Larry Villarreal v. State of Texas--Appeal from Co Crim Ct at Law No 8 of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-01-041-CR

LARRY VILLARREAL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court at Law No. 8

Harris County, Texas

Trial Court # 9943560

O P I N I O N

A jury convicted Larry Villarreal of unlawfully carrying a handgun. The trial court sentenced him to forty-five (45) days imprisonment. In his sole point of error, Villarreal argues that the evidence is legally insufficient to support the verdict.

FACTS

Officer Jason Murray noticed a vehicle with a flat tire at a gas station at 4:00 a.m. Villarreal and two young women were standing outside the vehicle. Murray called in the plates to find out who owned the vehicle, but the car was not currently registered. He stated that all three persons looked under the age of seventeen (17) and acted nervous. // As Murray approached, one of the females departed for the restroom. The officer initiated questioning to determine the names and ages of the three persons. Villarreal was over eighteen years-old. He told Murray that the car belonged to a friend, but could not identify the friend by name. Villarreal then told Murray he was borrowing the car to take the girls home from a party.

Officer Tulson arrived on the scene as back-up and the officers asked Villarreal if there was anything in the car they should know about, such as weapons or contraband. According to Murray, Villarreal responded that there may be a gun in the car. Murray looked through the vehicle s glass and saw the butt of a shotgun protruding from underneath a towel in open view on the backseat floorboard. He entered the car and removed the loaded shotgun from the vehicle. // While retrieving the shotgun, Murray looked under the passenger seat and discovered the handgun. Villarreal denied any knowledge of the handgun.

UNLAWFULLY CARRYING A WEAPON

In his sole point, Villarreal argues that the evidence is legally insufficient to support a conviction for the offense of unlawfully carrying a handgun. Specifically, Villarreal argues that the evidence is insufficient to prove that he intentionally, knowingly, or recklessly carried a handgun. He contends that the evidence showed only that a handgun was present in a car that he told officers he had been driving.

Legal Sufficiency Standard

In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996); Quinton v. State, 56 S.W.3d 633, 641 (Tex. App. Waco 2001, no pet.).

Analysis

Texas Penal Code section 46.02 provides in pertinent part that [a] person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun . . . . Tex. Pen. Code Ann. 46.02(a) (Vernon Supp. 2002).

The State must prove the mens rea element of intentionally, knowingly, or recklessly carrying a handgun. See Hazel v. State, 534 S.W.2d 698, 702 (Tex. Crim. App. 1976). In cases where a weapon is found in a car, the courts have held the evidence sufficient to establish the requisite culpable mental state when the weapon is discovered in plain view. Christian v. State, 686 S.W.2d 930, 933 (Tex. Crim. App. 1985) (regardless of ownership of the vehicle, evidence sufficient where weapon found in plain view and driver alone in the vehicle); See Hazel, 534 S.W.2d at 703 (sufficient evidence to show defendant intentionally, knowingly, or recklessly carried a handgun which was found in plain view at defendant s feet and driver was the sole occupant of the vehicle); Flores v. State, 895 S.W.2d 435, 445-46 (Tex. App. San Antonio 1995, no pet.) (although driver not alone in car and weapon not in plain view, loaded ammunition clip found in open view matching the handguns sufficient to show defendant knew about the weapon). Another consideration of the mens rea element is whether the defendant is the driver and sole occupant of the vehicle. See Hazel, 534 S.W.2d at 703; Christian, 686 S.W.2d at 933. Further, the courts have looked to whether the evidence established an ownership interest in the weapon. See Boatwright v. State, 933 S.W.2d 309, 311 (Tex. App. Houston [14th Dist.] 1996, no pet.) (driver, as sole occupant, told officers that he carried the handgun and knife to protect himself). These factors are not exclusive, but the cases cited above all have one thing in common: the accused was either seen in the vehicle containing the illegal weapon or arrested while in such vehicle.

In the present case, although Villarreal was not seen inside the vehicle, he stated to officers that he had been the driver. He also told the officers the car did not belong to him. The State presented no evidence establishing ownership of the vehicle. Further, Villarreal also told the officers that there may be a weapon in the car, and officers then located the shotgun in plain view on the backseat floorboard. Villarreal, however, denied any knowledge of the handgun discovered underneath the passenger seat. Officer Murray testified that the handgun was not in plain view. Murray added that a driver of the vehicle could not have seen the handgun in its position under the passenger seat. The State did not establish Villarreal as the owner of the handgun or present fingerprint evidence to indicate he had handled the handgun, the magazine, or any ammunition. Moreover, Villarreal was not the only person with access to the vehicle because two female passengers had been inside the car earlier. Neither of the female passengers were called to testify.

Viewing the evidence in the light most favorable to the verdict, we find the evidence legally insufficient to prove that Villarreal intentionally, knowingly or recklessly carried a handgun on or about his person. Accordingly, Villarreal s only point is sustained.

The judgment is reversed and a judgment of acquittal is rendered.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Reversed and rendered

Opinion delivered and filed May 29, 2002

Do not publish

[CR25]