Matocha v. State

OPINION

GRANT, Justice.

Martin Wayne Matocha appeals from his conviction for the offense of unlawfully carrying a weapon. After a trial by jury, he was found guilty and the jury assessed his punishment at a $750 fine and one year’s confinement, probated. Matocha raises a single point of error in which he contends that the trial court erred by refusing to submit his requested instruction on the defensive theory of traveling. This defense is governed by Tex.Penal Code Ann. § 46.031, which states: “The provisions of Section 46.02 of this code do not apply to a person ... (3) traveling_” Tex. Penal Code Ann. § 46.022 provides that a person commits an offense if he carries a handgun on or about his person.

The term traveling is not defined by statute. The question of whether a defendant is a traveler is one of fact for the trial court or jury, as the ease may be. Smith v. State, 630 S.W.2d 948, 950 (Tex.Crim.App.1982).

The testimony reveals that Matocha was in the midst of a trip of some 300 miles as part of his job as a repairman employed by Digital Equipment Corporation. He had already driven forty-six miles as part of his day’s repair activities and was en route to another city at the time that he was stopped and arrested for speeding. During the search subsequent to his arrest on that offense, the pistol was recovered. Although he did not have the opportunity to complete his day’s journey, it appears from the record that he would have driven over 300 miles. He also testified that, depending upon the length of time necessary to effect repairs at his last job site, he might have been required to remain overnight, that he traveled alone, and that he had equipment valued at over $10,000 in the van. He also testified that he did not always carry a pistol when making service calls, but that he did so on this occasion because he was scheduled to travel through a high crime area.

Counsel requested a charge on the defense of traveling. The prosecutor objected to this request, relying upon Vogt v. State, 159 Tex.Crim. 211, 258 S.W.2d 795 (1953). In that case, the Court of Criminal Appeals recognized that the exception is often applied to trips that are overnight. The court did not, however, restrict the application of the defense solely to those situations. As noted in Ayesh v. State, 734 S.W.2d 106, 108 (Tex. App.-Austin 1987, no pet.), this is a fact-driven determination that is not dependent upon any one particular situation. For example, it has been applied to those in the process of moving from one home to another. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App. [Panel Op.] 1978).

Matocha correctly points out that the cases relied on by the trial court in denying the instruction were situations in which the trial court had acted as the finder of fact and the reviewing court had held that a trip to San Antonio to a location less than forty miles away and returning did not show that the parties were traveling within the meaning of the statute. The court also called attention to its previous decision in George v. State, 90 Tex.Crim. 179, 234 S.W. 87 (1921), in which it had stated that the court was aware of no case where an individual was held to be a traveler who had been absent for less than a day. These opinions do not require that an *146overnight stay is necessary before the exception can apply.3

The question of whether the traveling exemption applies in the present ease is a question of fact. It was raised by the evidence. The general proposition is that a defendant is entitled to an instruction on every defensive issue raised by the evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim.App.1987). This is true regardless of whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may not think about its credibility. Mullins v. State, 767 S.W.2d 166, 168 (Tex.App. -Houston [1st Dist.] 1988, no pet.). The evidence which raises the issue may be either strong, weak, uneontradicted, unimpeached, or unbelievable. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993).

Counsel properly requested this defensive instruction. The trial court erred by failing to provide the instruction. In reviewing this error, we apply the standard set forth by Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). Since a timely objection was made, we must find reversible error unless this court can determine beyond a reasonable doubt that the error made no contribution to the conviction or the punishment. Tex.R.App.P. 81(b)(2). Because of the trial court’s error the jury was never given an opportunity to pass on a defensive issue which was clearly raised by adequate evidence. We cannot conclude beyond a reasonable doubt that this error made no contribution to his conviction or to his punishment.

The judgment of the trial court is reversed, and this cause is remanded for a new trial.

. Amended by Act of May 29, 1993, 73rd Leg., ch. 900, § 1.01, 1993 Tex.Gen.Laws 3586, 3686-87, current version found at Tex Penal Code Ann. § 46.02 (Vernon 1994).

. Amended by Act of May 29, 1993, 73rd Leg., ch. 900, § 1.01, 1993 Tex.Gen.Laws 3586, 3686-87.

. The Practice Commentary to Tex. Penal Code Ann. § 46.03 states that:

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 offense. The courts never defined "traveling" but in each case considered distance, time, and mode of travel. It was clear, however, that long automobile journeys that kept the actor away from home overnight constituted traveling [citation omitted]. Today of course, unlike in 1871 when carrying pistols was made an offense and traveling was made an exception, there are no longer roving bands of renegades molesting travelers.

Seth S. Searcy III & James R. Patterson, Practice Commentary, Tex Penal Code Ann. § 46.03 (Vernon 1989).

As aptly noted by State’s counsel, in the quarter century since the commentary was written, "it is arguable that our society has returned to ‘those thrilling days of yesteryear' with roving bands of renegades once again molesting travelers. Indeed, the ‘roving bands’ are molesting all of us, including those who, within the apparent safely of their own homes, are gunned down by drive-by shooters."