Texas soldier faces legal battle over gun in hospitial

[WildBill]

As much as I don't like the DA tacking on charges after the fact, I am sure it is legal and happens quite often.

[cbunt1]

As much as I don't like the DA tacking on charges after the fact, I am sure it is legal and happens quite often.

Yes, no question it's legal...but I don't think it's right, and I never have. But my personal normative ideals of the legal system have nothing to do with reality :)

[cbunt1]

And the last couple of posts speak to exactly why this case is so incredibly important to all of us as a matter of case law.

I don't see any issues that will become or involve case law. Which posts are you referring?

I'm really commenting on the fact that the concept of "zero alcohol while carrying" keeps coming up, and it comes up each and every time any questions about "can I have a beer while I'm braced" come up.

Law is different than what's often taught. It's often the case, but the booze'n'bullets factor seems to be the worst offender...and it continues due to a lack of solid answers, and the way it's discussed for us as instructors.

It probably won't make it all the way to "real" case law, but it will give us something to hang our hats on once the dust settles.

[Slipknot]

Keep in mind folks that District Attorney is an elected position. If you dont like the way a certain elected official comports himself, then by all means express your displeasure at the ballot box.

For those of you not registered to vote in Bell county, perhaps a contribution to the opponent of said official might be in order.

[TexasGal]

"....So, unless the police officer documented the soldier "not having the normal use of mental or physical faculties" or "having an alcohol concentration of 0.08 or more" in the original report, then the simple admission by the soldier that he had shared some wine with his wife is not (or should not be) an issue. Nor should the mere smell of alcohol on his breath. Especially if not documented.

And let's face it, if the charges were true, then they would have been added during the arrest, not several weeks later."


I think many officers and CHL holders are being taught it is a zero tolerance. Even if the officer documented the guy as "not having the normal use of mental or physical faculties", then it is still a subjective opinion of the arresting officer and/or open to just plain lying on the report. Yeah, we can all agree a person stumbling drunk is impaired, but someone with say one drink may be or may not be affected. The law should demand some kind of evidence of impairment besides a simple opinion of one officer who may or may not have an ax to grind. The law should require a blood test, a FST in front of cameras, video with sound recording the person's appearance, speech, etc. Something that backs up an opinion no one else can later see evidence of. I support and admire our LEO's so this is not intended as any slight to the profession, but there are a few who are not beyond abusing power. This is why it is just a lot simpler to advise people to not drink at all and carry. It avoids the entire problem, but that is not exactly what the letter of the law requires.

[smoothoperator]

I say again that the soldier is being prosocuted for contempt of cop, since there is no actual such law on the books the DA is looking for anything he/she can find to jail the individual. My personal belief is that because the charges are an ever evolving random set of things thrown out there to see what sticks the Judge should dismiss all charges, hold the DA and the arresting Officer in contemp for 6 months to remind both of them that contemp of cop does not exist period. if the DA and Officer can be held responsible for bogus charges they may think a litte more before just throwing out bogus stuff and hopeing something works because the guy didn't do exactly what the LEO illegally told him to do.

I think you're probably right. The other possibility is the original charges were trumped up to "seize" the pretty 1911.

[E.Marquez]

"....So, unless the police officer documented the soldier "not having the normal use of mental or physical faculties" or "having an alcohol concentration of 0.08 or more" in the original report, then the simple admission by the soldier that he had shared some wine with his wife is not (or should not be) an issue. Nor should the mere smell of alcohol on his breath. Especially if not documented.

And let's face it, if the charges were true, then they would have been added during the arrest, not several weeks later."


I think many officers and CHL holders are being taught it is a zero tolerance. Even if the officer documented the guy as "not having the normal use of mental or physical faculties", then it is still a subjective opinion of the arresting officer and/or open to just plain lying on the report. Yeah, we can all agree a person stumbling drunk is impaired, but someone with say one drink may be or may not be affected. The law should demand some kind of evidence of impairment besides a simple opinion of one officer who may or may not have an ax to grind. The law should require a blood test, a FST in front of cameras, video with sound recording the person's appearance, speech, etc. Something that backs up an opinion no one else can later see evidence of. I support and admire our LEO's so this is not intended as any slight to the profession, but there are a few who are not beyond abusing power. This is why it is just a lot simpler to advise people to not drink at all and carry. It avoids the entire problem, but that is not exactly what the letter of the law requires.

I understand what you want, but do not understand the surprise or confusion with how it is.

The same standards for intoxication are used in thousands of DUI cases........ it's the exact same definition for concealed carry..... and the standard is observable, tangible and quantifiable.

It is well established what is required for a convection of 49.09 Driving while intoxicated, I believe it will be no different for a charge under TPC 46.035 as they BOTH refer to the definition of intoxication in TPC 49.

I may be proved wrong if this goes to trial and a convection is made... hope not.

[alphonso]

I personally practice the airplane pilot's rule "twelve hours between the bottle and the throttle" when it comes to drinking and then carrying a gun.

