No. 13-04-00298-CR
May 31, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 156th District Court of Bee County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and AMIDEI. Dissenting Memorandum Opinion by Justice AMIDEI.
Former Justice Maurice Amidei assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005).
DISSENTING MEMORANDUM OPINION
MAURICE AMIDEI, Justice.
Appellant, Sonny Wade Wilson, appeals from a jury verdict convicting him on both counts of a two-count indictment: (1) Count 1, for aggravated assault with a deadly weapon on a correction officer; and (2) Count 2, for possession of a deadly weapon in a penal institution. The trial judge assessed his punishment, enhanced by one prior felony conviction, at life in prison and a $10,000 fine on Count 1, and twenty years in prison and a $10,000 fine on Count 2. Although ten issues were urged, for purposes of this appeal, I would find it necessary to address only appellant's ninth and tenth issues challenging the legal sufficiency of the evidence. A challenge to the sufficiency of the evidence should be considered before disposing of a case even though reversal may be based on another ground. Graham v. State, 643 S.W.2d 920, 924 (Tex.Crim.App. 1983). The reasoning being, if sustained, a retrial would be barred. Id. Contrary to the majority, I would reverse and acquit.
Factual Background
Appellant, an inmate at the McConnell Unit in Bee County, Texas, protested that he had been harassed by frequent cell moves and a proposed new cell-mate assignment. He was instructed to gather his belongings so he could be transferred to a holding facility pending a hearing of his protest. While being escorted out of his cell, appellant resisted being handcuffed, a scuffle ensued, and two correctional officers received minor injuries. The officers did not get a good look at the object appellant used to injure them, although a metal rod sharpened on one end and a plastic razor handle with approximately seven razor blades attached to one end were found on the floor nearby after appellant was subdued. Issues
Appellant's ninth and tenth issues aver the evidence was legally insufficient to sustain his convictions under Counts 1 and 2 of the indictment. These issues are considered together because they both include the issue of whether the weapon in question was a deadly weapon. Standard of Review
The inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution. Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We review the record to determine whether, after viewing the evidence in the light most favorable to the State, any rational jury could have found beyond a reasonable doubt that anything in the manner or use of the objects in question by appellant was capable of causing death or serious bodily injury. Appellant argues the State did not prove that he assaulted a public servant by using or exhibiting a deadly weapon or that he possessed a deadly weapon because there is no proof the correctional officers received serious bodily injuries. Count 1 of the indictment charges appellant with aggravated assault under Texas Penal Code section 22.02(a)(2),(b)(2) (Vernon 2005), a first degree felony, and in pertinent part alleges the following: [O]n or about the 15th day of October, A.D., 2002 and before the presentment of this indictment, in the County and State aforesaid, [appellant] did then and there intentionally, knowingly, or recklessly cause bodily injury to Andres Garza by stabbing Andres Garza's left arm, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a metal rod approximately 8 ½ inches sharpened on one end and bent on the other end with string wrapped around the bent end for a handle and a plastic razor handle wrapped with string that has approximately seven razor blades attached to the opposite end measuring about 6 inches in total length, during the commission of said assault, and the defendant did then and there know that the said Andres Garza was then and there a public servant, to-wit: A Correctional officer with the Texas Department of Criminal Justice-Institutional Division, McConnell Unit, in Bee County, Texas and that the said Andres Garza was then and there lawfully discharging an official duty, to-wit: Supervising inmates. Count 2 charges that on or about October 15, 2002, while confined in a penal institution, appellant intentionally or knowingly possessed a deadly weapon as described in Count 1, a third degree felony. Punishment was enhanced to the level of a second degree felony because the jury found a prior conviction. A person commits aggravated assault if he intentionally, knowingly or recklessly causes bodily injury to another by using or exhibiting a deadly weapon. See Tex. Pen. Code Ann. § 22.01(a)(1) 22.02(a)(2) (Vernon 1994). It is a first degree felony if the aggravated assault is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation, or on account of an exercise of official power or performance of an official duty as a public servant. See Tex. Pen. Code Ann. § 22.02(b)(2). The Texas Penal Code defines "deadly weapon" to mean the following: (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. § 1.07(a)(17)(A)(B). Objects that are not usually considered dangerous weapons may become so, depending on the manner in which they are used during the commission of an offense. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). In proving an object to be a deadly weapon under subsection (B), an injury is not per se, serious bodily injury, even if caused by a deadly weapon. Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App. 1987); Williams v. State, 696 S.W.2d 896, 898 (Tex.Crim.App. 1985). In Moore, the court's opinion in Williams by Judge W.C. Davis was quoted as being highly instructive, in pertinent part, as follows: There, this Court, through Judge Davis, emphasized the following: A knife wound, or a gunshot wound, although caused by a deadly weapon such as a knife or a gun, is not, per se, serious bodily injury. The shooting [or stabbing] of an individual is a serious and grave matter. Yet it is the burden of the State to prove that such an act created a substantial risk of death, or caused death, a serious permanent disfigurement, or protracted loss or impairment of the functions of any bodily member or organ. See V.T.C.A. Penal Code, Sec. 1.07 (a) (34). (898). Moore, 739 S.W.2d at 352. "Bodily injury" and "serious bodily injury" were properly defined in the jury charge as follows: "Bodily Injury" means physical pain, illness, or any impairment of physical condition. "Serious Bodily Injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. "Serious Bodily Injury" is defined in the penal code to mean the following: "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Pen. Code Ann. § 1.07(a)(34) (Vernon 1994). "Bodily injury" is defined in the penal code to mean the following: "physical pain, illness, or any impairment of physical condition." Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon Supp. 2006). By virtue of the fact that the penal code provides a different definition for "bodily injury" from "serious bodily injury," though often a matter of degree, we must presume that the Legislature intended that there be a meaningful difference or distinction between "bodily injury" and "serious bodily injury." Moore, 739 S.W.2d at 348-49. Understandably, this means that where the issue is raised, the issue must be determined on an ad hoc basis. Id. The Evidence
The State offered the witnesses and exhibits as follows. Gabriel Gomez, who was on duty at the McConnell Unit as a correctional officer on October 15, 2002, testified he was behind appellant when Sergeant Andres Garza attempted to grab appellant. Appellant began jabbing with his hands at Sergeant Garza's stomach and chest area. Gomez was blinded by pepper spray for a while and did not see that appellant had any weapons, but found out after the scuffle there was an eight inch rod and a six inch plastic device with razor blades which he assumed appellant took out of his jacket. Gomez testified that he was "slashed," that is, his skin was barely grazed in the area where his Texas Department of Corrections patch protected him, but the injury was nothing more than a scratch. He assumed he was cut by the weapon Tommy Perez later showed him. Andres Garza, who was on duty at the McConnell Unit as a correctional officer on October 15, 2002, testified that he was not sure what had happened, except that appellant swung at him when he stepped toward him to initiate force. He did not actually see any kind of weapon. Specifically, he did not clearly see any weapons in appellant's hands but he did see a grayish rod-shaped metal object, a home-made weapon, which could have been a pen. Garza was stabbed in his left arm and chest. He testified he did not see any bleeding or whatnot. He testified that he sustained four bruises to his chest and he was struck on the arm. He testified that he did not see the weapon afterward, but he saw photographs of it with which he used to describe the weapon in his disciplinary report as an "eight-three" inch plastic spoon with razor blades. According to Garza, the photograph, State's Exhibit No. 5, looked like the weapon used to assault him. Miguel Rene Padron, who was on duty at the McConnell Unit as a correctional officer on October 15, 2002, testified that he did not see what appellant had inside his hand, but after appellant made his first swing at Sergeant Garza and brought his hand back, Padron saw that it was a weapon. He could not tell what sort of a weapon it was. He saw an extension