Lovett v. State

523 S.W.3d 342

Kenneth Wayne LOVETT, Appellant

v.The STATE of Texas, State

NO. 02-16-00094-CR

NO. 02-16-00095-CR

Court of Appeals of Texas, Fort Worth.

Delivered: June 15, 2017

Discretionary Review Refused October 18, 2017

ATTORNEY FOR APPELLANT: MILLIE L. THOMPSON, LAW OFFICE OF MILLIE L. THOMPSON, AUSTIN, TEXAS.

ATTORNEYS FOR STATE: SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY; DEBRA WINDSOR, CHIEF OF THE POST-CONVICTION DIVISION; MARK KRATOVIL, LLOYD WHELCHEL, MELINDA WESTMORELAND, ASSISTANT CRIMINAL DISTRICT, ATTORNEYS FOR TARRANT COUNTY, FORT WORTH, TEXAS.

PANEL: SUDDERTH, KERR, and PITTMAN, JJ.

OPINION¹

ELIZABETH KERR, JUSTICE

Citizens have a right to film the police. Texas citizens with a proper license also have a right to "open carry" firearms, though that right is not unlimited. Citizens may exercise both these rights simultaneously, although—as we will explain—circumstances can justify a police officer's asking a lawfully armed citizen to put away a deadly weapon and expecting that request to be honored.

This is true even when, as here, the weapon that Kenneth Wayne Lovett displayed is statutorily excluded from the definition of a "firearm": in our view it is not reasonable to expect the police (a) to instantly recognize a weapon as an excluded pre-1899 antique replica firearm that doesn't use rim-fire or center-fire ammunition or (b) to take someone's word for it, on the fly and at a traffic stop near which armed and vocal citizens have gathered to film the police and participate in Second Amendment activism. More to the point, no one disagrees that although the weapon in question might not have been a statutory firearm, it most certainly was a statutory deadly weapon. Under the disorderly-conduct statute, that is a category wholly distinct from a "firearm."

We need not here resolve any theoretical constitutional clashes involving either the right to free speech or the right to bear arms. Lovett was charged with and convicted of two relatively mundane offenses—disorderly conduct and interfering with the police's public duties—and has not directly attacked either statute's constitutionality (whether as facially unconstitutional or on an as-applied basis) in his points on appeal. Lovett attacks only evidentiary sufficiency.

Based on the jury's verdicts convicting him of both offenses, the trial court sentenced Lovett to 90 days in jail on each charge and ordered those sentences to run concurrently.

We reverse and order an acquittal on the disorderly-conduct offense ( Tex. Penal Code Ann. § 42.01(a)(8) (West 2016)) and affirm Lovett's conviction for interfering with public duties ( Tex. Penal Code Ann. § 38.15(a)(1) (West 2016)).²

Evidentiary Background

The State's sole witness at trial was Officer Fred Kemp of the Arlington Police Department. Officer Kemp testified that for months before January 24, 2015—the date he arrested Lovett—anywhere from one or two and up to ten people would swiftly appear at traffic stops or other sorts of police investigations trackable by radio. These groups would appear as early as within a minute or two after the police arrived on scene. At first, the groups simply filmed the traffic stops, but later they began bringing and displaying deadly weapons while they filmed. The department then decided to provide security in the form of additional officers to assist at and around traffic stops.

Around 5:30 p.m. on January 24, 2015, Officer Kemp and his partner Officer Nathan Deary were dispatched to the 2400 block of Park Row to assist two other officers with a traffic stop already in progress. Officer Kemp described the inherent dangers to police of traffic stops generally, such as getting hit by a vehicle, encountering weapons inside vehicles (a frequent occurrence), assaults, and people resisting or evading arrest.

This particular traffic stop presented its own special concerns, according to Officer Kemp: it involved a known felon with active warrants; the stop's location was sandwiched between two apartment complexes known for their high drug traffic and violence; and this section of Park Row was "very heavily trafficked" at the time. Indeed, video shot at the scene reveals what might best be described as rush-hour traffic. Officer Kemp's role was to provide security, a role that reflected the police's concerns for their own safety, detainees' safety, and the safety of civilians who might be around traffic stops and police investigations as innocent bystanders.

