Gary Boswell v. State ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00331-CR

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Gary Boswell, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. B-98-0719-S, HONORABLE DICK ALCALA, JUDGE PRESIDING

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Appellant Gary Boswell was indicted for recklessly possessing a firearm on the grounds of an activity sponsored by a school or educational institution. See Tex. Penal Code Ann. § 46.03(a)(1) (West Supp. 2000). A jury found him guilty of the lesser included offense of recklessly carrying a handgun. See id. § 46.02(a). The jury assessed punishment at incarceration for six months and a $4000 fine, probated. We will affirm.

Project Graduation is a program designed to give graduating high school seniors a place to celebrate in a safe, supervised, drug- and alcohol-free environment. Project Graduation for the San Angelo public high schools was held on May 22, 1998, at a local shopping mall. Appellant, the owner of a San Angelo security services firm, was a volunteer assigned to work as a dealer in the casino games area. He arrived at the mall that night wearing his security services uniform, including a holstered .357 caliber revolver. The deputy sheriff guarding the entrance to the mall testified that he admitted appellant with his weapon after appellant indicated that he was a member of the security detail. Appellant was arrested later that night after it was determined that he had not been employed or assigned to work security during Project Graduation.

Appellant moved for an instructed verdict of not guilty after the State rested. He contends the district court erred by overruling this motion because there was no evidence that the San Angelo Independent School District sponsored Project Graduation as alleged in the indictment. This contention is incorrect. A member of the school board testified that the district sponsored the project. There was also evidence that the school district provided funding and services to the project. Point of error one is overruled.

Appellant contends the district court erred by authorizing his conviction for unlawfully carrying a handgun because the jury panel had not been "qualified" on the range of punishment for the lesser offense during voir dire. Appellant cites no authority that supports this contention and we are aware of none. We also note that appellant did not object to submission of the lesser included offense on this or any other ground. Point of error three is overruled.

Next, appellant contends the district court erred by accepting the jury's verdict convicting him of the lesser offense because it "made no finding on the offense charged," by which we assume he means the offense alleged in the indictment. The court's charge instructed the jury to consider the lesser included offense only if it first found or had a reasonable doubt that appellant was not guilty of the greater alleged offense. A conviction for a lesser included offense constitutes an acquittal of the greater offense. See Tex. Code Crim. Proc. Ann. art. 37.14 (West 1981). Finding no defect in the jury's verdict, we overrule point of error two.

Points of error five and six challenge the sufficiency of the evidence to support appellant's conviction for unlawfully carrying a handgun. ⁽¹⁾ Both points are concerned with the application of section 46.15 in this case. See Tex. Penal Code Ann. § 46.15 (West Supp. 2000). Section 46.15 provides that section 46.02 does not apply to a person who holds a security officer commission issued by the Texas Board of Private Investigators and Private Security Agencies if the person is engaged in the performance of his duties as a security officer and wearing a distinctive uniform, and if the weapon is in plain view. See id. § 46.15(b)(5). The district court treated this provision as an exception to the application of section 46.02, and therefore required the jury to find appellant not guilty of unlawfully carrying a handgun unless the State proved beyond a reasonable doubt that appellant was not a certified security officer engaged in the performance of his duties, wearing a distinctive uniform, and carrying his weapon in plain view on the night in question. See Tex. Penal Code Ann. § 2.02(b) (West 1994).

By point of error five, appellant contends the State failed to prove that he was reckless "about any risk concerning whether he was in the performance of his duties as a security guard." We find this contention, for which appellant cites no authority, to be without merit. Section 46.15(b)(5) does not require proof of a culpable mental state with respect to the circumstances giving rise to the exception it creates. Point of error five is overruled.

In point of error six, appellant urges that the district court should have granted his motion for new trial because "there was substantial evidence to establish" the applicability of the security officer exception in this case. We construe this point as contending that the jury's failure to find that the exception applied was against the great weight and preponderance of the evidence. See Taylor v. State, 947 S.W.2d 698, 702 (Tex. App.--Fort Worth 1997, pet. ref'd); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed) (factual sufficiency review).

