Carlos Fernandez v. The State of Texas--Appeal from 278th District Court of Madison County

NO. 10-88-016-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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CARLOS FERNANDEZ,

Appellant

v.

STATE OF TEXAS,

Appellee

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From the 278th Judicial District Court

Madison County, Texas

Trial Court # 8261

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O P I N I O N

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Appellant was indicted for the offense of carrying a deadly weapon while confined in a penal institution. See Act approved April 25, 1985, 69th Leg., R.S., ch. 46, 1, 1985 Tex. Gen. Laws 436, amended by Act approved June 18, 1987, 70th Leg., R.S., ch. 714, 1, 1987 Tex. Gen. Laws 2589 (current version at Tex. Penal Code Ann. 46.11 (Vernon 1989)). He was found guilty by a jury and the court assessed punishment at ten years in prison. We will reverse.

In Appellant's first point of error he complains that there was insufficient evidence to support the jury's finding of guilt. In order to reach a guilty verdict the jury must have found that Appellant carried a deadly weapon on or about his person. The statute under which Appellant was charged provided that "A person commits an offense if, while confined in a penal institution, he intentionally, knowingly, or recklessly carries on or about his person a deadly weapon." See Act approved April 25, 1985, 69th Leg., R.S., ch. 46, 1, 1985 Tex. Gen. Laws 436. // Thus, the State was required to prove that Appellant "carried on or about his person a deadly weapon."

It is inherent that carrying a weapon on or about the person includes an element of asportation. Christian v. State, 686 S.W.2d 930, 933 (Tex.Crim.App. 1985). Additionally, to carry a weapon on or about the person means that it must be convenient in access, and within such a distance that the party could retrieve the weapon without materially changing his position. Spears v. State, 17 S.W.2d 809, 810 (Tex.Crim.App. 1929).

When we review a sufficiency of the evidence point we must "determine whether `after viewing the evidence in the light most favorable to the prosecution . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989). We find the record to be void of evidence regarding the "carrying" element of the offense charged. Here, the alleged deadly weapon was a sharpened metal shaft known as a "shank" which was located on a shelf in a sealed paper envelope. The evidence does not indicate that the "shank" was in Appellant's immediate personal possession and convenient in access, and within such a distance that he could retrieve the weapon without materially changing his position. Therefore, we cannot say, even when viewing the evidence in the light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

This cause is reversed and remanded to the trial court with instructions to enter a judgment of acquittal.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Reversed and remanded with instructions

Opinion filed and delivered July 11, 1991

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