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

seamusTX wrote:

Charles L. Cotton wrote:... 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 wrote:Remember that 46.035 requires intent but 46.02 only requires recklessness.

Charles L. Cotton wrote: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.

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

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.