inside appellant's wrist which was not gray and could have been anything. Michael Scotten, who was a criminal investigator for the Department of Criminal Justice in October 2002, testified as follows: 1. He was called to investigate the incident in question after it occurred; 2. He recognized and described what was portrayed by State's Exhibits Nos. 9-A and 8-A as, "[w]hat we call prison-made shanks;" 3. He came in contact with the "shanks" when corrections officer Tommy Perez handed them to him; he turned them over to investigator Koenig; however, on cross examination he testified that officer Padron gave him the weapons; 4. He came in contact with victim Gabriel Gomez; 5. He took the shirt contained in a paper sack marked State's Exhibit 10 off of victim Gomez at the McConnell Unit; 6. The shirt had a tear on the left shoulder; 7. He worked fifteen years as a certified police officer, including eight years at the Office of Inspector General; 8. He came in contact with weapons "like this;" 9. He has seen what "those" weapons can do to individuals; 10. He has seen individuals who had been assaulted with weapons "like this" on a "few" or "many" occasions; 11. He described the "shank" as a metal rod approximately eight and one-half inches in length, sharpened on one end, and bent on the other end with string wrapped around the bent end of the handle; 12. He described State's Exhibit 8-A as a plastic razor handle wrapped with string that has approximately seven razor blades attached to the opposite end measuring about six inches in total length; 13. These weapons were recovered from inside of a penal institution on October 15, 2002 at the McConnell Unit; and, 14. Based on his experience as a police officer and observation of these two weapons, his opinion was that those two weapons are capable of causing death or serious bodily injury. Nina Vaughn, LVN, testified that Andres Garza was ambulatory following the incident in question and walked into the clinic for treatment. He had a wound on his left arm, right around the deltoid, which was the size of about one-half centimeter or about the size of half the tip of her thumb or finger. She did not know how deep the cut was. According to Vaughn, a pick, or something round or pointed, was used to create this puncture. She pulled the cut apart and cleaned it out. Garza's chest had a three centimeter area of light bruising. On the third and fourth knuckles of his right hand, Garza had two superficial cuts which Vaughn described as knife-blade-like lacerations. She cleaned and bandaged the wounds and told him to follow up with his doctor in case of infection, hepatitis, lockjaw if he was not current with his tetanus shot — she didn't give him any injections or treat him for shock or anything. According to Vaughn, the weapon with the razor blades could create or cause such injuries. Rhonda Cubbage, an RN, testified that when she saw Gabriel Gomez, his arm, face, and neck were red. She did not recall whether his shirt was torn. Gomez had two scratches on his upper arm, but she did not recall the size of the scratches. One of the scratches appeared much as an abrasion, like the skin being rubbed. She washed the scratch. Admitted into evidence without objection were State's Exhibits Nos. 3 and 6, which were photographs depicting the injuries to witnesses Gomez and Garza. Contrary to the majority's analysis, there is no evidence of anything in the manner of the shanks' use that was capable of causing death or serious bodily injury. There is no evidence that anything in the intended use of the shanks that was capable of causing death or serious bodily injury. Other than the glimpses of the shanks in question during the scuffle described by the corrections officers, there was no testimony that appellant displayed the shanks or used any threatening words or gestures toward the guards. Appellant did not suddenly jab at the officers with the shank or shanks until after force was used on him to apply handcuffs. Bodily Injuries
Appellant challenges the sufficiency of the evidence which the jury used to support its implicit finding that correction officers Gomez and/or Garza sustained serious bodily injuries. Infliction of serious bodily injuries has been held to be necessary in determining whether a knife is a deadly weapon in its use or intended use. Thomas, 821 S.W.2d at 619. Apparently it is the position of the State that it is not necessary to make a decision about the injuries of Officer Gomez since the indictment only names Andres Garza as a victim, and the prosecutor only argued this subject to the jury. However, the seriousness of the injuries to either or both officers are important factors in determining whether the weapons were deadly weapons. Id. Although the person who has received the