Desoto, TX asked in Criminal Law for Texas

Q: Unlawfully Carrying a Firearm

If an officer alleges that an accused was unlawfully carrying a firearm on an alcohol premise ( Texas Penal Code 46.02) while he/she walked inside of a gas station from his/her automobile and back to his/her car, is it possible for the indictment to allege that the accused was NOT en route to his/her automobile when the officer affidavit confirms that the accused was? I am aware that Penal Code 46.02 does not apply to travelers as confirmed by Texas Penal Code 46.15, which is a whole other story, but my question is, can the indictment allege a different set of facts other than what is sworn to in an officer affidavit?

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1 Lawyer Answer

Kiele Linroth Pace

Answered
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: Can the indictment allege a different set of facts other than what is sworn to in an officer affidavit? Yes. Assuming they get it past a grand jury, an indictment could allege that you assaulted the Tooth Fairy. Whether the indictment survives a motion to quash and whether the prosecution can prove their case beyond a reasonable doubt ... those are probably he real questions you should be discussing privately with your criminal defense attorney..

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