How to Beat Your Texas Weapons Charge

By November 30, 2017October 24th, 2021Gun Crimes, Weapons Charges

How To Beat A Weapons Charge! A Former Prosecutor Explains! (2021)

 

Updated Post: October 21, 2021; Original Post: November 30, 2017

Texas gun possession laws are among the most generous in the nation. Many other states will charge you with felony gun charges for having possession of a gun for any reason. Texas values a citizen’s Second Amendment rights to bear arms – However, recent events and legislation are causing law enforcement agents to be more vigilant in making arrests for violations.

If you are facing weapons charges in Texas, it is critical to know what Texas criminal law requires the State of Texas to prove beyond a reasonable doubt if your gun or weapons charge goes to trial. Here’s a brief overview of the Texas gun possession laws and a list of possible criminal defenses.

A Breakdown of Weapons Laws in Texas

Who Can Carry A Handgun Under Texas Law? Let’s first examine the requirements for carrying a handgun openly in Texas:

To qualify to carry a handgun without a license, you must meet the following requirements: you must be 21 years of age or older; must not have been convicted of the following crimes: Deadly Conduct, Assault Bodily Injury, Terroristic Threat or Disorderly Conduct – Discharging a Firearm or Displaying a Firearm; Must not be prohibited from possessing or carrying a firearm under federal law and must not be prohibited from possessing a firearm in a public place under Texas law.

The Firearm Carry Act of 2021 was enacted and effective September 1, 2021 and modified previous gun possession laws. Let’s examine the differences:

Under Texas law, what is a handgun? A handgun refers to any firearm that is designed, made, or adapted to be fired with one hand – Texas Penal Code 46.01(5)

Under Texas law, you only have two methods for carrying a handgun: concealed with no part of the weapon showing or openly in a holster.

What if you do not keep the gun holstered while you open carry? If you do not leave the handgun holstered, you can face a criminal charge of unlawful carry of a weapon. The only exception to this rule is if you had a justifiable defense under Texas Penal Code Chapter 9.

Open Carrying Can Easily Turn Into A Deadly Conduct Arrest

One of the riskiest issues surrounding open carrying in Texas is the possibility that someone else could become offended and claim that the observance of a firearm was “alarming.” Generally, under Texas criminal law, you can not display a gun in public in a manner that is designed to “alarm” another. Many people refer to this as “brandishing” a weapon.

Under Texas criminal law, if someone intentionally or knowingly displays a firearm or deadly weapon in a public place in a manner calculated to alarm, you could be charged with disorderly conduct or deadly conduct. This is a confusing part of the law because it is very subjective when you talk about whether someone was “alarmed.” Some people are alarmed at the sight of any gun or weapon and may exaggerate what they saw, which could lead to a disorderly conduct citation or deadly conduct arrest.

State v. Ross, 573 S.W.3d 817 (Tex. Crim App. 2019) provided some clarity on the application of the law to facts by stating “to be guilty of disorderly conduct under Penal Code Section 42.01(a)(8), a person must intentionally and knowingly display a firearm in a public place in a manner that he knows is likely, under and objective standard of reasonableness, to frighten the average, ordinary person.” This is new interpretation of the law is critical for your criminal defense attorney to develop a winning criminal defense strategy if you are facing a disorderly conduct or deadly conduct charge in Texas.

How Do I Comply With Texas Holster Requirements Under Texas Law?

Previously, an openly carried handgun by a licensed holder required the gun to be carried in a shoulder or belt holster. Now, this is no longer required. Under Texas law, handguns carried openly by license holders and those carrying in public under the authority of the law, are only required to us a “holster,” which can be a simple holster worn on your person or the use of a vehicle holster like magnetic dash holsters.

What happens if you were carrying a gun and you were intoxicated? Under Texas criminal law, if you are openly or concealed carrying a gun and you are intoxicated, you can be charged with unlawful carrying of a weapon, a Class A Misdemeanor.

Can You Possess A Firearm In A Public Place Under Texas Law?

It depends. If you have been convicted of a felony, Texas law prohibits you from possessing a firearm. If you have been convicted of an Assault Family Violence charge (Class A Misdemeanor or Felony Family Violence within 5 years of conviction), you are prohibited from possessing a firearm under Texas Penal Code 46.04(b). If you have an active protective order placed against you, you are prohibited from possessing a firearm in a public place.

Certain laws restrict where and when you can carry a handgun, even with a permit. Here is a sampling of the possession and carrying statutes, along with penalties.

Prohibited Weapons

Any of the following items are unlawful for possession, manufacture, transport, repair, or sales.

  • Armor-piercing ammunition
  • Chemical dispensing device
  • Explosive weapon
  • Firearm silencer
  • Knuckles
  • Machine gun
  • Short-barrel firearm
  • Tire deflation device
  • Zip gun

Offenses to this law range from Class A misdemeanor to third degree felony charges.

