Copr. © West 1997 No Claim to Orig. U.S. Govt. Works
914 S.W.2d 569
(Cite as: 914 S.W.2d 569)
*With Commentary by Paul C. Velte IV, Attorney at Law
Defendant was convicted in the County Criminal Court at Law Number
5, Harris County, Gerald Payte, J., of carrying weapon. Defendant
appealed. The Court of Appeals, Robert E. Morse, Jr., Former Justice,
sitting by designation, 866 S.W.2d 736, affirmed, holding that,
inter alia, carrying pistol between home and place of business
is defense, not affirmative defense, to prohibition against carrying
weapon. The Court of Criminal Appeals, McCormick, P.J., granted
petition for discretionary review and held that the Court of Appeals
applied the requisite proof to qualify for exception to prosecution
for carrying a pistol.
Clinton, J., joined opinion of the Court with separate note.
Overstreet, J., concurred in the result.
White, J., dissented.
Baird, J., dissented with opinion.
Meyers, J., dissented with opinion.
Mansfield, J., dissented with opinion.
Frank R. Hughes, Crosby, Brian W. Wice, Houston, for appellant.
Dan McCrory, Asst. Dist. Atty., Houston, Robert A. Huttash, State's Atty., Austin, for the State.
Before the court en banc.
McCORMICK, Presiding Judge.
Appellant was convicted by a jury of the offense of unlawfully carrying a weapon. Punishment was assessed at a fine of $100 and confinement in the county jail for 180 days, probated for one year. The Fourteenth Court of Appeals affirmed appellant's conviction. Moosani v. State, 866 S.W.2d 736 (Tex.App.Houston [14th] 1993). This Court granted appellant's petition for discretionary review in order to determine whether the Court of Appeals correctly applied the requisite proof to qualify for the exception to prosecution for carrying a pistol.
We find that the Court of Appeals' reasoning is correct and adopt it as our own. Accordingly, the judgment of the Court of Appeals is affirmed.
CLINTON, J., joins the opinion of the Court, observing that contrary to assertions by Judge BAIRD, dissenting at 57273, the Second Amendment does not grant a right to bear arms unrelated to "a well regulated Militia." See Masters v. State, 685 S.W.2d 654 (Tex.Cr.App.1985).
OVERSTREET, J., concurs in the result.
WHITE, J., dissents.
BAIRD, Judge, dissenting.
We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in holding appellant was not entitled to assert a common law defense because he habitually carried a handgun. And, if appellant was not entitled to assert the common law defense, whether he was precluded from asserting the statutory defense of traveling. The plurality avoids these issues by simply adopting the opinion of the Court of Appeals. At an ever increasing pace, a plurality of this Court is treating the issues before us with a glib nonchalance, Gabriel v. State, 900 S.W.2d 721, 728, n. 1 (Tex.Cr.App.1995) (Baird, J., dissenting), and resorting to judicial convenience, Crittenden v. State, 899 S.W.2d 668, 674 (Tex.Cr.App.1995) (Baird, J., dissenting), in order to dispose of our docket. Believing the issues presented in this case are important and require greater thought and consideration than merely adopting the opinion of another court, I dissent.
Appellant was stopped, in front of the convenience store where
he worked, for failing to use a turn signal. As appellant exited
his vehicle, the police officer observed a handgun in a pocket
of appellant's vehicle door. Appellant was arrested for unlawfully
carrying a weapon. Tex.Penal Code Ann. § 46.02. [FN1] At
trial, appellant contended he was entitled to the common law defense
which permits one to carry a handgun between his home and work.
The trial judge found appellant, who habitually carried the handgun
between his home and place of business, was not entitled to assert
the common law defense under Cortemeglia v. State, 505 S.W.2d
296 (Tex.Cr.App.1974). The Court of Appeals affirmed. Moosani
v. State, 866 S.W.2d 736 (Tex.App.Houston [14th Dist.]
1993) (citing, Cortemeglia, 505 S.W.2d at 296).
FN1. Effective September 1, 1994, § 46.02 and § 46.03 were consolidated. Tex.Penal Code Ann. § 46.02 (1995). Even though appellant's conviction occurred prior to the consolidation, all references herein will be to the 1995 version of § 46.02, unless otherwise noted.
A person commits an offense if he intentionally, knowingly, or
recklessly carries a handgun. Tex.Penal Code Ann. § 46.02(a).
However, there are several statutory defenses to this offense.
