Calvin Ray Burtchell v. The State of Texas--Appeal from 385th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CALVIN RAY BURTCHELL,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00402-CR

Appeal from the

385th District Court

of Midland County, Texas

(TC# CR28453)

O P I N I O N

This is an appeal from a jury conviction for the offense of unlawfully carrying a firearm. The court assessed punishment at five years community supervision. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

The testimony at trial revealed that on April 5, 2003, James Edward Gee was at the Town and Country Convenience Store on the Garden City Highway in Midland, Texas. As he was filling his vehicle with gasoline, he saw Appellant at the gas pumps. He appeared to be agitated because he had spilled fuel on himself. Appellant took off his coat and Gee saw a pistol tucked into the back waist of Appellant s pants. Appellant put his coat back on and he walked into the store. Gee flagged down a police officer and related what he had seen.

Lorenzo Dominguez, Jr., a police officer with the City of Midland, testified that Gee hailed him and related what he had seen. He and another officer took Appellant into custody in the bathroom of the convenience store. A nine-millimeter pistol was taken from his waistband. Appellant possessed a card that permitted him to carry a concealed weapon in Arizona; however, it was expired. Appellant was arrested for unlawfully carrying a weapon on a premises licensed to sell alcohol.

Billy Jack Sellars testified that he was a jailer at the Midland County Jail. On April 5, 2003, he booked Appellant into the jail. He performed a search for weapons and contraband on Appellant s person. As Appellant was about to take off his boots, he told Sellars that he had some stuff in his boot. Appellant took off his boots and socks and took out from his sock a bag with a white powdery substance and a small straw in it. Appellant stated that it was meth. A subsequent analysis revealed that the substance was methamphetamine.

George Louis Nesrsta, Jr., testified that he was the regional director of operations for Town and Country Food Stores. He testified that the Garden City Highway Town and Country Store was licensed to sell alcoholic beverages. The witness stated that a sign stating that the unlicensed possession of a weapon on the premises is a felony was posted on the front of the store.

Appellant testified in his own defense. He stated that on the day of the occurrence, he was traveling from Waco, Texas to Sierra Vista, Arizona in an El Camino truck he had bought from his father. The El Camino broke down and he continued his trip on the Harley-Davidson motorcycle he was carrying in the back of the truck. He had stopped at the Town and Country Convenience Store to get gasoline for the motorcycle. Appellant testified that he was carrying the pistol for his own safety and he did not know that the Arizona permit had expired. He did not know he could not take a pistol into the store and he denied that he saw the sign in the front of the store forbidding such an act.

Appellant stated that when he got to the booking area of the jail, there were two suspects before him. As he was taking off his socks, he saw a bag on the floor and he picked it up and gave it to the jailer, Sellars. He asked Appellant what it was and Appellant stated, It could be sugar. It could be gold fast. When asked what gold fast was, Appellant stated, meth. Appellant testified that he answered that way because he did not actually know what was in the bag.

During cross-examination, Appellant admitted that the concealed weapons permit stated on its face that it was only valid in Arizona although he thought he could carry the weapon in another state while traveling.

II. DISCUSSION

In Issue No. Two, Appellant asserts that due to a mistake of fact, he did not possess the requisite mens rea to establish criminal culpability. // Specifically, Appellant maintains that as he testified that he was traveling and he was not aware that his Arizona permit to carry a concealed weapon had expired, he believed he could carry the handgun with impunity; therefore, he did not have the requisite intent to commit the charged offense.

The jury was not charged on the defense of mistake of fact and Appellant did not request an instruction on that defense. Initially, we note that Appellant was not entitled to an instruction on the defense of mistake of fact. The application paragraph of the charge to the jury read, in pertinent part:

[D]id then and there intentionally, knowingly or recklessly carry on or about his person a handgun, while on certain premises licensed or issued a permit by the State of Texas for the sale or service of alcoholic beverages, to-wit: Town-n-Country, 3115 Garden City Highway, in said county and State, you will find the defendant guilty of the offense of UNLAWFUL CARRYING A WEAPON ON LICENSED PREMISES as alleged in the indictment. . . .

To be entitled to a mistake of fact defense, the evidence must raise an issue as to whether the defendant mistakenly formed a reasonable belief about a matter of fact that would negate the kind of culpability required for the commission of the offense. Tex. Penal Code Ann. 8.02 (Vernon 2003). The statutory term kind of culpability means culpable mental state. Posey v. State, 966 S.W.2d 57, 70 (Tex.Crim.App. 1998). The defense arises, then, when there is evidence that a defendant s mistaken, reasonable belief about a matter of fact negated the element of the culpable mental state required for the offense. Id.

Where the alleged mistaken fact is a matter that is readily discernable by a simple empirical method of investigation that is universally accepted, a mistake of fact defense is not raised by the accused s failure to properly utilize that method. King v. State, 919 S.W.2d 819, 821 (Tex.App.--El Paso 1996, no pet.). Here, Appellant could readily have examined his expired carry permit and discerned that it was operative only in Arizona. Accordingly, he was not entitled to an instruction on the defense of mistake of fact. Issue No. Two is overruled.

In Issue No. Three, Appellant maintains that counsel for the State utilized improper jury argument at the guilt-innocence stage of trial. During argument counsel for the State argued that the date of the offense was proved, the fact that the convenience store was a licensed premises had been proved, and that the chain of custody is totally locked up. No objection was made to any of these statements. The failure to object to a jury argument or to pursue an objection to an adverse ruling forfeits his right to complain about the argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Issue No. Three is overruled.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

April 21, 2005

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)