As Officers Kemp and Deary pulled up to this traffic stop, they noticed three camera-wielding people in a parking lot across the street and next to an apartment building. (Lovett was not among this initial group.) Officers Kemp and Deary crossed Park Row to the parking lot, telling the group that they could continue filming but needed to disarm. Only one of the three had a sidearm, and that person complied, walking back to his car and locking his weapon inside. On one of the two videos in evidence, Officer Kemp can be heard thanking that person.

As the two officers were then about to leave and go back across the street, a black Chevy Avalanche pulled up behind them in the parking lot. A passenger, Kory Watkins, got out with an AK-47 on his back; Lovett, the driver, emerged with a deadly weapon holstered on his hip.³ Officer Kemp instructed them both to put their weapons in the vehicle. Watkins complied. Lovett did not.

According to Officer Kemp, the situation had become chaotic by this time, and the two videos (both recorded by the police-filming activists) corroborate his testimony that many people were now yelling. Someone loudly accused the police of "tyranny." Despite the provocations, the two officers were unperturbed and professional. After Officer Kemp gave Lovett two or three warnings to put his weapon away, Officers Kemp and Deary calmly arrested him without incident or resistance. Lovett was the only person at the scene who refused to put his weapon back in his vehicle.

Lovett's pistol remained holstered, and from the videos it appears that the officers did not relieve him of it even while in the process of placing him under arrest.

Throughout the roughly 50 seconds between Lovett's arrival and his arrest, he was passive and—but for nonconfrontationally refusing Officer Kemp's directive—cooperative. Lovett can be seen on video in a T-shirt bearing one of the many now-ubiquitous twists on the British stiff-upper-lip slogan from World War II; his read "Keep Calm and Film the Police."

During the guilt–innocence portion of the trial, Lovett put on one witness, Charles Osborne, who is a former Marine and a weapons expert. When shown Lovett's weapon, he described it as a "remake of a Colt 1851 in .44 caliber originally designated as a Colt Navy." Under the penal code, it was considered a black-powder revolver—and thus not a "firearm"—but as Osborne acknowledged, it could still kill someone—and thus was a "deadly weapon."⁴ According to Osborne, the pistol was a military firearm used during the civil war; killing was what it was designed to do.

On the videos, one person can be overheard repeatedly invoking penal code sections 46.01 and 46.02(3)(B) and telling Officers Kemp and Deary that both the first pistol the officers encountered and the one that Lovett carried holstered on his hip were "pre-1899 black-powder pistols" and therefore not firearms under the statute. The officers declined the activists' offer to let them inspect the first pistol, and when Lovett arrived, the officers ignored the activists' attempts to persuade them that Lovett's pistol, even while holstered, could still be identified as a "pre-1899 black-powder pistol."

Osborne agreed that only a firearms expert would be able to tell at a glance that Lovett's weapon was a statutorily excluded black-powder pistol as opposed to one using rim-fire or center-fire ammunition. Osborne also acknowledged that if he was working perimeter duty while on military assignment and someone showed up with a weapon like Lovett's, it would "look like a firearm" or "like a deadly weapon" to him. But regardless of whether Lovett's pistol was a black-powder replica or an antique gun of some other sort, both Officer Kemp for the State and Osborne for the defense agreed: it could be deadly.⁵

Standard of Review

In our due-process review of evidentiary sufficiency to support a conviction, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found a crime's essential elements beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; Jenkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson , 443 U.S. at 319, 99 S.Ct. at 2789 ; Jenkins , 493 S.W.3d at 599.

The factfinder alone judges the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979) ; Blea v. State , 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary-sufficiency review, we may not re-evaluate evidentiary weight and credibility and then substitute our judgment for that of the factfinder. See Montgomery v. State , 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based on the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied , ––– U.S. ––––, 136 S.Ct. 198, 193 L.Ed.2d 127 (2015). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Id. at 448–49 ; see Blea , 483 S.W.3d at 33.

Discussion

A. Disorderly conduct requires a mens rea that the State did not prove.

The State alleged that Lovett ...