Tex.Penal Code Ann. § 46.02(b). [FN2] For example, a defendant
may lawfully carry a handgun when "traveling." Tex.Penal
Code Ann. § 46.02(b)(3). Additionally, we have recognized
several common law defenses which arise when the defendant has
a legitimate purpose to carry the weapon. See generally, Deuschle
v. State, 4 S.W.2d 559, 560 (Tex.Cr.App.1927) (Op. on State's
mtn. for rehearing). For example, a person has a legitimate purpose
for carrying a weapon to any of the places excepted by §
46.02(b), such as his home or place of business. See e.g., Pressler
v. State, 19 Tex.App. 52, 53 (right to carry handgun home from
place of purchase); Impson v. State, 19 S.W. 677 (Tex.App.1892)
(right to carry pistol to proper place to have weapon repaired);
Waddell v. State, 37 Tex. 354 (1873) (right to carry a handgun
home from the place of purchase); Bowles v. State, 66 Tex.Crim.
550, 147 S.W. 869 (App.1912) (right to carry gun home from place
of business); Boissean v. State, 15 S.W. 118 (Tex.App.1890) (right
to carry a gun from residence to place of business in order to
clean the gun); Sanders v. State, 20 S.W. 556 (Tex.Cr.App.1892)
(right to carry pistol from residence to place of business); Campbell
v. State, 28 Tex.App. 44, 11 S.W. 832 (1889) (right to carry a
gun from temporary home to a permanent home); and, Stilly v. State,
27 Tex.App. 445, 11 S.W. 458 (1889) (Person has right to carry
handgun when "he ha[s] reasonable grounds for fearing an
unlawful attack on his person."). These common law defenses
are not unlimited, a defendant is entitled to assert such a defense
only if: 1) the purpose for carrying the weapon was legitimate
and not contrived; (2) the route taken was practical; and, (3)
the defendant's journey proceeded without undue delay or unreasonable
deviation. See generally, Cassi v. State, 86 Tex.Crim. 369, 216
S.W. 1099 (App.1919). [This sentence should read: "Judges
have invented a few more hurdles by refusing to even allow the
argument be made to a jury unless three conditions are met to
the Judge's satisfaction:"]
FN2. Tex.Penal Code Ann. § 46.02(b) provides:
(b) It is a defense to prosecution under this section that the actor was, at the time of the commission of the offense:
(1) in the actual discharge of his official duties as a member
of the armed forces or state military forces as defined by Section
431.001, Government Code, or as a guard employed by a penal institution;
(2) on his own premises or premises under his control unless he is an employee or agent of the owner of the premises and his primary responsibility is to act in the capacity of a security guard to protect persons or property, in which event he must comply with Subdivision (5);
(4) engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or was directly en route between the premises and the actor's residence, if the weapon is a type commonly used in the activity;
(5) a person who holds a security officer commission issued by the Texas Board of Private Investigators and Private Security Agencies, if:
(A) he is engaged in the performance of his duties as a security
officer or traveling to and from his place of assignment;
(B) he is wearing a distinctive uniform; and
(C) the weapon is in plain view; or
(6) a peace officer, other than a person commissioned by the Texas
State Board of Pharmacy.
In connection with these common law defenses, we have considered
whether a defendant may carry a handgun habitually. Cortemeglia,
505 S.W.2d 296; and, Chambers v. State, 34 Tex.Crim. 293, 30 S.W.
357 (App.1895). Cortemeglia was arrested for driving while intoxicated
and a handgun was discovered in his glove compartment. Cortemeglia
contended he had a legitimate purpose to carry the weapon, namely
that he was in possession approximately $14,000.00 in cash and
checks. There was further evidence Cortemeglia habitually carried
large sums of money to his home from his store every Friday, taking
the weapon for protection. Each Monday he returned the handgun
to his store. Relying on Chambers, we held Cortemeglia was precluded
from relying upon a common law defense because he habitually carried
the handgun. Cortemeglia, 505 S.W.2d at 297.
Appellant concedes that he habitually carried his handgun to and from his place of business. [THE QUESTION:]
However, appellant asks us to overrule Chambers and its progeny
which preclude the assertion of a common law defense if the carrying
We may not overrule our previous opinions simply because we disagree
with them. The doctrine of stare decisis demands respect for previous
One of the principles of our legal system is that when a point of law has once been settled by decision of the highest court of the state, the decision becomes the law of the state and forms a precedent that is not afterward to be departed from.
16 Tex.Jur.3d Courts, 451, § 119. McGlothlin v. State, 896
S.W.2d 183 (Tex.Cr.App.1995). It is the doctrine of stare decisis
which provides certainty and structure to the criminal justice
system, and once a rule is deliberately adopted and followed,
it should not be abandoned. Id., 896 S.W.2d at 189 (citing, Gearheart
v. State, 81 Tex.Crim. 540, 197 S.W. 187, 188189 (App.1917)).
Only when an earlier decision was clearly erroneous, or some special justification arises, may established precedent be overturned. Ex parte Porter, 827 S.W.2d 324, 331 (Baird, J., dissenting). This special justification may include: the precedent was based on conditions which no longer exist; the inability of the lower courts to apply the precedent; or our subsequent opinions conflict with the precedent. Id. (citing, 105 Harv.L.Rev. 177 (1991)). Based on these guidelines, and giving due deference to our earlier decisions, I believe the time has come to overrule the habitual limitation Chambers placed upon common law defenses.
A careful review of Chambers demonstrates its holding was clearly
erroneous. Before Chambers, evidence that a defendant
habitually carried a weapon was admissible to determine
whether the purpose for carrying the weapon was legitimate or
contrived. In Sanders v. State, 20 S.W. 556 (Tex.Cr.App.1892),
the defendant contended he held a common law defense because he
carried the weapon to his place of business for the purpose of
permitting the owner to redeem it. Ibid. The State was permitted
to question Sanders about the number of times he had previously
carried the weapon. We held the line of questioning was relevant
to determine the truthfulness of Sanders' common law defense:
... The statement of facts does not warrant the conclusion that defendant was returning the pistol to the owner ... While the question of intent or honesty of purpose, in a proper case, may excuse or justify carrying a pistol, yet such matters cannot be simulated for the purpose of evading or violating the law.
Id., citing, Stilly, 11 S.W. 458; and, Impson v. State, 19 S.W.
677 (Tex.App.1892). [THE OLD RULE:] Consequently, a defendant
was entitled to assert a common law defense but the State was
entitled to test its validity with evidence that the defendant
habitually carried a weapon.
Three years later, in Skeen v. State, 30 S.W. 218 (Tex.Cr.App.1895), without citation to authority, we held, for the first time, a defendant who habitually carried a weapon between his house and his place of employment could not assert his common law defense. We stated:
... The appellant, from the evidence, was in the habit of carrying the pistol, it seems, back and forth between his house and his business place. This is not permitted by the law, and does not come within any of the exceptions set forth in the statute.
Id., at 219. However, on rehearing, we reconsidered this holding
and held that Skeen's habitual carrying of a handgun did not preclude
his use of the common law defense. Skeen, 30 S.W. 554 (Tex.Cr.App.1895)
(op. on reh'g). Thus, Skeen, on rehearing, was consistent with
Unfortunately, Chambers was decided in the time between the two Skeen opinions. In Chambers, the defendant asserted the common law defense of carrying his handgun from his home to his place of employment. Id. To assert the common law defense, we noted Chambers must prove a legitimate purpose to carry the weapon. However, we further held the habitual carrying of a weapon could never be legitimate. We stated:
... A person has a right, under the statute, to carry a pistol at his home and at his place of business, and there may be legitimate occasions for his carrying the same between said places,such as have been decided by this court,but we are not inclined to extend a construction of the statute so as to embrace an habitual carrying between one's home and his place of business.
Chambers, 30 S.W. at 357. [FN3] Under this conclusion, a defendant
who habitually carried a weapon was precluded from ever asserting
a common law defense.
FN3. All emphasis is supplied unless otherwise indicated.
This conclusion was reached without citation to any authority, as was our conclusion in Skeen on original submission. Moreover, it contradicted our holding in Sanders, where we held evidence of habitual carrying could be used to rebut the truthfulness of the common law defense, but did not preclude one from asserting the common law defense. Sanders, 20 S.W. at 556. Because Chambers had no basis in law, and because it conflicted with both Sanders and the opinion on rehearing in Skeen, Chambers was clearly erroneous and, therefore, is not entitled to the deference of stare decisis.
Even if the habitual carrying limitation of Chambers was based
in law, I would nevertheless hold that it was not entitled to
the respect commanded by stare decisis because there has never
been a justification for it.
If read alone, § 46.02(a) would prohibit one from ever possessing or carrying a weapon. Such a blanket prohibition would be unconstitutional because the Second Amendment of the United States Constitution and art. I, § 23 of the Texas Constitution provide the right to keep and bear arms. [FN4] To harmonize § 46.02(a) and the constitutions, the Legislature provided several defenses which allow the possession and carrying of weapons in some limited situations or locations. § 46.02(b); see n. 2, supra. However, as noted earlier, we have recognized several common law defenses in addition to those specified in § 46.02(b). For example, we recognized the common law defense authorizing one to purchase a handgun and take it home. Pressler, supra; and, Waddell, supra. Without this common law defense, it would be lawful to purchase a handgun but unlawful to remove it from the place of purchase. The constitutional right to have a weapon would be of little value if one were prohibited from transporting a weapon from its place of acquisition. Additionally, under § 46.02(b)(2) a person has the right to carry a handgun at home or work. However, there is no statutory right to carry a handgun between those locations. Consequently, without the common law exception of Bowles, supra, one would be forced to violate § 46.02(a) in order to possess the weapon at the places authorized by § 46.02(b)(2). We recognized the aforementioned common law defenses in order to uphold the constitutionality of § 46.02(a) and to make meaningful our constitutional right to keep and bear arms. See, Deuschle, 4 S.W.2d at 560.
