As you are aware of by now, the legislature enacted HB 823 which creates a presumption of "traveling" in favor of the defendant in a charge for Unlawful Carrying of a Weapon under Penal Code 46.02.

The language is rather inartfully written, but 2.05 will require that if the evidence raises the question of whether the presumed fact exists, the state is required to disprove its existence beyond a reasonable doubt or the jury must give effect to the presumption that the defendant was "traveling." After a few discussions around the office, we believe that even if the presumption if given effect, the state can still rebut the presumption by showing that, in fact, the defendant was not traveling and that the 70+ years of court decisions on what exactly constitutes "traveling" still are valid.

So my questions for prosecutors are these:

1. What are your views regarding the impact of HB 823?

2. What will you expect from your officers in the way of evidence to support (a) immediate warrrantless arrest, and/or (b) a charge of UCW?

Thanks for your input.

Janette Ansolabehere
DPS

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After a few discussions around the office, we believe that even if the presumption if given effect, the state can still rebut the presumption by showing that, in fact, the defendant was not traveling and that the 70+ years of court decisions on what exactly constitutes "traveling" still are valid.

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Janette, what is your basis for this? How do you propose we get around new PC Sec. 2.05(b)(2)?

I've been wrestling with the interpretation of this new statute for quite a while now, without success (as may be clear from the discussion of this section in our new Legislative Update book and code books). To back up one step further, I have yet to get a concensus on what 2.05(a)(1) means regarding when a court should submit the issue in the first place -- if read literally, it could mean that the defense must establish the presumption's elements BRD in order to get their instruction ... and wouldn't THAT make things interesting!

I admit that were not former prosecutors, but isn't a presumption just a presumption? Despite the inartful wording of the changes to 2.05 regarding presumptions favoring a defendant, even if the jury must find that there is a presumption that defendant is traveling exists due to the "must" language, can't the presumption then be rebutted by other evidence? If not, then the only thing that would qualify a person for arrest and prosecution under 46.02 would be (a) weapon in open, (b) defendant is a convicted felon, (c) vehicle is a public vehicle, (d) defendant committed a Class B or above, or (e) defendant is a gang-banger. Surely the legislature didn't mean for that interepretation of the law. Interestingly, several posts on some of the carry web sites include some from persons who spoke with Rep. Keel's aide on the "intent" of the bill. Of course, court are free to go--and do go--with the plain language of the statute. We are just looking for some guidance by the prosecutors on their interpretation of the bill's effect.

Janette Ansolabhere

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If not, then the only thing that would qualify a person for arrest and prosecution under 46.02 would be (a) weapon in open, (b) defendant is a convicted felon, (c) vehicle is a public vehicle, (d) defendant committed a Class B or above, or (e) defendant is a gang-banger. Surely the legislature didn't mean for that interepretation of the law.

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Actually, there are many at the Legislature who favor exactly that interpretation -- and if that shocks anyone, then you need to come spend time at the Capitol next session and see what I mean.

That intent notwithstanding, and the ultimate interpretation notwithstanding, I think the one thing everyone can agree on is that this is imposes a new imperative upon officers to investigate and document the existence of any of these presumption facts (as well as traveling issues in general) in order to help the prosecutor assess the applicability of the new presumption and the potential to rebut it, if possible.

So that brings me back to my original problem. We are looking at how to enforce the new version. Granted, officers will have to do a more extensive investigation to see if there the evidence necessary to rebut the presumption (presuming that the courts find this is possible). But what level and type of evidence will prosecutors expect to see before they will accept a case filed under section 46.02?

Janette

Prosecutors, like always, will want an extensive investigation and an obscene amount of evidence. Bottom line, "he was in the car and there was a gun in the car" just ain't gonna fly. UCW is a criminal case it should be investigated like one and not given the perfunctory attention of an expired inspection sticker citation.

I am giving the officers in my county the following isstructions:

A person is not a traveler unless he is on an overnight trip, still in the course of the journey, and has not reached his destination.

Sec. 46.15 establishes a presumption that the traveling defense applies if the defendant is a traveler carrying a concealed weapon in a private vehicle who has not engaged in criminal activity other than a Class C traffic offense. Do not file this charge unless you have facts proving one of these exceptions. If marihuana or narcotics paraphernalia is found, if the weapon is in plain view, or if the defendant is not a traveler, file the charge.

I would expect some evidence from an arresting officer that the defendant does not qualify as a traveler or that there is evidence of one of the exceptions to the presumption.

So, the "traveling" nonapplicability isn't limited to possession of a firearm, though this new presumption seems to only contemplate "firearms" or "handguns." However, if the person is carrying an illegal knife, he will still be able to satisfy all of the elements of the presumption. Does he still get the presumption?

Under HB 823, the presumption applies to prosecutions under PC Sec. 46.02, so the presumption applies to handguns, illegal knives and clubs. Obviously designed to protect travelers from roving bands of Indians! (Will that last comment get me in trouble with the NCAA?)

That's it. No bowl game for you. And being from a town called "Columbus" doesn't help either.

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A person is not a traveler unless he is on an overnight trip, still in the course of the journey, and has not reached his destination.

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So, if he is staying in your town overnight, he has in effect reached his destination (at least for the night) and as such, can be charged? Or is he a traveler until he gets back home?

We had to let one go the other day because the Def. was from out of town and provided proof that he had been to a theme park in a neighboring city. Had his hotel bill with dates that matched up. Not really that tough of a call until you saw on the Rap sheet that he has several UCW convictions from his home town county.

