WHY WAS MY HANDGUN ILLEGAL IF TEXAS IS A "CONSTITUTIONAL CARRY" STATE?
Unlawful carry of a weapon in Texas involves carrying a firearm or other weapon in a manner that is not permitted by state law. The specifics of what constitutes unlawful carry, as well as the penalties, can vary based on the circumstances and location. Here's an overview of the key points regarding unlawful carry in Texas:
Legal Framework
Texas Penal Code § 46.02: Unlawful Carrying Weapons
Under Texas law, it is generally unlawful to carry a handgun, illegal knife, or club on or about your person unless you meet certain exceptions.
Key Provisions and Exceptions
Handgun:
Without a License: It is illegal to carry a handgun outside of your property, vehicle, or watercraft without a valid License to Carry (LTC), although recent laws (effective September 1, 2021) under HB 1927 allow for permitless carry for individuals 21 years and older who are not otherwise prohibited from possessing a firearm.
Prohibited Locations: Even with a license, carrying a handgun is prohibited in certain locations, such as schools, polling places, government meetings, courts, racetracks, secured airport areas, within 1,000 feet of a location designated by the Texas Department of Criminal Justice, and establishments where alcohol is sold if 51% or more of their revenue comes from alcohol sales.
Vehicle Carry:
Without a License: You may carry a handgun in your vehicle or watercraft without a license if the handgun is concealed. The handgun must not be in plain view or carried in a manner calculated to alarm.
With a License: If you have a License to Carry, you can carry a handgun openly or concealed in your vehicle.
Places Where Firearms are Prohibited:
Schools and Educational Institutions: It is unlawful to carry a firearm on the premises of a school or educational institution.
Government Buildings: Carrying a firearm in government buildings, courtrooms, and certain other public places is prohibited.
Businesses with Posted Signs: Businesses that post specific signs prohibiting firearms can make it illegal to carry a weapon on their premises.
Penalties for Unlawful Carry
Class A Misdemeanor: Unlawful carry is generally a Class A misdemeanor, punishable by up to one year in jail and a fine of up to $4,000.
Third Degree Felony: If the unlawful carry occurs in a place where the carrying of weapons is specifically prohibited, such as on school grounds, it can be elevated to a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.
Defenses to Unlawful Carry
License to Carry: Having a valid LTC can be a defense to carrying a handgun in many situations.
Private Property: Carrying a weapon on your own property or property under your control is generally allowed.
Traveling: Carrying a weapon in your vehicle is allowed under certain conditions, even without a license.
Recent Changes: Permitless Carry (HB 1927)
Eligibility: As of September 1, 2021, individuals 21 years and older who are not prohibited by state or federal law from possessing a firearm can carry a handgun without a permit, in most places, provided they are not engaging in criminal activity other than a minor traffic violation.
Restrictions Remain: Permitless carry does not change the restrictions on where firearms can be carried and does not allow carrying by individuals who are otherwise prohibited from possessing firearms.
Summary
Unlawful carry laws in Texas are complex and include various provisions and exceptions. Recent legislative changes have made it legal for many individuals to carry handguns without a permit, but there are still numerous restrictions and prohibited locations. Penalties for unlawful carry can be severe, particularly when firearms are carried in prohibited places. Understanding the specifics of these laws and ensuring compliance is crucial. Consulting with a legal expert is advisable if you have questions or face charges related to unlawful carry in Texas.
CAN OFFICERS SEARCH MY VEHICLE WITHOUT CONSENT?
In many jurisdictions, including Texas, the smell of marijuana can provide law enforcement officers with probable cause to search a vehicle without a warrant. Here are some important points to understand about vehicle searches based on the smell of marijuana:
Probable Cause
Definition: Probable cause means that the officer has a reasonable basis to believe that a crime has been, is being, or will be committed.
Smell of Marijuana: The odor of marijuana is often considered sufficient probable cause for officers to conduct a search of your vehicle. This includes both the interior and any containers within the vehicle that might conceal marijuana or other contraband.
Legal Justification
Plain Smell Doctrine: Similar to the "plain view" doctrine, the "plain smell" doctrine allows officers to search a vehicle if they detect the odor of marijuana. The courts generally uphold this as a legitimate reason for a search.
