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Deferred Adjudication = Convicted?

Posted: Thu Aug 21, 2008 8:05 pm
by djdonte
I recieved and finished probation for a class b misdimeanor about 3 years ago in texas. Would that disquallify me from getting a CHL? I know you cant have any convictions for 5 years. What about unpaid tickets?

Do I need a CHL to carry my pistol in my car in the glovebox or trunk in Texas? Thats really all I want to do at least for now, as I dont own any pistols small enough to be confortably concealed (yet).

Lastly, I know it is legal to have a concealed pistol in your car in Lousiana, where I work. Would I be in trouble if i got pulled over in Texas, where I live on my way to lousiana? How do i prove I am transporting my weapon, other than the fact of my direction of travel on I-10 towards New Orleans?

Re: Deferred Adjudication = Convicted?

Posted: Thu Aug 21, 2008 8:19 pm
by boomerang
Government Code 411.171.
(4) "Convicted" means an adjudication of guilt or, except as provided in Section 411.1711, an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:
(A) expunged; or
(B) pardoned under the authority of a state or federal official.

In general, you don't need a CHL to carry in your car in Texas if you can legally possess the handgun, you're not a gang member, and you're not committing any crimes more serious than a traffic offense at the time. You can put it in your trunk if you want but it's not much use back there.

Re: Deferred Adjudication = Convicted?

Posted: Thu Aug 21, 2008 8:28 pm
by djdonte
Ok i was under the impression that a weapon in my glovebox or under the seat was a concealed weapon. Am I under obligation to disclose the fact that I have a weapon in the car unless he asks?

Re: Deferred Adjudication = Convicted?

Posted: Thu Aug 21, 2008 8:40 pm
by boomerang
djdonte wrote:Ok i was under the impression that a weapon in my glovebox or under the seat was a concealed weapon.
The law requires the handgun to be concealed in your car. I'll let one of the instructors explain the details of spaghetti penal code.
djdonte wrote:Am I under obligation to disclose the fact that I have a weapon in the car unless he asks?
The law doesn't require you to volunteer that information.

Ethical obligations? I won't touch that hot potato.

Re: Deferred Adjudication = Convicted?

Posted: Thu Aug 21, 2008 8:57 pm
by Skiprr
djdonte wrote:Ok i was under the impression that a weapon in my glovebox or under the seat was a concealed weapon. Am I under obligation to disclose the fact that I have a weapon in the car unless he asks?
The section of the Texas Penal Code that applies was modified as a result of the 2007 legislative session. To save you a search:
PC §46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(1) on the person's own premises or premises under the person's control; or

(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:

(1) the handgun is in plain view; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.

(a-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
The layout isn't identical because it's darned difficult to do indenting on the Forum, but you get the gist. A handgun must not be in plain view when carrying it in your car or truck.

You have no legal obligation to volunteer to a LEO during a traffic stop that you have a handgun in the vehicle (once you get your CHL, you do have a legal obligation to show the officer your plastic). That said, I believe more and more jurisdictions are making it standard practice to ask if there is a firearm in the car. So you may be asked, and you may then be asked where the gun is located.

If you want to know more about the legal requirements about CHLers and their interaction with LEOs, the pertinent areas are Texas Government Code §411.205, 411.206, and 411.207.

Re: Deferred Adjudication = Convicted?

Posted: Thu Aug 21, 2008 9:05 pm
by djdonte
Ok thanks for the info guys i really appreciate it. I guess i wont even bother applying for a CHL if all i want to do is carry my weapon in my car.

Re: Deferred Adjudication = Convicted?

Posted: Fri Aug 22, 2008 10:06 am
by LarryH
djdonte wrote:I guess i won' even bother applying for a CHL if all i want to do is carry my weapon in my car.
I'd rethink that statement if I were you. Why would you want to limit yourself to carrying in your car? That's not the only time/place you can encounter dangerous people/situations.

Besides, there are some fringe benefits.

Most LEOs recognize that a CHL holder has passed both a background investigation and a training class, therefore they are more likely to assume that you're a law-abiding citizen. A non-CHL with a weapon in the car may not receive the same "benefit of the doubt".

