Danzi v. State
Decision Date | 27 March 2003 |
Docket Number | No. 08-02-00151-CR.,08-02-00151-CR. |
Citation | 101 S.W.3d 786 |
Parties | Joshua Van DANZI, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Appeals |
Stephanie Michelle Duecker, Richardson, for Appellant.
Tom O'Connell, Criminal Dist. Atty., McKinney, for appellee.
Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
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.
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.).
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,
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.... "
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) A person commits an offense if
(1) he possesses a criminal instrument with intent to use it in the commission of an offense; or
(2) 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.
(b) 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.
(c) 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) ( ); Harris v. State, 790 S.W.2d 778, 780 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd) ( ).
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...
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