Scenario:

Wife calls 911 and says her husband just left house and drove away in car. She says that he is armed with gun and threatening to kill himself. She gives description of vehicle. Dispatch relays message to police officer. Officer identifies vehicle on road and pulls car over. He asks driver/husband where gun is and husband responds that it is behind front passenger seat. Gun is found there. Husband is arrested and charged with UCW.

Problem: I'm not sure I can get past the traveling presumption to prove UCW. All 5 elements of the 46.15(i) traveling presumption appear to apply. Unless, "armed and threatening to kill oneself" is engaging in criminal activity. Any thoughts?

Unfortunately I think the presumption's got you here. Check with your officers to make sure the gun wasn't in plain view, though, since "behind the front passenger seat" is a little vague. I can't think of an offense that he could be committing under the facts you've described. I don't think it's a crime to threaten to kill yourself.

Does suspect have felony record for FELON IN POSSESSION OF FIREARM?

Was there anything constituting issues of family violence via a threat, however conveyed, by the use of the gun prior to defendant leaving with the gun? Assault by threat, terroristic threat, aggravated assault with a deadly weapon?

Any possibility of the firearm being stolen property? Prohibited weapon?

Remember, the traveling presumption is still just a presumption. If you can prove he was not traveling, then you can still prove your case. You would probably have to have a cooperative wife-witness to accomplish this.

Don't just look at a presumption as a case-killer. After all, every one of your cases involves a presumption of innocence; we get past that one all the time. The traveling presumption is no stronger.

Your wife-witness sounds like she maybe able to testify that defendant was not "traveling" but had taken the gun with him to commit suicide. Of course, you may decide that the circumstances here justify some other intervention than a criminal prosecution, and I suspect wife would concur with some alternative resolution if she was trying to get defendant help in the first place. You should at least have a good enough case to give you the leverage to get the defendant to seek help if he isn't doing it on his own.

I agree that it is just a presumption and should therefore be able to be disproved, like innocence. But we disprove innocence with the elements of the offense, and I think it's hard to explain to a jury that we have to prove the elements of UCW to show guilt, but at the same time even if we don't show the "elements" to preclude the presumption of traveling, he's still not traveling--because we are applying common sense and case law about traveling.

I think it's tough to convince a jury after the judge has told them what you as the State have to show that you didn't show any of the five prongs, but he's still not traveling (because the prongs don't have anything to do with what actual traveling means!!). I think it's theoretically correct but HARD to explain to the jury. We have all put a lot of thought into this presumption and understand the subleties and that they are not exactly "elements" or a definition but the jury will just get a piece of it, and the defense's piece also.

I've done a bench trial and a jury trial with these issues, but they both had other offenses involved that were my safety net to rebut the presumption. (Almost nice to make sure other offenses come in as well! Like all the meth found next to the gun in the console!)

I wish someone would win one of these with only the gun issue so that we could have some guidance on how to do it!!

Good luck, Britt, make us Section D grads look good!

There is, of course, a bill on the desk of the guv right now that will make these circumstances a defense, rather than just a presumption. HB 1815 essentially deletes the presumption language for traveling, then makes a new offense for "carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which: (1) the handgun is in plain view; or (2) the person is: (A)engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic; (B)prohibited by law from possessing a firearm; or (C)a member of a criminal street gang, as defined by Section 71.01." In other words, a failure to disprove the presumption has been transformed to a requirement that we disprove one of the elements that formerly gave rise to the presumption.

The goofy thing (unless someone can explain it to me) is that they left traveling in as a defense to this new "UCW in a motor vehicle" statute. So if you are carrying the gun in plain view (which formerly would have made you subject to prosecution for UCW, because the presumption would not apply), but you are traveling, then you have a defense. Granted this was true before the presumption language was ever passed, but it does beg the question, what is the point of this new offense? To make charging instruments in UCW cases longer and harder to follow?

quote:

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Originally posted by smj:

I think it's tough to convince a jury after the judge has told them what you as the State have to show that you didn't show any of the five prongs, but he's still not traveling (because the prongs don't have anything to do with what actual traveling means!!).

