Texas soldier faces legal battle over gun in hospitial

[recaffeination]

if he was really intoxicated they would have charged him with that originally. They were in a hospital so there was no shortage of people with medical training to draw blood.

Occam's Razor says it's official oppression. They hit him with a bogus charge. Maybe the BG liked the soldier's 1911 and figured it was an easy way to take it for himself. Offer to drop the bogus charges if he let's the BG keep the stolen gun. But homie don't play that. So like a robber displying a weapon to convince a store clerk who isn't cooperating, they make a bigger threat to get compliance.

It looks like a case of bad victim selection. The soldier wasn't a sheep cowed by the wolf. He is a sheepdog willing to face the wolf.

I could be wrong but that's the theory that makes the most sense to me.

[SewTexas]

[WildBill]

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.

"The system" is not about to let a criminal like you escape justice just because the LEO didn't record the right date on a citation.

Many legal documents will use the term "On or about" to describe the date or place of the crime. Sometimes you have to read the fine print:

... on or about prep. a phrase referring to a date or place used in a complaint in a lawsuit or criminal charge if there is any uncertainty at all, in order to protect the person making the allegations of fact from being challenged as being inaccurate. Thus, a complaint will read "On or about July 11, 1994, Defendant drove his vehicle negligently and without due care on or about the corner of Sunset and Vine Streets...

http://legal-dictionary.thefreedictiona ... n+or+about" onclick="window.open(this.href);return false;

[jimlongley]

. . . 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. . . . 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.

Incident 1: In 1985 I was stopped by a NYState Trooper for 78 in a 65. I was driving a '78 Horizon that was only running on three cylinders out of four (I had already put a binder on a "new" car that day and was due to pick it up the next) and I tried to convince the officer that he had made an error in identification, I was being passed by another vehicle when we triggered the alarm on his radar, and my bet is that he was asleep and the alarm woke him up and I was the first car he saw. On top of everything else, I was approaching my exit and had pulled into a traffic laden right lane to get ready to exit.

Went to the "traffic hearing" and told the judge that I was pleading not guilty, which would necessitate an actual court date that the officer would have to show up for. The judge set the date for Thanksgiving and my wife went ballistic on me, telling me to change my plea because she didn't want to be at traffic court on that evening. So he fined me $20.00, which I paid in cash, and he issued me a receipt that had kind of a long stroke down the boxes that defined what I had been found guilty of.

A close friend of mine (my best man at my wedding to my current wife) was a supervisor at the motor vehicle bureau, and he flagged me in the computer to watch for a mark against my license. No mark ever showed up, no record of my conviction ever. I am willing to bet the judge pocketed the money.

Incident 2: I received a summons in the mail, ordering me to appear and show cause why I had not responded to a parking ticket issued against my wife's car.

The ticket copy indicated the correct license number for my late wife's car "BROOM" but the vehicle description was for a grey Toyota, and my late wife's car was a red Audi, and a date that was during the time she was confined to the hospital in terminal condition. A quick call to my friend at motor vehicles revealed that there was a grey Toyota with the license "BRO0M" registered downstate (obviously a student at the state university), my friend made me a copy.

I called the clerk of the court and was told that they didn't care, I still had to respond, so I went in to the clerks office and made noises about suing them for this and that when they had been informed that they had the wrong party, and they finally said they would take my information and "forgive the ticket" this time. I left the info, told them that I was not going to forgive them, and departed. Nothing ever showed up on that one either.

[ELB]

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.
.

As others have pointed out, no free military lawyer for cases that do not fall under the Uniform Code of Military Justice (UCMJ). The most help for non-UCMJ stuff you can expect is preparing a will or advanced directive or maybe notarizing some things (again assuming the military lawyer is also credentialed to do those things in the state).

If there was no sign and no one told him to his face he couldn't carry and people became aware he was carrying in a benign fashion (inadvertent display), that would seem to be a pretty easy win. The alcohol issue greatly clouds things tho, especially if he admitted alcohol use. That will be tough one for his (civilian) attorney to walk back.

And while we are on military law and such, if he loses in civilian court, he is at least eligible for yet more trouble on post. At the very least his performance report would take a big hit that will follow him forever, and I would not be surprised if he were formally reprimanded (also not career enhancing) or even hit with an Article 15 ("Non-judicial punishment" i.e. not a criminal conviction, but most definitely not career enhancing). He can refuse to accept an Article 15, but they are usually backed up with the possibility of a UCMJ (criminal) charge for some kind of misconduct.

