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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS


JOSHUA VAN DANZI,

                            Appellant,

v.

THE STATE OF TEXAS,

                            Appellee.

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No. 08-02-00151-CR

Appeal from the

County Court at Law No. 4

of Collin County, Texas

(TC# 4-81544-01)

O P I N I O N


	Joshua Van Danzi was charged with possession of a criminal instrument and theft
of property valued between $50 and $500.  After a bench trial, he was convicted,
sentenced to 180 days of confinement, and ordered to pay a $1,000 fine for each offense.  
In this opinion, we review his conviction for possession of a criminal instrument. (1) 
Because the evidence is legally insufficient to sustain this conviction, we reverse the
judgment of conviction and render a judgment of acquittal.

 The Standard of Review

	To determine whether the evidence is legally sufficient, we view the evidence in
the light most favorable to the prosecution to determine whether a rational fact finder
could find the essential elements of the offense beyond a reasonable doubt.  Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979).  The fact
finder, here the trial judge, is the sole judge of the weight of the evidence and the
credibility of the witnesses.  Levario v. State, 964 S.W.2d 290, 294 (Tex. App.--El Paso
1997, no pet.).
The Evidence
	Danzi was charged with intentionally and knowingly possessing a criminal
instrument, namely, a slim jim, with intent to use it in the commission of an offense,
namely, burglary of a motor vehicle.  See Tex. Pen. Code Ann. § 16.01(a)(1) (Vernon
2003).  As relevant to this charge, the following evidence was adduced at trial.
	Plano Police Officer Ronald Kress testified that he was dispatched to backup
another officer who was investigating an apparent burglary of a motor vehicle.  While he
was on his way, Officer Kress observed a vehicle a couple of streets away that was going
ten to fifteen miles per hour in a thirty-mile-per-hour zone.  The vehicle came to a full
stop at an intersection with a stop sign, but it failed to stop behind the solid white line.  
Officer Kress pulled the vehicle over.  Danzi was the driver of the car and Jerry Payne
was a passenger.  Officer Kress recognized Danzi because he had previously assisted in
arresting him for possession of criminal instruments.
	A total of four other officers eventually arrived at the scene of the traffic stop.  A
K-9 officer conducted a narcotics sniff.  After the dog alerted, the officers conducted a
thorough search of the vehicle.
	Officer Kress described the results of the search as follows:
	Q	What did you discover, if anything, during your search of Mr.
Danzi's vehicle?

	A	Items were located in the trunk and recovered that were later
determined to be stolen property from the burglary [at the other
location].  Also located in the trunk of the vehicle were criminal
instruments frequently used to conduct BMVs, or burglary of motor
vehicles.

	Q	Can you describe the criminal instrument that you're talking about?

	A	Yes, ma'am.  It's a slim-jim.

The slim jim was admitted into evidence.  Officer Kress later testified that the officers
also found two types of screwdrivers and a flashlight. (2)
	A written statement made by Danzi was admitted into evidence without objection.   
In it, Danzi reported that Payne called him and asked if he wanted to go car-jacking. 
Danzi told him "no but that if he got me a car stereo that I would buy it from him."  At
around 2 a.m., he went to Payne's house and Payne showed him a car stereo, car
amplifier, and big box with two subwoofers.  They put the stereo in Danzi's trunk and
headed for Danzi's girlfriend's house.  While they were on their way, Payne told Danzi to
"drive by where he jacked it."  The statement also recites, "The tools in my care [sic]
were not used by Jerry Payne to break into any vehicles.  The slim jim was used by me 5
months ago to get my fiancé's keys out of her car . . . .  Jerry Payne had used a spark plug
to break into the vehicles."
	At trial, Danzi reiterated that Payne called him and told him he had a stereo for
him to consider and that on the way to Danzi's girlfriend's house, Payne suggested that
they drive by the car where Payne had gotten the stereo.  He testified that a couple of
weeks earlier he had locked his keys in his car at the carwash.  His girlfriend bought the
slim jim at an Auto Zone and the owner of the car wash used it to retrieve his keys.  He
attempted to explain the inconsistency between this version of events and the version
presented in his written statement by saying that both he and his girlfriend have a slim
jim.  He stated that the other tools were in his car because he works at a mechanic shop.	One of the police officers testified that while he was transporting Payne to jail,
Payne explained why he and Danzi were driving around in the area.  Payne told him that
"they were coming back into the area to possibly hit a white Mercedes . . . ."
The Statute
	Resolution of Danzi's sufficiency challenge depends on the interpretation of
section 16.01 of the Texas Penal Code.  We quote the statute in full below, italicizing the
portions most relevant in this case.

