"Criminal Motorcycle Gang" and LTC

[ScottDLS]

Correct, the reason I am asking is the section in GC 411 subchapter H regarding carrying in a motor vehicle without a LTC has Criminal Street Gang as a defined in 71.01 as a disqualifier, but does NOT really address if the individual has an LTC. Would the normal background check for issue of an LTC discover whether or not some one is a member of a 71.01 defined group? I don't think so as I cannot recall that question being asked on the application.

Will definitely be an interesting case to watch specifically for 1st Amendment rights regarding freedom of association as this individual had no criminal record.

This debate has come up many times..If you have an LTC and are in a motor vehicle which set of rules .restrictions and laws apply?
As its been pointed out, nothing governing LTC seems to have a restriction reference "Criminal Street Gang " As this person was charged anyway, the ADA must be charging him under rules according to MPA..thus, this DA at least is implying MPA is applicable while in a vehicle, not LTC and now my head hurts.....

The crime of unlawfully carrying a weapon is defined in TXPC 46.02. There are exceptions (technically defenses to prosecution) laid out in 46.15. Being a LEO, Fed, having LTC, traveling, sporting activity, etc. If the person charged has a 46.15 exception (defense) that applies, the prosecution must refute it beyond a reasonable doubt at trial if the accused raises it. Whether the accused is a member of a "criminal street gang" is irrelevant to the Defense, so if it is raised it should be refuted beyond a reasonable doubt. I don't understand why the judge is supposedly not allowing the lawyer to present the Defense. Unless there are other unreported details, it seems that the judge is not following the law.

[Liberty]

The crime of unlawfully carrying a weapon is defined in TXPC 46.02. There are exceptions (technically defenses to prosecution) laid out in 46.15. Being a LEO, Fed, having LTC, traveling, sporting activity, etc. If the person charged has a 46.15 exception (defense) that applies, the prosecution must refute it beyond a reasonable doubt at trial if the accused raises it. Whether the accused is a member of a "criminal street gang" is irrelevant to the Defense, so if it is raised it should be refuted beyond a reasonable doubt. I don't understand why the judge is supposedly not allowing the lawyer to present the Defense. Unless there are other unreported details, it seems that the judge is not following the law.

Please Keep in mind this is Waco. History repeats itself and justice probably has nothing to do with this.

[WildBill]

The crime of unlawfully carrying a weapon is defined in TXPC 46.02. There are exceptions (technically defenses to prosecution) laid out in 46.15. Being a LEO, Fed, having LTC, traveling, sporting activity, etc. If the person charged has a 46.15 exception (defense) that applies, the prosecution must refute it beyond a reasonable doubt at trial if the accused raises it. Whether the accused is a member of a "criminal street gang" is irrelevant to the Defense, so if it is raised it should be refuted beyond a reasonable doubt. I don't understand why the judge is supposedly not allowing the lawyer to present the Defense. Unless there are other unreported details, it seems that the judge is not following the law.

Please Keep in mind this is Waco. History repeats itself and justice probably has nothing to do with this.

Maybe the judge wants the case to go to an appellate court to clarify the law.
If the person arrested was not wearing his gang colors then the LEO would have no cause to arrest the person unless he was
in the process of committing a crime. It seems like the law is a case of "guilt by association".

[DocV]

The crime of unlawfully carrying a weapon is defined in TXPC 46.02. There are exceptions (technically defenses to prosecution) laid out in 46.15. Being a LEO, Fed, having LTC, traveling, sporting activity, etc. If the person charged has a 46.15 exception (defense) that applies, the prosecution must refute it beyond a reasonable doubt at trial if the accused raises it. Whether the accused is a member of a "criminal street gang" is irrelevant to the Defense, so if it is raised it should be refuted beyond a reasonable doubt. I don't understand why the judge is supposedly not allowing the lawyer to present the Defense. Unless there are other unreported details, it seems that the judge is not following the law.

Please Keep in mind this is Waco. History repeats itself and justice probably has nothing to do with this.

Actually, it is not Waco but in Milam County. The story was reported by KCEN.
https://www.kcentv.com/article/news/loc ... d3b3b1eaa6

MILAM COUNTY, Texas — Milam County went forward with prosecuting Patrick Lewis Vaden, a member of the Bandidos Motorcycle Club, on Monday. This was after Vaden was accused of unlawfully carrying a weapon based on his affiliation with the Bandidos.

Vaden was pulled over in Nov. 2018 for going 67 mph in a 60 mph zone. He had a license to carry and had a gun when he was stopped.

More than 24 hours after jury selection, on Tuesday, the case abruptly ended in a mistrial and an appeal. Defense Attorney Kurt Glass told 6 News that Judge Steve Young ruled a mistrial after Glass refused to exclude a critical fact in the trial.

...
More information in the article.

[E.Marquez]

Defense Attorney Kurt Glass told 6 News that Judge Steve Young ruled a mistrial after Glass refused to exclude a critical fact in the trial.

So if a defense Attorney includes a piece of evidence the judge does not like, the judge can declare a mistrial?

