Friday, March 19, 2010
For Carrying a Weapon, the Plain Statutory Language Is Not Enough
For defense counsel, a most promising source of reversible error is the jury charge. The trial judge in the case of Hernandez v. State, No. 14-08-00787-CR, (Tex. App.-- Houston [14th Dist.], Mar. 16, 2010, no pet. h.)refused a self-defense instruction, apparently because defendant-appellant Hernandez's handgun possession was illegal. The proposed jury instruction seems to be to be a gross oversimplification of the law. The opinion states that Hernandez was trying to recover property stolen from his employer by a third person. The opinion neither indicates nor claims that Hernandez's attempt was illegal or improper. It is the defense lawyer's duty to provide the trial court with an accurate statement of the law. This does not appear to have been done, and appears to render any error harmless, though it might be a basis for a writ.