Two individuals were riding in the same vehicle. During a stop an illegal knife was found under the passenger's seat and the passenger was seen making furtive movements in that area. The passenger has already been convicted for UCW on the knife, can the driver be convicted for the UCW on the same knife or is there some estoppel issue?

On a related issue, there was also a stick/club in the car for which the driver was charged. Defense attorney did a Motion to Suppress Physical Evidence. Judge suppressed the stick saying it wasn't a club. He's probably right, but my issue is that I thought the determination of whether an object is in fact a weapon was a question of fact for the jury, not a question of law for the judge. Does anyone have any statute/case law on this issue?

A weapon may be possessed by more than one person at a time or place. You just need to prove an affirmative link to the defendant. E.g., Nguyen, 54 S.W.3d at 52.

I can only assume the defense somehow raised an objection under Rule 402 to the stick pre-trial. Under that theory, I guess the court could look at the object and make the determination it did not meet the statutory definition as a matter of law (i.e. had no tendency to constitute a club). Otherwise, the court is depriving the state of its right to have all issues of fact determined by a jury.

A motion to suppress is a legal motion that seeks to have a judge rule on the legality of the seizure of a piece of evidence during an investigation. It should not be used to determine the admissibility of a piece of evidence before trial. The latter process has no basis in law and deprives the prosecutor of the right to present evidence during a trial that was legally obtained. Judges and lawyers frequently confuse the two processes.

The admissibility of evidence is determined during trial, when the judge is presented with an objection. While the judge may hold a hearing outside the presence of the jury to consider the objection, that is not the same as a hearing on a motion to suppress.

Bradley is right about motions to suppress.

Also, on the joint possession issue, you can also look at Corpus v. State, 30 S.W.3d 35, out of the 14th, which holds at 41:

PROSECUTOR: As I said before, it is my contention not only one person can possess, but two people can possess. If you wish to buy [defense counsel's] argument...

DEFENSE COUNSEL: Your Honor, I would object, there is no law of parties in the charge. He is arguing outside the facts and outside the [**16] charge.

THE COURT: Overruled.

Appellant asserts that this was an improper argument because the charge did not contain the law of parties. HN9The Court of Criminal Appeals has long held that error in jury argument does not lie in going beyond the court's charge, but in stating law contrary to the same. See State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App. 1998). That is, there is no error in correctly arguing the law, even if the law is not included in the court's charge. Thus, a claim that the prosecutor argued beyond the charge cannot, in and of itself, constitute improper jury argument. See id. In the instant case, the State's argument was not based on the law of parties. Rather, the State argued that two parties can jointly possess an object. This is a correct statement of the law. See generally, Young, 752 S.W.2d at 140 (possession of a firearm); see also Tolley v. State, 717 S.W.2d 334 (Tex. Crim. App. 1986) (possession of stolen guns); Vela, 681 S.W.2d at 740 (possession of a shotgun). HN10An individual can have sole or joint possession of a weapon so long as the evidence affirmatively links the [**17] accused to the weapon in such a manner and to such an extent that a reasonable inference may arise that defendant knew of the weapon and that he exercised control over it. See Vela, 681 S.W.2d at 740. The argument regarding joint possession did not affect the State's burden to prove that appellant was beyond [*42] a reasonable doubt in actual care, custody, control or management of the firearm. As discussed under point of error one, the State proved an affirmative link between appellant and the firearm sufficient to establish a reasonable inference that appellant knew of the firearm's existence and its whereabouts and that he exercised control over it. Therefore, even assuming in the present case that the prosecutor's argument went beyond the jury charge, there was no error, as the prosecution properly argued the issue of joint possession to the jury.

Finding that the State's argument was proper, we overrule appellant's final point of error and affirm the judgment of the trial court.

Here is the supporting language from State v. Rosenbaum, 910 SW2d 934, that explains the issue:

A charging instrument returned by a legally constituted grand jury and valid on its face is sufficient to mandate trial of the charge on its merits. Crocker v. State, 573 S.W.2d 190, at 204 (Tex.Cr.App. 1978), and cases cited therein. An indictment must be facially tested by itself under the law, as a pleading; it can neither be supported nor defeated as such by what evidence is introduced on trial. Brasfield v. State, 600 S.W.2d 288, at 294 (Tex. Cr.App. 1980); Ritter v. State, 76 Tex. Crim. 594, 176 S.W. 727, 730 (1915); Bourland v. State, supra, n. 11, ante. A fortiori, it can not be supported or defeated by evidence presented at pretrial. For the reasons developed ante, in a pretrial setting there is no constitutional or statutory authority for an accused to raise and for a trial court to determine sufficiency of evidence to support or defeat an alleged element of an offense such as "materiality" in a perjury case.

[Reading Rosenbaum is difficult because the Court eventually changed it's initial opinion, adopting Judge Clinton's dissent, so you actually have to read the dissent to figure out the holding.]

While you could appeal your judge's erroneous use of suppression to make his determination that the stick was a stick and not a club and would win the appeal on that issue, I would imagine that your judge would make the same determination at the close of evidence on the defense attorney's motion for directed verdict. Therefore, you would be spinning your wheels by appealing the judge's ruling. This seems like a good time to educate your judge on the actual purpose of a suppression hearing and explain how (or more accurately when) he can do what he was trying to do. This should enhance your credibility with the Court while not wasting your time on an issue that your judge seems to have already decided adversely to you. That is, of course, unless there's additional evidence you didn't present because this was just a suppression hearing.

Oh, no Officer. That's not really bat. That is merely a tree limb...that has been placed on a lathe and turned and ground dowb to a shape that resembles a baseball bat and was later branded with a hot instrument with a decal that says "Louisville Slugger" and then coated with varnish. But it's not a baseball bat. It's just a tree limb.

Thanks for the replies. Is there any case law, treatises, etc... that state that determinations of whether an object is a weapon is a question of fact for the jury and not a question of law? I'd like to be able to show something tangible to the judge. I've looked far and wide on Lexis and haven't come up with anything. Thanks

I suppose you could tell your judge that not a single other judge has thought it was his job to decide the issue before trial.

The language in Rosenbaum, even though discussing a motion to quash an indictment, seems pretty clear: "in a pretrial setting there is no constitutional or statutory authority for an accused to raise and for a trial court to determine sufficiency of evidence to support or defeat an alleged element of an offense." I again query, on what basis did the defendant move to have the court suppress? If it was not how the evidence was obtained, then it almost surely dealt with a sufficiency issue rather than an admissibility issue.