Jerry Sullivan v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-122-CR

JERRY SULLIVAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 13,341

O P I N I O N

Appellant Jerry Ray Sullivan was indicted for the felony offense of Unlawful Possession of a Deadly Weapon in a Penal Institution, enhanced by two previous felony convictions. See Tex. Penal Code 46.10. The indictment alleged in essence that Appellant on or about the 17th day of July 1993, did knowingly, intentionally, and recklessly possess and conceal a deadly weapon to-wit: a spear with a sharpened paper clip at one end, manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, and the said defendant was then and there confined in a penal institution, to-wit: the Hughes Unit. See Tex. Penal Code 1.07(a)(17)(A).

Trial was to a jury which found Appellant guilty. Following the guilty verdict Appellant pled true to the enhancement allegations; whereupon, the trial court found the enhancements to be true and sentenced Appellant to twenty-five (25) years in the Texas Department of Criminal Justice, Institutional Division.

Appellant comes to this court on one point of error asserting that the evidence is both legally and factually insufficient to support the conviction of Appellant for the offense. We overrule Appellant's point and contentions and affirm the judgment of the trial court.

On July 17, 1993, Officer Moore, a correctional officer at the Hughes Unit of the Texas Department of Criminal Justice, Institutional Division, saw Appellant, an inmate at the Hughes Unit, carry a weapon into his cell. Appellant's cell is a one-man cell. Officer Moore notified Officer Perkins to conduct a search of Appellant's cell. Perkins searched the cell and found the weapon which Officer Moore had seen Appellant carry into the cell. The weapon found was a spear-type instrument about 16 to 18 inches in length with a paper clip sharpened to a point on one end and wrapped with tightly-bound paper on the other end.

After Officer Perkins took the weapon in question out of Appellant's cell, he took it to Lieutenant Davis who testified that in the nine years he had been employed at the Texas Department of Criminal Justice he had seen many weapons in the prison system. He further testified that he had seen weapons that looked like the weapon in this case; that he had personal knowledge of incidents that involve weapons such as the weapon in this case; that a weapon such as this could cause various types of injuries; that it could cause a puncturing type wound; it could be a wound that could penetrate a vital organ; it could be a slashing type weapon, depending on the propelling device, by hand or by rubber instruments, and it can do harm. Finally, Davis testified that in his opinion the weapon in this case was designed or made for the purpose of causing death or serious bodily injury.

To prove Appellant guilty of possession of a deadly weapon in a penal institution under the indictment before us, the State must prove that Appellant knowingly, intentionally, and recklessly possessed and concealed a deadly weapon, to-wit: a spear with a sharpened paper clip at one end, manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury. Tex. Penal Code 46.10.

The State may prove that any object other than a firearm is a deadly weapon by producing sufficient evidence that it was in fact "manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury." If the evidence is adequate for such purpose, then it is sufficient to establish the object as a deadly weapon. No other proof is required. In particular, it is not necessary to verify that the object was really capable of causing death, either in the manner of its actual use or in the manner of its intended use. Thomas v. State, 821 S.W.2d 616 (Tex. Crim. App. 1991); Walker v. State, 543 S.W.2d 634, 636-637 (Tex. Crim. App. 1976); Berry v. State, 833 S.W.2d 332, 334 (Tex. App. Waco 1992, no pet.).

The standard of review for a legal sufficiency challenge is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 2788-2789, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989); Geesa v. State, 820 S.W.2d 154, 156 (Tex. Crim. App. 1991).

In the case at bar, we believe that, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that the weapon taken from Appellant was deadly by design, and that the evidence is legally sufficient to sustain the conviction.

Having found the evidence before us to be legally sufficient, we now proceed further to review the factual sufficiency of the evidence to sustain the conviction. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App. Austin 1992, pet. ref'd, untimely filed).

The proper standard of review of factual sufficiency of the elements of the offense is that the court of appeals views all the evidence without the prism of "in the light most favorable to the prosecution," and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, supra. Factual sufficiency review begins with the presumption that the evidence supporting the jury's verdict is legally sufficient, that is to say, constitutionally sufficient for the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. Because the court is not bound to view the evidence in the light most favorable to the prosecution, it may consider the testimony of defense witnesses and existence of alternative hypotheses. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Stone, supra.

After considering and weighing all the evidence, we cannot conclude that the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We, therefore, find the evidence to be factually sufficient.

We accordingly find the evidence supporting Appellant's conviction to be legally and factually sufficient, and overrule Appellant's sole point of error.

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance and

Justice James (Retired)

Affirmed

Opinion delivered and filed August 6, 1997

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