 A person commits an offense if:
 
 he possesses a criminal instrument with intent to use it in the
commission of an offense; or
 	with knowledge of its character and with intent to use or aid
or permit another to use in the commission of an offense, he
manufactures, adapts, sells, installs, or sets up a criminal
instrument.
 
 For the purpose of this section, 'criminal instrument' means
anything, the possession, manufacture, or sale of which is not
otherwise an offense, that is specially designed, made, or adapted for
use in the commission of an offense.
 	An offense under Subsection (a)(1) is one category lower than the
offense intended.  An offense under Subsection (a)(2) is a state jail
felony.

 
Tex. Pen. Code Ann. § 16.01 (Vernon 2003) (emphasis added).
	Section 16.01 was first construed by a federal district court.  See Universal
Amusement Co. v. Vance, 404 F. Supp. 33 (S.D. Tex. 1975), vacated in part on other
grounds sub. nom Butler v. Dexter, 425 U.S. 262, 96 S.Ct. 1527, 47 L.Ed.2d 774 (1976),
aff'd in relevant part, Universal Amusement Co. v. Vance, 559 F.2d 1286, 1293- 1300
(5th Cir. 1977).  In Universal, the court stated that the statute is "not aimed at an
instrument which has lawful uses . . . ."  Id. at 48.  The court further stated:
	The statute . . . is clearly drawn and very specific . . . . The statute was
obviously designed to deal with a very small class of property which can be
used only for the commission of crime and to deal with persons in
possession of such property or engaged in the manufacture of adaptation of
the property exclusively for use in criminal activities, before the criminal
activities are undertaken or completed.
Id. at 51 (emphasis added).
	A year after Universal was decided, the Texas Court of Criminal Appeals was
called on to determine whether the statute is unconstitutionally vague, indefinite, and
overbroad.  See Fronatt v. State, 543 S.W.2d 140, 142 (Tex. Crim. App. 1976).  The court
quoted the above language from Universal and stated, "We subscribe to the views stated
in Universal, and decline to hold [the statute] unconstitutional on the bare allegations that
it is vague, indefinite and overbroad."  Id.
	In the ensuing years, appellate courts applied the Universal/Fronatt interpretation
of the statute.  Courts held that the statute applied when the instrument could be used only
for the commission of a crime, see, e.g., Simmons v. State, 690 S.W.2d 26, 28-29 (Tex.
App.--Beaumont 1985, no pet.) (homemade key that could be used only to burglarize
coin-operated machines); Carrasco v. State, 712 S.W.2d 623, 625 (Tex. App.--Corpus
Christi 1986, no pet.) (wire with a loop at the end specially designed for burglarizing
vehicles), but that it did not apply when the instrument was not specially designed or
adapted for use in a crime, see, e.g., Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 90
(5th Cir. 1992) (video, audio, and computer equipment used for showing allegedly
obscene videotape); Harris v. State, 790 S.W.2d 778, 780 (Tex. App.--Houston [14th
Dist.] 1990, pet. ref'd) ("lockband key" that could be used to open electric meter for
lawful purposes).
	Three appellate courts have attempted to define the proper application of section
16.01.  The Third Court of Appeals analyzed the statute in Eodice v. State, 742 S.W.2d
844 (Tex. App.--Austin 1987, no pet.).  The court held:
	In order to be a criminal instrument within the meaning of the statute, it is
not enough that an object can be used to commit a crime.  Rather, the object
must be one that, as designed, made, or adapted, is distinctively or
peculiarly suited to accomplishing a criminal objective.  While the opinion
in Universal Amusement may have overstated the point by suggesting that
the commission of a crime must be the only use for a criminal instrument, it
is certainly clear from the statutory definition that the commission of a
crime must be the object's primary purpose.  

Eodice, 742 S.W.2d at 846 (footnote omitted).
	The court reversed a conviction involving the following facts.  The defendant was
standing in the doorway of a closed pawn shop at 2 a.m.  Inside his car were a feeler
gauge, circuit tester, and bent cotter pin.  Inside his socks were a filtered-lens flashlight
and a pry bar.  Id. at 845.  Although there was evidence that some of these instruments
could be used to commit burglary, there was no evidence that any of the instruments were
specially designed, made, or adapted for that use.  Id. at 847.  The court rejected the
State's argument that the defendant had specially adapted the flashlight and pry bar for
use in a burglary by hiding them in his socks, noting that concealment of these
instruments did not alter their nature.  Id.  The court concluded that the defendant's
"concealment of these objects is evidence of his intent to use them to commit burglary, a
separate element of the charged offense, but is not evidence that these items had been
specially adapted for that purpose."  Id.
	In Ex parte Andrews, the First Court of Appeals echoed the Third Court's
distinction between proof of intent to commit a crime and proof that the instrument was
designed, made, or adapted for that purpose.  814 S.W.2d 839 (Tex. App.--Houston [1st
Dist.] 1991, pet. dism'd).  The court held:
	[T]he gravamen of the offense . . . is the physical adaptation of the alleged
instrument for a specific criminal intent. . . .  We find that any illegality to
be proved is in the inherent characteristics of the object itself as adapted,
and not in the conduct of defendants in using the object within a particular
criminal episode.  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.

