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One of the greatest things about the United States is the freedom allowed to its citizens, including the right to bear arms. However, there still are restrictions regarding firearms. Texas law permits almost anyone to possess a firearm in their home or in a locked and enclosed location in their vehicle.
However, if a person carries his or her handgun in an unlawful place or if that person is prohibited from carrying a weapon because they are a convicted felony offender, they can be charged with a misdemeanor or felony offense. There are both state and federal gun crimes.
A conviction for a gun crime can have a negative impact on your future. It could result in serious penalties, including a permanent criminal record, steep fines, inability to own or possess a firearm in the future and jail or prison time. Start building your defense today, and contact a weapons defense attorney at Goldstein, Goldstein, Hilley & Orr.
Texas has a long proud tradition of gun ownership, and that tradition must be defended continually in the courtrooms. The criminal defense attorneys at Goldstein, Goldstein, Hilley & Orr fight to protect the rights of gun owners charged with a crime under Texas law. Our attorneys are often called upon to speak to other attorneys on state and federal firearm legislation, the Second Amendment and self-defense laws.
If you are charged with any crime under state or federal law involving a firearm, contact a gun charges defense lawyer at Goldstein, Goldstein, Hilley & Orr. Our offices are located in San Antonio, and we represent clients throughout the state. Call us at 210-226-1463 to discuss your case today.
The following is Section IV of a presentation titled "Criminal Defense as it Relates to Gun Cases" by attorney Donald H. Flanary III, recently presented at the State Bar of Texas What Every Texas Lawyer Needs Firearms Law Seminar in Fort Worth, Texas, on Sept. 27, 2013. The remainder of the presentation primarily covers federal gun laws.
Texas, in large part, follows much of the federal patterns of proscribing firearm possession or use in specific situations or by specific persons. However, Texas law does differ from the federal law in some significant areas.
Texas has codified its own version of 18 USC § 922 as Chapter 46 in the Texas Penal Code. The Texas statute allows for possession of a firearm five years after the person has been released from confinement, but only at the location where the person lives. Tex. Pen. Code Ann. § 46.04
The Texas Court of Criminal Appeals has held that determining crimes of violence must be examined and determined by the facts at hand. In one case, they held that “breaking” in a burglary was not sufficient evidence per se of establishing a crime of violence. As the court stated, “We now reaffirm this holding and state unequivocally that proof sufficient to establish “breaking” in a burglary prosecution under our former penal code, see V.A.P.C. Articles 1389 et seq., 1404b, does not automatically establish violence to property under § 46.05, supra. Gardner v. State, 699 S.W.2d 831, 836 (Tex. Crim. App. 1985).
The Texas statute states that a person commits an offense when the person has been convicted of a felony offense and possesses a firearm under either (1) After conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision, parole, or mandatory supervision, whichever date is later; or (2) After the period described above, at any location other than the premises at which the person lives. Tex. Pen. Code Ann. § 46.04
The government can use state jail felonies to predicate charges of a felon in possession of a firearm. “[W]e are compelled to conclude that persons convicted of state-jail felonies may be prosecuted under Section 46.04. Tapps v. State, 294 S.W.3d 175, 179 (Tex. Crim. App. 2009).
Additionally, if the defendant has been punished by a Class A misdemeanor involving assault of a family member, he or she would be prohibited from possessing a firearm. In any case, defense counsel always should check that defendant was properly admonished regarding this revocation of a right.
Although the Texas statutes do not create specific defenses, common law claims of self-defense and necessity could be argued in certain cases. A self-defense claim may warrant a felon to possess, carry, and or use a firearm in the actual course of conflict, so long as the felon did not provoke the conflict in accordance with standard self-defenses.
As long as there is genuine belief in fear of safety, the defense is lawful. United States v. Panter, 688 F.2d 268 (5th Cir. 1982); and though overruled in part, portion still applicable to point at hand Johnson v. State, 650 S.W.2d 414 (Tex. Crim. App. 1983), overruled by Boget v. State, 74 S.W.3d 23 (Tex. Crim. App. 2002).
This self-defense is related to the idea of necessity. Necessity could also be argued separately. Under certain circumstances, a felon’s possession of a firearm could be lawfully warranted. Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992), (where Court of Criminal Appeals held that evidence raised the issue as to the defense of necessity, and trial counsel was ineffective in failing to request an instruction thereon.). The Vasquez court further establishes that defense counsel in gun control cases should examine every avenue of defense, and in the instant case, necessity was vital to defendant’s relief from conviction.
Texas has also codified the prohibition of weapons on certain premises. It is a statutory defense to the unlawful possession of a weapon within 1000 feet from a specified premise that the person possessed the firearm while in a vehicle while being driven on a public road or at the actor’s residence or place of employment.
When it comes to Texas’ prohibition on certain classifications of weapons, there are specific statutory defenses in place. If the person’s conduct with the weapon was incidental to the performance of official duty by the armed forces or national guard, or government law enforcement agency, or correctional facility.
