             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-1323-13



                             EDWARD CHIARINI, Appellant

                                              v.

                                    THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE FIFTH COURT OF APPEALS
                              DALLAS COUNTY

           K ELLER, P.J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, K EASLER, H ERVEY, C OCHRAN and A LCALA, JJ., joined. J OHNSON, J.,
concurred.

       Appellant, the owner of a condominium unit, carried a handgun in the common area of the

condominium complex. Did he violate the “unlawful carrying weapons” (UCW) statute,1 which

generally prohibits the carrying of a handgun but does not prohibit carrying a handgun on “the

person’s own premises?” We hold that he did not violate the UCW statute, and we affirm the

judgment of the court of appeals.

                                      I. BACKGROUND


       1
           TEX . PENAL CODE 46.02.
                                                                                  CHIARINI — 2

       On January 28, 2011, Dallas police officers responded to a drug-house call at a condominium

complex. When they arrived, appellant and the president of the homeowners’ association walked

out to meet them in the courtyard of the complex. Appellant had a handgun in a holster on his leg.

When asked why he had the handgun, appellant replied that he does “walk-thrus” at the complex.

       Appellant was the owner of one of the units in the complex. The condominium declaration

defined ownership in relevant part as follows:

       3.1 OWNERSHIP. A Condominium Unit will be a fee simple estate and may be
       held and owned by any persons, firm, corporation or other entity singularly, as joint
       tenants, as tenants in common, or in any real property tenancy relationship
       recognized under the law of the state of Texas.

       3.2 PARTITION. The Common Elements (both General and Limited) shall be
       owned in common by all of the Owners of the Condominium Units and shall remain
       undivided . . . .

       3.3 EXCLUSIVENESS OF OWNERSHIP. Each Owner shall be entitled to
       exclusive ownership and possession of his Unit. Each Owner may use the Common
       Elements in accordance with the purpose for which they are intended, without
       hindering or encroaching upon the lawful rights of the other Owners.2

The complex had 180 units, and the president of the homeowners’ association testified that appellant

owned a 1/180th undivided interest in the common area. Appellant was convicted of unlawfully

carrying a weapon under Texas Penal Code § 46.02.

       On appeal, appellant challenged the legal sufficiency of the evidence. He contended that he

did not violate the statute because the common area of the condominium complex qualified as his

“own premises.” The court of appeals agreed and rendered a judgment of acquittal.3


       2
          The condominium declaration was executed on November 25, 1981. Because the
declaration was executed before January 1, 1994, the “Condominium Act” (Chapter 81) rather than
the “Uniform Condominium Act” (Chapter 82) applies. See TEX . PROP . CODE § 82.002(a).
       3
           Chiarini v. State, 407 S.W.3d 922 (Tex. App.–Dallas 2013).
                                                                                         CHIARINI — 3

                                             II. ANALYSIS

                             A. The Statute and Rules of Construction

        The UCW statute, Texas Penal Code § 46.02, provides in relevant part:

        A person commits an offense if the person intentionally, knowingly, or recklessly
        carries on or about his or her person a handgun . . . if the person is not . . . on the
        person’s own premises or premises under the person’s control . . . . For the purpose
        of this section, “premises” includes real property and a recreational vehicle that is
        being used as living quarters, regardless of whether that use is temporary or
        permanent.4

The question is, simply, whether the common area of the condominium complex constitutes

appellant’s “own premises” under the statute by virtue of his 1/180th undivided interest. If the

common area constitutes appellant’s “own premises,” then the UCW statute does not prohibit him

from carrying a handgun on that property.

        In construing a statute, we give effect to its literal text unless the meaning of the statute is

ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly

intended.5 If the statute is ambiguous or leads to absurd results, then we may consult extratextual

factors, such as the legislative history.6 In addition to legislative history, extratextual factors include,

but are not limited to, the object sought to be obtained, common law or former statutory provisions,

and the consequences of a particular construction.7



        4
         TEX . PENAL CODE § 46.02(a)(1), (a-2). The portions of the UCW statute that are at issue
here have remained unchanged since September 1, 2007.
        5
            Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991).
        6
            Id.
        7
         Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013); Ex parte Rieck, 144 S.W.3d
510, 512 (Tex. Crim. App. 2004).
                                                                                     CHIARINI — 4

                                            B. “Premises”

        Traditionally, the word “premises” in the UCW statute has been broadly construed to include

both residential and business property.8 Any type of real property can qualify as premises, so long

as it is the person’s own property or under the person’s control. The UCW statute allows a person

to carry a handgun on any real property that is his own property or that he controls, whether it be a

residence, a business, or even a vacant lot.