State Laws: The specific application of this doctrine can vary by state. In some states where marijuana is legal, the smell alone might not be sufficient probable cause, but in Texas and other states where marijuana remains illegal, it often is.
Search Scope
Vehicle Interior: Officers can search the passenger compartment, including the glove compartment, center console, and any containers that could reasonably contain marijuana.
Trunk: If the officer believes there is a reasonable likelihood that marijuana is stored in the trunk, they may extend the search to include the trunk.
Personal Items: Bags, backpacks, or other personal items inside the vehicle can also be searched.
Exceptions and Challenges
Medical Marijuana: In states where medical marijuana is legal, having a valid medical marijuana card could potentially provide a defense. However, the smell could still lead to a search.
Recreational Marijuana: In states where recreational use is legal, the smell might not be probable cause for a search, but other factors (like signs of impairment) could justify it.
Search Validity: If a search is conducted without probable cause, any evidence found may be inadmissible in court. Challenging the legality of the search often involves arguing that the officer did not have sufficient reason to believe a crime was being committed.
Legal Recourse
Suppressing Evidence: If you believe your vehicle was searched unlawfully, you can file a motion to suppress any evidence found during the search. A successful motion can result in the evidence being excluded from your case.
Consulting an Attorney: It's crucial to consult with a criminal defense attorney who can evaluate the circumstances of the search and advise you on the best course of action.
Recent Changes in Law
Hemp Legalization: The legalization of hemp (which smells similar to marijuana) in some places has complicated the issue of probable cause based on smell alone. This has led some courts to reconsider whether the smell of marijuana can justify a search without additional evidence.
In summary, while the smell of marijuana often provides probable cause for a vehicle search in many jurisdictions, the specific legal landscape and recent changes in marijuana and hemp laws can influence how this is applied. It's essential to be aware of your rights and seek legal advice if you believe your vehicle was searched unlawfully.
WHAT HAPPENS IF LAW ENFORCEMENT DOES NOT READ MY MIRANDA RIGHTS?
The term "Miranda" refers to a set of rights that law enforcement officers are required to inform a suspect of when they are taken into custody and prior to interrogation. These rights stem from the landmark U.S. Supreme Court case Miranda v. Arizona (1966). Here’s an overview of what Miranda rights entail and their implications:
Miranda Rights
When a person is taken into custody, the police must inform them of the following rights:
Right to Remain Silent:
You have the right to remain silent. Anything you say can and will be used against you in a court of law.
Right to an Attorney:
You have the right to consult with an attorney before speaking to the police and to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed to you at no cost.
Purpose and Importance
The primary purpose of Miranda rights is to protect a suspect’s Fifth Amendment right against self-incrimination and their Sixth Amendment right to legal counsel. By ensuring suspects are aware of these rights, the legal system aims to prevent coerced or involuntary confessions and to ensure fair treatment during the legal process.
When Miranda Rights Must Be Given
Miranda warnings must be provided when two conditions are met:
Custody: The suspect is in police custody, meaning they are not free to leave.
Interrogation: The police are conducting an interrogation, meaning they are asking questions or using other techniques designed to elicit an incriminating response from the suspect.
Consequences of Failing to Provide Miranda Warnings
If law enforcement officers fail to provide Miranda warnings when required:
Exclusion of Statements: Any statements made by the suspect during the interrogation may be excluded from evidence in court. This is known as the "exclusionary rule."
Derivative Evidence: Evidence derived from the unwarned statements may also be inadmissible in court, depending on the circumstances.
Exceptions to Miranda Warnings
There are some exceptions where Miranda warnings may not be required:
Public Safety Exception: If there is an immediate threat to public safety, police can question a suspect without first providing Miranda warnings.
Routine Booking Questions: Questions asked during the booking process, such as name, address, and date of birth, do not require Miranda warnings.
Spontaneous Statements: Voluntary statements made by a suspect without prompting by the police are not subject to Miranda requirements.
Practical Implications
Right to Silence: Suspects should clearly state that they wish to remain silent and not answer any questions without an attorney present. Simply remaining silent may not be sufficient to invoke this right.
Right to an Attorney: Suspects should explicitly request an attorney if they want legal representation during questioning.
