Page 36 - TPA Journal September October 2022

Joe C. Tooley, Legal Digest Editor
Joe C. Tooley, Attorneys & Counselors, Rockwall, Texas
www.TooleyLaw.com 972-722-1058

TEXAS POLICE ASSOCIATION

LEGAL DIGEST

September - October 2022

AUTHOR’S NOTE: It is the goal of this submission to extract those portions of relevant appellate
opinions or the syllabus of the legal reporter which bear directly upon law enforcement methods
and provide guidance for officers on an operational level. Much of the information pertaining to
these cases is lifted verbatim from the court opinion or syllabus with independent analysis inserted
as appropriate. Due to clarity for training purposes, the distinction between quotes from the
opinions and inserted analysis is not always identified and legal citations within the opinion are
often omitted. Emphasis is placed upon reported decisions from the Fifth Circuit Court of Appeals
and the Texas Court of Criminal Appeals.

WEAPON – definition of gangbanger Legislature has repealed subsection (a-1)(2)(C),
effective September 1, 2021, and moved the
We granted the State Prosecuting Attorney’s subsection to its own statute, creating a
petition for discretionary review to decide standalone offense. Because this statute was
whether the unlawful carrying of a weapon by enacted after the granting of this petition, we
a gang member, Tex. Penal Code § 46.02(a- will not address it at this time.
1)(2)(C),1 requires proof the defendant was
continuously or regularly committing gang On April 17, 2018, Terry Martin (“Appellant”)
crimes. The court of appeals found that the was stopped for multiple traffic violations
language of the statute plainly did, relying on while riding a motorcycle on U.S. Highway 87
the holding from the Fourteenth Court of in Lubbock County. During the stop, Corporal
Appeals in Ex parte Flores. We agree and adopt Michael Macias observed that Appellant was
and apply the holding from Ex parte Flores wearing a motorcycle vest, or “cut,” that read
in that, to be a gang member for purposes of “Cossacks MC.” After patting him down,
prosecution under § 46.02(a-1)(2)(C), Officer Macias asked if Appellant had any
an individual must be one of three or more firearms on him, to which Appellant responded
persons with a common identifying sign, that he had a pistol inside his vest. Officer
symbol, or identifiable leadership and must Macias placed Martin in handcuffs while
also continuously or regularly associate stating “I take it by your cut you’re a Cossack?”
in the commission of criminal activities. Appellant answered, “Yes, sir.” Appellant’s
1 Since the granting of this petition, the 87th motorcycle “cut” contained Sergeant’s stripes

32 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal