Unlawful Carrying of a Weapon Case Dismissed

Mark this as the second time in recent memory that I have had an unlawful carrying of a weapon case dismissed on trial day, and boy was I ready to try this case.  I put in all the hard work, like any good criminal defense lawyer would, to be ready to try the case, but to be fully frank, there was a lot up luck in this gun charge dismissal.  At the end of the day, this is another happy client who was referred to me by a well respected lawyer.

What Is Unlawful Carrying of a Weapon?

Gun owners are actually under pretty strict rules in Texas about how, when, and where they can carry their weapons.  A lot of this depends on whether the weapon owner has a Concealed Handgun License, or CHL.  Texas Penal Code section 46.02 is the unlawful carrying of weapons statute.  It says:

Sec. 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:

(1) on the person’s own premises or premises under the person’s control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

(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 or watercraft that is owned by the person or under the person’s control at any time in which:

(1) the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.

(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

(a-3) For purposes of this section, “watercraft” means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

In many criminal cases, a person is charged with unlawful carrying a weapon when they are arrested for committing a ‘Class B’ crime or greater, such as possession of marijuana.  I also see this gun crime charged folk who don’t have a concealed carry license are allegedly driving around with the gun in plain view (unconcealed).  It seems so backwards.

This case, where I won the dismissal, was a result of the third common reason for an unlawful carrying of a weapon charge: when the accused is not inside or directly en route to his vehicle.  Here, the government claimed that my client got out of his car, walked towards his ex-girlfriend who was exiting a bar, and took out a gun from his waist band while talking smack to her and ordering her into his car waving the gun around.  That was one version of the facts.  Another version of the facts was that my client just lifted his shirt to his ex-girlfriend and her friend to show that he had a gun.  The third version of events was that my client pointed the gun at his ex-girlfriend and ordered her into his and that she left with him.

Then, there was our version of the facts:  There was never a gun outside the vehicle.  No one ever saw the gun.  I stress “our version of the facts” because I so often see lawyers that take the complainant’s, the police officers’, and the states’ version of the facts as true.  They only true if there is no other reasonable possibility regarding them.  A fact is not true unless it is a fact beyond change.  Otherwise, you as the lawyer allow the fact to be true because you do not challenge it from every angle.

There were many variables at play here that made this a great case to take to trial. There were so many raw emotions.  Every trial boils down to emotions.  There was a bar and alcohol.  Alcohol, it can be argued, alters perceptions, makes people emotional, it helps be exaggerate and even lie.  There was the scene itself.  The 911 caller was too far away from my client to see anything, and half the stuff he said on the 911 call proved to not be true.  I always wonder in cases like this that if the witnesses were believed, why was the accused charged with a more serious crime such as aggravated assault?  Finally, and this is where the luck comes into play, there was a recantation from the witness who would be considered the victim.

The witness showed up to court at our pre-trial setting.  She and I sat down in a private room and I interviewed her.  As any smart lawyer would do, I recorded that interview.  She recanted. She told me it was completely exaggerated.  Once I got her recorded statement, I let the prosecutor know that the witness was here.  The prosecutor took her big notepad and disappeared for 30 minutes.  She walks back into the courtroom and doesn’t say a thing.  She huddles next to her boss and whispers away for a few minutes.  Remember, this was a case that the state really wanted to try because my client was on probation for DWI (another lawyer handled the DWI case).  I then ask the prosecutor if the witness recanted to her too.  Over the next few weeks until our trial setting different prosecutors told me different things.  One said we are dismissing the unlawful carrying weapons case.  Another prosecutor said we might dismiss the case.  A third said we will probably dismiss it if your client pleads on the DWI.

This weapons case, by the way, was in Harris County Criminal Court 5.  Judge Harris is the judge in that criminal court.  She runs unique ship.  She busts lots of pleas.  She wants cases that aren’t going to be tried to be pleaded early.  Very early on in this case, Judge Harris tried to urge me to urge my client to plea.  Judge Harris urged me to disclose what I thought were the weaknesses with the state’s case.  Judge Harris urged me to disclose my theory of defense.  Judge Harris even inferred in open court that I am not a good lawyer and did not know the law.   Because the presumption of innocence is, in my experience, a foreign concept in that court, she presumes all accused folks are guilty.  For no reason at all, really, other than insisting on not disclosing my theory of the case, she gave me her O’Connnor’s code book and told me to open it so I could look for a defense.  You know what I did?  I took that book to counsel table and opened it up.  I then returned it to her and continued to set my case for trial.  I set my case for trial that was dismissed.

Speaking of the dismissal, I had told the chief prosecutor that we were not accepting a dismissal that was based on my client pleading true to the motion to revoke probation (for technical violations) on his DWI case.  I felt that justice would not be done (the prosecutor’s job) unless the dismissal was for the right reason.  Many times, one case is dismissed because the accused’s pleads guilty on another case.  The prosecutor has to write on her motion for dismissal why the case was dismissed.  When a case is dismissed as part of a plea bargain, that may effect the accused’s ability to get an expunction, or at least the timing of the expunction.  When a case is dismissed because the state cannot prove their case, that is a different thing.  Here, my clients unlawfully carrying of a weapon case was dismissed because the state could not meet its burden of proof.  When the prosecutor handed me the dismissal, it said the gun case was dismissed because my client plead guilty in another case.  I very quickly told the prosecutor that was not the case and that we had an agreement about why the gun case is dismissed.  To her credit, the prosecutor wrote a new motion to dismiss stating the real reason why the case was dismissed.  Next stop: Expunction.

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