Recently, Fentanyl has been used by cartels and other distributers of illicit drugs to make their batches of product more potent. Illicitly produced fentanyl is often sold as a powder or mixed with other drugs, such as heroin or cocaine, which can further increase the risk of overdose – particularly because most people do not even realize what they are taking has Fentanyl in it.

The use of fentanyl has become a significant public health concern in recent years, as overdose deaths involving the drug have increased dramatically. There are widely available home-test kits for Fentanyl that could be used by the masses to make sure they are not inadvertantly ingesting this powerful, deadly substance – but in Texas, they are illegal! Unbelievably, the cheap and easy to use test kits are considered drug paraphernalia in Texas under the Texas Health and Safety Code.

As previously stated, most overdose deaths from Fentanyl, unlike other controlled substances, are unintentional – as in, the person that took the Fentanyl did not intend, or even know what they comsumed had Fentanyl in it. Often illicitly pressed and manufactured pills that look identical to pharaceutical drugs, such as xanax, vicodin, or Oxycontin have appeared on the black market (with no indication of the deadly Fentanyl inside).

Finally, it appears as if the law might be changed, and the lifesaving test-kits made legally available to people in Texas. SB 86 has been proposed by Nathan Johnson of Dallas. If passed, it would

Act would allow individuals and organizations to possess and distribute fentanyl test kits without fear of legal repercussions. The bill specifies that the test kits must be FDA-approved and that the results of the test must not be admissible in any criminal or civil proceeding. Additionally, the bill includes provisions for immunity from prosecution for individuals seeking medical assistance during an overdose or seeking to help someone else who has overdosed.

The bill has received support from a range of stakeholders, including harm reduction advocates, law enforcement officials, and medical professionals, who believe that the legalization of fentanyl test kits could help to prevent overdose deaths and provide individuals with important information about the drugs they are using.

Unfortunately, many of us (myself included) have lost people we cared about because of accidental overdose on Fentanyl. Make sure to demand your congressman change the laws in Texas so we can save peoples lives! Regardless of how you feel about drugs, choosing to alter your consciousness, even illegally, should not be punishable by death!

True story – with the caveat that firearm sound suppressors (silencers) remain illegal under Federal law. This is similar to how marijuana remains Federally illegal, but many states have laws permitting the use or sale of marijuana. Texas set up laws that went into effect in 2021 that not only legalized sound suppressing devices under Texas law, but laws were enacted to prevent Federal enforcement of laws against firearm sound suppressing devices (or as the Feds call them “firearm mufflers”).

So, what is a firearm sound suppressor (sometimes referred to as “silencers,” even though none can completely silence the sound of a bullet firing from a weapon)?

Weapon Suppressors – What are they?

It is usually a cylindrical object that attaches to the end of a barrel, usually by threads on the barrel that screws onto cylinder, with the intended purpose of lowering decibel levels created when the weapon is fired. Weapon suppressors don’t actually silence a gun shot. But they do lower, or muffle, the noise enough that the sound is not as easily heard, and does not risk damaging the ears due to excessive sound levels. The typical reduction from such a device is between 30 to 40 db. A typical gunshot ranges between 140 and 165 db. So none of the devices really “silence” a gunshot. At best, they muffle the sound to the level of something like an electric drill or table saw used for cutting lumber.

Texas Laws Created to Protect your Ability to Own a Firearm Suppressor

On June 17, 2021 several pieces of legislation related to firearm suppressors/silencers was signed into law by Texas Governor Greg Abbott, one of which was House Bill 957 (HB 957).

House Bill 957 repealed the criminal statute which made it a criminal offense to possess, manufacture, transport, or repair a firearm silencer. Laws were also passed that essentially state that any firearm suppressor manufactured in Texas, and that remains in Texas, will not be subject to federal law.

What HB 957 does is says that you cannot be prosecuted in Texas for owning a suppressor or silencer – but it DOES remain illegal under Federal law. That means it potentially COULD be prosecuted under Federal law. So to address this issue, additional laws were enacted to prevent Texas resources from being used to prosecute the Federal firearm laws prohibiting firearm silencers / suppressors (or as the Federal law calls it “firearm mufflers”).

HB 957 prevents Texas state resources from being allowed to enforce the Federal law prohibiting silencers, suppressors, or gun mufflers. If a State official aids enforcement of the Federal law, they could lose funding for their department!