Id. at 841.  Applying this holding to the case before it, the court reversed the convictions
of abortion protesters who used bicycle locks and chains to lock themselves together.  Id.
at 840, 842.  The court noted that "[u]nder the State's theory, any instrument, otherwise
lawful, would be a criminal instrument if used in any way to facilitate the commission of
a crime . . . ."  Id. at 842.
	The Fourteenth Court of Appeals has interpreted section 16.01 inconsistently with
Eodice and Andrews.  See Janjua v. State, 991 S.W.2d 419 (Tex. App.--Houston [14th
Dist.] 1999, no pet.).  The court began its analysis by tracing the history of section 16.01. 
The statute was derived from an earlier statute that prohibited felons from possessing
certain objects, such as machines, jimmies, tools, false keys, and pick-locks, "or other
implements or things adapted, designed or commonly used" to commit burglary or
safecracking.  Act of May 30, 1963, 58th Leg., R.S., ch. 254, § 1, 1963 Tex. Gen. Laws
691, 691.  Comparing the language of this former statute to section 16.01, the court
concluded that the Legislature apparently intended to expand the scope of the former
statute.  Janjua, 991 S.W.2d at 423.
	The court stated that, contrary to this legislative intent, Universal construed section
16.01 "so narrowly as to extinguish its practical application."  Id.  The court recognized
that in Fronatt the Texas Court of Criminal Appeals expressly approved of Universal's
statement limiting application of section 16.01 to instruments that can be used only for the
commission of a crime.  But the court concluded that Fronatt is no longer controlling
because the statute was amended after Fronatt was decided.  Id. at 423-24.  When Fronatt
was decided, section 16.01(b) did not contain the language "the possession, manufacture,
or sale of which is not otherwise an offense."  See Act of June 14, 1973, 63rd Leg., R.S.,
ch. 399, § 1, 1973 Tex. Gen. Laws 883, 912.  Before this language was added, section
16.01 appeared to criminalize the possession of contraband, such as silencers and drug
paraphernalia, that was already made illegal by other statutes.  Janjua, 991 S.W.2d at 423.
	Noting that the statute no longer applies to illegal contraband, the court found it
"almost impossible to conceive of an object which may be lawfully possessed, but has no
legitimate use."  Id. at 424.  Therefore, the court determined that under the amended
statute, "criminal instrument" is not limited to objects that can be used only for criminal
purposes.  Id.
	Having concluded that it was not bound by Universal or Fronatt, the court
proceeded to reject Eodice's interpretation of section 16.01 as well.  The court believed
that Eodice presented the exact type of scenario envisioned by the Legislature when it
adopted section 16.01.  Id. at 424-25.  And, in stark contrast to Andrews, the court held
that "the gravamen of the crime remains the actor's intended use of the instrument."  Id.
at 425.  Contra Andrews, 814 S.W.2d at 841 (holding that the gravamen of the offense is
the physical adaptation of the instrument).  The court concluded that "the ontological
essence of what constitutes a criminal instrument under Section 16.01 must be determined
by both (1) its design or adaptation and (2) the facts and circumstances establishing its
intended use."  Janjua, 991 S.W.2d at 426.
	Finally, the court applied its interpretation of section 16.01 to the facts of the case
before it.  The defendant had been convicted of promoting child pornography, and the
State sought to seize and destroy "criminal instruments" used in the crime.  A personal
computer was among the instruments marked for forfeiture.  The State presented evidence
that the computer contained a device for converting moving video images into still
photographs and that numerous files had been created on the hard drive to organize and
store pornographic images.  Id. at 426.  The court held that this evidence established that
the computer had been specially adapted to facilitate the offense of promoting child
pornography, and that the computer was therefore a criminal instrument.  Id. at 426-27. 
But cf. Nobby Lobby, 970 F.2d at 90 (noting that it is possession of an obscene movie that
evinces an intent to display illegal material and that possession of a projector is
irrelevant).  The court limited its holding somewhat by stating that the word "specially" in
