Birch v. State

Page 880

948 S.W.2d 880

James W. BIRCH, Appellant, v. The STATE of Texas, Appellee.

No. 04-96-00294-CR.

Court of Appeals of Texas San Antonio.

June 4, 1997.

Mark Stevens, Regina L. Stone-Harris, San Antonio, for Appellant.

Edward F. Shaughnessy, III, Assistant Criminal District Attorney, San Antonio, for Appellee.

Before RICKHOFF, GREEN and JOHN F. ONION, Jr. ¹ , JJ.

OPINION

JOHN F. ONION, Jr., Justice (Assigned).

This appeal stems from a conviction for unlawfully carrying a handgun. See TEX. PENAL CODE ANN. § 46.02(a) (Vernon 1994). Appellant James W. Birch was found guilty by a jury. The trial court assessed his punishment at sixty days in the county jail and a fine of two hundred and fifty dollars.

POINTS OF ERROR

Appellant advances eleven points of error divided into jury charge errors and errors in the admission of evidence. First, appellant urges that the trial court erred in refusing to instruct the jury on the defense of "traveling." The next four points of error relate to the trial court's denial of special requested charges on the scope of the search of appellant's trunk, on whether the truck's console was locked, and on whether arresting Officer Wright had probable cause to stop appellant for speeding or had reasonable suspicion to detain appellant. The remaining six points of error concern the admission of evidence that appellant exercised his constitutional right to remain silent, invoked his right to remain silent after being given the Miranda ² warnings and again after being arrested, in the admission of a videotape and evidence of extraneous offenses.

FACTS

Officer Alex Wright of the Hill Country Village Police was on patrol about 5:25 p.m. on August 4, 1995, when he observed a pickup truck traveling "very fast" in a 30 miles per hour speed zone. Wright activated his radar unit and clocked the speed of the pickup truck at 42 miles per hour. Officer Wright turned on the overhead lights of his patrol vehicle, reversed his direction, and followed the pickup truck, which soon stopped. Wright identified appellant as the driver of the truck who exited his truck before the officer approached and was leaning on the side of the truck for support. Wright smelled beer on appellant's breath and observed that appellant's speech was slurred. Appellant failed two field-sobriety tests and refused to perform the third. Officer Wright arrested appellant, handcuffed him, and placed him in the patrol car. The officer then proceeded to make an inventory search of the truck before having the vehicle towed. In the console of the truck, which Wright found ajar, he discovered a loaded nine millimeter semi-automatic pistol with two clips of ammunition nearby. The truck was later towed and appellant was taken to the Hollywood Park Police Department. Appellant was found to have $530 on his person. The custody of the pistol was established and it was shown by expert testimony to be in working order.

Appellant testified that he was a carpenter and, at the time in question, was working at a job site in the Hill Country Village area of San Antonio. On August 3, 1995, he left work and drove to his Bexar County home. There, he changed clothes and packed an overnight bag in preparation for a trip to San Marcos in Hays County to see his girlfriend because it was her birthday. He acknowledged that he took his pistol from the closet with three clips or magazines of ammunition and a gun case and placed these items in the console of his truck and locked the console. He then drove the fifty-five miles to San Marcos. After the birthday dinner, appellant spent the night in San Marcos.

Appellant left San Marcos the next morning, August 4, 1995, at 5:30 a.m. because by 7:00 a.m. he was required to be at the job site. Reaching the San Antonio area, he stopped for a quick breakfast and obtained two tacos for lunch. He then drove directly to the job site, arriving at 6:55 a.m. Because his residence was some eight to ten miles from the job site, he did not attempt the round trip in the heavy morning traffic. After working that day, appellant acknowledged that he drank two beers at the job site and accepted a third beer as he was leaving for home. Shortly thereafter, he was stopped by Officer Wright. Appellant stated that his gun had been locked in the truck's console from the time he left home. The console's key was in a coin box on top of the console at the time of his arrest.

Kenneth Nesbitt's testimony placed appellant in San Marcos on the night of August 3, 1995. Nesbitt saw appellant in bed watching television as late as 11:55 p.m. and was of the opinion appellant was spending the night in San Marcos.

Appellant was charged with both driving while intoxicated and unlawfully carrying a handgun. We are informed that severance was granted. Under any circumstance, appellant was prosecuted only for unlawfully carrying a handgun.

FAILURE TO CHARGE ON DEFENSE

In his first point of error, appellant complains that the trial court erred in refusing to instruct the jury on the defense of traveling despite a timely objection and a special requested charge.

