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Gun charge question

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What is the name of your state? texas

My other thread was closed but i still have a few questions about my situation. Mostly about the gun. Ok since they charged my friend with my gun that he didnt even know was in the car. Im going to take responsibilty for it when they send my freind to court but what i want to know is can they charge me with possesion of the gun if i wasnt the driver or nowhere near the gun and i never told them the car was mine(wich it isnt)? The gun was in the trunk.
 


Kane

Member
What, exactly, is the charge?

If it was Unlawfully Carrying a Weapon, nobody should have been charged.

§ 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person
commits an offense if he intentionally, knowingly, or recklessly
carries on or about his person a handgun, illegal knife, or club.
Your friend won't need your help, if the police agree the weapon was in the trunk. You're free to go to court and tell them it was your gun. But the issue will be whether it was "on or about his person," not who owned it.
 
Well see the thing about it being in the trunk is that i drive a neon right..and the seats fold down so you can get into the trunk. But if tell the detectives that that guy had no idea the gun was in the trunk and that i had left it in there will the charge be dropped completly? no body get in trouble and i get my gun back?
 

Kane

Member
If the seats fold down, that's unfortunate.

"On or about the person" has been defined to mean, "near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could, without materially changing his position, get his hand on it."

Some courts have also said "on or about the person" means anywhere within the passenger compartment, when somebody's travelling in a car.

So it would have been better if there was no access to the trunk from inside the vehicle.

There are at least two other issues, though. The first is whether your friend "intentionally, knowingly, or recklessly" "carried" the gun.

If he didn't know it was there, and had no reason to know, he's not guilty.

The state (the prosecutor) has to prove this element of the offense, just like any other element. If the gun wasn't in his sight, and it wasn't his car, I don't know how they would do that.

You may be able to help your friend at trial, if it comes to that (which I doubt). But you need to a.) talk to your own lawyer, and b.) talk to your friend's lawyer, before you do anything.

Don't talk to the police.

First of all, they're not likely to believe anything you tell them, unless it fits their theory of the case (that somebody's guilty of something). Second, you could expose yourself to criminal prosecution, if they decide to charge you for UCW instead of (or in addition to) your friend.

Your friend's lawyer is the person to go to, if you want to help your friend. Not the police.

There's also new legislation, that changes how the courts are supposed to interpret the "travelling exception" to UCW. Basically, it changes the presumption in favor of the defendant. Ask your lawyer, or tell your friend to ask his lawyer, about it.
 

bigpigtx

Junior Member
Ok since they charged my friend with my gun that he didnt even know was in the car
If it was YOUR gun, was in the trunk, the seats folded down and you knew it was there then you are responsible for it and should/will be charged.


First of all, they're not likely to believe anything you tell them, unless it fits their theory of the case (that somebody's guilty of something). Second, you could expose yourself to criminal prosecution, if they decide to charge you for UCW instead of (or in addition to) your friend.
Kane, are you the police? If not then how the hell do you know what the police are likely to believe?? But you're right either the driver or the poster are responsible for the gun....that's why it's illegal.

Complain to your legislators if you don't like the law.

Your friend's lawyer is the person to go to, if you want to help your friend. Not the police.
You're right, but someone should also mention...beware of Perjury.

There's also new legislation, that changes how the courts are supposed to interpret the "travelling exception" to UCW. Basically, it changes the presumption in favor of the defendant. Ask your lawyer, or tell your friend to ask his lawyer, about it.
Right again, but the legislation change still only makes the traveling exemption a defense, not an affirmative defense. Which for Anthony means you will still be arrested.

So were you "traveling" or not? Well were you a member of a criminal street gang? Were you involved in criminal activity? If you weren't I'd advise you DO talk to the police. No one (police, county distict attorneys, etc.) except for a criminal defense attorney, want proceed on a case that will never make it to trial.
 

Kane

Member
bigpigtx said:
Kane, are you the police?
No.

If not then how the hell do you know what the police are likely to believe??
Experience.

But you're right either the driver or the poster are responsible for the gun....that's why it's illegal.

Complain to your legislators if you don't like the law.



You're right, but someone should also mention...beware of Perjury.



Right again, but the legislation change still only makes the traveling exemption a defense, not an affirmative defense. Which for Anthony means you will still be arrested.

So were you "traveling" or not? Well were you a member of a criminal street gang? Were you involved in criminal activity? If you weren't I'd advise you DO talk to the police. No one (police, county distict attorneys, etc.) except for a criminal defense attorney, want proceed on a case that will never make it to trial.
Are you a defense attorney?

