George David Douglas v. State ( 1990 )

Nowlin v. State

AFFIRMED

MARCH 29, 1990

NO. 10-89-066-CR

Trial Court

# 29,019

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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GEORGE DAVID DOUGLAS NOWLIN,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

* * * * * * * * * * * * *

From 66th Judicial District Court

Hill County, Texas

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O P I N I O N

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A jury convicted Appellant of the burglary of a vehicle and assessed his punishment at five years in prison. See TEX. PENAL CODE ANN. § 30.04 (Vernon 1989). Appellant complains that the court erred when it: (1) admitted into evidence his confession which was not given voluntarily and was insufficient to support a conviction; (2) refused to quash the indictment which was based upon an alleged unconstitutionally vague statute; and (3) did not instruct the jury on the law of parties. The judgment will be affirmed.

Prior to his trial, Appellant filed a motion to suppress his confession on the grounds that it violated his privilege against self-incrimination, that he had not knowingly waived his right to counsel, and that the confession was based on an illegal indictment. At the hearing on the motion to suppress, Officer Ellis testified about the circumstances surrounding the confession, and the State offered the confession into evidence. Appellant objected that the confession was not voluntary, but he did not cross-examine Ellis or offer any evidence to controvert Ellis' testimony. The court determined that Appellant's confession was made voluntarily, and subsequently filed findings of fact to that effect. Appellant's first point is that the court erred when it determined that the confession was voluntary and allowed it to be admitted into evidence.

At a hearing on the issue of voluntariness of a confession, the court is the judge of the credibility of the witnesses and the weight of their testimony. White v. State, 591 S.W.2d 851, 860 (Tex. Crim. App. 1979). The court's findings will not be disturbed on appeal unless there was an abuse of discretion. Barton v. State, 605 S.W.2d 605, 607 (Tex. Crim. App. [Panel Op.] 1980). Here, Appellant did not cross-examine Ellis and failed to offer any evidence to show that the confession was not voluntary. Furthermore, the court's findings explained its reasons for concluding that the statement was voluntary. See Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim. App. 1987). The court did not abuse its discretion when it held that the confession was admissible.

Appellant also argues in point one that the confession was insufficient to support his conviction. As long as there is some evidence to corroborate a confession, it may be used to establish that the crime was committed. Self v. State, 513 S.W.2d 832, 835 (Tex. Crim. App. 1974). Scott McCowan testified that a lifejacket and some seats, which were taken from his boat without permission, were later recovered under a nearby tree. Donald Gibson, McCowan's neighbor, saw Appellant in the neighborhood the night of the burglary. Based on this testimony, the confession, and the record as a whole, the evidence was sufficient to support Appellant's conviction beyond a reasonable doubt. See Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). Point one is overruled.

Appellant filed a motion to quash the indictment. His second point is that, because the statute upon which the indictment was founded is unconstitutionally vague, the court erred when it denied his motion. Specifically, he asserts that the statutory definition of "vehicle" is vague and ambiguous, and that it fails to inform him of the charges against him.

A vague criminal statute is one that fails to give fair warning of what is prohibited and encourages arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222 (1972); Goocher v. State, 633 S.W.2d 860, 865 (Tex. Crim. App. [Panel Op.] 1982). The test for vagueness is whether persons of ordinary intelligence must necessarily guess at the statute's meaning and differ on its application. Connally v. General Const. Co., 269 U.S. 385, 46 S. Ct. 126, 127, 70 L. Ed. 2d 322 (1926). Therefore, a criminal statute must be drawn with such precision that ordinary people can intelligently determine the lawful course to follow. Id. 46 S.Ct. at 128.

Section 31.07 of the Penal Code, which governs the unauthorized use of a vehicle, provides that: "A person commits an offense if he intentionally or knowingly operates another's boat, airplane, or motor-propelled vehicle without the effective consent of the owner." TEX. PENAL CODE ANN. § 31.07(a) (Vernon 1989) (emphasis added). Clearly, a "boat" is a vehicle under this section. Section 30.01 defines "vehicle" as including "any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation, except such devices as are classified as ``habitation.'" Id. at § 30.01(3). Section 30.01 is drawn with such precision that ordinary people can determine the lawful course to follow and need not guess at its meaning. Point two is overruled.

