By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Often times people in possession of certain weapons don’t learn that possessing those weapons is an offense until they’re in handcuffs. Depending on the weapon in question, the offense can be a Class A Misdemeanor or even a Felony.
Texas Code of Criminal Procedure 46.05 controls prohibited weapons, and that statute says in relevant part,
“(a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
“(1) an explosive weapon; (3rd degree felony)
“(2) a machine gun; (3rd degree felony)
“(3) a short-barrel firearm; (3rd degree felony)
“(4) a firearm silencer; (3rd degree felony)
“(5) a switchblade knife; (misdemeanor) (Repealed effective 9/1/2013).
“(6) knuckles; (misdemeanor)
“(7) armor-piercing ammunition; (3rd degree felony)
“(8) a chemical dispensing device; or (3rd degree felony)
“(9) a zip gun. (3rd degree felony)
“(b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.
“(c) It is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.
“(d) It is an affirmative defense to prosecution under this section that the actor’s conduct:
“(1) was incidental to dealing with a switchblade knife, springblade knife, or short-barrel firearm solely as an antique or curio; or
“(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b).
There are more defenses to prohibited weapon possession than meets the eye. First is that there will always likely be a search and seizure issue of how law enforcement attained the weapon in question. If the search was illegal, then the exclusionary rule may keep the evidence suppressed requiring an acquittal.
Additionally, the State must prove “possession” which, under Texas Penal Code 1.07(39) means, “actual care, custody, control or management.” In other words, law enforcement must do more than show the defendant was near the weapon or could have possessed the weapon. They must show he ACTUALLY possessed it. Finally, there are affirmative defenses such as if the weapon is a curio (generally antique weapons made before 1899).
The fact these offenses alone are mostly felonies clearly indicates that if you are accused of possession of a prohibited weapon that you should get a lawyer involved. Even if the weapon charge is for knuckles or a switchblade, understand that Federal laws and Texas laws are constantly evolving and a conviction may make lawful gun ownership in the future more difficult if not impossible.
One final point is the Federal Government also highly regulates firearms. Just because a particular weapon may be legal under Texas law still doesn’t make it illegal under Federal law. You can read here about those.
*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article should be considered legal advice. For specific legal advice about any case you should consult a lawyer directly.