Legal Question

[WildBill]

This subject was brought up in Navyguy's post about the definition of concealed, reasonable person and plain view. http://www.texasshooting.com/TexasCHL_F ... =7&t=15636

The Texas Government Code states:
Sec. 411.171. DEFINITIONS. In this subchapter:
(3) "Concealed handgun" means a handgun, the presence of which is not openly discernible to the ordinary observation of a reasonable person.

The Texas Penal Code states:
§ 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person
commits an offense if the person intentionally, knowingly, or
recklessly carries on or about his or her person a handgun, illegal
knife, or club if the person is not:
(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 that is owned by the person
or under the person's control at any time in which:
(1) the handgun is in plain view;

How are these two statutes related? Does the definition in Sec. 411.171 have any legal meaning if someone is prosecuted under Sec 46.02? Or is the definition just a definition within the context of the Government Code? Would the procecutor have to prove that the handgun was in plain view and was discernible to the ordinary observation of a reasonable person.

[seamusTX]

IMHO, IANAL, etc., the definition in GC 411.171 applies only to CHL holders. It is relevant to PC 46.035, which makes it an offense for a CHL holder to intentional fail to conceal.

The phrase plain view in PC 46.035 has been ruled on many times, as Steve Rothstein mentioned in another thread.

- Jim

[Charles L. Cotton]

There is no direct connection between the two statutes, since TPC §46.02 doesn't adopt the definition of a "concealed handgun" found in Tex. Gov't Code §411.171(3). It's also an interesting bit of trivia that TPC §46.035(a) dealing with intentional failure to conceal by a CHL also doesn't adopt this definition, although subpart (f) does define other terms. (That'll drive the DA's crazy!)

Although the §411.171(3) definition isn't controlling, it is what attorneys call "persuasive authority." This is just a fancy way of saying the courts will look elsewhere in the code(s) dealing with the same subject matter to see if there is a "helpful" definition that doesn't subvert legislative intent. (This is precisely why I argued for the current definition of "premises" so that the case law dealing with the Alcoholic Beverage Code wouldn't come into play. Those cases, and now the Alcoholic Beverage Code itself, define "premises" to include everything on the real estate.) So it is quite likely that what is "concealed" would be determined by reference to the §411.171(3) definition, but what constitutes "in plain view" may or may not utilize that statutory definition, depending upon the jurisdiction in which the case is brought. BTW, I don't think the §411.171(3) definition is all that clear, but perhaps that was the intent?

Chas.

[WildBill]

Charles - Thanks for your response. I learned another legal term today - "persuasive authority."

So am I correct that a person would not be charged with §6.42 Failure To Conceal Handgun, but rather would be charged with:

§ 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE
HOLDER. (a) A license holder commits an offense if the license
holder carries a handgun on or about the license holder's person
under the authority of Subchapter H, Chapter 411, Government Code,
and intentionally fails to conceal the handgun.

[seamusTX]

... I don't think the §411.171(3) definition is all that clear, but perhaps that was the intent?

It seems to me that without 411.171, any bulge or visible holster clip could be used to concoct a charge of failure to conceal.

- Jim

[aardwolf]

Remember that 46.035 requires intent but 46.02 only requires recklessness.

[Charles L. Cotton]

... I don't think the §411.171(3) definition is all that clear, but perhaps that was the intent?

It seems to me that without 411.171, any bulge or visible holster clip could be used to concoct a charge of failure to conceal.

- Jim

I agree.

Chas.

[Charles L. Cotton]

Remember that 46.035 requires intent but 46.02 only requires recklessness.

This is a very important distinction!!

Take this hypothetical: I'm driving in rush hour traffic on a Houston freeway with my pistol in the passenger seat under a newspaper (very poor practice) when I have to hit the brakes hard and the pistol flies into the passenger floorboard. As a CHL, I didn't intentionally fail to conceal it, so I didn't violate TPC §46.032(a). If I'm not a CHL, then I may very well be guilty of violating TPC §46.02 (A-1) because it came to be "in plain view" due to me "recklessly" driving with it unsecured in the passenger seat, knowing that stopping quickly on Houston freeways is an everyday occurrence. (This hypothetical ignores the issue of whether I'm carrying under the authority of my CHL when I have a handgun in my car.)

Chas.

[ScubaSigGuy]

Post deleted to post elswhere as a new question.

[Liko81]

There is no direct connection between the two statutes, since TPC §46.02 doesn't adopt the definition of a "concealed handgun" found in Tex. Gov't Code §411.171(3). It's also an interesting bit of trivia that TPC §46.035(a) dealing with intentional failure to conceal by a CHL also doesn't adopt this definition, although subpart (f) does define other terms. (That'll drive the DA's crazy!)