Prohibited Places

The Firearm Carry Act of 2021 referenced the prohibited places requirements under Texas law to Texas Penal Code 46.03. Under Texas criminal law, you are prohibited from carrying a gun or other prohibited weapon on the following premises:

  1. Schools or other educational institutions or transportation vehicles for school use or any grounds where a school-sponsored activity is taking place.
  2. All polling places
  3. Courts and offices used to administer court business
  4. Racetracks were wagering takes place
  5. All secured areas of airports
  6. Amusement parks
  7. Any rooms used for open meetings of a governmental entity
  8. Metal hospitals
  9. Hospitals or nursing homes
  10. Civil commitment facilities
  11. Correctional facilities
  12. Professional sporting events
  13. Bars
  14. Within 1000 feet of a TDC facility on the day of a death sentence

Exemptions apply for military officers, prison guards, and court officers.

An offense to this law is a third-degree felony, punishable by up to 10 years in prison and up to a $10,000 fine.

Additionally, under the Firearm Carry Act of 2021, if a private property owner posts a “no firearm” sign as mentioned in Texas Penal Code Section 30.05, if you enter the premises with a firearm without a license, you could receive a criminal trespass charge.

Unlawful Carrying

It is permissible to carry a handgun on your own premises or an area under your control, or in a motor vehicle or watercraft owned by you or under your control. However, you cannot lawfully display it in plain view, be engaged in criminal activity, be prohibited from firearm possession, or be a member of a criminal gang.

An offense to this law is a Class A misdemeanor unless it occurs in a licensed place for alcohol sales, in which case it is a third-degree felony, punishable by up to 10 years in prison and up to a $10,000 fine.

Unlawful Carrying by License Holder

You cannot intentionally display a handgun in a public place unless you are carrying it in an approved holster and the handgun came into view. This holds true on the premises of higher education institutions, places with liquor licenses, sporting events, correctional facilities, hospitals, amusement parks, places of worship, or where government meetings are held. You cannot carry a handgun while intoxicated, even if it is worn in a holster.

Offenses to this law are either Class A misdemeanor or third-degree felony charges. Exemptions apply if the use of deadly force is justified.

Unlawful Possession of a Firearm by a Felon

Individuals who have previous felony convictions may not lawfully possess a firearm or body armor within five years of release from conviction or supervision.

If you are convicted of unlawful possession of a firearm by a felon, you will be a convicted felon and could face a punishment range of up to 10 years in prison and up to a $10,000 fine.

Unlawful Transfer of a Firearm

You may not lawfully sell, rent, lease, loan or give a handgun to the following groups of people:

  • A child under 18 years old without written permission from the child’s parent or guardian
  • A person who is intoxicated
  • A person you know intends to unlawfully use the handgun
  • A person convicted of a felony within five years of their release from confinement or supervision
  • A person known to be under an active protective order

An offense to this law is a class A misdemeanor or a state jail felony.

What Happens If You are Charged with a Weapons Law Violation

If you have been charged with a violation, the law enforcement likely seized your weapon. According to the criminal procedure code, this is what happens next.

  • The magistrate will release the weapon to the owner before the 61stday after the initial notification, if no prosecution or conviction occurs, provided that the owner makes a written request for the weapon to be returned.
  • If the weapon is not requested to be returned, the magistrate has until the 121stday after the initial notification to have the weapon forfeited to the state for use or forensics, sold at a public auction, or destroyed.
  • The weapon may not be returned to the owner under certain conditions, including if prior weapon offenses exist and if the court determines that possession would pose a threat to one or more individuals.

Possible Defenses against your Weapons Charges

One thing you can do is claim your second amendment right to bear arms. Another common defense is unlawful search and seizure. If you were acting in self-defense, the charges may be dropped as well. You may be able to claim an exemption under certain circumstances, which can be explained to you by a skilled attorney.

You Were Transporting A Weapon

It is not illegal to carry a weapon in your car if you are transporting it from one location to another, provided you are not intoxicated or in possession of an illegal controlled substance. If you have been arrested and facing an unlawful carrying of a weapon charge, you need to put together a legal defense that helps clear your criminal record.

The Brandishing or Display of the Weapon Was Not Objectively Alarming

If you are facing a disorderly conduct or deadly conduct charge in Texas based upon the allegation that your display of the weapon was alarming or frightening, your aggressive and experienced criminal defense attorney could argue that the display of the firearm was not objectively frightening to the reasonable person. At a jury trial, the prosecutor must prove beyond a reasonable doubt that you intentionally and knowingly displayed a firearm in a public place in a manner that you knew was likely, under and objective standard of reasonableness, to frighten the average, ordinary person. Failure to prove this standard beyond a reasonable doubt could provide a not guilty verdict and your case could be eligible for expunction of all records pertaining to your gun possession charge.

Whether you are facing a misdemeanor charge or a felony charge, an experienced Fort Worth defense attorney can help. A lawyer who is up to date on current gun legislation will give you the best chance at success. Contact us today to set up a free case review.

About the Author: 

After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.

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