quote:

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Originally posted by Larry L:
adding to John B's list: shouldn't anyone with the name "Wayne" especially a middle name, be covered by the statute. Although, I guess you could make an argument that having the middle name Wayne probably gives the officer probable cause anyway!

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...or Doyle, or Lee...or even a mustache...all equal probable cause. Sorry to butt in, I just had to respond to the Wayne reference.

Also have to add that as a "civilian" and someone who tries to abide by all state laws, I find this discussion extremely interesting and chilling at the same time. Lots of crannies to navigate while trying to stay a responsible citizen and this clarifies a lot of the Klingon I run across. Frightening that they can be interpreted (and enforced) in unpredictable ways most of us laymen wouldn't even think of.

I guess the only question I have has so many answers it's unanswerable, but my legions of followers require I ask:

What is the general rule of thumb we should follow as it pertains to this new law? I guess the easy answer is a CHL, but even that is now somewhat muddied. I understand "beating the ride" will continue to be strictly subjective, but the rap is something I have a hard time grasping.

Anyway, please carry on. Little Brother is watching...

Ram

The reason for the divergence of opinion among prosecutors is the fault of the legislature for passing a statute that is unclear. They created a presumption instead of a defense and did not define the term "traveler". To be on the safe side, you should get a CHL.

[This message was edited by Ken Sparks on 10-31-05 at .]

Dear RAM: I think the general rule of thumb is easy: it is against the law to carry a handgun. A CHL give you the right to carry a concealed handgun in most situations, but there are exceptions you must learn in the CHL classes.

If you don't have a CHL, you will most likely face arrest and possible conviction, unless you fit into some exemption, like traveling, that your lawyer will have to make in court. so back to the general rule of thumb: it's against the law to carry a handgun.

What part of the word "infringe" is so difficult to understand? Seems kind of like interpreting a Stop sign, doesn't it?

Maybe I am missing something, but I don't see this "traveling presumption" as that big of a deal. To get the "presumption" the defendant has to show 5 things: (1) in a private motor vehicle, (2) not otherwise engaged in criminal activity,except Class C or traffic ordinances, (3) not otherwise prohibited by law from possessing a firearm, (4) not a member of a criminal street gang, and (5) not carrying a handgun in plain view.

Take the average pistol case. Defendant is stopped on traffic and the officer sees a pistol "in plain view". There goes the "traveling presumption". Or, officer arrests the defendant for DWI or some other offense, (except a Class C or traffic) and a search of the passenger portion of the vehicle results in finding a pistol. The Defendant was "engaged in criminal activity". There goes the "traveling presumption".

The only time the presumption may be a problem a stop for a traffic violation and getting a consent to search the vehicle and finding a pistol that was not in "plain view". Then the officer needs to have some evidence to offset traveling. If he searched the vehicle and found no luggage or anything suggesting the defendant was traveling we probably beat the presumption. And, while the officer is at it, ask the defendant where he was coming from and where he was going. The defendant will probably answer the question and admit that he was just driving home from work or the bar.

do you beat the traveling presumption by showing facts that he wasn't traveling or by showing facts that negate one of the factors that establish the presumption? the presumption statute that sets out what the jury is to be told seems to suggest that they have to follow the presumption unless we show evidence that one of the five factors isn't met.

Ted,

Actually, the problem is that under your last scenario we WOULDN'T beat the traveling presumption. The main problem is with the wording of this "presumption." The jury is instructed that they MUST presume the defendant is traveling UNLESS the State disproves one of the five factors. So it's all well and good that he doesn't have any luggage, there's no indication of traveling, he says he's just running down to the corner store for a carton of milk -- he's still presumed traveling unless we can disprove one of the five factors.

This "presumption" is a definition, for all of the State's intents and purposes. The only person this benefits in being merely a presumption rather than a definition is the defendant who doesn't meet the five factors but can still claim to be traveling under the old caselaw. A huge headache for prosecutorial purposes all around, in my opinion.

i agree that this may not be too much of a headache in average cases because as long as the gun's in plain view, there's no presumption. but i find it kind of funny that if the defendant is also in possession of marijuana we have to prove up the possession of marijuana in order to prove our weapon case. do we have to prove up the POM beyond a reasonable doubt to dispute that presumption factor? are prosecutors going to do that often?

