                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00019-CR
                                No. 10-14-00020-CR

MARK KEN TAFEL,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                             From the County Court
                            Hamilton County, Texas
                        Trial Court Nos. 15291 and 15292


                                    OPINION

      In two cause numbers, the trial court convicted Mark Ken Tafel of the offense of

unlawful carrying of a handgun by a license holder and assessed his punishment at thirty

days confinement and a $500 fine. The trial court suspended imposition of the sentence

and placed Tafel on community supervision for six months. We affirm.
                                       Background Facts

         Mark Ken Tafel was a County Commissioner for Hamilton County. Sheriff Gregg

Bewley received complaints that Tafel was carrying a concealed handgun to meetings of

the Commissioners Court. Sheriff Bewley met with Tafel and discussed those concerns.

On February 23, 2011, Tafel gave Sheriff Bewley a written statement in which he stated

that he understood he could not carry a handgun to the meetings of the Commissioners

Court.

         On April 14, 2011, County Judge Randy Mills issued a letter to Tafel purportedly

authorizing Tafel to carry concealed handguns to the meetings. Judge Mills gave a copy

of the letter to Tafel; however, Judge Mills did not file the letter in any court in Hamilton

County.

         Sheriff Bewley attended the November 14, 2011 meeting of the Hamilton County

Commissioners Court and observed a bulge that he believed was a weapon under Tafel’s

jacket. Sheriff Bewley recovered a .45 caliber handgun and a .22 caliber revolver from

Tafel, and he placed Tafel under arrest.

                                 Sufficiency of the Evidence

         In the first issue, Tafel argues that the evidence is insufficient to support the trial

court’s rejection of the defensive issue of lack of effective notice. We first will determine

whether Section 46.035 (i) of the Texas Penal Code is an exception or a defense. The Texas

Penal Code provides that:

         A license holder commits an offense if the license holder intentionally,
         knowingly, or recklessly carries a handgun under the authority of


Tafel v. State                                                                            Page 2
        Subchapter H, Chapter 411, Government Code, regardless of whether the
        handgun is concealed, at any meeting of a governmental entity.

TEX. PENAL CODE ANN. § 46.035 (c) (West Supp. 2014). The Texas Penal Code further

provides that subsection (c) does “not apply if the actor was not given effective notice

under Section 30.06.” TEX. PENAL CODE ANN. § 46.035 (i) (West Supp. 2014).

        Section 2.02 (a) of the Penal Code provides, “An exception to an offense in this

code is so labeled by the phrase: ‘It is an exception to the application of . . . .’”. TEX. PENAL

CODE ANN. § 2.02 (a) (West 2011). Section 2.03 (e) of the Penal Code states, “A ground of

defense in a penal law that is not plainly labeled in accordance with this chapter has the

procedural and evidentiary consequences of a defense.” TEX. PENAL CODE ANN. § 2.03 (3)

(West 2011). We agree with Tafel that Section 46.035 (i) is a defense.

        When a defendant challenges the legal sufficiency of the evidence to support

rejection of a defense, we examine all of the evidence in the light most favorable to the

verdict to determine whether a rational factfinder could have found the defendant guilty

of all essential elements of the offense beyond a reasonable doubt and also could have

found against the defendant on the defensive issue beyond a reasonable doubt. See

Dudzik v. State, 276 S.W.3d 554, 557 (Tex.App.-Waco 2008, pet. ref’d).

        Section 46.035 (i) states that subsection (c) does “not apply if the actor was not

given effective notice under Section 30.06.” TEX. PENAL CODE ANN. § 46.035 (i) (West

Supp. 2014). Section 30.06 provides that:

        (b) For purposes of this section, a person receives notice if the owner of the
        property or someone with apparent authority to act for the owner provides
        notice to the person by oral or written communication.