injuries is qualified to express an opinion as to their seriousness, Officers Gomez and Garza never testified their injuries created a substantial risk of death, or caused permanent disfigurement, or protracted loss or impairment of the functions of any bodily member or organ within the Texas Penal Code definition of serious bodily injury. Hart v. State, 581 S.W.2d 675, 677 (Tex.Crim.App. 1979). The nurses who treated the officers described minor superficial injuries and in no way indicated the injuries were serious bodily injuries. There was a scrape wound and a cut or puncture less than one-fourth inch in length and of unknown depth. These injuries required treatment of the most minor nature, not involving sutures, injections, pain medication, hospitalization, doctors or x-rays, and there was no indication the officers had any follow up treatment. The correctional officers who were injured did not describe their injuries as being serious. I would find that the injuries were superficial and not serious bodily injuries. Manner of Use
Subsection (A) of the deadly weapon definition refers to weapons that are deadly weapons per se. See Tex. Pen. Code Ann. § 1.07(a)(17)(A), (B) (Vernon Supp. 2006). A knife is not a deadly weapon per se. Denham v. State, 574 S.W.2d 129, 130 (Tex.Crim.App. 1978). A homemade stabbing device, a "shank" in this case, is not a deadly weapon per se. Thus, in order for the "shank" to qualify as a deadly weapon, we must look to "the manner of its use or intended use." Thomas v. State, 801 S.W.2d 540, 541 (Tex.App.-Houston [14th Dist.] 1990), rev'd on other grounds, 821 S.W.2d 616 (Tex.Crim.App. 1991). Thomas was reversed only to require the court of appeals to evaluate evidence for its sufficiency to prove the shank in that case was manifestly adapted to cause death or serious bodily injury to support a subsection (A) (deadly weapon by design) jury finding. The Texas Court of Criminal Appeals in Thomas did not hold that shanks were deadly weapons per se or that all cases involving shanks should be tried as subsection (A) cases. Instead, the court clearly expressed that cases may be tried under subsection (A) or subsection (B) depending on the evidence by holding: Whether a particular knife is a deadly weapon by design, a deadly weapon by usage or not a deadly weapon at all, therefore, depends upon the evidence. The same is, of course, also true of every other object in the world, including automobiles, telephone cords, bathwater, feather pillows, golf clubs or shanks. 821 S.W.2d at 620. In this case, there were no allegations or proof the shanks were manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. The trial court focused on subsection (B) and charged the jury with the deadly weapon definition, that being, "deadly weapon" as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." The charge indicates the case was tried and submitted under subsection (B) rather than subsection (A). The State chose to prosecute under subsection (B) only. Therefore, the State had the burden to prove beyond a reasonable doubt that the manner of use by appellant of the shanks made them capable of causing serious bodily injury or death. Id. Without any reference to anything in the manner appellant used or intended to use the shanks in question, Michael Scotten simply concluded, "They were capable of causing death or serious bodily injury." A statement of opinion of an expert must be based on facts perceived by, reviewed by, or made known to the expert at or before the hearing. Tex. R. Evid. 703. However, Scotten's testimony indicated he (1) did not perceive, (2) had not reviewed, or (3) had not been made known, the facts regarding the manner of use of the shanks. His opinion was not given in response to questions predicated or based on facts describing how or in what manner appellant used or intended to use the shanks which made them capable of causing death or serious bodily injury. Therefore, he did not testify that the manner in which appellant used the shanks could cause death or serious bodily injury. The jury could not infer manner of use from Scotten's testimony. All the jury could infer is that the manner of use of the shanks did not cause death or serious bodily injury which would have been from the correctional officers' testimony as to what actually happened The subsection (B) jury finding cannot be supported in the absence of manner of use proof. It is not a matter of Scotten's credibility or qualifications as an expert witness. With the exception that the charge was not supported by legally sufficient evidence as I have herein discussed, the trial court was correct in submitting the case to the jury under subsection (B) only, although it could be argued Thomas requires the trial court "under any circumstances" to submit under both subsections (A) and (B) where it is a part of "the law applicable to the case." Id. at 619. However, I would find that subsection (A) is not applicable to this case because there was no allegation or proof that the objects in question were manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. Id. In any event, the State made no request to include subsection (A) in the charge, and made no objection that a submission under subsection (A) was omitted from the charge. Id. The trial court did not charge the jury on subdivision (A) and the jury could not have made a subsection (A) finding. The charge cannot be made hypothetically correct by assuming a subsection (A) submission. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Intended Use
We must determine if the jury could have found that it was appellant's intent to use the shanks in such a manner that they would be capable of causing serious bodily injury or death. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). The evidence showed that there was a brief struggle between appellant and the correctional officers after appellant had the opportunity to take a swing at the officers with the shank. One of the officers was attempting to put handcuffs on appellant, and appellant was close to the officers. Appellant was subdued before he could use the shank again. There was no evidence that appellant threatened or expressed an intent to use the shank or shanks in a manner that would be capable of causing serious bodily injury or death either at the time alleged in the indictment or at any time in the future. Appellant said nothing to the officers regarding the shanks or whether he intended to cause them serious bodily injury or death. There was no evidence as to why appellant possessed the shanks or any prior use he made of them. While the placement of the word "capable" in the definition of deadly weapon may have been to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force, we cannot infer that appellant's conduct threatened deadly force in the sense that he either intended to cause serious bodily injuries or, since there were no serious bodily injuries the mere existence of the shanks and the way they looked threatened deadly force. Cf. Bailey v. State, 38 S.W.3d 157, 158-59 (Tex.Crim.App. 2001) (holding that a defendant who used a board to beat his estranged wife with threats to permanently silence her was conduct which threatened deadly force). Appellant made no verbal threats and did not display the shanks in a threatening manner. The correctional officers who were injured did not see the shanks before they were injured. The other officer only had a glimpse of the shank after appellant made his first swing at Sergeant Garza. A weapon cannot be considered deadly just because it may look deadly. The Texas Court of Criminal Appeals has approved several factors to be used in determining whether an object is capable of causing death or serious bodily injury: (1) physical proximity between the victim and the object, Tisdale v. State, 686 S.W.2d 110, 115 (Tex.Crim.App. 1984); (2) the threats or words used by the defendant, Williams v. State, 575 S.W.2d 30, 32 (Tex.Crim.App. 1979); (3) the size and shape of the weapon, Balin v. State, 647 S.W.2d 293, 294 (Tex.Crim.App. 1983); (4) the weapon's ability to inflict death or serious injury; id.; and (5) the manner in which the defendant used the weapon. Id. No one factor is determinative, and each case must be examined on its own facts. Id.; see Hester v. State, 909 S.W.2d 174, 179 (Tex.App.-Dallas 1995, no pet.) (citing Brown v. State, 716 S.W.2d 939, 947 (Tex.Crim.App. 1986)). The majority cites Dominique v. State, 598 SW2d 285, 286 (Tex.Crim.App. 1980) and Denham v. State, 574 SW2d 129, 130 (Tex.Crim.App. 1978) to argue that serious bodily injuries are not a prerequisite for the shanks to be found deadly weapons, but those cases are distinguishable. In Dominique and Denham there was abundant proof as to the manner of use, intended use, threats and injuries whereas in the instant case where there are no threats, scant evidence of the manner of use, or intended use which makes the seriousness of the injuries the most important if not the only factor in such connection. Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App. 1987); Williams v. State, 696 S.W.2d 896, 898 (Tex.Crim.App. 1985) (it is the burden of the State to prove that a knife wound created a substantial risk of death, or caused death, serious permanent disfigurement, or protracted loss or impairment of the functions of any bodily member or organ). Infliction of serious bodily injuries has been held to be necessary in determining whether a knife is a deadly weapon in its use or intended use. Thomas, 821 S.W.2d at 619. 1. Proximity and Threats
