Texas- unlawful carrying weapon

[wazungu]

What is the name of your state?Texas
Need advice- a guy was stopped on a university campus for "running a stop sign." Cops give him a breath test and he passes, then they search his truck. They find an axe handle and ask what it's for and he says in case I ever get in a bad situation. They let him go with no citation and no warning. One week later, they show up at his place and arrest him for carrying an unlawful weapon. Is this legal? Why would they wait a week to arrest him? Is someone in the police dept/ DA's office trying to make an example of this otherwise average, normal guy who's never been in trouble with the law? What defense is there against this charge???

[Curt581]

Q: Is this legal?
A: Yes.

Q: Why would they wait a week to arrest him?
A: Any number of reasons. They may have wanted to have the circumstances reviewed by a D.A. before making an arrest.

Q: Is someone in the police dept/ DA's office trying to make an example of this otherwise average, normal guy who's never been in trouble with the law?
A: An example to whom? You imply an ulterior motive that you have no evidence of... other than wild speculation.

You also imply that having no prior record means that he'd never do anything illegal. True or not, it has no bearing on whether or not what he was doing at the time was illegal.

Q: What defense is there against this charge???
A: Very little. He's already admitted that the intended purpose of this item was for use as a weapon, not as a tool.

If he'd have told the police that he uses an axehandle to measure the rate of expansion on his girlfriend's jeans, he might have gotten away with it.

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[Kane]

§ 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.
(b) Except as provided by Subsection (c), an offense under
this section is a Class A misdemeanor.

A Class A misdemeanor carries up to one year in jail.

§ 46.01. DEFINITIONS. In this chapter:
(1) "Club" means an instrument that is specially
designed, made, or adapted for the purpose of inflicting serious
bodily injury or death by striking a person with the instrument, and
includes but is not limited to the following:
(A) blackjack;
(B) nightstick;
(C) mace;
(D) tomahawk.

An ax handle is not, as far as I know, a blackjack or a nightstick. It might, however, be an instrument "adapted" for the purpose of inflicting injury. I don't know that there's a "right" answer to this. There is at least some case law that supports your position, however:

The fact that an object is capable of inflicting serious bodily injury or death alone does not bring the object within the definition of club... Similarly, here there was no evidence that the instrument was adapted for use as a club. The fact that it is polished at one end and rough cut on the other shows no such adaption. Further, the fact that Heerema told the arresting officers that he used the instrument for self-defense does not make it a "club." A rolling pin or baseball bat may be used for self-defense but clearly do not come under the definition of "club" as they are not "adapted" for such use.

Heerema v. State. Hire a good lawyer.


The other issue is whether it was found "on or about" your person.

In Contreras v. State, the court said, "When applied to persons occupying vehicles, the phrase 'on or about the person' has been expanded to include the area near by, close at hand, convenient of access, and within such distance of the party so that, without materially changing his position, the pary could get his hand on it."

Where was it, exactly?

[Jack_David]

IMO this is one of the more ****ed up parts about Texas law, althought many other states have similar laws.

You can keep a loaded shotgun, rifle, or handgun (thanks to new Texas law), or most knives under 5.5inches in your vehicle for the purposes of self defense. But god forbid your self defense weapon of choice is a blunt instrument because then you are nothing but a criminal.

Personally I think the best weapon for selfdefense is a firearm of some sort but I see no reason why clubs should be prohibited.

What was your friends specific wording when asked about the ax handle? Was it as you posted?

I assume the ax handle was also seized when he was arrested? If not I would totally put an ax head on that thing, claim it was broken and he was in the process of getting it fixed, and see if that would no longer be concidered an illegal weapon.

I would then also try to argue that the bad situation that he was talking about was if a tree fell and blocked his way or something.

If all else fails I would try the the following, it probably wont win much support from the people here, but maybe it could work. Plead not guilty request trial by jury, explain the absurdity of the law and hope for a jury nullification.

[gawm]

Originally Posted by Jack_David

IMO this is one of the more ****ed up parts about Texas law, althought many other states have similar laws.

You can keep a loaded shotgun, rifle, or handgun (thanks to new Texas law), or most knives under 5.5inches in your vehicle for the purposes of self defense. But god forbid your self defense weapon of choice is a blunt instrument because then you are nothing but a criminal.

Personally I think the best weapon for selfdefense is a firearm of some sort but I see no reason why clubs should be prohibited.

What was your friends specific wording when asked about the ax handle? Was it as you posted?

I assume the ax handle was also seized when he was arrested? If not I would totally put an ax head on that thing, claim it was broken and he was in the process of getting it fixed, and see if that would no longer be concidered an illegal weapon.

I would then also try to argue that the bad situation that he was talking about was if a tree fell and blocked his way or something.

If all else fails I would try the the following, it probably wont win much support from the people here, but maybe it could work. Plead not guilty request trial by jury, explain the absurdity of the law and hope for a jury nullification.

i agree with this post. the only problem i see is that although the jury has the right to nullify, the defense cannot argue for nullification. so he has better odds at hoping to win power ball or something

[Kane]

You know, thinking about this some more, I really think this is a pretty weak case. If a baseball bat is not a "club," why should an ax handle be?

As far as the argument that taking it apart turned it into a club, the fact is it was more adapted to causing serious injury or death before he took it apart. The adaptation made it less dangerous.

If it were me, I wouldn't settle for less than a class C, assuming he hasn't been to jail before. If not, take it to trial. The worst he'll get is probation.