Tx, Unlawful Carrying Weapons

[Grendel]

I live in texas, near houston, and was driving around saturday night, enjoying the night air, and for no apparent reason I was pulled over and searched. The police found an extendable baton I had in my trunk, which in all honesty I had completely forgotten was there, and they said it was illegal and arrested me.

Having several friends who are police officers (and dept. sheriffs as well), I know that it's not illegal to have in your vehicle as long as it's not "on or about your person" which being in the trunk, and being not accesible from the inside of a miata, could in no way be considered "on or about" my person.

This is a series of entries from the Texas State Penal Code:

§ 46.01. DEFINITIONS.

(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 the the instrument, and includes but is not limited to the following:
(A) blackjack;
(B) nightstick;
(C) mace;
(D) tomahawk;

§ 46.02. UNLWAFUL 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.

Historical and Statutory Notes

19. A pistol in a hand bag placed between the seats on the floor of automobile was on or about the driver's person in violation of this article; “about” meaning near by, close at hand, convenient of access, and within such a distance of the party so having it as that such party could, without materially changing his position, get his hand on it. Welch v. State (Cr.App. 1924) 97 Tex.Crim. 617, 262 S.W. 485.

§ 46.15. NONAPPLICABILITY.

(b) Section 46.02 does not apply to a person who:

(3)is traveling;

Text of subsec. (i) as added by Acts 2005, 79th leg., ch. 288, § 1

(i)for the 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 a criminal activity, other that a Class C; Misdemeanor that is a violation of the 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

The baton, or club, was locked in the trunk of my car, and I was driving around. I am not a member of a gang, I can legally own a gun, I do not own a pistol, and as far as I know I wasn't even speeding. But that didn't stop the rookie cop (who I found out later had only been in a patrol car for three weeks), from arresting me and making me post a $1000 bail.

Another discrepency is that according to the Texas State Penal Code (46.02. (b)) it is a Class A Misedemeanor, but I was charged with a Class B. I have to appear in court Friday to settle this and tommorow I meet with my attorney.

I guess really the reason I am posting this is two fold, one to make sure I have not misunderstood the law, and two so that in the event I have not, you all will let me know.

Thanks in advance,
Jacob

[CdwJava]

Were you specifically cited with that section you posted? or with another one?

- Carl

[Kane]

They don't necessarily tell you the statute number when they arrest you in Texas. They'll hold you to bail on a PC affidavit, which may or may not list the number of the statute. The legal charge is determined later by the prosecutor, through an "information" (in misdemeanors - in felonies, it's usually done through an indictiment).

The information may not be filed for weeks or months after the arrest, and it's not necessarily the same as the charge you were bonded on. (Although it usually is.)

It sounds like Unlawfully Carrying a Weapon, though, and since the courts have said "on or about the person" doesn't include the trunk of a car, he should be fine.

[CdwJava]

Originally Posted by Kane

They don't necessarily tell you the statute number when they arrest you in Texas.

After I posted my inquiry I recalled one of my best friends (who left CA to be a cop out there) saying that to me when he first started. He was confused and amused at a number of things that were done in TX compared to how they were done here - having police reports notarized was another oddity that I recall.

It's so foreign for us out here as we list the booking charge directly on the paperwork. This booking charge can be modified or changed completely at any time before Prelim., but we still have it there nonetheless.

It sounds like Unlawfully Carrying a Weapon, though, and since the courts have said "on or about the person" doesn't include the trunk of a car, he should be fine.

I would have to agree. I can't see where having it in the trunk would qualify. Unless there is something more to the tale ... perhaps he was seen getting some air swinging it around some tiem earlier, or, perhaps he was on one of the restricted properties where such things are not permitted (I believe in my cursory read of 46.03 there were some properties where certain weapons were not permitted at all).


I'd be really curious about the police version of events. And, it is entirely possible that the officer misinterpreted the statute. That happens with some frequency out here with our unlawful weapons statute in PC 12020 - new officers often misapply the section ... though, hopefully, a sergeant or senior officer catches the error before it gets very far.

- Carl

[Grendel]

yes they didn't refrence the entry at all, no number for me to look up, but they told me I was being charged with unlawfully carrying a weapon.

No, as I said I had completely forgotten it was there, so I wasn't brandishing it earlier that night. But I have posted the entire story, with a few execptions, for privacy reasons.

