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THE LAW ON GUNS AND FELONS

Mar 02 2011
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Texas Legislature Pushing to Allow Concealed Guns on College Campuses, Penalties for Felon in Possession Increase
By Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

(Editor’s Note: Please do not contact us if you are seeking representation to assist you in obtaining a pardon or restoring your gun rights. We do not do that type of legal work. We are a criminal defense law firm representing individuals under investigation or charged with serious firearm crimes. If you are under investigation or charged with criminal allegations of Export, Import, Manufacture or Dealing Firearms without a license, we can help. If you are charged with felon in possession of a firearm in a state court in Texas or federal court nationwide, we can help. We cannot give advice over the phone or answer questions regarding restoration of rights. If you have questions about regaining or restoring your rights to possess a firearm after a felony conviction, please refer to Convicted Firearms Possessing Firearms. We hope the articles help.)

The Texas Legislature appears poised to join Utah in enacting legislation that would allow guns on college campuses (an issue rejected in 23 other states). The legislation would allow college students and professors, who have concealed handgun permits, to pack “heat” on public university property throughout the State of Texas.

In 1995 the State of Texas, along with six other states, enacted what is commonly known as the “conceal carry” law which authorized licensed gun owners to carry their weapons concealed on their person. As of December 31, the Texas Department of Public Safety said the state had issued 461,274 concealed carry licenses. To obtain a license for conceal carry, the applicant must be a legal resident of the state for a six-month period, must be 21 years of age, has never been convicted of a felony, is not charged or a fugitive for Class A or B misdemeanors, is not chemically dependent, is not a person of unsound mind, is not delinquent in making child support payments, and can purchase a handgun.

Undeniably, Americans, especially Texans, love their guns, even more than their cars. TheNational Rifle Association (NRA) reports there are more than “250 million privately-owned firearms in the U.S., including 100 million handguns and ten of millions of ‘assault weapons’.” Since 2008, gun ownership in this country has increased by 90 million, according to the NRA. The New York Times reported in 2007 that the United States has the “highest concentration of private gun ownership in the world.”

But a equally undeniable problem with the nation’s love affair with guns is that criminals love them also. The Washington Post reported last June that 500,000 guns are stolen each year, which probably end up in the hands of criminals. This fact partly explains the U.S. Justice Department finding in 2008 that there were 5,340,000 violent crimes recorded in this country—436,000 of them committed by offenders armed with a gun, many convicted felons. This is why states, including Texas, have reacted to this continuing crime problem by enacting laws designed to prohibit the unlawful use firearms by felons. The Texas statutes are listed below:

  • Texas Penal Code Section 46.02 – unlawful carrying weapons (Class A misdemeanor or third degree felony depending upon subsection involved).
  • Texas Penal Code Section 46.03 – places weapons prohibited (a third degree felony).
  • Texas Penal Code Section 46:035 – unlawful carrying of handgun by license holder (Class A misdemeanor or third degree felony depending upon subsection involved).
  • Texas Penal Code Section 46:04 – unlawful possession of firearm, including convicted felon (Class A misdemeanor or third degree felony, depending upon subsection involved).
  • Texas Penal Code Section 46:041 – unlawful possession of metal or body armor by felon (third degree felony)
  • Texas Penal Code Section 46.05 – prohibited weapons (Class A misdemeanor or third degree felony, depending upon subsection involved).
  • Texas Penal Code Section 46.06 – unlawful transfer of certain weapons (Class A misdemeanor or state jail felony, depending upon subsection involved).
  • Texas Penal Code Section 46.13 – making a firearm accessible to a child (Class A or Class C misdemeanor depending upon subsection involved).

In Texas a felon can be charged under Section 46.04 under two set of circumstances: 1) after [prior] 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 under community supervision, parole, or mandatory supervision, whichever date is later; or (2) after the period described in subsection (1), at any location other than the premises at which the person lives. A conviction under this section is a third degree felony with a range of punishment of two to 10 years for a defendant with one prior felony conviction, as well as a fine up to $10,000, under the Texas Penal Code.

In order to convict a felon for possession of a firearm in this state, the Texas Fourteenth Court of Appeals in Powell v. State held the prosecution must first that the defendant is a convicted felon who, within five years of his release from prison or community supervision, knowingly and voluntarily possessed a firearm. The Texas Court of Criminal Appeals in Brown v. State said the State may fulfill this burden, either with direct or circumstantial evidence, by establishing an affirmative link between the defendant and the firearm. The Powell court said the following circumstantial evidence may include but is not limited to factors such as the firearm was (1) in a vehicle driven by the defendant, (2) in a place owned by the defendant, (3) conveniently accessible to the defendant, (4) in plain view or (5) found in an enclosed space.

