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The Presence of a Firearm Is Not Proof of a Crime.
Criminal charges involving weapons and firearms carry serious consequences in Texas. Depending on the allegation, a conviction may affect a person’s liberty, criminal record, firearm rights, employment, and future.
These cases often arise from traffic stops, vehicle searches, domestic disputes, and other investigations in which law enforcement discovers a firearm. Finding a weapon is only the beginning. The State must still prove the accused violated a specific restriction governing possession, carrying, location, transfer, or use.
At Denuna & Westbrook, PLLC, we represent individuals facing weapons and firearms charges throughout Houston and the Gulf Coast region. We examine how the weapon was discovered, whether the search was lawful, and whether the evidence proves every element of the charged offense.
Texas law covers a wide range of weapons-related offenses, from misdemeanor carrying violations to serious felony charges. Each offense has distinct elements, restrictions, and defenses that must be evaluated under the specific facts of the case.
Texas law permits eligible individuals to carry a handgun either with a License to Carry or, in certain circumstances, without a license. The requirements and restrictions are not identical, and a person may still face criminal charges based on age, eligibility, location, manner of carry, or other circumstances.
A person with a valid Texas License to Carry (LTC) may carry a handgun openly in a holster or concealed, subject to statutory restrictions and properly communicated prohibitions. The benefits of an LTC include reciprocity in other states and certain protections or exceptions available under Texas and federal law.
Texas law permits many individuals who are at least 21 years old to carry a handgun openly in a holster or concealed without an LTC. The person must be legally eligible to possess the firearm and must comply with restrictions involving criminal activity, protective orders, prior convictions, prohibited locations, and notice from private property owners.
Texas law generally limits carrying without a license to individuals who are at least 21 years old. However, the Texas Department of Public Safety currently allows otherwise eligible applicants between 18 and 20 to obtain a License to Carry. For individuals in this age range, whether carrying was lawful may depend on license status, eligibility, location, and the law in effect at the time of the alleged offense.
A carrying charge cannot be evaluated from the presence of a handgun alone. The defense should examine the accused’s age and eligibility, license status, manner of carry, location, notice, and any other circumstance the State relies on to claim the weapon was carried unlawfully.
Texas Penal Code Section 46.02 defines several circumstances that may support a charge of Unlawful Carrying of a Weapon (UCW). Depending on the allegation, the statute may apply when a person carries a handgun while engaged in certain criminal activity, is prohibited from possessing a firearm, carries in a restricted manner, or possesses a handgun in a motor vehicle or watercraft under circumstances prohibited by law. The offense classification depends on the particular subsection and facts alleged.
A UCW charge may accompany an arrest for Driving While Intoxicated (DWI) or Boating While Intoxicated (BWI) when officers find a handgun and allege the accused was carrying it while engaged in criminal activity beyond a Class C traffic violation. The State must prove more than the arrest itself. It must establish the required weapons-related conduct and the criminal activity on which the UCW allegation depends.
These companion charges should be analyzed separately. The defense must examine where the handgun was located, whether the accused possessed or carried it, whether the search was lawful, and whether the evidence proves the alleged criminal activity. The ownership, lawful acquisition, and value of the firearm may also matter when evaluating any proposed resolution involving surrender or forfeiture.
A dismissal or acquittal in the related DWI or BWI case may substantially affect the UCW prosecution, but it does not automatically resolve the weapons charge. The remaining evidence and the specific subsection alleged determine whether the State can continue to prosecute the case.
Texas Penal Code Section 46.03 restricts firearms and other weapons in specified locations. Depending on the circumstances, those locations may include schools and school grounds, polling places during voting, courts and court offices, racetracks, secured areas of airports, correctional facilities, certain establishments that derive 51% or more of their income from alcohol sales, and locations connected with an execution.
