TexasCHLforum.com

Rafe wrote: ↑Sat Dec 30, 2023 12:03 pm

ScottDLS wrote: ↑Sat Dec 30, 2023 11:27 am Not to quibble with Steve's post, and see my longer discussion I just posted, but with regards to the Defense to Prosecution, I disagree slightly.

A defense does not have to be negated by the DA and is only submitted to the jury if the defendant provides evidence of the defense. And to win, the defendant must prove the defense beyond a reasonable doubt.

A Defense does not have to be negated in the charging document but if it is raised by the defendant at trial, then it must be negated by the prosecution beyond a reasonable doubt to the jury.

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.

That's actually how I read Steve's post, i.e., that it isn't incumbent upon the prosecution to negate the defense--or I suppose ever bring it up at all--unless the defendant introduces it and presents evidence for the defense to prosecution.

I'm now wondering about the "at trial" caveat you mentioned, though. Is counsel for the defense prohibited from including evidence for a defense to prosecution at the grand jury stage? Can the defense only be presented during a petit jury trial?

(I'm learnin' stuff here today...)

What I was trying to get at is AT TRIAL the burden of refuting a Defense is on the prosecution. If the jury has any reasonable doubt that the prosecution negated (proved wrong) the Defense, then they must accept the Defense and acquit. The only obligation on the defendant is to raise the Defense at trial. Then the prosecution MUST refute it.

Rafe wrote: ↑Sat Dec 30, 2023 11:12 am

srothstein wrote: ↑Fri Dec 29, 2023 10:47 pm I agree with you for real world applications, but for technical legal discussions there is a real difference. From a technical legal viewpoint, if you did not break the law then no crime occurred. If a crime did not occur, you cannot be indicted and tried. The fact that you can be arrested and tried, even if you cannot be convicted, means that the law was broken.

Perhaps this may be best understood by looking at the exact wording of how the exception and defenses work. The DA must negate the existence of an exception in the charging document and prove this at trial. This means the existence of an exception is an element of the offense. A defense does not have to be negated by the DA and is only submitted to the jury if the defendant provides evidence of the defense. And to win, the defendant must prove the defense beyond a reasonable doubt. An affirmative defense is also not negated by the DA and must be proven by the defendant. In this case, the proof only has to be to the level of a preponderance of the evidence (as in more likely to exist than not). The DA does not need to prove anything about the existence of the defense or affirmative defense until after the defendant has created it and shown enough evidence to meet the standards without the DA introducing contrary evidence.

This needs to be "starred" somehow for future reference. I've always felt I had a halfway decent grasp on "defense to prosecution," but this explains the nuances of it in a single paragraph that was sort of an "ah hah!" moment for me. The details of the evidentiary standards, their by-whom/to-whom application, and the de facto burden of proof made things instantly clearer. Thanks, Steve.

Not to quibble with Steve's post, and see my longer discussion I just posted, but with regards to the Defense to Prosecution, I disagree slightly.

A defense does not have to be negated by the DA and is only submitted to the jury if the defendant provides evidence of the defense. And to win, the defendant must prove the defense beyond a reasonable doubt.

A Defense does not have to be negated in the charging document but if it is raised by the defendant at trial, then it must be negated by the prosecution beyond a reasonable doubt to the jury.

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.

srothstein wrote: ↑Fri Dec 29, 2023 10:47 pm

ScottDLS wrote: ↑Thu Dec 28, 2023 11:12 pmAbout Defense to Prosecution. If you read the Texas Statutes Penal Code Chapter 2, it's first section states.

PENAL CODE

TITLE 1. INTRODUCTORY PROVISIONS

CHAPTER 2. BURDEN OF PROOF

Sec. 2.01. PROOF BEYOND A REASONABLE DOUBT. All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

It then provides Affirmative Defenses, Defenses, and Exceptions which can be raised, before charging, at arraignment, and at trial and ALL of them require that the prosecution refute or prove they don't apply BEYOND A REASONABLE DOUBT before one can be convicted of the offense. In other words, if you have a Defense you haven't broken the law, because if raised at trial, you can't be convicted of the offense without the prosecution proving it (the Defense) didn't exist.