Because I think you've got your terms mixed up. If there's anyone in the courthouse who likes to see a case dismissed - it's the defense attorney.

Prosecutors and cops, on the other hand, generally go after convictions, not dismissals.

Also, please don't advise people to talk to the police when they're charged with a crime. Aside from everything else, the fact of the matter is the police don't have the power to dismiss a case, even if they want to.
 

bigpigtx

Junior Member
Aside from everything else, the fact of the matter is the police don't have the power to dismiss a case, even if they want to.
True, and I digress.

Let's hypothosize. If I had a couple of Vicodin wrapped up in foil in my pocket and an officer searched me (for whatever legit reason) would it be in my best interest to tell him I have a prescription or to not say anything.
 

gawm

Senior Member
bigpigtx said:
True, and I digress.

Let's hypothosize. If I had a couple of Vicodin wrapped up in foil in my pocket and an officer searched me (for whatever legit reason) would it be in my best interest to tell him I have a prescription or to not say anything.
If you had a prescription it would be in your best interest to tell him so.
If you didn't have a prescription it would be in your best interest to say nothing.
 
What type of gun was it?

I'm assuming a handgun, because if it were a rifle or shotgun it would be perfectly legal to have it loaded and openly carried or concealed on your person or in your car.

You are definately going to want to talk to his lawyer and they should get you on the witness stand to admit that it was your gun and he didnt know about it. Also yall are going to want to also go with the whole travelling nonapplicability thing.

That law that your friend was charged with, does not apply to yall if you are travelling.

(i) For purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other
than a Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;
(3) not otherwise prohibited by law from possessing a
firearm;
(4) not a member of a criminal street gang, as defined
by Section 71.01; and
(5) not carrying a handgun in plain view.
 
bigpigtx said:
Right again, but the legislation change still only makes the traveling exemption a defense, not an affirmative defense. Which for Anthony means you will still be arrested.
If a law is nonapplicable to you, that means that it does not apply to you. Why should someone be arrested and charged for violating a law that does not apply?

Police should not be arresting people for travelling with firearms. However unfortuately not all of the police are up to date on the latest laws, or just plain incompotent, and things like this happen.
 
gawm said:
If you had a prescription it would be in your best interest to tell him so.
If you didn't have a prescription it would be in your best interest to say nothing.
Actually it would be none of the officers business what prescriptions gawm, does or does not have, and gawm would be perfectly within his rights to not discuss whatever medical conditions he has with some stranger.
 

innocent

Junior Member
Kane is right

cops and prosecuator--wants conviction.
Some one wrote prosecuator gets promotion for how many cases they convict.

Lawyer wants dismissal, however lawyer loose money by dismissal too. The more hours they do, the better fat they gain in wallet.
 

Zephyr

Senior Member
I don't understand- and it might not even be relevent- but why was your gun in the trunk of your friends car? what were you guys up to?
 

HappyHusband

Senior Member
Jack_David said:
What type of gun was it?

I'm assuming a handgun, because if it were a rifle or shotgun it would be perfectly legal to have it loaded and openly carried or concealed on your person or in your car.

You are definately going to want to talk to his lawyer and they should get you on the witness stand to admit that it was your gun and he didnt know about it. Also yall are going to want to also go with the whole travelling nonapplicability thing.

That law that your friend was charged with, does not apply to yall if you are travelling.
(i) For purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other
than a Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;

(3) not otherwise prohibited by law from possessing a
firearm;
(4) not a member of a criminal street gang, as defined
by Section 71.01; and
(5) not carrying a handgun in plain view.
Possession of the weed makes the traveling defense useless.
 
HappyHusband said:
Possession of the weed makes the traveling defense useless.
If he was travelling then the charge of unlawful carry of a weapon is still nonapplicable to him. Regardless of anything else.

That being said he would not get this particular presumption of travelling. It is still possible to be travelling without fitting all of these criteria.

Also from reading the other thread I think a good lawyer would be able to get both the marijuana and the gun supressed on 4th amendment grounds. It sounds like an unreasonable search and seizure to me.

Another thing to consider is that if anthony361, here says the gun is his and his friend didnt know about it then his friend didnt commit the crime, and if they try to charge anthony361 here with this gun and his friend admits to the marijuana and anthony361 didnt know about it then anthony361 wasnt engaged in any criminal activity and thus he gets the presumption of travelling.

The UCW charge is definately the more important of the two to fight.
 
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