Texas soldier faces legal battle over gun in hospitial

[jmra]

Why am I the only one to point out:...

Well, it could be that you didn't pay attention in class or you just had a lousy instructor.

Don't feel bad, it's still wrong on the DPS FAQ page.

[C-dub]

Why am I the only one to point out:...

Well, it could be that you didn't pay attention in class or you just had a lousy instructor.

Don't feel bad, it's still wrong on the DPS FAQ page.

And there's a LEO and DA that also apparently have not read far enough either. It is a common mistake and you are not alone.

[jmorris]

Side note that I'm not sure anyone has considered--and I didn't see it mentioned. Legal assistance is free if you are military and use military lawyers. That said, if I were him and I was innocent, I would fight the case too. I'd have nothing to lose monetarily other than what would be lost anyway (the TRP). He can afford to ride it out.

I hope he is innocent. I hope they hammer the arresting officer and use this as an opportunity to familiarize the rest of the state with Concealed Handgun Laws. And if this guy wins... legal precedence. I'm ok with that too.

If I recall correctly most military lawyers only practice military law. They are not allowed to practice on the civilian side except to advise on military matters.

No, not really.
Each major Unit will often have one or more staff lawyers that are licensed in the state of assignment.
It's not a requirement that I know of, but is an ideal situation as I understand it.

Timing, rate of turnover, length of time in an assignment and the personal opinion of Staff Judge Advocate for that Division or larger unit all play in to if a Military lawyer has passed the approved certifications , regulations ect ect to practice law in that state.

I'm more than 25 years out of date but then the state certified JAG lawyer jobs were for matters between the military and local/state, not for representing service members in purely civilian cases.

[Jim Beaux]

Not gonna go to the trouble of looking it up but I think no alcohol testing is required to convict for public intoxication. The LEO's opinion is enough and if the security guy's testimony concurs this may create bigger problems for the CHL. Hoping that justice wins. (did I read one gal drank almost 4 bottles of wine by herself?)

[Dave2]

(did I read one gal drank almost 4 bottles of wine by herself?)

Over what length of time? Does the article say?

[SewTexas]

4 bottles of wine by herself???? really???? if I did that in a week I'd still be sick!!!!

[Dave2]

4 bottles of wine by herself???? really???? if I did that in a week I'd still be sick!!!!

Wine bottles can be deceptively large... I'm not saying she wasn't drunk or anything, but I know a few people who could probably drink that much over a day and still function normally (except for the no driving bit).

[jimlongley]

Why am I the only one to point out:

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.
(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person.
(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;
(2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;
(3) on the premises of a correctional facility;
(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;

If he's the guy who's supposed to explain Texas laws to soldiers, he should know that a 30.06 notice is NOT required at a hospital.

If you had read the whole of the statute, you would know that IT IS!

"(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06."

[E.Marquez]

Side note that I'm not sure anyone has considered--and I didn't see it mentioned. Legal assistance is free if you are military and use military lawyers. That said, if I were him and I was innocent, I would fight the case too. I'd have nothing to lose monetarily other than what would be lost anyway (the TRP). He can afford to ride it out.

I hope he is innocent. I hope they hammer the arresting officer and use this as an opportunity to familiarize the rest of the state with Concealed Handgun Laws. And if this guy wins... legal precedence. I'm ok with that too.

If I recall correctly most military lawyers only practice military law. They are not allowed to practice on the civilian side except to advise on military matters.

No, not really.
Each major Unit will often have one or more staff lawyers that are licensed in the state of assignment.
It's not a requirement that I know of, but is an ideal situation as I understand it.

Timing, rate of turnover, length of time in an assignment and the personal opinion of Staff Judge Advocate for that Division or larger unit all play in to if a Military lawyer has passed the approved certifications , regulations ect ect to practice law in that state.

I'm more than 25 years out of date but then the state certified JAG lawyer jobs were for matters between the military and local/state, not for representing service members in purely civilian cases.

Still the same far as I know.

I was only commenting on the ability of a JAG lawyer to practice law in a specific state, off the Mil reservation.

[Heartland Patriot]

Not gonna go to the trouble of looking it up but I think no alcohol testing is required to convict for public intoxication. The LEO's opinion is enough and if the security guy's testimony concurs this may create bigger problems for the CHL. Hoping that justice wins. (did I read one gal drank almost 4 bottles of wine by herself?)

