Texas Felon In Possession


Texas Penal Code 46.04(a) deals with the unlawful possession of a firearm.


The statute provides that “a person who has been convicted of a felony commits an offense if he possesses a firearm: (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 under community supervision, parole, or mandatory supervision, which date is later; or (2) after the period described in Subdivision (1), at any location other than the premises at which the person lives.”


2nd Amendment and Right to Bear Arms


The U.S. Supreme Court in the District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) lent constitutional credence to the Second Amendment right to keep and bear arms.  However, this past July, the Sixth Court of Appeals, Texarkana, Texas, in Ross v. State[i], held that neither Heller nor McDonald apply to § 46.04(a). In that case, Cinque Ross was found guilty following a bench trial for being a felon in possession of a firearm and was given an eight year prison sentence.


Ross Argues Heller Gives Felons Rights to Possess at Home


The appeals court’s chronology of events leading up to Ross’s case is: In September 2013, Kilgore law enforcement authorities secured and executed a search warrant of a residence occupied by Ross. Three other individuals were present with him at the residence when the police arrived. Ross was physically in the bedroom where the officers found several small bags of methamphetamine and a small amount of marijuana. In a closet, the officers found four handguns, ammunition, and mail belonging to Ross. Ross was arrested and during a jail interview told the officers that he knew the firearms were in the closet.


On appeal, Ross argued that § 46.04(a), as it applied to him, was unconstitutional because Heller and McDonald gave him the right to possess a firearm in his own home for defensive purposes. The State countered that § 46.04(a) has passed constitutional muster under the Texas Constitution whose firearm provisions are comparable to the Second Amendment and that Heller and McDonald are not applicable to state statutes like § 46.04(a) that restrict access to firearms by felons. Ross conceded the general constitutionality of § 46.04(a), but argued the statute was unconstitutional “as-applied” to his particular circumstances.


Unconstitutional as Applied


Ross Argued that the Felon in Possession Statute was unconstitutional as it was applied to felons like him who possessed firearms at home for their protection.


Under established Texas jurisprudence, a statute is presumed constitutional; and when someone presents an “as-applied” constitutional challenge to a statute, they bear the burden of showing “in its operation,” the statute was unconstitutionally applied to them. The appeals court decided the § 46.04(a) issue this way:


“Ross cites only Heller and McDonald as authority for his contention that the Second Amendment protects his right, as a felon, to possess firearms in his own home. In Heller, the United States Supreme Court held that the Second Amendment protects the rights of citizens to keep and bear arms for the purpose of self-defense and held unconstitutional a District of Columbia law banning the possession of handguns in the home. In McDonald, the United States Supreme Court held ‘that the Due Process Clause of the Fourteenth Amendmentincorporates the Second Amendment right recognized in Heller,’ thus making the Second Amendment applicable to the States and their subdivisions. However, both Heller and McDonald stressed that the right to bear arms is not unlimited and that ‘the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose”.’ The United States Supreme Court further limited the right recognized in Heller and McDonald, emphasizing that


…[N]othing in our opinion(s) should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”


Thus, neither Heller nor McDonald lend support to Ross’ proposition. Further, the United States Fifth Circuit Court of Appeals on similar facts, upheld the constitutionality of a federal statute forbidding felons from possessing firearms, which is more restrictive than Section 46.04(a) …Considering the express limitation of Heller and McDonald by the United States Supreme Court and relevant Fifth Circuit precedent, we find that Ross has failed to show that Section 46.04(a) is unconstitutional as applied to him in this case.”


Texas Felons Cannot Possess Firearms Within 5 Year Period


We regularly get inquiries from convicted felons who are disparate to possess fire arms for either hunting or self protection.  Some go as far as arguing the Second Amendment reasoning in Heller gives them Constitutional rights that trump state felon in possession laws.  Our advice remains consistent, unless you want to be forced to hire a criminal defense lawyer and face real risk of serious prison time, you should avoid following this anecdotal advice.  Both the federal government and state law enforcement have made enforcement of felon in possessions laws a priority and will seek prison time for those unfortunate enough to be convicted. These are serious consequences for convicted felons who sometimes may not take the prohibition seriously.


[i]2015 Tex.  App. LEXIS 8045