And if he does win in civilian court...he is still eligible for all of the above if his superiors think it proper. Unlikely he is going to come out of this completely unscathed.

[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.
.

As others have pointed out, no free military lawyer for cases that do not fall under the Uniform Code of Military Justice (UCMJ). The most help for non-UCMJ stuff you can expect is preparing a will or advanced directive or maybe notarizing some things (again assuming the military lawyer is also credentialed to do those things in the state).

If there was no sign and no one told him to his face he couldn't carry and people became aware he was carrying in a benign fashion (inadvertent display), that would seem to be a pretty easy win. The alcohol issue greatly clouds things tho, especially if he admitted alcohol use. That will be tough one for his (civilian) attorney to walk back.

And while we are on military law and such, if he loses in civilian court, he is at least eligible for yet more trouble on post. At the very least his performance report would take a big hit that will follow him forever, and I would not be surprised if he were formally reprimanded (also not career enhancing) or even hit with an Article 15 ("Non-judicial punishment" i.e. not a criminal conviction, but most definitely not career enhancing). He can refuse to accept an Article 15, but they are usually backed up with the possibility of a UCMJ (criminal) charge for some kind of misconduct.

And if he does win in civilian court...he is still eligible for all of the above if his superiors think it proper. Unlikely he is going to come out of this completely unscathed.

Your partially right.....

There may be (will be some sort) administrative action taken, but you will not be charged for the same crime under MIL law (UCMJ) as you are in civilian law.

Once upon a time when i was a young solder that was true, get a DUI or drug charge down town, you would get a ART15 or court marshal charge for some related infraction. , but has not been that way for a very long time.

DUI is the common and obvious example.. Get a DUI downtown, charged, convicted, punished, fined, ect.. you CAN NOT be charged with a like complaint on post. BUT you will have administrative action taken.. From derogatory comments on your evaluation report, to on post driving privilege suspended, General Officer Letter of reprimand, up to involuntary separation from service. BUT no criminal complaint will be charged.

It's a choice, prosecute in civilian court, or under UCMJ, but not both.

[tazz0018]

This soldier went to war for us three times and now has to deal with this over a simple exposed GUN at a hospital with no 30.06 sign and (may) have been drinking a little and did no harm to no one. And yes they haul him to jail, but after checking his service to this county to protect the ones that's going to ruining his life from this time forward. Something just wrong with this. But if there is more to this story, I might just my change my opinion.

[harrycallahan]

As always, there may be more to the story than what we know. OTOH, from what I am reading they don't seem to have a case. According to Sampson, no alcohol test was administered to him. There are supposedly no 30.06 signs, which seems to be confirmed by his lawyer. What jury can convict him of being intoxicated solely on the testimony of the officer's opinion? Did I miss something somewhere?

Just a guess, but the officer at the home and the house are on ein the same. Perhaps the soldier gave up testimony at the house that the office is using against him now. For instance, the bulge of his gun. The is no way officer makes that determination on his own. Yes, there is much missing here.

[johncanfield]

If memory serves me right (which is happening less and less frequently), you can't be intoxicated and carry. I don't understand the "smelled alcohol on the breath" issue. Smelling alcohol obviously doesn't necessarily indicate intoxication - the guy could have had a gargle of Chardonnay (I like Kendall Jackson Grand Reserve ). That's why LEOs perform field sobriety tests.

[SewTexas]

smelling of alcohol....hmmm, could be he was the designated driver and someone bumped into him and splashed their drink on him, it happens all the time, you should have smelled me by the end of my first and only trip to San Fran one New Years Eve...on second thought you shouldn't have...you would have thought I was a lush and that was just the walk back to the car

[C-dub]

If memory serves me right (which is happening less and less frequently), you can't be intoxicated and carry. I don't understand the "smelled alcohol on the breath" issue. Smelling alcohol obviously doesn't necessarily indicate intoxication - the guy could have had a gargle of Chardonnay (I like Kendall Jackson Grand Reserve ). That's why LEOs perform field sobriety tests.

The officer might not have wanted to perform a FST because the soldier probably would have passed.

