Richard Laredo, Jr. v. State ( 2012 )

Affirmed and Memorandum Opinion filed August 14, 2012.
In The
Fourteenth Court of Appeals
NO. 14-10-01169-CR
RICHARD LAREDO, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1282562
MEMORANDUM OPINION
A jury convicted appellant, Richard Laredo, Jr., of possession of a prohibited item
in a correctional facility. In three issues, appellant contends the evidence is legally
insufficient to support his conviction. We affirm.
I. BACKGROUND
During early March 2010, appellant was an inmate at a Harris County correctional
facility. Appellant was housed on the sixth floor of the facility. There were six separate
jail cells on each side of the floor. Each cell was secured by a door which could be
locked. There were four sets of bunk beds per cell; appellant’s bed was the lower bunk
closest to the door. Each side of the floor had a separate common area with six tables. In
between the sides was a “control center” where detention officers were stationed.
On March 5, 2010, Officer Grizzle observed the followed events. Appellant was
heating water in the common area when two other inmates (the “attacking inmates”)
confronted him because they were agitated he was using the water heater. After the
altercation, appellant returned to his cell and paced back and forth. The attacking inmates
sat at one of the tables in the common area and played dominoes; adjacent to the table
was a large pillar. Appellant exited his cell and walked behind the pillar. Officer Grizzle
was unable to observe what occurred behind the pillar. However, after five seconds, he
saw appellant run back into his cell. The attacking inmates followed appellant and began
punching him. Officer Grizzle did not see appellant or the attacking inmates use a
weapon.
During the altercation, there were approximately fifty-four other inmates on the
floor. Officer Grizzle ordered all inmates to return to their cells. The inmates—including
appellant and the attacking inmates—complied. Officer Grizzle entered the cell block
area. He noticed that neither of the attacking inmates appeared injured, but appellant
sustained a “busted lip” and swollen cheek. Officer Grizzle asked Officer Haney to
remove the attacking inmates and question them regarding the incident. Officer Grizzle
testified that one of the attacking inmates, named Tompkins, stated “[appellant] came at
them with a shank.”1 Officer Haney placed Tompkins back in his cell, but Tompkins ran
out and resumed fighting with appellant.
After officers re-established control of the situation, Officer West strip-searched
appellant. Officer West discovered a pouch sewn into the waistband of appellant’s
county-issued pants. In the pouch, officers found “pens, razor blade, a complete razor, a
loose blade, a modified ink pen with a needle attached to it, [and] loose pills.” Twice a
1
Appellant did not object to this hearsay testimony.
2
week, inmates were provided disposable razors which they were required to return after
shaving; outside these two time periods, inmates were not allowed to possess razors.
Inmates were also known to use pens to make tattooing instruments, similar to the
modified pen recovered from appellant. Inmates were not allowed to possess tattooing
instruments.
Later that evening, Officer Lipsanen arrived at the correctional facility. A
supervising sergeant informed Officer Lipsanen that an inmate was rumored to possess a
shank and ordered Officer Lipsanen to search the cell block. Officer Lipsanen first
searched a trash can removed from the common area in appellant’s cell block; the
supervising sergeant told Officer Lipsanen there might be contraband in the trash can.
After removing the trash bag, Officer Lipsanen discovered a “2 or 3” inch piece of metal
with a sharpened point attached to a toothbrush.
Officer Lipsanen then entered appellant’s cell block and ordered all inmates to
return to their cells. Appellant had been moved to a separate holding tank, but seven or
eight other inmates were present in appellant’s cell during the search. Officer Lipsanen
asked the inmates where appellant’s belongings were located. The inmates directed him
to appellant’s bunk. Officer Lipsanen then inquired whether anyone had “mess[ed]” with
appellant’s belongings. The inmates responded “no.”
Officer Lipsanen opened appellant’s mattress but did not find any weapons. He
then searched a “commissary bag” found under appellant’s bed. The correctional facility
issued each inmate a large, transparent bag in which to store his belongings. The bags
did not lock but were secured with Velcro. Inside the bag, Officer Lipsanen found a
piece of mail with appellant’s name. He also found two wrist braces which each
contained a metal bar used to support a person’s wrist. Officer Lipsanen removed the
bars and observed that they had been sharpened to a point and were capable of being used
to cut and stab.
Appellant was indicted for “unlawfully, intentionally or knowingly possess[ing] a
deadly weapon, to wit: a knife or razorblade, in a correctional facility.” A jury found
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appellant guilty. Pursuant to an agreement between appellant and the State, the trial
court sentenced appellant to thirty years’ confinement.
II. LEGAL SUFFICIENCY
In his first and second issues, appellant contends the evidence is legally
insufficient to support a finding that any item found on appellant’s person or in his cell
block was a deadly weapon or a knife. In his third issue, appellant contends the evidence
is legally insufficient to support a finding that he possessed a deadly weapon.
A. Relevant Law and Standard of Review
Relevant to this case, a person commits possession of a prohibited item in a
correctional facility if he possesses a deadly weapon while in a correctional facility. Tex.
Penal Code Ann. § 38.11(d)(2) (West 2011).2 Appellant was charged with possessing a
deadly weapon, specifically a knife or razor blade.
When reviewing sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746
(Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We
do not sit as thirteenth juror and may not substitute our judgment for that of the fact
finder by re-evaluating weight and credibility of the evidence. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the
fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic facts to ultimate facts. Id. This standard applies equally
to both circumstantial and direct evidence. Id. Our duty as reviewing court is to ensure
2
Appellant and the State both cite Penal Code section 46.10 when describing the underlying
offense. Tex. Penal Code Ann. § 46.10(a) (West 2011) (enumerating elements for offense of “Deadly
Weapon in Penal Institution”). However, based on the indictment and jury charge, it appears appellant
was actually convicted of “Prohibited Substances and Items in Correctional Facility,” Penal Code section
38.11.
4
the evidence presented actually supports a conclusion that the defendant committed the
crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Circumstantial evidence is as probative as direct evidence in establishing guilt of
an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). An inference is a conclusion reached by
considering other facts and deducing a logical consequence from them. Id. at 16.
Speculation is mere theorizing or guessing about the possible meaning of facts and
evidence presented. Id. A conclusion reached by speculation may not be completely
unreasonable, but it is not sufficiently based on facts or evidence to support a finding
beyond a reasonable doubt. Id. Each fact need not point directly and independently to
the appellant’s guilt, as long as the cumulative effect of all incriminating facts is
sufficient to support the conviction. Id. at 13.
Sufficiency of the evidence is measured by elements of the offense as defined in a
hypothetically correct jury charge, which accurately explains the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997).
B. Analysis
In his first issue, appellant contends the evidence is insufficient to support a
finding that any item found on his person or in his cell block was a deadly weapon.
“Deadly weapon” is statutorily defined as “(A) a firearm or anything manifestly
designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17) (West Supp. 2012).
“Serious bodily injury” is defined as “bodily injury that creates a substantial risk of death
5
or that causes death, serious permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.” Id. § 1.07(a)(46).
We hold the evidence supports a finding that the metal bars found in appellant’s
commissary bag were deadly weapons. The bars were originally integral parts of wrist
braces, designed to prevent a person’s wrist from bending. However, the bars had been
removed, sharpened at one end, and replaced in the braces. The jury could have
reasonably found that the bars had been manifestly adapted for the purpose of causing
serious bodily injury. See Thomas v. State, 801 S.W.2d 540, 543 (Tex. App.—Houston
[14th Dist.] 1990) (Brown, C.J., dissenting) (“It cannot be seriously asserted that inmates
are making these shanks to clean their fingernails or to make wood carvings to send home
for the holidays. These weapons have only one purpose: the infliction of serious bodily
injury and/or death.”).3 We overrule appellant’s first issue.
In his second issue, appellant contends the evidence is insufficient to support a
finding that any item found on his person or in his cell block was a knife.4 The term
“knife” was not defined in the jury charge. As a general rule, terms need not be defined
in the jury charge if they are not statutorily defined. Ramos v. State, 303 S.W.3d 302,
308 (Tex. Crim. App. 2009). Jurors are presumed to attach a common understanding to
the meaning of terms. Smith v. State, 297 S.W.3d 260, 275 (Tex. Crim. App. 2009).
“Knife” is commonly defined as “a cutting instrument consisting of a sharp blade
fastened to a handle[;] a weapon resembling a knife.” Webster’s Ninth New Collegiate
Dictionary 664 (9th ed. 1991). It is generally understood that there are many types of
knives, including a “dagger,” which is defined as “a sharp pointed knife for stabbing.”
Id. at 322. Furthermore, under Chapter 46 of the Penal Code (the chapter both parties
3
This court’s majority opinion in Thomas was reversed by the Court of Criminal Appeals, which
concluded that the evidence was sufficient to support a finding the shank was a deadly weapon because it
was manifestly designed, made, or adapted to cause serious bodily injury or death. Thomas v. State, 821
S.W.2d 616, 620–21 (Tex. Crim. App. 1991).
4
As noted above, appellant was charged with possessing a deadly weapon, specifically a knife or
razor blade. We need not decide whether the razor blades found in appellant’s pants constituted deadly
weapons because we conclude the jury could have reasonably determined appellant possessed sharpened
metal bars which were both knives and deadly weapons.
6
wrongly assume applies in this case; see footnote 2, infra) “knife” is defined as “any
bladed hand instrument that is capable of inflicting serious bodily injury or death by
cutting or stabbing a person with the instrument.” Tex. Penal Code Ann. § 46.01(7)
(West Supp. 2011).
We conclude the bars retrieved from the wrist braces fit within the common
definitions provided in the previous paragraph. The bars were long, flat,5 made of metal,
and sharpened at one end, thus resembling a stabbing knife such as a dagger. Several
witnesses testified that the bars were “shanks,” capable of being used to cut or stab
another person. Officer Lipsanen defined “shank” as “slang terminology for a knife or
weapon” and agreed the term can refer to a “custom knife.” Thus, the evidence is legally
sufficient to support a finding that the bars were “knives.” We overrule appellant’s
second issue.
Finally, in his third issue, appellant contends the evidence is insufficient to support
a finding that he possessed a deadly weapon. When reviewing sufficiency of the
evidence supporting a finding that the accused possessed a deadly weapon, we rely on
rules adopted for determining sufficiency of the evidence supporting a finding the
accused possessed a controlled substance. See Ennis v. State, 71 S.W.3d 804, 810 (Tex.
App.—Texarkana 2002, no pet.) (determining whether defendant possessed weapon in
penal institute); Corpus v. State, 30 S.W.3d 35, 37–38 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d) (determining whether defendant possessed firearm). To prove
possession of contraband, the State must show the accused (1) exercised control,
management, or care over the contraband and (2) knew the substance possessed was
contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Roberts v.
State, 321 S.W.3d 545, 548 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); see also
Tex. Penal Code Ann. § 1.07(39) (defining possession as “actual care, custody, control,
5
It is inferable from the record that the bars were flat—they were designed to prevent a person
from bending his wrist.
7
or management”). The State may prove possession through either direct or circumstantial
evidence. Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005).
When the accused is not in exclusive possession or control of the place where
contraband is discovered, the State must show additional facts and circumstances
affirmatively linking the accused to the contraband in order to prove possession. Id. at
406; Roberts, 321 S.W.3d at 549. The number of links is not dispositive; establishing
possession depends on the logical force of all the evidence. Evans, 202 S.W.3d at 162.
The accused’s connection with the contraband must be “more than just fortuitous.”
Poindexter, 153 S.W.3d at 405–06.
Appellant presents several arguments in support of his contention that the
evidence is insufficient to support a finding that he possessed the metal bars: (1) other
inmates had access to appellant’s Velcro-sealed commissary bag and could have placed
the bars in the bag; (2) other inmates had a reason to place the bars in appellant’s bag
because they knew a weapons search was imminent and, thus, needed to dispose of their
own weapons; (3) although other inmates told Officer Lipsanen that nobody had
“mess[ed]” with appellant’s belongings, Officer Lipsanen testified inmates lie to him
“everyday”; (4) no witness testified the bars were analyzed for fingerprint or DNA
evidence; (5) there is no evidence regarding how appellant obtained the wrist braces; and
(6) there is no evidence connecting the metal bars to Tompkins’s statement that appellant
assaulted the attacking inmates with a shank. Nevertheless, for the following reasons, we
conclude the evidence is legally sufficient to support the jury’s possession finding.