Sec. 2.103. STATE GRANT FUNDS. (a) An entity described by Section 2.101 may not receive state grant funds if the entity adopts a rule, order, ordinance, or policy under which the entity enforces a federal law described by Section 2.102(a) or, by consistent action, allows the enforcement of a federal law described by Section 2.102(a).

(b) State grant funds for the entity shall be denied for the fiscal year following the year in which a final judicial determination in an action brought under this subchapter is made that the entity has violated Section 2.102(a).

ADDRESSING THE COMMERCE CLAUSE

From HB 957:

Sec. 2.052. NOT SUBJECT TO FEDERAL REGULATION. (a) A firearm suppressor that is manufactured in this state and remains in this state is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.

(b) A basic material from which a firearm suppressor is manufactured in this state, including unmachined steel, is not a firearm suppressor and is not subject to federal regulation under the authority of the United States Congress to regulate interstate commerce as if it actually were a firearm suppressor.

Sec. 2.053. MARKETING OF FIREARM SUPPRESSOR. A firearm suppressor manufactured and sold in this state must have the words “Made in Texas” clearly stamped on it.

Sec. 2.054. ATTORNEY GENERAL. On written notification to the attorney general by a United States citizen who resides in this state of the citizen’s intent to manufacture a firearm suppressor to which Section 2.052 applies, the attorney general shall seek a declaratory judgment from a federal district court in this state that Section 2.052 is consistent with the United States Constitution.

The law essentially states that if the materials used to make the suppressor / silencer / muffler are Texas-sourced raw, they are not subject to federal regulation under interstate commerce because nothing is leaving the state.

KNOW THE LAW BEFORE YOU CARRY A FIREARM

Every persons situation can be unique. If you have any question about whether or not you can legally carry a firearm, suppressor, silencer, or firearm muffler, PLEASE contact an attorney and make sure, BEFORE you decide to exercise your rights under the new Constitutional Carry law in Texas.

CHARGED WITH A WEAPON OFFENSE?

If you have been arrested for unlawful possession of a firearm, felon in possession of a firearm or ANY gun crime, call LeGrande Law NOW! Gun and other Weapon crimes are prosecuted in Texas, you need an aggressive criminal defense attorney to fight for your freedom and make sure that justice is done.

Contact Criminal Defense Lawyer Tristan LeGrande IMMEDIATELY 

281-684-3500

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Criminal defense attorney Tristan LeGrande

Yee-haw, its great to be a Texan in 2021! Your 2nd amendment right to keep and bear arms has been enhanced, and now any person over 21 years of age can carry a loaded firearm on their person, without needing to obtain a License to Carry a Firearm, previously known as a concealed carry permit (subject to a few VERY important limitations and restrictions, explained below). Many of the restrictions and limitations on the ability to carry a loaded weapon in Texas are the same as the restrictions on LTC (or CHL) license holders, under the previous law.

RESTRICTIONS ON TX CONSTITUTIONAL CARRY

• Adult (over 21 ys of age)
• Must be carried in a holster
• Not carrying a weapon in a prohibited place under TX Penal Code 46.03 (Educational institution, government building, business that does over 51% alcohol-sales, racetracks, airports, etc. See the Code for a full list).
• Not carrying a weapon while also commiting a criminal offense more serious than a traffic violation under the Texas Transportation Code. This means if you are also accused of a DWI or racing on a highway, you get an unlawful carry of a weapon charge as well.
• Not convicted of a felony in any state or Federal court
• Not convicted of certain Misdemeanors within the last 5 years: Assault , Deadly Conduct, Terroristic Threat, Discharge of a Firearm in a Public Place, or Display of a Firearm in a Public Place in a Manner Calculated to Alarm.
• Not released from confinement or community supervision for Assault – Family Violence within the last 5 years.
• Not on probation, parole, or other type of court-ordered supervision prohibiting you from possessing firearms.
• Not subject to a protective order, or mental health order prohibiting you from possessing firearms.

FULL TEXT of the Texas Penal Code Section 46

KNOW THE LAW BEFORE YOU CARRY A FIREARM

Every persons situation can be unique. If you have any question about whether or not you can legally carry a firearm, PLEASE contact an attorney and make sure, BEFORE you decide to excercise your rights under the new Consitutional Carry law in Texas.

