In Re AG

292 S.W.3d 755, 2009 WL 2049992
CourtCourt of Appeals of Texas
DecidedJuly 9, 2009
Docket11-08-00025-CV
StatusPublished

This text of 292 S.W.3d 755 (In Re AG) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re AG, 292 S.W.3d 755, 2009 WL 2049992 (Tex. Ct. App. 2009).

Opinion

292 S.W.3d 755 (2009)

In the Matter of A.G., a Juvenile.

No. 11-08-00025-CV.

Court of Appeals of Texas, Eastland.

July 9, 2009.

*758 Anita F. Provo, Provo & Provo, Beaumont, TX, for appellant.

Thomas Maness, District Atty., Wayln G. Thompson, Assistant District Attorney, Eric S.A. Houghton, Assistant District Attorney's Office, Beaumont, TX, for appellee.

Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

TERRY McCALL, Justice.

In four points, A.G., a juvenile, challenges the trial court's judgment modifying disposition and committing him to the Texas Youth Commission (TYC). We reverse and remand.

Factual Background

On July 10, 2007, appellant pleaded "true" to an allegation that he used a vehicle to intentionally flee from police officers who were attempting to detain him on November 22, 2006. The incident occurred when appellant was sixteen years old. Had appellant been an adult, the offense could have constituted a felony. TEX. PENAL CODE ANN. § 38.04 (Vernon 2003). The trial court placed appellant on community supervision for one year in his father's custody. The conditions of appellant's community supervision included not violating any laws of the State of Texas; attending school daily; reporting to his community supervision officer; obeying curfew; and not associating with negative peers.

Approximately six weeks after being placed on community supervision for the felony-level allegation, Officer Keith Perkins of the Port Arthur Police Department encountered appellant and three other males walking in the middle of the roadway in the 600 block of San Jacinto. Officer Perkins was responding to a report of subjects carrying guns in the neighborhood. Officer Perkins received this report at 7:51 p.m. on August 26, 2007. When Officer Perkins asked the individuals if they had any weapons, appellant informed him that he had a knife. Appellant removed a machete from the waistband of his clothing and gave it to Officer Perkins. Officer Perkins arrested appellant for unlawfully carrying a weapon, to-wit: an illegal knife with a blade longer than five and one-half inches. TEX. PENAL CODE ANN. §§ 46.01(6), 46.02 (Vernon Supp. 2008).

The State filed a petition to modify disposition based upon the allegation that appellant violated the terms and conditions of community supervision by violating a law of the State of Texas by virtue of his subsequent arrest for unlawfully carrying a weapon and that he violated curfew by failing to be home by 7:00 p.m. on the day he was arrested. Appellant was still sixteen years old when the subsequent arrest was made. He turned seventeen years old prior to the adjudication hearing conducted on November 20, 2007, by the trial court on the State's petition to modify disposition.

Appellant contested the State's allegations by attempting to establish the "traveling" defense to the weapon allegation. He testified that he found the knife while walking to his friend's house to retrieve a shirt for school the next morning. He contended that he picked up the knife because he thought it was a collector's item. Appellant asserted that he was returning to his home when he was stopped *759 by Officer Perkins and that he was never more than 600 to 700 feet from his home. The trial court rejected appellant's defensive theories by finding the State's alleged community supervision violations to be "true." After a disposition hearing conducted on November 21, 2007, the trial court committed appellant to TYC for an indeterminate period not to exceed his nineteenth birthday.

Standard of Review

Juvenile courts are vested with broad discretion in determining whether to modify the disposition of juveniles found to have engaged in delinquent conduct. See In re D.R., 193 S.W.3d 924, 924 (Tex.App.-Dallas 2006, no pet.); In re P.L., 106 S.W.3d 334, 337 (Tex.App.-Dallas 2003, no pet.). In reviewing the trial court's decision, we examine the entire record to determine whether the trial court acted unreasonably or arbitrarily or without reference to any guiding rules or principles. See In re D.R., 193 S.W.3d at 924; In re K.B., 106 S.W.3d 913, 915 (Tex. App.-Dallas 2003, no pet.).

