Crimes related to weapons or firearms can be prosecuted in state or federal court. In some cases, the crimes are regulatory in nature. In other cases, the crimes are related to the improper exhibition or discharge of a firearm. Although the Second Amendment provides for a right “to keep and bear arms,” both state and federal law strictly regulates the use and possession of firearms.
Attorney for Firearm Crimes in San Antonio, TX
If you were charged with a weapon or firearm charged in San Antonio or the surrounding areas in Texas, then contact an experienced criminal defense attorney at Flanary Law Firm, PLLC. During the consultation, you can talk with the attorney about the charges pending against you, the potential penalties that might come with a conviction, and the best ways to avoid a conviction.
Call 210-880-3931 today to discuss your case.
Gun Laws under Texas Law
Section 46.04 of the Texas Penal Code governs the unlawful possession of a firearm by a person convicted of certain crimes. The offense can range from a Class A misdemeanor, for those convicted of domestic violence to a third-degree felony for convicted felons in possession of a firearm.
Texas Law Prohibiting a Felon in Possession of a Firearm
A felon in possession of a firearm can be charged under Section 46.04 under two sets of circumstances:
- after a 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
- 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 of up to $10,000.00.
Elements of the Texas Statue for Felon in Possession
In order to convict a felon for possession of a firearm in Texas, the State must first show 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 elements of the crime must be proven by the prosecutor at trial beyond all reasonable doubt. Firearm crimes can be proven through direct or circumstantial evidence, by establishing an affirmative link between the defendant and the firearm. Circumstantial evidence may include any of the following factors:
- the firearm was found in a vehicle driven by the defendant;
- the firearm was found in a place owned by the defendant;
- the firearm was found in a place conveniently accessible to the defendant;
- the firearm was located in plain view; or
- the firearm found in an enclosed space.
Actual possession of the firearm is not necessarily required under Section 46.04.
Defenses for Possession of a Firearm by a Convicted Felon
Although Texas law does not contain any affirmative defenses to unlawful possession of a firearm by a felon, the law does provide several general defenses that can be used by a person charged with unlawful possession of a firearm under Section 46.04 such as mistake of fact, mistake of law, or necessity.
The Cleansing Period in Texas
The law in Texas has a “cleansing” period that allows a person convicted of a felony to own a firearm after a specified period of time after a criminal conviction. Under Section 46.04, in some cases, a person convicted of a felony can possess a firearm on the premises where he or she resides five years after being released from prison or probation. It is important to keep in mind that compliance with Section 46.04 does not prevent a prosecution for unlawful possession of a firearm under federal law.
Firearm Crimes Prosecuted in Federal Court
In addition to firearm crimes prosecuted in state court, Don Flanary also represents clients charged with firearm crimes in federal court. Many firearm crimes in federal court are prosecuted under provisions of the Gun Control Act of 1968 in 18 U.S.C. §§ 922-924. Those offenses can include:
- dealing, manufacturing, or importing a firearm without a license are found in 18 U.S.C. § 922 which applies to anyone other than a properly licensed dealer, importer, or manufacturer;
- felon in possession of a firearm prohibited by 18 U.S.C § 922; and
- using a firearm or weapon during the commission of any drug trafficking offense or any violent crime under 18 U.S.C. § 924(c)(1)(A).
If you were charged with a firearm charge in Bexar County, related to the use, possession, exhibition, or discharge, then contact an experienced criminal defense attorney in San Antonio, TX, at Flanary Law Firm, PLLC.
Don Flanary represents clients charged with weapon offenses in San Antonio and throughout Bexar County. Call for a free and confidential consultation to discuss your case.
Call 210-880-3931 today.
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