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  • Rating - 100%
    9   0   0
    Aug 17, 2010
    7,576
    96
    Austin
    46.15 isn't a defense, it's an exemption. And the authority doesn't come from 46, it's natural. But that right is infringed on, then the infringement is exempted.

    I wish it were an exception but procedurally it is treated as a defense. I don't want to argue about natural rights. Legally, we can carry because of 46.15.
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    jordanmills

    TGT Addict
    Rating - 0%
    0   0   0
    Sep 29, 2009
    5,371
    96
    Pearland, TX
    I wish it were an exception but procedurally it is treated as a defense. I don't want to argue about natural rights. Legally, we can carry because of 46.15.

    The text says "does not apply", and does not use the word "defense" anywhere in the relevant section. A defense would mean that you could be prosecuted and would have to prove that you met the conditions of the defense. I've never been arrested for qualifying for 46.15, even though I've been in several situations where LEOs have discovered that I was carrying a concealed handgun.
     
    Rating - 100%
    9   0   0
    Aug 17, 2010
    7,576
    96
    Austin
    The text says "does not apply", and does not use the word "defense" anywhere in the relevant section. A defense would mean that you could be prosecuted and would have to prove that you met the conditions of the defense. I've never been arrested for qualifying for 46.15, even though I've been in several situations where LEOs have discovered that I was carrying a concealed handgun.

    I know what the text says and I know what a defense means. I have never been arrested for carrying either. Generally the Police will not arrest when there is an obvious defense.

    The problem is that 46.15 is not clearly labeled "is shall be an exception to the application..." In the code anything not labelled specifically that has the form of a defense is treated as a defense.

    Sec. 2.02. EXCEPTION. (a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."
    (b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
    (c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.
    Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

    Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."
    (b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
    (c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
    (d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
    (e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.
    Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

    [h=1]Illingworth v. State
    156 S.W.3d 662
    Tex.App.–Fort Worth,2005.
    January 13, 2005 (Approx. 8 pages)
    [/h].
    .
    .


    [h=3]A. Standard of Review[/h]In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the judgment in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004).

    [1] [2] [3] [4] This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the judgment. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

    [h=3]B. Traveling Defense[/h][5] “A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun....” Tex. Penal Code Ann. § 46.02(a) (Vernon 2003). However, “ection 46.02 does not apply to a person who ... is traveling.” Id. § 46.15(b)(3) (Vernon Supp.2004–05). Section 46.15(b)(3)'s traveling exception is treated as a defense. See id. § 2.03(e) (Vernon 2003) (“A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.”) The question of whether one is a “traveler” is a fact question to be resolved by the trier of fact. See Smith v. State, 630 S.W.2d 948, 950 (Tex.Crim.App.1982); Evers v. State, 576 S.W.2d 46, 50 (Tex.Crim.App. [Panel Op.] 1978).



    I used to think 46.15 was indeed a list of exceptions, until I realized the above. Something we need to change legislatively.
     

    BigBoss0311

    Well-Known
    Rating - 0%
    0   0   0
    Mar 8, 2010
    1,333
    46
    McKinney, TX
    Ok, let's slow down. Obviously I ruffled feathers and didn't mean to come across as whiny.

    @Bithabus:You are correct obviously. My question is this, what prove is necessary by that military member? Or can they just say they are proficient?

    @txinvestigator: I never disagreed with military getting a discount. I am a veteran as well and appreciate businesses that give military discount. Never had a problem with that.

    And concealed carry while Level 3 is a no-go.

    1702.169-
    A commissioned security officer other than a person acting as a personal
    protection officer may not carry a firearm unless:
    (1) the security officer is:
    (A) engaged in the performance of duties as a security
    officer; or
    (B) traveling to or from the place of assignment;
    (2) the security officer wears a distinctive uniform indicating
    that the individual is a security officer; and
    (3) the firearm is in plain view.



    Also, txinvestigator, I would like to know the info for your CHL course. I'm thinking I would like to take one from you. And if you want to grab a beer afterwards, that will be on me.
     
    Rating - 100%
    9   0   0
    Aug 17, 2010
    7,576
    96
    Austin
    College education in the penal code, police academy, Advanced peace officer certification, TCLEOSE instructor certification, and years and years of experience.

    46.15 is a defense, and overcoming a defense is not an element of the offense. Even if it were a peace officer does not need PC on every element to make an arrest. Take a breath and consider the explanation I posted above. Like I said, I believed as you do for a long time but I recently realized I was incorrect.
     
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