If you plan on purchasing another weapon or three, the CHL allows bypassing of the NICS check.

Re: Deferred Adjudication = Convicted?

Posted: Fri Aug 22, 2008 1:08 pm
by Skiprr
I agree with Larry. While the clarification in 2007 of the "traveling" law was immensely valuable to Texans, it didn't replace the benefit of having a CHL.

The odds of actually needing to deploy a handgun while sitting in your car are pretty slim. From a personal defense perspective, inside your vehicle you have a ton or more of material around you that's fairly mobile, tougher than your skin, and a lot faster in a straight line than you can be on your feet...and you can stomp the accelerator much quicker than you can access and engage a concealed firearm. The vast majority of the time, pedal-to-the-metal is the best course of action.

There's a separate set of skills needed to utilize a handgun from inside a vehicle that few people consider or train for, issues of getting through the windshield or windows if they're rolled up (which they should be); dealing with shattering safety glass; dealing with the possibility of another passenger while you shoot; posture and firing hand position when aiming driver's side as opposed to passenger side; dealing with the limitations of covering your six.

If your car is so boxed in that you can't move it, then there's a good possibility you don't want to let yourself get caught in the cockpit if the yogurt is about to fly into the fan. The cockpit can quickly become a trap if there's more than one assailant. What you can do outside the car much better than inside it is have full use of hands and feet, maneuver 360, make quick adjustments both horizontally and vertically, and utilize cover and concealment: the vehicle as well as things external to it.

VCAs (Violent Criminal Actors) typically aren't the sharpest tool in the garden, but whatever they're about to do, it's likely they've done it before. And prison makes a great training ground for the very tactics that are used to place law-abiding citizens in mortal danger.

If a VCA has selected you as a target, he's gonna want to see your hands just as much as the LEO would who's pulled you over for speeding. Unless you're perceived as a particularly soft target (think of the recent incident with mother and young son in a convertible pulling up to order at a fast-food restaurant), the VCA--and probably a friend--are going to try to assault you outside the car while you're paying attention to something else: as you step out of the vehicle with your hand on the door; loading stuff you just bought into the trunk; putting the nozzle into the gas tank or fiddling with the pump's credit card keypad; carrying groceries into the house.

Bottom line is that if you ever truly need your handgun to defend your life or your family, the odds are extremely high that you'll want it on your person rather than in the glove compartment of the car.

And as good a job as the modification to PC §46.02 is, it has some limitations that may remain open to interpretation by the local DA. For example, you'll note that 46.02(2) states that a person (non-CHL) commits an offense by carrying a handgun if the person is not "inside of or directly en route to a motor vehicle that is owned by the person or under the person's control." We've wondered why it didn't read, "directly en route to or from a motor vehicle that is owned by the person..." but it doesn't. Picky, but you can bet our previous Houston DA, Chuck Rosenthal, would have picked that nit if it came up (he was a notorious opponent of the traveling law in general).

Under PC §46.02, if you have to get gas at 11:00pm Friday at the Stop-and-Rob because that's all that's nearby, your handgun has to stay hidden in the vehicle. If your friend offers to drive his car for a day trip to Galveston, your handgun can't come with you. If you're traveling across state and pull into a motel parking lot at oh-dark-thirty, you can't take your gun with you when you walk into the lobby to register. And--far fetched here, I know, because we're all calm, mature people--if you ever get really upset with the guy almost hitting you in NASCAR-like freeway traffic and you let loose with a certain common hand gesture and get caught, you're guilty of PC §42.01(2), a Class C misdemeanor that is not "a violation of a law or ordinance regulating traffic," making your carrying of a handgun in your car a Class A misdemeanor. (Of course, you can't violate PC §42.01 with or without a CHL, but you get my point.)

And, unless you never get out of your car after you leave the house, you face the constant hassle of transferring the handgun to its hiding place in the vehicle every time you go from your house to the car, and of transferring the gun again from its hiding place to concealment on your person every time you exit the car when you return home...all without ever letting the gun be seen. Leaving the gun in the car at all times presents its own problems, especially guarding against theft. You don't want your handgun in criminal hands.

