Harris v. State

• Decision Date: 10 May 1990
• Docket Number: No. A14-87-946-CR,A14-87-946-CR
• Citation: 790 S.W.2d 778
• Parties: Ricky Lee HARRIS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 778

790 S.W.2d 778

Ricky Lee HARRIS, Appellant, v. The STATE of Texas, Appellee.

No. A14-87-946-CR.

Court of Appeals of Texas Houston (14th Dist.).

May 10, 1990.

Greg Heath, Houston, for appellant.

Alan Curry, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and MURPHY, JJ.

OPINION

MURPHY, Justice.

Ricky Lee Harris appeals his conviction of the offense of unlawful use of a criminal instrument for which the jury assessed punishment of three years probation and a fine of $4500.00. In five points of error, appellant claims error in the trial court's denial of his motion for instructed verdict and in the jury charge. Because we find the trial court should have granted appellant's motion for instructed verdict on the ground that there was no evidence to show that the electric service meter lockband key constituted a criminal instrument, we reverse.

An employee of Houston Lighting & Power Company ("HL & P"), Charles Riddle, testified that he was contacted by Bill Dillman, the owner of Guardian Electric, who told Riddle about appellant's offer to sell Dillman an electric service meter lockband key used to open electric meters. Two meetings were arranged at which appellant, Dillman, Riddle, and another HL & P employee were present. At these meetings, appellant sold Dillman a lockband key. Riddle voice taped both meetings with appellant and these tapes were played for the jury and admitted into evidence.

Riddle testified that, inside the city limits of Houston, a licensed electrician can remove an electric meter. After a person enters the meter, Riddle explained that wires can be installed to bypass the meter, reducing or eliminating the registration of electricity in the meter. Riddle testified that appellant discussed this type of "meter tampering" at the meetings. Riddle admitted that appellant refused to sell the key to anyone other than an electrician. Although Riddle agreed that such keys could have legitimate uses, such as for emergencies, he testified that appellant did not mention a legitimate use as his purpose in selling the key.

In point of error three, appellant claims the trial court erred in not granting appellant's motion for an instructed verdict as a matter of law. Appellant asserts that the lockband key cannot constitute a criminal instrument since testimony revealed that such a key has legitimate uses. We agree.

At the outset, we note that where an appellant challenges the trial court's denial of a motion for instructed verdict, the test is whether there is any evidence that would support a verdict of guilty. Williams v. State, 680 S.W.2d 570, 575 (Tex.App.--Corpus Christi 1984), pet. ref'd, 692 S.W.2d 100 (Tex.Crim.App.1985). If so, the fact issue raised is a question for the jury and not a question of law for the court. Id. (citing to McKenzie v. State, 617 S.W.2d 211, 218 (Tex.Crim.App.1981)).

Appellant was charged with the offense of unlawful use of a criminal instrument under TEX.PENAL CODE ANN. § 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." TEX.PENAL CODE ANN. § 16.01(b) (Vernon Supp.1990). The constitutionality of this statute was challenged in 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), and the court stated that § 16.01

... is a statute aimed an incipient crime--possession of a criminal instrument, with the specific intent to use the instrument in the commission of a crime. Not only is it not aimed at an instrument which has lawful uses, but it is not aimed at overt criminal actions at all.

... The statute, Sec. 16.01 of the Texas Penal Code, 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 or adaptation of the property exclusively for use in criminal activities, before the criminal activities are undertaken or completed.

Id. at 48-51 (emphasis added). This narrow construction was adopted by the Texas Court of Criminal Appeals in Fronatt v. State, 543 S.W.2d 140, 142 (Tex.Crim.App.1976). Thus, convictions under § 16.01 have been upheld only where the instrument was specially designed or made for use in commission of a crime. See Carrasco v. State, 712 S.W.2d 623, 625 (Tex.App.--Corpus Christi 19...