Gomez v. State, No. 03-07-00050-CR (Tex. App. 4/24/2008)
| Decision Date | 24 April 2008 |
| Docket Number | No. 03-07-00051-CR.,No. 03-07-00050-CR.,03-07-00050-CR.,03-07-00051-CR. |
| Parties | JAVIER A. GOMEZ, Appellant, v. THE STATE OF TEXAS, Appellee. NILES EMERY WOODIN, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the County Court at Law No. 2 of Comal County, Nos. 2005CR1531 & 2005CR1530, Honorable Charles A. Stephens II, Judge Presiding.
Affirmed.
Before Justices PATTERSON, PURYEAR and PEMBERTON.
In August 2005, during a late-night law-enforcement encounter that escalated into an investigatory detention and, ultimately, their arrests, Javier A. Gomez and Niles Emery Woodin were each found to be possessing a handgun. Neither had a license to carry. At the time, the pair were in a pickup driven by Gomez, parked outside a closed Canyon Lake-area restaurant. Subsequently, appellants were each charged with the offense of unlawfully carrying a weapon under the penal code version in effect at the time of their offense. See former Tex. Penal Code Ann. § 46.02(a) (West 2003).1 Appellants were tried jointly.2 At trial, neither disputed that he had been carrying a handgun without a license, but relied on the version of the "traveling" exception to penal code section 46.02 in effect at the time of the offense. See id. § 46.15(b)(3) (West 2003).3 As to each appellant, the trial court instructed the jury that "[i]t is not a violation of law for a person to carry a handgun while he is traveling" and that if it found from the evidence, or had a reasonable doubt, that the defendant was "traveling," it must find them not guilty. The jury found both appellants guilty. The court assessed punishment for each at 30 days' imprisonment and a $1,000 fine ($500 of which was probated), but suspended imposition of each sentence and placed both Gomez and Woodin on 12 months' community supervision. The trial court also ordered each appellant to forfeit the weapon he had been convicted of unlawfully carrying.
Gomez and Woodin filed a joint appeal. In five issues, they assert that the trial court erred in failing to suppress evidence of the handguns as fruits of an unlawful search, abused its discretion in failing to exclude from evidence certain portions of the patrol-car videotape of the episode, challenge the legal and factual sufficiency of the evidence supporting their convictions, and contend that the trial court's order of forfeiture was "without any authority in law." We will affirm the judgments.
The jury heard evidence that, at approximately 2:54 a.m. on August 2, 2005, Deputy Hiram Munoz of the Comal County Sheriff's Office was patrolling the area around Canyon Lake along F.M. 306 when he observed a gray Ford pickup truck parked near a restaurant, the Casa del Lago.4 Munoz, who testified that he had several years' experience as a law-enforcement officer in the area, testified that "[t]he business was closed at the time and there was no reason why the vehicle should be there." He decided to investigate "why anybody was there at that time of night," and pulled his patrol car behind the parked pickup. Munoz approached the vehicle and observed two males inside. Munoz testified that he
Munoz noticed that when he talked to the men "they were both pretty nervous." After checking identification, Munoz asked the driver, now identified as Gomez, a Bexar County resident, to step out of the vehicle. Munoz testified that during the course of his conversation with Gomez, Gomez admitted that he had earlier "lied" to Munoz and that the actual reason they were parked at the restaurant was "because they were looking for some girl who needed help." According to Munoz, Gomez told him that the girl was likely "involved in illegal activity" or "possibly high on drugs or something." Munoz asked Gomez about the woman's location. Gomez replied that she was "somewhere on Cranes Mill Road" but that "he wasn't sure where she was at and she had called him on the phone and that he was having trouble communicating with her or getting a hold of her again." Munoz thought it suspicious that the men would have traveled all the way from Bexar County at that hour ostensibly to pick up a friend without a clear idea where she was, adding that Cranes Mill Road "breaks up in a whole lot of different sections. . . . so there's a large area of Cranes Mill Road that's kind of a vague description."