Summary
Miranda rights are a crucial aspect of the U.S. criminal justice system, designed to protect individuals from self-incrimination and to ensure they have access to legal counsel. These rights must be clearly communicated to suspects in custody before any interrogation. Failure to provide Miranda warnings can lead to the exclusion of evidence obtained during the interrogation, which can significantly impact the outcome of a criminal case.
I DID NOT DO ANYTHING WRONG, HOW CAN I DEFEND MYSELF?
In criminal law, an affirmative defense is a type of defense in which the defendant acknowledges the facts of the case but presents a justification or excuse that should lead to a not guilty verdict. Here are some common affirmative defenses used in criminal cases:
1. Self-Defense
Definition: The defendant claims they used force to protect themselves from imminent harm.
Requirements: The force used must be proportionate to the threat faced. Deadly force can only be justified if the defendant believed they were at risk of death or serious bodily harm.
2. Defense of Others
Definition: The defendant argues they used force to protect another person from imminent harm.
Requirements: Similar to self-defense, the force used must be reasonable and proportionate to the threat faced by the other person.
3. Defense of Property
Definition: The defendant claims they used force to protect their property from being stolen or damaged.
Requirements: Typically, non-deadly force can be used to protect property. Deadly force is generally not justified unless it also involves self-defense or defense of others.
4. Duress
Definition: The defendant argues they committed the crime because they were forced to do so under threat of imminent harm.
Requirements: There must be a credible threat of serious harm or death, and the defendant must have had no reasonable opportunity to escape the situation.
5. Necessity
Definition: The defendant claims they committed the crime to prevent a greater harm from occurring.
Requirements: The harm prevented must be greater than the harm caused by the criminal act, and there must have been no reasonable legal alternative.
6. Insanity
Definition: The defendant argues they were not responsible for their actions due to a severe mental disease or defect.
Requirements: Various legal standards exist for insanity defenses, such as the M'Naghten Rule, which requires proving the defendant did not understand the nature of their actions or that their actions were wrong.
7. Intoxication
Voluntary Intoxication: Typically not a defense to criminal charges, but it can sometimes reduce the degree of the crime (e.g., from first-degree murder to manslaughter).
Involuntary Intoxication: Can be a complete defense if the defendant was unknowingly or forcibly intoxicated and lacked the capacity to understand their actions.
8. Entrapment
Definition: The defendant argues they were induced by law enforcement to commit a crime they would not otherwise have committed.
Requirements: It must be shown that the criminal idea originated with law enforcement and that the defendant was not predisposed to commit the crime.
9. Alibi
Definition: The defendant claims they were not present at the scene of the crime and therefore could not have committed it.
Requirements: The defendant must provide evidence showing they were elsewhere when the crime occurred.
10. Mistake of Fact
Definition: The defendant claims they committed the act under a mistaken belief about a fact that negates criminal intent.
Requirements: The mistake must be reasonable and relevant to the criminal charge (e.g., taking someone's property believing it was yours).
11. Consent
Definition: The defendant argues the victim consented to the defendant's conduct.
Requirements: The consent must be voluntary, informed, and given by someone with the legal capacity to consent. This defense is typically not available for serious crimes like assault or murder.
12. Age (Infancy)
Definition: The defendant argues they are too young to be held criminally responsible.
Requirements: This defense applies to juveniles, with specific age limits varying by jurisdiction.
Summary
Affirmative defenses in criminal law acknowledge the defendant's actions but provide a justification or excuse to avoid criminal liability. Each defense has specific requirements and applicability, depending on the facts of the case and jurisdictional laws. It's essential to consult with a criminal defense attorney to understand which affirmative defenses may be relevant and viable in a particular case.
WITEK|BASILIO handles all types of criminal cases. Every client that comes through our door gets the same experience whether you are being charged with a Traffic Ticket or a First Degree Felony. Our list of clients who eventually get their charges dropped increases everyday. If you would like your case added to this list, CALL US TODAY at 713-955-6000.
In today's age, it is very common for employers, landlords, even potential mates to do a background check on someone. Criminal databases are being created everyday by companies. The internet makes this information easily available with just a click of a button.
There is nothing more important than someone's reputation. Do not let one past mistake corrupt your future. WITEK|BASILIO can get those criminal records erased or sealed depending on your specific case.
CALL 24/7! 713.955.6000
1001 Texas Avenue, Ste. 440, Houston, TX 77002 | witekbasilio@gmail.com
713-955-6000