"Traveling" Defense

Appellant asserts in his first point that the trial court erred in not sustaining his affirmative defense of traveling to the allegation of unlawfully carrying a weapon. A person commits an offense under Penal Code Section 46.02 if he "intentionally, knowingly, or recklessly carries on or about his or her person [an]... illegal knife." However, Section 46.02 does not apply to a person who is traveling. TEX. PENAL CODE ANN. § 46.15(b)(3) (Vernon Supp. 2008). The traveling exclusion from Section 46.02 has the procedural and evidentiary consequences of a defense. Illingworth v. State, 156 S.W.3d 662, 664 (Tex.App.-Fort Worth 2005, no pet.) (citing TEX. PENAL CODE ANN. § 2.03(e) (Vernon 2003)). Consequently, once the defendant produces some evidence that supports the defense, the State bears the burden of persuasion to disprove the raised defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.App.2003) (citing Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991)). However, "[t]he burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt. When a [factfinder] finds the defendant guilty, there is an implicit finding against the defensive theory." Id. (citation omitted). In other words, the State has "no duty to introduce affirmative controverting evidence to rebut the defensive theory." Ayesh v. State, 734 S.W.2d 106, 107 (Tex.App.-Austin 1987, no pet.). Rather, the State satisfies its burden of proof if "the [factfinder] could properly disbelieve appellant's testimony" on the issue. See id. (citing Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App.1978)).

The legislature has never defined what "traveling" means, and its precise meaning has been the subject of much debate. See Ayesh, 734 S.W.2d at 108. Texas courts have generally distinguished "traveling" based on the distance and duration of the trip. See Birch v. State, 948 S.W.2d 880, 882 (Tex.App.-San Antonio 1997, no pet.). Some cases have suggested that crossing county lines establishes traveling, see Illingworth, 156 S.W.3d at 665 (citing Ballard v. State, 74 Tex.Crim. 110, 167 S.W. 340, 340 (1914)), but this is not a categorical rule, see Perez v. State, 87 S.W.3d 648, 652-53 (Tex.App.-San Antonio 2002, no pet.).

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Related

Saxton v. State
804 S.W.2d 910 (Court of Criminal Appeals of Texas, 1991)
Birch v. State
948 S.W.2d 880 (Court of Appeals of Texas, 1997)
City of Keller v. Wilson
168 S.W.3d 802 (Texas Supreme Court, 2005)
Perez v. State
87 S.W.3d 648 (Court of Appeals of Texas, 2002)
Illingworth v. State
156 S.W.3d 662 (Court of Appeals of Texas, 2005)
Zuliani v. State
97 S.W.3d 589 (Court of Criminal Appeals of Texas, 2003)
Ayesh v. State
734 S.W.2d 106 (Court of Appeals of Texas, 1987)
Johnson v. State
571 S.W.2d 170 (Court of Criminal Appeals of Texas, 1978)
Cain v. Bain
709 S.W.2d 175 (Texas Supreme Court, 1986)
in the Matter of J.P., a Juvenile
136 S.W.3d 629 (Texas Supreme Court, 2004)
in the Matter of A.G., a Juvenile
292 S.W.3d 755 (Court of Appeals of Texas, 2009)
Ballard v. State
167 S.W. 340 (Court of Criminal Appeals of Texas, 1914)
In Re C. C.
13 S.W.3d 854 (Court of Appeals of Texas, 2000)
In the Matter of P.L.
106 S.W.3d 334 (Court of Appeals of Texas, 2003)
In the Matter of K.B.
106 S.W.3d 913 (Court of Appeals of Texas, 2003)
In re D.R.
193 S.W.3d 924 (Court of Appeals of Texas, 2006)
In re T.E.G.
222 S.W.3d 677 (Court of Appeals of Texas, 2007)

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Bluebook (online)
292 S.W.3d 755, 2009 WL 2049992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ag-texapp-2009.