The coordinator of Project Graduation testified that when appellant approached her and volunteered his security services, she informed him that she did not handle security and referred him to the person who did. The director of security for Project Graduation testified that he arranged for security to be provided by city and county law-enforcement officers. He testified further that appellant was not asked or assigned to provide security services or work as a security guard for Project Graduation. While there was evidence that appellant claimed to be providing security for Project Graduation, the jury's failure to find that appellant was engaged in the performance of his duties as a security officer was not against the great weight and preponderance of the evidence. Point of error six is overruled.

Finally, appellant contends the district court erred by sustaining the State's objection to the admission in evidence of a letter written to defense counsel by a witness. The prosecutor stated, without elaboration, that his objection was on the basis of rule 613. Appellant argues that the referenced rule is the witness exclusion rule that has no application in this context. This argument fails to take into account the adoption of the uniform rules of evidence effective March 1, 1998. Under the rules of evidence in effect now and at the time of appellant's trial, the witness exclusion rule is rule 614. See Tex. R. Evid. 614. The State properly relied on rule 613, which provides that a prior statement of a witness which is consistent with the witness's testimony is generally inadmissible. See Tex. R. Evid. 613(c). The witness testified that the letter was consistent with his testimony. No error is presented. Point of error four is overruled.

The judgment of conviction is affirmed.

Mack Kidd, Justice

Before Justices Jones, Kidd and Davis;^* Justice Davis not participating

Affirmed

Filed: January 21, 2000

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

1. The State contends appellant is estopped from challenging the sufficiency of the evidence because he did not object to the court's submission of the lesser included offense, citing State v. Taylor, 818 S.W.2d 778, 780-81 (Tex. Crim. App. 1991). This opinion expressed the views of only three members of the court and has since been overruled in part. See Moore v. State, 969 S.W.2d 4, 9-10 (Tex. Crim. App. 1998). At issue in Taylor was the unique relationship between murder and the former offense of voluntary manslaughter. When this context is considered, the opinion does not support the proposition for which it is cited by the State.

ulpable mental state with respect to the circumstances giving rise to the exception it creates. Point of error five is overruled.

In point of error six, appellant urges that the district court should have granted his motion for new trial because "there was substantial evidence to establish" the applicability of the security officer exception in this case. We construe this point as contending that the jury's failure to find that the exception applied was against the great weight and preponderance of the evidence. See Taylor v. State, 947 S.W.2d 698, 702 (Tex. App.--Fort Worth 1997, pet. ref'd); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed) (factual sufficiency review).

The coordinator of Project Graduation testified that when appellant approached her and volunteered his security services, she informed him that she did not handle security and referred him to the person who did. The director of security for Project Graduation testified that he arranged for security to be provided by city and county law-enforcement officers. He testified further that appellant was not asked or assigned to provide security services or work as a security guard for Project Graduation. While there was evidence that appellant claimed to be providing security for Project Graduation, the jury's failure to find that appellant was engaged in the performance of his duties as a security officer was not against the great weight and preponderance of the evidence. Point of error six is overruled.

Finally, appellant contends the district court erred by sustaining the State's objection to the admission in evidence of a letter written to defense counsel by a witness. The prosecutor stated, without elaboration, that his objection was on the basis of rule 613. Appellant argues that the referenced rule is the witness exclusion rule that has no application in this context. This argument fails to take into account the adoption of the uniform rules of evidence effective March 1, 1998. Under the rules of evidence in effect now and at the time of appellant's trial, the witness exclusion rule is rule 614. See Tex. R. Evid. 614. The State properly relied on rule 613, which provides that a prior statement of a witness which is consistent with the witness's testimony is generally inadmissible. See Tex. R. Evid. 613(c). The witness testified that the letter was consistent with his testimony. No error is presented. Point of error four is overruled.

The judgment of conviction is affirmed.

Mack Kidd, Justice

Before Justices Jones, Kidd and Davis;^* Justice Davis not participating

Affirmed

Filed: January 21, 2000

Do Not Publish

^*