The easiest way to prove that situation would be to simply run the trials together. Absent that, try the PoM first and introduce a copy of the judgment, or simply get the defendant to stipulate in advance that the presumption doesn't apply so the jury doesn't have to hear about the drugs!

This really goes back to the whole question of when the judge is required to submit the instruction, as we discussed earlier. Only trial and error will show, I'm afraid.

as a wise man once said, good luck with that, let me know how it turns out.

This article is a nice try, but it still misses the mark. I have yet to meet a journalist who can grasp the issues involved in this new law ....

SAEN commentary

Roddy Stinson: Under new law, gun in glove box could still lead to year in jail

San Antonio Express-News

On the Sleuthing Trail ...

CASE: "Roddy, a guest on a local radio talk show said that a new law allows Texans to legally carry pistols in the glove boxes of their vehicles whether they have a 'license to carry' or not.

"In my job, I'm in my car a lot at night and would feel safer if I had a weapon handy. But I want to make sure I'm not going to get in trouble.

"I phoned the sheriff's office, and the person I talked to didn't know anything about the new law and said if he stopped me on the highway and found a gun in my car, he'd arrest me.

"You would do me and a lot of other people a favor if you would look into this and tell us what's what."

INVESTIGATION: For readers who aren't interested in the details, I'll begin with a summary of my findings:

A new state law, which went into effect last Sept. 1, allows "travelers" to carry pistols in their vehicles even if they have no concealed-handgun license.

Any traveler who takes advantage of this new law and packs a pistol in his glove box could still end up behind bars.

Here's why:

Chapter 46, Section 15(b)(3), of the Texas Penal Code states that the offense of "unlawfully carrying weapons" doesn't apply to a person who "is traveling."

Through the years, "traveling" has been interpreted a variety of ways by the state's judiciary, and Austin State Rep. Terry Keel decided it was time to add to the Penal Code a statute that defined the term.

Toward that end, he introduced House Bill 823 in last year's regular session of the Legislature. It was passed by the House and Senate and signed into law by Gov. Rick Perry on June 16.

The new law states that a person is "presumed to be traveling" if he/she is ...

1. In a private motor vehicle.

2. Not engaged in criminal activity.

3. Not prohibited by law from possessing a firearm.

4. Not a member of a "criminal street gang."

5. Not carrying a handgun in plain view.

Of course, with gun laws, nothing is ever that simple, and before Texans start stashing snub-nosed .38s in their glove boxes or under their bucket seats, they should consider ...

An officer can still arrest the traveler and let a prosecutor and/or judge or jury determine if the gun was carried lawfully.

Enforcement and interpretation of the law may vary from jurisdiction to jurisdiction.

While most prosecutors have taken no public position on the law, one district attorney, Chuck Rosenthal of Harris County, actively opposed House Bill 823 during the legislative session and after its passage told the Houston Chronicle, "It is still going to be against the law for (unlicensed) persons to carry handguns in autos."

A trial could cost thousands of dollars in attorney fees, and the traveler might still be found "guilty."

Unlawful possession of a weapon is a Class A misdemeanor punishable by up to one year in jail and/or a $4,000 fine.

So don't write me from your cell and whine about not being warned.

As far as I can determine, the only significant change brought about by the new law is this:

Before the law was enacted, drivers arrested for unlawful possession of a handgun had to prove they were traveling.

In the wake of the law, arresting officers and prosecutors have to prove the drivers were not traveling.

Add to that muddy mix the fact that "traveling" remains undefined in terms of time and distance, and it's pretty easy to conclude that the only thing House Bill 823 made clear was the arrested mental development of Texas legislators.

Roddy Stinson: State's new gun-toting law has surprise backer: ACLU

02/05/2006
San Antonio Express-News

The Texas chapter of the American Civil Liberties Union is unhappy about last Thursday's column concerning the state's new gun-toting law.

