New Traveling Law

[tomneal]

Packing.org has a thread going on the new
"If your in your car, you are presumed to be traveling" law

http://www.packing.org/community/laws_p ... stview/965

Apparently:
"Harris County DA says car carry of handguns illegal."

[stevie_d_64]

More confusion...ambiguity...

It doesn't effect most of us here in this forum, but to Joe Q. Public...

OH MY GOD THERE'S TOO MANY GUNS OUT THERE!!! mentality...

[dws1117]

It is amazing how many people are under the impression that this new law allows them to simply carry a gun in the car. I have heard several that intend to do just that. I've tried to tell them that it isn't as clear cut as it appears.

Am I the only one who thinks that the new legislation hasn't cleared up anything, but instead made things even more confusing? I know my bulb only burns at half wattage, but all I am seeing is more confusion.

How about legilation that simply states that you car is an extension of your home? That would probably make too much sense.

[GrillKing]

How about legilation that simply states that you car is an extension of your home. That would probably make too much sense.

Here, here!! Perfect balance of carry and private property rights.

[stevie_d_64]

Not that I am being critical...No! Not you Steve!...

Anyway...

Ever notice that you don't hear too much from people who live in States like Vermont...And Alaska (well maybe more from Alaska)...

When issues and questions come up like this???

I never seen anyone who claims to be from, at least Vermont, ever participate in any of these discussions...Not that it would matter...

That just kinda sticks out in my mind right now...

[Sigshooter]

Its one of those laws where we will just have to wait and see.

[Baytown]

Which brings us full circle. What exactly is travelling?

In my opinion, I travel to work everyday, I travel to the grocery store, etc...

It is Libs who are trying to muddy the waters.

Glenn

[EricS76]

It is amazing how many people are under the impression that this new law allows them to simply carry a gun in the car. I have heard several that intend to do just that. I've tried to tell them that it isn't as clear cut as it appears.

It is amazing. Check out this thread:
http://glocktalk.com/showthread.php?s=& ... genumber=1

[Renegade]

It is amazing how many people are under the impression that this new law allows them to simply carry a gun in the car. I have heard several that intend to do just that. I've tried to tell them that it isn't as clear cut as it appears.

It is amazing. Check out this thread:
http://glocktalk.com/showthread.php?s=& ... genumber=1

Then number of people on GlockTalk that do not know what they are talking about, is higher than any other place in the known universe. I can top that one.

There is a guy in this thread who not only thinks you can ignore 30.06 verbal notice, but if the police are called, the property owner will be investigated and tagged with a fine for giving 30.06 verbal. Says he had it done to a property owner.

http://glocktalk.com/showthread.php?s=& ... genumber=2

[stevie_d_64]

I think I'll stick around here from now on...

I could only make it down about half of those pages over there before I got a headache...

They probably wouldn't like me over there anyway...

[EricS76]

It is amazing how many people are under the impression that this new law allows them to simply carry a gun in the car. I have heard several that intend to do just that. I've tried to tell them that it isn't as clear cut as it appears.

It is amazing. Check out this thread:
http://glocktalk.com/showthread.php?s=& ... genumber=1

The number of people on GlockTalk that do not know what they are talking about, is higher than any other place in the known universe. I can top that one.

There is a guy in this thread who not only thinks you can ignore 30.06 verbal notice, but if the police are called, the property owner will be investigated and tagged with a fine for giving 30.06 verbal. Says he had it done to a property owner.

http://glocktalk.com/showthread.php?s=& ... genumber=2

Sometimes it is downright scary over there.

[orc4hire]

[EricS76]

Eric, is it your position that the following section of the law doesn't say what it seems to say?

(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.

Subsection B seems to be the critical one. To repeat:

(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;

That seems to clearly state that the presumption cannot be challenged successfully by questioning how far the person was driving, or where, or for how long. To successfully prosecute, the prosecutor must disprove the facts giving rise to the presumption. That is:

(i) For purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.

Yes, the change in the law shifts the burden of proof from the defense to the prosecution. In turn that will make it harder for the prosecution to get a conviction. But the fact remains that if the prosecution can disprove the presumption that a person was traveling, there will most likely be a conviction.

Go back up and check my link to glock talk. There is a lengthy discussion and a person who said many times the law said he could carry all the time in his car and be fine. He then contacted his representative, and he/she told him exactly what I had said before.

[Renegade]

That's what the law says. If you believe it says otherwise I would be interested in hearing specifics, not vague hints that 'the presumption can be disproved.'

How about this. Person without CHL who meets criteria 1-5 has handgun in car/console. It is raining, so they drive 10 year old son 2 blocks to birthday party. Halfway there, or on way home they are pulled over and cop learns of gun in car. Do they have a defense under traveling?

How about this. Person without CHL who meets criteria 1-5 has handgun in saddle bags on horse. They decide to ride horse over to neighbor's house for visit. Halfway there, or on way home they are pulled over and cop learns of gun in saddle bags. Do they have a defense under traveling?

[Charles L. Cotton]

I have tried to stay out of this thread, as I have given my opinion on this issue at least twice. However, there is so much misinformation and misunderstanding of evidentiary requirements that I am concerned all of this negative “press� from those of us in the pro-gun community may have a negative impact on this new statute.

Here is the analysis one should make when evaluating the application of this new presumption. First, as has been posted, there are five specific elements of the presumption, all of which must exist for the presumption of traveling to apply. They are as follows:

(i) For purposes of Subsection (b)(3), a person is presumed to be traveling if the person is: (1) in a private motor vehicle; (2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic; (3) not otherwise prohibited by law from possessing a firearm; (4) not a member of a criminal street gang, as defined by Section 71.01; and (5) not carrying a handgun in plain view.

If all five of these elements are present, then the judge must present the presumption to the jury and he must instruct the jury that, unless the prosecution disproves at least one or more of the five required elements, and nothing else, then the jury must find that the person was traveling. This language and requirement are new and are found in Tex. Penal Code §2.05(b).

The only way the judge can refuse to submit the presumption of traveling to the jury, along with the required instructions, is if he finds from the evidence as a whole that the presumed fact doesn’t exist.

Here is where the analysis problem begins. People who believe the old case law still applies, and that fresh groceries in the car or short trips will defeat the presumption, are being mislead by the terminology used in the statute, as well as their misunderstanding of evidentiary requirements for taking a case away from a jury.

The language some people are focusing on is the phrase unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact. They then argue that this allows the prosecutor to argue to the judge that you were on a short trip or had fresh groceries in the car. This isn’t the way it works folks. In order to take an issue away from the jury, the evidence has to be so clear that reasonable jurors could come to but one conclusion. This means the court can only consider the same elements on which the jury would hear evidence, i.e. can the prosecution rebut one of the five elements of the presumption. The jury can consider only evidence dealing with the existence of those five elements, so the judge is also limited. A smart attorney and a good judge will object to any questions as to whether you had fresh groceries in the car, or how far you were going on that trip, as those questions are irrelevant to the five required elements.

A court must meet a very high standard to avoid presenting an issue to a jury, when evidence exists. If the judge were allowed to consider evidence on elements the jury cannot consider, then the court would enjoy an easier standard, not a more difficult one.

We may well see some prosecutions testing this new law, but it will not come from any intellectually honest prosecutor.

Regards,
Chas.