Why would no sort of proof be required to prove PI? Once again, nothing against law enforcement in the least, but what if the officer involved just doesn't like alcohol, or is ticked off about working a shift that he was supposed to be off or a thousand other things, and decides to take it out on the NEXT PERSON he gets called out because of? I understand that a vast majority of officers aren't going to do that but what about that one? Maybe the law enforcement guys didn't like being called to the hospital, maybe they have a problem with soldiers, maybe they didn't like his T-shirt, maybe a thousand things...but there should be SOME sort of proof, at least corroborating witness statements, something to say the individual was acting impaired in some fashion like yelling/acting belligerent, banging into things, slurred speech, flushed face, SOMETHING. Not saying that LEOs shouldn't be able to ARREST someone they think might be a hazard...I'm talking about CONVICTING someone. I hope that you guys and gals can see the difference in what I am saying.

[C-dub]

Not gonna go to the trouble of looking it up but I think no alcohol testing is required to convict for public intoxication. The LEO's opinion is enough and if the security guy's testimony concurs this may create bigger problems for the CHL. Hoping that justice wins. (did I read one gal drank almost 4 bottles of wine by herself?)

Why would no sort of proof be required to prove PI? Once again, nothing against law enforcement in the least, but what if the officer involved just doesn't like alcohol, or is ticked off about working a shift that he was supposed to be off or a thousand other things, and decides to take it out on the NEXT PERSON he gets called out because of? I understand that a vast majority of officers aren't going to do that but what about that one? Maybe the law enforcement guys didn't like being called to the hospital, maybe they have a problem with soldiers, maybe they didn't like his T-shirt, maybe a thousand things...but there should be SOME sort of proof, at least corroborating witness statements, something to say the individual was acting impaired in some fashion like yelling/acting belligerent, banging into things, slurred speech, flushed face, SOMETHING. Not saying that LEOs shouldn't be able to ARREST someone they think might be a hazard...I'm talking about CONVICTING someone. I hope that you guys and gals can see the difference in what I am saying.

There is no "proof" required for a speeding ticket. If the officer says he paced you or got you on laser doing 68 in a 60 it's over. He can't prove a thing in court. It's his word against yours. And for that matter, what proof is there from a breathalyzer? Is there a printout with the date and time on it? I have no idea, but if there isn't what proof is there of that result either? A lot of leeway is given to LEOs in court for what the court considers small stuff. They, supposedly, have no reason to lie and we, the accused, have every reason to lie in their eyes.

[WildBill]

Not gonna go to the trouble of looking it up but I think no alcohol testing is required to convict for public intoxication. The LEO's opinion is enough and if the security guy's testimony concurs this may create bigger problems for the CHL. Hoping that justice wins. (did I read one gal drank almost 4 bottles of wine by herself?)

Why would no sort of proof be required to prove PI? Once again, nothing against law enforcement in the least, but what if the officer involved just doesn't like alcohol, or is ticked off about working a shift that he was supposed to be off or a thousand other things, and decides to take it out on the NEXT PERSON he gets called out because of? I understand that a vast majority of officers aren't going to do that but what about that one? Maybe the law enforcement guys didn't like being called to the hospital, maybe they have a problem with soldiers, maybe they didn't like his T-shirt, maybe a thousand things...but there should be SOME sort of proof, at least corroborating witness statements, something to say the individual was acting impaired in some fashion like yelling/acting belligerent, banging into things, slurred speech, flushed face, SOMETHING. Not saying that LEOs shouldn't be able to ARREST someone they think might be a hazard...I'm talking about CONVICTING someone. I hope that you guys and gals can see the difference in what I am saying.

There is no "proof" required for a speeding ticket. If the officer says he paced you or got you on laser doing 68 in a 60 it's over. He can't prove a thing in court. It's his word against yours. And for that matter, what proof is there from a breathalyzer? Is there a printout with the date and time on it? I have no idea, but if there isn't what proof is there of that result either? A lot of leeway is given to LEOs in court for what the court considers small stuff. They, supposedly, have no reason to lie and we, the accused, have every reason to lie in their eyes.

Gentlemen - I think I know what you are discussing, but I think you are confusing "evidence" and "proof". The evidence that is presented to the jury is used to "prove" whether or not the person is guilty of a crime. The proof is their conclusion, not the evidence or testimony itself. Two juries can be given the same evidence and testimony and one jury may have a guilty verdict, but the other will vote not guilty.

Once, I went to a party and saw a person with a can of beer in his hand. He was walking around bumping into furniture and people. He also was talking in a loud voice and kept repeating himself. I didn't need a BAC breath or blood test or field sobriety test for me to be 100% sure that he was intoxicated. Whether or not a jury would believe me is a seperate issue.

Many people now expect some kind of tangible evidence, like a video, a 911 call recording, DNA evidence, BAC test results, etc. I think that most trials are still based on testimony and the jury has to decide based on how credible they determine the witnesses to be. For the most part LEOs have more credibilty as witnesses than other people. Even with conflicting testimony or physical evidence, it is difficult to impeach the testimony of an LEO. That is going to be the hardest obstacle for the accused.

