I knew it had to be the first day of Dove Season. I’m in court in the morning with a client on a felony case who is considering a plea bargain, and one of the first questions I get is this: “If I go on felony probation, can I still go hunting?” Well, the short answer to that, Bubba, is maybe, but how and where you do it may be a lot different than in the past. The “how” problem is simple. Being a convicted felon does not keep you from getting a Texas hunting license.
What you will use to hunt with, however, is a little bit more of a challenge. If you are a convicted felon, you can’t possess a firearm outside of your residence until five years has passed from the date you are released from probation, prison, or parole, whichever comes latest. Possessing a firearm if you are a felon under these circumstances is a separate felony offense. Obviously, if you are convicted and still on felony probation you can’t be roaming around a hunting lease with a rifle.
And by the way, your deer blind does not qualify as a separate “residence” no matter how much time you spend in there and how decked-out it is. But what if you are on deferred adjudication for a felony, and therefore, haven’t been convicted of anything? Don’t go full Rambo just yet. Read you conditions of probation. Judges have wide discretion in setting the conditions of a probation, and judges routinely prohibit the possession of firearms by guys on felony probation, including deferred adjudication. Several of my former clients who are hunters, and who are on felony probation, have come up with creative solution -- they’ve taken up bow-hunting.
Granted, trying to bring down small birds on the fly with a bow-and-arrow might be a little too tricky. You may be out of commission for dove hunting, relegated, instead, to stalking God’s furry creatures rather than the feathered ones. But it’s legal. The “where” problem is one that many people forget. When you are on felony probation, you are typically prohibited from leaving your county of residence unless you have a travel permit to be elsewhere, say, for work. If the place where you hunt is in your home county, no problem. If your deer lease is a couple of hundred miles away, you may be in violation of your probation if you get caught trying to go there. And if you thought that getting permission from you wife to go hunting was difficult, just watch the expression on your probation officer’s face when you ask her for a travel permit in order to stalk deer. Might want to look for a lease close to home. Happy hunting.
Comal County has gotten a reputation for being a tough place to defend drug cases. However, we recently won a jury trial which shows that, at least with respect to Possession of Marijuana cases, this reputation may be based more on myth than reality. Comal County's image when it comes to drug cases is based largely on two facts: the County is politically very conservative, and it has elected County Court-at-Law judges who routinely hand out stiff punishments in marijuana cases. But juries in marijuana cases, on the other hand, are a sometimes a different story. What you find at jury selection in marijuana cases in Comal County is that many people who go around calling themselves "conservative" are, in fact, libertarians, and actually favor the legalization of marijuana. Last week, for instance, we picked a jury in a Possession of Marijuana case involving an arrest of a tuber on the Comal River during Fourth of July Weekend of last year.
When the State began questioning potential jurors about whether they believed that marijuana should be legal in some circumstances, such as for medical use, almost every hand went up. When the State asked whether the jurors could follow the law and convict someone of Possession of Marijuana where there was no medical issue, fully a third of the potential jurors (including a retired Drug Enforcement Administration agent) stated that they would be unwilling to convict anyone of possession of a small amount of marijuana, that it would violate their consciences to do so.
Upon further questioning by the judge concerning their ability to follow his instructions, the judge allowed some of these jurors to remain in the jury pool. The State then was forced to use up all of its peremptory strikes to get rid of these jurors, leaving a much less State-oriented final jury than what you normally see in Comal County. The jury that was finally sworn in was a jury that went into a marijuana case much more willing to question the State's evidence than a typical Comal County criminal jury. The end result: a "not guilty" verdict. Even though the cop in our case testified that our client admitted to having knowingly possessed the marijuana in question, the jury was unwilling to give the cop the benefit of the doubt when it came to judging his credibility.
When we spoke to jurors after the trial, they faulted the arresting cop for sloppy evidence collection and for failure to record the conversation that he had with our client. The lesson to draw from this trial: If the local judiciary is inclined to bury defendants in misdemeanor marijuana cases under the courthouse, then local defense attorneys should get more inclined to push marijuana cases to jury trial dockets. In Comal County marijuana cases, it's time to quit believing in myths and time to start believing in jurors.
A good deal of our time these days is spent trying, not only to mitigate the punishment a client might receive in a criminal case, but also trying to lessen the effects on his ability to find a job. One of the newest concerns we have run across is that of clients attempting to get T.W.I.C. cards. T.W.I.C. is short for Transportation Worker Identification Credential. It's an identification card issued by the Transporation Safety Administration (TSA) to people who are going to be working at certain places where special security access is required, such as a port. T.W.I.C. has been around for a few months now, and it's estimated that in the neighborhood of a million-and-a-half workers will need one for their jobs. In the past few months, we have had a handful of clients who are truck drivers who need T.W.I.C. cards in order to make deliveries to TSA regulated sites.
In order to get a T.W.I.C. card, you have to pass a criminal background check. Some of the types of offenses that can disqualify you from a T.W.I.C. card include unlawful possession of a firearm (i.e., Unlawfully Carrying a Weapon or Possession of a Prohibited Weapon), "misrepresentation," whatever that means (Does False Report to a Peace Officer or Failure to Identify count?), and possession with intent to distribute a controlled substance. According to TSA's website, it's not even necessary to be convicted to be disqualifed. A "guilty" or "no contest" plea to a plea bargain for deferred adjudication is a disqualification, as is merely being presently charged with one of these offenses. If you are a truck driver, you should add T.W.I.C. disqualification to your long list of potential worries if you are charged with a crime. Certainly, you should not consider entering any type of plea bargain agreement unless you have checked into the possible effects on your ability to work in areas regulated by the TSA.