
No. 04-01-00753-CR
Frederick BERGMAN,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Bexar County, Texas
Trial Court No. 782534
Honorable H. Paul Canales, Judge Presiding
Opinion by:	Catherine Stone, Justice
Sitting:	Catherine Stone, Justice
		Paul W. Green, Justice
		Sarah B. Duncan, Justice
Delivered and Filed:   September 25, 2002
AFFIRMED
	Frederick Bergman ("Bergman") was convicted by a jury of unlawfully carrying a weapon.
In seven points of error, Bergman complains that the evidence is insufficient to support the conviction
and the trial court erred in denying Bergman's requests for additional jury instructions.  We affirm
the trial court's judgment.
Legal and Factual Sufficiency
	Bergman was the supervisor/manager of Barton's Boozery, a bar.  On March 26, 2001, the
night bartender called the police at 12:09 a.m. after she was attacked and her attackers threatened to
return.  The night bartender also called Bergman at approximately 12:30 to tell him about the incident
and to tell him that the police were called.  Standard operating procedures required the bar employees
to call Bergman each time the police were called.  Two police report surveys were introduced into
evidence to demonstrate that the police were summoned to the bar frequently.  Bergman also testified
that he was frequently threatened at the bar.
	Bergman stated that the police called him and suggested that he come to the bar because they
were leaving and the security guard was leaving at 2:00 a.m., which would leave the night bartender
by herself.  Bergman drove into work and assisted the night bartender with cleaning and restocking.
Bergman testified that he took his handgun and additional ammunition with him to the bar.
	Judy Murphy, the day bartender, testified that Bergman was at the bar when she arrived for
her shift at 6:45 a.m.  It was unusual for Bergman to be at the bar at that time.  Bergman explained
what had happened and that he was waiting for Chris Stanton, who routinely arrived around 8:00 a.m.
to collect the quarters from the pool tables and jukeboxes at the bar.  Bergman called Stanton and
explained that he was exhausted.  Bergman asked Stanton if he could collect the quarters another
time, but Stanton implored Bergman to wait for him so that Stanton could stay on schedule.  When
Stanton arrived at the bar, he saw how tired Bergman was and offered to give him a ride home.
Bergman declined the offer.  Stanton finished collecting the quarters and left.  Bergman left after
Stanton.  Murphy testified that Bergman left around 8:30.  A map was introduced to show the route
Bergman took each day to return home from work.
	At 9:45 a.m., Officer Patrick Robertson was dispatched to investigate a report of a vehicle
that was stalled in the middle lane of the access road to Loop 410 approaching the Bandera Road
intersection.  The vehicle was located on the route Bergman normally took between work and home.
Officer Robertson observed that the driver, Bergman,  was asleep with the car in gear, but Bergman's
feet were on the brake.  Officer Robertson reached into the car, put it in park, and took out the keys.
Bergman woke up but was dazed.  When Bergman reached to his back waist, Officer Robertson
yelled that he was a police officer to focus Bergman and get his attention.  Officer Robertson asked
Bergman if he had any weapons, and Bergman told Officer Robertson that he had a handgun in his
waistband.  Officer Robertson retrieved the handgun.  In addition, Officer Robertson retrieved four
knives, an assault rifle magazine, and four additional magazine clips for the handgun.  Bergman
explained to Officer Robertson that he was not required to have a permit for the handgun because
he was traveling to and from work.  The owner of the bar testified that Bergman had his permission
to have a handgun at the bar.
	In reviewing the legal sufficiency of the evidence, we view the evidence in the light most
favorable to the prosecution to determine whether a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319
(1979).  In our factual sufficiency review, we must consider all of the evidence to determine whether
the judgment is "so contrary to the overwhelming weight of the evidence to be clearly wrong and
unjust."  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  The trier of fact is required
to evaluate the credibility and demeanor of the witnesses and determine the weight to be given
contradictory testimony.  Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).  We are
not permitted to reweigh the evidence, rather we defer to the trier of fact's findings, particularly those
based on credibility determinations.  Id. at 407-09.
