Moosani v. State

MEYERS, Judge,

dissenting.

Our law provides that “[a] person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.” Texas Penal Code § 46.02(a). However, this prohibition “do[es] not apply to a person ... traveling[,]” Texas Penal Code § 46.03(a)(3), and if raised by the evidence, it is the State’s burden to prove beyond reasonable doubt that an accused was not “traveling” at the time of the alleged offense.

The facts are not in dispute. Appellant is the night manager of a convenience store. He keeps a handgun at the store to defend himself against robbers. 'When he is not working, he keeps the same gun at home. To get the gun from one place to the other, he carries it with him when he travels back and forth. Appellant maintains that, under these circumstances, the evidence is insufficient to sustain his conviction because no rational trier of fact could have concluded beyond reasonable doubt that he was not “traveling” at the time of the alleged offense.

The Court of Appeals, relying on Cortemeglia v. State, 505 S.W.2d 296 (Tex.Crim.App. 1974), held that the “traveling” exemption does not apply to persons who carry weapons habitually, and that, in this case, a “rational trier of fact could have found beyond a reasonable doubt that Moosani was carrying his weapon habitually.” Moosani v. State, 866 S.W.2d 736, 738-39 (Tex.App.—Houston [14th Dist.] 1993). We granted discretionary review to clarify some of the circumstances under which carrying a weapon is lawful in Texas society. Tex.R.App.Proc. 200(c)(2).

At the outset, I would acknowledge that the Court of Appeals is right about Cortem-eglia. Our opinion in that case does hold that a person may travel with a handgun from one place of lawful possession to another so long as he doesn’t do it very often. But that case construes a statute which has not existed in our law for more than twenty years. See Vernon’s Ann.Penal Code. art. 483 et seq. (West 1952), repealed by Acts 1973, 63rd Leg., p. 991, ch. 399, § 3(a), eff. Jan. 1,1974. As the Cortemeglia Court itself explained,

[t]his case was tried before the effective date of the new Penal Code and we express no opinion as to the effect Title 10, Ch. 46, Secs. 46.01 et seq., Acts 1973, 63rd Leg., Ch. 399, p. 962, may have upon the rule of law enuneiated[.]

Thus, Cortemeglia , by its own terms, does not control because the instant cause was prosecuted under the “new Penal Code.”

Nevertheless, our current statute does not differ on it face in any material respect from the one construed in Cortemeglia. See Evers v. State, 576 S.W.2d 46 (Tex.Crim.App.1978). Both provide that the law against carrying weapons does not apply to persons “traveling.” Penal Code § 46.03(a)(3) (West 1994); Penal Code art. 484 (West 1952). The issue, then as now, is whether conduct such as that in which appellant was engaged may constitute “traveling” under the statute.

Appellant urges us to reconsider the holding in Cortemeglia , and there are some compelling reasons to do so. As the practice commentary for section 46.03 (West 1989) notes,

[subdivision (3) is derived directly from prior law without any clarification, and the traveler’s exemption was one of the most enigmatic provisions of the prior weapons *577 offense. The courts never defined “traveling” but in each ease considered distance, time, and mode of travel.

As a result, the ease law in this area is difficult to reconcile with the legislation it construes, since neither the former statute nor the one which applies to this case purports to condition availability of the “traveling” exemption upon any of these factors, or upon the frequency with which an accused actually travels from one place to another. Rather, it appears that the Court simply fabricated these conditions from whole cloth over an extended period of time. See, e.g., Stanfield v. State, 34 S.W. 116 (Tex.Crim. App.1896); Kemp v. State, 116 Tex.Crim. 90 , 31 S.W.2d 652 (1930); Kites v. State, 398 S.W.2d 568 (Tex.Crim.App.1966).

While such an ad hoc judicial approach as one finds in opinions like Cortemeglia and its predecessors may once have been thought consistent with the role of courts in our government, we no longer take quite so casual an attitude toward the implementation of statutes passed by the legislature. Rather, it is now the preferred method of this Court to read all such statutes according to their plain terms, understood as common acceptation in ordinary English allows, unless specially defined by the legislature itself. Boykin v. State, 818 S.W.2d 782, 785-786 (Tex.Crim. App.1991).

Considered from this perspective, it is apparent that the meaning of “travel” in ordinary parlance does not depend in any degree upon the purpose or frequency of excursion, the mode of transportation, the distance covered, or the time of day. These criteria for the legality of carrying a weapon in Texas were all devised by the Court in order to implement what it thought the law was meant to accomplish or should have been meant to accomplish, and not to effectuate the plain meaning of the word “traveling.”

In the English language, “travel” may take any of the following meanings, depending upon the context in which it is used.

1: to go on or as if on a trip or tour: JOURNEY 2: to move as if by traveling: PASS <news "s fast> 3: ASSOCIATE 4: to go from place to place as a salesman 5: to move from point to point clight waves ~ very fast> 6: to journey over or through < ~ing the highways>

The New Merriam-Webster Dictionary, p. 763 (1989). The context in which the word appears in section 46.03(a)(3) of the Penal Code does not plainly suggest that any of these meanings, with the exception of “associate,” is inapplicable or that any one meaning was intended to the exclusion of others. Neither can the word be considered ambiguous or absurd as it is used in the statute, since there is nothing inconsistent or contradictory about employing the word as the legislature actually did to exempt all conduct which the ordinary meaning of “travel” includes. Under these circumstances, the word should be understood by the courts to have the broadest possible meaning permitted by common usage, just as it would be understood by any competent English language speaker reading the statute in context for the first time. Vernon v. State, 841 S.W.2d 407, 409-10 (Tex.Crim.App.1992).

The State urges us not to take this approach but to construe the traveling exemption much as is was in the past, mainly because a more liberal interpretation could result in people “regularly arming themselves as they move about the city.” Admittedly, this scenario is alarming, although it is not apparent to me that all movement within a city may fairly be characterized as “traveling” in ordinary English. But if the prosecuting attorney or others think some extraordinary definition of “traveling” is necessary to prevent this dangerous prospect, they should take their complaint to the legislature, where they will find people with authority to amend the statute. They will find no such people on this Court.

The extent of our power to change the law is limited to judicial review and statutory construction. The former authority permits us to set aside statutes when they conflict with the constitution. The latter permits us to resolve ambiguities within statutes and to harmonize them with one another. Neither authorizes us to rewrite statutes in order to make our society a better place. That enviable task is reserved to the legislature. Our job, and that of every court with criminal jurisdiction in this State, is to implement the *578 law as the legislature has written it. Accordingly, to the extent that Cortemeglia and other of our opinions construing the “traveling” exemption are to the contrary, I would overrule them.

Because the Fourteenth Court of Appeals evaluated the sufficiency of evidence in this case with reference to an extraordinary definition of “traveling” not found in the statute, and because I would now abandon that extraordinary court-made definition, my vote is to vacate the judgment of the Court of Appeals and remand this cause there for reconsideration of appellant’s sufficiency points. Because a majority of this Court will not do so, I respectfully dissent.