Robert Charles Horton v. The State of Texas--Appeal from 278th District Court of Madison County

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IN THE

TENTH COURT OF APPEALS

 

No. 10-96-001-CR

 

ROBERT CHARLES HORTON,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 278th District Court

Madison County, Texas

Trial Court # 9261

 

O P I N I O N

 

A jury convicted Robert Charles Horton of possessing a deadly weapon in a penal institution and assessed punishment at three years in the Texas Department of Criminal Justice-Institutional Division and a $2,500 fine. Tex. Penal Code Ann. 46.10 (Vernon 1994). Horton appeals on two points. In point one, he challenges the factual sufficiency of the evidence to support his conviction. His second point alleges that the court erred when it denied his request to include in the charge a lesser-included offense. We will affirm.

THE EVIDENCE

CURTIS FRANKS

Curtis Franks, an officer at Texas Department of Criminal Justice, Ferguson Unit, Midway, Texas, testified that on February 8, 1993, while he was monitoring cell block P, he observed Inmate Damion Hunt jump from row two of P Block down to row one. Immediately behind Hunt, Franks saw Inmate Horton running after Hunt. Franks broke up the chase, took Inmate Horton to the Segregation Office, and reported the incident to his supervisor. Franks noticed a large cut on Inmate Hunt's neck. Shortly afterwards, Inmate James Rhodes approached Franks giving him a legal pad binder with some razor blades attached by string. Franks testified that this type of instrument could be used to cut someone and it was a prohibited weapon since it presented a hazard to the inmates and officers. On cross-examination, Franks admitted that either inmate could have possessed the razor blade.

ANTHONY CRAIGER

Anthony Craiger, a corrections officer at the Ferguson Unit, testified that on February 8, 1993, he was "racking" row two. As he opened the row-two cell doors to release the prisoners from their cells, he observed Inmate Horton leave his cell and attack Inmate Hunt. Inmate Horton hit Hunt on the head with "something that appeared to be a lock." Then, Horton swiped at Hunt in a "cutting motion." Craiger testified that the razor blade embedded in the binding of a legal pad appeared to be the object that Horton used to cut Hunt although at the time of the assault he only "vaguely" saw the object. He also testified that generally inmates are allowed to have writing tablets and razor blades, but the inmates are not allowed to have them in that configuration. Thus, he opined that the razor blade attached to a legal pad was manifestly designed, made, or adapted for the purpose of cutting someone.

A. P. MERILLAT

A. P. Merillat, an investigator with the Huntsville Special Prosecutor's Office, testified that based on his training and experience, he believed that the razor blade attached to the binding of a legal pad was capable of causing serious bodily injury. He explained that such a weapon could cause disfigurement leaving large scars especially if a prisoner used the weapon to slash a face or throat. The razor blade also "could put an eye out." He further testified that if the razor blade were used to slash wrists, it could result in death. When asked if the razor blade was manifestly designed, made, or adapted for some other purpose than it was originally intended, Merillat agreed explaining that the razor blade was designed to hurt someone and it could inflict serious bodily injury. Additionally, the slashing manner in which the instrument was used was capable of causing serious bodily injury or death. On cross-examination, he acknowledged that no evidence existed indicating that Horton had cut Hunt's wrist or attempted to slash his eyes.

AUGUSTIN CASTILLA

Augustin Castilla, a prisoner, testified that on February 8, 1993, he shared a cell with Horton at the Ferguson Unit. He testified that he had heard Hunt threatening to make sexual advances toward Horton and had observed an earlier fight between the two. On February 8, 1993, Castilla was in the day room, located below row two. He watched the fight between Horton and Hunt noting that they were hitting each other and that he did not see any weapons.

CYRON HICKS

Cyron Hicks, also a prisoner, testified that while he was imprisoned at Coelfield Unit, Hunt had attempted to make sexual advances toward him, but when he refused, Hunt cut his hand with a piece of glass leaving scars.

ROBERT EDMINSTON

Robert Edminston, supervisor of investigators for Inmate Legal Services, testified that by "touch compression," the razor blade retracted into the legal pad base, and the blade was not very thick. Thus, it "would be extremely unusual or remote to be able to hurt someone very seriously in my opinion." On cross-examination, Edminston admitted that the razor blade was not in its original condition and that it was adapted for some purpose, but "the potentiality of the capability of this instrument to inflict serious bodily injury or death is not nonexistent or remote."

Horton argues that the State did not present any evidence that he actually used or possessed the razor blade. He also contends that the State did not prove that the razor blade could inflict serious bodily harm. Under section 46.10, "a person commits an offense if, while confined in a penal institution, he intentionally, knowingly, or recklessly 1) carries on or about his person a deadly weapon; or 2) possesses or conceals a deadly weapon in the penal institution." Tex. Penal Code Ann. 46.10. To be deadly, a weapon must be manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or its manner of use or intended use be capable of causing death or serious bodily injury. Id. 1.07(a)(17) (Vernon 1994). Evidence that a weapon is deadly by design is "fully adequate" to support a deadly weapon finding; thus, the State is not required to prove the manner of use or intended use if it proves deadly design. Thomas v. State, 821 S.W.2d 616, 618 (Tex. Crim. App. 1991); see also Lisai v. State, 875 S.W.2d 35, 38 (Tex. App. Texarkana 1994, pet. ref'd) (holding that a razor blade with an attached handle was a deadly weapon when two witnesses testified that it was adapted and designed to cause serious bodily injury).