	A person commits the offense of unlawfully carrying a weapon if he intentionally, knowingly,
or recklessly carries on or about his person a handgun.  Tex. Pen. Code Ann. § 46.02 (Vernon Supp.
2002).  Both statutory and common law defenses to the offense of unlawfully carrying a weapon
exist.  See Birch v. State, 948 S.W.2d 880, 882-84 (Tex. App.--San Antonio 1997, no pet.);
Moosani v. State, 866 S.W.2d 736, 738 (Tex. App.--Houston [14th Dist.] 1993), aff'd, 914 S.W.2d
569 (Tex. Crim. App. 1995) (adopting court of appeals' reasoning); Tex. Pen. Code Ann. § 46.15
(Vernon Supp. 2002).  One defense permits a person to carry a handgun from his place of business
to his home or from his home to his place of business provided that: (1) the weapon is not habitually
carried between those places; (2) the purpose for carrying the weapon is legitimate; (3) the route
taken is a practical one; and (4) the journey proceeds without undue delay or unnecessary or
unreasonable deviation.  Moosani, 866 S.W.2d at 738; see also Birch, 948 S.W.2d at 884 (listing
conditions for defense).  Once a defendant raises a defensive issue, the State has the burden to
disprove the defense beyond a reasonable doubt.  Moosani, 866 S.W.2d at 738;  Tex. Pen. Code
Ann. § 2.03(d) (Vernon 1994).
	Bergman contends that the evidence is insufficient because the State failed to disprove the
defense that allowed him to carry his handgun from his place of business to his home.  The State
responds that the jury could have found that Bergman was not entitled to the defense because he
habitually carried the weapon or because he deviated from his route when he fell asleep in the middle
lane of traffic.
	Bergman testified that he did not routinely or habitually carry the handgun to work.  Bergman
testified that the employees called him every time the police were called, but Bergman did not always
go to the bar in response.  Bergman further testified that he did not carry his handgun after each
incident in which he was threatened.  In response to the prosecutor's question regarding how many
times Bergman carried his gun to the bar, Bergman responded that he did not keep a count.  Bergman
did not know how many times he had carried the gun in the last year but stated it was not that
frequent.  In response to the prosecutor's question regarding whether Bergman carried his handgun
one time a week or one time a month, Bergman responded that he did not keep track.
	Based on Bergman's responses to the prosecutor's questions, the jury could have disbelieved
Bergman's testimony that he did not habitually carry the handgun.  The jury could have inferred from
Bergman's refusal to estimate the frequency with which he carried the handgun that Bergman carried
the handgun habitually.  In addition, Bergman was only entitled to the defense if he could show that
the journey proceeded without undue delay.  Morgan testified that Bergman left the bar at 8:30.
Officer Robertson testified that he received the dispatch at 9:45 a.m., and it took him fifteen to twenty
minutes to arrive at the location.  The jury could have believed from this evidence that Bergman's
journey did not proceed without undue delay in view of the amount of time that elapsed from when
Bergman left the bar until Officer Robertson arrived at Bergman's car.
	The evidence is legally and factually sufficient to support Bergman's conviction.
Jury Charge
	Bergman was entitled to an instruction on any defensive theory raised by the evidence even
if the issue was raised only by Bergman's testimony.  Birch, 948 S.W.2d at 884.  A defensive
instruction should be given whether the evidence raising the issue is strong, weak, unimpeached,
contradicted, or unbelievable.  Id.  Just as the trial court must specifically charge the jury on all the
essential elements of the offense set forth in the charging instrument, Sparkman v. State, 55 S.W.3d
625, 631 (Tex. App.--San Antonio 2000, no pet.), an instruction regarding a defense must include
all essential elements of the defense.
	The jury charge contained the following instruction:
		You are instructed that a person may lawfully carry a pistol from his place of
business to his home or from his home to his place of business, provided that the
weapon is not habitually carried between those places and the purpose is a legitimate
one.  The route taken for the transportation must be a practical one, though not
necessarily the shortest or most practical and the journey must proceed without undue
delay or unnecessary deviation.