However, these common law defenses are not available to those who carried handguns habitually. I believe there should be no such limitation. The frequency with which a weapon is carried is not dispositive of the question of whether the purpose is legitimate. Indeed, the reoccurring nature of the purpose may militate in favor of legitimacy. For example, employment is inherently habitual. Unless a person has two handguns, one at work and one at home, the weapon must be carried between the two locations in order to enjoy the rights guaranteed by our constitutions and § 46.02(b)(2). Just as a person may carry a handgun habitually when at home or at work, so too should a person be able to habitually carry a handgun between the two locations. A person should not be denied a common law defense simply because the legitimate purpose for carrying the weapon is reoccurring.
For these reasons, I believe we should overrule Chambers and its
progeny. Evidence that a defendant habitually carried a weapon
should not preclude the defendant from asserting a common law
defense to unlawfully carrying of a weapon. Common law defenses
should be limited to defendants who have a legitimate purpose
for carrying the weapon, the route taken must be practical and
the transportation of the weapon must proceed without undue delay
or unreasonable deviation. Evidence of habitual carrying should
be admissible to determine whether the purpose for carrying the
weapon was legitimate or contrived.
Appellant further contends he was entitled to the statutory defense
of traveling under § 46.02(b)(3). I disagree. I do not believe
the Legislature intended such a broad construction of traveling.
To interpret a statute we look first to its plain language. Boykin
v. State, 818 S.W.2d 782 (Tex.Cr.App.1991). When the statutory
language is ambiguous, or leads to an absurd result, we consider
extratextual factors to determine legislative intent. Under,
the plain language of § 46.02(b)(3), a person is entitled
to a defense against prosecution under § 46.02(a) when "traveling."
Because the Penal Code provides no definition for traveling, we
may consult other sources and determine whether there is some
commonly understood definition. Travel has many accepted definitions;
among them are the following:
1. to go from one place to another, as by car, train, place, or ship, take a trip; journey 'to travel for pleasure'. 2. to move or go from one place or point to another. 3. to proceed or advance in any way.... 11. to journey or traverse ...
Random House Unabridged Dictionary, Second Edition 2014 (1993); and,
1a: to go on or as if on a trip or tour: journey ... c: to go from place to place as a sales representative or business agent ... 2a: to move or under go transmission from one place to another ... 4a: MOVEMENT, PROGRESSION....
MerriamWebster's Collegiate Dictionary 1257 (1993). Thus,
traveling may encompass anything from a journey to motion of any
kind. While a journey might entail a lengthy trip, motion of any
kind could be construed as any type of movement. Therefore, the
plain language of § 46.02(b)(3) is ambiguous. Indeed, almost
a century ago we noted the ambiguity and called for the Legislature
to define traveling. Bain v. State, 38 Tex.Crim. 635, 44 S.W.
Appellant would have us adopt the broadest definition of traveling, one which would include movement of any kind. However, this construction would lead to an absurd result because the exception would subsume the rule. For example, under appellant's construction of § 46.02(b)(3), an individual who carries a handgun throughout the day, every day, going from place to place would be traveling. Under such a construction we would be holding the Legislature intended to prohibit the carrying of a weapon in § 46.02(a), only to allow anyone capable of movement to have a statutory defense to prosecution. § 46.02(b)(3). Because the term traveling is ambiguous, we may look to extratextual factors such as our prior decisions and the Legislature's subsequent approval of those decisions.
The traveling defense provided by § 46.02(b)(3) has remained
unchanged since its promulgation in 1871. Act approved April 12,
1871, 12th Leg., R.S., ch. 34, § 1, 1871 Tex.Gen.Laws 25,
25, reprinted in 6 H.P.N. GAMMEL, LAWS OF TEXAS 927, 927 (1898);
Act of April 10, 1918, 35th Leg., R.S., ch. 91, § 1, 1918
Tex.Gen.Laws 194, 194. See, Rev.P.C.1879, art. 319, Rev.P.C.1895,
art. 339, Rev.P.C.1911, art. 476, Vernon's Ann.P.C. (1925) art.
484, Vernon's Tex.Penal Code Ann. (1973) art. 46.03. However,
over the years, we have considered the traveling defense a number
of times. See, Stilly, supra; Campbell v. State, supra; Impson,
supra; Bain, supra; Williams v. State, 44 Tex.Crim. 494, 72 S.W.
