ONION, Presiding Judge.
This appeal is taken from a conviction for the unlawful possession of a handgun under the provisions of V.T.C.A. Penal Code, Sec. 46.02.
The appellant was originally indicted for the third degree felony of intentionally and knowingly possessing a pistol away from premises where he lived after being convicted of a felony involving an act of violence and threatened violence—robbery. See V.T.C.A. Penal Code, Sec. 46.05. Upon trial before the court appellant was found guilty of "the misdemeanor offense of unlawfully carrying a pistol" and assessed a punishment of eight months in the county jail.
Although no complaint is made of the same, we must decide at the outset before reaching the merits of appellant's contentions whether unlawfully carrying a weapon, to wit: a handgun, a misdemeanor under the provisions of V.T.C.A. Penal Code, Sec. 46.02, is a lesser included offense of unlawful possession of a firearm by a felon under the provisions of V.T.C.A. Penal Code, Sec. 46.05. If it is not, we do not reach appellant's grounds of error.
Article 37.09, Vernon's Ann.C.C.P., provides:
We explained in Day v. State, 532 S.W.2d 302, 310 (Tex.Cr.App.1976) (Opinion on Rehearing), that Article 37.09, supra, defined lesser included offenses in terms of the relationship between the lesser offense and the "offense charged." Whether one offense bears such a relationship to the offense charged must be a case by case determination, the decision being based on whether the lesser offense could be proved by the same facts as necessary to establish the offense charged. Day v. State, supra.
The elements of the "offense charged" in the present case are appellant (1) intentionally and knowingly (2) possessed away from the premises where he lived (3) a firearm, namely, a pistol (4) after he had previously been convicted of a felony involving violence or threatened violence —robbery. See V.T.C.A. Penal Code, Sec. 46.05. The elements of the offense of unlawful carrying of weapons, V.T.C.A. Penal Code, Sec. 46.02 are (1) intentionally, knowingly or recklessly (2) carrying on or about the person (3) a handgun, illegal knife, or club. It is true that Section 46.05, supra, does not by its own terms include the element of a culpable mental state, but under the provisions of V.T.C.A. Penal Code, Sec. 6.02, these mental states would be inferred. Moreover, the elements of the "offense charged" must be looked to on a case by case basis and not just the language of the statute. See Day v. State, supra.
Under Section 46.02, supra, the weapon must be carried "on or about the person," while under Section 46.05, supra, the requirement is stated merely as "possession." In Courtney v. State, 424 S.W.2d 440 (Tex.Cr.App.1968), this court had occasion to determine what the phrase "on or about the person" meant in the context of the former unlawfully carrying statute, Article 483, Texas Penal Code (1925). The language of Wagner v. State, 80 Tex.Cr.R. 66, 188 S.W. 1001 (1916) was quoted:
Thus the proof that appellant's pistol was on the floorboard of the automobile establishes both that he carried it "on or about his person" and that he "possessed" it. Curry v. State, 465 S.W.2d 154 (Tex.Cr.App. 1971); Coleman v. State, 500 S.W.2d 472 (Tex.Cr.App.1973); Courtney v. State, supra. Since the two are provable by the same facts, the provisions of Article 37.09, Vernon's Ann.C.C.P., are satisfied.
The same reasoning applies to the last remaining distinction between the two offenses. The offense charged, under V.T. C.A. Penal Code, Sec. 46.05, involved possession of a "firearm, namely, a pistol," while V.T.C.A. Penal Code, Sec. 46.02, speaks of possession of "a handgun, illegal knife, or club." The definition of "handgun" in V.T. C.A. Penal Code, Sec. 46.01, is "any firearm that is designed, made, or adapted to be fired with one hand." (Emphasis Supplied) Again, it is evident that the lesser offense and the offense charged are capable of proof by the same fact that appellant had in his automobile a .38 caliber revolver.
Article 37.09(1), Vernon's Ann.C. C.P., provides that an offense is a lesser
Appellant first complains the evidence is insufficient, as a matter of law, to show that he intentionally and knowingly carried on or about his person a pistol.
