It's close to X-mas and we have no court so of course we sit here and start debating and this comes up. Lunch is riding on it.

The def. of a firearm reads:
- any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use...

IF someone takes a handgun and makes it inoperable, ie - fills the barrel with lead or removes the firing pin, etc. - Intentionally makes it inoperable, is it still a firearm for purposes of Unlawful Possession of a firearm???
We are in agreement that if the now inoperable "toy" weapon is used in the commission of a crime, then it enhances it, but forpurposes of unlawful possession???

Is it still "readily convertible to that use?" IOW, can you undo whatever it is that was done to it that made it inoperable? If you fill it with lead, can you remove it or is it permanently melted into the barrel? If you remove the firing pin, can you replace it? I guess it depends on how it's modified to be inoperable and whether it can be changed back.

And I'm not saying that I would necessarily want to be the one to take that to a jury...

A firearm need not be in working order to meet the definition. It's enough that it was designed to be a firearm. See Walker v. State, 543 SW2d 634.

That's about where we get hung up.
Taking it further -
Felon goes into knick knack shop and there is a pistol that has the barrel full of lead being sold as a paper weight. Buys it for paper weight. Is he now a Felon in possession of a firarm?
Further -
Felon takes a pistol and melts it down to a ball of lead. (Bill decides to make his momma happy and not take his guns to town ever again). Technically the ball of lead was designed to fire. Technically, felon possessing?

(side note - this arose b/c of pictures of one of our juvi's who is on probation for a felony, showed up on a My Space account where he's holding a pistol. Issue came up on whether he could be filed on for Unlawful Possession. Ventured to the left when debate started up on being able to prove it was actually a firearm and not a toy or lead filled pistol, blah, blah, blah. After the adjudicate vs. convicted issue was settled)

Court of Appeals of Texas,
Houston (1st Dist.).
Niketti THOMAS, Appellant,
v.
STATE of Texas, Appellee.

No. 01-99-00486-CR.

Jan. 18, 2001.
Discretionary Review Refused May 9, 2001.

] Contrary to appellant's position, the language of section 46.01(3) of the Texas Penal Code does not require a firearm to be presently capable of firing; rather, a device �designed, made, or adapted� to perform in the manner described is a firearm. Even if the clip and firing pin are missing at the time of the offense, a pistol is still a firearm under Section 46.01(3). Walker v. State, 543 S.W.2d 634, 637 (Tex.Crim.App. 1976); see also Lewis v. State, 852 S.W.2d 667, 669 (Tex.App.-Houston [14th Dist.] 1993, no pet.). A handgun, by definition, is a firearm, even if it is not operable. See Aikens v. State 790 S.W.2d 66, 67-68 (Tex.App.-Houston [14th Dist.] 1990, no pet.).

Walker v. State
543 S.W.2d 634
Tex.Cr.App. 1976.
November 24, 1976 (Approx. 4 pages)

We find that the forty-five automatic, even though missing a firing pin and without a clip When found (following the robbery), was Manifestly designed and Made for the Purpose of inflicting death or Serious bodily injury and that this fact was evident to the senses and understanding of the victim. We conclude that the evidence was sufficient to prove that appellant used a �deadly weapon.'


Lewis v. State
852 S.W.2d 667
Tex.App.-Hous. [14 Dist.],1993.
April 01, 1993 (Approx. 5 page

We also note that case law construing the federal counterpart to � 46.01(3) does not require the weapon to be capable of firing. See 18 U.S.C. 921(a)(3)(A) (1976); United States v. Perez, 897 F.2d 751, 754 (5th Cir.1990), cert. denied, 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990); United States v. York, 830 F.2d 885, 891 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); United States v. Harris, 792 F.2d 866, 868 (9th Cir.1986). The wording of the federal statute is substantially the same as Tex.Penal Code Ann. � 46.01(3). Both statutes define firearms as any device designed to propel a projectile by the use of an explosion, or any device �readily� converted to that use. The plain language of the state and federal statutes does not require the weapon to be capable of firing. Similarly, nothing in Tex.Penal Code Ann. � 46.01(10) or � 46.06(a)(3) requires a short-barrel firearm to be capable of firing in order to sustain a conviction.

Furthermore, requiring the state to prove capability of firing substantially weakens � 46.06(a)(3). To impose this burden upon the state would enable criminals *670 to hold victims at gunpoint, with an inoperable weapon, and avoid prosecution for aggravated robbery. This would be true even if an operable weapon was altered after the offense. Taken to extremes, the state would have to prove that an operable weapon was loaded at the time of the offense. Merely discarding the ammunition after an offense could thwart a successful prosecution.

Aikens v. State
790 S.W.2d 66
Tex.App.-Hous. [14 Dist.],1990.
April 26, 1990 (Approx. 5 pages)

A deadly weapon is: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex.Penal Code Ann. � 1.07(a)(11) (Vernon 1974). Appellant argues that since the handgun discovered in the complainant's car was not in working order when police officers uncovered it, the State failed to prove that the weapon was capable of causing, or could be readily adapted to cause serious bodily injury or death. However, appellant misunderstands Texas law on firearms.

Citing Gomez v. State, 685 S.W.2d 333, 336 (Tex.Crim.App.1985), appellant concedes that a handgun, by definition, is a firearm and is therefore a deadly weapon. See Tex.Penal Code Ann. � 46.01(3) (Vernon 1989). Although the handgun was inoperable when found, in *68 Walker v. State, 543 S.W.2d 634, 637 (Tex.Crim.App.1976), the Court of Criminal Appeals concluded that a handgun, even though not functional, was manifestly designed and made for the purpose of inflicting death or serious bodily injury, and, as in the case before us, this fact was evident to the victim. Further, where, as here, the jury is the trier of fact, and the indictment specifically alleges �deadly weapon� or names a weapon that is a deadly weapon per se, and the jury's verdict finds the defendant guilty as charged in the indictment, the jury has made an affirmative finding as to the use of a deadly weapon. Boyett v. State, 692 S.W.2d 512, 517 (Tex.Crim.App.1985) (citations omitted). Under the circumstances of this case, the firearm discovered in complainant's car need not be serviceable in order to be classified as a deadly weapon. See Walker, 543 S.W.2d at 637.

In my opinion if what was once designed to be a firearm is permanently modified (not just made inoperable or unserviceable) such that it will not be capable of firing a projectile, then it is no longer a firearm. Say, e.g. the barrel was curved. It is one thing to have a firearm in disrepair or missing parts. It is another to change its very character. I hope you find something better to do for Christmas than create irresolvable conundra.

....isn't part of the reason we don't care if it is working or not is that a firearm, even if filled with lead, can be used in bad ways and can cause a whole lot of trouble? It can get other people whipping out firearms. It can be used in robberies. As long as the person at the wrong end of the gun thinks it is real, seems the damage has been done....

quote:

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Originally posted by JMH:
It's close to X-mas and we have no court so of course we sit here and start debating and this comes up. Lunch is riding on it.

The def. of a firearm reads:
- any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use...

IF someone takes a handgun and makes it inoperable, ie - fills the barrel with lead or removes the firing pin, etc. - Intentionally makes it inoperable, is it still a firearm for purposes of Unlawful Possession of a firearm???
We are in agreement that if the now inoperable "toy" weapon is used in the commission of a crime, then it enhances it, but forpurposes of unlawful possession???

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Once a firearm, always a firearm unless it's cut up according to BATFE regulations.