*1 in the Act volved Controlled Substances not constitute offense while at-
tempts crimes within the Penal at all other would constitute offenses. Such 1.05(a) would contravene
conclusion Section provides: Penal Code which penal is to be
“The rule that statute apply to this
strictly construed provisions this code shall be
code. import according to the fair
construed terms, justice and promote effect
their objective (Emphasis the code.”
added). Act, the Code Construction Article
See also (Supp.), Y.A.C.S.
5429b—2 Dangerous 14 of
Finally, Section attempts danger-
Drug makes to obtain Act drugs fraudulent means crime.
ous Act
That act and the Controlled Substances policy spir- the same
were imbued with to conclude that
it. It would anomalous not the other was intended
one act but provision. attempt
contain an attempt provisions set forth
Since the apply to the Controlled Sub-
the Penal Code Act, in the instant the indictment
stances re- alleges an offense. As a properly
case should be
sult the conviction based thereon
upheld. Dallas, Bruder, appel- for Melvyn Carson MOSLEY, Appellant,
Jarvis Charles lant. Wade, H. Atty. Dist. and Donald Henry E. Loving Mike Jr., Kelly W. Flanary, D. Keasler, Jim Attys., Dist. Asst. No. McAngus, Vollers, Atty., David S. of Criminal Austin, for the Atty., State. Asst. State’s 27, 1976. Oct.
Opinion Motion 12, 1977.
Rehearing Jan. ODOM, Judge. was convicted
Appellant enhanced, as- punishment, assault. His twenty years. sessed is in- asserts that the Appellant sufficient *2 fire, and, projectile alleged as in the indict- fired when it did the during the offense rarely that the went argues very velocity ment. He State’s low had a weapon gun B.B. in five feet. The fired over of the offense during the commission used on the first jury. It misfired front See, Penal a Y.T.C.A. attempt. The record does not demonstrate 22.02(a)(3).1 weapon If the used Code Sec. projectile fast the went when how far or deadly weapon, a conviction for is not a fire. gun did under aggravated assault obtained V.T.C.A. air must determine whether the We up- cannot be Code Sec. tol, appellant, deadly weapon as used is a held. in as defined V.T.C.A. Penal Code Sec. deadly The Penal Code defines 1.07(a)(ll). Prior to enactment of the new as: Code, we stated: anything manifestly “Ordinarily, gun a ais made, pur- however, may, It in per se. used bodily pose inflicting of death or serious such, as to show that it is not a manner injury; or (citations omitted). deadly weapon A is that in the of its “(B) anything manner which, used, in the manner is calcu- one capable causing use is use or intended death serious lated bodily injury.” injury. In the instant the use of the 1.07(a)(ll). produced neither death nor serious gun appellant reflects that accost- The record test, then, whether, is bodily injury. The lot, parking pointed ed the victim in a used, in which it was it by the manner her, gun at unloaded B.B. and threatened to to do either.” Brown v. was calculated if did not kill her she follow his instructions. State, 233, 578, 155 Tex.Cr.R. 233 S.W.2d heart, change a probably He then had 579. policeman a was in the vicinity, because question is The threshold before us his threats. discontinued past weight whether our decisionshave The evidence establishes that “deadly weapon” that now has been defined unloaded; gun, an air B.B. that Legislature.3 commentary One pointed it was never toward the face of the new Penal Code observes: victim; appellant and that never used or prior that Texas law “It bludgeon. to use it as a threatened here, as that an provided, instrument expert witness that testified deadly weapon by a may become skin, gun projectile penetrate could B.B. not capability of its use or for use.” manner good probability but that there was a it Statutes, Branch’s Ann.Tex. Penal 3rd sight person loss of were could cause Ed., 1.07(11), (emphasis p. 27. add- Sec. eye. in witness also shot This ed) gun was of sufficient mass to cause injury bludgeon.2 if used as opinions meaning prior Our on weapon” have the defense stated that the do and should A witness for constantly significance mis- the new Pe- pistol by appellant instructional under appellant actually 1. The State indicted in this manner if it is used to deadly weapon See, State, assault on the basis that a e.g. v. strike at the victim. Shadle used to commit the offense. V.T.C.A. Penal State, 572; Branch v. 35 Tex.Cr.R. 34 Tex. 22.02(a)(3) provides: Code Sec. State, 356; Hays Tex.Cr.App., v. 33 S.W. “(a) person if he A commits offense S.W.2d defined in Section 22.01 commits assault as this code and he: prior of the relation of 3.See our discussion Day new Penal Code decisions “(3) deadly weapon.” uses State, Tex.Cr.App., 681. It should 534 S.W.2d that the former Penal did also be noted deadly weapon 2. was not a “deadly weapon.” not define deadly weapon bludgeon. is deemed and that the device obvi- ap- as “an air particularly approach This Code. nal a fire- Legis- the definition of light ously of the fact comes within propriate prior case apparently codified our to be the concern appears has It lature arm. the term. its law definition held that an air could has submission bar, In the case never be *3 provided by the statute. the definition fit that an air expert testified The state’s to in BB was referred While Further, it would be is not a firearm. tol several an “air opinion as conclude, on the basis of to unreasonable occasions, reading opinion a careful evidence, “de- was particular reference was shows purpose made or signed, that the device holding In involved. device injury.” inflicting death or a firearm and did not constitute involved 1.07(a)(ll)(A). Penal Code Sec. the evidence therefore by use aggravated the assault show used, was not cal The opinion did not at- culated to guns types exclude all tempt State, supra; V.T.C.A. Brown v. injury. of a firearm. pistols from the definition 1.07(a)(ll)(B). The evi question in this case.1 reach that We do not as to show that is insufficient dence the use of a aggravated sault DeMaio, Dr. Vincent It is observed that examiner for Dallas associate medical testified the involved in the County, cause judgment is reversed and the The spring gun. activated air was a instant case remanded. officer, police being after arresting MOTION ON STATE’S firearm, statutory definition of a read REHEARING FOR firearm, BB was not pow- stated, does not have a “. . .it ONION, Presiding Judge. witness famil- A defense explosion.” dered urges that rehearing the State On how it stated he knew the device iar with its conclusion was erroneous examination The record on direct worked. is insufficient show the evidence then reflects: by the use of assault by pulling this “Q. powered a BB Is spring back here? V.T.C.A., Penal notes that The State Right. “A. assault an Code, makes an § up in this hole “Q. a BB you put And weapon” is aggravated assault (indicating)? here V.T. deadly weapon is defined in used. Right. “A. Code, C.A., 1.07(a)(ll), as § argues that . .” The State firearm . . that back down “Q. you put then And only place in the Penal Code (indicating)? V.T.C.A., Code, 46.- § is defined Right. “A. “ ‘firearm’ 01(3), provides that a which trigger? “Q. you pull the And adapt- any device made means Right. “A. a barrel expel projectile through toed a BB out? “Q. And it shoots generated by explosion using energy Right.” “A. any readily device substance or burning ”. use. . . to that convertible spring in It does not explosive of an more ques- “air” argues that the device The State Hood’s bow. string in Robin than the to in the court’s device was referred tion Columbia, v. District of Schmit v. (D.C.Mun.App.1946); 1. See and cf. Tendler A.2d 263 (La.App.1967). Guidry, 204 So.2d Under the circumstances of the instant we adhere to our decision on
submission. State’s motion for rehear-
ing is overruled. DAVIS, Jr., Appellant,
Mark
No. 51855. Criminal
Dec. Newth, appeal only,
James F. appellant.