Why I practice criminal defense

We are a nation of laws.  The most important of these being our criminal laws.  Our criminal laws have been written down in books, and they articulate the behavior we expect from our fellow citizens.  These laws have specific elements to them, and when a person meets each and every element of an offense, that person can (and should) be charged and prosecuted with that crime.  However, the opposite is just as true.  When a person commits just four out of five elements, that person has NOT acted in a way that violates our laws, and he (or she) should NOT be charged or prosecuted with a crime.

When we allow the State to prosecute individuals when they have not met each and every element of an offense, we no longer live in a nation of laws, but a police state.

In our criminal justice system, the prosecutor has the burden of presenting evidence on each element of a criminal charge, but it is for the jury to determine whether the state’s evidence sufficiently PROVES each element beyond a reasonable doubt.  However, when the state fails to present any evidence on at least one element of a criminal charge, the defendant is entitled to a directed verdict from the judge at the close of the state’s case in chief, and the case is taken from the jury.  When the prosecutor knows he doesn’t have any evidence for one essential element, he has the duty to dismiss the case.   Similarly, when a police officer is making a decision whether or not to make an arrest, he should evaluate the facts and be sure that each element is met.  From time to time, mistakes are made by the humans who fill these roles in our society, and it is up to defense attorneys to make sure justice is done.

A recent case illustrates this point perfectly.


A young man was out with a friend after returning home from Afghanistan.  We will call him James.  Over the course of the evening, James drank three beers with his friend.  Before driving, he waited approximately an hour, letting the effects of the alcohol diminish.  James and his friend decided to head back to his place, where things went south.  James was driving his Camaro SS, and MIGHT have been driving a bit recklessly (showing it off to his friend).  Something about doing 70mph in 2nd gear with the traction control turned off did not end well for James.  Luckily, no one was injured!  However, the single-vehicle accident occurred directly in view of a local deputy, attracting some unwanted attention.

The officer detected a slight odor of alcohol, investigated, and eventually arrested James for Driving While Intoxicated (later blood tests would show James only had a .04 BAC).  Unfortunately, things got worse for James.  Not thinking he was doing anything wrong, James told the officer he had a handgun in his trunk.  James has a concealed handgun license, and wasn’t even carrying it at the time of his arrest, so he didn’t think it could get him in trouble.  He was wrong.  The officer charged him with Unlawful Carrying of Handgun by License Holder in addition to Driving While Intoxicated.  He was in trouble.

The elements of Unlawful Carrying of Handgun by License Holder are found in Texas Penal Code (TPC) Sec. 46.035(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.”

The elements are as follows:

  1. A License Holder
  2. While Intoxicated
  3. Carries
  4. A Handgun
  5. Under the Authority of Subchapter H, Chapter 411, Government Code

In the present case, the state will present evidence that James was a license holder, and that he was intoxicated (there is SOME evidence of this, but the jury probably won’t find he was intoxicated beyond a reasonable doubt), but it will have significant trouble presenting evidence that he was carrying under the authority of Subchapter H, Chapter 411, Government Code.

In Spencer v. State, 2007 Tex. App. LEXIS 2557, “carrying” in TPC 46.035 is defined the same as in TPC 46.02 (Unlawful Carry of a Weapon) to mean “on or about the person”.  This older law has been interpreted by Texas courts consistently throughout the years.

The question of whether a handgun is “on or about the person” is discussed at length in Pineda v. State, 2000 Tex. App. LEXIS 6099.  Texas courts have defined carrying “on or about the person” to extend to the entire cab of a vehicle.  However, “carrying on or about the person” has never been extended to the trunk area.  Furthermore, it is very unlikely that it will ever be extended that far, as Texas Courts have consistently used the Wagner Court’s definition of “on or about the person”:

“close at hand, convenient of access, and within such distance of

the party so having it as that such party could, without materially

changing his position, get his hand on it.”

Wagner v. State, 80 Tex. Crim. 66.

In this case, James did not have immediate access to the handgun.  He could not gain access to the handgun without stopping the vehicle, getting out, opening the trunk, and retrieving it from its storage location, which would clearly be a material change to his position.

There is no evidence James carried the handgun that was found in his trunk.  Without any evidence to support this element, the case against James should never have been brought by the officer, nor filed by the district attorney’s office.  It is now up to me to make sure that justice is done for James.

We are a nation of laws.  This is why I practice criminal defense.


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