Tafel v. State                                                                            Page 3
        (c) In this section:

                (1) "Entry" has the meaning assigned by Section 30.05(b).
                (2) "License holder" has the meaning assigned by Section 46.035(f).
                (3) "Written communication" means:
                (A) a card or other document on which is written language identical
        to the following: "Pursuant to Section 30.06, Penal Code (trespass by holder
        of license to carry a concealed handgun), a person licensed under
        Subchapter H, Chapter 411, Government Code (concealed handgun law),
        may not enter this property with a concealed handgun"; or

               (B) a sign posted on the property that:
               (i) includes the language described by Paragraph (A) in both English
        and Spanish;
               (ii) appears in contrasting colors with block letters at least one inch
        in height; and
               (iii) is displayed in a conspicuous manner clearly visible to the
        public.

TEX. PENAL CODE ANN. § 30.06 (b) (c) (West 2011).

        Tafel focuses on whether a rational factfinder could have found against him

beyond a reasonable doubt on the issue of lack of effective notice. Section 30.06 provides

that effective notice can be provided by oral or written communication. Judge Mills

posted a sign in an attempt to comply with the provisions of Section 30.06. The record is

unclear whether the sign was displayed in a conspicuous manner clearly visible to the

public and whether it contained contrasting colors with block letters. The sign was

printed only in English.

        The record indicates that Tafel was aware of the sign after it was posted. Sheriff

Bewley met with Tafel to discuss Tafel carrying weapons to the county commissioner’s

meetings. Tafel’s statement to Sheriff Bewley is as follows:

        My name is Mark Tafel and I am the Commissioner of Hamilton County
        Precinct Two. Sheriff Bewley asked me to come to his office today regarding

Tafel v. State                                                                           Page 4
        concealed carry of a firearm. It has been brought to my attention questions
        have been raised from the past where I did not willingly or knowingly
        break any laws. On or prior to a Commissioner’s Court meeting discussions
        from a gentleman, Dave Gustafson, asked questions of concealed carry. At
        that point in time no 30.06 sign was posted at the courtroom nor did I know
        that any laws were being broken. As questions arose weeks later I
        confirmed that I cannot carry a concealed weapon during court hours with
        proper signage displayed. Sheriff Bewley investigated Texas Penal Codes
        and determined that section 46.03 and 46.035 are applicable when
        Commissioner’s Court is in session. From knowing this now I have not and
        will not carry a weapon until new laws are written from our state courts.
        In fact from that day forward, in talking to Sheriff Bewley, I have been
        pursuing our state representative and his aid where the state house is
        challenging and changing the validity of 46.03 and 46.035 to allow any
        elected officials in Commissioner’s Court or any Justice Court to carry a
        concealed weapon as long as they are a CCL holder. The Sheriff has asked
        me about a conversation that occurred prior to a Commissioner’s Court
        meeting between myself and Mr. Gustafson. A discussion I vaguely
        remember was about whether we, Dave and I, were legal to carry concealed
        weapons in the courthouse. Judge Mills had previously told me it didn’t
        bother him that I carried in the courthouse. There was no positive outcome
        of Dave and mine’s conversation till weeks later when Sheriff Bewley
        confirmed that according to Texas Penal Code section 46.03 and 46.035 that
        I would be breaking the law if I carried in the courtroom when in session.
        Back to the discussion with Dave Gustafson, in a conversation I vaguely
        remember, the Sheriff has referred to my patting my clothing and ankle
        with which I completely disagree that could have happened. Because, I
        have never carried a boot gun. I do however carry an underarm shouldered
        weapon or small of the back carry. Again though I must reiterate that no
        determination was made of what is legal and wasn’t legal. Today however,
        we do know, and that is why I do not carry during court. I don’t want to
        lie I believe I was carrying a concealed weapon on my first and second court
        date. Again after this conversation with Mr. Gustafson I brought the
        concern to our County Judge and he didn’t care that I was carrying during
        court.
        This issue seems to be very confusing to me and to others. We know state
        law says that a 30.06 sign must be posted to stop concealed carry with that
        building. At no time were signs ever present until recently, and now I know
        that I cannot carry a weapon past that sign. At no time did I intentionally
        or knowingly break any laws. In fact I pride myself in being an upstanding
        law abiding citizen. Being taught what is proper in concealed carry by my
        instructor, Carl Chandler, told me that it was my right to carry in the state
        capitol while it is in session. This has been confirmed by the state reps

Tafel v. State                                                                          Page 5
        assistant that concealed carry is allowed at the state capitol but not in a
        county courtroom. This is why they are vigilantly trying to change the law.
        This is the end of my statement.

