described appellant=s bat1
as a club and a weapon.  Constable Embry
opined that the bat was specially designed or made to inflict serious bodily
injury or death.  Witness Joe Aguilar
similarly concluded that the bat=s sole purpose was to hurt
someone.  However, when pressed to
explain the reasoning for their conclusions, both witnesses stated that it was
appellant=s use of the bat that made it
an illegal club.  Constable Embry agreed
that whether the bat was an illegal weapon depends on how it was used and the
possessor=s Apurpose for it.@ 
According to Constable Embry, the bat was an illegal weapon because
appellant adapted it to cause serious bodily injury.  Joe Aguilar=s conclusion was similarly based on Awhat you=re doing with it@ and Awhy this person has it at the time.@ 
According to Mr. Aguilar, A[appellant] . . . was chasing an
individual with that club, and that=s the difference.@ 
There was no testimony or other evidence that the bat in question had
been physically altered to enhance one=s ability to cause serious bodily
injury.
The
State argues that the bat meets the statutory definition of a club because a
jury could conclude that appellant meant to harm the complainant with it.  Certainly, the conclusions of Constable Embry
and Joe Aguilar were based on such reasoning. 
Appellant counters that a benign object cannot be transformed into or Aadapted@ as an unlawful weapon by the manner
of its use.  I agree.  Otherwise, every possible instrument would be
an illegal weapon if used in an assault or attempted assault.  The offense of unlawfully carrying a weapon
is defined by the inherent characteristics of the object and not by the manner
in which an appellant uses it.  See Ex
Parte Andrews, 814 S.W.2d 839, 841 (Tex. App.CHouston [1st Dist.] 1991, pet. dism=d).




AAs originally made, a baseball bat,
crowbar, or axe handle could be used to inflict serious bodily injury or death;
however, to bring such an object within the definition of a >club,= it is necessary to prove that such
an object was specially designed, made, or adapted to inflict serious bodily
injury or death.@  Reisner
v. State, 627 S.W.2d 728, 729 (Tex. Crim. App.
1982).2  Instruments readily capable of inflicting
serious bodily injury but not specifically designed to do so are excluded from
the definition of Aillegal club.@  See Meza v. State,
652 S.W.2d 399, 400 (Tex. Crim. App. 1983) (reasoning
that a person may be prosecuted for an attempted or completed assault by
carrying an object with intent to inflict injury if his criminal design
progresses far enough); Alexander v. State, 617 S.W.2d 269, 270 (Tex Crim. App. 1981).
Apart from Constable Embry=s and Mr. Aguilar=s conclusions, based solely on
appellant=s use of the bat, there is no evidence that the bat was made or designed to
inflict serious bodily injury or harm. 
The majority refers to appellant=s description of the item in question
as a Abaseball bat,@ Apiñata bat@ or Awalking stick.@ 
Additionally, the majority concludes the item does not have a well-known
purpose.  This conclusion reveals a
defect in the analysis of the majority. 
If the item has no well-known purpose, absent testimony regarding
design, there is no evidence that it was specially made or designed for
the purpose of inflicting serious bodily injury or death.  I cannot conclude that an object with all the
physical characteristics of a baseball bat, merely described as a Aclub@ by the officer and his passenger, is
an instrument specially made, designed, or adapted for the purpose of
inflicting serious bodily injury or death. 
See Coleman v. State, 790 S.W.2d 369, 372 (Tex. App.CDallas 1990, no pet.).  If unsubstantiated and conclusory
testimony were sufficient, any arbitrary instrument, like a telephone, could be
considered a club or other illegal weapon.3