                                               C. “Own”

                                          1. Plain Meaning

        The word “own” is used here as an adjective, and, as such, it can be defined as “belonging

to oneself.”9 Property can be said to “belong” to one if that person has an ownership interest in it.

Property, especially real property, can easily have multiple owners, so it would be odd to interpret

the adjective “own” with respect to property as referring to exclusive ownership. Two sisters might



       8
           See Moosani v. State, 866 S.W.2d 736, 738 (Tex. App.–Houston [14th Dist.] 1993), aff’d
and opinion adopted by, 914 S.W.2d 569 (Tex. Crim. App. 1995) (“There is a statutory exception
for a person carrying a weapon on his own premises or premises under his control. [Citation omitted]
Case law has established that a person may carry a pistol from his place of business to his home or
from his home to his place of business provided (1) the weapon is not habitually carried between
those places, (2) the purpose for carrying the weapon is legitimate, e.g., protection when carrying a
large sum of money, (3) the route taken is a practical one, and (4) the journey proceeds without
undue delay or unnecessary or unreasonable deviation.”); Inzer v. State, 601 S.W.2d 367, 368 (Tex.
Crim. App. [Panel Op.] 1980) (referring to “statutory defenses that one may carry a weapon at home,
on one’s business premises, or while traveling” and stating that these “statutory defenses have
remained intact since their passage in the latter part of the 19th Century”); Evers v. State, 576 S.W.2d
46, 51 (Tex. Crim. App. 1978), overruled on other grounds by Heitman v. State, 815 S.W.2d 681
(Tex. Crim. App. 1991) (explaining that “control of the business premises is essential in order to
justify carrying a pistol to the business premises” and citing predecessor language to present statute).
       9
         WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 843 (1987). See also BLACK’S LAW
DICTIONARY 996 (5th ed. 1979) (definition of “own” includes, “To have a good legal title; to hold
as property.”).
                                                                                    CHIARINI — 5

own and live at a house together, and each would legitimately say that the house is her own premises.

Or two partners could own a business and the land it sits on, and each would legitimately call the

business premises his own. It would be inaccurate to say that one of the sisters could legally possess

a handgun in the home only if the home were owned solely by her, or that one partner could legally

possess a handgun at his place of business only if he owned the business alone instead of sharing

ownership with a partner.

       While the present case involves 180 owners rather than two, that numerical difference cannot

be a principled basis for distinguishing the present case from the hypotheticals given above. On what

basis, for example, would we say that a person may carry a gun on the premises if he is one of five

owners but not if he is one of a hundred?

       The condominium declaration in this case states that the common elements of the

condominium complex are “owned in common” by all of the condominium unit owners. This phrase

conforms to the requirements of the Condominium Act, which provides, “An owner of an apartment

in a condominium regime shares ownership of the regime’s common elements with the other

apartment owners.”10 The owner of a condominium unit is liable for his pro rata share of expenses

for maintaining the common areas11 and a pro rata share of any tort liability arising from the common

areas.12 The Texas Supreme Court has explained that, “[i]n enacting the Condominium Act, the

legislature “intended to create ‘a new method of property ownership,’” consisting of “the fee simple

ownership of an apartment or unit in a condominium project and a tenancy in common with other


       10
            TEX . PROP. CODE § 81.107.
       11
            TEX . PROP. CODE § 81.204.
       12
            Dutcher v. Owens, 647 S.W.2d 948, 950 (Tex. 1983).
                                                                                    CHIARINI — 6

co-owners in the common elements.”13 “Tenancy in common” is a legal phrase that describes the

most prevalent form of concurrent ownership of real estate other than by spouses.14 The plain

meaning of the phrase “the person’s own premises” would, therefore, seem to encompass appellant’s

undivided ownership interest of the common area of the condominium complex.

