I’ve been digging my nose into Texas law as it relates to the disposition of my guns that were stolen from me by Temple Police Officer Steven Ermis and endorsed by Sergeant Thomas Menix.
Yesterday, I went to the Temple Police Department to request my guns back now that my case is over. The receptionist behind the thick, bullet-proof glass looked at me confused, seemingly incredulous at the request. Two other TPD officers loitered nearby, also shocked at such a request. She asked me if I had an appointment with the evidence technician. I responded that I did not; I was just there to pick up my guns. I was informed that I needed to make an appointment with TPD evidence custodian to get possession of my private property. She kindly handed me a piece of paper with the name and phone number of the technician and assured me she was present to make an appointment. My call went unanswered and eventually led to voicemail. I left a message instructing her that I would like to make an appointment to pick up my firearms that were stolen from me on March 16, 2013, and to please call me back to schedule a time when I could get my stolen property back.
Today, the evidence technician called me back. Take a moment to listen to the call (yes, I record every call to/from Temple PD just as they do).
I’m not sure if anyone here has noticed, but whenever a government agent tells me I can’t do something, I tend to do the exact opposite – especially if it’s not illegal. The fact is that elected Bell County Attorney Jim Nichols (for whom I’m embarrassed to say I voted) has no authority to keep my weapons since, in his office’s own words during trial, I wasn’t charged with a gun crime and the jury wasn’t hearing a gun case. Nowhere in Texas law am I required to speak to a prosecutor’s office strictly through an attorney. This is lunacy, and completely unsubstantiated by statute or even common sense. I don’t need an attorney to defend myself, submit motions on my behalf to the court, file subpoenas, or any other actions with a court. This would assume that I must be a part of the system and properly barred with the state. It is one reason I will never be a barred attorney – I refuse to obey their internal “norms” and prefer instead of exercise the law according to the law. However, even if I were charged and convicted of a crime involving guns, according to Chapter 46 of the Texas Penal Code, I am not only allowed, but entitled to receive my guns back.
Chapter 18 of the Code of Criminal Procedure reads (emphasis mine):
Art. 18.19. DISPOSITION OF SEIZED WEAPONS. (a) Weapons seized in connection with an offense involving the use of a weapon or an offense under Penal Code Chapter 46 shall be held by the law enforcement agency making the seizure, subject to the following provisions, unless:
(1) the weapon is a prohibited weapon identified in Penal Code Chapter 46, in which event Article 18.18 of this code applies; or
(2) the weapon is alleged to be stolen property, in which event Chapter 47 of this code applies.
(d) A person either convicted or receiving deferred adjudication under Chapter 46, Penal Code, is entitled to the weapon seized upon request to the court in which the person was convicted or placed on deferred adjudication. However, the court entering the judgment shall order the weapon destroyed or forfeited to the state for use by the law enforcement agency holding the weapon or by a county forensic laboratory designated by the court if:
(1) the person does not request the weapon before the 61st day after the date of the judgment of conviction or the order placing the person on deferred adjudication;
(2) the person has been previously convicted under Chapter 46, Penal Code;
(3) the weapon is one defined as a prohibited weapon under Chapter 46, Penal Code;
(4) the offense for which the person is convicted or receives deferred adjudication was committed in or on the premises of a playground, school, video arcade facility, or youth center, as those terms are defined by Section 481.134, Health and Safety Code; or
(5) the court determines based on the prior criminal history of the defendant or based on the circumstances surrounding the commission of the offense that possession of the seized weapon would pose a threat to the community or one or more individuals.
(e) If the person found in possession of a weapon is convicted of an offense involving the use of the weapon, before the 61st day after the date of conviction the court entering judgment of conviction shall order destruction of the weapon or forfeiture to the state for use by the law enforcement agency holding the weapon or by a county forensic laboratory designated by the court. If the court entering judgment of conviction does not order the destruction or forfeiture of the weapon within the period prescribed by this subsection, the law enforcement agency holding the weapon may request an order of destruction or forfeiture of the weapon from a magistrate.
As you can see, they can only keep my weapon under a very narrow set of guidelines. Therefore, they have no right to hold my weapons. In fact, even if I was convicted under Chapter 46, I’m entitled to my weapons upon request, as long as I don’t wait more than 61 days after conviction (I’m well within 61 days), haven’t been previously convicted under Chapter 46 (I’m not even charged with a Chapter 46 conviction in this case and never have been), the offense didn’t occur “on the premises of a playground, school, video arcade facility, or youth center” (it didn’t, though they tried to claim I was within a half mile of a school on a Saturday), or the court “based on the prior criminal history of the defendant or based on the circumstances surrounding the commission of the offense that possession of the seized weapon would pose a threat to the community or one or more individuals” (I obviously have many other weapons, so this is a moot point). In any case, if the prosecutor does not want a weapon returned to the defendant, the best practice is to have the defendant agree to forfeit the weapon as a part of the plea agreement.
Jim Nichols tried to get me to plea to a Class C misdemeanor and agree to forfeit my weapons on several occasions. I never agreed to such a plea agreement because I’ve heard of all the plea agreements that Nichols has gotten from others and refuse to add to their “Guns for Goons” footlocker. Additionally, their offer was contingent upon me actually leaving the county! Yes, Jim Nichols said he’d agree to give me my weapons back if I agreed to leave the county of my birth, where my family has been for over four generations, as a condition for getting back my unlawfully seized firearms. Nichols is an anti-gun prosecutor who uses his office to enact de facto gun confiscation in Bell County. In fact, Nichols tried this same tactic with SSG Nate Sampson after his office was forced to drop the false charges against him. It took him over six months to get his lawfully carried gun back!
As long as I live and breathe and have the law on my side, I will not stop holding Bell County and the City of Temple (and other local cities in the county) accountable for their illegal and immoral activities. Unfortunately, Nichols was just elected to a 4-year office. However, I am organizing a recall election to deal with his constant abuses of office and bastardization of the law in our county and in our state. Texas doesn’t deserve or want people like Nichols violating their oaths and attacking innocent people for sheer enjoyment. They cost people like me thousands of dollars, hours of lost time, and unwarranted stress over their proclivity towards making citizens’ lives deplorable.
Oh, and if Jim Nichols – or his investigative lapdog, Joe Medrano – think that I have no idea what I’m talking about, they should probably read what their own Texas District & County Attorneys Association has to say on this very topic. D’oh!
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