tcdla - Voice For The Defense Online

Bubba shot the juke box last night
Said it played a sad song it made him cry
Went to his truck and got a forty-five
Bubba shot the juke box stopped it with one shot
Bubba shot the jukebox last night
Well he could not tell right from wrong
Through the teardrops in his eye
“Bubba Shot the Jukebox” by Dennis Linde
Since this was Bubba’s first offense, he was placed on Pre-
Trial Diversion. To get Bubba’s gun back, look at the Code
of Criminal Procedure, Article 18.19(c), and file a motion to
return the firearm. See the sample motion on the page following.
Ethically, in Bubba’s case because of his mental condition,
you need to either let the State keep the gun, or do what many
lawyers do and, with the client’s prior agreement, file a motion
to get the gun returned to you as part of the fee. Always make
sure that a client can legally receive and possess any firearm
before taking action that results in it being returned to him.
The last thing you want to do, ethically or legally, is assist a client—making
you a party to the offense—in committing a crime
or violating a term of community supervision by receiving or
possessing a firearm. Even with a Concealed Handgun License,
Bubba could not have had the gun in the bar legally because the
bar got more than 51 percent of its income from alcohol sales.
Several months ago we got a call from an old client in West
Texas who had been arrested on a Motion to Adjudicate. He was
on deferred for a drug offense. It seems he and his wife had an
argument and the wife claimed he had fired a shot at her. The
police arrived and took him and 12 firearms to jail. He went to
a local lawyer and was told the best deal he could get him was 5
years. We were hired and immediately filed a Motion to Dismiss
and a motion to return the firearms. Both were granted. My client
did not go to prison and we got the firearms as part of my fee.
Felony deferred adjudication does not prevent possession of
firearms in the house UNLESS THE CONDITIONS OF PROBA­
TION PROHIBIT IT. Many times when a person is placed on
deferred or regular probation, the judge will order no firearms.
Possession of firearms is sometimes a misunderstood area of
the law. The Texas Penal Code has specific provisions related to
the possession of firearms. If your client buys a gun or wants to
get a Concealed Handgun License, look at Texas Government
Code Section 411.172.
Under Section 46.02 of the Texas Penal Code, a person
commits the offense of Unlawful Carrying of Weapon if he intentionally,
knowingly, or recklessly carries on or about his person a
handgun if he is not on his own premises or on premises under
his control, or inside or directly en route to a motor vehicle that
is owned by him or under his control. A person also commits
an offense of Unlawful Carrying of Weapon if he intentionally,
knowingly, or recklessly carries on his person a handgun in a
motor vehicle that is owned by him or under his control where
the handgun is in plain view, or where he is engaged in criminal
activity, other than a Class C misdemeanor that is a violation
of a law or ordinance regulating traffic, prohibited by law from
possessing a firearm, or is a member of a criminal street gang.
The burden is on the State to prove you are not traveling.
Under Section 46.04 of the Texas Penal Code, it is unlawful
for a person who has been convicted of a felony to possess
a firearm except on the premises where he lives. It also holds
that a person commits an offense of unlawful possession of a
firearm if he is convicted of an assault on a family member and
it is before the fifth anniversary of when he is released from
confinement or released from community supervision following
conviction, whichever is later.
Federal law is different, and under 18 U.S.C. Section 922(g),
if you are a convicted felon or punished under Texas Penal Code
Section 22.01, you may forever be prohibited from gun ownership.
To be safe and follow the ethical rule, use caution when
ad vising clients about buying, selling, or possessing a firearm or
ammunition. Consider the following when your client is considering
probation:
1. Misdemeanor supervision—not affected by firearms law
unless it is a crime of domestic violence
2. Deferred felony supervision—may possess firearm and ammunition
and can go hunting, but cannot buy more firearms
or ammunition, or carry across state lines
3. Regular or shock probation—may not possess, ship, transport,
or receive firearms.
Market
Your
Law Firm
Publicize your practice by
listing your photo and bio on
the TCDLA website in lawyer
locator. For information,
email tcasares@tcdla.com