Opinion
NUMBER 13-15-00558-CR
07-20-2017
MIGUEL BANDY, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 2nd 25th District Court of Gonzalez County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Chief Justice Valdez
A Gonzales County jury found appellant Miguel Bandy guilty of possessing a deadly weapon inside the Gonzales County jail following his arrest and transport to that correctional facility for aggravated assault. See TEX. PENAL CODE ANN. § 38.11(d) (West, Westlaw through 2017 R.S.) (providing that possession of an unauthorized deadly weapon inside a correctional facility is a third-degree felony). By one issue, Bandy contends that the evidence is legally insufficient to prove that the item he possessed inside the Gonzales County Jail—a "blackjack"—qualified as a deadly weapon under Texas Penal Code section 1.07(17)(B). TEX. PENAL CODE ANN. § 1.07(17) (West, Westlaw through 2017 R.S.). We affirm.
Bandy was arrested and transported to the Gonzales County Jail for shooting at another vehicle while driving his motorcycle on the highway. Bandy was charged with and convicted of aggravated assault based on that incident. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West, Westlaw through 2017 R.S.). However, on appeal, Bandy only challenges his conviction for possession of a deadly weapon inside the Gonzales County Jail. See TEX. PENAL CODE ANN. § 38.11(d) (West, Westlaw through 2017 R.S.).
I. LEGAL SUFFICIENCY
Under our legal sufficiency review, the blackjack qualified as a deadly weapon if the evidence, when viewed in the light most favorable to the verdict, showed that it was capable of causing death or serious bodily injury based on the manner in which Bandy used or intended to use it. See id.; see also Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010) (plurality op.) (articulating legal-sufficiency standard of review).
Bandy argues that the blackjack was discovered inside his pocket at the Gonzales County jail, and therefore, he never "used" it as a deadly weapon. However, Bandy did not have to actually use the blackjack in order to support a deadly-weapon finding; instead, the blackjack qualified as a deadly weapon under section 1.07(17)(B) if the manner in which Bandy intended to use it rendered it capable of causing death or serious bodily injury. See TEX. PENAL CODE ANN. § 1.07(17)(B) (defining a deadly weapon as anything that "in the manner of its . . . intended use is capable of causing death or serious bodily injury") (emphasis added).
Here, Bandy testified that he purchased the blackjack at a store called "eCops." He described the blackjack as "a four-ply, American made leather with . . . really good stitching; and there's a flat metal—a flat metal weight." Bandy further described the blackjack as a tool used by war soldiers and police officers for protection, and he stated that it could be used to "hit someone and flee." The blackjack was admitted into evidence for the jury to view and hold, and two police officers testified that it could be used as a deadly weapon under the penal code's definition of deadly weapon.
We conclude that this evidence is legally sufficient to support a finding that the blackjack possessed by Bandy inside the Gonzales County jail was capable of causing death or serious bodily injury based on the manner in which Bandy intended to use it. See Brooks, 323 S.W.3d at 906; see also Berry v. State, 833 S.W.2d 332, 334 (Tex. App.—Waco 1992, no pet.) (concluding that a rational jury could have found that a "shank"—or homemade knife—confiscated from the defendant inside a jail was intended to be used as a deadly weapon).
Bandy testified that he intended to use the blackjack only as a conversation-starter while interacting with Vietnam veterans who might be familiar with the weapon. However, the jury, as the judge of witness credibility, was not required to believe that Bandy possessed the blackjack for such a benign purpose. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (observing that the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony).
II. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed this 20th day of July, 2017.