Texas also allows for defense of possession of certain firearms, under the “curio defense.” This allows for the possession of firearms that are antiques or collectibles. However, as an affirmative defense to the Texas statute, the burden is on the defendant to prove that the weapon does not fall under the definition of “firearm” as defined by statute. Cantu v. State, 802 S.W.2d 1, 2 (Tex. App.-San Antonio 1990, pet. ref'd). Defense counsel should, therefore, be watchful of any indicators that the item in question is, in fact, an antique under the “curio defense”.
Texas’ concealed handgun laws are a specific area of law that differs with federal law in its issuance of licenses to carry a concealed handgun. The law covering who in Texas is eligible to carry a concealed weapon is governed by Tex. Gov't Code § 411.172. Certain Texas decisions have ruled on who may obtain a concealed handgun license.
In a case arising from Fort Worth, “Tune did not receive deferred adjudication, but was adjudicated guilty and subsequently placed on probation. It would lead to an absurd result for the legislature to purposely deny a concealed handgun license to those never adjudicated guilty because of successful completion of deferred adjudication, yet allow someone adjudicated guilty, who subsequently completes probation and has the indictment dismissed, the privilege of obtaining a license. Texas Dept. of Pub. Safety v. Tune, 977 S.W.2d 650, 653 (Tex. App.--Fort Worth 1998) aff'd, 23 S.W.3d 358 (Tex. 2000).
In Texas, it is against the law to intentionally or knowingly:
Tex. Pen. Code Ann. § 42.01.
Texas has criminalized this under its Disorderly Conduct statute, Chapter 42 of the Texas Penal Code. Statutory defenses to this provision are that it is a “defense to prosecution for disorderly conduct for discharging a firearm that the person who discharged the firearm had a reasonable fear of bodily injury to the person or to another by a dangerous wild animal.” Tex. Pen. Code Ann. § 42.0.
In one interpreting Texarkana case, a juvenile was charged with violating the statute after having his pellet gun on the school campus. Although the court sensibly found that the pellet gun did not qualify as a “firearm”, In re K.H., 169 S.W.3d 459, (Tex. App.--Texarkana 2005, no pet.)
Very recently, the Court of Criminal Appeals has ruled on the discharge of a firearm in a public place. The issue of Texans being hit by stray bullets from indiscriminate gunfire was raised as a valid state concern. But note that this case is an important victory for defense counsel in the instant cause and should be noted by any criminal defense attorney with a similar case.
In the case, the State tried to attain a conviction for recklessly discharging a firearm without any specific evidence of the circumstances with which to infer recklessness on the part of defendant. As the court put it, their belief was that the State legislature’s intent “was to assign a reckless culpable mental state to the act of discharging-a-firearm-within-a- densely-populated-city-limits, requiring that the conduct occurs under such additional circumstances (albeit not spelled out on the face of the statute) as to create a substantial and unjustifiable risk of injury to another person, with the actor aware of but consciously disregarding that risk.
"I, therefore, agree with the Court that we should construe the notice requirement of Article 21.15 to dictate some allegation of the recklessness of that sort.” State v. Rodriguez, 339 S.W.3d 680, 688 (Tex. Crim. App. 2011). The Court had previously explained:
“The Court holds that an actor must be reckless not simply with respect to the simple act of pulling the trigger of the firearm itself, but rather, with respect to some circumstance surrounding the conduct of discharging the firearm—some circumstance other than the only circumstance expressly listed in the statute. Thus, the Court holds that in order to comply with Article 21.15's notice requirement, the State must allege that the firearm was, e.g., discharged into the ground or sky amidst a crowd of people, or in the backyard of a residential neighborhood, on the grounds of an elementary school, in the direction of a traffic sign, or in a public park.” Rodriguez at 687.
The Rodriguez case is an example of where defense counsel should be diligent in helping to affirm a gun owner’s rights. Texas has a long proud tradition of gun ownership, and that tradition must be defended continually in the courtrooms.
National Rifle Association - The NRA is the nation's longest-standing civil rights organization. It defends second amendment rights and is actively involved in making sure citizens maintain their right to own firearms.
U.S. Constitution - The link explains the rights afforded to each citizen in the U.S Constitution. The website clearly enumerates the rights of citizens and the protections outlined in the Bill of Rights.
San Antonio Gun Club - This organization is the oldest active gun club in the country and the only shotgun shooting facility located in the heart of a metropolitan city. The club is committed to enhancing the knowledge and skill of shotgun sports while also instilling a sense of responsibility and safety for themselves and others.
Genitron - This is an information-only website presented as a public service for the purpose of providing technical data on as many handguns currently on the market. The site is designed to help users understand the firearms before purchasing one.
If you were charged with a violation of Texas law regarding the possession or use of a firearm or other weapon, contact a San Antonio firearm defense attorney at Goldstein, Goldstein, Hilley & Orr. Our attorneys represent clients throughout Texas on serious weapon charges, including felony in possession, unlawful possession by a person convicted of domestic violence and more. Call 210-226-1463 today.
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