MOTION TO SET ASIDE AN INFORMATION FOR AN UNLAWFUL CARRYING OF A WEAPON CHARGE
By Stephanie Stevens
When I first began practicing law in the early 1990s, the general premise of the UCW penal code provisions was that carrying a gun was prohibited, but a handful of exceptions existed. This has been the status of gun control law for quite some time. Some of the tough gun control laws began after the Civil War; commentators recognized a “most happy effect” throughout the state because “the firearm bill has robbed rowdies of their six-shooters, their bowie knives and their sword canes.” 1 Since then, our legislature has truly constructed a paradigm shift for Texas citizens. Now, we assume you are legally carrying a weapon, with some exceptions that make doing so illegal. One of those exceptions is having a gun in a motor vehicle or watercraft while engaging in criminal activity, other than a Class C misdemeanor. Tex. Penal Code §46.02(a-1)(2)(A).2
Prosecutors in some jurisdictions seem to be filing charging instruments in these matters without any specificity of the “criminal activity” the defendant is allegedly engaged in. Although I found no cases directly on point for this issue yet, I found several

1https://www.washingtonpost.com/outlook/2019/09/12/when-texas-was-national-leader-g
un-control/ (Noting that strict Texas gun laws were not “some relic of a distant past.” Rather, it was not until the mid-1990s that the Republican Party dominance in Texas politics began “a loosening of firearms regulations in the name of personal self-defense.”).

2A recent case may affect the age restrictions of 46.02. Firearms Policy Coalition, Inc. V. McCraw) 2022WL3656996 (N.D. Tex. Aug. 25, 2022)(holding that 18 to 20 year olds should also be allowed to carry weapons outside of the home for purposes of self-defense).

analogous cases requiring “criminal activity” to be spelled out. I have attached a motion I prepared for this type of charge and I hope it may be of some assistance to others.
Furthermore, I hope that by the defense bar challenging this issue, the appellate courts will require more specific language in future charging instruments.

NO. 111111

STATE OF TEXAS	§	IN THE COUNTY COURT	
VS.	§	
AT LAW NO. 9	
JOE ACCUSED	§	BEXAR COUNTY, TEXAS	

DEFENDANT’S MOTION TO SET ASIDE THE INFORMATION

TO THE HONORABLE JUDGE OF SAID COURT:

Joe Accused moves that the information filed in this case be set aside by virtue of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I
§§ 10 and 19 of the Texas Constitution, and Articles 1.05, 21.01, 21.02, 21.03, 21.04, and

21.11 of the Texas Code of Criminal Procedure for the following reasons:

I.

The Information alleges, in pertinent part, that Mr. Accused:

did intentionally, knowingly, and recklessly carry on or about his person a handgun in a motor vehicle that was owned by the defendant or under his control, and the defendant was engaged in criminal activity, other than a Class C misdemeanor that was a violation of a law or ordinance regulating traffic;

II.

The information is defective because it fails to state the type of criminal activity that defendant was allegedly engaging in. An information must provide more specific allegations “if the prohibited conduct is statutorily defined to include more than one manner or means of commission.” Saathoff v. State, 891 S.W.2d 264, 266 (Tex. Crim. App. 1994). The Amarillo Court Appeals has held that the term “criminal activity” must

be plead more specifically in money laundering charges, noting that “criminal activity” is defined as any felony and that this could “comprise any one of hundreds of felony offenses, state or federal.” Deschenes v. State, 253 S.W.3d 374, 377-78 (Tex. App.– Amarillo 2008, pet. ref’d). The court found that the broad statutory definition meant there were a “myriad of manner and means of commission.” Id. “Therefore, an indictment alleging the offense of money laundering should specify the offense which the State contends to be the relevant “criminal activity” and failure to do so renders the indictment defective.” Id. The San Antonio Court of Appeals agrees. Powell v. State, 2012 WL 3597199, *2 (Tex. App. – San Antonio 2012, no pet.)(not designated for publication)(finding sufficient a money laundering indictment that charged the criminal activity of delivery of a controlled substance, a felony.); accord, Armstrong v. State, 2013 WL 979197, *2 (Tex. App. – San Antonio 2013, no pet.)(not designated for publication).
The issue of a ‘myriad of manner and means of commission’ is even more

problematic in this case. The allegation of “criminal activity” here may include any crime above a Class C misdemeanor: felonies and misdemeanors, state and federal. Thus, even more possibilities exist for the defendant to have to guess from. “The accused is not required to anticipate any and all variant facts the State might hypothetically seek to establish.” Sanchez v. State, 182 S.W.3d 34, 45 (Tex. App. – San Antonio 2005), aff’d, 209 S.W.3d 117 (Tex. Crim. App. 2006). See also McCormick & Blackwell, Texas Criminal Forms §25.1, Texas Practice Series 2021 Supplement, pp. 173-174. As the State

has failed to allege the specific criminal activity at issue, the charging instrument should be set aside.
III.

The information is defective because it charges the culpable mental state of reckless, but does not state the acts or acts relied upon to constitute recklessness as required by TEX. CODE CRIM. PROC. art. 21.15. State v. Rodriguez, 339 S.W.3d 680, 683- 684 (Tex. Crim. App. 2011).
IV.

Because of these defects:

1.	The Information does not accuse defendant of an “act or omission which, by law, is declared to be an offense,” in violation of TEX. CODE CRIM. PROC. ANN. Art. 21.01.

2.	The offense is not “set forth in plain and intelligible words,” in violation of TEX. CODE CRIM. PROC. ANN. Art. 21.02(7).

3.	The Information does not state “[e]verything . . . which is necessary to be proved,” in violation of TEX. CODE CRIM. PROC. ANN. Art. 21.03.

4.	The Information does not possess “[t]he certainty . . . such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense,” in violation of TEX. CODE CRIM.
PROC. ANN. art. 21.04 and the Fifth, Sixth and Fourteenth Amendments to
the United States Constitution and Article I §§ 10 and 19 of the Texas Constitution.

5.	The Information does not “charge[] the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant and with what degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment . . .” in violation of TEX. CODE CRIM. PROC. ANN. art.

21.11 and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and article I, §§ 10 and 19 of the Texas Constitution.
WHEREFORE, premises considered, the Defendant prays that the Court set aside the Information in the above-numbered and entitled cause.
Respectfully submitted:

/s/ Stephanie Stevens

STEPHANIE STEVENS
2507 N.W. 36th Street
San Antonio, TX 78228-3918
(210) 219-6410
sstevens@stmarytx.edu State Bar No. 01720800

Attorney for Defendant

CERTIFICATE OF SERVICE

I certify that a copy of Defendant’s Motion to Set Aside the Information has been electronically delivered to the District Attorney’s Office, Bexar County Justice Center, 300 Dolorosa, San Antonio, Texas, on February 15, 2022.

/s/ Stephanie L. Stevens STEPHANIE L. STEVENS

NO. 111111

STATE OF TEXAS	§	IN THE COUNTY COURT	
VS.	§	AT LAW NO. 9	

JOE ACCUSED	
§	
BEXAR COUNTY, TEXAS	

ORDER

On this the 	day of 	, 20	, came on to be considered Defendant’s Motion to Set Aside the Information, and said Motion is hereby
(GRANTED)	(DENIED)

PRESIDING JUDGE