Stephen Clay Johnston v. State ( 2003 )

  















In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00115-CR ______________________________



STEPHEN CLAY JOHNSTON, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 17834

---

Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Stephen Clay Johnston appeals the trial court's denial of his motion for forensic DNA testing. On June 2, 2000, Johnston was convicted of two aggravated assault offenses, retaliation, and two failure to appear/bail jumping offenses. He was sentenced to three years' imprisonment for each offense. The sentences were ordered to run concurrently. This Court dismissed Johnston's appeals for want of jurisdiction.

In September 2001, Johnston filed a motion and supporting affidavit seeking post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01-.05 (Vernon Supp. 2003). The State filed a response and supporting affidavit. The trial court overruled his motion without a hearing and issued findings of fact and conclusions of law.

Because Johnston's motion implicated both his aggravated assault convictions, the trial court docketed two causes and we docketed two appeals. We have, this day, released our opinion in number 06-02-00114-CR, Stephen Clay Johnston v. The State of Texas. Because the briefs and arguments therein are identical to those raised in this appeal, for the reasons stated in that opinion, we affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: December 17, 2002

Date Decided: February 5, 2002

Do Not Publish

family: 'Times New Roman', serif">                                              

On Appeal from the County Court at Law

Hunt County, Texas

Trial Court No. CC0200337

---

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            The Texas Department of Public Safety (the Department) denied Steve Scott Wilt's application for renewal of his concealed handgun permit because he had recently been convicted of three Class A and B misdemeanor offenses. See Tex. Gov't Code Ann. § 411.172(a)(8) (Vernon Supp. 2004). Wilt appealed the Department's decision to a Hunt County Justice Court. See Tex. Gov't Code Ann. § 411.180 (Vernon Supp. 2004). The Justice Court found the evidence supported the Department's decision and affirmed the denial of the renewal permit. Wilt further appealed to the County Court at Law of Hunt County, which after a bench trial de novo affirmed the denial of the permit renewal. Wilt now appeals to this Court, raising three points of error.

            Wilt first contends the trial court erred by sustaining the Department's plea to the jurisdiction. Second, Wilt argues the United States and Texas constitutional provisions concerning the right to keep and bear arms allow him to carry a concealed handgun. Third, Wilt contends the trial court erroneously based its decision on facts that were not admitted into evidence. We overrule all three points of error and affirm the trial court's judgment.

I. Plea to the Jurisdiction

            In his first point of error, Wilt contends the trial court erred by sustaining the Department's plea to the jurisdiction of the trial court, the County Court at Law. Before the trial, the Department filed a special plea claiming the trial court lacked jurisdiction. At trial, the Department withdrew its plea to the jurisdiction of the court and proceeded with a trial on the merits of Wilt's appeal. Accordingly, Wilt's first point of error is moot.

II. The Right to Bear Arms

            In his second point of error, Wilt contends the trial court's judgment infringes on his right under the United States and Texas Constitutions to keep and bear arms. See U.S. Const. amend. II; Tex. Const. art I, § 23.

            The federal courts have repeatedly upheld the authority of the federal Legislature to impose reasonable regulations and restrictions on gun ownership. See, e.g., United States v. Miller, 307 U.S. 174, 178 (1939) (No showing short-barrel shotgun necessary for militia; Congress may prohibit such weaponry); United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995) (Congress may regulate machine gun ownership and sales occurring in interstate commerce). Similarly, states may impose reasonable regulations on gun ownership. See, e.g., Thomas v. Members of City Council, 730 F.2d 41 (1st Cir. 1984) (Second Amendment granted appellant no right to carry a concealed handgun).

            In Texas, "[a] permit to carry a concealed handgun, like other permits and licenses, is not a right but a privilege under regulations prescribed by the legislature." Tex. Dep't of Pub. Safety v. Tune, 977 S.W.2d 650, 653 (Tex. App.—Fort Worth 1998), pet. dism'd w.o.j., 23 S.W.3d 358 (Tex. 2000). The Texas Constitution expressly authorizes the Texas Legislature "to regulate the wearing of arms, with a view to prevent crime." Tex. Const. art. I, § 23. One such regulation forbids the Department from granting concealed handgun permits to those who have been convicted of a Class A or B misdemeanor, or to those who have been convicted of a felony. Tex. Gov't Code Ann. § 411.172(a)(8); see Tune, 977 S.W.2d at 653.

            In the case now before us, Wilt does not contend Texas' restrictions on the issuance of handgun permits are unreasonable or otherwise exceed the Constitution's regulatory authorization. Instead, Wilt argues that his "right to keep and bear arms even in a concealed manner should not be infringed upon because of the false charges and discrimination offered by [the junior college where Wilt was arrested for criminal trespass]." We see Wilt's point of error as more appropriately a challenge to the sufficiency of the evidence.

            In determining whether there is in the record evidence of probative force to support the fact-finder's verdict, we must (1) consider all of the evidence in the light most favorable to the party in whose favor the verdict has been rendered, and (2) apply every reasonable inference that could be made from the evidence in that party's favor. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In this review, we disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex. 1990). A no-evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998).

            The trial court upheld the Department's denial of Wilt's renewal application because Wilt had recently been convicted of three Class A and B misdemeanor offenses. The Department offered certified records of the judgments and sentences for Wilt's convictions for criminal trespass, evading arrest, and resisting arrest. Wilt did not object to the admission of these certified judgments. Wilt also tacitly admitted being convicted in the cases represented by these documents. Because those certified records show Wilt was convicted of three misdemeanors, occurring less than five years before Wilt's application for a concealed handgun permit, we find the evidence is sufficient to support the trial court's judgment in favor of the Department. See Tex. Gov't Code Ann. § 411.172(a)(8); Tex. Dep't of Public Safety v. LaFleur, 32 S.W.3d 911, 915–16 (Tex. App.—Texarkana 2000, no pet.). We overrule Wilt's second point of error.

III. Judgment Based on Facts not in Evidence

            In his final point of error, Wilt contends the trial court erroneously based its ruling on facts that were not admitted into evidence. In his brief to this Court, Wilt has not shown what facts the trial court erroneously considered. An appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h); see also Haas v. George, 71 S.W.3d 904, 914 (Tex. App.—Texarkana 2002, no pet.) (nothing presented for review when the brief failed to explain how facts of the case relate to requirements of claim). Accordingly, Wilt has waived his final point of error.

IV. Conclusion

            For the reasons stated, we affirm the trial court's judgment.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          June 29, 2004

Date Decided:             June 30, 2004