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Houston Unlawful Carrying of a Weapon Lawyer

Houston Unlawful Carrying of a Weapon Lawyer - Brian Foley - Board Certified in Criminal Law.



One of the crimes that is the easiest to get arrested for is the unlawful carrying of a weapon in Texas. It's Chapter 46, 4602 A1 is what we're gonna be talking about today, and that says 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. Okay, now there are some exceptions to this. You have to have the handgun in plain view, meaning it would be like, let's say, on the top of the center console, in the passenger seat, on the floor in the passenger seat, something like that. But we're going to look today at a specific case where it wasn't any of those things, and they still were in violation. Let's check out the case.


The case in question is Kelly versus State, and in that case, the court said that viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Kelly carried a handgun on or about his person in a motor vehicle. Well, what kind of vehicle was Kelly in? He was on a motorcycle, alright. And Kelly's argument was that the gun was in a saddlebag and therefore it was not sufficiently close to the motorcycle operator to be the equivalent of the interior of a car for purposes of the unlawful carrying of a weapon statute. Um, you know, the rear passenger seat is located behind the motor vehicle's operator; that is, you know, potentially something that you could look at and say maybe they're in possession. But inside the saddlebag, that seemed like a stretch.


Well, the court said that basically they did not believe that. They said this. I'm going to read from the case now. Kelly, the defendant in that case, additionally urges that the weapon was not "on or about his person" because he would have had to stop his motorcycle, turn off the engine, dismount, unstrap the duffel bag, and then open or unzip it before being able to retrieve the weapon. The court says that we first note that there is no evidence to support Kelly's contention concerning the steps required. So that's a good lesson for defense attorneys. If you are in a situation where you're trying to help your client and you want to present a defense like this, you have got to get that duffel bag. I would bring the whole thing into the courtroom and show how long it takes to get in there. If, in this case, these lawyers had shown that it took five minutes, they had to unzip four different pockets and then get to the firearm, you know, maybe it's not on or about his person in that situation. Maybe it still is, but at least the court wouldn't be able to say, "Well, you just didn't even put any evidence on the record."


So one thing that we can look for here in the brief description, the background—let me go ahead and give you the background. It was an El Paso case, so it's Daniel Gomez, an officer with the El Paso Police Department. He observed a motorcycle speeding at approximately 7:30 on the morning of October 6th, 2017. He engaged his radar and determined that the motorcycle was traveling 50 miles per hour in a 35 mph Zone. That would give him the reasonable suspicion to pull the motorcycle over and begin the investigation. While pursuing the motorcycle to initiate a traffic stop, he noticed that the driver was wearing the colors of the Bandidos Motorcycle Club.


He then called for backup according to Police Department protocol. Kelly, who was the driver and the lone occupant of the motorcycle, pulled over and was compliant with Officer Gomez's request for identification. He admitted he was a gang member, and a Bandidos membership card was found in his wallet. He also admitted that a handgun and a small zip duffel bag that was attached to the rear seat of the motorcycle with bungee cords. A search of the duffel bag with Kelly's consent revealed a loaded 22-caliber S Sour pistol resting at the top of the bag near the zipper. Okay, so there's another good point. You do not have to give consent to search for things like that. If he had not given consent to search and there was no signal to the officer that he was in possession of a firearm or something like that, we don't have a smell of marijuana to try to get probable cause to search. They may have never been able to search that duffel bag, or if they did search it anyway, it may have been an illegal search. So the reason that it was UCW here, because obviously if it's inside that duffel bag, it's not in plain view like we were talking about earlier. Most people, when they get a UCW, it's because it's in plain view or they're committing some other kind of a crime. This one was because of their membership in a criminal street gang. They didn't contest that the word, the term "criminal street gang" is defined in the codes and it says you have to have like a color or a banner or symbol or something like that and engaging in illegal activities. The Bandidos is a motorcycle club and so if they didn't have specific evidence that he was in that or hadn't admitted to it, they may also have a difficulty proving the UCW in this case.


Well, I hope this has been helpful for you. We've gone over a case law on it, just showing you how far the courts are willing to go to say that you're in possession of something like this. Uh, that may be true as well if it was drugs and you have like a possession of a controlled substance case. If you like what you saw, don't forget to like and subscribe, and we will see you next time.

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