CHARGED WITH A WEAPON OFFENSE?

If you have been arrested for unlawful possession of a firearm, felon in possession of a firearm or ANY gun crime, call LeGrande Law NOW! Gun and other Weapon crimes are prosecuted in Texas, you need an aggressive criminal defense attorney to fight for your freedom and make sure that justice is done.

Contact Criminal Defense Lawyer Tristan LeGrande IMMEDIATELY 

281-684-3500

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Criminal defense attorney Tristan LeGrande

The legal climate in Mexico right now has unexpectedly come out on the side of individual liberty and against the drug war, even as they spent billions of dollars fighting that drug war every year. One could argue that the legal system is in conflict with the political goals of the country in the drug war. The caveat to the ruling is that it only applies to use and possession and does not authorize transfer or sale – an interesting legal gymnastics that will likely be modified over time.

Advocates of the ruling like Lisa Sanchez of Mexicans United Against Crime have commented: “This case is about insisting on the need to stop criminalizing … drug users and designing better public policies that explore all the available options.”

On the political side – the opposition is obvious, with the Mexican government’s Federal Commission for the Protection against Sanitary Risk saying it will attempt to block the judge’s order, which was handed down earlier this year and first announced Tuesday.

On the legal side their is review as well, with a panel of judges set to review the ruling and decide whether it should be carried out.

In Texas, possession of cocaine is a felony offense if you are in possession of any detectable amount (even residue that cannot be weighed in a lab). Section 481 of the Texas Health and Safety Code regulates cocaine possession – with it being listed as a Penalty Group 1 substance.

You will sometiemes see cocaine possession as “PCS PG1” on court paperwork. The penalties for possession of cocaine in Texas are as follows:

• Less than one gram: State Jail Felony (6mo – 2Y state jail).
• 1 to 4 grams: 3rd Degree Felony (2 – 10Y TDCJ)
• 4 to 200 grams: 2nd Degree Felony ( 2 – 20Y TDCJ)
• 200 to 400 grams: 1st Degree Felony (5 – 99Y TDCJ)
• More than 400 grams: 10 to99 years, or life

CATCH A DRUG CASE?

If you are accused of possession of cocaine or ANY controlled substance drug crime

Contact attorney Tristan LeGrande TODAY!

281-684-3500

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Drug Attorney Tristan LeGrande

Tristan LeGrande – LeGrande Law

Potential punishments for evading arrest or detention depend on several things, namely, whether or not you were in a vehicle, and whether you failed to stop or were attempting to flee.  If accused of running from the police in a motor vehicle, or have a previous conviction for evading arrest – you are looking at Felony exposure.

What is Evading Arrest (Texas Penal Code 38.04) under Texas Law? 

TEXAS PENAL CODE Sec. 38.04. EVADING ARREST OR DETENTION.

(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.

Laymen’s terms: 1. Intentionally flee, 2. Person you know is a cop, 3. Attempting to lawfully arrest/detain.

• If charged with Evading arrest ON FOOT…the offense is a class A misdemeanor, with a potential punishment of up to 1 year in county jail and a fine not to exceed $4,000.

IF CHARGED WITH EVADING ARREST IN A MOTOR VEHICLE, IT IS A FELONY

38.04(b)(2) EVADING ARREST OR DETENTION (WITH A MOTOR VEHICLE)

(b)(2) An offense under this section is a felony of the third degree if the actor uses a vehicle or watercraft while the actor is in flight.

• If charged with evading arrest IN A MOTOR VEHICLE…the offense is a 3rd degree felony punishable by 2 to10 years in the Texas Department of Criminal Justice, and a fine not to exceed $10,000.

What is Eluding Arrest (Texas Transportation Code 545.421)? 

This is a lesser known offense that is seldom charged, but is often a more accurate way to describe a situation in which an officer is attempting to arrest or detain someone, but the person does not yield to their authority (they are not necessarily trying to flee, or get away, but just are not yielding to the officers order to stop).

Texas Transportation Code 545.421 Fleeing or Attempting to Elude Police Officer

CHARGED WITH EVADING ARREST?

CALL LEGRANDE LAW!

281-684-3500

Whether you are accused of evading arrest or detention, or ANY CRIME, do not leave your future up to chance!!!!  You need an attorney with a track record of successfully defending criminal cases.

