Excellent rabbit trail LT.
I too hope HMB would come out of the woodwork and explain his own opinions, since he wrote off all ours as merely just that, "opinions."
We should make that rant on public servitute required reading kids in schools. :)
+1 that unfortunately the only way to safely exercise your 2A rights is to get licensed here.
-nick
Driving around with my gun without a CHL. In plain English.
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Charles L. Cotton
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hmb:
I follow the TDCAA forum from time to time and some of the prosecutors agree with you, some do not.
I do have a question for you, based upon the entirely new section in the Penal Code dealing with statutory presumptions. Here is the operative language:
So here is my question. Is it your position that the court can rely upon evidence the jury cannot hear, as a matter of law, to refuse to submit the presumption to the jury? This is precisely what would have to happen for a judge to refuse the presumption based upon "other" evidence, since the only thing the jury can consider is evidence on the five elements of the presumption. I've tried a lot of cases over the years and I've never even seen it attempted, much less succeed. I want to be candid, I'm a civil trial attorney, not a criminal lawyer.
Chuck Rosenthal has repeatedly stated publically (radio/TV) that this "presumption is just like the presumption of innocence that prosecutors rebut every day." This is clearly not the case! It's an entirely new presumption with a new statutory limitations on how it can be rebutted.
Regards,
Chas.
I follow the TDCAA forum from time to time and some of the prosecutors agree with you, some do not.
I do have a question for you, based upon the entirely new section in the Penal Code dealing with statutory presumptions. Here is the operative language:
This new code provision is clear - if there is evidence in on the five elements of the presumption (which is easy), the issue must go to the jury. The only exception is if the court is convinced that the evidence as a whole precludes a finding of traveling.TPC§2.02 wrote:Sec. 2.05. PRESUMPTION. (a) Except as provided by
Subsection (b), when [When] this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:
(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; . . .
So here is my question. Is it your position that the court can rely upon evidence the jury cannot hear, as a matter of law, to refuse to submit the presumption to the jury? This is precisely what would have to happen for a judge to refuse the presumption based upon "other" evidence, since the only thing the jury can consider is evidence on the five elements of the presumption. I've tried a lot of cases over the years and I've never even seen it attempted, much less succeed. I want to be candid, I'm a civil trial attorney, not a criminal lawyer.
Chuck Rosenthal has repeatedly stated publically (radio/TV) that this "presumption is just like the presumption of innocence that prosecutors rebut every day." This is clearly not the case! It's an entirely new presumption with a new statutory limitations on how it can be rebutted.
Regards,
Chas.
Thank you again Charles for all you do for CHLers
Carry 24-7 or guess right.
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stevie_d_64
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Charles L. Cotton
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No - I've actually been lurking alot, but all I have time to do is see what's being posted. No time to really write out replies. I'm not even supposed to on here now, we're simulating life in tribal africa, which doesn't involve power or running water, but I had to finish up some work and thought I would drop in today and say hi. I added a short info in the new (and awesome) prayer requests forum.Charles L. Cotton wrote:gigag04, it's good to hear from you! Are you back home now?
Chas.
If I can find your email address I will email you a more thorough update if you're curious. I really do miss all you guys!
-nick
Opportunity is missed by most people because it is dressed in overalls and looks like work. - Thomas Edison
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kauboy
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I'm curious about where our little prosecuter friend ran off to.