Many ex-felons incorrectly assume that if they do not actually “possess” the weapon, they cannot be charged under Section 46.04. Not so. For example, courts have found that a gun in the trunk of a girlfriend’s vehicle or having possession of a pawn shop ticket for a shotgun are sufficient basis for conviction under Section. 46.04. 1/

While there are no affirmative defenses to unlawful possession of a firearm by a felon, there are general defenses under Texas law which may be invoked by a defendant charged under Section 46.04. For example, Texas Penal Code Section 8.02 permits a “mistake of fact” defense. Essentially, this defense requires a showing by the defendant that through a mistake he/she formed a reasonable belief about a matter of fact which negated the requisite culpability to commit a crime. The Texas Court of Criminal Appeals in Willis v. State has held that this defense is viable only if the defendant presents sufficient evidence which negates the requisite culpable mental state; namely, that the defendant did not knowingly or intentionally possess a firearm.

A felon charged with unlawful gun possession may also raise a “mistake of law” defense authorized under Texas Penal Code Section 8.03. The Texas Court of Criminal Appeals in Green v. State held that for a defendant to establish this defense, he must have 1) reasonably believed his conduct did not constitute a crime and 2) he reasonably relied upon either an administrative order or written interpretation of law contained in an opinion of record.

Finally, a Section 46.04 defendant can raise a defense of necessity under Texas Penal Code Section 9.22 which provides that conduct is justified when 1) the defendant reasonably believes that the conduct is immediately necessary to avoid imminent harm and 2) according to the ordinary standards of reasonableness, the desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct.. The Court of Criminal Appeals held in Zuliani v. State that once a defendant presents some evidence that supports this defense, the prosecution bears the burden of persuasion to disprove the defense.

Significantly, the Court of Criminal Appeals in Miller v. State held that a defendant is entitled to a jury instruction on these defenses, regardless of whether his/her evidence is weak or strong, unimpeached or contradicted, and without regard to the trial court’s appraisal of its credibility. This rule was reinforced by the appeals court in Vasquez v. State in which a defendant, a former prison gang inmate, was kidnapped by the members of the gang and stole a gun from the gang member guarding him in order to escape. The court said a defense of necessity and an instruction to that defense was available to him.

But, unfortunately, the Zuliani court also held that once a defendant raises any of these defenses that go to his/her culpable mental state, the prosecution can introduce extraneous offenses and/or bad acts committed by the defendant to rebut the defenses under Rule 404(b)of the Texas Rules of Evidence.

Finally, despite the U.S. Supreme Court’s landmark gun rights decision in District of Columbia v. Heller upholding the Second Amendment’s right to keep and bear arms, recent legal and constitutional challenges to federal gun laws have not been very successful, even though some erroneously believe that Heller opened the door to such ownership. Just last year the Ninth Circuit Court of Appeals in United States v. Vongxay held that 18 U.S.C. Sec. 922(g)(1) did not violate the Second Amendment’s right to keep and bear arms; and this past January the U.S. Supreme Court in Alderman v. United States upheld a 2009 decision by the Ninth Circuit which had upheld the provisions of 18 U.S.C. Sec. 931 prohibiting a felon previously convicted of a crime of violence from purchasing, owning or possessing body armor; and last August the Seventh Circuit in United States v. Williams also upheld the federal ban on gun possession by felons, citing Heller dictum that nothing in that opinion should be taken as to cast doubt on the long-standing prohibitions of gun possession by felons.

Thus, while gun ownership in this country continues to proliferate, it is abundantly clear thatfederal and state authorities will continue to charge and prosecute felons possessing firearms, particularly when the weapon is used in the commission of a crime.

1/ Jones v. State, 2005 Tex.App. LEXIS 4305 (Tex.App.-Houston [1st Dist.] June 2, 2005); Riggs v. State, 2004 Tex.App. LEXIS 8361 (Tex.App.-Waco, Sept. 15, 2004)
By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

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  • Avatar calvin robinson ★★★★★
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★
  • Avatar Anton Jasser ★★★★★
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  • Avatar Victory 2020 ★★★★★
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★
  • Avatar Karetta Lux ★★★★★
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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