Weekly Case Summaries: September 9, 2016

Texas Courts of Appeals

Tafel v. State (10th COA)

Nos. 10-14-00019-CR & 10-14-00020-CR      8/31/16

Issue:

Is Penal Code §46.035(i) a defense to prosecution or an exception?

Holding:

Section 46.035(i) is a defense, meaning that the defendant must raise it, rather than an exception which must be pleaded and negated by the State. Additionally, the letter from the county judge in this case does not meet the requirement of an interpretation of the law that would entitle the defendant to a “mistake of law” affirmative defense. Read opinion

Dissent (Gray, C.J.):

Chief Justice Gray dissented with the majority’s analysis of whether §46.035(i) should serve as a defense or an exception to the crime of unlawful carrying of a handgun. Additionally, he discussed the meaning of notice in the statute, he would not have found effective notice in this case, and he would have allowed the defendant to rely on a “mistake of law” defense. Read opinion

Commentary:

The holding regarding the defense is straightforward. Some may view the facts about the defense of “mistake of fact” as sympathetic in the current debate over Second Amendment rights, concealed carry, and open carry. It would not be surprising for prosecutors to hear about this case in the upcoming legislative session.

Gonzalez v. State (13th COA)

No. 13-16-00092-CR      9/1/16

Issue:

Can a defendant raise the issue of the reasonableness of a stop as a pretrial motion in a failure to identify case?

Holding:

No. A pretrial motion is designed to address preliminary matters only, and in a failure to identify case, the reasonableness of the stop is not a preliminary matter but an element of the offense that must be proved at trial. Read opinion

Commentary:

This is a straightforward application of existing precedent. Generally stated, a court cannot suppress an element of an offense.

James v. State (1st COA)

Nos. 01-15-00102-CR, 01-15-00103-CR, & 01-15-00104-CR       8/30/16

Issue:

Is the defendant’s right to counsel of choice violated when the trial court denies a last-minute substitution of counsel?

Holding:

No. In this case, the defendant had no particular objections to his appointed counsel, who was ready for trial as was the State, and the case had been set for trial three months. Accordingly, the trial court did not abuse its discretion by denying his dilatory motion for continuance to hire a new lawyer. Read opinion

Commentary:

Keep this case handy for when the defendant tries the old “I really need a new lawyer even though we are set for trial” trick.

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