Additionally, there is no evidence that the bat was adapted
to inflict serious bodily injury or death. 
See Meza, 652 S.W.2d at 400. 
In its ordinary use, Aadapted@ means Ato make suitable or fit (as for a particular use, purpose or
situation), by means of physical change, modification, or alteration.@ 
Webster=s Third New
Int=l Dictionary
23 (3d ed. 1993).4  Such a physical change, modification, or
alteration must be accomplished for the specific purpose of inflicting serious
bodily injury or death.  See Alexander,
617 S.W.2d at 270 (mere presence of nylon cord in last link of motorcycle chain
insufficient to prove adaptation as a club). 
Thus, appellant=s intended use of the bat to strike the complainant was not
an adaptation of it.  
Without citing any authority, the majority considers Aappellant=s use a factor in determining
if it is a club within the meaning of the Texas Penal Code, Section 46.01 (1).@ 
The majority fails to recognize that this consideration is repugnant to
the jury verdict of acquittal for the attempted assault charge.  If the jury did not convict appellant for using
the bat to commit an assault, why should this court consider Ause@ to be a factor in concluding the bat is an
illegal weapon?  Consideration of Ause@ as a factor is more problematic than helpful.  For example, a group of young men form an
association called AThe Louisville Sluggers.@ 
Members of the association use physically unaltered baseball bats to
resolve disputes with their enemies. 
Many members of the association paint a depiction of a war eagle on
their bats.  No one knows the
manufacturer of the bats, but they are variously used to play baseball, hit
piñatas and, occasionally, as walking sticks. 
One member loans his bat to a friend who has never used a bat to resolve
a dispute.  The friend is arrested while
carrying the bat in a public park. 
Apparently, the majority would have no problem affirming the friend=s conviction for carrying an illegal
weapon because the bat has previously been used to inflict bodily
injury. 




The State failed to prove beyond a reasonable doubt
that the bat here was Aspecially made or designed to inflict serious bodily
injury.@  Reisner, 627 S.W.2d at 729.  Accordingly, I respectfully dissent.
 
 
            
/s/   Charles
W. Seymore
      
Justice
 
 
Judgment
rendered and Majority and Dissenting Opinions filed June 13, 2002.
Panel
consists of Justices Yates, Seymore and Guzman.
Publish
C Tex.
R. App. P. 47.3(b).
 
 




[1]  The dissent
simply dismisses this testimony because it concludes that Aguilar=s identification of the item as a club was based
solely on its use by appellant.  On
cross-examination, Aquilar testified that whether
someone carrying the item in question was committing an offense depended on Awhat you=re doing
with it@ and Awhy this person has it at the time.@  This is true,
because section 46.02 does not apply to persons who, for example, are traveling
or are engaged in lawful sporting activities. 
See Tex. Pen. Code Ann. ' 46.15(b) (Vernon Supp. 2002).  We do not read Aguilar=s testimony regarding the significance of how a weapon
is used to suggest that appellant=s use of
the item in this case transformed a non-weapon into a weapon.  


[2]  The record
indicates that appellant complied with the State=s
request and demonstrated for the jury how he used this two-and-a-half-foot item
as a walking stick, to which the prosecutor replied Athat=s an awful short stick@ and
pointed out the stick was not worn down. As the exclusive judge of the
credibility of the witnesses, the jury was free to disregard appellant=s testimony.   See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App.
2000). 


[3]  In Meza v.
State, the only evidence concerning the object=s design was the arresting officer=s description of it as a Aclub.@  652 S.W.2d
399, 400-01 (Tex. Crim. App. 1983).


1  The record contains a picture of the object
in question.  It is has all the physical
characteristics of a little league baseball bat.


2  In Reisner, the alleged illegal club was a wrist
bracelet containing metal spikes.  627
S.W.2d at 728.  A police officer
testified how the object could be used to inflict injury but did not testify
the object was specially made, designed, or adapted to inflict death or serious
bodily injury.  Id.  The court held the bracelet did not meet the
definition of a club.  Id at 729.


3  A[A] duck which is called a horse does not become a
horse; a duck is a duck.@  City of
Corpus Christi v. Bayfront Assocs., Ltd., 814
S.W.2d 98, 109 n.4 (Tex. App.CCorpus Christi 1991, writ denied).


4  Words,
phrases, and terms used in the penal code are given their ordinary meaning in
common language, except where specially defined.  Neumuller
v. State, 953 S.W.2d 502, 511 (Tex. App.CEl Paso
1997, pet. ref=d); see Tex.
Pen Code Ann. ' 1.05(b) (Vernon 1994) (AUnless a
different construction is required by the context, Sections 311.011, 311012,
311.014, 311.015, and 311.021 through 311.032 of Chapter 311, Government Code
(Code Construction Act), apply to the construction of this code.@); Tex. Gov=t Code Ann. ' 311.011 (Vernon 1998) (A(a)
Words and phrases shall be read in context and construed according to the rules
of grammar and common usage.  (b) Words
and phrases that have acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly.@).  AAdapted@ is not
defined in chapter 46 of the penal code. 