		Now, if you find from the evidence that on the occasion in question the
defendant, FREDERICK BERGMAN, was carrying the pistol introduced into
evidence from his place of business to his home, and that he was going by a practical
route at the time and was proceeding without undue delay or unnecessary or
unreasonable deviation, and that said weapon was not habitually carried by the
defendant between his home and place of business, or if you have a reasonable doubt
as to the foregoing, then you will find the defendant not guilty.
Bergman contends that the trial court erred in denying the additional instructions that he requested.
We will examine these instructions separately.
	Bergman's first requested instruction is substantially similar to the instruction that was
included in the jury charge except Bergman's requested instruction omits the requirement that the
weapon not be habitually carried.  This requirement is an element of the defense; therefore, the trial
court did not err in denying Bergman's first requested instruction.  See Birch, 948 S.W.2d at 884;
Moosani, 866 S.W.2d at 738.
	Bergman's third and fourth requested instructions are also substantially similar to the
instruction that was given except those instructions define the place of business as one that has an
alcoholic permit or license and the third requested instruction omits the requirement that the weapon
not be carried habitually.  Bergman bases these requested instructions on the defense available to a
person who "holds an alcoholic beverage permit or license or is an employee of a holder of an
alcoholic beverage permit or license if the person is supervising the operation of the permitted or
licensed premises."    Tex. Pen. Code Ann. § 46.15(b)(8) (Vernon Supp. 2002).  However, as the
statute states, that defense is only available "if the person is supervising the operation of the permitted
or licensed premises."  Id.  Bergman was not supervising the operation of the bar while he was
driving home.  Therefore, the trial court did not err in denying Bergman's third and fourth requested
instructions.
	Bergman's fifth requested instruction relates to the defense of traveling.  "'Traveling' has
never been defined by statute, and the precise meaning of the term has been the subject of much
debate."  Birch, 948 S.W.2d at 882.  "There is no bright line test for determining when one is
'traveling' for the purpose of the statute, and the standards that have evolved from the case law are
not models of clarity."  Id.  "In applying the term 'traveling,' Texas courts have generally considered
distance, time, and mode of travel."  Id.  "Where the distance is short and there is no real journey, one
is not a traveler although he may be going from one county to another."  Id.  "The trip must typically
be overnight;" however, the defense is not restricted solely to those situations.  Id.  "The question
of whether one is a traveler is a fact-driven determination that is not dependent upon any one
particular situation."
	In this case, Bergman's travel from his place of business to his home located in the same city
cannot be considered a "real journey."  If such were the case, the defense allowing a person to carry
a weapon to and from work would be unnecessary, and the additional requirements imposed on that
defense, including the requirement that the weapon not be habitually carried, would be meaningless.
Therefore, the trial court did not err in finding that Bergman was not entitled to a traveling defense
as a matter of law.
	Bergman's seventh requested instruction was an instruction on mistake of fact.  To be entitled
to a mistake of fact defense, the evidence must raise an issue as to whether the defendant mistakenly
formed a reasonable belief about a matter of fact that would negate the kind of culpability required
for the commission of the offense.    Tex. Pen. Code Ann. § 8.02 (Vernon 1994).  The statutory
term "kind of culpability" means "culpable mental state."  Posey v. State, 966 S.W.2d 57, 70 (Tex.
Crim. App. 1998).  "The defense arises, then, when there is evidence that a defendant's mistaken,
reasonable belief about a matter of fact negated the element of the culpable mental state required for
the offense."  Id.
	Bergman's instruction would permit the jury to acquit him if he had formed a mistaken belief
about whether the purpose for carrying the handgun was legitimate and whether the route taken was
a practical one.  The offense of unlawfully carrying a weapon requires culpable possession.  Ex  parte
Romero, 943 S.W.2d 79, 79-80 (Tex. App.--San Antonio 1997, no pet.).  Therefore, the culpable
mental state is whether Bergman intentionally, knowingly, or recklessly possessed the handgun.  A
mistaken belief about the purpose for carrying the handgun or the route taken does not negate this
culpable mental state.  Therefore, the trial court did not err in denying Bergman's requested
instruction.
Conclusion
	The trial court's judgment is affirmed.
							Catherine Stone, Justice
PUBLISH


