Kelly v. State

638 S.W.2d 203, 1982 Tex. App. LEXIS 5072

Opinion

VANCE, Justice.

Appeal is from a bench trial where appellant was convicted¹ of possession of a prohibited weapon, punishment was assessed at five years probated for a period of five years and a fine of $1000.00. We affirm.

FIRST GROUND: SUFFICIENCY OF THE EVIDENCE

The arrest of appellant and the seizure of the shotgun are not questioned. Appellant admitted possession of the shotgun but he contends that the State failed to prove that he had knowledge that the barrel length was less than 18 inches. Appellant claims to have raised the defense of mistake of fact.² Appellant told the court that he had received the shotgun as a gift in 1954, and soon thereafter had cut the barrel to what he thought was 18 inches.³

The indictment in this case was brought under Texas Penal Code Ann. § 46.06(a)(3) (Vernon’s Supp. 1980), which provides:

A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells: a short-barrel firearm.4 (Emphasis and explanation supplied)

The State had to prove that appellant did intentionally or knowingly possess a short-barrel firearm (as described in the indictment). The mistake of fact held by the appellant as to the length he had cut the barrel could negate the kind of culpability required for the commission of the offense: the knowing or intentional possession of a short-barrel firearm. However, the trial court, as the trier of fact, was free to believe or disbelieve the testimony of any witness, including the appellant. Consequently, the trial court by its judgment must have concluded that the appellant’s belief concerning the length of the barrel was not a “reasonable belief” and disbelieved his mistake of fact defense. Sec. 8.02(a), supra. First ground of error is overruled because the evidence is sufficient.

SECOND GROUND: DENIAL OF RIGHT TO PRESENT ARGUMENT

Appellant contends that he was denied the opportunity to present oral argument after both sides had closed and before the trial judge found him guilty. The record reflects that the following occurred at the time complained of:

Mr. Murphy (defense counsel): We rest.

Mr. Fletcher: The State closes.

Mr. Murphy: Close.

The Court: All right. The court finds Mr. Kelly guilty as charged in the indictment ...

(Explanation supplied).

The record further shows that appellant did not request an opportunity to present argument to the court; he did not object to the failure of the trial court to request argument; nor did he call to the attention of the court that the court may have inadvertently failed to allow arguments. All cases cited by appellant show that the accused asserted his right to have counsel present argument to the trial court. Since the appellant failed to assert the right to summation by counsel at trial, he cannot complain on appeal of the failure of the trial court to hear argument. See Thompson v. State, 537 S.W.2d 732, 736 (Tex. Cr. App. 1976). Ground of error two is overruled.

1 . The indictment upon which appellant was convicted alleged in pertinent part that appellant:

... did unlawfully, then and there knowingly and intentionally possess a short-barrel firearm, to-wit: a shotgun, with a barrel length of less than 18 inches.

2 . Texas Penal Code Ann. § 8.02(a) (Vernon 1974) provides:

It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(Emphasis supplied)

3 . The evidence showed that the length of the barrel was 17.7 inches.

4 . Texas Penal Code Ann. § 46.01(10) (Vernon 1974) defines “short-barrel firearm” as:

... a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches ...