Can I Be Arrested For Felon In Possession Of A Gun If The Gun Belongs To A Passenger In My Car?

Can I Be Arrested For Felon In Possession Of A Gun If The Gun Belongs To A Passenger In My Car?

As DWI defense attorneys in Galveston, we’ve had many conversations with clients who were shocked to learn they could face serious charges just because a weapon was found inside a car they were driving—even if it didn’t belong to them. One of the most common questions we hear is, “Can I be arrested for being a felon in possession of a gun if the gun wasn’t mine?” The answer under Texas law is: yes, it’s possible, and you need to take the situation very seriously.

If you’re a convicted felon and you’re found in a vehicle where a firearm is present, Texas law may hold you responsible, even if the gun belongs to a passenger. The charge of Unlawful Possession of a Firearm by a Felon can carry significant prison time and permanent consequences. And when the arrest happens during a DWI stop, things become even more complicated.

We’re going to explain how these cases work under Texas law, what the state has to prove, and what you need to know if you’re facing charges tied to gun possession—even when the weapon wasn’t yours.

Understanding Texas Law On Felons And Firearms

Under Texas Penal Code § 46.04, a person who has been convicted of a felony is prohibited from possessing a firearm. Even one bullet can trigger a charge. This restriction generally lasts five years from the date the person is released from confinement, parole, or probation—whichever is later. After that, the law still limits possession to inside the person’s home.

If you’re a convicted felon and police find a firearm in a car you’re driving, they don’t need to prove the gun belongs to you. All they need is enough evidence to show that you were “in possession” of it. That’s where things get tricky, especially during a traffic stop or a DWI arrest.

Constructive Possession: How You Can Be Charged Without Owning The Gun

In Texas, “possession” doesn’t just mean something is in your pocket or in your hand. The law recognizes a concept called constructive possession, which means having access to or control over an item, even if it’s not physically on you.

Let’s say your passenger puts a gun in the glove box. If you’re the driver, and especially if you’re a felon, the state may argue you had knowledge of the gun and control over the car; therefore, constructive possession. Prosecutors often rely on this theory to bring charges in cases where the firearm is in a shared space, like a console or under a seat.

It’s important to know that constructive possession is not automatic. The state must prove beyond a reasonable doubt that:

• You knew the gun was there
• You had access to or control over it

But even if you didn’t know the gun was in the vehicle, that won’t stop you from being arrested on the spot if officers suspect otherwise.

What Happens If You’re Stopped For DWI And A Gun Is Found

Many of the cases we handle involve traffic stops that lead to DWI investigations. Once officers smell alcohol, see bloodshot eyes, or suspect impairment, things can escalate quickly. If you’re arrested for DWI and your car is searched—either incident to the arrest or based on probable cause—any firearm found can lead to new charges.

So now you’re not just facing a misdemeanor or felony DWI. You’re also looking at a third-degree felony for unlawful possession of a firearm, which can mean:

• 2 to 10 years in prison
• Up to $10,000 in fines
• A permanent criminal record

This can happen even if your passenger claims the gun is theirs. Police often won’t take that at face value at the scene. They’ll leave it to prosecutors and the court to sort out later.

Defending Against Felon In Possession Charges In Texas

We’ve defended many clients in Galveston and Houston accused of being felons in possession of firearms. If you’re in this position, it doesn’t mean you’re guilty. The prosecution has the burden to prove possession. That means we’ll review every detail of your case, including:

• Where the gun was found
• Who had access to it
• Whether your fingerprints or DNA were on it
• Whether anyone else admitted to ownership
• Whether the stop or search was lawful

If the police lacked probable cause to stop you or search your car, we can file a motion to suppress. If the gun was clearly tied to another person, we will work to try and get the charges dismissed or reduced, if possible.

What If I Didn’t Know The Gun Was There?

That’s one of the most important defenses in a constructive possession case. If you had no knowledge of the firearm, the state may not be able to prove its case. But it’s not always easy to convince a jury or judge. That’s why early legal representation is key.

FAQs About Felon In Possession Charges In Texas

Can I Be Arrested If My Passenger Has A Gun In My Car?

Yes. If you’re a convicted felon, and police find a gun in your vehicle—even if your passenger claims ownership—you can still be arrested. The state may argue that you had constructive possession of the weapon because you had control over the vehicle.

What Is Constructive Possession And How Does It Apply To Gun Cases?

Constructive possession means you had access to or control over an item, even if it wasn’t physically on you or you are not the owner of the item. In firearm cases, prosecutors can charge you if the gun was in a place you could reach or control, like the glove box, center console, or under a seat in your car.

Is It A Felony For A Felon To Be Near A Gun In Texas?

Being near a gun isn’t a crime by itself. But if the police or prosecutors can prove you had possession—either directly or constructively—you can be charged with Unlawful Possession of a Firearm by a Felon under Texas Penal Code § 46.04, which is a third-degree felony.

What Happens If I’m Arrested During A DWI Stop And A Gun Is Found?

You may face both DWI and felon in possession charges. A DWI arrest gives officers the right to search your car incident to arrest or under other legal grounds. If a gun is found, and you’re a felon, it can lead to additional charges with much higher penalties.

What If My Passenger Admits The Gun Is Theirs?

Police may still arrest you, especially if you’re the driver and a felon. Even if the passenger confesses, the state can still try to prove you had knowledge and control of the firearm. Their confession helps, but it doesn’t automatically protect you from charges.

Can A DWI Lawyer Help With A Gun Charge?

Yes. Many DWI defense attorneys, including our team at Mark Diaz & Associates, regularly handle cases involving both DWI and felony firearm charges. We can assess whether the stop and search were legal, and challenge whether the state can prove possession beyond a reasonable doubt.

Is There Any Way To Avoid Jail Time For A Felon In Possession Charge?

Every case is different. If we can weaken the state’s case by showing a lack of knowledge, improper search, or someone else claiming the weapon, we may be able to get the charges reduced or dismissed. In some cases, probation may be possible, but this depends on your criminal history and the facts of the case.

Does It Matter If I Was Recently Released From Prison Or Probation?

Yes. If it’s been fewer than five years since your sentence ended (including probation or parole), you cannot possess a firearm in any location under Texas law. After five years, you’re still restricted to having a firearm only inside your home. Violating these rules can lead to serious penalties.

How Can I Prove I Didn’t Know The Gun Was In The Car?

We look at the total circumstances. Where the gun was found, whether it was visible, who had access, and whether there were any statements made at the scene. Sometimes witnesses or evidence can show the gun wasn’t yours or that you had no idea it was there. All that being said, it is the state that is required to prove that you knew the gun was there, since it is the state’s burden of proof.

What Should I Do If I’m Charged With Felon In Possession?

Call an attorney immediately. Do not talk to police or prosecutors without legal counsel. Time matters, and the sooner we can begin working on your defense, the better your chances of protecting your rights and avoiding a conviction.

Call Mark Diaz & Associates Now If You’re Facing Gun Charges In Texas

Don’t take chances with your future. If you’ve been charged with felon in possession of a firearm, especially in connection with a traffic stop or DWI, get the legal help you need now. At Mark Diaz & Associates, we fight to protect your rights and keep your record clean.

Contact our Texas gun crime defense attorney at Mark Diaz & Associates today by calling 409-515-6170 to schedule your free consultation.