Kevin Brandon Boyd v. The State of Texas--Appeal from County Court of Real County

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MEMORANDUM OPINION

No. 04-03-00591-CR

Kevin Brandon BOYD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court, Real County, Texas

Trial Court No. 01-11-1335-CR

Honorable W.B. Sansom, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 2, 2004

AFFIRMED

A jury found defendant, Kevin Brandon Boyd, guilty of unlawful carrying of a weapon and assessed punishment at thirty days' confinement, probated, and a fine of $1,000.00, probated. In a single issue on appeal, defendant asserts the evidence is legally and factually insufficient to support the jury's verdict. Defendant does not deny he carried the gun or that he did not have a license to carry. Instead, on appeal, he contends the evidence establishes his defense of "traveling." See Tex. Pen. Code Ann. 46.15(b)(3) (Vernon Supp. 2004). (1) We affirm.

DISCUSSION

A person commits the offense of unlawfully carrying a weapon if he intentionally, knowingly, or recklessly carries on or about his person a handgun. See Tex. Pen. Code Ann. 46.02(a) (Vernon 2003). The "traveling exception" or traveling defense to an unlawful carrying of a handgun charge is a question for the trier of fact. Birch v. State, 948 S.W.2d 880, 883 (Tex. App.--San Antonio 1997, no pet.). Texas courts have never explicitly defined traveling, they generally consider the distance, time, and mode of travel. Id. at 882. Mere delay does not deprive one of the defense of traveling, but when one turns aside from his journey to partake of any pleasure or business not connected with the journey, he may lose his traveler status. Id. at 883. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same); Zuniga v. State, No. 539-02, 2004 WL 840786, * 7 (Tex. Crim. App. Apr. 21, 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same).

On June 24, 2001, after an over-night stay in Del Rio, Texas, defendant drove to Kerrville, Texas to look for work. Along the way, at about lunch time, he stopped in Leakey, Texas, which is approximately eleven miles east of his home. Defendant testified he could not drive straight through to Kerrville because he had two bad tires on his truck and little money for fuel. Defendant admitted he had his gun in his truck when he stopped in Leakey. Sometime after lunch, around 2:00 p.m., defendant saw a friend, Ben Martinez. Martinez, who lives in Kerrville, was in Leakey to visit his family and friends. Martinez offered defendant a ride to Kerrville, about an hour's drive away. Defendant left his truck in Leakey, took his gun, and got into Martinez's car. For the next three to five hours, Martinez and defendant drove around.

Instead of driving north to Kerrville, defendant and Martinez drove first to Happy Hollow, about seven miles south of Leakey, to meet Martinez's girlfriend, Denise Reyna, to ask if she wanted something to eat. They then drove to Uvalde, approximately thirty minutes away, to buy Denise food. Once in Uvlade, they stopped at a McDonald's to buy food; they also stopped to buy beer. At approximately 4:30 p.m., defendant and Martinez drove back to Happy Hollow, gave Denise her food, and returned to Leakey.

Martinez and defendant next stopped at the home of Maggie McCree Lloyd and asked if her son was at home. Lloyd, Martinez, and defendant spoke for a short time and then Martinez and defendant began their drive to Kerrville. As they were driving, Martinez and defendant saw police vehicles with the lights flashing, and they decided to follow the vehicles to "see what was going on."

About thirty minutes after Martinez and defendant left her house, Lloyd got in her car to "go for a little spin." As she was driving, she saw Martinez behind her in his car pull over to the side of the road. Lloyd also pulled over and saw a car approaching at a fast rate of speed. Martinez then pulled his car into the road, making a U-turn south back to Leakey, when he was hit by the on-coming car. It was at the scene of the collision that a patrol officer discovered defendant's gun in Martinez's car. No luggage was found in Martinez's car despite defendant's contention that going to Kerrville with Martinez meant "a free ride, free place to stay, free place to eat." The accident occurred at approximately 5:30 p.m. On appeal, defendant explained he had been "bugging" Martinez about going to Kerrville, but he was "willing to sacrifice a little for him to take care of his business before we left."

CONCLUSION

Although the evidence may be sufficient to support defendant's argument that he was "traveling" from Leakey to Kerrville, it was within the jury's province to determine whether he had turned aside from his journey to partake of any pleasure or business not connected with the journey, thereby losing his traveler status. We hold the evidence is legally and factually sufficient to support the jury's verdict and we overrule defendant's issue on appeal. We affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. The "Unlawful Carrying Weapons" statute does not apply to a person who is traveling. See Tex. Pen. Code. Ann. 46.15(b)(3) (Vernon Supp. 2004).

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