Huff v. State

• Decision Date: 13 September 1984
• Docket Number: No. 13-83-286-CR,13-83-286-CR
• Citation: 678 S.W.2d 236
• Parties: Samuel Roosevelt HUFF, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 236

678 S.W.2d 236

Samuel Roosevelt HUFF, Appellant, v. STATE of Texas, Appellee.

No. 13-83-286-CR.

Court of Appeals of Texas Corpus Christi.

Sept. 13, 1984.

Charles A. Hood, Port Lavaca, for appellant.

Mark Kelly, Asst. Criminal Dist. Atty., Port Lavaca, for appellee.

Before UTTER, YOUNG and KENNEDY, JJ.

OPINION

UTTER, Justice.

Appellant was convicted of the offense of unlawfully carrying a weapon on the premises of Calhoun County High School under § 46.02 of the Texas Penal Code. Following a jury trial, appellant was sentenced by the jury to a probated six months' confinement in the Calhoun County Jail. Appellant does not challenge the sufficiency of the evidence to support the conviction.

In his first, second, third and seventh grounds of error, appellant complains of an allegedly defective information and charge. The information, in pertinent part, alleged that appellant did:

... intentionally and knowingly carry on and about his person a firearm to wit: handgun, while intentionally and knowingly on the premises of a school, to wit: Calhoun County High School, not pursuant to written regulations and written authorizations of said school. (Emphasis added.)

The court's charge followed the allegations in the information.

Before trial, appellant filed a motion to quash the information, alleging that the information was defective for the following reason:

The Information is fundamentally defective because, while attempting to charge the violation of Penal Code, § 46.04(a), it uses the phrase "carries on about his person a handgun...," which is an allegation of violation of § 46.02(a), rather than § 46.04(a), which requires the word "goes."

At the time of the offense, Section 46.02 of the Texas Penal Code provided:

(a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.

(b) Except as provided in Subsection (c), an offense under this section is a Class A Misdemeanor.

(c) An offense under this section is a felony of the third degree if it occurs on any premises licensed or issued a permit by this state for the sale or service of alcoholic beverages. (Emphasis added.)

Section 46.04 of the Texas Penal Code provided:

(a) A person commits an offense if, with a firearm, he intentionally, knowingly, or recklessly goes:

(1) on the premises of a school or an educational institution, whether public or private, unless pursuant to written regulations or written authorizations of the institution; or

(2) on the premises of a polling place on the date of an election.

(b) It is a defense to prosecution under this section that the actor was in the actual discharge of his official duties as a peace officer or member of the armed forces or national guard.

(c) An offense under this section is a Class A Misdemeanor. ¹ (Emphasis added.)

After considering the language of the above penal statutes, the information and the trial court's charge, we find that appellant was charged and convicted of the offense of unlawfully carrying a weapon under § 46.02. The information charged appellant with culpable possession of a handgun on school premises and not with culpable entry with a handgun onto school premises. As stated in Uribe v. State, 573 S.W.2d 819 (Tex.Crim.App.1978), the Texas Court of Criminal Appeals wrote:

In Section 46.04, supra, the carrying of a firearm is not per se prohibited, but the act of carrying that firearm in specific locations is. The Legislature clearly required that the entry be made with a culpable mental state, rather than the act of possessing the firearm be done with a culpable mental state. (Emphasis added.)

Uribe v. State, 573 S.W.2d at pp. 821-822.

The information was not defective as it used proper wording to charge the offense of unlawfully carrying a weapon under § 46.02 and that the language, "while intentionally and knowingly on the premises of a school, to wit: Calhoun County High School, and not pursuant to written regulations and written authorization of said school," which is language derived from § 46.04(a)(1), is surplusage language which, as alleged, required the State to more specifically prove its case against appellant other than what would have otherwise been required.

Consequently, the court's charge to the jury, which utilized the language of the information, was not reversibly defective for failing to charge an essential element of the offense charged. Appellant's first and seventh grounds of error are overruled.