the statute means that "the object must be a fundamental or critically important element in
the commission of the intended offense."  Janjua, 991 S.W.2d at 427 n.13.
	The State urges us to follow Janjua and to consider the suspicious circumstances
under which the slim jim was discovered in determining whether it is a criminal
instrument.  We readily agree that these suspicious circumstances provide sufficient
evidence to support a finding that Danzi had the intent to commit an offense.  But we
decline to follow Janjua for several reasons.
	First, and most importantly, it is inconsistent with what we consider to be binding
precedent of the Texas Court of Criminal Appeals.  Although section 16.01 has been
amended since Fronatt was decided, the amendments do not affect the holding of that
case.  Janjua placed particular emphasis on the 1975 amendment to section 16.01(b). 
That amendment excepted from the definition of a "criminal instrument" any instrument
"the possession, manufacture, or sale of which is not otherwise an offense . . . ."  Act of
June 19, 1975, 64th Leg., R.S., ch. 342, § 7, 1975 Tex. Gen. Laws 912, 913-14. 
Approximately one month before it decided Fronatt, the Court of Criminal Appeals
decided Ex parte Harrell, 542 S.W.2d 169 (Tex. Crim. App. 1976).  In Harrell, the
defendant was convicted under section 16.01 for possessing a forged prescription.  542
S.W.2d at 169-70.  The court held that he should have been charged under a more specific
statute that criminalized possession of a forged writing.  Id. at 173.  Thus, the court
effectively excepted instruments that were already rendered illegal by other statutes from
the purview of section 16.01, and the 1975 amendment of the statute merely codified this
exception.  Therefore, when the court decided Fronatt, it was not laboring under the
assumption that    the statute applied to possession of objects rendered illegal by other
statutes.
	Second, we do not consider it "almost impossible to conceive of an object which
may be lawfully possessed, but has no legitimate use."  Janjua, 991 S.W.2d at 424. 
Resourceful miscreants may design or make unique, homemade objects, or adapt existing
ones, to suit their criminal purposes.  See, e.g., Simmons, 690 S.W.2d at 28-29
(homemade key designed to burglarize coin-operated machines).  The Legislature cannot
foresee what these objects might be.  The Legislature may have intended section 16.01 to
cover possession of these objects, which would otherwise go unpunished.
	Third, we are not convinced that the Legislature intended section 16.01 to be
construed more broadly, in all respects, than the statute it replaced.  Under the plain
language of the former statute, it applied to objects "commonly used" to commit burglary
or safecracking.  But under section 16.01, objects must be "specially designed, made, or
adapted for use in the commission of an offense."  "Commonly used" allows for broader
application than "specially designed, made, or adapted."  See Boykin v. State, 818 S.W.2d
782, 785 (Tex. Crim. App. 1991) (holding that courts must generally give effect to the
plain meaning of a statute because that is the best evidence of the Legislature's intent).
	We also note that the practice commentary appended to section 16.01 when it was
first enacted indicates that the Legislature did not intend section 16.01 to be construed
broadly.  See Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989) (gleaning
legislative intent from a practice commentary).  The practice commentary provides:
	Section 16.01 attaches criminal responsibility at a point even earlier than
the attempt section . . . .  It aims at terminating incipient criminal activity,
the existence of which is indicated by conduct involving a 'criminal
instrument.'  The mere possession or manufacture of things specially
designed for the purpose of accomplishing a criminal objective is strong
evidence of criminal intent.  The instrument must be specially designed,
made, or adapted for the commission of an offense, however; things
frequently used in crime, but which have common, lawful uses, are
excluded from the purview of Section 16.01 because possession of such
things, alone, is conduct too ambiguous for imposition of the criminal
sanction.  In addition, the section requires proof of specific intent to use the
instrument possessed in committing an offense.

