Sept. 1 - Welcome to Dodge City

[carlson1]

Txinvestigator post is deleted. If you have a problem with a moderator you may contact Mr. Cotton by PM, but we will not allow public appeals.

[stroo]

I agree with you on the legislative intent of the presumption law. But it was not clearly put into the language of the statute. 1815 fixes that as of today.

[Liberty]

As I got up this morning i didn't hear any gunfire. There was no rioting in the streets, I didn't notice any fires in the distance. But wait ... Is that cannon fire I hear in the distance.

Naaa .. its just Thunder out over the bay/ Looks like a normal Monday morning.. How has civilization held itself together for the rest of our fine stat?

[longtooth]

I agree Liberty. I will go to town later this morning & find all things normal there too.

Coarse normal here means you might ought to have one a little closer than in the vehicle.

"Wait right here Mr. Mugger, I'll be right back w/ my pistol. Its in my truck."

Mugger: as he falls down laughing you can then call the police. He should still be when they get there.

[RPBrown]

Just looked. No blood anywhere here.

That may change in a few minutes though, have to change the alternator on daughters car. Does knuckle blood count?

[flintknapper]

Just looked. No blood anywhere here.

That may change in a few minutes though, have to change the alternator on daughters car. Does knuckle blood count?

[Crossfire]

Naaa .. its just Thunder out over the bay/ Looks like a normal Monday morning.. How has civilization held itself together for the rest of our fine stat?

Actually, it's still Saturday in North Texas. Guess Monday comes earlier on the coast. But, good to know things are still holding together come Monday!

[flintknapper]

Naaa .. its just Thunder out over the bay/ Looks like a normal Monday morning.. How has civilization held itself together for the rest of our fine stat?

Actually, it's still Saturday in North Texas. Guess Monday comes earlier on the coast. But, good to know things are still holding together come Monday!

LOL,


Despite the fact that Texas is the largest of the 48 contiguous states, we don't yet have separate time zones.

Either that, or the weekend went especially fast.

[Liberty]

Naaa .. its just Thunder out over the bay/ Looks like a normal Monday morning.. How has civilization held itself together for the rest of our fine stat?

Actually, it's still Saturday in North Texas. Guess Monday comes earlier on the coast. But, good to know things are still holding together come Monday!

LOL,


Despite the fact that Texas is the largest of the 48 contiguous states, we don't yet have separate time zones.

Either that, or the weekend went especially fast.

I guess I was tying to blow away my 3 day weekend before it even started!

[quidni]

Despite the fact that Texas is the largest of the 48 contiguous states, we don't yet have separate time zones.

<ahem>

Separate time zones, yes. International Date Line, no.

In a previous job, I lost count of how many East Texas customers got flustered because we didn't answer the phone until we opened at 8:00 AM... Mountain Time. They'd try calling at 8:00 AM... Central. One lady actually asked me, "But, aren't you on Texas time?"

(What's really fun is conversing via IM with a friend who lives in New Zealand... where it actually IS tomorrow already!)

[stroo]

I drove around quite a bit today. Don't believe I saw a single shooting. I did see several guns ...... although they were in the display case at a pawn shop.

[flintknapper]

Despite the fact that Texas is the largest of the 48 contiguous states, we don't yet have separate time zones.

<ahem>

Separate time zones, yes. International Date Line, no.

In a previous job, I lost count of how many East Texas customers got flustered because we didn't answer the phone until we opened at 8:00 AM... Mountain Time. They'd try calling at 8:00 AM... Central. One lady actually asked me, "But, aren't you on Texas time?"

(What's really fun is conversing via IM with a friend who lives in New Zealand... where it actually IS tomorrow already!)

Interesting, didn't know that.

[mr surveyor]

for some of us, Saturday IS the sixth Monday of the week, then, finally there is Sunday

[stevie_d_64]

I am not aware of any cases under the presumption that have made it to an appellate court. While I don't particularly like Rosenthal's interpretation, I think he is right and TSRA is wrong. Certainly the courts could go with him particularly if you had a case where involving someone simply going to the convenience store two blocks from the home to pick up some beer. The problem is that the presumption statute only created a presumption; it did not on its face redefine "traveling". Therefore it left room for Rosenthal's interpretation.

1815 on the other is pretty clear and does not leave room for that kind of interpretation.

I agree...

You've made a couple of great points...And for the last couple of years we had to deal with Chuck Rosenthal's interpretation of what was voted on and approved and signed by the govenor into law back in 2005...

I agree that technically he (Rosenthal and his merry band of big county DA's) was right...And I agree that the "wiggle" room was exploited for a real reason...

But it didn't have to be done that way, and the fix that we had to push through this session was certainly needing to be done...But instead, the agenda of a few, forced our legislative branch to have to dig again and resolve something that could have been handled with the proper interpretation (of the intent of the government) by our enforcement in this state (for the most part)...

All I am saying is that they did not need to bust our chops like they did the last two years...A lot less has been done on more important things than this issue, and they know it...And its hopefully going to cost them dearly...

There are a few folks like me, on this forum, that know Chuck Rosenthal personally, I've supported him in the past, and this is one issue that will force me to reconsider that support when he has to campaign again...

I don't like being this way, but he knows this is a big issue with a lot of people...

Not that my opinion in the bigger scheme of things matters a whole heck of a lot I guess...

[Charles L. Cotton]

I respectfully disagree. This is Rosenthal's argument, but he is missing a key point. When deciding whether to submit the presumption to the jury, the judge cannot consider evidence the jury wouldn't be able to hear. The entirely new TPC §2.05(b), is a significant change in the way statutorily created presumptions are handled. Although Rosenthal was the leader in attacking HB823, many of the prosecutors posting on their forum acknowledged that TPC §2.05(b) was a sea-change in the way statutory presumptions are handled. Many, though not all, of those posting felt the only way to rebut the presumption was to disprove one of the five qualifying elements. If there is "sufficient evidence" to support the existence of the presumption, it must be submitted to the jury, unless the judge determines the evidence as a whole clearly precludes a finding beyond a reasonable doubt by the jury that the presumed fact exists.

Here is the problem Rosenthal ignores. During the course of the trial, the judge has to determine what evidence is admissible and part of that decision is based upon whether the evidence is relevant to the fact issue the jury must answer. The Court must also weigh the prejudicial effect the evidence may have on the jury's deliberation. All a defendant must do to get the presumption submitted to the jury is introduce "sufficient evidence" to establish the existence of each of the five elements of the "traveling presumption." If he does that, then the jury gets the "presumption" instruction. However, if the Court has allowed evidence the jury cannot consider, then I believe it is clearly reversible error because of the prejudicial effect on the jury's determination. If the judge does not allow extraneous evidence such as the infamous "fresh groceries in the back seat" observation, then he/she has no basis upon which to deny submitting the "traveling presumption" to the jury. The Court can consider only evidence admitted at the time of trial.

Another reason I think Rosenthal fails to understand the significance of TPC §2.05(b) is his statement to the media that, "This is no different from the presumption of innocence we have to rebut in every trial." Oh yes it is! It's even significantly different from the "old" method of handling presumptions found in TPC §2.05(a).

As you say, the "traveling presumption" is no longer a problem, since HB1815 took care of it in clear and unambiguous language. HB1815 also repealed the "traveling presumption" in TPC §46.15(i), but the method of handling statutorily created presumptions set out in TPC §2.05(b) remains.

This is very significant, since the new "presumption of a reasonable belief that deadly force was immediately necessary" set out in the new Texas "Castle Doctrine" (SB378) will be applied to individual cases using TPC §2.05(b) procedures.

I know you are an attorney, so I know I'm telling you what you already know. Please don't be offended, I went into this detail for our non-lawyer brethren.

Chas.

P.S. Rosenthal was correct when he said an arrest could be made, because presumptions are tools to be used in court, not a bar to an arrest.