In addition, the information is not defective on the ground that it was duplicitous by attempting to charge two offenses in the same count or paragraph, as asserted by appellant in his second ground of error. See TEX.CODE CRIM.PROC.ANN. art. 21.24 (Vernon Supp.1984); Odle v. State, 139 S.W.2d 595 (Tex.Crim.App.1940); Compare Edison v. State, 356 S.W.2d 692 (Tex.Crim.App.1962) and, Goodnough v. State, 627 S.W.2d 841 (Tex.App.--San Antonio 1982, pet. ref'd). Even if the information was duplicitous, duplicity is not "fundamental error," and, therefore, the information is voidable, not void. Villalva v. State, 151 S.W.2d 222 (Tex.Crim.App.1941). Since appellant did not assert in his motion to quash that the information was duplicitous, appellant has waived said error, if any. Appellant's second ground of error is overruled.

In his third ground of error, appellant argues that the handgun was not sufficiently described, as allegedly required under TEX.CODE CRIM.PROC.ANN. art. 21.09 (Vernon Supp.1984), in that the information gave him insufficient notice of which handgun the State would attempt to prove.

TEX.CODE CRIM.PROC.ANN. art. 21.09 (Vernon Supp.1984) provides:

If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice. If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be sufficient description of the same.

Even though the handgun, which was alleged in the information, was not specifically described in accordance with Art. 21.09 of the Texas Code of Criminal Procedure, the use of the word "handgun" in the information was sufficiently specific to have informed appellant as to the nature of the weapon used in committing the alleged offense, and no necessity existed for further describing the handgun. See Smith v. State, 410 S.W.2d 642 (Tex.Crim.App.1966); Wilson v. State, 155 Tex.Cr.R. 323, 234 S.W.2d 882 (1950); Kuykendall v. State, 154 Tex.Cr.R. 384, 227 S.W.2d 825 (1950). Compare Smith v. State, 131 Tex.Cr.R. 322, 98 S.W.2d 806 (1936). Furthermore, in accordance with the general rule set forth in Thomas v. State, 621 S.W.2d 158 (Tex.Crim.App.1980), the language in the information "tracks the words" of § 46.02 of the Texas Penal Code; and, therefore, the indictment is not defective for not further identifying the handgun. King v. State, 643 S.W.2d 176 (Tex.App.--Eastland 1982, no pet.). We overrule appellant's third ground of error.

In his first point of his fourth ground of error, appellant argues that he was not properly advised of his right to have appointed counsel present during his interrogation; that is, the warnings given appellant did not specifically include the word "during," as set forth in TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon Supp.1984). Appellant's statement was not included in the record; therefore, we must glean the pertinent contents of the statement from the testimony given in the motion to suppress hearing.

On cross-examination during the motion to suppress appellant's statement, Assistant Police Chief Pena testified:

HOOD (Appellant's counsel): Alright, what, would you read number three to the jury please.

PENA: That I have the right to talk to a lawyer before any questioning and have him present while I am being questioned, which I hereby waive, and if I cannot afford to hire a lawyer, one will be appointed to represent me before any questioning if I wish one, which I also hereby waive.

The warnings printed and initialed by appellant on the top of his statement were not erroneous because they failed to expressly include the warning which advised appellant of his right to counsel during interrogation. The words "and have him present while I am being questioned" clearly advised appellant of his rights in full compliance with TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon Supp.1984). "A warning which conveys, on 'the face of the statement' in only slightly different language, the exact meaning of the statute is sufficient to comply with the statute." Eddlemon v. State, 591 S.W.2d 847 (Tex.Crim.App.1979) . Appellant's first point in his fourth ground of error is overruled.

In his second point of his fourth ground of error, appellant asserts that the trial court erred in denying his motion to suppress his confession because he had not intelligently, understandingly and knowingly waived his right to counsel. The appellant's statement was taken by Assistant Chief of Police Pena. Pena gave the following testimony:

HOOD (Appellant's counsel): O.K. and how would you characterize Sammy back on May 28, 1982.

PENA: Didn't know his rights

HOOD: He did know?

PENA: Did not know

HOOD: He did not know his rights, and how long did you take explaining Sammy's rights to him.

PENA: I wouldn't have any idea, he questioned two of them

HOOD: O.K., what was that

PENA: It was the one about the free attorney

HOOD: O.K., what do you mean he questioned it.

PENA: He wanted to know how he could get a free attorney and I explained to him that if he didn't have any money the Court would appoint an attorney to represent him, free of charge

HOOD: He wanted to know how he got one?

PENA: Yes sir, wanted to know what it meant

HOOD: Well maybe I misunderstood just a minute...