Searcy & Patterson, Practice Commentary, 1 Texas Penal Code Annotated § 16.01 
(Vernon 1974), quoted in Eodice, 742 S.W.2d at 846.  The authors' emphasis on the word 
"specially" suggests that the Legislature intended a narrow construction of what 
constitutes a criminal instrument.
	Finally, Janjua conflates two separate elements of the statute.  The statute forbids
possession of "a criminal instrument with intent to use it in the commission of an
offense."  Thus, to be guilty of this offense, a person must (1) possess a criminal
instrument, and (2) have the intent to use it in the commission of an offense.  But rather
than treating intent as a separate element, Janjua folds intent into the definition of
"criminal instrument."  See 991 S.W.2d at 426 (holding that what constitutes a criminal
instrument is determined by both its design or adaptation and its intended use).  We agree
with Eodice and Andrews that intent is a separate element of the offense.  See Andrews,
814 S.W.2d at 841 ("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."); Eodice, 742 S.W.2d at 847 (holding that intent is a separate element and
evidence relating to intent is irrelevant to determining whether an object is a criminal
instrument).
Sufficiency of the Evidence
	We turn, then, to the record to determine whether there was any evidence from
which a rational fact finder could determine that the slim jim was "specially designed,
made, or adapted for use in the commission of an offense." (3)  Tex. Pen. Code Ann. §
16.01(b).  The only evidence that relates to this issue is Officer Kress's testimony that a
slim jim is a "criminal instrument[] frequently used to conduct BMVs, or burglary of
motor vehicles."  We conclude that this evidence is legally insufficient.
	We find support for our conclusion in cases construing analogous statutes that
criminalize possession of a club.  See Tex. Pen. Code Ann. §§ 46.01, 46.02 (Vernon 
2003).  "Club" is defined as an instrument that is "specially designed, made, or adapted
for the purpose of inflicting serious bodily injury or death . . . ."  Id. § 46.01(1). 
Construing this statute, the Texas Court of Criminal Appeals has held, "[t]he fact that an
object is capable of inflicting serious bodily injury or death alone" is insufficient. 
Alexander v. State, 617 S.W.2d 269, 270 (Tex. Crim. App. [Panel Op.] 1981).  The court
reversed a conviction because there was no evidence that the purported club was specially
designed, made, or adapted for that purpose.  Id.  Similarly, proof that an object is
frequently used in crime does not equate with proof that it was specially, designed, made,
or adapted for that purpose.  See Searcy & Patterson, Practice Commentary, 1 Texas
Penal Code Annotated § 16.01 (Vernon 1974).
	In another case construing the definition of "club," the Court of Criminal Appeals
refused to infer from a police officer's description of an instrument as a "club" that the
instrument was specially designed, made, or adapted for the purpose of inflicting serious
bodily injury or death.  See Meza v. State, 652 S.W.2d 399, 400-01 (Tex. Crim. App.
1983).  Similarly, the fact that Officer Kress called the slim jim a "criminal instrument" is
insufficient to sustain the conviction.
	The State argues that the slim jim is analogous to the lock pick that was deemed to
be a criminal instrument in Fronatt.  In Janjua, the court noted, "Even the criminal
instrument found in Fronatt, i.e., a lock pick, is a legitimate tool in the hands of a
locksmith."  Janjua, 991 S.W.2d at 423.  The State asserts that although the slim jim, like
the lock pick, may have had a legitimate purpose in the hands of a locksmith, its purpose
in the hands of Danzi was clearly criminal.  We acknowledge that the Fronatt court did
not recite any direct evidence that the lock pick could be used only for a criminal purpose. 
However, a police officer testified that the lock pick was designed to unlock a particular
type of lock.  Fronatt, 543 S.W.2d at 142.  He also testified that the pick was functional
based on his many years of experience specializing in coin-operated machine burglaries
and observation of similar lock-picking devices.  Id. at 143.  The court apparently
considered this some evidence from which the trial judge could infer that the lock pick
was specially designed for the commission of coin-operated machine burglaries.  In this
case, we have no evidence regarding the slim jim's design.  We also note that because
Fronatt was an appeal from the revocation of probation, the court applied an abuse of
discretion standard to the trial judge's decision, rather than the Jackson v. Virginia
standard that we must apply here.  See id.
Conclusion
 Having determined that the evidence is legally insufficient, we reverse the
judgment of conviction and render a judgment of acquittal.

						SUSAN LARSEN, Justice
March 27, 2003

Before Panel No. 1
Larsen, McClure, and Chew, JJ.

(Publish)
1. We have affirmed Danzi's theft conviction in a separate opinion.  See Danzi v. State, No.
08-02-00150-CR (Tex. App.--El Paso March 27, 2003, no pet. h.) (not designated for
publication).
2. The officers testified that they found some marijuana and marijuana seeds as well.  But
they did not retain the marijuana or the seeds.  Officer Kress did not believe the marijuana was a
usable quantity, but the K-9 officer believed it was.
3. Danzi's testimony indicates that the slim jim could be used for lawful purposes.  He
testified that it was purchased at an Auto Zone and was used to unlock either his car or his
girlfriend's car.  But the trial judge, who was the sole judge of the credibility of the witnesses,
apparently did not credit this testimony.  Given our standard of review, we will not consider this
testimony.