A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club. TEX. PENAL CODE ANN. § 46.02(a) (Vernon 1994). It is a "defense" ³ to prosecution under section 46.02(a) if the actor was "traveling" at the time of the commission of the offense. See TEX. PENAL CODE ANN § 46.02(b)(3) (Vernon Supp.1997) ⁴. See also Moosani v. State, 914 S.W.2d 569, 570 (Tex.Crim.App.1995) (Baird, J., dissenting).

The State questions whether appellant was a traveler at all, but contends that the trial court did not err in refusing to charge on the defense of traveling because as a matter of law appellant was not a traveler at the time he was stopped by Officer Wright. Appellant urges that whether he was a traveler was an issue of fact for the jury, not a question of law for the trial court. Appellant contends that he was a traveler and there was no improper deviation from his journey, but under any circumstances, there was a legitimate purpose and a right to take his gun to his home.

TRAVELING DEFENSE

The traveling defense provided by statute has remained unchanged since its promulgation in 1871 ⁵. "Traveling" has never been defined by statute and the precise meaning of the term has been the subject of much debate. Ayesh v. State, 734 S.W.2d 106, 108 (Tex.App.--Austin 1987, no pet.); see generally Robert G. Newman, A Farewell to Arms?--An Analysis of Texas Handgun Control Law, 13 ST. MARY'S L.J. 601, 607 (1982). The decisions have not been harmonious. 20 TEX. JUR.3D Criminal Law § 1327 at 469 (1982). In fact, the decisions have been described as being in a state of "hopeless confusion." Smith v. State, 630 S.W.2d 948, 951 (Tex.Crim.App.1982). There is no bright line test for determining when one is "traveling" for the purpose of the statute and the standards that have evolved from the case law are not models of clarity. Soderman v. State, 915 S.W.2d 605, 610 (Tex.App.--Houston [14th Dist.] 1996, pet. ref'd, untimely filed).

In applying the term "traveling", Texas courts have generally considered distance, time, and mode of travel. See Practice Commentary TEXAS PENAL CODE ANN. art. 46.03 (Vernon 1989); 6 MICHAEL B. CHARLTON, TEXAS CRIMINAL LAW § 26.3 at 317-18 (West 1994). One who goes from one point in one county to another point has been held a "traveler" within the meaning of the statute. See Ballard v. State, 74 Tex.Crim. 110, 167 S.W. 340, 340 (1914); Campbell v. State, 58 Tex.Crim. 349, 125 S.W. 893, 893 (1910). This is particularly true where there is a real journey. See Smith v. State, 42 Tex. 464, 465-66 (1875). Where the distance is short and there is no real journey, one is not a traveler although he may be going from one county to another. See Blackwell v. State, 34 Tex.Crim. 476, 31 S.W. 380, 380 (1895); see also Stanfield v. State, 34 S.W. 116, 116 (Tex.Crim.App.1896). When applying the general rule of going from one county to another, the mode of travel and not distance alone is to be considered. Kemp v. State, 116 Tex.Crim. 90, 31 S.W.2d 652, 653 (1930). All the circumstances of each case must be considered. See George v. State, 90 Tex.Crim. 179, 234 S.W. 87, 88 (1921). Early on, it was said that it was impossible to establish any unbending rule or determine distance that will characterize an act as a journey or the actor as a traveler. Bain v. State, 38 Tex.Crim. 635, 44 S.W. 518, 518 (1898) (holding that one who traveled thirty-five miles was a traveler). Where the actor was preparing to spend the night, the distance of twenty-five miles has been held sufficient to constitute one a traveler. See Price v. State, 34 Tex.Crim. 102, 29 S.W. 473, 473 (1895). The trip must be typically overnight. Vogt v. State, 159 Tex.Crim. 211, 258 S.W.2d 795, 796 (1953); Ayesh, 734 S.W.2d at 106. However, Vogt did not restrict the defense solely to those situations. Matocha v. State, 890 S.W.2d 144, 145 (Tex.App.--Texarkana 1994, pet. ref'd). The question of whether one is a traveler is a fact-driven determination that is not dependent upon any one particular situation. Id. at 145.

CESSATION OF A JOURNEY

The cessation of a journey on legitimate business incident to the journey or other valid reason does not forfeit a defendant's right as a traveler to carry a pistol. Kemp v. State, 116 Tex.Crim. 90, 31 S.W.2d 652, 653 (1930) (holding that stopping to dine while leaving a gun in car did not cause loss of traveler status); Irvin v. State, 51 Tex.Crim. 52, 100 S.W. 779, 780 (1907) (holding deviation valid if for medical reasons); Price v. State, 34 Tex.Crim. 102, 29 S.W. 473, 473 (1895). Mere delay does not deprive one of the defense of traveling. Irvin, 100 S.W. at 780; Hunt v. State, 52 Tex.Crim. 477, 107 S.W. 842, 844 (1908). When one turns aside from his journey to partake of any pleasure or business not connected...