That's 4 hours more than FAR 91.17 requires (8 hours bottle to throttle), but hey, your rule is safer

I was referring to the little known clause FAR 91.17 (a)(1)(i). It's mere existence is sensitive, and it's exact wording is highly classified. In summary though, it imposes a 12 hour limit for those of us who fly the really really fast ones in and out of Area 51. You know, ones like The Vincent Black Shadow...

[srothstein]

There is one common mistake being made in this thread that might be important when talking with the attorney. While we all would like to see the original police report and what it says, there is no law or rule requiring that every thing that might possibly charged should be written in the original report. Supplemental reports are written all of the time. The original report needs to have enough facts to show probable cause for any charges filed AT THE TIME. It also needs to have enough information to jog the officer's memory so he will remember the rest of the facts when he testifies. But officers also use notebooks for additional memory devices, as well as their own memory.

What is important is the actual charging documents. They must allege enough facts to meet the elements of any charge filed. This does not have to be in the original report and may be from supplemental reports. The DA must, under the rules of discovery, provide all of his evidence to the defense attorney, some of which is kept confidential (by law). This would include the secondary reports, investigatory reports, etc.

As an aside, the original police report is public information except for certain parts. I believe the only part that is confidential by law is the suspect information, and that is only until charges are filed. I could be wrong on this since open records is a separate specialty area of the law that I have some familiarity with but not enough. But if you get the police case number and the agency, anyone can get a copy of the report by filing an open records request. In most cases, police agencies will have a minor charge for this if you are not a party to the report.

[JALLEN]

There is one common mistake being made in this thread that might be important when talking with the attorney. While we all would like to see the original police report and what it says, there is no law or rule requiring that every thing that might possibly charged should be written in the original report. Supplemental reports are written all of the time. The original report needs to have enough facts to show probable cause for any charges filed AT THE TIME.

It is true that the report need not contain a verbatim reference to everything the reporting officer saw or heard dealing with the event covered by the report, but it is suspicious if no reference is made to certain key circumstances, but those are later made the subject of a charge not part of the original charge(s).

I don't deal in criminal matters (they haven't caught any of my clients..... OK, they caught one, a long time ago!) but of the perhaps several dozen police reports I have had occasion to deal with, none was complete and harmonious with events and facts established by other corroborating evidence. Most of them ought to have started with "Once Upon A Time..."

To a certain extent, this is understandable to anyone who has ever played the game where everyone sits in a circle, then someone whispers a common saying to the person next to him or her, that person whispers what (s)he heard to the next person etc all around the circle, whereupon the last person announces what he heard. Almost every time, "Remember the Alamo" comes out "Better living through Chemistry" or something completely different than what the original person started with.

Some years ago, a pistol was stolen from my home. Eventually, I ended up down at the local station giving a report to an officer who diligently wrote in the little notebook they all seem to carry. When I eventually received a copy of the report, I was astonished at the variances between what I reported and what the report actually said. On another occasion, my communications to the detective about the status of endorsement of a check was mishandled in the police report and resulted in someone being arrested for a felony, wrongly, and I narrowly avoided being sued over it! Needless to say, I view police reports as not necessarily the last word in evidentiary reliability, unless corroborated by other credible evidence.

Being charged with intoxication days after the event, with no reference in any police report of intoxication, would be suspicious to me, and put the DA behind in the race for proof beyond a reasonable doubt. It could be overcome but there had better be a really good story about it and lots of corroboration.

[RottenApple]

It is true that the report need not contain a verbatim reference to everything the reporting officer saw or heard dealing with the event covered by the report, but it is suspicious if no reference is made to certain key circumstances, but those are later made the subject of a charge not part of the original charge(s).

I don't deal in criminal matters (they haven't caught any of my clients..... OK, they caught one, a long time ago!) but of the perhaps several dozen police reports I have had occasion to deal with, none was complete and harmonious with events and facts established by other corroborating evidence. Most of them ought to have started with "Once Upon A Time..."

To a certain extent, this is understandable to anyone who has ever played the game where everyone sits in a circle, then someone whispers a common saying to the person next to him or her, that person whispers what (s)he heard to the next person etc all around the circle, whereupon the last person announces what he heard. Almost every time, "Remember the Alamo" comes out "Better living through Chemistry" or something completely different than what the original person started with.

Some years ago, a pistol was stolen from my home. Eventually, I ended up down at the local station giving a report to an officer who diligently wrote in the little notebook they all seem to carry. When I eventually received a copy of the report, I was astonished at the variances between what I reported and what the report actually said. On another occasion, my communications to the detective about the status of endorsement of a check was mishandled in the police report and resulted in someone being arrested for a felony, wrongly, and I narrowly avoided being sued over it! Needless to say, I view police reports as not necessarily the last word in evidentiary reliability, unless corroborated by other credible evidence.

Being charged with intoxication days after the event, with no reference in any police report of intoxication, would be suspicious to me, and put the DA behind in the race for proof beyond a reasonable doubt. It could be overcome but there had better be a really good story about it and lots of corroboration.

In your experience (and I know you said you aren't a criminal defense attorney), would the mere absence of corroborating evidence (nothing in the police report, no breathalyzer test, no blood test, no FST) be enough to create reasonable doubt? I can tell you that if I sat on a jury overseeing such a case, I would be very, very skeptical of the prosecution.

