By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522

The State Jail Felony of Possession of a Weapon at an Airport or Other Prohibited Place is inherently more difficult to prove than most offenses. Tex. Penal Code § 46.03 defines the offense as one in which a person “intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05 (a): [in a school or school bus], [polling place], [government building], [racetrack], [secured area of the airport], or a [place designated for death sentence].”

To better understand this offense it is helpful to understand the various types of mental states associated with a crime. A fundamental concept of criminal law is that it is not enough that a person’s actions constitute a crime, the person’s thought process must also have been the one prohibited by the particular crime. Texas Penal Code § 6.02, titled “Culpable Mental States,” describes mental states by degree—highest to lowest, as follows: (1) intentional; (2) knowing; (3) reckless; (4) criminal negligence.” To paraphrase the definitions for each: intentional and knowing generally means that you did something on purpose; recklessness means you disregarded a known substantial risk that something would occur; and negligence means you should have been aware of a substantial risk that something would occur. Finally, evidence of a person’s mental state can be circumstantial or direct.

For all intents and purposes, Possession of a Weapon at a Prohibited Place is a “possession offense.” From a legal standpoint it is not that dissimilar to Possession of Marijuana or Possession of Alcohol by a Minor where the prosecution must demonstrate beyond a reasonable doubt that a person knowingly or intentionally exercised care custody control or management over a [INSERT PROHIBITED THING]. When a case lacks direct evidence such as a confession or actual physical control, the State can rely upon circumstantial evidence such as the [PROHIBITED THING] being in plain sight or plain smell of the defendant.

The offense of Possession of a Weapon at an Airport or Other Prohibited Place is different, primarily for the following reasons:

1. Whereas drug possession focuses on the mere possession of a particular thing, Possession of a Weapon at an Airport or Other Prohibited Place focuses on the bringing of a particular thing to a particular location.
2. The “prohibited thing” is only prohibited by virtue of it being brought by the defendant to a particular location—most weapons listed under Section 46.05 are perfectly legal to possess in 99% of locations within the State of Texas.
3. Negligent conduct is not only excusable in a Prohibited Weapon at Airport/Prohibited Place case, it is entirely plausible.

To distill all of this, “it’s my [PROHIBITED THING], but I didn’t know I had it on my,” is not a good defense in a Marijuana case but usually a great defense in a Possession of Prohibited Weapon at Airport/Prohibited Place case. It is one of the rare types of crimes where “it was an accident” is actually a good excuse.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.