JOHN PAUL JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 9, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01127-CR
............................
JOHN PAUL JOHNSON, Appellant
v.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from County Criminal Court No. 4
Dallas County, Texas
Trial Court Cause No. MA88-22506-E
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O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion By Justice Whittington
        This is an appeal from a conviction for the offense of unlawfully carrying a club. See Tex. Penal Code Ann. § § 46.01 and 46.02(a) (Vernon 1974). The jury assessed punishment at thirty days confinement in the county jail. In his sole point of error, appellant contends that the evidence is insufficient to support his conviction. We disagree; accordingly, we affirm the judgment of the trial court.
        Appellant was driving an automobile in Highland Park, Texas where he was stopped by a police officer for driving with an expired inspection sticker. When officer, D. R. Loftis approached the car driven by appellant, he smelled burning marijuana. Appellant was the sole occupant of the car. Officer Loftis ordered appellant out of the car and as appellant exited the car, Officer Loftis observed "a club" in between the driver's door and the seat. Appellant was then taken to the police station and charged with unlawfully carrying a club. FN:1
        Section 46.02(a) of the Penal Code provides that "a person commits an offense if he intentionally, knowingly or recklessly carries on or about his person a handgun, illegal knife, or club." The term club is statutorily defined as "an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument and includes but is not limited to a blackjack, nightstick, mace, or tomahawk. . . ." See sec. 46.01(1).
        The fact that an object is capable of inflicting serious bodily injury or death alone does not bring the object within the definition of club set forth in sec. 46.01. See Alexander v. State, 617 S.W.2d 269, 270 (Tex. Crim. App. 1981). The practice commentary to sec. 46.02 notes that:
 
    "Instruments readily capable of inflicting serious bodily injury but not specifically designed to do so, such as baseball bats and rolling pins, are excluded, if a person carrying one of them has intent to use them in inflict injury and his criminal design progresses far enough, however, he can be prosecuted for an attempted or completed assault. . . ."
See also Meza v. State, 653 S.W.2d 399, 400 (Tex. Crim. App. 1983).
        In the instant case, appellant contends that there is insufficient evidence to support his conviction since the State failed to prove that the club found in the car satisfies the statutory definition set forth in sec. 46.01. When the defendant raises the question of sufficiency of evidence after a finding of guilt, the reviewing court must consider all of the evidence in the light most favorable to the prosecution. That is, the standard of review is not whether the evidence at trial establishes guilt beyond a reasonable doubt, but rather upon viewing the evidence in the light most favorable to the prosecution, could any rational trier of fact have found the essential elements of the crime beyond a reasonable doubt. See Lopez v. State, 630 S.W.2d 936, 940 (Tex. Crim. App. 1982); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).
        The record reveals that on trial Officer Loftis testified concerning the club. He stated that he observed the club in plain view between the driver's side door and the front seat of the car and thus, it was subject to seizure under the rule espoused in Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). See also Coe v. State, 683 S.W.2d 431, 434 (Tex. Crim. App. 1984). At trial, the club was admitted into evidence. Officer Loftis described the club as follows:
 
        Q    Has it been adopted to cause bodily injury?
 
        A    It's almost the same size as my nightclub that I have, and it does have tape on it where you can get a good grip.
 
        Q    Have you ever seen that type of club used to inflict bodily injury?
 
        A        Yes I have.
Based upon all the evidence in the record, including the "club" itself and Officer Loftis's testimony, we hold that there was sufficient evidence for the jury to find beyond a reasonable doubt that appellant carried about his person an instrument specifically designed, made or adapted for the purpose of inflicting serious bodily injury or death. We overrule appellant's sole point of error.
        The judgment of the trial court is affirmed.
 
 
 
 
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
881127
 
 
FN:1 Appellant was also charged with possession of marijuana, however that charge and subsequent conviction is before us on a separate appeal and not pertinent to the case at bar. See 05-88-01128-CR.
File Date[11-09-89]
File Name[881127F]