Opinion
No. 4-05-00767-CR
Delivered and Filed: October 18, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 8, Bexar County, Texas, Trial Court No. 878069, Honorable Karen Crouch, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Randy Cockrell was convicted by a jury of unlawfully carrying a weapon. On appeal, Cockrell challenges the legal and factual sufficiency of the evidence to support his conviction. Cockrell also contends that the trial court erred in denying his request for a limiting instruction in the jury charge. We affirm the trial court's judgment.
Background
Officer Thomas Patten and Officer Paul Zavala responded to a dispatch relating to shots fired. Upon arriving at the location, they observed a vehicle exit a driveway onto the street. As they stopped behind the vehicle, a person on the sidewalk yelled, "He's got a gun, he's got a gun." When Officer Patten activated his overhead lights, the driver quickly reversed the vehicle into the driveway, hitting a pole. Although the officers exited their vehicle and were yelling at the driver to stop, the driver pulled forward and reversed again to properly back into the driveway. The driver then exited the vehicle and complied with the officers' instructions to move toward them with his hands visible. The driver was handcuffed and patted down for officer safety. A handgun was subsequently recovered from the vehicle, and Cockrell was identified as the driver. The officers testified that Cockrell appeared to have been drinking. Cockrell did not explain any reason for having the handgun in his vehicle. Cockrell gave the officers consent to search the shed on the property, and a shell casing was found on the floor of the shed. Officer Patten testified that the shell casing smelled of gun powder. Although Cockrell told Officer Zavala that he had been having problems with a neighbor, Officer Zavala understood that the problems were related to a female. Cockrell testified that he had ongoing problems with his neighbor who was a drug dealer, fought pit bulls, and threatened to beat Cockrell on a regular basis. Cockrell stated that he heard a gun shot earlier in the day. Cockrell stated that he was carrying his handgun because he was traveling to his ranch to check hog traps and would need the gun to kill any hog caught in the trap. Cockrell stated that he informed the officers of the reason he was carrying the gun. Cockrell said he had shell casings on the floor of his shed because he used them to make gaskets for small engines for the lawn mower repair business he operated from the shed.Sufficiency of the Evidence
In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof, beyond a reasonable doubt, could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004)). We are not permitted to reweigh the evidence, rather we defer to the trier-of-fact's findings, particularly those based on credibility determinations. Cain v. State, 958 S.W.2d 404, 407-09 (Tex.Crim.App. 1997). Cockrell contends that the State failed to disprove that he was traveling, which is a defense to the offense of unlawfully carrying a weapon, because his testimony regarding the reason he was carrying the handgun was uncontroverted. See Tex. Pen. Code Ann. § 46.15(b)(3) (Vernon Supp. 2006). "Traveling" has never been defined by statute, and the precise meaning of the term has been the subject of much debate. Bergman v. State, 90 S.W.3d 855, 859 (Tex.App.-San Antonio 2002, no pet.); see also Illingworth v. State, 156 S.W.3d 662, 664-65 (Tex.App.-Fort Worth 2005, no pet.). The defense of traveling is a question for the trier of fact, and the fact finder is not required to believe the defendant's reason for carrying the handgun. Birch v. State, 948 S.W.2d 880, 884 (Tex.App.-San Antonio 1997, no pet.). Moreover, an accused is entitled to assert the defense of traveling only if the purpose for carrying the weapon was legitimate and not contrived. Id. In this case, Cockrell testified that he was taking the handgun to his ranch for hunting purposes, but the jury could have disbelieved his testimony. Furthermore, although Cockrell stated that he had told the officers the reason he was carrying the handgun, the jury could have believed the officers' testimony that Cockrell never offered a reason for carrying the handgun. Accordingly, the jury could have concluded that Cockrell's testimony regarding the reason he was carrying the handgun was contrived. The evidence is sufficient to support the jury's rejection of the traveling defense and Cockrell's conviction for unlawfully carrying a weapon.Hearsay
Cockrell contends that the trial court erred in denying his request for a limiting instruction in the jury charge. Although the trial court gave a limiting instruction at the time the evidence in question was admitted, the trial court refused to give an additional limiting instruction in the charge. When Officer Patten began to testify about certain statements made by a witness at the scene, defense counsel objected on the basis of hearsay. In response to the hearsay objection, the State responded:MR. WOLFF: I think there are several exceptions to the hearsay rule in this matter. First, I'd like to develop, the State, this witness on the corner was standing [sic], we've got present sense impression, we've got excited utterance, we've got officers acting, and motive for the officers behavior in the manner that they acted that day. We're not offering what the statement was of that witness for the truth of the matter asserted. We're offering it on other grounds: Excited utterance, present sense impression, and motive for the basis of this officer'sThe trial court ruled that the witness would be permitted to answer the question, and the trial court would need to hear the statement before deciding whether a limiting instruction should be given. The officer then testified that the neighbor stated, "He's got a gun, he's got a gun." Defense counsel objected a second time, and the trial court stated, "We've already handled that. Let's move on." When the prosecutor repeated the statements that were made by the witness in asking what the officers did next, the following exchange occurred:
MR. YOUNG: Your Honor, I just ask for a limited [sic] instruction to the jury. You indicated you wanted to hear the statement before he [sic] gave that.
THE COURT: All right. The last statement is for a limited purpose only. It's an excited utterance.
MR. YOUNG: Your Honor, I'd ask that the State and the Court designate specifically what the limited purpose is for the jury.
THE COURT: What is it?
MR. YOUNG: I don't know, Your Honor. I objected to your admitting it, and you said — they said they were limiting it — admitting it for the limited purpose
THE COURT: He said he's not — he said he's not using it for the truth of the matter asserted, just that the statement was made.
MR. WOLFF: If he'd like an explanation, that's fine with me, Your Honor. We're offering this evidence to show the basis for the officer[s'] actions during this event.
THE COURT: Ladies and gentlemen, they're offering it based on — the fact that the statement was made, not for the truth of the matter asserted.The State provided three grounds for the admission of the hearsay statements: (1) present sense impression; (2) excited utterance; and (3) admission only for a limited purpose and not for the truth of the matter asserted. Although the trial court stated that it was admitting the statements for a limited purpose, the trial court also stated that the statements were excited utterances. Defense counsel failed to ask for clarification with regard to the trial court's ruling. A statement admissible as an excited utterance is admissible as an exception to the hearsay rule. Tex. R. Civ. P. 803(2). Accordingly, if the trial court admitted the statements as excited utterances, the statements were admissible for all purposes and were not subject to a limiting instruction. See Alli v. State, No. 01-04-00448-CR, 2005 WL 428231, at *3 (Tex.App.-Houston [1st Dist.] Feb. 24, 2005, no pet.) (not designated for publication). Assuming the trial court intended to limit the admissibility of the statements to show the basis for the officer's actions rather than for the truth of the matter asserted, the trial court would have erred in failing to include the instruction in the jury charge. A limiting instruction, if requested, should be given when the evidence is admitted and again at the final jury charge. See Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App. 2001). Nevertheless, the failure to include the instruction in the charge in this case would not require reversal. The statements made by the witness related to whether Cockrell had a gun. Cockrell admitted in his testimony that he had a handgun in his car. The statements made by the witness did not relate to or affect Cockrell's assertion of his traveling defense. Accordingly, even if the statements were not admitted by the trial court as excited utterances, the failure to include a limiting instruction in the jury charge would not constitute reversible error because the absence of the instruction did not result in any harm to Cockrell. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000) (preserved error in jury charge is reversible only if error caused some harm to the accused).