FACTUAL SUFFICIENCY

Appellant asserts in his first point that the jury's verdict was overwhelmingly against the weight of the evidence because a razor blade embedded in the binding of a legal pad was not a deadly weapon; it was incapable of inflicting serious bodily injury or death. The courts of appeals can review the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). A Clewis review allows the courts of appeals to consider all the evidence setting aside the verdict only if it is "so contrary to the overwhelmingly weight of the evidence as to be clearly wrong and unjust." Id. (citing Stone v. State, 823 S.W.2d 375, 381 (Tex. App. Austin 1992, pet. ref'd, untimely filed)).

The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Chamber v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury "can choose to believe all, some, or none of the testimony presented by the parties." Chambers, 805 S.W.2d at 461. In light of that, we will consider all the evidence and only set aside the verdict if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129.

After hearing all the evidence, the jury found Horton guilty of possession of a deadly weapon in a penal institution. The testimony concerning whether Horton actually possessed the razor blade was conflicting. Officer Craiger testified that he saw Horton swipe at Hunt in a cutting motion, and he later identified the instrument in Horton's hand as the razor blade. // In support of Craiger's observations, Officer Franks testified that after breaking up the chase between Hunt and Horton, he noticed a cut on Hunt's neck. Augustin Castillo, who was not on the same floor, testified that he saw no weapons. The jury listened to this conflicting testimony, but it chose to disregard Castillo's testimony and to believe Officer Craiger and Officer Franks. Consequently, the jury rejected Horton's theory that he did not possess the razor blade.

As to the deadly weapon finding, each side presented its own expert. The State's expert, Merillat, testified that he believed the razor blade was capable of inflicting serious injury or death because of the disfigurement it could cause. He also testified that not only was the instrument manifestly designed, made, and adapted for the purpose of inflicting serious bodily injury or death, but the manner of its use was also capable of causing serious bodily injury or death. Horton's expert, Edminston, on the other hand, testified that because the blade retracted, he believed that the blade could not cause serious bodily harm or death. Here again, the jury rejected Horton's expert, Edminston, and chose to believe Merillat.

Having examined 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. Clewis, 922 S.W.2d at 129; Stone, 823 S.W.2d at 381. Thus, we overrule point one.

LESSER-INCLUDED OFFENSE

Horton's second point complains that the trial court erred by refusing the defense's charge on an unlawful use of a criminal instrument. See Tex. Penal Code Ann. 16.01 (Vernon 1994). Horton contends that unlawful use of a criminal instrument is a lesser-included offense of possession of a deadly weapon in a penal institution. He argues that he tendered a charge containing an instruction on the lesser-included offense of unlawful use of a criminal instrument, and the trial court wrongfully rejected his requested charge.

A trial court must instruct the jury on a lesser-included offense if it meets the two-prong test under Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert denied, ---U.S.---, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993). Under prong one, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. at 673. Prong two requires a showing that some evidence in the record "would permit a jury rationally to find that if the defendant is guilty, he is only guilty of the lesser offense." Id. (clarifying the test of Royster v. State, 622 S.W.2d 422, 446 (Tex. Crim. App. 1981). The court will determine whether an offense is a lesser-included offense of the charged offense on a case-by-case basis. Bartholomew v. State 871 S.W.2d 210, 212 (Tex. Crim. App. 1994); Livingston v. State, 739 S.W.2d 311, 336 (Tex. Crim. App. 1987), cert denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 895 (1988); Broussard v. State 642 S.W.2d 171, 173 (Tex. Crim. App. 1982); Day v. State, 532 S.W.2d 302, 315-16 (Tex. Crim. App. 1976) (op. on reh'g).

According to the Code of Criminal Procedure, an offense is a lesser-included offense of the greater offense if 1) it is established by the same or less than all facts required to establish the greater offense; 2) it differs from the greater offense only in the respect that proof of a less serious injury or risk of injury is sufficient to establish it; 3) it differs from the greater offense only in the respect that proof of a less-culpable mental state is sufficient to establish it; or 4) it consists of an attempt to commit the greater offense or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). The offense of possessing a deadly weapon in a penal institution requires proof that 1) the defendant intentionally, knowingly, or recklessly 2) carries, possesses, or conceals a deadly weapon 3) in a penal institution. Tex. Penal Code Ann. 46.10. On the other hand, a defendant can only be convicted of unlawful use of a criminal instrument if the state establishes that 1) the defendant possessed a criminal instrument 2) with the intent to use it in the commission of an offense. Id. 16.10(a)(1) (Vernon 1994).

Horton argues that unlawful use of a criminal instrument is a lesser-included offense of possession of a deadly weapon in prison. We disagree. The offense of unlawful use of a criminal instrument requires a higher mental state than possession of a deadly weapon in a penal institution. The State must prove intent to use with the former while the latter only requires intentional, knowing, or reckless possession. See id. 16.10, 46.10. Although the State did attempt to prove the razor blade was a deadly weapon by introducing evidence of the manner of use, proof of use alone does not create a lesser-included offense. A lesser-included offense must fit one of the four categories of article 37.09 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.09. Because unlawful use of a criminal instrument does not meet any of the categories of article 37.09, we overrule point two.

CONCLUSION

Having found that the evidence is factually sufficient and that the court correctly refused Horton's requested charge on unlawful use of a criminal instrument, we affirm the judgment.

 

BILL VANCE

Justice

 

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 2, 1996

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