Ethics and the Law: Bubba Shot the Jukebox

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We were all down at Margie’s bar
Telling stories if we had one
Someone fired the old jukebox up
The song sure was a sad one
A teardrop rolled down Bubba’s nose
From the pain the song was inflicting
And all at once he jumped to his feet
Just like somebody kicked him

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 last night

Bubba ain’t never been accused of being mentality stable
So we did not draw an easy breath
Until he laid that colt on the table
He hung his head till the cops showed up
They dragged him right out of Margie’s
Told him “Don’t play dumb with us, son”
“Know damn well what the charge is.”

Well, the sheriff arrived with his bathrobe on
The confrontation was a tense one
Shook his head said, “Bubba Boy,”
“You was always a dense one.”
Reckless discharge of a gun
That’s what the officers are claiming
Bubba hollered, “Reckless! Hell!”
“I shot just where I was aiming.”

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 PROBATION 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 ad­vising 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.

TCDLA
TCDLA
Robert Pelton
Robert Pelton
Robert Pelton is the former President of the Harris County Criminal Lawyers Association (HCCLA), Associate Director for TCDLA, and Feature Articles Editor of the Voice, as well as serving as editor and assistant editor of Docket Call. Among his many honors, Robert was named by H Texas magazine as one of the top criminal lawyers in Harris County (2004–2010) and one of Houston’s Top Lawyers for the People in criminal law (2004–2010), and he is listed in the Martindale Hubbell Bar Register of Preeminent Lawyers. Robert has offices in Abilene and Houston.
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