[WildBill]

It is true that the report need not contain a verbatim reference to everything the reporting officer saw or heard dealing with the event covered by the report, but it is suspicious if no reference is made to certain key circumstances, but those are later made the subject of a charge not part of the original charge(s).

In your experience (and I know you said you aren't a criminal defense attorney), would the mere absence of corroborating evidence (nothing in the police report, no breathalyzer test, no blood test, no FST) be enough to create reasonable doubt? I can tell you that if I sat on a jury overseeing such a case, I would be very, very skeptical of the prosecution.

Are arrest reports generally entered into evidence?

[cbunt1]

It is true that the report need not contain a verbatim reference to everything the reporting officer saw or heard dealing with the event covered by the report, but it is suspicious if no reference is made to certain key circumstances, but those are later made the subject of a charge not part of the original charge(s).

In your experience (and I know you said you aren't a criminal defense attorney), would the mere absence of corroborating evidence (nothing in the police report, no breathalyzer test, no blood test, no FST) be enough to create reasonable doubt? I can tell you that if I sat on a jury overseeing such a case, I would be very, very skeptical of the prosecution.

Are arrest reports generally entered into evidence?

My layman's understanding of the legal process is that they would be...As JALLEN points out, they're hardly the "last word," and in fact more like the "first word" that starts the ball rolling.

I agree that if I were on a jury, I'd be very skeptical if such a thing were not mentioned in any initial police report work...but then again, they wouldn't likely let me on such a jury in the first place. I'd think my very qualifications and experiences (along with those of MOST of us on this board) would get us stricken by the prosecution if at all possible...

[JALLEN]

In your experience (and I know you said you aren't a criminal defense attorney), would the mere absence of corroborating evidence (nothing in the police report, no breathalyzer test, no blood test, no FST) be enough to create reasonable doubt? I can tell you that if I sat on a jury overseeing such a case, I would be very, very skeptical of the prosecution.

Reasonable doubt is not a fixed, measurable concept, but whatever the trier of fact says it is. The appeals process can say there was enough evidence, if believed by the jury, to justify the verdict, for example, but they can't say that the jury should have believed it.

Many of us remember the OJ trial. When F. Lee Bailey successfully cross-examined Detective Fuhrman, and got into evidence the tape of Fuhrman using language he had just denied using, that entitled the jury to disbelieve any or all of Fuhrman's testimony, if they chose to. In lawyer's parlance, that is called "impeaching" the witness. Should they have? That is up to them. Belief or disbelief is in the eye, or mind, of the believer. In this case, the jury had a plausible justification for disbelieving Fuhrman. Whether, or to what extent, his testimony was ignored is known only to the jurors, of course.

The DA has the burden to produce evidence proving each and every element of the crimes charged "beyond a reasonable doubt." That is a very high standard, designed to minimize the possibility of wrongly convicting innocent defendants. Many LEO's and prosecutors don't believe there are any innocent defendants. "If he wasn't guilty, we wouldn't have arrested him!" Nevertheless, we still put the prosecution to its proof.

If the prosecution presents only the testimony of the officer, nothing in the report, no tests, etc. I personally would have a very hard time accepting that as the truth, especially if the defendant presented facts contradicting the conclusions of the officer. Skillful cross-examination of the officer can be fruitful, as often they don't know as much as they claim, or weren't in position to see or hear what they claim, their training and experience doesn't lend itself to the conclusion they reached, etc. The possibilities are endless. How the balance would tip in any particular case is hard to say, but it certainly wouldn't be "fait accompli" by any means.

The police report is an out of court statement, and is hearsay unless it qualifies under one of the numerous exceptions, which it probably would, but would have to be authenticated by the officer who prepared it. The prosecution might not always introduce it, but the defense might for impeachment purposes, etc. Of course, I don't do criminal trials, am not conversant in the nuances of Texas laws, and likely will not ever be, at a professional level anyway.

[JALLEN]

I agree that if I were on a jury, I'd be very skeptical if such a thing were not mentioned in any initial police report work...but then again, they wouldn't likely let me on such a jury in the first place. I'd think my very qualifications and experiences (along with those of MOST of us on this board) would get us stricken by the prosecution if at all possible...

I have spend 37 years wishing I could be on a jury, and in California lawyers are subject to call for jury duty. I have been 5 or 6 times but never sent out on a panel. It has to be fascinating.

As a lawyer, though, I would not allow any lawyer to remain on the jury if I could help it. The risk is too great that once the jury room door closes, the rest of the jurors would look down at the one lawyer and say, "What the hey was that all about?" IOW, the lawyer might have more influence on the other jurors than otherwise.

Mostly, the only legal professionals who get snared for jury service out here are Courts of Appeal Justices, who must sit tight jawed through some ordeal, do their duty, whereupon some idiot reporter (if you will excuse the redundancy) will write up the story about how wonderful it is that Justice Grump manfully served on a jury, and the lawyers and trial judge know that an appeal from whatever results will be hopelessly bollixed up.