Legal question

[5231HG]

It looks like Renegade is quoting from Wagner v. State in 1916. The opinion states "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".

Edit for full cite: Wagner v. the State, 80 Tex. Crim. 66 (Tex. Crim. App. 1916)

 

[5231HG]

According to the case law, it seems to be a jury question as to whether the gun in the back seat is "about the person," but nothing is indicating that it would be difficult to prove.

 

[jordanmills]

In a container, in the back seat, is definitely not "on or about" the person. There was no carry, so there's no unlawful carry.

 

[5231HG]

In a container, in the back seat, is definitely not "on or about" the person. There was no carry, so there's no unlawful carry.

Maybe, maybe not. I could see it being a strong enough case to get to a jury. Thanks for the reference, Renegade! I didn't know about Jennings v. State.

 

[5231HG]

It occurs to me that, since the vehicle was in an accident, the location of anything loose could shift around. If it did go to court, that would certainly muddy things up!

 

[Sam7sf]

In a container, in the back seat, is definitely not "on or about" the person. There was no carry, so there's no unlawful carry.

Thanks. I too was thinking this.

 

[Sam7sf]

It occurs to me that, since the vehicle was in an accident, the location of anything loose could shift around. If it did go to court, that would certainly muddy things up!

Freaking how?

 

[Sam7sf]

I smell anti gun fear tactics.

 

[5231HG]

Freaking how?

A prosecutor would take the witness testimony of the officer, and make it appear that the gun was placed so that it could be readily grabbed by the driver. The defense attorney, hopefully, would point out that the accident would have shifted the gun BEFORE the officer saw it, and that the driver actually placed the gun far away from him. Depending on the car in question (like Renegade said, could be a mini-cooper) that could well work to negate the officer's testimony.

 

[5231HG]

What makes you think I'm trying to spread anti-gun fear?

 

[Sam7sf]

What makes you think I'm trying to spread anti-gun fear?

Give me a bit please. I’ll respond once home.

 

[Wallace Dunn]

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly carries on or about his or her person a handgun

Section is contingent upon "intentionally, knowingly, or recklessly carries on or about his or her person". Gun on your belt, that is on your person. But gun in back seat in bag, no so easy to prove. Case Law is complex on this, best reference I am aware of is "Does he have to materially change his body position to grasp the firearm?"

It has nothing to do with WHERE it is... it has to do with "otherwise engaged in criminal activity..."

 

[Renegade]

It has nothing to do with WHERE it is... it has to do with "otherwise engaged in criminal activity..."

Catch yourself up by reading the last 2-3 pages, and see it has everything to do with whether it is on or about his person.

 

[5231HG]

It has nothing to do with WHERE it is... it has to do with "otherwise engaged in criminal activity..."

Actually, I'm with Renegade on that one. The "where" is very important.

 

[Renegade]

Maybe, maybe not. I could see it being a strong enough case to get to a jury. Thanks for the reference, Renegade! I didn't know about Jennings v. State.

"materially changed body position" is in a lot of Case Law. There is also one from 1985.

And of course, if he can show he was traveling, none of 46.02 applies.

 

[Renegade]

It occurs to me that, since the vehicle was in an accident, the location of anything loose could shift around. If it did go to court, that would certainly muddy things up!

Well at least it was not in back seat, and accident sent it to front seat, where it is on or about his body!

 

[Wallace Dunn]

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly carries on or about his or her person a handgun

Section is contingent upon "intentionally, knowingly, or recklessly carries on or about his or her person". Gun on your belt, that is on your person. But gun in back seat in bag, no so easy to prove. Case Law is complex on this, best reference I am aware of is "Does he have to materially change his body position to grasp the firearm?"

Let's just show the entire chapter, you left off two important phrases: ...; AND (2) IS NOT... you absolutely MAY have a gun in your vehicle with or without an LTC. With an LTC it can be worn on your body concealed or open in a holster on your hip or shoulder. Without an LTC the only requirement is it must not be in plain view. My point is, if you are engaged in criminal activity you are liable to be charged under this chapter. Really it comes down to how much of a hassle the cop wants to give you under the circumstances.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly carries on or about his or her person a handgun; and
(2) is not:
(A) on the person's own premises or premises under the person's control; or
(B) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; 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 or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.

 

[5231HG]

How's the "traveling" any different?

 

[5231HG]

I'm sorry, Mr. Dunn - I was assuming that is was a DWI in this context. I should have been more clear.

 

[5231HG]

Well at least it was not in back seat, and accident sent it to front seat, where it is on or about his body!

I know! That sounds like my kind of luck! I keep mine in the glovebox for that reason.