Although he neither objected to the charge nor requested an instruction on the law of parties, Appellant complains in point three that the court erred when it failed to instruct the jury on the law of parties. An instruction on the law of parties is only required when the defendant, if guilty, is guilty only as a party and not as a primary actor. Rasmussen v. State, 608 S.W.2d 205, 210 (Tex. Crim. App. [Panel Op.] 1980) (on rehearing). Appellant admitted in his confession that he reached into the boat and removed a lifejacket. Under these facts, Appellant could have been convicted as a primary actor of the offense charged, and an instruction on the law of parties was not required. See id. Furthermore, he waived any error when he failed to object or request the instruction. See Bowers v. State, 570 S.W.2d 929, 931 (Tex. Crim. App. [Panel Op.] 1978).

Point three is overruled. The judgment is affirmed.

                     BOB L. THOMAS

DO NOT PUBLISHChief Justice

eapon during the commission of the offense and assessed punishment at fifteen years in prison and a $2,500 fine. Gooden's sole point of error is that the evidence is insufficient to prove that the broken bottle alleged in the indictment is a deadly weapon.

      Richard Castle, a sixteen-year-old high school student, testified that on the night of April 1, 1992, he was walking home at approximately 10 p.m. At the corner of Bryan and Martin Luther King streets, he saw two men appear from behind a shed. As Castle approached, one of the men broke a bottle against the curb. The same man grabbed Castle by the arm, stuck the broken bottle to his throat, and told him to "get out of the jacket." Castle recognized the man with the bottle as Gooden, because they had lived in the same apartment complex some years before. Castle's jacket was black with "Raiders" spelled out on the back. A third male appeared during the confrontation and told him to get out of the jacket. As Castle took the jacket off, he was cut underneath his lower lip. He did not know exactly how he got cut. Gooden then struck him on the top of his head, and one of the other assailants tried to stab him with what looked like a knife. Castle required thirteen stitches. He testified that, during the assault, he feared the men were going to hurt him. Castle could not testify as to what type of bottle was used in the assault.

      Harlan Pope, a detective with the Bryan Police Department, testified as an expert. He testified that in his thirteen years of service, he had seen cases where a bottle was used as a deadly weapon. On voir dire, Pope testified that he had not seen the broken bottle used in the assault against Castle, had not talked to Castle, and could not form an opinion on the use of the bottle as a deadly weapon. Pope testified, in response to a hypothetical question, that a broken bottle placed at someone's throat would be capable of causing death and serious bodily injury. He testified that a tearing or laceration to the throat area, which includes the jugular vein and the trachea, could easily cause death or serious bodily injury.

      The standard of review based on a sufficiency challenge is 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. Jackson v. Virginia, 443 U.S. 308, 318-19 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). A deadly weapon, as alleged in this case, is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." See Tex. Penal Code Ann. § 1.07(a)(11)(B) (Vernon 1974). Whether a weapon is deadly is a question for the trier of fact. Griffin v. State, 198 S.W.2d 587, 589 (Tex. Crim. App. 1946). In determining whether a weapon is deadly, all the facts of the case may be considered, including the shape and size of the weapon, its sharpness, its capacity to produce death or serious bodily injury, the manner of its use, and any words spoken by the accused. Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). A weapon may be considered deadly if it is displayed in a manner which conveys a threat, express or implied, that serious bodily injury or death will result. Jackson v. State, 668 S.W.2d 723, 725 (Tex. App.—Houston [14th Dist.] 1983, pet. ref'd). When wielded as a club, a broken bottle may be considered a deadly weapon. See Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim. App. 1987).

      In Compton v. State, 759 S.W.2d 503 (Tex. App.—Dallas 1988, pet. ref'd), the court found sufficient evidence of a deadly weapon where the defendant brandished a broken beer bottle threatening to stab people while stealing beer and candy from a convenience store. The bottle in Compton was a quart-sized beer bottle with the bottom broken out, leaving a jagged edge. Id. at 504. The store clerk testified that he feared he would suffer serious bodily injury or death because of the broken bottle. Id. A police officer testified that, according to his professional experience, a broken bottle could inflict serious bodily injury or death. Id.

      Gooden argues that, because the broken bottle was not introduced into evidence and because Pope's opinion was based on a hypothetical question, the evidence is insufficient for a deadly weapon finding. We disagree. Although the victim was unable to describe exactly what type of bottle was used in the assault, he was able to say that Gooden broke the bottle and held that broken bottle against his throat—an action capable of causing serious bodily injury or death, according to Pope. A rational trier of fact could have found beyond a reasonable doubt that the broken bottle was, in the manner of its use or intended use, capable of causing death or serious bodily injury. See Matson, 819 S.W.2d at 843; Tex. Penal Code Ann. § 1.07(a)(11)(B).

      We overrule the point and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed September 15, 1993

Do not publish