 Attorney Tristan LeGrande gets results – CALL NOW for a Free Consultation!

CONTACT ATTORNEY TRISTAN LEGRANDE TODAY!

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Drug Attorney Tristan LeGrande

Tristan LeGrande – LeGrande Law

]]> https://legas.legrandelaw.com/criminal-justice/i-ran-from-the-police-and-they-caught-me-what-am-i-looking-at/feed/ 0 683 https://legas.legrandelaw.com/criminal-justice/they-didnt-read-me-my-rights-does-it-matter/ https://legas.legrandelaw.com/criminal-justice/they-didnt-read-me-my-rights-does-it-matter/#respond Tue, 08 Jan 2019 22:18:12 +0000 https://legas.legrandelaw.com/?p=727 Read More

There is a common misconception about your rights, relating to a person’s “Miranda” rights, and the effect of an officer not reading you Miranda warnings when you are arrested.  Movies and television would have you believe that it is some kind of magic bullet – if they did not read you Miranda warnings, you were going to walk on whatever charges you are facing. Miranda v. Arizona, 484 U.S. 436 (1966).

Not so fast.  “Miranda” has a limited application.  There are two requirements for Miranda to apply:

(1) Custody, and (2) Interrogation.

Essentially, the Miranda court case held that if you are under arrest, you must first be given certain warnings about your constitutional rights, your right against self incrimination (the 5th amendment), and your right to consult with an attorney (6th amendment).

However, for Miranda to apply, it is essential that you are actually IN CUSTODY.  By that I mean, you are under arrest.

How do you know when you are under arrest?

The Texas Code of Criminal Procedure defines the point someone is under arrest as: “when he has been actually placed under restraint or taken into custody by an officer…”Texas Code of Criminal Procedure Section 15.22.  In interpreting when an arrest takes place, the 5^th Circuit has weighed in with an objective standard: “if a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with a formal arrest.  United States v. Corral-Franco, 848 F.2d 536, 540 (5^th Cir. 1988).

What If You are Under Arrest, Not Given Miranda Warnings, and Then Questioned?

If you are not notified of, and affirmatively waive the following prior to any custodial interrogation, any statements made in violation of Miranda may be inadmissible against you in a criminal prosecution:

• The right to remain silent
• Any statements you make can and will be used against you in court
• You have a right to consult with an attorney prior to answering any questions
• If you cannot afford an attorney, one will be appointed to represent you free of charge

If you are under arrest and the police want to question you DO NOT ANSWER ANY QUESTIONS WITHOUT CONSULTING WITH AN ATTORNEY FIRST.

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If you are accused of ANY CRIME, you need an attorney with a track record of successfully defending criminal cases.

 Attorney Tristan LeGrande gets results – CALL NOW for a Free Consultation!

Contact attorney Tristan LeGrande by calling 281-684-3500

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Drug Attorney Tristan LeGrande

Tristan LeGrande – LeGrande Law

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ASSERT YOUR CONSTITUTIONAL RIGHTS IN 2019

You may have never been in a position where you needed to flex your constitutional rights.  In fact, many reading this might say: if I am doing nothing wrong, why should I assert my rights?  Won’t this make things harder for me?

I can answer that for you real quick – you MUST assert your rights, as an American, many men and women have fought, bled, and died for those rights.  You MUST because that IS how you live up to your role as a US Citizen.  Do you realize that when people become lawyers, law enforcement, become new US citizens, or assume many government positions – they swear an oath to “support and defend the constitution of the United States…”?

When YOU flex your rights, regardless of whether you are not engaged in nefarious behavior…is vital to maintaining those rights in a free society.

NOTE: Asserting your rights DOES NOT MEAN being rude, aggressive, or combative with any agent of the State (Police officer, Sheriff, Constable, District Attorney, etc, etc.).  Be assertive, but be polite and respectful.

Almost every law enforcement official you encounter is doing their job to the best of their ability, and doing it for the right reasons.  Treating agents of the State with respect and cordiality goes a long way, even if you are refusing to give consent or forfeit other important rights.  Additionally, as with anyone else you encounter, law enforcement will notice how you treat them, and MOST will respond by treating you with dignity and respect as well.

MY CHALLENGE TO YOU THIS NEW YEAR:

ASSERT YOUR CONSTITUTIONAL RIGHTS!  

