Eodice v. State

Decision Date23 December 1987
Docket NumberNo. 3-87-059-CR,3-87-059-CR
Citation742 S.W.2d 844
PartiesRobin Craig EODICE, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

James H. Kreimeyer, Belton, for appellant.

Arthur C. Eads, Dist. Atty., James T. Russell, Administrative Asst., Belton, for appellee.

Before POWERS, BRADY and ABOUSSIE, JJ.

PER CURIAM.

After finding appellant guilty of use of a criminal instrument, the district court assessed punishment at imprisonment for four years and a $500 fine, suspended imposition of sentence, and placed appellant on probation. Tex.Pen.Code Ann. § 16.01 (Supp.1987). 1 The only issue on appeal is the sufficiency of the evidence to sustain the conviction.

Shortly after 2:00 a.m. on August 3, 1986, Killeen police officer Michael Brown observed appellant standing in the doorway of a pawn shop not then open for business. When Brown approached appellant, he saw that appellant was carrying a pair of heavy black leather gloves. Appellant explained to Brown that he used the gloves as driving gloves and that he had been looking in the pawn shop out of curiosity. Inside appellant's car, which was parked nearby, Brown observed several tools and other items, including a feeler gauge, circuit tester, and bent cotter pin.

At this point, Brown frisked appellant and found a military-issue flashlight with a red lens inside one of appellant's socks. Inside the other sock Brown found a pry bar approximately fourteen inches long. Both the flashlight and the pry bar had been covered by the legs of appellant's pants.

Appellant was placed under arrest and transported to the Killeen police station. During the booking process, a card was found in appellant's wallet indicating that he had been certified by the state of California as an "alarm agent." At the time of the alleged offense, however, appellant was a member of the military stationed at Fort Hood. Appellant testified that he served as a helicopter crew chief and that he used the various items found on his person and in his car to repair helicopters.

An examination of the exterior of the pawn shop disclosed no evidence of any attempt to break and enter the building.

As described in the indictment, the criminal instruments allegedly possessed by appellant were "a steel pry bar and a bent cotter pin, and a filtered-lens flashlight, and a gap-feeler gauge, and an electric circuit tester." Appellant contends, and this Court agrees, that the evidence does not establish that these items were criminal instruments within the meaning of § 16.01.

Section 16.01(b) defines a "criminal instrument" as "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." In the practice commentary to § 16.01, it is observed:

Section 16.01 attaches criminal responsibility at a point even earlier than the attempt section (15.01). 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 and Patterson, Practice Commentary, 1 Tex.Pen.Code Ann. 542 (1974) (emphasis in original). In the only published opinion discussing the meaning of § 16.01(b), it is stated:

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 or adaptation of the property exclusively for use in criminal activities, before the criminal activities are under taken or completed.

Universal Amusement Co. v. Vance, 404 F.Supp. 33, 51 (S.D.Tex.1975) [holding that an ordinary motion picture projector used to show a pornographic movie was not a criminal instrument]. Universal Amusement was quoted with approval in Fronatt v. State, 543 S.W.2d 140 (Tex.Cr.App.1976), a case involving a challenge to the constitutionality of § 16.01.

By emphasizing the word "specially," the Practice Commentary identifies the key term in § 16.01(b). 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. 2 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.

In Simmons v. State, 690 S.W.2d 26 (Tex.App.1985, no pet.), the defendant was arrested at a laundromat in which several coin-operated machines had been burglarized. He had in his possession a homemade coin-operated machine key with adjustable pins so as to make it adaptable to different locks. The arresting officer testified that, based on his experience, the only use of such a key was the commission of burglaries of coin-operated machines. Other witnesses testified that they saw appellant use the key to open the machines in the laundromat. The court of appeals found this evidence sufficient to support the conviction under § 16.01.

In Carrasco v. State, 712 S.W.2d 623 (Tex.App.1986, no pet.), a thin wire with a loop on the end was found concealed in the defendant's pants following his...

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11 cases
  • Nobby Lobby, Inc. v. City of Dallas
    • United States
    • U.S. District Court — Northern District of Texas
    • April 24, 1991
    ...instrument has been found not to be a criminal instrument and the convictions under Section 16.01 struck down. For example, in Eodice v. State, 742 S.W.2d 844, 847 (Tex.App.—Austin 1987, no pet.), the court found that there was no evidence that a circuit tester was a criminal instrument eve......
  • Nobby Lobby, Inc. v. City of Dallas
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 1, 1992
    ...meter lockband key where court found legitimate uses for key in addition to intended use of "meter tampering"). See also Eodice v. State, 742 S.W.2d 844, 846-47 (Tex.App.--Austin 1987, no pet.) (per curiam) (finding no evidence supported district court's conclusion that circuit tester, feel......
  • Guerra v. State
    • United States
    • Texas Court of Appeals
    • June 5, 2013
    ...parte Chunn, 831 S.W.2d 326 (Tex.Crim.App.1992); Danzi v. State, 101 S.W.3d 786, 790 (Tex.App.-El Paso 2003, pet. ref'd); and Eodice v. State, 742 S.W.2d 844, 846 (Tex.App.-Austin 1987, no pet.). We find each of those cases to be distinguishable. Ex parte Andrews was a pretrial habeas corpu......
  • Danzi v. State
    • United States
    • Texas Court of Appeals
    • March 27, 2003
    ...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 In order to be a criminal instrument within the meaning of the statute, it is not enough tha......
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 2
    • May 4, 2021
    ...Enmund v. Florida 458 U.S. 782 (1982). 6:380 Enriquez v. State 826 S.W.2d 191 (Tex. App.—El Paso 1987, no pet.) 3:660 Eodice v. State 742 S.W.2d 844 (Tex. App.—Austin 1987, no pet.) 5:10 Ervin v. State 367 S.W.2d 680 (Tex. Crim. App. 1963) 3:1820 Escobar v. State 133 S.W.2d 781 (Tex. Crim. ......
  • Criminal instruments
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 1
    • May 4, 2021
    ...that while the commission of an offense does not have to be the instrument’s only use, it must be its primary purpose. Eodice v. State , 742 S.W.2d 844 (Tex.App.-Austin 1987, no pet.) (defendant acquitted for possession of circuit tester, twisted cotter pin, and feeler gauge, which could ha......

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