The State asked Munoz if he was concerned for his safety at the time. He responded,
Yes. I was by myself. The story—just based on the way I was talking to them and the way he was talking to me I could tell he was nervous and something wasn't right. I think I went and talked to Mr. Woodin next and he said basically that he was looking for some girl and he didn't know her name. He didn't know where she was at. And all he said was basically she was in some kind of trouble. At that point I felt uneasy about the situation. The time of night I wasn't sure where other deputies were at, so I called for a cover unit to come back me up.
After other deputies arrived, Deputy Munoz testified that he asked Woodin to step out of the vehicle. Munoz then looked inside the truck and noticed a black duffel bag near the front seat. Munoz testified that when he asked Woodin what was in the bag, Woodin "began to get really nervous." According to Munoz, Woodin told him that the bag contained "just a change of clothes" in case they met "some girls or something like that."
Deputy Munoz then asked Gomez if he had any weapons. Munoz testified that Gomez told him he had a knife. Munoz asked Gomez how large the knife was, and Gomez told him, "It's pretty large." Munoz testified that Gomez "pulled out a lock-blade" and Munoz took the knife from him "to secure for officer safety." Munoz further testified, Munoz testified that Gomez began walking toward the driver's side door as if to retrieve the knife. Munoz told Gomez to remain where he was, and Munoz opened the vehicle door and retrieved the other knife. Munoz explained, Munoz added that both knives appeared "larger than five-and-a-half inches," and he suspected they were illegal. See Tex. Penal Code Ann. § 46.01(6)(A) (West 2003).
When he retrieved the knife, Munoz noticed that there was a box of .454 handgun ammunition near the driver's side door. Munoz asked Gomez about the ammunition and where the gun was. Gomez replied that it "should be" at home, then said it was at home. Munoz then asked specifically if there was a gun in the vehicle; Gomez responded that it "might" be. Munoz replied that the answer was either "yes" or "no," to which Gomez replied, "I don't think it is." Munoz then asked whether Gomez would have a problem with him searching the vehicle, whereupon Gomez admitted, "It's in there, buddy." Munoz retrieved a loaded . 454 chrome Casull handgun from the center console. Gomez admitted that the gun belonged to him.
Upon discovering and securing the handgun, Munoz instructed the other deputies to place Gomez and Woodin in handcuffs "for officer safety reasons." The deputies then continued to search the truck. In the black duffel bag, contrary to Woodin's initial description of its contents, was found two ski masks (one colored orange and the other camouflage), a pair of gloves, and a set of plastic zip ties. Zip ties, Munoz testified, could be used (and sometimes were used by law enforcement) as restraints similar to handcuffs. Another handgun was found in the center console of the truck—a loaded, black, .32 automatic Beretta. Woodin admitted that this gun belonged to him. The deputies also found a large machete in the tool box of the truck. At the scene, Woodin sought to explain the presence of the guns and other materials by claiming that he and Gomez used them when hunting wild hogs.
At the end of Deputy Munoz's direct examination, a redacted version of the patrol-car videotape of the episode was admitted into evidence and played for the jury. The videotape begins when Munoz was running a background check on Gomez and Woodin from his vehicle, minutes before Munoz approached the truck a second time and asked Gomez to exit the vehicle.5 The videotape was largely consistent with Munoz's testimony.
Following Deputy Munoz's testimony, the State rested its case. Appellants' first witness was Azure Mendez, who was represented to be the woman whom the men were trying to locate on the night of their arrest. Mendez testified that, on the night in question, she was with her boyfriend at a party at a remote location somewhere along or near Cranes Mill Road. Between 12:45 a.m. and 1:30 a.m., she called Gomez "in distress." Mendez explained that a fight had occurred at the party and that she and her boyfriend, whom Mendez testified was "highly intoxicated," had decided to leave. Because they had rode to the party with a person who did not want to leave the party, Mendez explained that she and her boyfriend left on foot. After walking for approximately 45 minutes, Mendez became scared, started crying, and decided to call Gomez because he was the only person she knew who would come and get her. Upon calling him, Mendez informed Gomez that she was walking along what she believed to be "Canes Mill Road [sic]," but she was unable to give him any other...
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