Defending Against Felon In Possession In Galveston

Defending Against Felon In Possession In Galveston

As criminal defense attorneys in Galveston, we know how aggressively prosecutors pursue charges involving illegal firearm possession, especially when a person has a felony on their record. Being accused of unlawfully possessing a firearm as a convicted felon is a serious offense under Texas law—and it can carry long prison terms and life-changing consequences if not handled properly.

We’ve defended many individuals facing this charge across Galveston and Houston. Often, people don’t even realize they are violating the law until they’re arrested. In some cases, the firearm isn’t even in the person’s hands, but law enforcement still moves forward with felony charges. If you or someone you care about is being charged with unlawful possession of a firearm as a felon, we want you to understand your rights and what defenses may be available.

Texas law is strict, but it also requires the state to prove specific elements beyond a reasonable doubt. There are ways to challenge the arrest, the search, and even the state’s interpretation of what qualifies as “possession.”

Understanding Felon In Possession Charges Under Texas Law

Under Texas Penal Code § 46.04, a person who has been convicted of a felony commits a crime if they possess a firearm:

• After conviction and before the fifth anniversary of their release from confinement, parole, supervision, or
• At any time if the possession occurs outside of their home.

Once those five years have passed, Texas law allows felons to possess a firearm—but only in their home. If a person is found with a gun in their vehicle, on their person, or anywhere other than their residence, they can still be charged.

This offense is typically classified as a third-degree felony, which carries a possible sentence of 2 to 10 years in prison and up to $10,000 in fines.

How Prosecutors Prove Possession

The state must prove that you were in possession of a firearm—and that you knowingly and intentionally had control over it. There are two types of possession:

• Actual possession – You had the firearm physically on you (in a pocket, waistband, bag, etc.).
• Constructive possession – The firearm was in a place where you had access or control (like your car, your house, or a shared location).

In constructive possession cases, prosecutors often rely on circumstantial evidence. For example, if you were riding in a vehicle and a firearm was found under your seat, that could lead to a charge. However, evidence like fingerprints, DNA, or witness testimony would still be needed to strengthen the case. Simply being near a gun alone isn’t enough to prove guilt.

Federal Consequences Of Felon In Possession

In addition to state charges under Texas law, federal authorities may bring charges under 18 U.S. Code § 922(g), which makes it unlawful for certain individuals—including those with a felony conviction—to possess a firearm or ammunition that has moved in interstate or foreign commerce. Federal firearm offenses are prosecuted by the U.S. Attorney’s Office and often carry more severe penalties than state charges. In Galveston and surrounding areas, “felon in possession” cases are frequently prosecuted at the federal level, particularly when they involve aggravating factors such as drug trafficking, violent crimes, or weapons trafficking.

Federal sentencing is governed by the United States Sentencing Guidelines, which provide advisory ranges based on factors like criminal history and offense conduct. However, mandatory minimum sentences may apply in certain cases—especially if the defendant has multiple prior felony convictions under the Armed Career Criminal Act (ACCA) or if the firearm was used in connection with a violent crime or drug trafficking offense.

Common Defenses To Felon In Possession Charges

Not every possession case is airtight. We often find weaknesses in the evidence or violations of constitutional rights that can lead to dismissals or reduced charges. Here are some defenses we regularly use:

• Illegal search and seizure – If the firearm was found during an unlawful traffic stop, home entry, or pat-down, we can file a motion to suppress the evidence under the Fourth Amendment.
• Lack of knowledge – If you didn’t know the firearm was present or had no control over it, that might defeat the state’s requirement to prove the knowledge element of possession.
• Possession Issue – If others had equal or better access to the firearm (e.g., in a shared vehicle or apartment), it may raise a reasonable doubt.
• Expired felony limitation – If more than five years have passed and the firearm was in your home, the charge may not be valid under Texas law.
• Mistaken identity or ownership – In some cases, we challenge the identification of the suspect or prove that the firearm belonged to someone else entirely and that the person arrested had no knowledge of it.

We analyze every case for possible rights violations, flaws in the investigation, and gaps in the prosecution’s evidence.

Consequences Of A Conviction

A conviction for felon in possession can have lasting effects. In addition to possible prison time and fines, it may lead to:

• Probation or extended supervision
• Loss of job opportunities
• Immigration consequences for non-citizens
• Federal charges, in addition to state charges
• Difficulty restoring gun rights in the future

Because the penalties are so steep, a strong defense is critical. You should never plead guilty without speaking to an attorney first.

Frequently Asked Questions About Felon In Possession Charges In Texas

Can I Be Arrested For Being Near A Gun, Even If It’s Not Mine?

Yes, under constructive possession rules, you can be charged if law enforcement believes you have control over the area where the gun was found. This includes shared vehicles, hotel rooms, or houses. However, being near a gun doesn’t automatically prove possession. The state must show more than proximity—they must prove you had “care custody, control, or management” of the gun to prove possession.

How Does Texas Law Differ From Federal Law on Felons in Possession?

