in Re Richard Ventura Rios, AKA Richard Sardaneta Rios

IN THE TENTH COURT OF APPEALS No. 10-06-00019-CR In re Richard Ventura Rios, aka Richard Sardaneta Rios Original Proceeding MEMORANDUM Opinion The Petition for Writ of Mandamus is denied. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Petition denied Opinion delivered and filed February 1, 2006 Do not publish [OT06] > A jury found Jarrett Nelson guilty of the delivery of a controlled substance—cocaine. The jury found that the cocaine involved in the delivery met the definition of a deadly weapon. Accordingly, the court entered a deadly weapon finding in the judgment after assessing punishment at eighty years in prison. Nelson first contends the court erred in holding that the cocaine was a deadly weapon. He next argues that the definition of a deadly weapon is unconstitutional because of vagueness. See Tex. Penal Code Ann. § 1.07(a)(11)(B) (Vernon 1974). We will reform the judgment to remove the deadly weapon finding and then affirm. On February 26, 1991, Darrell DeLoach, a member of the Brazos Valley Drug Trafficking Task Force, parked his car behind a club in Hearne. His informant, Eddie Hood, called out to four men, including Jarrett Nelson, who then approached DeLoach's car. DeLoach testified that Nelson handed a rock of crack cocaine to one of the men who then sold and delivered the cocaine to DeLoach for $15.00. In his first point Nelson contends that the trial court erred when it made an affirmative deadly weapon finding. The Penal Code defines a deadly weapon 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. Id. Thus, to be a deadly weapon the cocaine must either be "manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury," or be "in the manner of its use or intended use is capable of causing death or serious bodily injury." See Quintana v. State, 777 S.W.2d 474, 478 (Tex. App.—Corpus Christi 1989, pet. ref'd). Cocaine is not a deadly weapon per se under subparagraph (A); however, it may be shown to be a deadly weapon under subparagraph (B) by showing the manner of its use and its capability to cause death or serious bodily injury. See Thomas v. State, 821 S.W.2d 616, 619-20 (Tex. Crim. App. 1991). When a weapon is not actually used to cause death or serious bodily injury, to support a deadly weapon finding under subparagraph (B), two elements must be proved. Hernandez v. State, 649 S.W.2d 720, 722 (Tex. App.—Amarillo 1982, no pet.). First, the item used must be capable of causing the requisite harm. Id. The capability of the item to cause death or serious bodily injury may be apparent from the nature of the item and may be established by lay testimony. Id. Second, there must be evidence that the weapon was used in a manner indicating an intent to cause death or serious bodily injury. Id. The court heard testimony from a police officer and a toxicologist who both testified that crack cocaine is capable of causing death or serious bodily injury. They also stated that the normal usage of crack cocaine is to produce a "high." Thus, the evidence supports the first element, that crack cocaine is capable of causing death or serious bodily injury is satisfied. Nelson was convicted of delivery of a controlled substance. There is no evidence, however, that he delivered the cocaine in a manner indicating he had any intent to cause death or serious bodily injury. Thus, the second element is not satisfied. We sustain the first point. Nelson's second point is that section 1.07 (a)(11)(B) of the Texas Penal Code is unconstitutionally vague and overbroad by the use of the word "anything." In a vagueness challenge, when, as here, no First Amendment rights are involved, the reviewing court need only scrutinize the statute to determine whether it is impermissibly vague as applied to the challenging party's specific conduct. Clark v. State, 665 S.W.2d 476, 483 (Tex. Crim. App. 1984). A vagueness challenge to an enactment will be upheld only if it is impermissibly vague in all of its applications. Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987). Furthermore, when challenging the constitutionality of a statute, a defendant must show that, in its operation, the statute is unconstitutional as to him in his situation; that it may be unconstitutional regarding others is not sufficient. Parent v. State, 621 S.W.2d 796, 797 (Tex. Crim. App. 1981). A statute is unconstitutionally void for vagueness only when no standard of conduct is obtained at all or when no core of prohibited activity is defined. Briggs, 740 S.W.2d at 806. Even though section 1.07(a)(11)(B) does not list items that could qualify as deadly weapons, the statute is precise because it limits those items to "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Quintana, 777 S.W.2d at 481. The evidence at trial indicated that cocaine is capable of causing death or serious bodily injury. However, as noted above, there is no evidence that Nelson's manner of use or intended use of the cocaine was to cause death or serious bodily injury. Nelson only intended to deliver the drug to DeLoach. Thus, section 1.07(a)(11)(B) clearly establishes a standard of conduct and a core of prohibited activity. See Briggs, 740 S.W.2d at 806. We therefore hold that section 1.07(a)(11)(B) is constitutional as applied to Nelson. See Clark, 665 S.W.2d at 483. Point two is overruled. Having sustained point one, we reform the judgment to delete the deadly weapon finding and affirm the judgment as reformed. See Tex. R. App. P. 80(b)(2). BOB L. THOMAS Chief Justice Before Chief Justice Thomas, Justice Cummings, and Justice Vance Reformed and affirmed Opinion delivered and filed January 27, 1993 Do not publish