Steven Lee Royce v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00650-CR
NO. 03-09-00651-CR
Steven Lee Royce, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
NOS. 2C07-07791 & 2C08-06341, HONORABLE GERALD M. BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
At a single trial of two informations, a jury found appellant Steven Lee Royce guilty
of unlawfully carrying a handgun and a club. See Tex. Penal Code Ann. § 46.02 (West Supp. 2009).
The court assessed a $100 fine in one cause and a jail term of three days in the other. Appellant’s
only contention is that the court erred by refusing to permit a witness to testify regarding his opinion
as to appellant’s intentions at the time and place in question. We overrule this contention and affirm
the convictions.
Killeen police officer Robert Rush was on patrol at 2:00 a.m. on June 26, 2007, when
he saw two men standing in an intersection. Rush stopped his patrol car and approached the men
on foot. Rush recognized one of the men as appellant, with whom the officer had previously dealt.
The other man identified himself as David Weaver.
Appellant was wearing a security guard uniform and carrying a holstered handgun and
a collapsible baton. In response to Rush’s questions, appellant told the officer that he was a
commissioned security officer and showed him a state-issued commissioned security officer
identification card. Appellant told Rush that he was working that night as a guard at a Subway
restaurant when his friend Weaver came by, and that he had left the restaurant to give Weaver a ride
home. Believing that appellant was not then in the lawful discharge of his duties or traveling to or
from his place of assignment, Rush arrested appellant for unlawfully carrying the weapons. See id.
§ 46.15(b)(4) (West Supp. 2009).
Called as a State witness, Weaver testified that he was walking home from his place
of employment when he saw appellant at the Subway. Weaver went in to say hello, and he and
appellant conversed for about fifteen minutes. Appellant then offered Weaver a ride home, and
Weaver accepted. Appellant first drove to his own house, where he and Weaver went in and drank
a soda. Then, they drove to Weaver’s house. Weaver testified that he and appellant had been
standing outside his house talking for ten or fifteen minutes when the encounter with the
police began.1
During Weaver’s cross-examination by defense counsel, this exchange occurred:
Q. And did Mr. Royce ever explain to you whether or not he was heading
back to Subway?
1
Appellant’s own testimony was similar to Weaver’s. He said that he was working with a
trainee that night, and he needed to go home to get a job-related binder. He offered to give Weaver
a ride home while he did this. He testified that he was in the process of leaving Weaver’s
residence and returning to work when he was stopped and arrested. Appellant conceded during
cross-examination that his duties at the Subway did not include taking friends home.
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A. He didn’t tell me. I just assumed.
Q. Was it clear that he was or it seemed to you that he was.
A. It seemed to me that he —
[Prosecutor]: Calls for speculation, Your Honor.
THE COURT: Sustained.
Appellant contends that the court erred by sustaining the State’s objection. He argues that the
question properly called for a lay opinion under rule 701, and that the personal knowledge
requirement of rule 602 would be satisfied if the opinion was rationally based on Weaver’s objective
perceptions. See Tex. R. Evid. 602, 701; Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim.
App. 1997).
Appellant did not take Weaver on voir dire to memorialize what his answer to the
disallowed question would have been or to establish that Weaver was offering an opinion based on
personal observation. See Tex. R. Evid. 103(b). In any event, Weaver testified without objection
that appellant did not tell him that he was returning to work but that he “assumed” that he was. This
was, in effect, Weaver’s opinion as to appellant’s intent, and it is reasonably likely that the jury
understood that the opinion was based on Weaver having encountered appellant in uniform at the
restaurant. Because the jury heard Weaver’s opinion as to appellant’s intention to return to work,
no reversible error is presented.
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The judgments of conviction are affirmed.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: August 10, 2010
Do Not Publish
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