Dixon v. State

¶1concurring and dissenting.

¶2I concur with that portion of the majority’s opinion which holds that the conflicting evidence entitled the appellant to an instruction under article 38.23(a) of the Texas Code of Criminal Procedure. I am further unable to conclude beyond reasonable doubt that the error made no contribution to the conviction. Tex.R.App.P. 81(b)(2). To that extent, I respectfully disagree with the majority’s determination that appellant waived his complaint.

¶3First, as acknowledged by the majority, by voluntarily testifying to substantially the same facts concerning which he had previously lodged an objection, a defendant waives the objection. McGlothlin v. State, 896 S.W.2d 183, 189 n. 9 (Tex.Crim.App.1995); Nicholas v. State, 502 S.W.2d 169, 173-75 (Tex.Crim.App.1973) (on motion for rehearing). Yet, he cannot be said to have waived it if the testimony served to meet, destroy or explain the erroneously admitted evidence. Id.

¶4Second, one is not criminally culpable for carrying a firearm if he does so while on “the legitimate business of protecting a large sum of money or [while] carrying the pistol to his place of business along a practical route, such carrying not being habitual.” Evers v. State, 576 S.W.2d 46, 51 (Tex.Crim.App.1978); accord Boyett v. State, 319 S.W.2d 106, 107 (Tex.Crim.App.1958) (holding to the same effect).

¶5Third, appellant testified that he worked as a news paper deliveryman. Part of his duty, he continued, involved collecting money from his clients. Additionally, at the time of his arrest, he had on his person approximately $500 and various checks, apparently proceeds from his collection efforts. He took the weapon with him “sometimes ... when [he] ... collected] a large amount of mon-ey_” (Emphasis supplied). The occasions on which he did that, however, were infrequent. They were normally restricted to those instances when he collected in Castle Garden. The latter apartment complex, he believed, was “a real bad area, and [he] would hate to get robbed there.” Similarly, when asked by the prosecutor whether he feared robbery, appellant answered “yes.”

¶6Fourth, comparing the testimony to the rule espoused in Eversand Boyett illustrates that appellant spoke of carrying the weapon only to explain his reason for possessing it, that is, to defend against robbery while carrying or collecting large sums of money. Furthermore, the practice was purportedly infrequent. In effect, appellant sought to fit within the Eversand Boyett defense.

¶7Fifth, the trial judge apparently deemed the foregoing testimony sufficient to raise a fact issue on the defense. It commented in the charge that appellant “introduced testimony and evidence to the effect that he did not commit the offense,” and instructed the jury to acquit if it believed the evidence.1 In submitting this instruction, it is reasonable to conclude that the trial court itself thought the testimony sufficient to raise an issue as to whether appellant asserted a “legitimate” purpose for carrying the weapon.

¶8Given the defense, the evidence, and the trial court’s apparent interpretation of that evidence, I cannot conclude that the appellant waived objection to the alleged inadmissibility of the firearm. He endeavored to “explain” his actions by referring to the weapon. Consequently, the judgment should •be reversed and the cause remanded.