Published on:

Texas issues new favorable case for gun and firearm owners.

The Texas Court of Criminal Appeals, the State’s highest appeals court for criminal cases, published an opinion in December that delivered a win for gun and firearm owners.   The Texas Penal Code section 46.02 is the “Unlawful Carrying of a Weapon” (UCW) statute.  This particular law has been the subject of frequent tinkering and revising by the State legislature over the years, and the most recent legislative session was no different.

In the last legislative session Texas again tweaked the UCW statute to make it unlawful to possess a firearm in a motor vehicle while a member of a “criminal street gang.”   In December of 2021, the Texas Court of Criminal Appeals unanimously reversed a conviction under that new section of the statute. In the new case,  Martin v. State of Texas , Mr. Martin was possessing a firearm while he was riding his motorcycle.  This is not a crime in Texas ordinarily, but Mr. Martin was enjoying his motorcycle ride while wearing a vest that read  “Cossacks M.C.”  According to the police testimony at trial,  the Cossacks are a nationwide outlaw motorcycle gang.

Mr. Martin was convicted at trial and appealed.  On appeal, the Court of Criminal Appeals reversed the conviction.  According to the high court, displaying the sign or symbol of a gang is insufficient.  In order to be convicted of this particular provision of the UCW statute, there must also be evidence that the person must also continuously or regularly associate in the commission of criminal activities.

The Court went further though and  suggested that the statute itself may be unconstitutional in that it may be overbroad and attempt to criminalize constitutionally protected conduct.   So, what are the takeaways?

First, merely displaying gang symbols while possessing a firearm is insufficient evidence to be convicted under the criminal street gang section of this law.

Second, the particular section of law at issue may be unconstitutional.  Practitioners should consider a pretrial challenge a to the statute on it’s face.

If you, a friend or a loved one are facing a weapons, gun, or firearms charge or arrest, please consult with a qualified lawyer to discuss what defenses may be available to you.

Contact Information