Although the §411.171(3) definition isn't controlling, it is what attorneys call "persuasive authority." This is just a fancy way of saying the courts will look elsewhere in the code(s) dealing with the same subject matter to see if there is a "helpful" definition that doesn't subvert legislative intent. (This is precisely why I argued for the current definition of "premises" so that the case law dealing with the Alcoholic Beverage Code wouldn't come into play. Those cases, and now the Alcoholic Beverage Code itself, define "premises" to include everything on the real estate.) So it is quite likely that what is "concealed" would be determined by reference to the §411.171(3) definition, but what constitutes "in plain view" may or may not utilize that statutory definition, depending upon the jurisdiction in which the case is brought. BTW, I don't think the §411.171(3) definition is all that clear, but perhaps that was the intent?

Chas.

I agree with this, but would like to point out something. Concealed means concealed, and plain sight means plain sight. They are opposites, but "the definition of "plain sight" is not "not concealed" and vice versa, at least not legally. In other words, there's a spectrum of grey area that could either be "plain sight" or "concealed", or neither, depending on case specifics, the statute that applies, and the judge/jury.

I think the difference lies in two major thresholds; at what point a stored or carried handgun becomes noticeable to observation, and at what point there can be no question that the object is a handgun. If no-one sees it, it's concealed and not in plain sight, pure and simple. If someone sees it, it's no longer concealed (we won't get into printing; whether someone thinks it MAY be a gun or something else doesn't matter) but not yet in plain sight. Plain sight requires, once the object is noticed, that a reasonable person could not come to any other conclusion than it is a handgun.

This definition still poses grey area. Suppose you have a triangular gun case. Such a shape is virtually never used for anything else with the possible and rare exception of lunch. If there is a gun in that case, is it in plain sight if the case is left on the front seat? Another situation is when a gun is not in plain sight only because of the person's body position. A gun kept at 4:00, or under a person's leg, or in the door of the vehicle, is not in plain sight when the person is in the seat and the door is closed, but becomes so very quickly when a person steps out of the car, and depending on the circumstances there may be no way to move the gun without it becoming plainly visible. I think you may be safe on that second count; the law cannot compel the performance of an impossibility, so you cannot be required to move the gun under an officer's watchful eye while it remains out of plain sight. In addition, prosecuting an individual for breaking a law by unlawfully carrying, when the person only came into violation of the law in the first place by obeying the commands of an officer, sounds suspiciously like entrapment.

[aardwolf]

It may help to do some reading on the plain view doctrine.

[Charles L. Cotton]

It may help to do some reading on the plain view doctrine.

That doctrine isn't limited solely to what is in "plain view." It encompasses the legality of the LEO being where he/she was when he saw evidence; was the object/evidence immediately recognizable as being related to criminal activity and more. While it may be helpful in a warrantless search defense in a criminal prosecution, I'm not sure it would be helpful to a citizen trying to decide what constitutes in "plain view."

Here is a discussion from a Corpus Christi case:

The Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution guarantee the right to be secure from unreasonable searches and seizures made without probable cause. U.S. Const. amend. IV; Tex. Const. art. I, § 9; see Walter v. State, 28 S.W.3d 538, 540-41 (Tex. Crim. App. 2000). Police entry into a home without consent is a search and subject to the protections of the Fourth Amendment. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991) (en banc). Warrantless intrusions and searches are presumptively unreasonable. United States v. Karo, 468 U.S. 705, 717 (1984). A warrantless search is permissible only in rare circumstances. Katz v. United States, 389 U.S. 347, 357 (1967). The burden of proving any exception to the warrant requirement falls on the prosecution. McDonald v. United States, 335 U.S. 451, 455-56 (1948).

"No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). An exception is the plain view doctrine. The plain view doctrine provides that, if an officer perceives a suspicious object while lawfully engaged in an activity in a particular place, that officer may immediately seize the object. Zayas v. State, 972 S.W.2d 779, 785 (Tex. App.–Corpus Christi 1998, pet. ref'd.) (citing Texas v. Brown, 460 U.S. 730, 739 (1983); Harris v. United States, 390 U.S. 234, 236 (1968) (per curiam); Clark v. State, 548 S.W.2d 888, 889 (Tex. Crim. App. 1977)). Such seizure is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. Id. (citing Arizona v. Hicks, 480 U.S. 321, 326-37 (1987)).

Items in "plain view" may be seized by law enforcement personnel if (1) the initial intrusion was proper, that is, the police have a right to be where they are when the discovery is made; and (2) it is "immediately apparent" to the police that they have evidence before them (probable cause to associate the property with criminal activity). Walter, 28 S.W.3d at 541 (citing Horton v. California, 496 U.S. 128, 134-36 (1990)); Haley v. State, 811 S.W.2d 600, 603 (Tex. Crim. App. 1992) (en banc). The incriminating nature of an item is "immediately apparent" if the officer has probable cause to believe that the item is either evidence of a crime or contraband. See Brown, 460 U.S. at 742. Probable cause does not demand any showing that such a belief be correct or more likely true than false. Footnote Id.