Opinion
No. 10-06-00413-CR
Opinion Delivered and filed May 21, 2008. DO NOT PUBLISH.
Appealed from the County Court at Law No. 2 Brazos County, Texas, Trial Court No. 04-01878-CRM-CCL2.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
A jury convicted Kevin Lee Johnson of unlawfully carrying a weapon and the court sentenced him to four days in jail and a $400 fine. In four points of error, Johnson challenges: (1) the legal and factual sufficiency of the evidence to support his conviction; (2) the court's refusal to instruct the jury on the traveling defense; (3) the court's granting of the State's challenge for cause to a member of the venire panel; and (4) the court's denial of his motion to suppress. We affirm.
FACTUAL BACKGROUND
On the day of the offense, Johnson was a patron at the College Station Library. Library employees grew concerned and contacted the police after noticing Johnson's strange behavior and his red, swollen, watery eyes. Officers Robert Shumaker and Steven DuBois found Johnson sitting in a van parked in the library parking lot. Shumaker inquired whether Johnson was okay and asked him to exit the van. The officers noticed that Johnson's eyes were "very red, puffy, glassy and bloodshot," he was having difficulty walking, and his breath smelled of alcohol. They also observed a container of medicine bottles located in the console of the van. They suspected that Johnson might be intoxicated. Johnson refused to perform field sobriety tests, consent to a search of the van, or allow officers to inspect the container. Shumaker contacted the narcotics office. When narcotics Officer Chad Hanks arrived at the scene, Johnson gave him the container. One medication was prescribed to Johnson's wife, from whom he was separated. Shumaker arrested Johnson for possession of a dangerous drug, and the officers searched the van, wherein they discovered the gun.LEGAL AND FACTUAL SUFFICIENCY
In his first point, Johnson contends that the evidence is legally and factually insufficient to support his conviction because he possessed the gun on his premises.Standards of Review
Under legal sufficiency review, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); see also Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Inconsistencies in the evidence are resolved in favor of the verdict. Curry, 30 S.W.3d at 406; Matson, 819 S.W.2d at 843. Under factual sufficiency review, we ask whether a neutral review of all the evidence demonstrates that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7. We do not indulge in inferences or confine our view to evidence favoring one side. Rather, we look at all the evidence on both sides and then make a predominantly intuitive judgment. Id.Analysis
The statute in effect at the time of the offense, made it unlawful for a person to "intentionally, knowingly, or recklessly carr[y] on or about his person a handgun, illegal knife, or club." Act of June 1, 1997, 75th Leg., R.S., ch. 1261 § 24, 1997 TEX. GEN. LAWS 4766, 4776 (amended 2007) (current version at TEX. PEN. CODE ANN. § 46.02(a) (Vernon Supp. 2007)). This offense is inapplicable to a person who possesses a handgun "on the person's own premises or premises under the person's control." Act of June 1, 1997, 75th Leg., R.S., ch. 1261 § 28, 1997 TEX. GEN. LAWS 4766, 4778 (amended 2007) (current version at TEX. PEN. CODE ANN. § 46.15(b)(2) (Vernon Supp. 2007)). The statute does not define the term "premises," but the term does include a "recreational vehicle" that is being used "as living quarters, regardless of whether that use is temporary or permanent." Act of May 24, 2003, 78th Leg., R.S., ch. 421 § 1, 2003 TEX. GEN. LAWS 1669 (repealed 2007) (current version at TEX. PEN. CODE ANN. 46.02(a-2) (Vernon Supp. 2007)). A "recreational vehicle" constitutes 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," including a "travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters." Id. Johnson testified that he had been living in the van since being separated from his wife a few months earlier. He had a television powered by a car battery for an "entertainment center," placed a bar in the van for hanging clothes, covered the windows with towels for privacy, and stored food in an ice cooler. The van also contained shelves where Johnson kept books, magazines, and photographs. For a bed, Johnson used blankets, pillows, a foam mat, and a bedroll. Johnson testified that the van could be towed if necessary and he considered it to be his home. He sometimes carried the gun in the van for "safety" and "some sense of security," but had been storing it at his wife's home and had retrieved it on the day of the offense. He could not recall where he had slept on the night before the offense. Johnson's father testified that he had purchased the van as a mode of transportation for Johnson and a place for Johnson to live and store his property. Librarians Lou Vonne Johnson and April Serig suspected that Johnson had been living in the van. Both DuBois and Shumaker recalled that Johnson had been living in the van. Shumaker testified that the van was an older "Ford Econoline Van" registered to a construction company. It smelled like body odor and contained clothing, a sleeping bag, pillows, fishing poles, and other personal items. Johnson told Shumaker that he was separated from his wife and had been living in the van. Shumaker had no reason to doubt this story and admitted that the van was Johnson's home. However, Shumaker testified that, after Johnson's arrest, Johnson stated that he sometimes lived with his wife. He added that Johnson's van is neither primarily designed as temporary living quarters nor contains temporary living quarters designed to be towed. During the booking process, Johnson listed his wife's address as his current address. In light of this evidence, Johnson argues that the jury was "irrational" by rejecting his defense that he was carrying the gun on his premises. He questions "why wouldn't a van adapted as living quarters also qualify under the 'mobile home' exception." The State responds that the van was designed to be a "work or cargo vehicle," not as "temporary living quarters" or "containing temporary living quarters and designed to be towed by a motor vehicle." We agree. The jury could reasonably conclude that, unlike the types of recreational vehicles identified in the statute, Johnson's van is not specifically designed to serve as "temporary living quarters" or to be towed. That it is capable of such does not make it a "recreational vehicle" as contemplated by the statute. As the sole judge of the weight and credibility of witness testimony, the jury was entitled to resolve the evidence either for or against Johnson. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000). The jury could reasonably reject Johnson's defense that he was carrying the gun on his premises and could reasonably conclude, beyond a reasonable doubt, that Johnson committed the offense of unlawfully carrying a weapon. See Curry, 30 S.W.3d at 406. The proof of guilt is not so weak nor the conflicting evidence so strong as to render the jury's verdict clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at 414-15; see also Johnson, 23 S.W.3d at 11. Because the evidence is legally and factually sufficient to support Johnson's conviction, we overrule his first point of error.TRAVELING DEFENSE
Johnson's second point of error challenges the court's refusal to instruct the jury on the defense of traveling.Standard of Review
"A defendant is entitled to an instruction on [a defensive issue] if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense." Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001); Kelly v. State, 195 S.W.3d 753, 756 (Tex.App.-Waco 2006, pet. ref'd). We review the evidence in the light most favorable to the defendant to determine whether a defensive issue should have been submitted. Kelly, 195 S.W.3d at 756; see Ferrel, 55 S.W.3d at 591.Analysis
A person who is "traveling" cannot be guilty of unlawfully carrying a weapon. See Act of June 1, 1997, 75th Leg., R.S., ch. 1261 § 28, 1997 TEX. GEN. LAWS 4766, 4778 (amended 2007) (current version at TEX. PEN. CODE ANN. § 46.15(b)(3) (Vernon Supp. 2007)). "[T]here is 'no hard and fast rule'" for determining "traveler" status:. . . it has been held that one traveling from county to county within the state is a traveler. But it has also been held that if the trip between counties is "so short there is no real journey, then one is not a traveler." Cases hold that if a traveler loiters along the way, or unnecessarily deviates from the course of travel, he loses his status as a traveler. However, interruption of the journey for legitimate incidental purposes does not forfeit a traveler's right to carry a pistol. Whether one stays overnight is also a factor to be used in determining if he qualifies as a traveler. Yet, an overnight stay is not required to claim the traveling defense. Some cases hold that once a traveler arrives at his destination and secures a room he is no longer a traveler. Likewise, one who has returned to his home area after traveling loses his status as a traveler.Illingworth v. State, 156 S.W.3d 662, 665-66 (Tex.App.-Fort Worth 2005, no pet.) (internal citations omitted). Johnson testified that he had secured a job in Austin and had traveled from College Station to Austin in his van to interview for the job and search for an apartment. On the day of the offense, he had retrieved several personal items from his wife's home, placed the items in his van, and prepared to travel to Austin. He stopped at the library to check email to determine whether "there's any changes, see if I needed to talk to anyone in Austin" or "tie up any loose ends" in Bryan/College Station. He had an afternoon appointment to pick up a pay check in Bryan, in route to Austin. Johnson believed that he was "actively engaged in a journey" on the day of the offense. He had been at the library for approximately four and a half hours by the time police arrived. Shumaker and Johnson discussed the van's "mechanical ability to travel out of town." Johnson expressed doubt that the van would "make it" and thought that "[h]e would probably end up giving it away before he moved out." Shumaker testified that Johnson did not indicate that he was going anywhere but Bryan on the day of the offense and did not state that he planned to travel out of town. DuBois never heard Johnson state that he was traveling to Austin that day. The court declined Johnson's request for a jury instruction on the defense of traveling. In reliance on Johnson v. State, 571 S.W.2d 170 (Tex.Crim.App. 1978), and Campbell v. State, 28 Tex. Ct. App. 44, 11 S.W. 832 (1889), Johnson argues that he was entitled to a jury instruction on the traveling defense. In Johnson, the defendant appealed his conviction for unlawfully carrying a handgun, arguing that the traveling defense applied because he was carrying the gun while moving from one residence to another. See Johnson, 571 S.W.2d at 171-72. The Court of Criminal Appeals held that "carrying a handgun from an old residence to a new residence will constitute a defense to prosecution under Sec. 46.02," but the weapon may not be carried "idly, or for the sake of carrying it, or habitually, or for some unlawful purpose." Id. at 172. In Campbell, the defendant was carrying a pistol from Jennings's residence, where he had been residing, to his residence in a different county. See Campbell, 11 S.W. at 832. The Court of Appeals found that Campbell was entitled to "carry the pistol at Jennings's house, because he was upon his own premises within contemplation of the law," and to "take the pistol to his permanent home when he left Jennings's." Id. "[W]hile going from Jennings's to his permanent home in another county, a distance of many miles, he was a person traveling within the meaning of the law." Id. Unlike Johnson and Campbell, Johnson was not in the course of traveling at the time he was arrested. See Illingworth, 156 S.W.3d at 667 (upholding determination that defendant was "not in the course of traveling" when arrested); see also Soderman v. State, 915 S.W.2d 605, 610 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd) (assuming that defendant was traveling previously, he was not "in the course of that travel when he was apprehended" and was not entitled to an instruction on the traveling defense). He had been at the library for several hours by the time police arrived. He had not yet begun his journey, but was merely waiting to do so. Because the issue was not raised by the evidence, the trial court did not err by refusing to instruct the jury on the traveling defense. We overrule Johnson's second point of error.
