Opinion
No. 06-17-00010-CR
06-21-2017
On Appeal from the 52nd District Court Coryell County, Texas
Trial Court No. 15-22916 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Jeremy Leroy Cummins appeals from his conviction for unlawfully carrying a weapon on a premises licensed or issued a permit by the State of Texas for the sale of alcoholic beverages, claiming that the trial court erred in failing to include a proper definition of "premises" in the charge of the court. Because we conclude that the trial court did not err, we affirm the trial court's judgment.
See TEX. PENAL CODE ANN. § 46.02(c) (West Supp. 2016).
I. Background
After having engaged in a heated confrontation with a delivery driver and cashier at a convenience store in Copperas Cove, Cummins threatened to get his gun. A witness called 9-1-1, and Officer Philip Walls of the Copperas Cove Police Department responded. Walls spoke with the delivery truck driver who stated that he became involved in a verbal altercation with Cummins over a parking issue when Cummins stated that he had a "CHL and [was] not afraid to use it." Although Cummins was not at the store when Walls arrived, he returned as Walls was speaking to the delivery driver on the sidewalk directly in front of the store. According to Walls, he spotted Cummins walking from a dirt path to the store. As Cummins approached the pair, the driver confirmed to Walls that this was the person with whom he had the confrontation.
The convenience store was licensed and permitted by the Texas Alcoholic Beverage Commission to sell alcohol.
Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas Supreme Court pursuant to Section 73.001 of the Texas Government Code. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
In this instance, "CHL" refers to a concealed handgun license.
Walls spoke with Cummins on the sidewalk in front of the store, and Walls asked Cummins if he had any weapons on him. Cummins responded that he did not know. Believing this response to be untrue, Walls checked Cummins' clothing for weapons and found a pistol in Cummins' pocket. Walls described the location of the sidewalk by stating, "[Y]ou have to step up onto that sidewalk and you'll be right in front of the store." Once Walls determined that Cummins did not possess a concealed handgun license, he arrested Cummins. The arrest took place under the awning of the store, approximately three to five feet from the store's front door. Cummins testified, though, that he was standing in the vacant lot adjacent to the store when he encountered Walls. He testified that he was not near the front door, but was instead standing next to a dumpster on the eastern edge of the property.
Cummins does not challenge the sufficiency of the evidence to support his conviction.
Cummins contends that the definition of "premises" in Section 46.02 of the Texas Penal Code was insufficient to provide proper guidance to the jury regarding the premises covered by a license or permit to sell alcohol at the location where he was found in possession of a weapon. He, therefore, complains that the trial court erred in failing to include the definition of "premises" found in Section 11.49(a) of the Texas Alcoholic Beverage Code, which he claims was the proper definition of "premises" in this circumstance. See TEX. ALCO. BEV. CODE ANN. § 11.49(a) (West 2007). At trial, Cummins made no objection to the charge, and he offered no alternative definition.
Section 46.02, entitled "Unlawful Carrying Weapons," provides, in pertinent part:
(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person's own premises or premises under the person's control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.
TEX. PENAL CODE ANN. § 46.02.
. . . .
(a-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
. . . .
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
At the charge conference, Cummins told the trial court, "[T]he only other request we would have if we could find a definition for real property in the Penal Code that would apply to this section. I think that would be helpful to the jury to have that term defined." The trial court asked Cummins if he had such a definition, to which Cummins replied, "I do not have one at this point, Judge. I would need to investigate that." The trial court then declared a recess in order to afford Cummins time to locate the definition to which he had alluded. After the recess, the trial court asked Cummins, "[I]n relation to real estate definition, any request for submissions or any objections in relation to that request?" Cummins replied, "Not at this time, Your Honor." The trial court then stated, "Then with that, the last copy of the -- or draft, I should say, of the most recent charge with all of the changes as agreed by both sides, have been tendered to the Court. And is that the request of the State?" The State replied in the affirmative. The trial court then asked, "And that's request of defense as well?" Cummins replied, "Yes, Your Honor." Based on this record, it is apparent that Cummins did not object to the charge as submitted to the jury.