Some of you are on board, but may not know exactly what I mean by asserting your constitutional rights.  So, the following are some ways in which you can stand tall and speak truth to power!

#1 Never Consent to a search without being presented with a search warrant

This is a little easier said than done, and will require you to assert your rights in an often precarious position at the side of the road, or with Officers pushing their way inside your residence.  Why is this so important?  Because knowing and voluntary consent to a search of your person or property is an exception to the warrant requirement, and oftentimes will foreclose any legal arguments in Court about the validity of the search!

#2 DO NOT Volunteer Or Admit to Any Illegal Activity

You may think you are better off if you fess up to some sort of illegal activity, in hopes that the honesty will make the Officer appreciative, and maybe they will let you off.  This is a terribly unwise thing to do – once you have admitted to committing any arrestable offense, its GAME OVER – you are at the mercy of the Officer.  Your person and effects can be searched.  You are highly likely to be arrested, and any legal objections to the search or seizure of your person or property are highly likely to fail.  (which is anything except speeding or driving with an open container)

#3 If There is even a remote possibility you are Suspected of a Crime – REMAIN SILENT 

You do not need to wait until a police officer tells you “you have a right to remain silent…” when they read you Miranda Warnings – you ALWAYS have the right to remain silent!  You cannot be forced to speak with any agent of the government.  Your 5th Amendment right against self incrimination means you always can state: “I am invoking my right to remain silent, I will not be making any statement or answering any questions.”

#4 DO NOT Answer Any Questions

This one is hard.  You will be in a coercive situation: there is a police officer focused on you, demanding that you waive your rights and answer his questions.  Maybe he has lied to you and told you that if you agree to talk to him, they will cut you a break, or pass along a good word to the District Attorney.  This deception will not get the officer in any trouble, of course, the Supreme Court has decided that law enforcement is permitted to lie to you in order to obtain a confession.

Especially if charges have not been filed yet – if you are contacted by law enforcement in any sort of criminal investigation where you may be suspected of a crime, DO NOT speak with the police or answer any questions.  Politely, bu assertively, inform the officer you will not be answering any questions without the presence of your attorney.

#5 Assert Your Right to Consult with an Attorney

If you find yourself facing any criminal charges, or subject to questioning by law enforcement in ANY capacity, demand your 6th Amendment Right to consult with an attorney.  Something like this will work: “I am asserting my right to consult with an attorney.  At the earliest opportunity, I request use of a telephone to contact my attorney.”  Repeat as needed (and you will likely have to repeat this to several officers, especially in tense situations.”).

If you are accused of ANY CRIME, you need an attorney with a track record of successfully defending criminal cases.

 Attorney Tristan LeGrande gets results – CALL NOW for a Free Consultation!

Contact attorney Tristan LeGrande by calling 281-684-3500

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Drug Attorney Tristan LeGrande

Tristan LeGrande – LeGrande Law

Who gets charged when the drugs are found in a vehicle with mutual access?

Good question.  Here’s a lawyer answer: it depends.  (Please read on, regardless…they must be able to affirmatively link you to the controlled substances or other contraband they want to charge you with).

OK…now I’m charged for Drug Possession, BUT THEY’RE NOT MY DRUGS!  How do they prove Possession?

Another good question, you’re on a roll.  Under the Texas Health and Safety Code, possession is defined as “care, custody, control or management,” of the controlled substance at issue.

MANY PEOPLE plead guilty to drugs that cannot be linked to them. 

It is CRUCIAL to consult with an attorney that is an expert in possession.

CALL Attorney Tristan LeGrande of LeGrande Law!

So How do they prove Possession anyway?

Possession– actual care, custody, control, or management.  TX Health & Safety Code Sec. 481.002(a)(38).

