Facing Gun Possession Charges in Bexar County? Know Your Rights.
Being charged with felon in possession of a firearm in San Antonio is a serious matter that can result in years in prison under both Texas and federal law. But an arrest is not a conviction. Police and prosecutors still have to prove that you actually knew about and controlled the firearm — and there are often strong defenses available, from challenging an illegal search to breaking the State’s link between you and the weapon.
Attorney Genaro R. Cortez is a San Antonio criminal defense attorney who has defended clients against state and federal gun possession charges in Bexar County and throughout South Texas.
Call (210) 733-7575 for a free consultation about your gun charge.
Table of Contents
Texas Felon-in-Possession of a Firearm: Crimes and Penalties
The Texas felon-in-possession law makes it illegal for a person with a felony conviction to have a gun. This state law is similar to the federal statute at 18 U.S.C. § 922(g)(1). If police catch a convicted felon with a firearm in San Antonio, that person could face charges under both the Texas and federal gun laws. Both of these offenses carry up to ten years in prison.
However, the two laws have an important difference. The Texas gun law includes a five-year time limit. A felon cannot possess a firearm within five years after either finishing a prison sentence or completing probation — whichever date comes later. The federal law, on the other hand, has no time limit at all. This effectively bans felons from possessing a firearm for life.
Both of these laws raise critical defense questions that a San Antonio gun possession lawyer can help you answer. What does “possession” actually mean under the law? How do police connect a specific gun to a specific person? Understanding these issues can make or break your case.
Texas Penal Code § 46.04(a)–The Felon in Possession Statute
| Tex. Pen. Code § 46.04 | Texas Felon in Possession of a Firearm Law |
|---|---|
| (a) | A person convicted of a felony commits an offense if he possesses a firearm: |
| (a)(1) | After conviction and before the fifth anniversary of the person’s release from confinement or supervision (whichever is later); or |
| (a)(2) | After that five-year period, at any location other than the premises where the person lives. |
| (e) | An offense under Subsection (a) is a felony of the third degree. |
The five-year window is a hard rule. During that time, a convicted felon cannot possess any firearm — period. After the five-year period, Texas law technically allows the person to keep a gun at home. But this creates a dangerous conflict with federal law, which does not allow felons to possess firearms at all — ever.
A San Antonio criminal defense attorney experienced with gun charges can help you understand exactly where you stand under both sets of laws.
What does “possession” of a gun mean in Texas?
Texas Penal Code § 1.07(39) defines possession as “actual care, custody, control, or management.” This definition is the foundation of every felon-in-possession case prosecuted in Bexar County and across Texas.
To convict someone of possessing a gun, prosecutors must prove two things: (1) the person knew about the gun, and (2) the person had control over it. If the State cannot prove both of these elements, the charge should not stand.
This is where a skilled San Antonio gun defense lawyer can make a real difference. Challenging the State’s evidence on knowledge and control is often the strongest path to a dismissal or acquittal.
| Tex. Pen. Code | Definition of Possession |
|---|---|
| § 1.07(39) | “Possession” means actual care, custody, control, or management. |
How do police connect a gun to a felon in San Antonio?
This is the most important question in most gun cases handled by San Antonio criminal defense attorneys. Usually, there is no dispute about the felony conviction or whether the weapon is a firearm. The real fight centers on possession — can the State prove that the felon actually had the gun?
If police find the firearm on the person — in a waistband or coat pocket, for example — the connection is straightforward. But many San Antonio gun cases involve more complicated facts. What if police find the weapon during a traffic stop in a car with three or four passengers? What if the gun is in a house with multiple residents?
When the gun is found in a shared or common area, prosecutors need more than just the felon’s presence. They need additional evidence to link the person to the weapon. Texas courts call this the “affirmative links” doctrine.
The Affirmative Links Doctrine in Texas Gun Cases.
When several people are present where police find a gun, the State must present additional facts — called “affirmative links” — to prove that the accused person actually knew about and controlled the firearm. This doctrine protects innocent people from being convicted just because they happened to be nearby.
As the Texas Court of Criminal Appeals has explained, the affirmative links rule exists to prevent an innocent bystander from being convicted based solely on proximity to someone else’s contraband. A person may share a house, car, or other property without sharing possession of everything found inside.
Here are the key factors Texas courts consider when evaluating affirmative links in gun cases:
| # | Affirmative Link Factor |
|---|---|
| 1 | Was the person present when police conducted the search? |
| 2 | Was the firearm in plain view? |
| 3 | How close was the person to the gun when it was found? |
| 4 | Did the person have other weapons or ammunition on them? |
| 5 | Did the person make incriminating statements to police? |
| 6 | Did the person attempt to flee the scene? |
| 7 | Did the person make furtive gestures or suspicious movements? |
| 8 | Were other firearms or ammunition found nearby? |
| 9 | Did the person own or have a right to control the location where the gun was found? |
| 10 | Was the gun found in an enclosed space like a glove box, gym bag, or briefcase? |
| 11 | Did the person exhibit consciousness of guilt? |
A word of caution: it is not the number of links present that matters. It is the strength of those links. A single strong link — like a confession — can be enough to convict. On the other hand, an experienced San Antonio felon in possession attorney can use weak or missing links to build a powerful defense.