380 (App.1903); Hickman v. State, 71 Tex.Crim. 483, 160 S.W. 382
(App.1913); Williams v. State, 74 Tex.Crim. 639, 169 S.W. 1154
(App.1914); Mayfield v. State, 75 Tex.Crim. 103, 170 S.W. 308
(App.1914); Witt v. State, 89 Tex.Crim. 368, 231 S.W. 395 (App.1921);
George v. State, 234 S.W. 87 (Tex.Cr.App.1921); Wortham v. State,
95 Tex.Crim. 135, 252 S.W. 1063 (App.1923); Hall v. State, 102
Tex.Crim. 329, 277 S.W. 129 (App.1925); Christian v. State, 105
Tex.Crim. 562, 289 S.W. 54 (App.1926); Grant v. State, 112 Tex.Crim.
20, 13 S.W.2d 889 (App.1928); Vogt v. State, 159 Tex.Crim. 211,
258 S.W.2d 795 (App.1953); Kiles v. State, 398 S.W.2d 568 (Tex.Cr.App.1966);
Allen v. State, 422 S.W.2d 738, 739 (Tex.Cr.App.1967); Smith v.
State, 630 S.W.2d. 948 (Tex.Cr.App.1982); and, Ayesh v. State,
734 S.W.2d 106 (Tex.Cr.App.1987).
The primary purpose underlying the traveling defense is to allow persons traveling upon the public highways to protect themselves. In Maxwell v. State, 38 Tex. 170, 171 (1873), the Texas Supreme Court held, "the act prohibiting the carrying of deadly weapons was not intended to prevent persons traveling in buggies or carriages upon the public highway from placing arms in their vehicles for selfdefense." [FN5] See, Christian v. State, 105 Tex.Crim. 562, 289 S.W. 54 (App.1926) (Defendant who traveled 175 miles from Austin to Houston was traveling because the purpose of the traveling defense was to allow persons to protect themselves on the public highways.). Further, in Waddell v. State, 37 Tex. 354 (1872), the Texas Supreme Court equated "traveling" with a day long journey:
FN5. At the time of this opinion, the Texas Supreme Court had jurisdiction over both civil and criminal appeals.
Persons living remote from their county seats or market towns, where a day's journey going and coming is required, and where often, from the necessities of business, even a portion of the night is used, should be regarded as within the meaning of [the traveling defense].
Id., at 356. Our later interpretations of the traveling defense
are consistent with Waddell. Stilly, 11 S.W. 458 (Defendant who
traveled fifty miles may carry his weapon.); Impson, 19 S.W. 677
(Defendant who carried his weapon sixty miles for repair was traveling.);
Thomas v. State, 37 Tex.Crim. 142, 38 S.W. 1011 (App.1897) (Defendant
who carried his weapon on a train from Brownwood to Ft. Worth
and back was traveling.); and, Williams v. State, 44 Tex.Crim.
494, 72 S.W. 380 (App.1903) (Defendant who carried his weapon
on a onehundred fifty mile journey daily was traveling.).
But not every journey falls within the traveling defense. In George
v. State, 90 Tex.Crim. 179, 234 S.W. 87 (App.1921), we held a
shorter journey insufficient to constitute traveling:
We have examined all the authorities cited by appellant and many others, and have found no case holding in substance that a man who goes a distance which can be covered in two hours, in the broad daylight, along a road where he was probably never out of sight of a number of houses, is held to be a traveler. We have found no case where a man is held a traveler whose absence was for less than a day.
Id., 234 S.W. at 88. Thus, a defendant who travels a short distance,
capable of being traversed in a short period of time, will not
meet the traveling defense. See, Williams v. State, 74 Tex.Crim.
639, 169 S.W. 1154 (Tex.Cr.App.1914) (Defendant who carried his
weapon on a twentysix mile journey was not traveling.);
Wortham v. State, 95 Tex.Crim. 135, 252 S.W. 1063 (App.1923) (Defendant
may not carry a weapon on a thirtyfive mile journey lasting
one to one and half hours.); Hall v. State, 102 Tex.Crim. 329,
277 S.W. 129 (App.1925) (A journey to a point thirty or thirtyfive
miles distant was not traveling within the statute.); and, Vogt
v. State, 159 Tex.Crim. 211, 258 S.W.2d 795 (App.1953) (Defendant
may not carry a weapon on a five hour journey.). Additionally,
when the defendant's journey requires that he be absent from home
overnight, we have construed the journey to constitute "traveling."