• Driving vehicle where drugs found insufficient – you must prove: “affirmative links“:
  • State must prove the defendant exercised actual care, custody, control, or management over the contraband and (2) knew the object he possessed was contraband. Linton v. State, 15 S.W.3d 615, 619 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d).
  • Affirmative Links may be proved by circumstantial evidence, such evidence must affirmatively link the defendant to the offense, so that one may reasonably infer the defendant knew of the contraband’s existence and exercised control over it. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985).
• “Affirmative links“ between the appellant & contraband include:
  • (1) appellant’s presence when the contraband was discovered;
  • (2) whether the contraband was in plain view;
  • (3) appellant’s proximity to and accessibility of the narcotic;
  • (4) whether the appellant was under the influence of narcotics when arrested;
  • (5) whether appellant possessed other contraband when arrested;
  • (6) whether appellant made incriminating statements when arrested;
  • (7) whether appellant attempted to flee;
  • (8) whether appellant made furtive gestures;
  • (9) whether there was an odor of the contraband;
  • (10) whether other contraband or drug paraphernalia was present;
  • (11) whether the place where the drugs were found was enclosed; and
  • (12) whether appellant owned or had the right to possess the place where the drugs were found.

Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.–Houston [1st Dist.] 1989, pet. ref’d).

So what does this mean??  It means you should not even consider pleading  guilty to drug possession charges unless they were your drugs.  Just because you are in the car with someone that is holding, does not mean you can be charged with possession of the drugs they have on them!

If charged with possession of marijuana or possession of a controlled substance, DO NOT PLEAD GUILTY – Instead, contact LeGrande Law…we have a track record of winning drug possession cases!

LEGRANDE LAW WINS DRUG POSSESSION CASES

If you are accused of any drug crime, including Possession of THC Concentrate, or other controlled substances, you need an attorney with a track record of winning drug cases.  Attorney Tristan LeGrande gets results – CALL NOW for a Free Consultation!

Contact attorney Tristan LeGrande by calling 281-684-3500

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Drug Attorney Tristan LeGrande

Tristan LeGrande – LeGrande Law

(The short answer is…not unless they somehow injure you in the process of committing the theft, making it a robbery. “During the process of committing the theft” would include while trying to escape with the property.)

This question came up in one of our neighbor States in the last few weeks: can a bystander in lawful possession of a firearm (an in a store in which he is co-owner) shoot and kill a shoplifter that is struggling to get away with their stolen goods?  In other words, can you use deadly force against another that you witness commit a theft, who then struggles to get away when you try to detain them in the store?

I am not licensed to practice Florida law – ONLY Texas law – so I will address my analysis of the situation in this article under Texas criminal law.  Before you go any further reading, understand that I am not condoning what this man did, and I am not asserting that what he did was “right” or moral.  I am only intending to dissect the situation under the principles set out in the Texas Penal Code relating to deadly force, and its use in defense of property.

One thing that is UNIQUE to Texas is the ability to use deadly force to protect property, even if you are not in fear for your life.  Florida’s self defense law says a person can use deadly force “if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” The controversial stand your ground law does not require people to retreat before using deadly force..  Texas, however, stands out as the only state that does not require a threat of death or great bodily harm before deadly force may be used to protect property.

Last week in Florida, Lakeland city commissioner Michael Dunn fatally shot an alleged shoplifter.  Yesterday, October 16, 2018, Lakeland police released surveillance video that clearly show the final moments of the shooting.

The video from the Army/Navy Surplus store shows Dunn holding a gun in his right hand as the shoplifter (Christobal Lopez) tries to exit the door. Dunn pushes Lopez with his left hand, and Lopez goes for the door again.

While pointing the gun at Lopez, Dunn tries to grab Lopez’s shoulder from behind with his left hand. Lopez is actively resisting and trying to make it out the door.  Dunn’s hand slips off Lopez’s shoulder, and he instead grabs Lopez’s shirt.  After Lopez raises his left arm to break free, Dunn appears to fire.  When Dunn fires his weapon, Lopez is holding the door with his right hand and is holding what could be the hatchet he had stolen from within the store.

Dunn keeps the gun on Lopez, who dies shortly thereafter.  Paramedics pronounced him dead at the scene. Lopez lies face down as Dunn walks in and out of the frame. No one is seen attempting to render first aid.

No charges have been filed against Dunn.  According to police, Lopez tried to steal a hatchet from the store. Dunn, a co-owner of the business, approached him, asking if he was going to pay for the item.

So, in Texas would the business owner be justified in using Deadly Force?

I contend that NO, Dunn would not be justified in using deadly force under Texas law, unless he experienced some kind of bodily injury as a result of his altercation with Lopez, and, the hatchet Lopez stole was unsheathed, and immediately capable of being used by Lopez as a deadly weapon.  While an axe in its sheath could be used to bludgeon, I do not believe it would pose a substantial risk of being capable of causing serious bodily injury.