I know this because of an e-mail exchange I had with chapter spokesman Scott Henson, who chided:

-"Your interpretation of House Bill 823 relies on an analysis by a handful of prosecutors who opposed the law, but not the bill language itself."

-"It's true that some prosecutors are telling police to keep arresting people ... but they are raising a red herring. The law is really not unclear."

-"The lawmakers wanted drivers to be able to have a stowed gun driving to the bank or the grocery store."

And the real shocker:

-"I was closely involved in the legislative process that created the new law."

Somebody check the weather in Hades. Snowflakes must be falling on Beelzebub's head.

Whether this conservative turn is an ACLU aberration or a step in the right-wing direction won't be known for a while. But news of the organization's loose-gun-control stance will surely cause a few spluttering Sunday morning readers to lose their coffee.

Incidentally, if you missed Thursday's column ...

House Bill 823, which was passed by Texas legislators during the 2005 regular session, states that a person "is presumed to be traveling" and is legally permitted to carry a handgun in his car or truck if he is (1) in a private motor vehicle, (2) not engaged in criminal activity, (3) not prohibited by law from possessing a firearm, (4) not a member of a "criminal street gang" and (5) not carrying the handgun "in plain view."

The bill was vigorously opposed by prosecutors and law enforcement officials who believed it would increase the number of guns on the state's streets and highways and do more harm than good.

In the column, I quoted Harris County District Attorney Chuck Rosenthal, who said that in his jurisdiction, "It is still going to be against the law for (unlicensed) persons to carry handguns in autos." And I suggested that Texans should probably think twice before stashing pistols in their glove boxes or under their bucket seats.

That warning prompted the Henson-initiated e-mail exchange.

"The new statute says juries MUST presume a driver is traveling and therefore legally carrying a gun unless the state disproves one of the five elements," the ACLUer insisted. "State Rep. Terry Keel, who authored the bill, says: 'In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed weapon in a motor vehicle.' ...

"The story here isn't that the law was poorly written. The story here is that some prosecutors are so arrogant they think they don't have to follow the law."

Still, Henson cautioned: "I agree that drivers should be wary. Until this is settled (in the courts), they risk arrest."

Toward the end of the e-mail exchange, I wondered about the potential ramifications of the new law and shared my concern with Henson:

"As I understand the intent of the original 'traveling' law, it was written so bona fide travelers could have a weapon (for protection) as they drove down the open road.

"It seems to me that HB 823 turned that intent on its head, allowing an individual to be armed going to the corner grocery store."

Unfazed, Henson responded with his "driving to the bank or grocery store" remark.

And that's pretty much the up-to-date story of the new gun law and the controversy surrounding it.

Henson said the ACLU has filed open records requests with prosecutors across the state to determine which ones are telling officers to continue making arrests, and he believes if state courts don't "slap them down," the House and Senate will spank them during the next legislative session.

Meanwhile, the debate over the new law will continue.

Frankly, I find myself leaning a bit left of the ACLU position.

But maybe I'm missing something.

Lend me a contemplative hand here.

Use the feedback information below to call or e-mail me your take on Texas' new gun-toting law.

--------------------------------------------------------------------------------
To contact Roddy Stinson, call (210) 250-3155 or e-mail rstinson@express-news.net. His column appears Sundays, Tuesdays and Thursdays.

State Rep. Terry Keel, who authored the bill, says: 'In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed weapon in a motor vehicle.' ...

If he changed 'fear arrest' to reasonably fear conviction, he'd be alot closer, right?

Correct me if I'm wrong: Essentially, it should function just like any other trial presumption as an instruction to the jury. A jury could go off and ignore it or draft some whackjob definition of travelling or some other squirrel/nut/adventure that often happens when six people get together to gossip over someone else's dumb decision. But, all of this is taken into account only after the defendant is detained, arrested, bonded out, hired an attorney, arraigned, announced, and so forth.

It's still trial issue. Why in the world did the legislature assume that because of the possible practical effect, prosecutors would simply smudge the letter of the law and let it slide?

The problem is that it doesn't work like any other presumption. The presumption statute was amended to apply to this situation (PC 2.05(b)). The burden is now on the State to prove BRD that the facts (or, I suppose, one of the facts) giving rise to the "traveling" presumption are untrue.