For a helpful discussion from the court on the affirmative links doctrine, see Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).
Fourth and Fifth Amendment Defenses in San Antonio Gun Cases
Gun cases — just like drug cases — frequently involve constitutional violations by law enforcement. A skilled Bexar County criminal defense attorney will always examine how police found the weapon.
Key questions include: Did the gun surface during a traffic stop? Was there a Terry stop and frisk? Did police have probable cause or consent to conduct a search? Did officers inform the person of their right to remain silent after the arrest?
If police violated a person’s Fourth Amendment rights against unreasonable searches, or their Fifth Amendment right against self-incrimination, a defense attorney can file a motion to suppress the evidence. If a judge grants the motion, the gun charge may be dismissed entirely.
Attorney Genaro Cortez knows how San Antonio police and federal agents build gun cases in Bexar County — and he knows where to look for constitutional violations that can get evidence thrown out.
Penalties for Felon in Possession of a Firearm in Texas
| Texas Felony Level | Prison Time | Maximum Fine |
|---|---|---|
| Third Degree Felony | 2 to 10 years in prison | Up to $10,000 |
A third-degree felony conviction can also result in a permanent criminal record, loss of future gun rights, and difficulty finding employment or housing. The stakes are high, which is why anyone facing this charge in San Antonio needs an aggressive defense attorney.
Texas vs. Federal Felon in Possession Laws: Key Differences
| Key Points | Texas Law (Pen. Code § 46.04) | Federal Law (18 USC § 922(g)(1)) |
|---|---|---|
| Prison Time | 2–10 years in TDC | 0–10 years in BOP |
| Maximum Fine | $10,000 | $250,000 |
| Sentencing Guidelines | Do not apply | Apply |
| Parole Eligible | Yes | No (federal parole abolished) |
| Time Limit | Five-year restriction | No time limit — lifetime ban |
Understanding these differences matters because a person can technically comply with Texas law but still violate federal law. Only an attorney experienced in both state and federal gun cases can give you the full picture.
Can a felon own a gun in Texas?
No — at least not while the conviction is on your record. Under Texas law, a felon cannot possess a firearm within five years of completing their sentence or supervision. After that period, state law allows possession only inside the person’s home. Under federal law, however, a felon can never legally possess a firearm.
If your conviction is overturned or you receive a pardon, you may be able to restore your gun rights. But do not attempt to purchase or possess a firearm without first consulting a San Antonio criminal defense attorney. The consequences of getting this wrong are severe.
What to do if San Antonio Police or an ATF Agent arrest you for a gun crime
- Ask for a lawyer and remain silent.
- Do not consent to a search of your person, property, or cellphone.
- Stay calm and respectful.
- Schedule a meeting with a San Antonio criminal defense attorney.
The safest thing to do if San Antonio police officers detain or arrest you for a gun crime is to stop talking. ATF, SAPD, and BCSO all get government training on how to get suspects to waive their Fifth Amendment Right against self-incrimination. This is why most suspects confess to crimes after an arrest.
Similarly, if you consent to a search, then SAPD and BCSO no longer need probable cause to search you. Stated differently, when you consent, you give SAPD and BCSO a free search of your person, property and effects. This makes it harder for your attorney to file a successful motion to suppress in your case.
Finally, SAPD and BCSO wear body cameras. Consequently, everything you say and do is recorded. If it is hurts your case, then the prosecutor will play it for the jury. By remaining silent, asking for a lawyer, and being respectful, you can limit the bad evidence against you at trial.
Why Choose Attorney Genaro Cortez for Your San Antonio Gun Case?
When you are charged with felon in possession of a firearm in San Antonio or anywhere in Bexar County, you need a criminal defense attorney who understands both the Texas Penal Code and federal firearms statutes. Attorney Genaro R. Cortez has defended clients against state and federal gun charges and knows how to challenge the government’s evidence at every stage.
Whether the issue is illegal search and seizure, lack of affirmative links, or a violation of your Miranda rights, Mr. Cortez will fight to protect your rights and your freedom.
Do not wait to get legal help. Call the Law Office of Genaro R. Cortez today at (210) 733-7575 for a free consultation about your gun possession case.
Can a felon own a gun in Texas after 5 years?
No. Federal law bans felons for life from owning a gun.
What is the penalty for felon in possession of a firearm in Texas state courts?
It’s a third-degree felony, carrying 2–10 years in prison and a fine of up to $10,000.
What happens if a felon is caught with a gun in Texas?
The person can face both state charges (third-degree felony) and federal charges under 18 U.S.C. § 922(g)(1), potentially resulting in up to 10 years in federal prison without parole eligibility.
What is the affirmative links doctrine in Texas gun possession crimes?
It’s the legal standard police must meet to connect a firearm to a specific person when multiple people are present. Simply being near a gun isn’t enough — the state must show knowledge and control.
Can the police search me for a gun without a warrant?
Yes if police have reasonable suspicion that you are carrying a weapon. Lawyers call this a Terry frisk.
What is the penalty for felon-in-possession in San Antonio Federal Court?
Between 0-10 years in prison and up to a $250,000.00 fine.