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I agree with you, but the scenario mentioned here seems to be one where you might be able to do it. When there is specific evidence that he was not traveling, but was carrying the gun under circumstances that would concern the jury (i.e., not a mere traffic stop where the gun is found) I think you could do it. But see HB 1815...

There's still a problem with the whole "a presumption is just a presumption" argument, and that's the language of this particular assumption. Unlike the prosecution presumptions, where the jury is specifically told that they may but are not required to find the elemental fact from the presumption, this defense presumption instead instructs the jury that they MUST find the presumption true unless the state disproves one of the five factors. There isn't an alternative for the State to stand up and say, "All right, the five factors are all there, but here are all the reasons why he wasn't traveling." Not under the wording of this particular presumption, which is the big problem with it in the first place.

quote:

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Originally posted by AndreaW:
Unlike the prosecution presumptions, where the jury is specifically told that they may but are not required to find the elemental fact from the presumption, this defense presumption instead instructs the jury that they MUST find the presumption true unless the state disproves one of the five factors.

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You're right. I had completely forgotten about that pesky sec. 2.05(b). Maybe that is the reason for the changes in the new bill, to clear up the burdens of proof for both sides.

So, basically, in a nutshell, you are traveling, unless you have one of the 5? Doesn't matter how far or for how long, so long as you get in the vehicle, and don't have one of the 5 working against you, you are traveling? Makes perfect sense.

Yes, that's it, and after the new bill comes out it looks even more firm.

I try to consistently apply all the laws regardless of whether I think each particular one is too harsh or too lax, but this one makes every situation a puzzler. If the legislature wants it legal, make it legal! If not, make it prosecutable!

Also, if you're singing the following song, you trump the five no-no's and are automatically issued a travelling exception apology letter from a randomly selected legislator's office in Houston.

Moving Right Along

Sung by Fozzie and Kermit

Kermit:
Movin' right along in search of good times and good news,
With good friends, you can't lose,
Fozzie:
This could become a habit.
Kermit:
Opportunity just knocked, let's reach out and grab it,
Together we'll nab it.
Fozzie:
Ya! We'll hitch-hike, bus, or yellow cab it.
Kermit : Cab it?


Kermit & Fozzie:
Movin' right along
Kermit:
Foot-loose and fancy free.
Gettin' there is half the fun; come share it with me.


Kermit & Fozzie:
Movin' right along!
Kermit:
Doog-a-doon, doog-a-doon
We'll learn to share the load.
Fozzie:
We don't need a map to keep this show on the road.


Kermit:
Movin' right along we found a life on the highway,
Fozzie:
And your way is my way--
Kermit:
So trust my navigation.
Fozzie:
California here we come, come pie-in-the-sky land.
Kermit:
Palm trees and warm sand--
Fozzie:
Though sadly we just left Rhode Island.


Kermit & Fozzie:
Movin' right along
Kermit:
Hey, L.A., where have you gone?
Fozzie:
Send someone to fetch us, we're in Saskatchewan.


Kermit & Fozzie:
Movin' right along
Kermit:
Doog-a-doon, doog-a-doon
You take it, you know best.
Fozzie:
Hey, I've never seen the sun come up in the West.


Kermit & Fozzie:
Movin' right along
Fozzie:
We're truly birds of a feather,
We're in this together--
Kermit:
And we know where we're goin'.
Fozzie:
Movie stars with flashy cars and life with the top down.
Kermit:
We're stormin' the big town.
Fozzie:
Yeah! Storm is right, should it be snowin'?


Kermit & Fozzie:
Movin' right along
Kermit:
Foot-loose and fancy free.
Fozzie:
You're ready for the big time--
Kermit:
Is it ready for me?


Kermit & Fozzie:
Movin' right along!
Movin' right along!