Interesting legal question popped up RE presumptions. If a defendant does not prove a rebuttable presumption, can he still argue the exception?

UCW has a traveling presumption. If def meets the enumerated presumption criteria, he qualifies for the traveling exception to UCW. If he doesn't, can he still argue traveling?

Facts: def has a weapon in car. He will argue traveling at trial. We can prove he doesn't get the presumption, because of two things:

1. Presumption requires that he was engaged in no other criminal activity outside of a traffic violation. Our guy was stopped for traffic violation, and subsequently popped for UCW and UUMV cuz weapon was in car and car was reported stolen.
2. Presumption also requires that def not be prohibited from possessing firearm for any other reason. Our guy is a convicted felon, still on parole, ergo prohibited from possessing firearm.

So - we defeat the presumption at trial. The Judge does not let that go to the jury (he found the presumption was not met beyond a reasonable doubt). Can the defense attorney still argue "traveling," say for example: "he was moving his things." ?

My boss says "no" in that "the presumption defines the exception." She says the traveling exception used to be "three county lines" but is now "persons that are driving a private vehicle, not engaged in other criminal activity, not prohibited from possessing firearms," etc.

I'm still worried that if the defense does not get the presumption, can he still argue for the exception? If not, what cases can I point to that state that the presumption defines the exception?

Chris,

This has already been discussed in a previous topic, so you might want to check that out for ideas. But I think that if the defendant doesn't meet the presumption, that only means that he doesn't get the jury instructed in the charge that he was presumed to be traveling. He can still argue the common law definition of traveling. The presumption is, after all, just a presumption. Even if it doesn't apply, it can still be proven in other ways.

Chris, funny you have a traveling issue on UCW. I just asked a question about that to Sean at TDCAA and here was his very insightful reply:

There is no clear definition. Generally, it is a jury question as to what constitutes traveling. A person is traveling, within the statute's meaning, as soon as the person's journey has actually commenced, and ordinarily, a person continues to be a traveler until the person has reached his or her destination. 20 Tex Jur Criminal Law � 1426. Here�s some cases that might help you out:

Illingworth v. State, 156 S.W.3d 662,
Boyd v. State, 2004 Tex. App. LEXIS 4923
Martinez Sanchez v. State, 122 S.W.3d 347
Taylor v. State, 2001 Tex. App. LEXIS 4948

Just a caveat though, these cases were all decided before this statute was amended, so they might not apply the same way and I would argue that as long as the traveler meets the new requirements they are acting within the law. However, here are some general rules that might help. The purpose of the journey is generally irrelevant, as long as not to commit a crime. It�s hard to say what distance is required in order to be traveling. Some cases say traveling to a bordering county is not traveling while others say it is. Also, when a person departs from the journey to partake of any pleasure or business not connected with the journey, the person may lose his or her traveler status.

Doesn't address the presumption point, but may lend some help on the traveling part.

Happy hunting. John.

Andrea,

I've read the previous thread, and it doesn't seem to answer the question of whether the TX legislature intended the "presumption" to be the definition of traveling at the same time.

In fact, it seems as if the Legislature intended at a person who did not meet the presumption (i.e. On felony parole and legally not allowed to carry a handgun), is not entitled to the defense no matter how many hundreds of miles he is traveling!

I think it's significant that the Legislature chose to make this a "presumption" instead of simply making this the definition of the traveling defense. If it were the definition of traveling, that would be it, period, no other way to prove it. But by making it simply a presumption, it's fully possible for someone not to be presumed traveling but prove it otherwise. It's no different than any presumption prosecutors employ in that way -- if we can't prove up a presumption, we can still prove the issue in other ways.

I would also argue that a presumption is not a definition, it is a presumption. If the Lege wanted to define traveling, it would have defined it. But they never have.

I wonder whether the presumption really is rebuttable -- which is a scary thought. (Presumptions that benefit the state must be rebuttable, but last time I checked, there was no similar requirement imposed upon defense presumptions.)

I would also warn against using the underlying UCW to bootstrap into an argument that the person was not engaged in criminal activity -- that seems pretty thin to me.

Lastly, I think we can all agree that the presumption language is a MESS! But until the courts address it, we're most likely stuck with it.

quote:

---

Originally posted by Chris Hesse:
Interesting legal question popped up RE presumptions. If a defendant does not prove a rebuttable presumption, can he still argue the exception?

---

Yes, he can. The presumption was intended to expand the meaning of "traveling," not restrict it.

Shannon,

Unfortunately, I don't think the presumption is rebuttable. Unlike ordinary presumption language, this one instructs the jury that they MUST presume the defendant was traveling UNLESS the State disproves one of the elements beyond a reasonable doubt. State presumptions instruct that the jury MAY find the presumption, "but it is not bound to so find." That's a huge difference.

Such a presumption, when used to assist the State in proving an element of an offense, has been found to be unconstitutional because it deprives the defendant of the due process guaranteed during a jury trial. Meaning, the court should not be commenting on the weight of evidence and instructing a jury how it should decide an issue.

Apparently, those rules of fair play don't apply when used against the State. This is only one of the problems with the invention of a defense presumption. But try explaining that to a layman.

even the presumption of innocence is rebuttable.

The presumption of innocence is designed to be rebuttable, or we wouldn't have a justice system. That doesn't mean every presumption is.

my comment about the rebuttable presumption was in respose to the person who insinuated that it's okay that defendants are not subject to "rules of fair play" while prosecutors are. the person's argument was based upon the existence of the beyond a reasonable doubt standard. that post has since been removed. my point was that even the most important defensive presumptions can still be rebuttable, so it's not so outlandish to suggest that the rules of "fair play" can also apply to a defendant. i am not, however, arguing whether the presumption in question is or is not rebuttable. i'm just making the general point that we can have rebuttable defense presumptions. sorry for being so oblique. i am not a pith lord.

[This message was edited by David Newell on 01-31-07 at .]

Ah, sorry, that post was gone before I came back and saw your post.

Why is there a concern about a traveling defense when he is an ex-con? He should be charged under PC Sec. 46.04, Unlawful Possession of a Firearm by a felon. Under the terms of PC Sec. 46.15 (b) (3), traveling is only a defense to P.C. Sec. 46.02.

Ken,

We are alleging that he possessed a "club," not a firearm.