The close proximity to the correctional officers allowed them to subdue appellant quickly to prevent another opportunity to inflict injury. Appellant made no threats. 2. Size and Shape of the Weapon Ability to Inflict Death or Serious Injury
The State produced the shanks. They were described in the testimony of Michael Scotten as a metal rod approximately eight and one-half inches in length, sharpened on one end, and bent on the other end with string wrapped around the bent end of the handle, and a plastic razor handle wrapped with string that has approximately seven razor blades attached to the opposite end measuring about six inches in total length. Further, Scotten testified he had seen what weapons "like this" can do to individuals, and based on his experience as a police officer, those two weapons are capable of causing death or bodily injury. Scotten's testimony cannot be a factor in determining whether the shanks were capable of causing death or serious bodily injury because it was made without reference to the manner appellant used or intended to use the shanks in question. He did not testify the shanks were capable of causing death or serious bodily injury in the manner appellant used or intended to use them. Under the facts of the case, the shanks did not have the ability to inflict death or serious bodily injury because the injuries inflicted were minor, superficial injuries. We cannot speculate what the ability of the shanks may have been under different facts or a hypothetical situation which would have afforded appellant a better opportunity or more opportunities to use the shanks to inflict death or a serious bodily injury. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005). Capability of the weapons is evaluated based on the circumstances that existed at the time of the offense. Id. In other words, the "capability" must be evaluated in light of what did happen rather than the conjecture about what might have happened if the facts had been different than they were. Williams v. State, 946 SW2d 432, 435 (Tex.App.-Fort Worth 1970, dism'd, 970 SW2d 566 (Tex.Crim.App. 1998). I would find that any intended use other than the use appellant actually made of the shanks at the time of the alleged offense would be hypothetical and could not support a deadly weapon finding. 3. The Manner in Which Appellant Used the Weapons
The manner in which appellant used the weapons was to inflict minor, superficial injuries on the correctional officers. Although the actual manner of use was supported by the evidence, it was insufficient to prove appellant's use of the shanks was capable of causing death or serious bodily injuries in order to support the jury's finding they were deadly weapons. Appellant's intended use of the shanks was the same as the manner he actually used the shanks. It must be presumed there was no other use intended because there is no evidence that appellant had any other intended use. There is not evidence that appellant intended to use the shanks to inflict serious bodily injuries. No one testified as to appellant's intent in possessing or using the shanks. Thus, it must be presumed his only intent was to inflict bodily injuries, not serious bodily injuries. The jury could not infer serious bodily injuries even if the shanks were considered deadly weapons. See Moore, 739 S.W.2d at 352. Legal Sufficiency
As a matter of law, after considering the evidence in the light most favorable to the verdict, I would find the evidence legally insufficient because any rational trier of fact could not have found the evidence sufficient to establish beyond a reasonable doubt: (a) That appellant's use of the shanks caused death or serious bodily injuries; (b) That Gabriel Gomez or Andres Garza sustained serious bodily injuries by appellant's use of the shanks as defined in the Texas Penal Code; (c) That the shanks were used in a manner showing an intent to cause death or serious bodily injury; (d) That anything in the manner of use or intended use of the shanks made them capable of causing death or serious bodily injuries; (e) That the shanks were deadly weapons as defined in the Texas Penal Code. The prosecution did not meet the requirements of Texas Penal Code section 1.07(a)(17)(B). Thus, the evidence was legally insufficient for the jury to find beyond a reasonable doubt that the shanks were deadly weapons as is required for conviction under the penal code. See Tex. Pen. Code Ann. §§ 22.02(b)(2); § 46.10(a)(1). I would sustain appellant's ninth and tenth issues. As sustaining appellant's ninth and tenth issues would dispose of the case, it would not be necessary to discuss the other eight issues. See Tex. R. App. P. 47.1. Conclusion
I would reverse the convictions and direct the court below to enter a judgment of acquittal.