So suppose you had this case....
Defendant is pulled over by police for speeding. Officer makes contact with the defendant and asks for license and registration. Defendant gives officer license and a concealed handgun license (indicating that he does have a gun in his vehicle). Officer asks defendant to step out of the vehicle for purposes of officer safety. Officer goes to the front of the vehicle to look at the defendants registration sticker. At this point the officer sees in plain view a handgun under the drivers seat and also sees marijuana in the center console. At this point he searches the vehicle and recovers the handgun and a usable quantity of marijuana. Defendant is arrested for possession of marijuana and unlawfully carrying a weapon. In pretrial, the defense attorney claims that the UCW charge invalid because the defendant lawfully had a concealed handgun license.
It is my intuision that because the defendant was in possession of marijuana, that his concealed handgun license was essentially no good. It seems that if someone is in the commission of a crime that he shouldn't be able to use his concealed handgun carry license to carry a weapon.
Section 46.035 of the penal code lays out the provisions of unlawfully carry a handgun by a license holder. However, it seems that there is no provision in that statute that is directly on point. Subsection D states that a license holder commits an offense if he is carrying and is intoxicated. It seems that there should be a subsection that states that if you are committing a misdemeanor or felony offense than you are cannot use your CCL to carry a handgun. Similarly, I cannot find any provision in the health and safety code that is on point either. I also cannot find any cases that address this problem either.
Anyone know the answer to this problem? Also, I would like statutory authority and case law to support the states position.
Depending on where in "plain view" the weapon was, your best bet may be the plain language of the statute. 46.035 (a) makes it a violation if the licensee intentionally fails to conceal the weapon.
On another issue, the fact that he possessed marihuana gets you around the "traveling presumption", since he was comitting an offense other than class "C" traffic.
Why did Texas bother to create a concealed weapon license if we just created big exceptions, like traveling, that make it all pointless?
Sort of like prohibiting gambling, and making exception after exception.
That pesky language that says "the right of the people to keep and bear arms, shall not be infringed" always comes to mind in these cases, too.
The CCH exception to the UCW statute only applies if the person is carrying a concealed weapon. PC 46.15(6). So if the weapon was in plain view, that exception doesn't apply and neither does traveling. (The MJ also takes away the traveling exception.)
You could also charge him with unlawful carrying by a license holder. It's a violation to fail to conceal the weapon. 46.035(a). Unfortunately, there's no provision negating the license if you're in the act of another crime, although it is also a violation to carry -- concealed or not -- while intoxicated, so if your guy used a little of his marijuana you might have him there.
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