Am I reading the defenses in 37.12(b) right - that if you were given a badge and ID cards and were commissioned at the time, that if you hold on to them after you lose your commission, it's still a defense to false ID because they were made while you were commissioned? I have talked to one person who thinks that the defenses are to be read and proved together, but I read the 3 defenses to be separate, and if any of them are proved, we're screwed. My general facts are that my defendant is stopped for a window tint violation, and flashes his badge and an ID card, claims he's PD from another jurisdiction. Our dubious officer checks him out and sure 'nuff, the PD he claimed to hail from said he hadn't been employed with them in several years. However, when he was issued those items, he was commissioned.
If anyone from Ellis County is out there, you might want to look into this also - he did it again 7 months later there (not with the same badge that's in evidence in our case; thankfully, it's still in evidence. He evidently had one more than the PD thought he did).
This (and the companion UCW case) are set Thursday for trial announcements (trials set next week). I have a bad feeling I'm toast on this one. Anyone out there going to shine a ray of hope this direction?
There's a ; OR at the end of (b) that indicates any of the three, a, b, or c are individually defenses to the charge.
I'm curious how your charge reads. If you're using the "provides to another person" portion of the 37.12, I'd like to see the language in the charge.
The defendant appears to have a defense to possession, but did the defendant present himself as a public servant when he was in point of fact not a public servant? (37.11 is a felony.)
� 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he:
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken
as a genuine governmental record;
"D did then and there intentionally or knowingly possess a badge bearing an insignia of X Police Department that identified a person as a peace officer, and the D knew that he was not commissioned as a peace officer as indicated on the badge."
I see what you're saying about 37.11, but my reading of it is that he's got to do something more than just try to escape a traffic ticket (which is essentially what he's doing). He's got to be doing something more affirmative (trying to exercise authority or perform an otherwise official act or function of a public servant).
Thanks though, Philip.
Actually, reading 37.10(4) that might work if I can prove (a) that a badge (or an ID card, he had both) is a government record; (b) that trying to influence an officer not to write a ticket is an unlawful use of such a document.
I'm not sure the sepcific section you cited would work simply because it's not a false record, just an out-of-date one. Of course, the representation made of the status of the D is false; does anyone out there see an argument that a false statement claiming to be a peace officer would be material to a tinted window investigation, thus invoking 37.08? I didn't think so, but thought I'd throw that one out there, too.
Thanks for your brainstorming on this!
So at least mine is a moot point now. Thanks for your input!
Why are we having difficulty with this? It cannot be legal to pretend to still be a police officer when you no longer are a commissioned, employed or reserve police officer. That simply has to be against the law.
37.08 and 37.09 seem to fit the scenario described, especially if the defendant knew he was carrying a concealed weapon or other contraband that might also be discovered during this traffic stop. Defendant's knowledge of the contraband means he is not merely trying to get out of a traffic ticket but is also preparing a defense for the weapon or pot that is likely to soon be discovered.
I like 37.09; (a)A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
(2)makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding. This is a State Jail Felony.
**I have to admit I talked to another prosecutor that does not agree with charging under 37.09 because he takes the view that the document was not false when made and he said something like once a police officer, always a police officer. That sounds like defense attorney stuff to me and I do not think the jury would buy either argument.
At the very least, 37.08 (False Report) has to fit because it is based soley on the statements made by the defendant and doesn't rest on any document presented.
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