Clark v. State
| Decision Date | 17 September 1975 |
| Docket Number | No. 49910,49910 |
| Citation | 527 S.W.2d 292 |
| Parties | Edward Ross CLARK, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
James P. Finstrom, Court-appointed, Dallas, for appellant.
Henry Wade, Dist. Atty. and Gary Love, Bob Whaley and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for carrying a pistol on licensed premises. Punishment was assessed at three years.
Bessie Sylvester, owner and manager of the Anchor Room Bar, testified that a man in the bar was carrying a pistol on November 3, 1972. She called the police. Officers Hay and Warren and a civilian observer, James McConnell, responded to the call. McConnell testified that he saw a man pass a gun to appellant in the bar. Appellant laft the bar with the pistol. Officer Warren arrested appellant outside the bar. Appellant resisted arrest and attempted to throw the gun on top of a nearby building.
Bessie Sylvester testified that the Anchor Room Bar was licensed to sell alcoholic beverages by the Texas Alcoholic Beverage Commission.
We conclude that the evidence is sufficient to support the conviction.
Appellant contends that the indictment fails to specifically allege that appellant carried a pistol on licensed premises. The indictment, omitting the formal parts, alleges that:
'. . . Edward Ross Clark hereinafter styled Defendant, on or about the 4 day of November in the year of our Lord One Thousand Nine Hundred and seventy-three in the County and State aforesaid, did unlawfully, carry on and about his person, a pistol, said pistol having been carried in the premises located at 2000 Second Avenue, in the City of Dallas, Texas, said premises being covered by a permit and license issued under the provisions of the Texas Liquor Control Act. . . .'
The indictment alleges that appellant carried a pistol and immediately thereafter alleges 'said pistol having been carried in the premises located at 2000 Second Avenue, in the City of Dallas, Texas,' and that said premises 'being covered' by a permit and license. The indictment, read as a whole, alleges that appellant carried a pistol on licensed premises. The allegations in the indictment were sufficient to apprise appellant of the offense under the statute. McKenzie v. State, 450 S.W.2d 341 (Tex.Cr.App.1970), 408 U.S. 938, 92 S.Ct. 2868, 33 L.Ed.2d 758, on remand, 488 S.W.2d 801, (Tex.Cr.App.1972); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); Besson v. State, 515 S.W.2d 112 (Tex.Cr.App.1974); Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971).
Appellant next contends that the trial court erred in refusing to submit a requested charge on a lesser included offense of unlawfully carrying a prohibited weapon. Appellant offered no evidence on the issue of the lesser included offense and the testimony of the State's witnesses was uncontradicted. In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), this Court wrote:
'. . . merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense.'
This contention is overruled.
Appellant next contends that the trial court erred in failing to charge the jury that appellant was guilty only if he intended to carry the pistol on a licensed premise. The trial court charged the jury on each element of the offense. No error is shown.
Appellant contends that Article 483, V.A.P.C., is constitutionally overbroad. Article 483 provides that carrying a pistol is a felony if 'the offense is committed by a person while in any premises covered by a permit or license issued under the provisions of the Texas Liquor Control Act . . ..' Article 483 is not limited to premises on which alcoholic beverages are sold to the public since the Texas Liquor Control Act provides for the issuance of licenses and permits to liquor wholesalers, distillers, rectifiers, carriers and brewers. See Article 666--15, Texas Liquor Control Act, Auxiliary Penal Laws. The possible application of Article 483 to premises other than restaurants and bars does not render Article 483 constitutionally overbroad. In Baker v. State, 478 S.W.2d 445 (Tex.Cr.App.1972), this Court wrote:
See also Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); McMorris v. State, 516 S.W.2d 927 (Tex.Cr.App.1974).
Carrying a pistol in a warehouse, brewery, or distillery is not conduct protected by the Constitution. We hold that Article 483 is not constitutionally overbroad.
Appellant's last ground of error contends that the prosecution was barred by doctrine of collateral estoppel. Appellant was indicted for unlawfully carrying a pistol on a licensed premise and assault with a prohibited weapon. Both offenses arose out of the same transaction and both offenses were tried simultaneously by agreement of the parties. Appellant was convicted of both offenses.
In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court of the United States wrote:
'. . . It (collateral estoppel) means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any Future lawsuit. . . .' (Emphasis Supplied)
Collateral estoppel is not applicable to the instant case since the same jury found appellant guilty of both offenses. See Jones v. State, 514 S.W.2d 255 (Tex.Cr.App.1974). See also concurring opinion of Justices Brennan, Douglas and Marshall in Ashe v. Swenson, supra.
No error has been shown.
The judgment is affirmed.
Appellant contends the indictment is insufficient to charge the offense for which he was convicted. The indictment, in material part, charges appellant:
'. . . did unlawfully, carry on and about his person a pistol, said pistol having been carried in the premises located at 2000 Second Avenue, in the City of Dallas, Texas, said premises being covered by a permit and license issued under the provisions of the Texas Liquor Control Act.'
Article 483, V.A.P.C., at the time of the offense charged, provided:
'(a) Any person who shall carry on or about his person, saddle or in his saddlebags, or in his portfolio or purse any pistol, dirk, dagger, slung shot, blackjack, hand chain, night stick, pipe stick, sword cane, spear, knuckles made of any metal or any hard substance, bowie knife, switch blade knife, spring blade knife, throw blade knife, a knife with a blade over five and one half (5 1/2) inches in length, or any other knife manufactured or sold for the purposes of offense or defense shall be punished by a fine of not less than One Hundred Dollars ($100) nor more than Five Hundred Dollars ($500) or by confinement in jail for not less than one (1) month nor more than one (1) year, except that if the offense is committed by a person while in any premises covered by a permit or license issued under the provisions of the Texas Liquor Control Act or at any dance where the public is invited and alcoholic beverages are openly sold, served, or consumed, he is guilty of a felony and upon conviction shall be punished by imprisonment in the state penitentiary for not less than two (2) years nor more than five (5) years.
'(b) Where the misdemeanor offense is proved under allegations constituting a felony under this Article, the misdemeanor shall be a lesser included offense.'
It will be observed that a violation of this statute is a misdemeanor with a...
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