Tafel v. State
| Decision Date | 31 August 2016 |
| Docket Number | No. 10-14-00384-CV,No. 10-14-00020-CR,No. 10-14-00019-CR,No. 10-14-00385-CV,10-14-00019-CR,10-14-00020-CR,10-14-00384-CV,10-14-00385-CV |
| Parties | MARK KEN TAFEL, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
From the County Court Hamilton County, Texas
The issues we decide today relate to how a concealed handgun license holder can be confident in the determination of where it is lawful to carry. The underlying right at issue was confirmed by the adoption of the second amendment to the United States Constitution. The scope of that right was discussed at length in the United States Supreme Court's opinion in Heller. District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). And the right was confirmed as applicable to the States in the United States Supreme Court's opinion in McDonald. McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).
As presented to this Court, the issue is narrower than the issue in Heller and McDonald; but due to the need to interpret various statutes and case law holdings, the issue is somewhat more complex. This is where the theory of the right to "keep and bear arms" runs into a maze of statutes and definitions that limit that right.
As a very simple factual overview, Ken Tafel was convicted of two counts of illegally carrying a handgun at a meeting of the commissioners court of Hamilton County, Texas. Tafel was, at the time of the events, a commissioner in Hamilton County and also a concealed handgun license holder. He was charged and convicted of "Unlawful Carrying of Handgun by License Holder" (Texas Penal Code § 46.035(c), (i)). After his conviction and without a hearing, his handguns were ordered forfeited to the State.
Because of the complexity of the issues, a thorough understanding of the statutes is essential. In addition to this, and because of the complexity of the interrelationship of several statutes, the language of the indictment will also be critical. Beyond the statutes and the indictment, it is necessary to have a firm grasp on various aspects of criminal law,including the concepts of the burden of proof and the placement thereof as applicable to the elements of an offense, as well as the exceptions, defenses, and affirmative defenses to the offense. And the overlay to all of this will be the appellate standards and common law for the standard of review on appeal and how we are to construe the relevant statutory provisions.
In addition to the legal complexities, there are some factual and procedural events that occurred in this case that further heighten the complexity of the statute and the difficulty for the prosecution and defense.
Mark Tafel was a duly elected and serving Hamilton County Commissioner on November 14, 2011. Tafel was also a concealed handgun license holder pursuant to Subchapter H, Chapter 411, of the Texas Government Code. Prior to November 14, 2011 Tafel had discussed the propriety of carrying a concealed handgun while attending the meetings of the Hamilton County commissioners court. One discussion Tafel had was with the sheriff. This conversation was due to a citizen's complaint. The complaint caused an investigation during which the sheriff requested Tafel's side of the story which was reduced to a written statement. This complaint and investigation resulted in the presentment of an indictment to the Hamilton County grand jury. The grand jury did not indict Tafel, and "no billed" the complaint.
In addition to the conversation with the sheriff, and it is not clear whether thisconversation was held before or after the above described events, a conversation occurred between Tafel and the county attorney. The county attorney made sure Tafel knew he was not representing Tafel. The county attorney was primarily concerned with whether Tafel's actions would be a felony. This is because the Hamilton County courthouse was being renovated at the time and the room being used at times for the Hamilton County commissioners court was also being used when necessary as the courtroom for the district court and the county court. The county attorney discussed his concern that carrying a handgun into the room during a commissioners court meeting would be a felony because the room was also used at times as a regular courtroom.
Tafel also talked to the county judge. The county judge had posted a sign related to prohibiting the carrying of guns in the room. After the county judge had researched the issue, he gave Tafel a letter that expressly authorized Tafel to carry a concealed handgun at meetings of the Hamilton County commissioners court.