It would make sense if something was declared not presentable away from the Jury, and then presented anyway in court, leaked, ect. But if that happened, would the defense Attorney not be at least verbally admonished if not worse? I would bet if that had been done it would have been reported.

[Charles L. Cotton]

I just read the article and the quote from Ch. 6's "legal expert." Her statement, while correct in very limited circumstances, is totally false as it applies to this particular case. "Legislative intent" is applicable only when 1) a statute is ambiguous; or 2) when two statutes are in conflict and they cannot be reconciled. Neither of those situations apply in this case.

The law could not be more clear; TPC §46.02 does not apply to LTCs. Thus, the Criminal Street Gang (TPC Chp. 71) provision of TPC §46.02(a-1)(2)(C) does not apply to the defendant in this case. The prosecutor was wrong to try to exclude this evidence and the judge was wrong to grant the request. Both should be disbarred. Unnecessarily and vexatiously increasing defense costs to a defendant must not be tolerated.

Chas.

[AJSully421]

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person:
(2) the person is:
(C) a member of a criminal street gang, as defined by Section 71.01.

Sec. 71.01. DEFINITIONS. In this chapter,
(d) "Criminal street gang" means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.

Sorry, but you have grossly misquoted this statute. First of all, (2)(C) that you quoted is under subsection (a-1), not under (a).

Above all. 46.15(b)(6) make anything that 46.02 says non applicable to an LTC holder, so it does not matter what one word of it says.

They were trying to railroad this guy... who may very well be a no-good rapscallion. But if they can make up ways to hang him out to dry, what protections do you or the rest of us have from similar treatment if we are someone who the local constabulary looks at with disdain?

They need to find a solid way to deal with this guy. The gun being carried with an LTC is not going to fly in any judicial system that can read.

[ScottDLS]

Defense Attorney Kurt Glass told 6 News that Judge Steve Young ruled a mistrial after Glass refused to exclude a critical fact in the trial.

So if a defense Attorney includes a piece of evidence the judge does not like, the judge can declare a mistrial?

It would make sense if something was declared not presentable away from the Jury, and then presented anyway in court, leaked, ect. But if that happened, would the defense Attorney not be at least verbally admonished if not worse? I would bet if that had been done it would have been reported.

It is declared, "inadmissable." The article is written with a definite agenda. Defense attorneys
"exclude critical facts" all the time in efforts to keep their clients out of jail. I suspect that the Defense shot his mouth off about something in open court, that had previously been ruled on because he didn't feel he could win his argument with what was left. Get a mistrial, get a new jury, and more time.

Note the way this is written: "...Glass refused to exclude a critical fact in the trial." Who decided the fact was critical? Obviously Glass, and obviously the reporter decided to agree with him. The Judge had already decided that it was not "critical", and/or was not pertinent to deciding on the charges offered.

The LAW makes the fact (that defendant had a LTC) critical. There doesn’t seem to be any legal basis for the judge to exclude this fact from coming out. Maybe the judge didn’t think the jury was going to convict so he declared a mistrial to give the prosecution another shot.

[srothstein]

Above all. 46.15(b)(6) make anything that 46.02 says non applicable to an LTC holder, so it does not matter what one word of it says.

I disagree. In general, this is the rule and you would be correct. But there is two narrow cases where 46.02 does apply to to an LTC. I do not know if either is applicable to this case or not though.

The law says:

(b) Section 46.02 does not apply to a person who:
(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster;

The first case is if the weapon was carried openly in some manner other than a belt or shoulder holster. For example, if he was carrying with the weapon shoved into his pocket, but the grip was sticking out and could be clearly seen then 46.02 would apply.

The second is actually more likely IMO. Now that the penalty for not showing your license to the officer has been removed, some people might have gotten a little laxer about actually having the license on them. But this law clearly states that to get the defense of having an LTC, the license must be carried on you at the time.

I believe from what has been reported that I have seen, this case is a travesty and should be dismissed. But I admit I have not seen any information on how he was carrying (openly or concealed and in a holster or not) and we do not know if he actually had his license on him at the time.

[philip964]

I just read the article and the quote from Ch. 6's "legal expert." Her statement, while correct in very limited circumstances, is totally false as it applies to this particular case. "Legislative intent" is applicable only when 1) a statute is ambiguous; or 2) when two statutes are in conflict and they cannot be reconciled. Neither of those situations apply in this case.

The law could not be more clear; TPC §46.02 does not apply to LTCs. Thus, the Criminal Street Gang (TPC Chp. 71) provision of TPC §46.02(a-1)(2)(C) does not apply to the defendant in this case. The prosecutor was wrong to try to exclude this evidence and the judge was wrong to grant the request. Both should be disbarred. Unnecessarily and vexatiously increasing defense costs to a defendant must not be tolerated.

Chas.

Thank you for clarifying all this.

Just because you don’t like someone, don’t like what he does or don’t like his organization, doesn’t mean the law shouldn’t be followed.

It’s just like TV last night.

[Charles L. Cotton]

Above all. 46.15(b)(6) make anything that 46.02 says non applicable to an LTC holder, so it does not matter what one word of it says.