You could argue this is a matter of semantics. But I think it is misleading to say that you broke the law, if you did such and such, but you have a Defense. You didn't break the law, because the prosecution can't prove you did, because the law itself provided the Defense.

Harkening back 28 years prior to CHL, even Texas Peace officers only had a Defense to Prosecution for carrying a handgun, but it would have been ridiculous to say they were breaking the law, but had a Defense. Maybe tomato, tomahto to some...but that's the way I see it.

I agree with you for real world applications, but for technical legal discussions there is a real difference. From a technical legal viewpoint, if you did not break the law then no crime occurred. If a crime did not occur, you cannot be indicted and tried. The fact that you can be arrested and tried, even if you cannot be convicted, means that the law was broken.

Perhaps this may be best understood by looking at the exact wording of how the exception and defenses work. The DA must negate the existence of an exception in the charging document and prove this at trial. This means the existence of an exception is an element of the offense. A defense does not have to be negated by the DA and is only submitted to the jury if the defendant provides evidence of the defense. And to win, the defendant must prove the defense beyond a reasonable doubt. An affirmative defense is also not negated by the DA and must be proven by the defendant. In this case, the proof only has to be to the level of a preponderance of the evidence (as in more likely to exist than not). The DA does not need to prove anything about the existence of the defense or affirmative defense until after the defendant has created it and shown enough evidence to meet the standards without the DA introducing contrary evidence.

And the real interesting legal question is chapter 46, section 46.15. It says the law does not apply. Chapter 2 of the Penal Code does not mention anything about a law not applying as any form of defense or exception. So, yeah, cops carrying guns are breaking the law and can be charged and would be convicted because there is no defense or exception for it. I do not foresee this ever happening in the real world, but the law is a very weird thing where unbelievable things happen in court all the time.

I see what you are saying and it may be semantics, however a couple clarifications that I think are important.

A defense does not have to be negated by the DA and is only submitted to the jury if the defendant provides evidence of the defense. And to win, the defendant must prove the defense beyond a reasonable doubt.

A Defense in fact must be negated to the jury, beyond a reasonable doubt, BY THE STATE. The difference from an exception Chapter 2 is that the State is not required to raise the issue at trial, if the defendant does not submit evidence of a Defense. Also the State is {ETA} not required to negate the Defense in advance of trial in the charging document like they are for an Exception. With an Exception a case should be dismissed before trial if the Exception is not refuted.

Only an Affirmative Defense must be proven by the defendant, by a preponderance of the evidence, as you point out. However the fact of that Affirmative Defense, if accepted by the jury means that all elements of the offense have not been proven beyond a reasonable doubt by the State and therefore defendant must be acquitted.

I suppose you could argue that committing an offense with only an Affirmative Defense, is breaking the law, because the burden falls on the defendant at trial to prove it. Again perhaps semantics, but it bothers me. For example ethics rules for attorneys require them not to commit criminal offenses. Police officers, presumably are not supposed to knowingly commit criminal offenses aka "break the law". And with regards to 46.15, as you pointed out "non-applicability" since it doesn't use the specific language for an Exception is deemed to be a Defense. Charles has said this was purposeful in the drafting and that there is an appellate case holding such. Somewhere way back in the Forum archives, he posted this in response to a question from me. I just can't get my head around the fact that Peace Officers are breaking the law every day, knowingly, because they are carrying a handgun in their duties.

srothstein wrote: ↑Thu Dec 28, 2023 9:23 pm

Tex1961 wrote: ↑Thu Dec 28, 2023 8:57 pmHey, I understand.... And I agree the laws are quite confusing. I've been pouring over the ODFR presentation and honestly it has some contradictions. This is way past my training for sure. I might try and contact the DPS training department next week and get a clarification myself. I've been pouring over most of the government codes 30, health and safety codes and there is a lot of conflicting information. As I tell students multiple times, I am not a lawyer and as such don't give out legal advise. I can only tell students what I know based on what the DPS has told me.