The record shows that Houston City Police officers V. B. Daniels and his partner, Sgt. Pohlman, were patrolling in a police vehicle on Lyons Avenue in Houston on January 12, 1974, at approximately 10:45 p. m. when Daniels observed the appellant sitting in a parked car in the 2700 block of Lyons Avenue in front of a liquor store, lounge and hotel. It appeared that appellant's "head was bobbing and weaving," and based on Daniels' experience as a police officer for four years, Daniels formed the opinion the appellant was intoxicated. Daniels approached the vehicle in which appellant was seated alone. The car window was down and the odor of alcohol about appellant's person was apparent to the officer. Daniels shined a flashlight into the car and observed appellant's eyes were half closed and bloodshot. Appellant was asked to step out of the car. When the car door was opened and the dome light came on, a pistol was seen lying at appellant's feet only partially pushed under the front seat. The pistol was lying directly under appellant's feet. The pistol was recovered and shown to be a fully loaded .38 caliber revolver.
While there was evidence that appellant had been previously convicted of robbery, the court, for reasons not reflected, chose not to consider the same and found appellant guilty only of the lesser offense.
It is appellant's contention that the evidence is insufficient to show that he intentionally and knowingly carried on or about his person a handgun. He contends that under the former statute, Article 483, Vernon's Ann.P.C., 1925 (Unlawfully Carrying Arms), the intention of the accused was immaterial as the statute did not make intent an element of the offense. Farris v. State, 64 Tex.Cr.R. 524, 144 S.W. 249 (1912). See also Lewis v. State, 84 Tex.Cr.R. 499, 208 S.W. 516 (1919); Smith v. State, 104 Tex.Cr.R. 100, 283 S.W. 508 (1926). Appellant urges that this is no longer true under the new Penal Code of 1974.
V.T.C.A. Penal Code, Sec. 6.02 (Requirement of Culpability), reads as follows:
V.T.C.A. Penal Code, Sec. 46.02 (Unlawful Carrying Weapons), reads as follows:
It is clear from a reading of the definition of offense in said Section 46.02, supra, that it does not itself prescribe a culpable mental state, but one is nevertheless required by said Section 6.02, supra, unless the definition "plainly dispenses with any mental element." The definition in said Section 46.02, supra, does not "plainly dispense[s] with any mental element." See and cf. Braxton v. State, 528 S.W.2d 844 (Tex.Cr.App.1975).
Thus we must consider whether the evidence is sufficient to show that the appellant intentionally, knowingly or recklessly carried on or about his person a handgun.
Appellant likens the said Section 46.02, supra, with its requirement that the handgun be carried "knowingly and intentionally" with the same requirement found expressly stated in Article 4476-15, Sec. 4.05(a) [Texas Controlled Substances Act], dealing with the possession of marihuana and says the marihuana cases decided by this court are helpful in passing on the instant case for the same standards apply.
Appellant relies upon Woolridge v. State, 514 S.W.2d 257 (Tex.Cr.App.1974), wherein this court wrote:
Appellant urges that mere presence at a place or car where a pistol is found does
In the instant case, unlike the marihuana in Woolridge, supra, the handgun was seen in open view when the dome light came on. Further, appellant was the only person in the car, the handgun was directly under his feet and we do not appear to be confronted with a situation where the accused is not in exclusive possession of the car. While the evidence was not developed as well as it might have been, we conclude that evidence, direct and circumstantial, is sufficient to show the appellant was guilty of intentionally and knowingly carrying on or about his person a handgun.
Appellant's contention is overruled.
In fifteen grounds of error appellant presents the single complaint
The evidence reflects that appellant was observed at night in a parked car in front of a lounge in the 2700 block of Lyons Avenue in the city of Houston in an apparent state of intoxication. Public intoxication is made an offense by virtue of V.T. C.A. Penal Code, Sec. 42.08. The appearance of appellant made it reasonable for the officers to investigate further to decide if he was indeed intoxicated. In Wood v. State, 515 S.W.2d 300, 305-306 (Tex.Cr.App. 1974), this court stated:
"The Fourth Amendment has been held not to require a policeman who lacks a precise level of information necessary for probable cause to simply shrug his shoulders and allow crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Circumstances short of probable cause for arrest may justify temporary detention for investigation and questioning...."
Upon approaching the automobile, Officer Daniels observed the odor of alcohol about appellant's person through the open window. By use of a flashlight it was observed that appellant's eyes were half closed and bloodshot. Asking appellant, under these circumstances, to step out of the car was the next reasonable step in the investigation. See Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App.1972). When he did get out, the dome light, which came on when the door was opened, revealed in plain view the pistol in question.
We hold that the investigation in the present case was reasonable and the discovery of the pistol in plain view was not the fruit of an illegal search and seizure. The grounds of error are overruled.
The judgment is affirmed.