See, Grant v. State, 112 Tex.Crim. 20, 13 S.W.2d 889, 891 (App.1928)
(Defendant who traveled by wagon fifty miles and stayed overnight
was traveling.); Williams v. State, 114 Tex.Crim. 177, 21 S.W.2d
672, 673 (App.1929) (Defendant who drove from his home in Mineola
(Wood County) to Dallas to stay overnight, conducting business
along the way, was traveling.); and, Allen v. State, 422 S.W.2d
738, 739 (Tex.Cr.App.1967) (Defendant who made a one hundred and
twenty mile trip to see his family over a weekend was traveling.).
Moreover, when a journey ceases the defendant is no longer traveling. But, a temporary cessation of the journey is allowed if the defendant remains engaged in business conducted with his journey. Stilly, supra; and, Evers v. State, 576 S.W.2d 46, 50 (Tex.Cr.App.1978) (Once the defendant arrives at his destination, secures a room and remains over night, he ceases to be a traveler). See also, Ballard v. State, 74 Tex.Crim. 110, 167 S.W. 340 (App.1914).
When the Legislature amends other portions of the statute, but declines to change the specific language before the Court, we presume legislative approval of our statutory interpretations. Marin v. State, 891 S.W.2d 267, 271272 (Tex.Cr.App.1994) ("[W]hen the Legislature meets, after a particular statute has been judicially construed, without changing that statute, we presume the Legislature intended the same construction should continue to be applied to that statute."). Further, the Code Construction Act provides, "when examining amendments to existing legislation to determine legislative intent, it is presumed that the legislature was aware of case law affecting or relating to the statute." Id., citing, Tex.Gov't Code Ann. § 311.023(3); and, Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Cr.App.1992).
Since the Legislature had not defined traveling in its many sessions since we began interpreting it, I can confidently state that our past interpretations are in harmony with the Legislature's intent. Thus, to meet the traveling defense, a defendant must demonstrate that, at the time of arrest, he was on a journey, the duration of which was substantial. Although the traveling defense does not require an overnight stay, such evidence will often militate toward a finding the defendant was traveling. George, supra; and, Christian, 289 S.W. at 54.
Appellant was not engaged in a substantial journey, but commuting
between his home and place of employment. Although the record
contains no evidence of the duration of appellant's journey, it
is clear appellant lived and worked in the Harris County area.
Such evidence has never been sufficient to constitute traveling
under § 46.02(b)(3) or its predecessors.
This petition presents two issues that should be resolved by this
Court. Rather than avoiding our responsibilities and taking the
easy way out by adopting the opinion of another court, we should
recognize that our opinion in Chambers was erroneous, overrule
it and hold appellant was entitled to assert his common law defense
in spite of his habitual carrying of the handgun. Because the
plurality fails to do so, I dissent.
MEYERS, Judge, dissenting.
Our law provides that "[a] person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club." Texas Penal Code § 46.02(a). However, this prohibition "do[es] not apply to a person ... traveling[,]" Texas Penal Code § 46.03(a)(3), and if raised by the evidence, it is the State's burden to prove beyond reasonable doubt that an accused was not "traveling" at the time of the alleged offense.
The facts are not in dispute. Appellant is the night manager of a convenience store. He keeps a handgun at the store to defend himself against robbers. When he is not working, he keeps the same gun at home. To get the gun from one place to the other, he carries it with him when he travels back and forth. Appellant maintains that, under these circumstances, the evidence is insufficient to sustain his conviction because no rational trier of fact could have concluded beyond reasonable doubt that he was not "traveling" at the time of the alleged offense.
The Court of Appeals, relying on Cortemeglia v. State, 505 S.W.2d 296 (Tex.Crim.App.1974), held that the "traveling" exemption does not apply to persons who carry weapons habitually, and that, in this case, a "rational trier of fact could have found beyond a reasonable doubt that Moosani was carrying his weapon habitually." Moosani v. State, 866 S.W.2d 736, 73839 (Tex.App.Houston [14th Dist.] 1993). We granted discretionary review to clarify some of the circumstances under which carrying a weapon is lawful in Texas society. Tex.R.App.Proc. 200(c)(2).
At the outset, I would acknowledge that the Court of Appeals is right about Cortemeglia. Our opinion in that case does hold that a person may travel with a handgun from one place of lawful possession to another so long as he doesn't do it very often. But that case construes a statute which has not existed in our law for more than twenty years. See Vernon's Ann.Penal Code. art. 483 et seq. (West 1952), repealed by Acts 1973, 63rd Leg., p. 991, ch. 399, § 3(a), eff. Jan. 1, 1974. As the Cortemeglia Court itself explained,
[t]his case was tried before the effective date of the new Penal Code and we express no opinion as to the effect Title 10, Ch. 46, Secs. 46.01 et seq., Acts 1973, 63rd Leg., Ch. 399, p. 962, may have upon the rule of law enunciated[.] Thus, Cortemeglia, by its own terms, does not control because the instant cause was prosecuted under the "new Penal Code."