By the time of trial, it should be pretty clear which of those facts are true (or provable) and which aren't (was he in a private car, does he have priors, etc). If the prosecutor is just gonna get up and say "well, we still think he wasn't traveling" and doesn't disprove any of those facts, he isn't gonna win. It shouldn't even get to a jury.

That's different from the regular presumption scenario where, you're right, the jury can do whatever it wants with the presumption.

As for what Keel said -- maybe he was just hopeful that law enforcement officers wouldn't waste time arresting people for offenses that can't be proven in court. Presumably (chortle), peace officers use that kind of discretion every day.

Clay A: "UCW is a criminal case it should be investigated like one and not given the perfunctory attention of an expired inspection sticker citation."

You'd be surprised...I actually had to defend against a motion to suppress in a fictitious inspection sticker case based on an "illegal search" (of an expired fictitious inspection certificate in plain view - yes, oh, yes, a defense attorney with a passionate vendetta actually filed such a motion). *sigh*

As for UCW's in my court, we have not had a trial on one since the law changed, but in negotiations I insist that the defense provide me with facts that prove up "traveling" (not just that the defendant was in a moving vehicle). However, I think that a lot of departments are just not bothering to file those cases anymore. I'm not seeing as many (and when I do, it's usually a tire-thumper, not a firearm).

We actually have a trial on UCW coming up -- the first one I've known of since the presumption -- and I wanted to bounce out some ideas on when exactly the defendant is entitled to a jury instruction on the presumption. Let's say you have evidence that will negate one of the five factors -- the gun was in plain view or the defendant was in a gang. That means the presumption doesn't apply and the defendant doesn't get an instruction.

But what if the defendant puts on contradictory evidence that the gun wasn't in plain view or he wasn't in a gang? On the one hand, that's a fact question for the jury. On the other, we have the odd wording of the 2.05 that the judge shall submit the presumption to the jury "unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact."

So...that seems to mean that even if the defendant puts up some sort of evidence suggesting the presumption still applies, the trial court doesn't have to submit the instruction. But what is the measure of how strong the defendant's evidence has to be? Is the mere existence of contrary evidence enough, does the defendant have to prove it beyond a reasonable doubt, or is it some middle ground?

My advice to the trial attorney is to just let the defense have the instruction and then argue the issue to the jury as long as he presents any evidence at all, just to be safe on appeal. But I'd love to have some different opinions!

I agree. I think you need to submit it to the jury if you have contradictory evidence.

Andrea, you've hit on a doozy. There is no good answer to your question because it is unclear what "beyond a reasonable doubt" modifies; see the notes on p. 3 of our 2005-2007 Legislative Update for more discussion.

Q: could this be the first law under which a defendant must meet a BRD standard? And if so, (a) Is that kosher? and (b) If the defendant can and does meet it, then can the state ever rebut it?

This is what all the reporters, editorialists, non-lawyers, and general citizenry can't seem to grasp: the question is not how to interpret new PC 46.15, it's how to interpret PC 2.05!

p.s. - let us all know how the trial turns out ...

I think that advice is sound -- mainly because it's difficult to think of situations where (when there's contradictory evidence) the evidence as a whole "clearly precludes a finding beyond a reasonable doubt of the presumed fact."

The easy hypothetical, I guess, would be a swearing match between the officer and the defendant over whether the gun was in plain view. (Leaving aside the issue of how the officer would be able to uncover a gun that wasn't in plain view). In that case, it sounds like a jury question.

I think the structure is unconstitutional. For example, a few years back, the SC reviewed a law that set the standard for establishing incompetency at clear and convincing evidence. The SC found that standard unconstitutional and adopted (as had most states) a preponderance standard.

While the traveling defense is not exactly the same, it does suggest that there are limits to what burdens you can place on the defendant.

I suggest you ignore the part about the judge and simply treat it like a defense. If defendant presents any evidence (regardless of its strength) that raises each and every element of the defense, then instruct the jury and just argue that the evidence doesn't support the claim of traveling.