       The State argues that the common area does not constitute appellant’s own premises because

he does not control the area and because he would not be jointly and severally liable on tort claims

arising from such an area. As explained above, the UCW statute exempts from its reach a “person’s

own premises or premises under the person’s control.” If the legislature had wished to limit the

exemption to premises that a person had legal control over, it could have omitted the phrase

“person’s own premises” entirely. Moreover, appellant had at least some indirect control over the

common area: he could vote for homeowners-association board members, who could act to maintain

the common area. The law restricts the ability to partition or sell an interest in the common area of

a condominium complex,15 but those restrictions are designed to protect the other owners, a theme



       13
            Dutcher, 647 S.W.2d at 949.
       14
           See John E. Cribbet and Corwin W. Johnson, PROPERTY : CASES AND MATERIALS, 5th ed.,
337, 347 (December 1984) (explaining, “Except in special circumstances which will be considered
hereafter, concurrent owners are termed ‘tenants in common,’” and mentioning, among other special
circumstances, “community property,” of importance in eight states); Harrell v. Harrell, 692 S.W.2d
876 (Tex. 1985) (“It has long been the rule in Texas that community property not partitioned or
divided upon divorce is held by the former spouses as tenants in common or joint owners.”);
Dahlberg v. Holden, 150 Tex. 179, 186, 238 S.W.2d 699, 703 (1951) (“Ordinarily, when one tenant
in common brings a suit to recover land, in proving his own title, he proves that of his cotenants, and
thereby shows that the defendant is not entitled to possession.”); Bruni v. Vidaurri, 140 Tex. 138,
146, 166 S.W.2d 81, 86 (1942) (person, “by accepting and claiming under a deed which conveyed
to him interests owned by some of the cotenants, became a tenant in common with the other co-
owners.”).
       15
            TEX . PROP. CODE §§ 81.108, 81.109.
                                                                                   CHIARINI — 7

in the law when tenants in common are involved.16

       And though it is true that condominium owners are not jointly and severally liable in the tort

context for injuries arising out of the common area, the imposition of joint and several liability is

merely a “judicially created vehicle[] for enforcing remedies for wrongs committed” and is

“[j]ustified on policy grounds.”17 The Texas Supreme Court’s policy decision not to use such a

vehicle in this context18 does not detract from the fact that the condominium-unit owner is a co-

owner of the common area.

       The State also relies upon cases that involve the possession of a handgun in the common area

of an apartment complex, or of a condominium complex where the defendant was a renter.19 The

court of appeals in the present case found those cases to be distinguishable because none involved

an owner of a condominium unit with an undivided legal interest in the common areas of the


       16
           See Sayers v. Pyland, 139 Tex. 57, 64, 161 S.W.2d 769, 773 (1942) (“It is likewise well
settled that, while one tenant in common may acquire homestead rights in the common property, the
rights so acquired are not superior to the rights and remedies of the other joint owners. He can
acquire no such rights as will prejudice or in anywise interfere with the rights of the other tenants
in common.”); Cribbet and Johnson at 338 (“each cotenant has a right of possession referable to the
whole, coupled with a duty not to interfere with another’ cotenant’s co-extensive right”); id. at 337
(“If harmony is lacking and the opponents cannot agree upon truce or compromise, ordinarily the
most attractive alternative is to compel termination of the cotenancy relationship through a judicial
process termed ‘partition,’ but as subsequent materials will show, this solution is not always
available.”).
       17
            Dutcher, 647 S.W.2d at 951.
       18
            See id.
       19
          Bryant v. State, 508 S.W.2d 103, 103-04 (Tex. Crim. App. 1974) (apartment complex);
Wilson v. State, 418 S.W.2d 687, 687-88 (Tex. Crim. App. 1967) (op. on original submission and
op. on appellant’s motion for rehearing) (same); Angell v. State, No. 05-05-00707-CR, 2006 Tex.
App. LEXIS 10134, *4-6 (Tex. App.–Dallas November 27, 2006, no pet.) (not designated for
publication) (renter at condominium complex); Curlin v. State, 2000 Tex. App. LEXIS 2513 (Tex.
App.–Dallas April 18, 2000, no pet.) (not designated for publication) (apartment complex).
                                                                                       CHIARINI — 8

complex.20 We agree with the court of appeals. All four cases cited by the State involve people who

were renters, not owners. The cases are inapplicable.21 We conclude that, because appellant was a

co-owner of the common area, the common area was his “own” premises under the literal text of the

statute.