Nevertheless, our current statute does not differ on it face in
any material respect from the one construed in Cortemeglia. See
Evers v. State, 576 S.W.2d 46 (Tex.Crim.App.1978). Both provide
that the law against carrying weapons does not apply to persons
"traveling." Penal Code § 46.03(a)(3) (West 1994);
Penal Code art. 484 (West 1952). The issue, then as now, is whether
conduct such as that in which appellant was engaged may constitute
"traveling" under the statute.
Appellant urges us to reconsider the holding in Cortemeglia, and there are some compelling reasons to do so. As the practice commentary for section 46.03 (West 1989) notes,
[s]ubdivision (3) is derived directly from prior law without any clarification, and the traveler's exemption was one of the most enigmatic provisions of the prior weapons offense. The courts never defined "traveling" but in each case considered distance, time, and mode of travel.
As a result, the case law in this area is difficult to reconcile
with the legislation it construes, since neither the former statute
nor the one which applies to this case purports to condition availability
of the "traveling" exemption upon any of these factors,
or upon the frequency with which an accused actually travels from
one place to another. Rather, it appears that the Court simply
fabricated these conditions from whole cloth over an extended
period of time. See, e.g., Stanfield v. State, 34 S.W. 116 (Tex.Crim.App.1896);
Kemp v. State, 116 Tex.Crim. 90, 31 S.W.2d 652 (1930); Kiles v.
State, 398 S.W.2d 568 (Tex.Crim.App.1966).
While such an ad hoc judicial approach as one finds in opinions like Cortemeglia and its predecessors may once have been thought consistent with the role of courts in our government, we no longer take quite so casual an attitude toward the implementation of statutes passed by the legislature. Rather, it is now the preferred method of this Court to read all such statutes according to their plain terms, understood as common acceptation in ordinary English allows, unless specially defined by the legislature itself. Boykin v. State, 818 S.W.2d 782, 785786 (Tex.Crim.App.1991).
Considered from this perspective, it is apparent that the meaning of "travel" in ordinary parlance does not depend in any degree upon the purpose or frequency of excursion, the mode of transportation, the distance covered, or the time of day. These criteria for the legality of carrying a weapon in Texas were all devised by the Court in order to implement what it thought the law was meant to accomplish or should have been meant to accomplish, and not to effectuate the plain meaning of the word "traveling."
In the English language, "travel" may take any of the following meanings, depending upon the context in which it is used.
1: to go on or as if on a trip or tour: JOURNEY 2: to move as if by traveling: PASS <news <<SYM>>s fast> 3: ASSOCIATE 4: to go from place to place as a salesman 5: to move from point to point <light waves <<SYM>> very fast> 6: to journey over or through <<<SYM>>ing the highways>
The New MerriamWebster Dictionary, p. 763 (1989). The context
in which the word appears in section 46.03(a)(3) of the Penal
Code does not plainly suggest that any of these meanings, with
the exception of "associate," is inapplicable or that
any one meaning was intended to the exclusion of others. Neither
can the word be considered ambiguous or absurd as it is used in
the statute, since there is nothing inconsistent or contradictory
about employing the word as the legislature actually did to exempt
all conduct which the ordinary meaning of "travel" includes.
Under these circumstances, the word should be understood by the
courts to have the broadest possible meaning permitted by common
usage, just as it would be understood by any competent English
language speaker reading the statute in context for the first
time. Vernon v. State, 841 S.W.2d 407, 40910 (Tex.Crim.App.1992).
The State urges us not to take this approach but to construe the traveling exemption much as it was in the past, mainly because a more liberal interpretation could result in people "regularly arming themselves as they move about the city." Admittedly, this scenario is alarming, although it is not apparent to me that all movement within a city may fairly be characterized as "traveling" in ordinary English. But if the prosecuting attorney or others think some extraordinary definition of "traveling" is necessary to prevent this dangerous prospect, they should take their complaint to the legislature, where they will find people with authority to amend the statute. They will find no such people on this Court.
The extent of our power to change the law is limited to judicial review and statutory construction. The former authority permits us to set aside statutes when they conflict with the constitution. The latter permits us to resolve ambiguities within statutes and to harmonize them with one another. Neither authorizes us to rewrite statutes in order to make our society a better place. That enviable task is reserved to the legislature. Our job, and that of every court with criminal jurisdiction in this State, is to implement the law as the legislature has written it. Accordingly, to the extent that Cortemeglia and other of our opinions construing the "traveling" exemption are to the contrary, I would overrule them.