I was reading around on the site that Charles mentioned and found an interesting discussion on the interpretation of "presumption". Apparently it only pertains to a trial. The jury is told that they must presume that the defendant was traveling unless the prosecutor can prove that one of the five criteria is not met. That is why it is called a "defense to prosecution'. It is not a "defense to arrest", which sucks. You can't blame anybody but the legislators that authored this for their screw up. However, if it is obvious that the officer on scene can determine that all 5 criteria are sufficiently met, then one must raise the question, "Why would you make the arrest and provoke a trial when aquittal is the only result?" This is were officers can get into civil cases, and have to defend their actions when it was obvious that the person would not be found guilty of Unlawfully Carrying a Weapon(UCW). It was a very interesting read, and opened my eyes to a District Attorney's perspective. They are not concerned with the 5 criteria, they are concerned that the presumption is only applicable once an arrest has been made and a jury is required. So technically, they are doing their job properly by having officers arrest people that have a handgun in their vehicle. But, it should be stressed to the officers that they should make extremely accurate judgement calls to avoid a pointless trial that could end them up in a civil case. IOW, if the officer has good evidence that the person in question could fall out of the 5 criteria, then, and only then, should an arrest be made. Then the presumption will cover the defendant unless the prosecution can prove that at least one of the 5 criteria were not met.
Anyone else see it this way?
I was reading around on the site that Charles mentioned and found an interesting discussion on the interpretation of "presumption". Apparently it only pertains to a trial. The jury is told that they must presume that the defendant was traveling unless the prosecutor can prove that one of the five criteria is not met. That is why it is called a "defense to prosecution'. It is not a "defense to arrest", which sucks. You can't blame anybody but the legislators that authored this for their screw up. However, if it is obvious that the officer on scene can determine that all 5 criteria are sufficiently met, then one must raise the question, "Why would you make the arrest and provoke a trial when aquittal is the only result?" This is were officers can get into civil cases, and have to defend their actions when it was obvious that the person would not be found guilty of Unlawfully Carrying a Weapon(UCW). It was a very interesting read, and opened my eyes to a District Attorney's perspective. They are not concerned with the 5 criteria, they are concerned that the presumption is only applicable once an arrest has been made and a jury is required. So technically, they are doing their job properly by having officers arrest people that have a handgun in their vehicle. But, it should be stressed to the officers that they should make extremely accurate judgement calls to avoid a pointless trial that could end them up in a civil case. IOW, if the officer has good evidence that the person in question could fall out of the 5 criteria, then, and only then, should an arrest be made. Then the presumption will cover the defendant unless the prosecution can prove that at least one of the 5 criteria were not met.
Anyone else see it this way?
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Governments should be afraid of their people." - V
Governments should be afraid of their people." - V
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txinvestigator
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No, it is not a defense to prosecution. A defense to prosecution does not have to be disproved by the prosecutor.kauboy wrote:I'm curious about where our little prosecuter friend ran off to.
I was reading around on the site that Charles mentioned and found an interesting discussion on the interpretation of "presumption". Apparently it only pertains to a trial. The jury is told that they must presume that the defendant was traveling unless the prosecutor can prove that one of the five criteria is not met. That is why it is called a "defense to prosecution'. It is not a "defense to arrest", which sucks. ?
Text
§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.
Traveling is a non-applicability to 46.02. That means that if you are traveling, 46.02 DOES NOT APPLY. Nothing in 46.15 is a defense to prosecution.
*CHL Instructor*
"Speed is Fine, but accuracy is final"- Bill Jordan
Remember those who died, remember those who killed them.
"Speed is Fine, but accuracy is final"- Bill Jordan
Remember those who died, remember those who killed them.
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kauboy
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Specifically look at (b) since that is what we are dealing with here:
§ 2.05. PRESUMPTION. (a) Except as provided by
Subsection (b), when this code or another penal law establishes a
presumption with respect to any fact, it has the following
consequences:
(1) if there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury, unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption and the specific element to which it applies, as
follows:
(A) that the facts giving rise to the presumption
must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a
reasonable doubt the jury may find that the element of the offense
sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the
existence of such element, the state must prove beyond a reasonable
doubt each of the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the
existence of a fact or facts giving rise to the presumption, the
presumption fails and the jury shall not consider the presumption
for any purpose.
This is where I am reffering to, since the post formatter makes it look like a mess.