        Tafel further consulted with County Attorney Mark Henke on carrying a

concealed handgun in the courtroom and to the meetings of the Commissioners Court.

Henke never advised Tafel that he was permitted to carry a concealed handgun to the

meetings of the Commissioner’s Court. Henke testified that his advice was consistently

“… don’t do it. You risk going to jail.” Henke and Tafel also discussed the sign posted

in an attempt to comply with Section 30.06.         Tafel was aware of the written sign

prohibiting him from carrying a handgun to the meetings, and Tafel received oral notice

that he was prohibited from carrying a handgun to the meetings. Viewing the evidence

in the light most favorable to the verdict, we find that a rational factfinder could have

found against Tafel on the issue of lack of effective notice. We overrule the first issue.

                                     Mistake of Law

        In the second issue, Tafel argues that the evidence established as a matter of law

the affirmative defense of mistake of law. To establish the affirmative defense of mistake

of law, a defendant bears the burden of proving by a preponderance of the evidence that

he reasonably believed the conduct charged did not constitute a crime and that he acted

in reasonable reliance upon:

              (1) an official statement of the law contained in a written order or
        grant of permission by an administrative agency charged by law with
        responsibility for interpreting the law in question; or
              (2) a written interpretation of the law contained in an opinion of a
        court of record or made by a public official charged by law with
        responsibility for interpreting the law in question.


Tafel v. State                                                                        Page 6
TEX. PENAL CODE ANN. §§ 2.04, 8.03(b) (West 2011).

         The proper standard in criminal cases for review of legal sufficiency challenges to

a factfinder’s refusal to find on an issue that the defendant had the burden of proof is the

same standard applied in civil cases. Reynolds v. State, 385 S.W.3d 93, 100-101(Tex.App.-

Waco 2012, aff’d 423 S.W.3d 377 (Tex. Crim. App. 2014). That standard requires a two-

step analysis. Id. We first examine the record for any evidence that supports the

factfinder’s refusal to find while ignoring all evidence to the contrary. Id. If no evidence

supports the refusal to find, we then examine the entire record to determine whether the

evidence establishes the affirmative defense as a matter of law. Id.

         Judge Mills wrote a letter addressed to “To Whom It May Concern” and states:

         Commissioner Mark Tafel is authorized by this office to exercise his
         authority under Texas Concealed Handgun laws to carry concealed
         handgun in Hamilton County Commissioners Court. This is to remain in
         effect until further notification.

Tafel contends that he relied on Judge Mill’s authorization to bring concealed handguns

to the commissioners meeting pursuant to TEX. PENAL CODE ANN. §8.03(b) (2) (West

2011).

         Section 8.03 requires reliance on a narrow class of official statements or

interpretations of the law. Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim. App. 1983). The

letter is not a written interpretation of the law contained in an opinion as set out in Section

8.03 (b) (2).    An interpretation is defined as an explanation.        (Merriam Webster’s

Collegiate Dictionary (10th Edition 1993). The letter written by Judge Mills does not

explain the applicable law, and it is not an opinion. Judge Mills testified that his letter


Tafel v. State                                                                           Page 7
did not constitute an opinion.     We find that Tafel’s reliance on the letter was not

reasonable. Tafel did not establish the affirmative defense of mistake of law as a matter

of law. We overrule the second issue.

                                        Conclusion

        We affirm the trial court’s judgments.



                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed August 31, 2016
Publish
[CR25]




Tafel v. State                                                                     Page 8
