John T. Floyd Law Firm
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Comments on Criminal Issues
March 2, 2010
THE LAW ON GUNS AND FELONS
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
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. The National 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 that federal 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