(b) When this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact, it
has the following consequences:
(1) if there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
(A) the presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B) if the state fails to prove beyond a
reasonable doubt that the facts giving rise to the presumption do
not exist, the jury must find that the presumed fact exists;
(C) even though the jury may find that the
presumed fact does not exist, the state must prove beyond a
reasonable doubt each of the elements of the offense charged; and
(D) if the jury has a reasonable doubt as to
whether the presumed fact exists, the presumption applies and the
jury must consider the presumed fact to exist.
The only way for the state to prove it is to send it to court and argue their case.
I still say its stupid for an officer to perform an arrest if the 5 criteria are met, but its a little more understandable from the DA's POV.
§ 2.05. PRESUMPTION. (a) Except as provided by
Subsection (b), when this code or another penal law establishes a
presumption with respect to any fact, it has the following
consequences:
(1) if there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury, unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption and the specific element to which it applies, as
follows:
(A) that the facts giving rise to the presumption
must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a
reasonable doubt the jury may find that the element of the offense
sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the
existence of such element, the state must prove beyond a reasonable
doubt each of the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the
existence of a fact or facts giving rise to the presumption, the
presumption fails and the jury shall not consider the presumption
for any purpose.
This is where I am reffering to, since the post formatter makes it look like a mess.
(b) When this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact, it
has the following consequences:
(1) if there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
(A) the presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B) if the state fails to prove beyond a
reasonable doubt that the facts giving rise to the presumption do
not exist, the jury must find that the presumed fact exists;
(C) even though the jury may find that the
presumed fact does not exist, the state must prove beyond a
reasonable doubt each of the elements of the offense charged; and
(D) if the jury has a reasonable doubt as to
whether the presumed fact exists, the presumption applies and the
jury must consider the presumed fact to exist.
The only way for the state to prove it is to send it to court and argue their case.
I still say its stupid for an officer to perform an arrest if the 5 criteria are met, but its a little more understandable from the DA's POV.
"People should not be afraid of their Governments.
Governments should be afraid of their people." - V
Governments should be afraid of their people." - V
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txinvestigator
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I agree with ya. I was just pointing out that a Defense to Prosecution is a different animal.kauboy wrote: The only way for the state to prove it is to send it to court and argue their case.
I still say its stupid for an officer to perform an arrest if the 5 criteria are met, but its a little more understandable from the DA's POV.
*CHL Instructor*
"Speed is Fine, but accuracy is final"- Bill Jordan
Remember those who died, remember those who killed them.
"Speed is Fine, but accuracy is final"- Bill Jordan
Remember those who died, remember those who killed them.
May be stupid for the officer to do it, but it is terribly expensive for the Citizen to defend it.
What we need is for a good lawyer to get arrested under the travelling law. He has a really good lawyer friend who is a friend of 2A, Strict Interpretation Of Law, willing to do ProBono for friend & the cause, & then we have case law & no financially ruined Joe Citizen. Just a DA w/ egg on his face.
What we need is for a good lawyer to get arrested under the travelling law. He has a really good lawyer friend who is a friend of 2A, Strict Interpretation Of Law, willing to do ProBono for friend & the cause, & then we have case law & no financially ruined Joe Citizen. Just a DA w/ egg on his face.
Carry 24-7 or guess right.
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Great idealongtooth wrote:May be stupid for the officer to do it, but it is terribly expensive for the Citizen to defend it.
What we need is for a good lawyer to get arrested under the travelling law. He has a really good lawyer friend who is a friend of 2A, Strict Interpretation Of Law, willing to do ProBono for friend & the cause, & then we have case law & no financially ruined Joe Citizen. Just a DA w/ egg on his face.
Russ
Russ
kw5kw
Retired DPS Communications Operator PCO III January 2014.
kw5kw
Retired DPS Communications Operator PCO III January 2014.
Yes But lets don't hold our breath, lest we turn BLUE. 
Carry 24-7 or guess right.
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