CHALLENGE FOR CAUSE
In his third point of error, Johnson contends that the trial court erred by granting the State's challenge for cause to a member of the venire panel.Standard of Review
A trial court's ruling on a challenge for cause is reviewed for abuse of discretion. Russeau v. State, 171 S.W.3d 871, 879 (Tex.Crim.App. 2005). "We afford the trial court considerable deference, because it is in the best position to evaluate a prospective juror's demeanor and responses." Id. "This is especially true when this Court is faced with a vacillating or equivocating venireperson." Banda v. State, 890 S.W.2d 42, 54 (Tex.Crim.App. 1994); see Russeau, 171 S.W.3d at 879; see also King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App. 2000). "The trial court is able to consider important factors such as demeanor and tone of voice that do not come through when reviewing a cold record." Banda, 890 S.W.2d at 54.Analysis
During voir dire, the State asked whether anyone "feels like you cannot sit in judgment of another person." Juror Thomas responded that she does not "like to judge people," "can't be a part of convicting somebody," and "it doesn't feel right for me." She "agree[d] with the law" and agreed that "you should pay for what you do." When the defense asked whether she could vote guilty if "convinced beyond a reasonable doubt," Thomas replied:For me, it's not that I couldn't do it. It's — it's actually more of a religious thing. I'm with — I'm a religion that's not really widely known anymore. I'm pagan and I believe in Karma. And whether I — it's a reasonable doubt that he is guilty or not guilty, I'd feel like the actions that I put on him — say, I thought, without a reasonable doubt he was guilty and I put him behind bars. I believe in Karma in the three-way that it would come back to me. I mean, that's just with anything that I do.During a bench conference, Thomas further expressed doubt about her ability to vote guilty if the evidence proved guilt beyond a reasonable doubt:
I really couldn't give you a reasonable answer. It's like the — the religious side of me wants to say no, because it's the religious part; but part of me says, if it would get somebody that did something wrong off the streets, then I would. So, I can't say yes or no . . .She stated that she could vote guilty "[i]f everything pointed to where there was not a doubt in my mind that he was guilty" and where "there's no doubt whatsoever." Thomas later stated that she thought she could find guilt if proved beyond a reasonable doubt. The decision would weigh on her "mind for a bit," but Thomas did not believe that "it would be a burden on my conscience." Neither did she believe that she would filter the evidence through her religious beliefs: I've actually gotten to the point where I don't have to filter it, because I was raised in a Christian family. So this is kind of my own little beliefs. But I wouldn't have to filter. It wouldn't — I'm not thinking it would be 100 percent clogging my judgment. I would be able to leave the religion part out of it as much as I can, sink everything and trying to leave my beliefs out of it, trying to stay unbiased, either way. She would try her "hardest" to prevent religion from interfering with her decision and "[t]here's a 85, 90 percent chance that I could." Upon further questioning from the trial court, Thomas indicated that she could apply the reasonable doubt standard instead of "guilt beyond all possible doubt." The State challenged Thomas for cause, expressing a lack of confidence in her ability to "set aside her religion and follow the law." Over Johnson's objection, the trial court granted the strike, agreeing that Thomas "has a bias against the State." Johnson objected to this ruling. On appeal, he argues that Thomas was improperly struck because she stated her ability to follow the law and find guilt where the elements of the charge were proved beyond a reasonable doubt. However, Thomas gave conflicting answers about her ability to follow the law. At one point she indicated that the State should prove guilt beyond all doubt, but later agreed that she could find guilt if proven beyond a reasonable doubt. She expressed doubt as to her ability to vote guilty even if the evidence proved guilt beyond a reasonable doubt and assessed only an "85, 90 percent chance" that her religious beliefs would not interfere with her decision. Under these circumstances, we defer to the trial court, as it was in a better position to evaluate Thomas's ability to serve on the jury. See Russeau, 171 S.W.3d at 880 (potential juror properly struck after providing "conflicting answers about her ability to follow the law"); see also Howes v. State, 120 S.W.3d 903, 909 (Tex.App.-Texarkana 2003, pet. ref'd) (where panelist gave responses that both supported the trial court's ruling and "cut against its ruling," appeals court deferred to the trial court's decision). We overrule Johnson's third point of error.