(Editor’s Note: Please do not contact us if you are seeking representation to restore your gun rights or to obtain a pardon. We do not do that kind of legal work. We will not give advice or answer questions about restoration of gun rights over the phone. We are a criminal defense law firm. We do not represent individuals attempting to restore their guns rights or get a pardon. We represent individuals accused of serious firearms crimes crimes before criminal courts. If you are being investigated of charged with Importing, Dealing or Manufacturing Firearms without a License or Federal Felon in Possession of a Firearm, we can help.)

In a previous post, we discussed unlawful possession of a firearm by a felon under Federal law. The same offense, with a few exceptions, can also be severe under Texas law.

After Five Years in Residence ONLY

Under Texas state law a convicted felon may possess a firearm in the residence, in which he lives, once five years have elapsed from the date his sentence was discharged. This means the later of release from prison or parole. This is not true under federal law. So, while a convicted felony could lawfully possess a firearm in these very limited circumstance under state law, he could possibly be charged and convicted under federal law, even though current federal policy is to defer to state law on this issue.

Restoration of Rights

Currently there only way for a felony to regain his rights to possess a firearm in Texas and that is through full pardon. Given the very limited number of pardons issued from the governor’s office, a pardon is extremely unlikely and very expensive. Until Texas state law is changed in regard to “felon in possession,” it is a felony to possess a firearm unless five years have elapsed since a sentence has become complete, and then only in the residence for self protection.

Unlawful Possession of Firearm

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.

Affirmative Links

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.

Can Only Use Prior to Support Charge

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.

Deferred Adjudications

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 a misdemeanor.

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.”

The same may not be true for federal prosecutions in Texas because the Fifth Circuit has yet to address the issue directly. Current federal policy is to defer to the states on this issue, but there is no guarantee that bad facts might lead to a federal prosecution.

Defense of Necessity

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.

Self Defense and Ignorance

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.

Before You Call a Lawyer

If you are a convicted felon, there is virtually nothing that can be done to restore your rights other than full pardon. Not only is this process time consuming and very expensive, it is also extremely unlikely considering only a handful of pardons are granted. If you have specific questions about felon in possession please read “The Law on Guns and Felons” or refer to the National Association of Criminal Defense Lawyers list of state specific prohibitions.

Felons Should Have Their Rights Restored Automatically

We believe that felons should be able to complete their obligation to society for their crimes of conviction. Therefore, we advocate for state and federal legislation which would allow for automatic restoration of all rights after a waiting-period, during which the individual demonstrated good conduct. It is unfair and inhumane to force convicted felons to live under lifetime disabilities when they have completed their sentences and moved on to law abiding lives. We believe people can redeem themselves and should be able to live as normal members of society after they have earned the ability to do so. The stain of a felony conviction is crippling and at some point should be removed for those felons who have changed their lives and struggled to become honest, productive members of society.

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The John T. Floyd Law Firm is a criminal defense law firm. If you are charged with felon in possession, we prepare, investigate and develop any defense in an unlawful possession of a firearm by a felon in any Texas county or Federal jurisdiction.