I double checked 46.03 and no I was not even near a restricted area, and on the four mile road I was on, none such area exists. No Schools, no bars, (or even convienence stores that sell alcohol), no voting locations, no racetracks, or courts. And besides that I was still in the car, and I definately did not get charged with a third degree felony, there is no way the bond would be that low

I'd be really curious about the police version of events. And, it is entirely possible that the officer misinterpreted the statute. That happens with some frequency out here with our unlawful weapons statute in PC 12020 - new officers often misapply the section ... though, hopefully, a sergeant or senior officer catches the error before it gets very far.

I'd love to read that too. I had a conversation with the officer who released me, and he said that off the record he would have tried to discourage the arresting officer from filing that report if it already hadn't gone to the county.

[CdwJava]

From the sound of it, this won't make it past the DA. It might even get quashed by the officer's administration if they are able to review and intercede reports before they head to the DA. I doubt that reports just automatically go over ... unless they do it to cover their behind after an arrest.

- Carl

[Jack_David]

From what I have heard Houston is particularily bad when it comes to the DA and police trying to charge people for unlawful carrying of a weapon.

As in the DA and some police there go out of thier way to get charges on someone even if the law says something else.

That being said I'm sure you can beat it in court.

BTW even if you had that club on and about your person, which being in the trunk it wasnt, you would still be able to beat the charge just on the fact that you were travelling.

§ 46.15. NONAPPLICABILITY.

(b) Section 46.02 does not apply to a person who:

(3)is traveling;

Text of subsec. (i) as added by Acts 2005, 79th leg., ch. 288, § 1

(i)for the 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 a criminal activity, other that a Class C; Misdemeanor that is a violation of the 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

The unlawful carrying of a weapon statute does not apply to you if you are travelling. You could carry a club, illegal knife, or handgun if you are travelling.

The presumption of travelling section was added to the law just last year, it does not define travelling, in that it is entirely possible to be "travelling" without being in a private motor vehicle, but if you fit all 5 of those critera then you are assumed to be travelling. It was obviously written into law with handguns in mind, but that does not matter.

The DA would have to prove to the jury that you in your case does not fit those critera because if you do then the law you were charged with does not apply to you.

[Grendel]

Yes after speaking with my attorney, who simply laughed when I explained to him my case (I know him on a personal basis), he and I both feel that it doesn't hold water.

I have gone to the police station and requested a copy of the police report, to double check and make sure the officer didn't fabricate the location (which as jack pointed out I'm still innocent even if the officer decides to say I had it in my pocket). Plus I'd like to see what an actual police report looks like, the law is a hobby of mine, and I have never seen a police report in person. The report, since I went after the cleck who could pull it had left, will be ready for pickup bright and early this morning.

When I was arrested the trainee called the DA, to double check if they'd take the case before arresting me (but I think since it was 1am by the time they found the baton and placed the call, that whom ever the Officer contacted probably wasn't in the most lucid or pleasant state, especially considering it was a saturday, well sunday technically). The person on the phone agreeing to take the case was the only reason I got arrested, and the only reason they got called was because of a subtle gesture and nod from the trainee's FTO (field training officer), the arresting officer (the trainee) wasn't going to do anything about the baton, until the FTO indirectly suggested it to him (which I feel very sorry for the trainee since from what I understand an Illegal Arrest, if nothing else, means a mountain of paperwork).

I'm not worried in the least, unless they try to charge me with something other than what I was arrested for.

If it is dismissed I plan to file a law suit with again the police department, requesting a written appology, the arrest be exponged from my driving record, and all the money I had to pay involving the case (bail, impound fee, lawyer, ect.). I personally despise superflous lawsuits (like the people who tried to sue McDonalds because they got fat), but I'm also broke, and had to take the money out of what I have worked my butt of to set aside for college. But I'm not going to sue the city for millions or something ridiculous like that, but I might ask for the full amount of the bail, which was $1000, even though I only paided $140 out of pocket. My attorney suggested that we request both officers be retrained, but I don't really want to make any enemies, so a written apology is perfect for me. It might sound childish, but they were not very nice about it when they arrested me, infact the words unproffesional and negligent come to mind.

I also wanted to thank you all again for the help, it has really made me feel alot more confident about the legal system (if not maybe a little cynical).

-Jacob