Terry Keith Charping v. State ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-91-071-CR



TERRY KEITH CHARPING,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY,

NO. 2C90-94,765, HONORABLE JOHN BARINA, JUDGE PRESIDING

PER CURIAM

The trial court found appellant guilty of unlawfully carrying a handgun and assessed punishment at incarceration for thirty days and a $300 fine, probated. Tex. Penal Code Ann. § 46.02 (1989). Appellant contends the evidence is insufficient to sustain the conviction. We disagree and affirm.

A car driven by appellant was stopped for speeding by a Department of Public Safety officer. A loaded .45 caliber automatic pistol was found in a pocket on the driver's side door. Two magazines with bullets were found in the glove compartment. The officer also found in the vehicle a shotgun and an illegal knife. When questioned by the officer, appellant stated that he had the pistol because he worked for a pawn shop and often carried a large amount of cash. Appellant acknowledged, however, that he did not have a large amount of money in the car at that time.

At trial, appellant testified that he had been target practicing at his home. He ordinarily kept the pistol in a safe in his office, and was on his way there when stopped by the officer. Appellant contends that he should have been acquitted because the State failed to disprove this testimony.

A person has the right to carry a handgun to his home or to his place of business. Inzer v. State, 601 S.W.2d 367 (Tex. Crim. App. 1980); Johnson v. State, 571 S.W.2d 170 (Tex. Crim. App. 1978); Freeman v. State, 786 S.W.2d 56 (Tex. App. 1990, no pet.). See also Tex. Penal Code Ann. § 46.03(a)(3) (1989). This exception is a defense to prosecution for unlawfully carrying a weapon. Tex. Penal Code Ann. § 2.03(e) (1974). Assuming appellant's testimony was sufficient to raise the defense, the State had no duty to controvert the defensive testimony. Johnson, 571 S.W.2d at 173; Ayesh v. State, 734 S.W.2d 106 (Tex. App. 1987, no pet.). The trial court was not required to believe appellant's testimony as to his reason for carrying the pistol, even if it was not controverted. Porter v. State, 388 S.W.2d 422 (Tex. Crim. App. 1965).

The judgment of conviction is affirmed.

[Before Justices Powers, Jones and B. A. Smith]

Affirmed

Filed: November 6, 1991

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