While exercising his Second Amendment right as limited and further defined by the applicable statute or the letter from the county judge, Tafel entered the county commissioners courtroom on November 14, 2011. He was carrying two handguns, a full size .45 caliber and his backup handgun, a small .22 caliber. The commissioners court meeting was called to order and proceeded with the business on the agenda. During the first break in the commissioners court meeting, the sheriff approached Tafel and confronted him about whether he was armed, patted him down, felt what he believed tobe a handgun, arrested Tafel, and confiscated Tafel's handguns, holsters, and ammunition. Tafel immediately asked the sheriff if the sheriff wanted to see the authorization letter from the county judge. The sheriff expressed that he was not interested in the letter.
At the very next meeting of the commissioners court, the commissioners court ratified the county judge's letter which authorized Tafel to carry a concealed handgun at meetings of the county commissioners court. At the next meeting of the commissioners court after the ratification, the commissioners court voted to rescind their prior ratification of the county judge's authorization to Tafel.
Before Tafel was charged with an offense, the elected district attorney moved to recuse himself. The motion was granted and an attorney pro tem was appointed. The attorney pro tem secured two felony indictments of Tafel, one for each handgun, as well as two misdemeanor indictments, one for each handgun. The elected district court judge recused himself and notified the regional presiding judge. The regional presiding judge appointed a retired district judge to sit for the elected district judge.
The attorney pro tem tried Tafel on the felony charges of carrying a handgun in a district courtroom, Texas Penal Code section 46.03, and the misdemeanor offenses of carrying a handgun into a meeting of a governmental entity, Texas Penal Code section 46.035(c). Tafel waived a jury trial. The issues of guilt and punishment were decided by the appointed district judge. Tafel was acquitted of the felony charges by the judgeappointed to sit for the district judge and convicted of the misdemeanor charges. On appeal, this Court held that the judge sitting for the district court judge did not have jurisdiction of the misdemeanor charges, reversed the misdemeanor convictions, and remanded the proceedings. Tafel v. State, Nos. 10-12-00216-CR, 10-12-00217-CR, 2013 Tex. App. LEXIS 1763 (Tex. App.—Waco 2013, no pet.) (not designated for publication).
On remand, the proceedings were "transferred" to the county court. A new judge was appointed to sit in place of the county judge because the elected county judge would be a witness at trial. A new attorney pro tem was not appointed to prosecute the misdemeanor offenses in place of the county attorney who would also be a witness at trial. Tafel again waived his right to a jury trial. Tafel was again convicted of the misdemeanor offenses.
The attorney pro tem filed a motion to forfeit Tafel's two handguns pursuant to Texas Code of Criminal Procedure article 18.19(e). The motion was granted and an order of forfeiture signed. The attorney pro tem moved to withdraw from his representation of the State of Texas and was allowed to withdraw. No attorney was appointed to represent the State.
Tafel filed his briefs in the two appeals. The elected district attorney filed a brief on behalf of the State of Texas. This Court decided that the appeals of the forfeiture of the handguns, the holsters, and the ammunition were civil in nature, severed those appeals, and docketed them as civil appeals. All four appeals were scheduled for a singleoral argument. The elected district attorney provided notice that another attorney would appear at oral argument for the State of Texas. The attorney selected by the elected district attorney filed a notice of appearance and appeared at the date and time scheduled and argued the case for the State of Texas, as did Tafel's attorney.
At oral argument, the Court made an extensive inquiry into some issues that were not briefed, including, but not limited to, the authority of the attorney representing the State of Texas to appear in that capacity, double jeopardy, whether the second amendment issue impacted our standard of review on appeal, and whether the forfeiture appeals were properly severed from the criminal appeals. The Court asked for briefing on these issues as well as briefing on some of the nuances of the other issues already briefed.
The parties provided extensive supplemental briefing. The supplemental briefing can be generally grouped into two types: (1) briefing that expanded on the existing issues, and (2) briefing in response to specific issues raised by the Court upon which the Court requested briefing during oral argument. To facilitate further review and to help the parties understand which issues are being addressed in which sections of this dissenting opinion, this dissenting opinion will identify the brief and use the numbering system used in that brief to identify where the related discussion is included within the briefing of the parties.
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