The charge included the following definition pursuant to Section 46.02 of the Texas Penal Code:
I.
A person commits the offense of unlawfully carrying a weapon if he intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person's own premises or premises under the person's control; or
(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.
It is a further offense if it occurs on any premises licensed or issued a permit by this state for the sale or service of alcoholic beverages.
II.
"Premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent.
II. Analysis
Our review of alleged jury charge error involves a two-step process. See Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731-32).
The level of harm necessary to require reversal due to jury charge error is dependent upon whether the appellant properly objected to the error. Abdnor, 871 S.W.2d at 732. Here, because Cummins did not object to the charge, we will not reverse unless the record shows the error resulted in egregious harm, Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)), such that he did not receive a fair and impartial trial, see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g); Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—Texarkana 2008, no pet.).
"[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby." TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). "A trial court must submit a charge setting forth the 'law applicable to the case.'" Lee v. State, 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref'd) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007)). "The purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its application." Id. (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).
Cummins relies on Terry v. State, 877 S.W.2d 68 (Tex. App.—Houston [1st Dist.] 1994, no pet.), for the proposition that it was error not to include in the court's charge the definition of "premises" set forth in the Texas Alcoholic Beverage Code. Terry was charged with carrying a weapon on a premises licensed for the sale of alcoholic beverages. Id. at 69. Over his objection, the trial court defined premises in its charge to the jury as that term is defined in Section 11.49 of the Texas Alcoholic Beverage Code. The court found that because Section 46.02 of the Penal Code refers to "'premises licensed . . . by this state for the sale . . . of alcoholic beverages' . . . . one must read the Alcoholic & Beverage Code to discover" that the definition of premises "includes the grounds, buildings, vehicles and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person." Id. at 69-70 (quoting TEX. PENAL CODE ANN. § 46.02). Consequently, because "the Penal Code reference to 'premises licensed . . . by this state for the sale . . . of alcoholic beverages,' properly allows for the use of the Alcoholic & Beverage Code definition of 'premises' in the jury charge," the trial court did not err by including that definition in the charge. Id. at 70.
The Alcoholic Beverage Code defines "premises" as follows:
(a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.TEX. ALCO. BEV. CODE ANN. § 11.49(a).
Terry did not hold, however, that it was error to omit the Alcoholic Beverage Code definition of "premises" from the charge, and we find no cases which so hold. Section 46.02 of the Penal Code includes its own definition of "premises," which was added in 2007 after Terry was decided. See Act of May 23, 2007, 80th Leg., ch. 693, 2007 Tex. Gen. Laws 1318, 1318 (amended 2007) (current version at TEX. PENAL CODE § 46.02). Section (a-2) specifically states, "For purposes of this section, 'premises' includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent." TEX. PENAL CODE ANN. § 46.02(a-2) (emphasis added).
See supra note 6.
We, therefore, cannot conclude that the trial court erred, on the facts of this case, by failing to include the definition of "premises" found in the Alcoholic Beverage Code. See Brock v. State, 495 S.W.3d 1, 14 (Tex. App.—Waco 2016, pet. ref'd) ("A jury charge which tracks the language of a particular statute is a proper charge on a statutory issue.") (quoting Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994)); see also Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) ("Following the law as it is set out by the Texas Legislature will not be deemed error on the part of a trial judge."). A trial court "has broad discretion in submitting proper definitions and explanatory phrases to aid the jury." Shipp v. State, 331 S.W.3d 433, 444 (Tex. Crim. App. 2011) (Meyers, J., concurring); see Brock, 495 S.W.3d at 14; Nava v. State, 379 S.W.3d 396, 420 (Tex. App.—Houston [14th Dist.] 2012), aff'd, 415 S.W.3d 289 (Tex. Crim. App. 2013).
III. Conclusion
We affirm the trial court's judgment.
Bailey C. Moseley
Justice Date Submitted: May 30, 2017
Date Decided: June 21, 2017 Do Not Publish