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Lucy, Esq.
Lucy, Esq., Attorney
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Experience:  Lawyer
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Please explain texas penal code 46.04. Does this mean if you

Resolved Question:

Please explain texas penal code 46.04. Does this mean if you were convicted of a felon 5 years ago and served time in prison. It's been over five years and the Felon has a weapon (felon with weapon charge) Does this mean it can be dropped to a lessor charge in the county j ail.
Submitted: 4 years ago.
Category: Legal
Expert:  Lucy, Esq. replied 4 years ago.
Chat Conversation Started
Lucy, Esq. :

Hi, my name is XXXXX XXXXX I'd be happy to help you today.

Lucy, Esq. :

The statute means that, for five years after being released from prison or from parole, whichever is later, a person can have a gun in his residence. However, he can't have a gun anywhere during those five years, and he can't have a gun anywhere else.

Customer:

what if the gun is located in a car he is d

Customer:

riving

Lucy, Esq. :

He can't keep it in his car.

Customer:

what if the gun is located in the trunk of a car..but the car is not registered to the person felon

Lucy, Esq. :

He also can't carry it with him.

Lucy, Esq. :

Is the gun registered to the felon?

Lucy, Esq. :

If the car and the gun belong to someone else, he can state that he did not "possess" the gun, because he didn't know it was there.

Customer:

LAST QUESTION...what if the person the car is registered to does not know where or how the gun got in the car. Will the felon have to accept the charge because he was driving the vehicle?

Lucy, Esq. :

If it's not registered to him, the car is not registered to him, and he says he didn't know it was there, he has a good defense. It would be very hard for a prosecutor to prove the charges beyond a reasonable doubt.

Customer:

Lucy, will the prosecutor go after the owner of the vehicle?

Lucy, Esq. :

Is the owner of the vehicle a felon who has been out of jail or off parole or probation less than five years?

Customer:

a

Customer:

no, the owner of the vehicle is his mother, who has never been in trouble in her life and don't have no idea how the gun got in the car or who the gun belongs to

Lucy, Esq. :

Well, then she didn't violate 46.04. Let me look at the other statutes.

Lucy, Esq. :

Was it a machine gun, a zip gun, or a sawed-off shotgun?

Customer:

a pistol dont know what kind

Lucy, Esq. :

Ok. Then I dont' see a basis for charging her, unless there was also a silencer.

Customer:

but it did not belong to her and she didn't know it was there. she bought her another car and let her son use the car.

Lucy, Esq. :

Right. So, there are two things. 1. There isn't any law that says she can't have a gun in her trunk and 2. If there was, there isn't any evidence that she knew it was there.

Lucy, Esq. :

They could try a constructive possession theory on the grounds that she owns the car and has access to the trunk, but, again, it's not illegal for her to have a gun.

Customer:

the mother does not want to be implicated at all even thought the car is in her name. he was driving it. ok so even if it was not registered to her.. its ok. you have really helped.

Lucy, Esq. :

She shouldn't have anything to worry about. I'm glad I could help.

Customer:

Lucy i don't think the gun had any violations on it...but would this still apply for mom not to get implicated. because we dont know where the gun came from?

Customer:

and they are not telling us anything about the gun except it was in the trunk

Lucy, Esq. :

It's not illegal for a non-felon to have a gun in a trunk. So, if that's all it is, the mom is fine. It doesn't matter if she doesn't know where the gun came f

Lucy, Esq. :

from, unless the gun is reported stolen or is suspected of having been used in a crime. If that were the case, since she owns the car, the police are going to want to talk to her anyway.

Customer:

i see. but if that's the case, then she still don't know how it got there and definately wasn't involve in no crime or theft. She has never ever been in trouble and have a good background. So they cannot charge her with anything without proof. also he should be able to use the defense since the gun or the car was not his right? After this I promise I'll pay and let you go

Customer:

Thank you so much.......God Bless

Lucy, Esq. :

You're welcome. Have a good weekend.

Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 20384
Experience: Lawyer
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