I disagree. In general, this is the rule and you would be correct. But there is two narrow cases where 46.02 does apply to to an LTC. I do not know if either is applicable to this case or not though.

The law says:

(b) Section 46.02 does not apply to a person who:
(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster;

The first case is if the weapon was carried openly in some manner other than a belt or shoulder holster. For example, if he was carrying with the weapon shoved into his pocket, but the grip was sticking out and could be clearly seen then 46.02 would apply.

I disagree Steve. If the handgun is "in plain view" and is not in a belt or shoulder holster, then the LTC would have violated TPC §46.035(a), but TPC §46.02, including subparts §46.02(a-1)(1) and §46.02(a-1)(2)(C), do not apply to the LTC.

Chas.

[DocV]

This has been an informative and clarifying discussion.

In regard to this case, were the accused carrying a handgun "in plain view" the officer would have
articulated that as the reason for the stop rather than the "67 in a 60" speeding charge. Further, the
officer checked the accused's driver's license and was informed of the accused was listed on the
TxGANG database. Had a handgun been "in plain view" the officer would have performed an arrest
citing a §46.035(a) violation, would they not? The implication is the accused was carrying his firearm
as legally prescribed. Hence the inability to bring charges using §46.035(a). Stil, there is something has gone
horribly wrong here, but it is not the accused. It seems to me Charles pinned the problem in his earlier post.

Something about this TxGANG database bothers me, especially in how it was employeed in this case. I trust
the state has buttoned up any 14th amendment questions regarding how one is placed on this database.

[srothstein]

Above all. 46.15(b)(6) make anything that 46.02 says non applicable to an LTC holder, so it does not matter what one word of it says.

I disagree. In general, this is the rule and you would be correct. But there is two narrow cases where 46.02 does apply to to an LTC. I do not know if either is applicable to this case or not though.

The law says:

(b) Section 46.02 does not apply to a person who:
(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster;

The first case is if the weapon was carried openly in some manner other than a belt or shoulder holster. For example, if he was carrying with the weapon shoved into his pocket, but the grip was sticking out and could be clearly seen then 46.02 would apply.

I disagree Steve. If the handgun is "in plain view" and is not in a belt or shoulder holster, then the LTC would have violated TPC §46.035(a), but TPC §46.02, including subparts §46.02(a-1)(1) and §46.02(a-1)(2)(C), do not apply to the LTC.

Chas.

Charles,

This is an interesting fine point to discuss, and I agree you are better at this than I am. Let me clarify further why I think 46.02(a-1)(2)(c) might apply in this weird case. Hopefully you can help me learn where my thinking is going wrong. Please pardon any short cuts in my language which do not match the law exactly (like saying holster instead of belt or shoulder holster).

As a general rule, it is illegal for the average person to carry a handgun on their person in a public place under section 46.02. This is clarified as being not in a motor vehicle though. Paragraph (a-1)(1) says in a very convoluted way that it is legal to have a gun in a motor vehicle if it is in plain view only if the person has an LTC and the pistol is in a holster. I understand this to mean that an openly carried handgun in a vehicle is generally illegal but an LTC can do it. Paragraph 46.02(a-1)(2) also makes it illegal for a person who is in a criminal street gang to carry a gun in a car at all.

Now along comes section 46.15 (b)(6) which says that all of 46.02 does not apply to a person who meets certain conditions:
1. is carrying a handgun
2. is carrying his LTC
3. the handgun is concealed or is openly carried in a holster.

So, let's say a person has an LTC but is carrying his pistol in his car by sticking it in a pocket with the grip sticking out. As I read 46.15, all of the conditions are not met, so 46.02 does apply. If 46.02 does not apply, then it would be possible to charge a suspect under 46.02(a-1)(2) if he were an LTC, carrying his LTC and pistol while riding his motorcycle, but the pistol was openly carried and not in a holster and he was also in a gang. He could also be charged under 46.035 as you point out, and I would probably use that since it is an easier charge to get a jury to understand, but I think he could be charged under both sections. In the specific case, if my assumed/made-up facts were correct I would be surprised if the DA did not try to go for both charges.

Obviously, in the specific case that started this, I agree that if the pistol was in a holster or was concealed, then the charge is flat out wrong. And I do think that is what happened. I was more trying to point out that the unlawfully carrying charge does apply if he did not have his LTC with him at the time. One of my concerns is the people who are being more lax about this since the penalty for not showing it was removed.

[E.Marquez]

Charles, Steve, I cant thank you both enough for taking the time to respond.
Clearly I thought this was a very muddied issue, and I see it is more clearly then I previously understood. Not withstanding the finale question Steve has added to the mix.
On a personal position as I do carry in a manner consistent to;
(b) Section 46.02 does not apply to a person who:
(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster;

For me, to me it is now clear Section 46.02 does not apply to me wither Im on my bike or in the car/truck .

As to the case at hand...The article leaves the question was the accused carrying IAW
(b) Section 46.02 does not apply to a person who:
(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster;

Or was he not... If he was carrying IAW that cited portion the DA and Judge need some new reading glasses and or need to follow the low, perhaps both.

Thank you both