Ernest Douglas Quander v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-499-CR ERNEST DOUGLAS QUANDER, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY NO. 362,622, HONORABLE WILFRED AGUILAR, JUDGE PER CURIAM The court found appellant guilty of carrying an illegal knife and assessed punishment at incarceration for 270 days. Tex. Penal Code Ann. § 46.02 (West 1989). In his only point of error, appellant challenges the legal sufficiency of the evidence. Appellant was stopped by Austin police officer Dave Erskine because he was driving a car with an expired inspection sticker. In the car with appellant were Lillie Middleton in the front passenger seat and Rayfield Middleton in the back seat. Appellant got out of the car to talk to the officer. When he did, the officer saw a knife with an eight-inch blade on the floor of the car between the driver's seat and the door. As located, the knife was easily within the reach of the driver. A plastic bag containing what proved to be a simulated controlled substance was on the floor beside the knife. A bag of crack cocaine was found on the back seat, near Rayfield Middleton. Lillie Middleton told Erskine and the backup officer that the car belonged to someone else and they had borrowed it to move their belongings. Appellant told the officers the same thing, also indicating that the knife belonged to the car owner. Erskine and the backup officer testified that they saw no evidence that the occupants of the car were moving. At trial, Lillie Middleton testified that she and appellant lived with the owner of the car, Susan Baker, and regularly used Baker's vehicle. In her trial testimony, Lillie Middleton admitted owning the knife, saying she had used it in an attempt to remove an audio cassette that was stuck in the car's cassette player. Appellant testified that he did not know the knife was in the car. Baker confirmed that appellant and Lillie Middleton regularly used her car. She testified that she was unaware of any malfunction of the cassette player. Drawing on cases dealing with possession of controlled substances, appellant asserts that there is no evidence affirmatively linking him to the knife. Appellant's reliance on drug cases is misplaced, however. Any suggestion that "affirmative link" analysis should be employed in a prosecution for unlawfully carrying a weapon has been expressly disavowed by the Court of Criminal Appeals. Christian v. State, 686 S.W.2d 930, 932 n.3 (Tex. Crim. App. 1985). We believe this cause is controlled by Curry v. State, 465 S.W.2d 154 (Tex. Crim. App. 1971). In Curry, the defendant was the driver of a vehicle in which there were five other occupants. A pistol was found on the floor, under the front seat on the right side, within reach of the driver. The court found this evidence sufficient to sustain the defendant's conviction for unlawfully carrying the pistol. Appellant tries to distinguish Curry, noting that there was no evidence in that case that the vehicle belonged to someone else. We find this distinction to be unimportant under the circumstances, since the owner of the car driven by appellant testified that she did not know that the knife was in her car. Nor is it significant that there was testimony that the knife did not belong to appellant. A person can carry an unlawful weapon that belongs to someone else. See Christian, 686 S.W.2d at 932-33. It was for the court, as trier of fact, to determine the credibility of the witnesses. The court stated that it did not believe the defensive testimony. The State's evidence is sufficient to sustain the finding that appellant intentionally, knowingly, or recklessly carried on or about his person an illegal knife. Jackson v. Virginia, 443 U.S. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). The point of error is overruled. The judgment of conviction is affirmed. [Before Chief Justice Carroll, Justices Jones and Kidd] Affirmed Filed: September 23, 1992 [Do Not Publish]