The statute also addresses weapons at professional or school sporting events and, when the required notice is provided, certain hospitals, nursing facilities, amusement parks, and places of religious worship. Private property owners may separately prohibit concealed or openly carried handguns by providing effective notice under Texas law.
Whether a location falls within the statute, whether legally sufficient notice was given, and whether an exception or defense applies are fact-specific questions. The punishment may range from a Class A misdemeanor to a Third-Degree Felony depending on the location, weapon, and subsection charged.
Under Texas Penal Code Section 46.04, a person convicted of a felony may not possess a firearm before the fifth anniversary of the later of release from confinement or release from supervision. After that period, Texas law limits possession to the premises where the person lives. A violation is ordinarily a Third-Degree Felony, carrying two to ten years in prison and a fine of up to $10,000. Federal law may impose a broader continuing prohibition, so compliance with the Texas provision does not necessarily make possession lawful under federal law. The State must also prove possession, not merely that the accused was near a firearm.
Texas Penal Code Section 46.05 regulates certain weapons, including explosive weapons, machine guns, short-barrel firearms, firearm silencers, armor-piercing ammunition, chemical-dispensing devices, tire deflation devices, and zip guns. Whether possession, manufacture, repair, transportation, or sale is unlawful depends on the item’s statutory classification, the accused’s conduct, and any applicable federal registration or authorization. The offense level varies by the weapon and circumstances. The defense should determine whether the item actually meets the statutory definition and whether an exception, defense, or authorization applies.
Texas Penal Code Section 46.06 prohibits certain firearm and weapons transactions. Depending on the subsection, the law may apply to transferring a handgun to a child, providing a firearm or other weapon to an intoxicated person, transferring a firearm to someone the transferor knows intends to use it unlawfully, or transferring a firearm to certain people subject to protective orders or prohibited from possessing firearms.
The statute also addresses a prohibited recipient’s acquisition of a firearm and false statements made in connection with certain transfers. Exceptions may apply, including written parental or guardian permission for the transfer of a handgun to a child. The required mental state and offense classification depend on the particular conduct alleged.
The defense should examine what the accused knew about the recipient, what representations were made, the purpose of the transfer, and whether the transaction falls within the subsection charged. Knowledge cannot be assumed merely because the recipient was later determined to be prohibited.
Texas Penal Code Section 22.05 creates two principal forms of Deadly Conduct.
Recklessly engaging in conduct that places another person in imminent danger of serious bodily injury is a Class A misdemeanor. Knowingly discharging a firearm at or in the direction of one or more individuals, or at a habitation, building, or vehicle while reckless about whether it is occupied, is a Third-Degree Felony.
These cases often turn on what occurred, where the firearm was pointed or discharged, whether anyone was placed in danger, and whether the State can prove the required mental state.
Prior convictions may substantially increase the potential punishment. Under Texas repeat-offender laws, a qualifying prior felony may enhance the punishment range for a new felony weapons offense. Two qualifying felony convictions, committed and becoming final in the sequence required by law, may expose the accused to a habitual-offender range of 25 to 99 years or life. The true exposure depends on the current charge and the type, finality, and sequence of the prior convictions.
Finding a firearm is not enough to prove possession.
The presence of a firearm near a person is not proof of possession. The State must prove actual care, custody, control, or management over the weapon.
Texas law requires the State to prove that the accused exercised actual care, custody, control, or management over the weapon. Firearms are often discovered in shared vehicles, homes, hotel rooms, and other places accessible to more than one person. In those situations, the State must present evidence affirmatively linking the accused to the weapon.
As in drug-possession cases, proximity alone is not enough. Ownership, access, location, statements, fingerprints, DNA, and other evidence connecting the accused to the firearm must be examined carefully.
Many weapons charges begin with a traffic stop, detention, or search. Regardless of what officers ultimately find, law enforcement must comply with the constitutional protections governing searches and seizures.
