ALLEN SMITH, Appellant v. THE STATE OF TEXAS, Appellee

No. 01-87-00830-CR

COURT OF APPEALS OF TEXAS, First District, Houston

1988 Tex. App. LEXIS 1818

July 28, 1988, Decided


PRIOR HISTORY:  On Appeal from the County Criminal Criminal Court at Law No. 6, Harris County, Texas, Trial Court Cause No. 942,976


OPINION: Opinion

Sam Bass, Justice

A jury found appellant guilty of carrying a switchblade knife, and assessed punishment at 30 days in jail and a $ 1,000 fine.

We affirm.

Officer Klotz was dispatched to an apartment complex and spoke with appellant and the complainant, who were arguing. Klotz asked appellant for identification, and appellant responded that it was in his car.

The appellant, followed by Klotz, went to his car and removed a small, brown briefcase. Klotz asked if there was a weapon inside, and appellant replied in the negative. As appellant looked in the briefcase with his back to the officer, Klotz became concerned because of the delay, so he reached for the briefcase and noticed a "butterfly" knife.

In his first point of error, appellant asserts that "the conviction is void because the conduct does not constitute an offense defined by statute [sic]." Appellant apparently is complaining [*2]  about the sufficiency of the evidence.

In Texas, it is an offense to intentionally or knowingly possess, manufacture, transport, repair, or sell a switchblade knife" is a knife that "has a blade that folds, closes, or retracts into the handle or sheath" and that opens, inter alia, "by force or gravity or by the application of centrifugal force." Tex. Penal Code Ann. art. 46.01, sec.(11)(B) (Vernon 1974).

Appellant contends that the knife is not prohibited by statute because it had a locking mechanism and, therefore, did not operate by centrifugal force "as a matter of law." In Flores v. State, 716 S.W.2d 505, 506-06 (Tex. Crim. App. 1986), the Court of Criminal Appeals held that a broken switchblade knife, held shut with a rubber band, was a prohibited weapon within article 46.01(11).

In the instant cause, the simple act of unlocking the mechanism rendered the knife capable of being opened by "centrifugal force." Ample testimony of the knife's functioning revealed that the knife could open by centrifugal force after being unlocked. After viewing all the evidence in the light most favorable to the verdict, a rational trier of fact could have found that the knife was a "switchblade [*3]  knife" as defined by article 46.01(11) and that appellant was guilty of possessing the switchblade knife beyond a reasonable doubt. Id.; Jackson v. Virginia, 443 U.S. 307, 319 (1974).

We overrule appellant's first point of error.

In his second and third points of error, appellant contends that the evidence is insufficient to prove that he "voluntarily" and/or "knowingly" committed the offense.

Addressing first his contention about whether the State proved knowledge, we observe that when an illegal weapon is found in close proximity to a defendant and is within the plain view of the defendant, this is sufficient evidence to prove "knowing" possession. Christian v. State, 686 S.W.2d 930, 933-34 (Tex. Crim. App. 1985). The record reflects that, while appellant was searching his briefcase, the switchblade knife was in his plain view. This shows that he "knowingly" had possession.

Turning to the issue of voluntariness, Tex. Penal Code Art. 6.01(b) (Vernon 1974) states that, "[P]ossession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate [*4]  his control." (Emphasis added.) Appellant's argument is that he did not "voluntarily" possess the knife because of the officer's request to get his identification. This logic is specious because it implies that appellant did not have possession until he opened the briefcase. Because the knife was in his possession before the officer instructed him to produce identification, appellant clearly had possession of it.

Appellant also argues that his possession was of too short a duration to satisfy the statutory requisite. In Slater v. State, 646 S.W.2d 528, 531 (Tex. App. -- Houston [1st Dist.] 1982, pet. ref'd), this Court held that the evidence was sufficient to support a finding that the defendant carried a pistol on his person, despite the fact that he held the weapon only for a short period of time.

We overrule appellant's second and third points of error.

We affirm the judgment.

Sam Bass, Justice, Justices Warren and Dunn also sitting.