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Adkins v. State3/24/2003
nal code. Under that chapter, a person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club. Tex. Penal Code Ann. § 46.02(a) (Vernon Supp. 2002). A "club" is defined in that chapter as "an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument." Id. § 46.01(1). Appellant specifically contends that the wooden stick is not a "club" because it was not "specially designed, made, or adapted" to cause serious bodily injury or death. See id.
The wooden stick was admitted into evidence at the suppression hearing. The stick is approximately an inch and a half in diameter and eighteen inches in length. A hole is drilled through one end with a loop made of string running through the hole. The wooden stick is covered with visible scratches and marks, some deep, which appear to be animal bite marks. Appellant testified at the suppression hearing and explained that he used the stick when he trained his dogs--rottweilers and pit bulls. He would throw the stick for the dogs to retrieve and would use the stick to play "tug of war" with the dogs. Officer Morales testified that, in his opinion, the string attached to the handle is an adaptation that makes the stick a "club." He testified that a person could place a hand through the string, grasp the stick, and strike at a person without losing control. Officer Morales further testified that the wooden stick is capable of causing serious bodily injury or death.
In Alexander v. State, the defendant was prosecuted under section 46.02 for carrying a twelve-inch motorcycle chain that had a nylon cord tied around the last link. 617 S.W.2d 269, 270 (Tex. Crim. App. [Panel Op.] 1981). In that case, the court of criminal appeals stated:
The fact that an object is capable of inflicting serious bodily injury or death alone does not bring the object within the definition of club set forth in [section] 46.01 . . . . As the practice commentary to [section] 46.02 . . . notes:
"Instruments readily capable of inflicting serious injury but not specifically designed to do so, such as baseball bats and rolling pins, are excluded[;] if a person carrying one of them has intent to use them to inflict injury and his criminal design progresses far enough, however, he can be prosecuted for an attempted or completed assault . . . "
In this case, there is absolutely no evidence that the appellant carried about his person an instrument specifically designed, made or adapted for the purpose of inflicting serious bodily injury or death. We cannot infer from the presence of the nylon cord alone that this "adaption" was accomplished for the specific purpose of inflicting serious bodily injury or death. Alexander, 617 S.W.2d at 270 (first and third emphases added).
In Coleman v. State, our sister court in Dallas held that a hickory rod, similar in size and shape to the stick in this case, that had a leather thong tied through the handle is not a "club" under section 46.02. 790 S.W.2d 369, 370 (Tex. App.--Dallas 1990, no pet.).
Following Alexander and Coleman, we cannot conclude that the wooden stick the officers saw lying on the seat of appellant's truck is a "club" as defined in section 46.01 of the penal code. The presence of the string is not a special adaptation for the purpose of causing serious bodily injury or death. While the presence of the string might make the stick easier to use for the purpose of inflicting injury or death, we cannot conclude this adaptation was specifically for that purpose. See Alexander, 617 S.W.2d at 270. The marks on t
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