A warrantless search must fall within a recognized exception to the warrant requirement, such as consent, plain view, a search incident to a lawful arrest, or exigent circumstances. A search conducted under a warrant must be supported by probable cause, based on information accurately presented to the magistrate, and executed within its lawful scope. The available challenge depends on how the search occurred.
A weapon discovered during an unlawful traffic stop, a search without valid consent, an unsupported warrant, or a search that exceeded its lawful scope may be subject to suppression. When the firearm is central to the prosecution, a successful suppression challenge can substantially affect the State’s ability to proceed.
Because possessing or carrying a handgun may be lawful in Texas, observing a firearm does not automatically establish reasonable suspicion or probable cause. Whether an officer had a lawful basis to detain, search, or arrest someone depends on the totality of the circumstances and any additional facts suggesting that a particular law was being violated.
A weapons conviction can carry consequences beyond jail, probation, and fines. Depending on the offense, it may affect firearm rights, employment, professional licensing, housing, immigration status, and future background checks. A felony conviction may also suspend voting rights until the sentence is fully discharged.
State and federal firearm restrictions are not identical. A felony or qualifying family-violence conviction may result in substantial restrictions, and federal law may impose a broader or longer prohibition than Texas law. The effect of any proposed plea must therefore be evaluated under both systems before a resolution is accepted.
A qualifying family violence conviction may restrict firearm possession under Texas law and trigger a separate federal prohibition. The result depends on the conviction and terms of the final judgment, its legal elements, the relationship between the parties, and other statutory requirements.
Protective orders can also restrict the possession or carrying of firearms even without a final criminal conviction. Because the consequences are highly fact-specific, no plea involving family violence should be accepted without determining how it may affect firearm rights under both Texas and federal law.
The police report rarely tells the complete story in a weapons case. The defense may depend on possession, location restrictions, legally sufficient notice, the weapon’s classification, and proof of the knowledge or intent required by law.
When a client is charged with a weapons or firearm offense, Chris Denuna and Nick Westbrook examine their connection to the weapon, where and how it was discovered, and the particular restriction the State claims made the possession or conduct unlawful. If a weapon was discovered during a traffic stop, vehicle search, or search of a residence, the legality of the police conduct must also be carefully reviewed.
Can I be charged with a firearm offense if the gun wasn’t mine?
Yes, but the State must prove more than proximity. Prosecutors must establish that the accused exercised actual care, custody, control, or management over the weapon. Being near a firearm, without additional evidence connecting the person to it, is not enough.
Can a misdemeanor conviction affect my right to own a firearm?
Yes. Certain misdemeanor family-violence convictions may restrict firearm possession under Texas law and may also trigger a federal prohibition. The effect depends on the offense, its elements, the relationship between the parties, and other statutory requirements.
What if the firearm was found during an unlawful search?
Evidence obtained through an unlawful search may be subject to suppression. If the firearm is central to the prosecution, a successful suppression challenge may substantially affect the State’s ability to proceed.
Is a firearm or weapon charge always a felony?
No. Weapons and firearms offenses range from misdemeanors to serious felonies. The classification depends on the particular conduct, the type of weapon, the location, and the accused’s criminal history.
What if I have a prior felony conviction and get charged with a firearm or weapons offense?
A prior felony affects firearm eligibility and may increase the punishment range for a new weapons offense. Texas law prohibits possession before the fifth anniversary of the later of release from confinement or release from supervision and then limits possession to the premises where the person lives. Federal law may impose a broader continuing prohibition.
A weapons charge can arise even when the firearm was legally purchased, and the accused believed the conduct was lawful. Early legal representation is important to protect firearm rights, preserve favorable evidence, and address the allegation before important decisions are made
Denuna & Westbrook, PLLC represents individuals facing weapons and firearms charges throughout Houston and the Gulf Coast region, including Harris, Fort Bend, Montgomery, Galveston, Brazoria, and Waller Counties.
Call 713-966-0253, email info@texasdwlaw.com, or reach out online to schedule a confidential consultation.
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