I didn't mean to run on so long, but after the revision to PC §46.02 went into effect September 2007, I've seen several questions about whether a CHL was still worthwhile. As you can tell, my personal opinion is strongly in favor of having a CHL. It has huge practical as well as convenience benefits: you can keep the handgun on your person (where it'll do the most good) at all times it's legally allowed; you learn more about--and tend to stay more aware of--self-defense and the law; you eliminate the need to constantly shift the gun from your person to car concealment; you get to bypass the NICS check when you buy a gun from an FFL...and hopefully you're more likely to get advanced training that enables you to deploy and use the gun to its maximum potential in the widest possible variety of scenarios where it might be necessary.

Oh: I am not a lawyer, and am not an expert at anything. I just type a lot when I have spare time... ;-)

Re: Deferred Adjudication = Convicted?

Posted: Fri Aug 22, 2008 1:21 pm
by djdonte
I definatly agree with you that my gun would be alot more useful on my person, but as i stated above, I beleve I am ineligable for a CHL untill 2011 due to my deferred adjudication and an unpaid ticket. :???:

Re: Deferred Adjudication = Convicted?

Posted: Fri Aug 22, 2008 2:37 pm
by Skiprr
I was singling you out, djdonte. I've seen a few hints/questions about a CHL being of lesser value since the passing of the mod to PC §46.02. Because I never threw my two pennies into the hat about the subject before, and I had some time at lunch to kill, I did it now. :smile:

And I wouldn't write-off the CHL right away. Some folks post specific details about their situation, and I do not think that's a good idea on a public forum. But unless you're certain you have a three-year wait, I'd try to locate an informed attorney and get an opinion. It might be worth it.

I know you've already visited the DPS Website and read the info, but to make sure the link is here for someone else who might be browsing: http://www.txdps.state.tx.us/administra ... sindex.htm.

Re: Deferred Adjudication = Convicted?

Posted: Fri Aug 22, 2008 4:01 pm
by djdonte
Skiprr wrote:I was singling you out, djdonte. I've seen a few hints/questions about a CHL being of lesser value since the passing of the mod to PC §46.02. Because I never threw my two pennies into the hat about the subject before, and I had some time at lunch to kill, I did it now. :smile:

And I wouldn't write-off the CHL right away. Some folks post specific details about their situation, and I do not think that's a good idea on a public forum. But unless you're certain you have a three-year wait, I'd try to locate an informed attorney and get an opinion. It might be worth it.

I know you've already visited the DPS Website and read the info, but to make sure the link is here for someone else who might be browsing: http://www.txdps.state.tx.us/administra ... sindex.htm.

Could anyone point me to a lawyer who is knowledgeable in this subject?

Re: Deferred Adjudication = Convicted?

Posted: Fri Aug 22, 2008 4:09 pm
by djdonte
I guess i could start the preliminairy application anyway. Whats the worst that could happen? I get denied? I could only get in trouble for KNOWINGLY lying ritght?

Re: Deferred Adjudication = Convicted?

Posted: Fri Aug 22, 2008 6:17 pm
by Crossfire
DJDONTE - Sorry I have not responded to you before. I guess I just overlooked this thread.

You will not be eligible for a CHL until 5 years past the conviction date of your Class B Misdemeanor. Probation, deferred adjudication; none of that has anything to do with it. It is 5 years from the conviction date.

Your unpaid traffic ticket will not effect your eligibility, as long as it was a Class C Misdemeanor (not a DUI).

If you apply for the CHL, you will be denied, and you will be out the $140 application fee. DPS does NOT refund the fee for any reason. Your original question was "could you carry in your car without a CHL", and that answer is "yes". As long as you are legally able to possess a firearm, you can carry it in your car.

Re: Deferred Adjudication = Convicted?

Posted: Sat Aug 23, 2008 12:41 am
by djdonte
The law says something about it not including convictions that are expunged. Is this the same as when i pay a lawyer to seal my case?

Re: Deferred Adjudication = Convicted?

Posted: Sat Aug 23, 2008 1:34 am
by Crossfire
Are you talking about having a juvenile record sealed? That is not the same as an expungement. Even sealed juvenile records are accessible by DPS for CHL purposes.