First, we agree that the fact other inmates had access to appellant’s commissary
bag weighs against the jury’s finding. However, the evidence indicates that officers
limited their search primarily to appellant’s person and belongings.6 This evidence
weakens appellant’s argument that the inmates may have disposed of their own weapons
because they knew a weapons search would be conducted; i.e., the inmates would not
6
As noted above, Officer Lipsanen also searched a trash can pointed out to him by other officers.
8
need to dispose of their weapons if officers focused their search to appellant’s
belongings. Moreover, the jury could have reasonably inferred that the risk of being seen
by officers or other inmates was a strong deterrent for any inmate considering placing a
weapon in appellant’s bag. Although there is no direct evidence that officers continued
monitoring the inmates following the altercation, such a finding is reasonably deductible
from the evidence. When Officer Lipsanen arrived at the cell block, he ordered all
inmates to return to their cells. He then asked a “pod deputy” to open appellant’s cell.
This evidence supports an inference that officers continued to patrol the cell block.7
Obviously, the inmates and officers were aware appellant’s belongings would be
searched following the altercation. The jury could have reasonably found that an inmate
or group of inmates would not place items into appellant’s bag because of the risk of
apprehension by officers or other inmates.
Second, the fact that the metal bars were not tested for fingerprints or DNA neither
proves nor disproves appellant possessed the bars. Additionally, the State’s failure to
present evidence regarding the methods or means appellant employed to obtain the wrist
braces did not render the evidence insufficient to establish possession. Appellant could
have received the braces from the medical clinic, stolen them from another inmate, or
bartered for them. It was unnecessary for the State to prove the source of the braces; it is
well-known that jailhouse contraband is brought into a correctional facility
surreptitiously.
Third, after the initial confrontation between appellant and the attacking inmates,
appellant returned to his cell and paced back and forth. He then walked behind the pillar
near where the attacking inmates were playing dominoes and suddenly ran back to his
cell; the attacking inmates followed and assaulted appellant. Later, one of the attacking
inmates, Tompkins, stated that appellant had come “at them with a shank.” Additionally,
7
Officer Lipsanen testified that he began conducting his search within five minutes after arriving
at the correctional facility. Appellant argues inmates could have placed the wrist braces in his bag during
the five-minute period. However, as discussed, the evidence supports an inference that officers continued
to monitor the inmates during that period.
9
appellant was found with a homemade tattooing instrument and a disassembled
disposable razor. This evidence supports a finding that appellant manufactured and
carried contraband while in the correctional facility and displayed a shank on the day the
metal bars were found in his bag.
Fourth, circumstances surrounding discovery of the metal bars tend to incriminate
appellant. Officer Lipsanen testified he did not determine the bars had been modified
until he removed them from the wrist braces; until that point, the bars were merely
incorporated parts of orthotics, not readily observable weapons. It is reasonable to
assume that other inmates would not have used the seemingly innocuous wrist braces if
they had wanted to frame appellant by placing weapons in his bag. Furthermore,
appellant’s behavior in sewing a contraband pouch to the waistband of his pants is
consistent with hiding sharpened bars in the braces.
Accordingly, viewing the evidence as a whole, we conclude there are sufficient
affirmatively links connecting appellant to the metal bars. See Evans, 202 S.W.3d at 162
(“It is . . . not the number of links that is dispositive, but rather the logical force of all of
the evidence, direct and circumstantial.”). We hold a rational juror could find beyond a
reasonable doubt that the bars belonged to appellant and were not placed in his bag by
other inmates. Appellant’s third issue is overruled.
We affirm the trial court’s judgment.
/s/ Charles W. Seymore
Justice
Panel consists of Justices Seymore, Boyce, and Mirabal.8
Do Not Publish — Tex. R. App. P. 47.2(b).
8
Senior Justice Margaret Garner Mirabal sitting by assignment.
10