I don't know if this will ever become hot topic enough for the public to learn about, but if it did, what def. is not going to claim that he was on his way out of town for a trip?

Lastly, I would want the officer's to ask the normal questions and note the answers - where you coming from - where you been, etc. And to be sure and note whether there were any overnight bags, etc. in plain site, or elsewhere since they probably searched since weapon found.

There is at least one appellate case where the court held that once the defendant had reached his motel room in his destination city, he was no longer "traveling." The defendant was stopped by the officer going to (or coming from--can't remember which) a restaurant. Court said "nope, not traveling any more."

Janette Ansolabehere

You wouldn't have to address traveling in the charge now, would you?

As I read it, the state must be able to prove beyond a reasonable doubt at every UCW trial one of the following: Defendant is a gang member, was breaking a law, was prohibited from possessing a gun, was not in a private vehicle, or was carrying a handgun in plain view. The presumption cannot be rebutted by showing the D was not really "traveling." What matters is whether the state can prove (or disprove, as applicable) one of those 5 facts beyond a reasonable doubt. I don't see any other way and have advised TPWD officers accordingly.

Granted, the judge still plays a gatekeeper role. But I think under 2.05 (b)(1), the issues for the judge are these (or something very similar):
(1) Is there some evidence of the existence of all 5 facts? If so,
(2) Is that evidence contradicted or so weak or untrustworthy that, as a matter of law, no reasonable juror could believe it is proof BRD? If not, the jury is charged on the presumption, and the state must prove/disprove one of the 5 facts BRD.

Example: Officer testifies D is a gang member. D testifies he is not. Judge is not sure who to believe. Or, Judge believes officer but also believes a reasonable juror might take D's word for it. This is the only issue, as the other 4 facts were established through the officer's testimony. Outcome: Since lack of gang membership has been not clearly precluded beyond a reasonable doubt, the presumption goes to the jury. Jury is charged that unless state proves gang membership beyond a reasonable doubt, the jury must presume D was traveling. UCW does not apply to a person who is traveling, so reasonable doubt as to gang membership = not guilty verdict.

On the surface the new law is worded as a presumption, but in substance at least one of the 5 facts must be treated as an element of the offense which the state must prove at trial (or disprove, depending on which one of the 5 is chosen).

[This message was edited by Boyd Kennedy on 09-07-05 at .]

That the defendant is a traveler (i.e. not engaged in UCW)is not presumed unless "there is sufficient evidence of the facts that give rise to the presumption". Only then is "the issue of the existence of the presumed fact . . . submitted to the jury". Thus, the defendant must first produce evidence that he was in a private motor vehicle; was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;was not otherwise prohibited by law from possessing a firearm; and was not a member of a criminal street gang, as defined by Section 71.01; and was not carrying a [the] handgun in plain view. Even then, however, the court might refuse to charge on the traveler presumption if "the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact" (note: no reference to the facts giving rise to the presumed fact). Thus, it is certainly arguable that evidence of such things as prevented a traveling finding in the past can still negate the need for a jury instruction on the presumption, since the definition of "traveling" was not changed. Thus, I do not think the elements of the offense have changed, nor even how guilt might be proved.

But, I must admit that inclusion of the phrase "beyond a reasonable doubt" makes 2.05(b)(1) pretty meaningless. The author of HB823 obviously borrowed language from (a)(1), which is based on Sandstrom, when he should not have. The unless clause should have been omitted to accomplish what the author intended. Since it was not, it is anybody's guess what the statute means as written.

Boyd, I respectfully disagree. Defendants are presumed innocent and we overcome that presumption every time we get a guilty verdict. A person is presumed to be traveling under the new law, but we can overcome that presumption by establishing, with questions and answers recorded by in-car video, that the defendant was not really a traveler. If someone is traveling 5 miles from home to the grocery store, do you think any jury woudl have any trouble disregarding the presumption? I would advise your officers differently.

Ken, I'm going to have to disagree with you. There's a big difference between the two presumptions. A defendant is presumed innocent until proven guilty, which means whenever we've convinced the jury he's guilty, the presumption doesn't apply. But the jury is instructed that the traveling presumption applies unless the State disproves one of the elements giving rise to it. So every juror can believe 100% he wasn't really traveling but still have to presume he was because the prosecutor couldn't disprove any of those factors. For the State's purposes, the presumption is really a definition. The only side this benefits is a defendant who doesn't meet the presumption -- he can still argue just like before that he was traveling, he just can't be presumed to be.

I agree with Andrea. The legislature has, in effect, established one definition of traveling, which can apply even if the defendant was just going down to the corner store. I could be wrong, and it wouldn't be the first time. Good discussion here.

For what it's worth, I have no reason to believe this new law will increase crime. It may even have a deterrent effect as criminals realize that more honest citizens will be armed in more situations.

This law does raise an interesting twist. If a person holds a concealed handgun license and has his trusty handgun in the vehicle, by law if he is stopped by a peace officer the CHL holder must inform the officer he has a handgun and provide the CHL to the officer. However, under the new presumption--if it does act as a definition--the person is under no obligation to tell the officer he has a concealed handgun (or illegal knife or club).

Just a thought,

Janette Ansolabehere

I believe Govt. Code Sec. 411.205 is the statute you are referring to, Janette. It requires a concealed handgun licensee who is carrying to show DL and CHL when asked for ID by an officer. No requirement to volunteer that a handgun is present.

http://www.capitol.state.tx.us/statutes/gv.toc.htm