Before I explain further abut my reasoning, it is important to note the unique character of deadly force in defense of property in Texas.

Before you can get to the right to use deadly force, you must first be justified in using force.  Under Section 9.41 of the Texas Penal Code, a person you are justified in using force against another when and to the degree you reasonably believe the force is immediately necessary to prevent or terminate another’s unlawful interference with your property.  You may use the force to the degree you reasonably believe is immediately necessary to recover your property, if the force is used immediately or in fresh pursuit after the dispossession of your property, and the other person accomplished the dispossession by using force, threats, or fraud against you.

Theft would be a form of fraud – so we know Dunn would be justified in using some force, if he were in Texas.  It is reasonable to think force was immediately necessary to prevent Lopez from escaping with the axe he stole from inside Dunn’s store.  Dunn acted immediately and was in fresh pursuit at the exit of his business.

To use deadly force to protect your property under Section 9.42, there are more requirements.   You must be justified in using force under 9.41 above, and, either:

1.  The force is being used to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

2.  The force is being used to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and:

   a) You reasonably believe the property cannot be protected or recovered by any other means; or,

   b) The use of force other than deadly force to protect or recover your property would expose you or another to a substantial risk of death or serious bodily injury.

Now I will explain why I think it he could be be justified in using deadly force if the axe was unsheathed, and he experienced some kind of bodily injury.  First, the fact that an axe was stolen is crucial.  An axe is a deadly weapon.  Unsheathed, it can be used to kill or cause serious bodily injury.  When Lopez began fighting with Dunn in the doorway in an attempt to make his exit,, had he caused any kind of bodily injury to Dunn, he would have committed a Robbery.  Robbery under Texas law theft is where someone intentionally, knowingly, or recklessly causes bodily injury to someone else in the course of committing a theft. As far as I know, Dunn was not injured.

It appears Lopez was trying to flee when he was shot and there’s no evidence in the video that he tried to use the hatchet as a weapon or gain control of Dunn’s gun.  Unless the axe was capable of being used as  deadly weapon, it cannot be argued less than deadly force would expose Dunn to a substantial risk of Serious bodily injury or death.  If the hatchet is out of its sheath, Lopez could have taken a swipe at the store owner with a hatchet to try and get away.

The shooting is the second time Dunn has shot a person. But it’s the first time the shooting was fatal. The Lakeland Ledger reported that Dunn accidentally shot a man when he was 19.

CHARGED WITH A WEAPON OFFENSE?

The answer is more complicated than YES or NO.  Under Texas law there is an exception permitting convicted felons to possess firearms, but only in their residence, five years after being released from prison, parole, or probation (if convicted and their sentence was probated).  However, under Federal law it remains illegal for a convicted felon to possess a firearm, anywhere, including their residence.

Texas Law has a VERY NARROW Exception Permitting Felons to Possess a Firearm

In Texas, the law that Addresses Convicted Felons found in Possession of a weapon (a firearm) is Texas Penal Code Section 46.04.  That section reads:

Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM.

(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later;

(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

It takes a little deciphering to figure out what that means as far as what is legal possession of a firearm by a felon, but essentially you can own one in your home after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later…at any location other than the premises where the person lives. So if you are a convicted felon and get caught with a firearm anywhere else other than the premises where you live, you can be charged with felon in possession of a weapon (or anywhere, including where you live, it has been less than 5 years since you finished parole, were released from prison, or completed probation.

It is STILL Illegal for a Felon to Possess a Firearm Under Federal Law

Unfortunately, the Federal Firearms act

Possession of a firearm by a felon remains illegal under 18 USC § 922(g), the Federal Firearm Act.  The Federal law prohibits possession of a firearm by a prohibited person; among the definitions of prohibited person is a person that has been convicted of a felony.

Before you let the Federal law scare you – let’s think about this in perspective.  Federal agents are the only ones that will be investigating and pursuing charges for Federal crimes.  The only likely scenario where weapons found in your home would get you charged with a federal crime would be if the discovery of the weapons was incidental to some other Federal search warrant being served.  So if, for example, you are a convicted felon, and your residence had a search warrant executed on it by federal agents looking for a large quantity of controlled substances, and they also find the weapons – you would be charged with Federal firearms offenses as well.

CHARGED WITH A WEAPON OFFENSE?