Texas is known for its lax regulations involving firearms, but some limits remain in place. Convicted felons are prohibited from owning, possessing, purchasing, or using firearms, although these rights can be restored. The law surrounding who may and may not possess a fire implicates both State and Federal statutory and constitutional law. If you are facing a felon in possession of a firearm charge, Attorney Gary J. Barton and the team at Barton & Associates can help by reviewing the allegations against you and developing a strategy for fighting back.

Dealing With State Charges

The Texas Penal Code section 46.04(a) prohibits a person who has been convicted of a felony from unlawfully possessing a firearm. This possession is unlawful under two distinct scenarios. Those include:

• Possessing a weapon before the fifth anniversary of their release from confinement following the conviction or the their from community supervision, parole, or mandatory supervised supervision, whichever comes later, or;
• Possessing a weapon after the period described above somewhere other than where a felon lives

Possessing a weapon as a felon under these circumstances is a third-degree felony. It brings a potential prison term of two to 10 years. There is also a fine of up to $10,000.

Felony

A “felony” for the purposes of this charge means either:

• The offense is designated by the law of Texas as a felony;
• The offense (if in another jurisdiction) contains all the elements of an offense designated by the law of Texas as a felony; or
• The offense (if in another jurisdiction) is punishable by confinement for one year or more in a penitentiary.

“Possession”

Possession means the actual care, custody, and control or management of the firearm. The State must prove the Defendant knowingly obtained or received the firearm, had exclusive possession of the firearm, or the Defendant was aware of his control of the firearm for a sufficient time to permit him to terminate their control.

However, being in mere proximity of a firearm due to someone else is not enough for the State to land a conviction. In the event a Defendant is not found to have the firearm on their person, or does not have exclusive ownership over it, the prosecution must show an “affirmative link” to prove the Defendant voluntarily possessed the firearm. This can include whether the firearm was in plain view, if the Defendant attempted to flee, or if the Defendant made incriminating statements when arrested.

Actual Ownership is not an Element

The State is not required to show the Defendant had a legal property interest in the firearm.

Facing Federal Prosecution

Federal law also prohibits felons from possessing firearms.

Under 18 U.S. Code Section 922G:

“It shall be unlawful for any person who has been convicted of any court of a crime punishable by imprisonment for a term of exceeding one year to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

Like most federal criminal law, this statute only applies to possession or transport that affects “interstate commerce” i.e. crossing state lines, or national borders.

If the firearm never crosses state or national lines, then state law applies. The same general principles concerning “possession” under state law also apply in federal cases.

For the purposes of 18 U.S. Sec. 922G, the statute uses the state of the underlying offense’s definition of “conviction”. For example, if you were granted deferred adjudication on a Texas felony offense, this would not be considered a conviction under the federal statute because successful completion of deferred adjudication results in a dismissal (i.e. no conviction) under Texas law.

Possible Defense Options

There are opportunities to fight these charges, even when it might seem that a conviction is guaranteed. For example, it may be possible to show a jury that you were never in possession of a weapon at all. Additionally, if you were never convicted of a felony in the first place, or it was set aside before you possessed the firearm, you cannot be convicted of felon in possession of a firearm.

Let Our Firm Find The Right Defense Strategy For Your Case

If you have previously been convicted of a felony and are accused of possessing a firearm, you should seek out legal counsel right away. The sooner you speak to an attorney, the better your odds of avoiding a conviction become.

At Barton & Associates, Attorneys At Law, PLLC, we will take the necessary steps to provide you with the strongest possible defense strategy. Our attorneys understand Texas gun laws and will work to protect your rights and freedom every step of the way. Contact us right away to learn more.