Under Texas law (Tex. Penal Code § 46.04), a person convicted of a felony may legally possess a firearm—but only at their residence—once five years have passed since the completion of their sentence, parole, or community supervision. Even then, the possession must be solely within the person’s home.

In contrast, federal law under 18 U.S.C. § 922(g)(1) prohibits individuals convicted of a felony from possessing firearms at any time and in any location, regardless of how much time has passed. There is no exception for possession in the home or after a certain time period.

This legal conflict means that even if someone is in compliance with Texas law, they may still be prosecuted in federal court for unlawful possession of a firearm. Federal law preempts state law, so compliance with Texas law does not protect against federal charges.

Can I Get My Gun Rights Restored In Texas?

Restoring gun rights in Texas is possible, but it is a difficult and limited process. One of the few ways to fully restore firearm rights under both Texas and federal law is through a full pardon granted by the Governor of Texas. A full pardon restores all civil rights, including the right to possess firearms.

Under Texas law, a person convicted of a felony may legally possess a firearm in their home five years after completing their sentence, parole, or community supervision (Tex. Penal Code § 46.04). However, this does not restore firearm rights under federal law, and possession may still result in federal prosecution under 18 U.S.C. § 922(g).

While there is technically a federal process to restore firearm rights through an application to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) under 18 U.S.C. § 925(c), Congress has defunded this program since 1992, effectively making this path unavailable.

Until rights are formally restored through a pardon or other qualifying mechanism, firearm possession remains illegal under federal law, even if Texas law permits it in limited circumstances.

What If The Police Found A Gun During A Traffic Stop?

We often challenge the legality of the traffic stop or search. If the officer didn’t have reasonable suspicion to stop you or probable cause to search the vehicle, any evidence found may be excluded. We also look at how the firearm was discovered—whether your rights were violated during questioning or detention.

Can I Face Charges If The Gun Wasn’t Loaded?

Yes. Under Texas Penal Code § 46.04, it is illegal for a person convicted of a felony to possess a firearm—regardless of whether the gun is loaded, unloaded, or even inoperable. The law focuses on possession, not the gun’s condition or functionality.

That said, details like whether the gun was loaded or accessible might become relevant during pretrial negotiations, sentencing, or as part of a defense strategy. For example, if the firearm was inoperable or never within your immediate control, those facts could potentially support a defense or help mitigate the severity of the outcome, depending on the circumstances of your case.

What If The Gun Belonged To Someone Else In The Vehicle Or House?

This is a common and potentially effective defense. In Texas, to convict someone under Penal Code § 46.04, the prosecution must prove beyond a reasonable doubt that you were knowingly in possession of the firearm. This means they must show more than just proximity—they must establish that you had care, custody, control, or management over the weapon.

If the firearm belonged to someone else in the vehicle or residence, we may argue that you lacked possession because others had equal or greater access to it. Factors like fingerprint evidence, DNA, location of the weapon, ownership records, and witness testimony can be crucial in building this defense.

However, Texas courts recognize constructive possession, so just being near a firearm—especially if it’s within your reach or in a shared space—can still lead to charges. Our goal would be to raise reasonable doubt about whether you actually possessed or controlled the firearm.

Will I Go To Prison If Convicted?

Not necessarily, but it is a real possibility. Felon in possession is a third-degree felony in Texas, punishable by 2 to 10 years in prison. If the case goes federal, sentences can be even harsher. That’s why it’s so important to build a strong defense and consider all options, including motions to suppress or dismissal.

Can I Be Charged If I Live With Someone Who Owns A Gun Legally?

Yes, this can be a risk. If a firearm is easily accessible to you—such as stored in a shared bedroom or common area—you may be charged with constructive possession. If you are a convicted felon, we advise taking steps to avoid contact or access to any firearms in your home.

Does Probation Prevent Me From Being Charged With Felon In Possession?

No. In fact, being on probation can make the consequences worse. If you’re found with a firearm while on probation, it can lead to revocation and additional charges. Always speak to your probation officer and your attorney before having any contact with firearms or those who possess them.

What Should I Do If I’ve Been Charged?

Call an experienced criminal defense attorney immediately. Do not speak to law enforcement without legal counsel. The sooner we can review your case, the more opportunities we have to challenge the evidence, file motions, or negotiate a better outcome. Every case is different, and the details matter.

Call Mark Diaz & Associates For Aggressive Defense In Gun Crime Cases

At Mark Diaz & Associates, we’ve spent years defending clients charged with gun crimes in Galveston and Houston. Felon in possession cases are serious, but with the right legal strategy, there are ways to fight back. Whether it’s challenging the traffic stop, disputing constructive possession, or proving lack of intent, we’re ready to defend your rights and your future.

If you’ve been charged with unlawful possession of a firearm in Galveston or anywhere in Houston, contact our Texas gun crime defense attorney at Mark Diaz & Associates by calling 409-515-6170 to schedule your free consultation. We offer free consultations and represent clients throughout Galveston County and the greater Houston area. Let us help you take the first step toward protecting your freedom.