Matocha v. State

ON MOTION FOR REHEARING

On rehearing, the State urges that this Court had not addressed the common meaning of traveler and that our opinion might lead to an exception for certain unsavory occupations. The specific language that the State urges as a definition of the common meaning of traveler is one who “passes beyond the circle of his friends and immediate acquaintances, and is no longer within the routine of his daily business, or his ordinary habits, duties, or pleasures.” This is an excerpt from 94 C.J.S. Weapon § 9(c)(2)(b) (1956). In reviewing the case citations from which this language is drawn, we note that none of the references are to Texas cases. The only reference to a Texas case in the body of this section of Corpus Juris Secun-dum was omitted by the State. It is a reference from the case of Hickman v. State, 71 Tex.Crim. 483, 160 S.W. 382 (1913). The language omitted was “so that he finds himself at a distance from his home or place of business.”

The State contends that a route repairman making his daily rounds could not fit into the category of a traveler. As we have previously stated, whether the status of the traveler was established is a question of fact for the jury or fact finder. Ayesh v. State, 734 S.W.2d 106 (Tex.App. — Austin 1987, no pet.). The question before this Court is whether there was sufficient evidence to require the submission of an instruction to the jury.

The exception for a traveler has been in existence since the enactment of the first proscription on carrying of handguns under Tex. Penal Code art. 484 (1871). Ayesh, 734 S.W.2d at 108. The Legislature has never *147seen fit to give a specific definition to the term traveler.

The journey is not measured by how far the defendant may have come, but by the entire journey intended by the defendant, and the fact finder must determine the defendant’s truthfulness in this testimony. There has been no hard and fast rule in Texas. The traveling exception has been applied to a journey from the home in excess of thirty-five miles4 and in excess of forty miles.5 The State has urged that the Court in Vogt v. State, 159 Tex.Crim. 211, 258 S.W.2d 795, 796, cert. denied, 346 U.S. 901, 74 S.Ct. 221, 98 L.Ed. 401 (1953), had held that an overnight stay was a prerequisite for qualifying under the traveler’s exception. The Court does say in Vogt that “we were aware of no case where one was held to be a traveler whose absence was for less than a day.” This does not, upon its face, require an overnight stay.

In the present case, Matocha testified that he had driven from Montgomery County to Harris County (twenty-two miles), then he drove twenty-four miles to Sheldon, Texas, then he was stopped on his way to La Porte, Texas, and charged with the pistol violation. He testified that his scheduled journey was then to travel from Sheldon, Texas, and to Huntsville, Texas, which required that he travel through Harris, Montgomery, and Walker Counties (approximately forty-six miles), then to Camden, Texas (approximately sixty-eight miles), passing through Harris, Trinity, and Polk Counties, and then back to his home in Montgomery County (seventy-two miles). He testified that his job sometimes required that he remain overnight, and there had been a possibility that he would have to remain overnight on his job at Camden. He further testified that during his total travel day, he spent seventy-five percent of his time travelling through nonpopu-lated areas.

This testimony was sufficient to allow the jury to make the determination whether Matocha was a traveler. The Legislature has never seen fit to limit this exception to any certain type of business person, or for that matter, to even limit it to a person involved in business. Under the travel exemption, the purpose of travel is not relevant. Evers v. State, 576 S.W.2d 46 (Tex. Crim.App. [Panel Op.] 1978). Therefore, if a traveler, regardless of occupation, or lack thereof, offers evidence that would qualify him or her as a traveler on the occasion in question, and this evidence is believed by the fact finder, then he or she is entitled to this exception.

The motion for rehearing is overruled.

. Wortham v. State, 95 Tex.Crim. 135, 252 S.W. 1063, 1064 (1923).

. George v. State, 90 Tex.Crim. 179, 234 S.W. 87, 89 (1921).