Uribe v. State
| Decision Date | 29 November 1978 |
| Docket Number | 56824,Nos. 56823,No. 3,s. 56823,3 |
| Citation | 573 S.W.2d 819 |
| Parties | Trinidad H. URIBE, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Antonio G. Cantu, on appeal only, San Antonio, for appellant.
Bill M. White, Dist. Atty., Stephen P. Allison and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, for the State.
Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
Appeals are taken from convictions for murder and unlawfully carrying a handgun on a premises licensed to sell alcoholic beverages. V.T.C.A. Penal Code, Secs. 19.02 and 46.02. Appellant entered pleas of guilty and punishment was assessed by the court at ten years in each cause.
The record reflects that the appellant carried a pistol into a San Antonio bar licensed to sell alcoholic beverages and while there shot the deceased. There was no dispute as to these facts, but there was a conflict in the evidence as to whether the shooting was the result of a fight. The appellant did not enter the bar and immediately shoot the deceased. The altercation occurred after both had been on the premises for some time.
Appellant first contends that his convictions for two offenses arising out of the same facts and occurring at the same time violate the doctrine of carving and place him twice in jeopardy for the same act.
In Robinson v. State, Tex.Cr.App., 530 S.W.2d 592, the defendant entered the grounds of the University of Houston without authority and stole a bicycle which was the property of the University. This Court held that since the offense of criminal trespass was committed the moment the defendant entered the prohibited area of the University without authority, the subsequent theft of the bicycle from the premises was a separate transaction. Thus, convictions for both offenses did not violate the doctrine of carving.
In Hawkins v. State, Tex.Cr.App., 535 S.W.2d 359, the Court found that the possession of a prohibited weapon (a sawed-off shotgun) and a robbery committed with that weapon were separate and distinct offenses. The Court reviewed numerous cases concerning carving and double jeopardy and observed that when double jeopardy was found to attach, both the offenses had arisen from "an uninterrupted and continuous sequence of events or assaultive acts directed toward a single victim." 535 S.W.2d at 362. The Court concluded that the possession offense was complete the moment the defendant was placed in possession of the sawed-off shotgun, and that the facts supporting that offense could not be characterized as an assaultive act directed toward the victim. This Court rejected the defendant's contention that the trial court erred in overruling his plea of former jeopardy.
Here, the offense of carrying a pistol on licensed premises was complete when the appellant entered the bar. This act alone cannot be characterized as an assaultive act directed toward the victim. Only later was the decedent assaulted by the appellant. We hold that conviction for both offenses does not violate the carving doctrine nor the constitutional guarantees against double jeopardy.
Appellant next challenges the sufficiency of the indictment charging him with carrying a firearm on a premises licensed to sell alcoholic beverages. He maintains that the indictment is defective in that it fails to allege that he Knew the premises was licensed to sell alcoholic beverages, and further that the indictment fails to allege that it was licensed When he committed the offense. No motion to quash was made, thus appellant maintains that the indictment was fundamentally defective.
The indictment alleges that:
"The Grand Jury of Bexar County, State of Texas, duly organized, empaneled and sworn as such, at the September Term, A.D., 1975, of the 144th District Court of said County, in Said Court at said term, do present that in the County and State aforesaid, on or about the 10TH day of AUGUST, A.D., 1974, TRINIDAD HUERTA URIBE did then and there knowingly and intentionally carry on and about his person A HAND GUN, on premises licensed and issued a permit by the State of Texas for the sale and service of alcoholic beverages, namely: LA CHIFA, located at 401 EL PASO, SAN ANTONIO, Bexar County, Texas; against the peace and dignity of the State. . . ."
V.T.C.A. Penal Code, Sec. 46.02, provides:
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Boyington v. State, 01-85-0114-CR
...licensed for the sale or service of liquor; and that allegation of the intent to carry a handgun is sufficient. Uribe v. State, 573 S.W.2d 819 (Tex.Crim.App.1978); Tex.Penal Code Ann. sec. 46.02(c) (Vernon 1974). In Taylor v. State, 632 S.W.2d 697 (Tex.App.--Ft. Worth 1982, pet. ref'd), app......
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Fluellen v. State
...the criminal offense and that there must also be a separate intent to commit the act in a particular place. See generally Uribe v. State, 573 S.W.2d 819, 821 (Tex.Crim.App. [Panel Op.] 1978) (no necessity to allege separate culpable mental state to raise penalty for offense of carrying hand......
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White v. State
...2003, no pet.). All of these lower court opinions relied for their primary authority on this Court's opinion in Uribe v. State , 573 S.W.2d 819, 821 (Tex. Crim. App. 1978). And, indeed, Uribe provides an apt analogy.In Uribe , the defendant was prosecuted for the offense of unlawfully carry......
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State v. Powell, 13756
...425 (Alaska 1979) (possession of concealed weapon); People v. Wilson, 29 Ill.App.3d 1033, 332 N.E.2d 6 (1975) (same); Uribe v. State, 573 S.W.2d 819 (Tex.Crim.App.1978) (possession of firearm in licensed bar); see also Wash.Rev.Code Ann. Sec. 9.41.300 (West 1988) (knowing possession of fire......