No. 05-06-00967-CR
March 30, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 2 Collin County, Texas, Trial Court Cause No. 002-87052-04.
Before Justices MOSELEY, BRIDGES, and RICHTER.
DAVID L. BRIDGES, Justice.
A jury convicted Bob Glenn Spencer of unlawfully carrying a handgun while being a licensed concealed-handgun carrier and while intoxicated. The trial court assessed punishment at 150 days in the county jail, probated for eighteen months, and an $800 fine. In a single point of error, appellant contends the evidence is legally insufficient to support the conviction. We affirm.
Background
On September 30, 2004, Allen police officers Kris Wirstrom and Melissa Wendt were on routine patrol at 11:45 p.m. when they saw a pickup truck in the parking lot of two drug stores. The truck was in the driveway area of the businesses and not in a parking space. Both officers could see there was someone inside the truck. After the officers parked behind the truck, Wendt approached the driver's side window and Wirstrom approached the passenger-side window. Both officers saw a man sitting upright in the driver's seat with his head "slumped" to the side and his mouth open. Wirstrom and Wendt both identified appellant as the man inside the truck. The truck was not running, but the radio was playing loudly enough for the officers to hear as they approached. Wendt knocked on the driver's side window with her flashlight for several minutes, but appellant did not respond. Wirstrom walked around the truck to the driver's side window and also knocked with his flashlight. The officers were yelling "Allen police department." When appellant failed to respond, Wirstrom began rocking the truck back and forth. Appellant eventually sat up, looked at the officers, then passed out again. Wirstrom rocked the truck a second time. Appellant sat up, bumping the gear shift into neutral. As the truck rolled forward, Wirstrom "walked" alongside and yelled for appellant to open the door. The truck rolled about twenty-five feet before appellant unlocked the door. Wirstrom reached inside the truck and "smashed the emergency brake down." The truck stopped only a few feet away from the store's electric sign. Wirstrom testified he immediately smelled the odor of an alcoholic beverage inside the truck and saw bottles of vodka, club soda, and champagne in the front passenger-side floorboard. He also saw keys in the ignition in the "on" position. Wirstrom testified he helped appellant out of the truck and appellant was incoherent, had slurred speech, and could barely stand up. When Wirstrom asked appellant if he had any medical conditions or had been drinking, appellant said no to both questions. Wirstrom asked appellant for his driver's license. Initially appellant handed Wirstrom a credit card, then handed Wirstrom a concealed weapon license. When Wirstrom asked appellant if he was armed, appellant said no. Appellant eventually gave Wirstrom his driver's license. Wirstrom arrested appellant for public intoxication. Officer Henry Toliver, who responded to the scene to impound appellant's truck, conducted an inventory search of the truck before the wrecker arrived. During his search of appellant's truck, Toliver found two weapons: a nine-millimeter Beretta automatic pistol with a loaded magazine was inside a black bag on the rear passenger-side floorboard, and a .32-caliber Keltec automatic pistol with a loaded magazine was in the driver's-side door panel. Toliver testified he also found one nearly-empty bottle of vodka, an opened 1.5-liter bottle of wine, an opened bottle of club soda, and various files, papers, and over-the-counter medication. Appellant did not testify during the guilt/innocence phase of trial. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant carried a handgun for which he had a license while intoxicated. See Tex. Pen. Code Ann. § 46.035(d) (Vernon Supp. 2006). A handgun inside a vehicle where an accused is the only person in the vehicle at the time is sufficient to prove he was carrying a gun "on or about his person." See Christian v. State, 686 S.W.2d 930, 933-34 (Tex.Crim.App. 1985) (en banc); Turner v. State, 744 S.W.2d 318, 319 (Tex.App.-Dallas 1988, pet. ref'd). Discussion
Appellant argues the evidence is legally insufficient because he did not carry the handguns "on or about his person." Appellant asserts that because he was not found to be driving or operating the motor vehicle while intoxicated, the evidence is insufficient. The State responds that the evidence is legally sufficient to support appellant's conviction. The record shows appellant was found sitting alone in his truck in a vacant parking lot a few minutes before midnight. The radio was playing loud enough for officers to hear it as they approached. After knocking on the window with their flashlights for several minutes, one of the officers rocked appellant's truck back and forth to awaken appellant. Appellant somehow placed the truck in neutral and it rolled forward, only stopping when an officer was able to open the driver's-side door and apply the emergency brake. After appellant's arrest for public intoxication, bottles of alcoholic beverages were found inside his truck, along with two loaded handguns, one of which was in the driver's-side door panel next to where appellant was sitting. It was the jury's function to judge the credibility of the witnesses and the weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Harvey, 135 S.W.3d at 717. The jury was also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). After reviewing the evidence under the proper standard, we conclude it is legally sufficient to support appellant's conviction for unlawfully carrying a handgun while being a licensed concealed-weapon carrier and while intoxicated. See Lane, 151 S.W.3d at 191-92; Turner, 744 S.W.2d at 319. We overrule appellant's sole point of error. We affirm the trial court's judgment.