Law Offices of Tim Powers – Denton, Texas
In the past we discussed unlawful possession of a firearm by a felon under
Federal law. The same offense, while very different, can also be severe
under Texas law.
For example, a convicted felon may possess a firearm in the residence in
which he lives once five years have elapsed from his release from prison
or parole, whichever is later. Under Texas Penal Code §§ 12.33,
46.04, the unlawful possession of a firearm is a third degree felony with
a punishment range of two to ten years for a defendant with one prior
felony conviction and fine up to $10,000.
In legal terms, the word “possession” is an abstract term,
but Texas courts, like most other state courts, have the defined as the
term as follows: “Possession means actual care, custody, control
or management. Possession is a voluntary act if the possessor knowingly
obtains or receives the thing possessed or is aware of his control of
the thing for a sufficient time to permit him to terminate his control.”
To be convicted as a felon in the unlawful possession of a firearm, the
State must prove only that 1) a person, 2) who has been convicted of a
felony, 3) possessed a firearm, 4) after conviction and before the fifth
anniversary of the person’s release from prison or parole or other
community supervision. Under Texas Penal Code § 6.01(a), the State
must also prove the defendant voluntarily possessed the firearm.
But what if the firearm is not under the “exclusive possession and
control” of the place where the firearm is found, e.g., a friend’s
residence or vehicle? The State must then provide, as the courts have
held, “evidence of circumstances, in addition to mere presence,
that would adequately justify the conclusion that the defendant knowingly
possessed the firearm.” This burden of proof can be satisfied with
either direct or circumstantial evidence so long as the State connects
the defendant to the firearm.
There are several nuances under Texas law that should be considered by
a criminal defense lawyer when evaluating a Felon in Possession case.
The State, in an indictment charging only unlawful firearm possession based
on a predicate prior conviction, cannot use that same predicate offense
to enhance the defendant’s sentence to a second degree felony subjecting
defendant to a term of imprisonment up to 20 years.
Also, an order setting aside a defendant’s conviction and sentence
to community supervision under Texas Code of Criminal Procedure Article
42.12(20) cannot be charged and/or convicted under § 46.04. Procedures
under Art. 42.12 (20) are commonly referred to as “judicial clemency.”
Under Art. 42.12(20), a judge who believes a person on community supervision
who is completely rehabilitated and ready to return to society as a law-abiding
citizen may set aside the guilty verdict or withdraw his guilty plea which
led to the felony conviction. This procedure permits the judge to dismiss
the accusation, complaint, information or indictment against the defendant
which effectively releases the defendant from all penalties and disabilities
from the offense to which the defendant had been convicted.
There is a caveat to this “judicial clemency” exception: The
Court of Criminal Appeals held last year the prior conviction used in
a § 46.04 case must have been set aside before the unlawful firearm
possession offense occurred. For example, a felony conviction used as
the predicate offense in an unlawful firearm possession case which is
vacated and set aside after the § 46.04 possession case will not
undermine a conviction obtained under that statute. This is consistent
with a 1980 U.S. Supreme Court decision which held that a “constitutionally
infirm” conviction can be used to enhance a sentence.
There is yet another, and much more important, caveat. This one concerns
deferred adjudications. No decision by the Court of Criminal Appeals has
directly addressed the issue of whether a deferred adjudication can be
used as the predicate “felony” in a § 46.04 case. In
2006, the court decided that a deferred adjudication is distinguishable
from the other “community supervision[s]” (regular, shock,
boot-camp, state-jail) because it does not lead to a “conviction,”
when the deferred adjudication is successfully completed.
Section 5 of Article 42.12 addresses deferred adjudication. It provides
that a defendant can be placed on deferred adjudication for a felony or
Under Section 5, “the judge may dismiss the proceedings and discharge
a defendant, other than a defendant charged with an offense requiring
the defendant to register as a sex offender … prior to the expiration
of the term of community supervision if in the judge’s opinion the
best interest of society and the defendant will be served.” If the
judge elects to take this action, any dismissal and discharge from supervision
“may not be deemed a conviction for purposes of disqualifications
or disabilities imposed by law for conviction of an offense …”
However, a defendant with a prior deferred adjudication does face some
practical “disabilities”: the defendant cannot apply for a
license to carry a concealed weapon and the deferred adjudication can
be considered by a judge or jury in the punishment phase of a criminal trial.
Therefore, in Texas, deferred adjudication cannot be used as a predicate
offense in a § 46.04 case because a deferred adjudication is not
a “conviction.” Section 5 provides that the judge accept a
guilty plea but defers making a finding of guilt. If the defendant successfully
satisfies the conditions of deferred adjudication, his case is dismissed
and he does not have a “conviction” – and a “conviction”
is an essential element in a § 46.04 case. Even § 42.12(20)
explicitly distinguishes those placed on community supervision after being
“convicted” and those “pleading guilty.”
There is also a true defense in a § 46.04 case. A defendant charged
with unlawful firearm possession may use a defense of necessity which
means that, under Texas Penal Code § 9.22, conduct is justified if
(1) the actor reasonably believed the conduct to immediately necessary
to avoid imminent harm, (2) the desirability and urgency of avoiding harm
clearly outweigh, according to ordinary standards of reasonableness, the
harm sought to be prevented by the law proscribing the conduct, and (3)
the legislative purpose to exclude the justification claimed for the conduct
does not otherwise plainly appear. Before this defense can even be contemplated,
there must be evidence of both immediate necessity and imminent harm.
Once a defendant makes this showing, the State must then disprove the
defense through persuasion.
But it must be pointed out that two other common law defenses—self-defense
and mistake or ignorance of the law—are not available in unlawful
firearm possession cases.