Because the Fourteenth Court of Appeals evaluated the sufficiency of evidence in this case with reference to an extraordinary definition of "traveling" not found in the statute, and because I would now abandon that extraordinary court made definition, my vote is to vacate the judgment of the Court of Appeals and remand this cause there for reconsideration of appellant's sufficiency points. Because a majority of this Court will not do so, I respectfully dissent.
MANSFIELD, Judge, dissenting.
The facts in this matter are undisputed. Appellant is the night manager of a convenience store in north Houston. Because he often carries the store's receipts and is concerned about robberies, he keeps a handgun at the store and in his car while driving between the store and his home in Baytown, a distance of approximately thirty miles.
On April 6, 1992, appellant was followed into the parking lot at his convenience store by a police officer, who observed a traffic violation apparently committed by appellant. As the officer approached the car, he observed a handgun inside. Appellant was immediately taken into custody for carrying a weapon in violation of Texas Penal Code § 46.02. He was tried and convicted, with punishment of 180 days in the county jail, probated for one year, and a fine of $100. The Fourteenth Court of Appeals affirmed. Moosani v. State, 866 S.W.2d 736 (Tex.App.Houston [14th Dist.] 1993).
Texas Penal Code § 46.02(a) (1992) provides that a person commits an offense if he intentionally, knowingly or recklessly carries on or about his person a handgun, club or illegal knife. An offense under this section is a Class A misdemeanor, unless committed on premises licensed to sell alcoholic beverages, in which case the offense is a third degree felony. However, it is a defense to prosecution under § 46.02(a) if the individual, at the time of the offense, is at home or on premises under his control. See Tex.Penal Code § 46.03(a)(2) (1992).
Clearly, appellant has a right to possess a handgun at his home. As night manager of the convenience store, he also has a right to possess a handgun there since he has the premises under his control. If he were merely an employee, he would not have the right to possess a weapon at the convenience store, lacking control over same as a nonmanager.
This Court has issued a series of rulings concerning § 46.03(a)(3), which states that "traveling" is a defense to prosecution under § 46.02(a). See, e.g., Cortemeglia v. State, 505 S.W.2d 296 (Tex.Crim.App.1974); Evers v. State, 576 S.W.2d 46 (Tex.Crim.App.1978); Kiles v. State, 398 S.W.2d 568 (Tex.Crim.App.1966). Relying on Cortemeglia, the Court of Appeals upheld the conviction in this case, claiming that appellant's driving back and forth to work is habitual and therefore not "traveling." If, in fact, appellant had been going to a friend's home, shopping, or just driving around, I would agree that the conviction should be upheld. Alternatively, it is clear that had he been stopped on his way to Dallas, he would have been "traveling" as that term is defined in Cortemeglia.
However, this is not a traveling case. It is undisputed that appellant was merely transporting his handgun from one place where it was legal for him to possess it to another such place. The only practical means by which he could do so was by car. This Court held in Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App.1991), that it would, when interpreting a statute, focus on the statutory language itself and would strive to discern its fair and objective meaning as of the time of enactment. The Court held that "... where application of a statute's plain meaning would lead to absurd consequences that the Legislature could not possibly have intended, we should not apply the language literally." Boykin, at 785.
Consistent with the Court's reasoning in Boykin, I believe it was the intent of the Legislature, when it enacted § 46.03(a)(2), that it is a defense to prosecution under § 46.02(a) that, at the time of the carrying of the weapon, the individual was on his way from his home to his place of business provided he is either an owner or manager of the business. Thus, on the undisputed facts of this case, no rational jury could have found that the § 46.03(a)(2) defense was inapplicable to appellant's conduct.
Accordingly, I would reverse the judgment of the Court of Appeals and remand this case to that court for rendition of a judgment of acquittal. [FN1]
FN1. Although the question is not raised in appellant's petition for discretionary review, it is my opinion that appellant may have had a right to carry a weapon, given the facts presented, under the Second Amendment to the United States Constitution and/or Article I, § 23, of the Texas Constitution.
END OF DECISION
FN4. U.S. Const., amend. II provides:
A well regulated Militia being necessary to the security of a free State the right of the people to keep and bear arms, shall not be infringed."
Tex. Const., art. I, § 23 provides:
Every citizen shall have the right to keep and bear arms in the
lawful defense of himself or the State; but the Legislature shall
have power, by law, to regulate the wearing of arms, with a view
to prevent crime.
Judge Clinton's concurring note cites Masters v. State, 685 S.W.2d
654 (Tex.Cr.App.1985), as holding the right to bear arms is limited
to maintaining "a well regulated Militia." This is neither
the law nor the holding of Masters. In fact, "militia"
is not mentioned in either the majority opinion or Judge Clinton's
concurring opinion in Masters.