                                 2. Absurd Results / Extratextual Factors

            The State contends that the language in § 46.02 produces absurd results when read together

with § 46.035, the provision that applies to persons who are licensed to carry concealed handguns.

The State points to the fact that the concealed-handgun statute prohibits persons holding licenses

from displaying a handgun “in plain view of another person in a public place.”22 The State argues

that a construction of § 46.02 that allows a person to carry a handgun on any property in which he

has an ownership interest would in effect give unlicensed individuals the right to openly carry a

handgun in some public places where a licensed individual could not.

           We point out that the State’s complaint is not that the literal text of § 46.02 produces absurd

results by itself. The State’s absurd-result complaint is based on reading § 46.02 in conjunction with

§46.035. But a comparison of the statutes makes us wary of any effort to interpret § 46.02 to


           20
                Chiarini, 407 S.W.3d at 926.
           21
           Neither of the court of appeals opinions are published, so they have no precedential value,
Campbell v. State, 426 S.W.3d 780, 783 n.2 (Tex. Crim. App. 2014), and in any event, they are not
binding upon us. State v. Thomas, 428 S.W.3d 99, 105 (Tex. Crim. App. 2014). Further, we
disagree with the State’s contention that appellant was “[m]uch like the apartment dweller in
Curlin.” Not only was Curlin a renter of an apartment, rather than the owner of a condominium unit,
but he was convicted under a different statute, felon in possession of a firearm, which contains
different language than that found in § 46.02 and arguably serves a different purpose. See Curlin,
2000 Tex. App. LEXIS 2513, *5-7 (observing that the unlawful-possession-of-a-firearm-by-a-felon
statute permits possession of a firearm only “within the confines” of the felon’s residence).
           22
                TEX . PENAL CODE § 46.035(a).
                                                                                    CHIARINI — 9

conform to § 46.035. In 2011, when appellant was arrested for carrying a handgun, § 46.035(a) did

not contain the “public place” language that it contains today; rather, that provision simply made it

an offense if a person licensed to carry a concealed handgun “intentionally fail[ed] to conceal the

handgun.”23 That language could be read to prohibit a license holder from openly carrying a handgun

inside his own house, but no one would contend that § 46.02 would prohibit such conduct for an

unlicensed handgun owner. And even under the present version of § 46.035, possession by a license

holder of a handgun in a correctional facility would be a higher degree offense than possession would

be for an unlicensed person under § 46.02.24 Moreover, § 46.035 applies only to handguns, but §

46.02(a), under which appellant was charged, applies to a “handgun, illegal knife, or club.”25

        Further, the State assumes that any absurd result produced by reading the statutes together

must be remedied by adjusting the interpretation of § 46.02. But it could just as easily be argued that

it is the interpretation of § 46.035 that should be adjusted.26

       Even assuming that a reading of the two statutes together produces an absurd result that

authorizes us to look at legislative history, the State’s legislative history argument is unpersuasive.

The State contends that the legislative history to the 2007 amendments to § 46.02 makes clear that


       23
            TEX . PENAL CODE § 46.035(a) (West 2010).
       24
           Compare TEX . PENAL CODE § 46.02(b), (c) (Class A misdemeanor, except third-degree
felony if possessed on premises licensed to sell alcoholic beverages) with id. § 46.035(b)(3), (g)
(third-degree felony if possessed on the premises of a correctional facility).
       25
            Compare id. § 46.02(a) with id. § 46.035(a) - (d).
       26
          Penal Code § 46.035 provides, as one element of the offense, that the person is carrying
the handgun “under the authority of Subchapter H, Chapter 411, Government Code.” See id. §
46.035(a) - (d). The argument could be made that a license holder who possesses or displays a
handgun under circumstances in which an unlicensed individual would be authorized to possess or
display a handgun is not acting “under the authority of Subchapter H.”
                                                                                       CHIARINI — 10