Also some clarification which also may come into play. The on duty certification for first responders really only apply to those who work for counties or municipalities with smaller populations. Municipality with a population of 30,000 or less or a county with a population of 250,000 or less. And only those who are employed by the municipalities or county as full time employees, (NOT VOLUNTEERS). can get the ODFR certificate. Or at least can't utilize it to carry while on duty without permission from their respective departments.

On a side note I will say that considering passing a 30.06 is only a Class C misdemeanor I wouldn't worry to much about it. And you are quite correct about 46.03 locations and federal property.

I was just reading the bill mentioned and the current laws as posted on the legislature's web site. I think part of the confusion might be the fact that people are discussing two different sections of the law. The volunteer ES person is allowed to bypass 30.06 and 30.07 signs based on those two sections of the law. Okay, technically he would still be breaking the law but has a defense against being convicted for it. The changes to on-duty first responders are all in making sections 46.02 and 46.03 non-applicable. This does not affect the 30.06 part but means that first responders are not unlawfully carrying to begin with.

A part of the law that helps confuse people on this issue is that it makes the first responder AND the volunteer personally responsible for any firearms mishaps by specifically stating that any shooting is outside the job duties so the government is not liable. This makes it look like it means both of them for the entire bill, even though it doesn't really take 30.06/.07 into account at all. And they had to clarify that the volunteer is not covered by the first responder definition so that it again mentions volunteers in the bill.

You are correct. Tex1961 was referring to the exception given peace officers and on duty emergency personnel. However that is not what I was referring to, nor relevant to the 30.0x VESP discussion.

About Defense to Prosecution. If you read the Texas Statutes Penal Code Chapter 2, it's first section states.

PENAL CODE

TITLE 1. INTRODUCTORY PROVISIONS

CHAPTER 2. BURDEN OF PROOF

Sec. 2.01. PROOF BEYOND A REASONABLE DOUBT. All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

It then provides Affirmative Defenses, Defenses, and Exceptions which can be raised, before charging, at arraignment, and at trial and ALL of them require that the prosecution refute or prove they don't apply BEYOND A REASONABLE DOUBT before one can be convicted of the offense. In other words, if you have a Defense you haven't broken the law, because if raised at trial, you can't be convicted of the offense without the prosecution proving it (the Defense) didn't exist.

You could argue this is a matter of semantics. But I think it is misleading to say that you broke the law, if you did such and such, but you have a Defense. You didn't break the law, because the prosecution can't prove you did, because the law itself provided the Defense.

Harkening back 28 years prior to CHL, even Texas Peace officers only had a Defense to Prosecution for carrying a handgun, but it would have been ridiculous to say they were breaking the law, but had a Defense. Maybe tomato, tomahto to some...but that's the way I see it.

Tex1961 wrote: ↑Thu Dec 28, 2023 7:50 pm

ScottDLS wrote: ↑Thu Dec 28, 2023 3:58 pm

Tex1961 wrote: ↑Thu Dec 28, 2023 1:49 pm

RoyGBiv wrote: ↑Thu Dec 28, 2023 1:19 pm

tbrown wrote: ↑Sun May 28, 2017 8:38 pm Get a Red Cross CPR card. That's what I did so I can ignore 30.06 signs starting 9/1.

❄

If I was on the jury, I'd do my best to get you an acquittal, but, IMO a CPR card doesn't meet the volunteer definition.
I'm not going to ask for the AG to give an opinion, but being a test case can be expensive and cost you your license.

Even though it's a 5 year old post, the only thing that can get you legally past a 30.06 is if your are a One duty first responder with a ODFR certificate from the state. Volunteers do NOT qualify for this certificate.

That is incorrect. Volunteer emergency services personnel have a carve out in 30.06/7. If one wanted to carry at the Perot museum and they did not have metal detectors, if that person was a VESP, then they could do so legally.

Sec. 30.06. TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN.
(a) A license holder commits an offense if the license holder:
....
(f) It is a defense to prosecution under this section that the license holder is volunteer emergency services personnel, as defined by Section 46.01.

Sec. 46.01. DEFINITIONS. In this chapter:
(18) "Volunteer emergency services personnel" includes a volunteer firefighter, an emergency medical services volunteer as defined by Section 773.003, Health and Safety Code, and any individual who, as a volunteer, provides services for the benefit of the general public during emergency situations.

I'm not going to get into a legal / pissing contest with you. Per the instructors at the DPS training academy when I took the On Duty First Responder Instructor course. We were told in very straight terms that HB 1069 changed a lot of the penal codes especially under section 46. And one of those were that volunteer emergency services were not allowed to carry past a 30.06... You are more than welcome to do your own research and maybe prove the DPS instructors wrong. I'm just relaying what I was told directly by the instructors at the academy.

(20) "First responder" means a public safety employee whose duties include responding rapidly to an emergency. The term includes fire protection personnel as defined by Section 419.021, Government Code, and emergency medical services personnel as defined by Section 773.003, Health and Safety Code. The term does not include:
(A) volunteer emergency services personnel;
(B) an emergency medical services volunteer, as defined by Section 773.003, Health and Safety Code; or
(C) a peace officer or reserve law enforcement officer, as those terms are defined by Section 1701.001, Occupations Code, who is performing law enforcement duties.

That is very nice that you were told something by DPS, but they have no authority to chnage the law, only the legislature does. So you and they (if you were in fact told what you said) are incorrect.

This is from the CURRENT Texas Constitution and Statutes.

Sec. 30.06. TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN. (a) A license holder commits an offense if the license holder:

(1) carries a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent;
...
(f) It is a defense to prosecution under this section that the license holder is volunteer emergency services personnel, as defined by Section 46.01.


Sec. 46.01. DEFINITIONS. In this chapter:
...
(18) "Volunteer emergency services personnel" includes a volunteer firefighter, an emergency medical services volunteer as defined by Section 773.003, Health and Safety Code, and any individual who, as a volunteer, provides services for the benefit of the general public during emergency situations. The term does not include a peace officer or reserve law enforcement officer, as those terms are defined by Section 1701.001, Occupations Code, who is performing law enforcement duties.

Tex1961 wrote: ↑Thu Dec 28, 2023 1:49 pm

RoyGBiv wrote: ↑Thu Dec 28, 2023 1:19 pm

tbrown wrote: ↑Sun May 28, 2017 8:38 pm Get a Red Cross CPR card. That's what I did so I can ignore 30.06 signs starting 9/1.

❄

If I was on the jury, I'd do my best to get you an acquittal, but, IMO a CPR card doesn't meet the volunteer definition.
I'm not going to ask for the AG to give an opinion, but being a test case can be expensive and cost you your license.

Even though it's a 5 year old post, the only thing that can get you legally past a 30.06 is if your are a One duty first responder with a ODFR certificate from the state. Volunteers do NOT qualify for this certificate.

That is incorrect. Volunteer emergency services personnel have a carve out in 30.06/7. If one wanted to carry at the Perot museum and they did not have metal detectors, if that person was a VESP, then they could do so legally.

Sec. 30.06. TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN.
(a) A license holder commits an offense if the license holder:
....
(f) It is a defense to prosecution under this section that the license holder is volunteer emergency services personnel, as defined by Section 46.01.

Sec. 46.01. DEFINITIONS. In this chapter:
(18) "Volunteer emergency services personnel" includes a volunteer firefighter, an emergency medical services volunteer as defined by Section 773.003, Health and Safety Code, and any individual who, as a volunteer, provides services for the benefit of the general public during emergency situations.

Join the Texas State Guard...I'm looking into the maritime division, but I want to be an officer, since I was one in the the US Navy...

Maybe I'll just get a CPR card.