[JALLEN]

The officer's testimony about intoxication is, ultimately, an opinion which can be refuted by proper cross examination, and by adequate evidence by the defense. Being criminal, the standard is "beyond a reasonable doubt." Prosecutors want a test, because that is objective, not opinion susceptible to much interpretation. It would seem to be a simple matter to prove the proper posting of required signs, yea or nay.

The police reports may shed some useful light on things. I don't do criminal work (they haven't caught any of my clients yet!) but I did some on court appointed type cases at the beginning of my legal career. I've never seen a police report that corresponded to what actually happened, and in some cases should have started with "Once Upon A Time..." It isn't necessarily a criticism of the LEOs; it is like that game we all played as kids where you sit in a circle and one person whispers a common saying to the next person and what starts off "Better Living through Chemistry" comes out the other end as "Lucky Strikes Mean Fine Tobacco" or similar. The few on which I have been the provider of the facts were hilariously deficient in accurately recounting what I had provided.

No telling what the soldier's lawyer has to work with, but if he stands his ground, and the people in that area aren't irretrievably prejudiced about guns, or alcohol, he stands a good chance to introduce enough "reasonable doubt" to be found as innocent as he claims to be.

You have to admire someone who has the courage of their, ahhhh, convictions!

[baldeagle]

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.

It ranks right up there with my pet peeve - news "reporters" who claim you can't legally carry in a church - I've seen some LEO PR types say the same thing on the news as well. It really tees me off.

Here's what the DPS FAQ says:

Yes. §46.035, Texas Penal Code prohibits carrying of handguns and other weapons in certain places. These include but are not limited to:

On the premises of a business that derives 51% or more of its income from the sale or service of alcoholic beverages for on-premises consumption
On the premises where a high school, collegiate, or professional sporting or interscholastic event is taking place
On the premises of a correctional facility
On the premises of a hospital or nursing home (unless licensee has written authorization)
In an amusement park
On the premises of a church, synagogue, or other place of worship
At any meeting of a governmental entity

You would think someone at DPS would actually read the dang law they quote.

Sec. 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;

(5) in an amusement park; or

(6) on the premises of a church, synagogue, or other established place of religious worship.

(c) 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, at any meeting of a governmental entity.

(d) A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed.

(e) A license holder who is licensed as a security officer under Chapter 1702, Occupations Code, and employed as a security officer commits an offense if, while in the course and scope of the security officer's employment, the security officer violates a provision of Subchapter H, Chapter 411, Government Code.

(f) In this section:

(1) "Amusement park" means a permanent indoor or outdoor facility or park where amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation more than 120 days in each calendar year, and has security guards on the premises at all times. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.

(2) "License holder" means a person licensed to carry a handgun under Subchapter H, Chapter 411, Government Code.

(3) "Premises" means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.

(g) An offense under Subsection (a), (b), (c), (d), or (e) is a Class A misdemeanor, unless the offense is committed under Subsection (b)(1) or (b)(3), in which event the offense is a felony of the third degree.

(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9.



Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1214, Sec. 2



(h-1) It is a defense to prosecution under Subsections (b) and (c) that the actor, at the time of the commission of the offense, was:

(1) an active judicial officer, as defined by Section 411.201, Government Code; or

(2) a bailiff designated by the active judicial officer and engaged in escorting the officer.



Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1222, Sec. 5



(h-1) It is a defense to prosecution under Subsections (b)(1), (2), and (4)-(6), and (c) that at the time of the commission of the offense, the actor was:

(1) a judge or justice of a federal court;

(2) an active judicial officer, as defined by Section 411.201, Government Code; or

(3) a district attorney, assistant district attorney, criminal district attorney, assistant criminal district attorney, county attorney, or assistant county attorney.

(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.

(j) Subsections (a) and (b)(1) do not apply to a historical reenactment performed in compliance with the rules of the Texas Alcoholic Beverage Commission.

(k) It is a defense to prosecution under Subsection (b)(1) that the actor was not given effective notice under Section 411.204, Government Code.

[mlawler]

Thanks all who corrected my error! I had been left with the understanding that the listed prohibited places didn't have to post 30.06 notices.

[G.A. Heath]

Thanks all who corrected my error! I had been left with the understanding that the listed prohibited places didn't have to post 30.06 notices.

Thats one of the reasons many of us visit this forum is to learn things we were taught wrong or given the wrong impression on.