the legislature intended to afford protection from prosecution for motorists lawfully carrying

weapons. While that appears to have been one of the purposes of the amendments, we do not see

how that affects the interpretation of the statute. The change to which the State refers was to a

separate portion of § 46.02 that is not at issue here.27 Moreover, the bill analysis includes the

following passage, which is quoted in the State’s brief: “C.S.H.B. 1815 would make it clear that a

person has a right to carry a handgun, club or certain knives on the person’s own premises or

premises under his control.”28

          The State also contends that the court of appeals’s position “fails to consider the facts of this

case,” and the State concludes, “It is unreasonable to believe that the Legislature envisioned and

intentionally authorized individuals in Respondent’s position to openly brandish weapons on any

piece of property in which they had a partial ownership interest, but no actual control.” The State

points to the facts that it believes the court of appeals failed to consider as, “Respondent patrolled

the common areas of the condominium complex openly carrying a .40 caliber handgun in a thigh rig

that resembled something worn in ‘Battlestar Galactica.’” If the State’s contention is that the court

of appeals failed to consider the potentially disruptive aspects of appellant’s conduct, the State errs

in that regard. The court of appeals pointed to the disorderly conduct statute as possibly applying

to the situation.29 If the State’s contention is that it is self-evident that the legislature intended to


          27
           See TEX . PENAL CODE § 46.02(a)(2) (exempting from the UCW offense an actor’s
possession of a weapon “inside of or directly en route to a motor vehicle that is owned by the person
or under the person’s control.”)
          28
               Texas House Comm. on Law Enforcement, Bill Analysis, H.B. 1815, 80th Leg., R.S.
(2005).
          29
         Chiarini, 407 S.W.3d at 926-27 (citing and quoting TEX . PENAL CODE § 42.01(a)(8) (West
Supp. 2012) (“A person commits [disorderly conduct] if he intentionally or knowingly: . . . (8)
                                                                                    CHIARINI — 11

punish under § 46.02 the act presented here, we must disagree.

        The State also contends that upholding the lower court’s interpretation would mean that

“persons openly carrying handguns on ‘real property’ would no longer be subject to arrest for

unlawfully carrying a weapon, unless the police officer had dispositive information that the

individual did not own or control the premises.” It is true that a police officer would need probable

cause to arrest someone for violating the statute, but it is possible that an officer could stop someone

and conduct an investigative detention on reasonable suspicion and develop probable cause during

that detention.30 The State argues that officers would have a difficult time articulating reasonable

suspicion to stop and probable cause to arrest, but “reasonable suspicion” is a relatively low level

of suspicion that involves articulable facts showing “some activity out of the ordinary has occurred,

some suggestion to connect the detainee to the unusual activity, and some indication that the unusual

activity is related to crime.”31 And even if the officer did not yet possess facts giving rise to

reasonable suspicion, he could attempt to initiate a consensual encounter by approaching the

individual in question and asking whether he had an ownership interest in the property.32 The

individual’s response might yield reasonable suspicion to stop or probable cause to arrest.

Furthermore, depending on the circumstances, an officer might be able to develop reasonable




displays a firearm or other deadly weapon in a public place in a manner calculated to alarm . . . .”).
        30
             See Terry v. Ohio, 392 U.S. 1 (1968).
       31
             Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011) (emphasis omitted).
       32
          Wade v. State, 422 S.W.3d 661, 667 & n.17 (Tex. Crim. App. 2013) (“Police officers are
as free as any other citizen to approach citizens to ask for information or cooperation. Such
consensual encounters may be uncomfortable for a citizen, but they are not Fourth Amendment
seizures.”).
                                                                                 CHIARINI — 12

suspicion or probable cause regarding the violation of a different statute, such as the disorderly-

conduct statute mentioned by the court of appeals.

       We do not agree with the State that the plain language of the statute leads to absurd results,

and in any event, we do not agree that extratextual factors support the State’s interpretation of §

46.02. We conclude that appellant’s undivided ownership interest in the common area of the

condominium complex made the common area appellant’s “own premises” under the UCW statute.

Because appellant was carrying a handgun on his own premises, he did not violate § 46.02.

       We affirm the judgment of the court of appeals.

Delivered: September 17, 2014
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