[C-dub]

Not gonna go to the trouble of looking it up but I think no alcohol testing is required to convict for public intoxication. The LEO's opinion is enough and if the security guy's testimony concurs this may create bigger problems for the CHL. Hoping that justice wins. (did I read one gal drank almost 4 bottles of wine by herself?)

Why would no sort of proof be required to prove PI? Once again, nothing against law enforcement in the least, but what if the officer involved just doesn't like alcohol, or is ticked off about working a shift that he was supposed to be off or a thousand other things, and decides to take it out on the NEXT PERSON he gets called out because of? I understand that a vast majority of officers aren't going to do that but what about that one? Maybe the law enforcement guys didn't like being called to the hospital, maybe they have a problem with soldiers, maybe they didn't like his T-shirt, maybe a thousand things...but there should be SOME sort of proof, at least corroborating witness statements, something to say the individual was acting impaired in some fashion like yelling/acting belligerent, banging into things, slurred speech, flushed face, SOMETHING. Not saying that LEOs shouldn't be able to ARREST someone they think might be a hazard...I'm talking about CONVICTING someone. I hope that you guys and gals can see the difference in what I am saying.

There is no "proof" required for a speeding ticket. If the officer says he paced you or got you on laser doing 68 in a 60 it's over. He can't prove a thing in court. It's his word against yours. And for that matter, what proof is there from a breathalyzer? Is there a printout with the date and time on it? I have no idea, but if there isn't what proof is there of that result either? A lot of leeway is given to LEOs in court for what the court considers small stuff. They, supposedly, have no reason to lie and we, the accused, have every reason to lie in their eyes.

Gentlemen - I think I know what you are discussing, but I think you are confusing "evidence" and "proof". The evidence that is presented to the jury is used to "prove" whether or not the person is guilty of a crime. The proof is their conclusion, not the evidence or testimony itself. Two juries can be given the same evidence and testimony and one jury may have a guilty verdict, but the other will vote not guilty.

Once, I went to a party and saw a person with a can of beer in his hand. He was walking around bumping into furniture and people. He also was talking in a loud voice and kept repeating himself. I didn't need a BAC breath or blood test or field sobriety test for me to be 100% sure that he was intoxicated. Whether or not a jury would believe me is a seperate issue.

Many people now expect some kind of tangible evidence, like a video, a 911 call recording, DNA evidence, BAC test results, etc. I think that most trials are still based on testimony and the jury has to decide based on how credible they determine the witnesses to be. For the most part LEOs have more credibilty as witnesses than other people. Even with conflicting testimony or physical evidence, it is difficult to impeach the testimony of an LEO. That is going to be the hardest obstacle for the accused.

Exactly, and I agree. That's way it takes so long, if ever, to catch someone like that LEO involved in that towing scam down in Houston. And why most people will accept the relatively low level charge rather than fight a much more costly battle in court. Regardless of any errors or inaccuracies on the part of the LEO.

On my way to school back in '99 I was speeding and got caught. The officer wrote the wrong date on the citation and I pointed that out to the judge and he said, so what. There was no physical evidence and I still paid. Another HOV officer caught and off duty DPD officer driving in the HOV lane without anyone else in his personal truck. They only way the public knows about this at all is because there was a film crew with that HOV officer that day filming for an article and got the whole thing on film. When the news station followed up on it later, they found out that the citation was dismissed because the officer made a "mistake" on the citation. There was video evidence in this case and it was still dismissed.

And I was once accused of speeding by a California motorcycle officer on a road I was not even on. I ended up paying the ticket because it was my word against his and I had no way of proving I wasn't there. That one incident, almost 30 years ago, has jaded me and still ticks me off whenever I think about the bias applied to me and my helplessness against someone considered to be above reproach. There was no physical evidence in this case and I still paid.

Incident #1: I was guilty, but the officer made an error and I still paid.
Incident #2: An officer was caught breaking the law and didn't pay.
Incident #3: I did not break the law, but an officer said I did, so I paid.

Anyone see a pattern there?

[Dave2]

Incident #1: I was guilty, but the officer made an error and I still paid.
Incident #2: An officer was caught breaking the law and didn't pay.
Incident #3: I did not break the law, but an officer said I did, so I paid.

Anyone see a pattern there?

Yep. You only pay for odd-numbered incidents...

[C-dub]

Incident #1: I was guilty, but the officer made an error and I still paid.
Incident #2: An officer was caught breaking the law and didn't pay.
Incident #3: I did not break the law, but an officer said I did, so I paid.

Anyone see a pattern there?

Yep. You only pay for odd-numbered incidents...

I knew I should have included the fourth one were I also had to pay.
It was a little more ambiguous, but I still had to pay because I had no recourse.