CROSSOVER: Felon-in-Possession as ‘Criminal Activity’ Defeats Self-Defense Presumption—Second Amendment As-Applied Attack Rejected

Strong v. State, 02-25-00115-CR, March 26, 2026.

On appeal from Criminal District Court No. 3, Tarrant County, Texas

Synopsis

The Second Court of Appeals held that a murder defendant was not entitled to the Penal Code’s presumption-of-reasonableness instruction for self-defense/deadly force because he was engaged in “criminal activity” at the time—unlawful possession of a firearm by a felon under Penal Code § 46.04. The court rejected his attempt to evade that “criminal activity” bar through an as-applied Second Amendment challenge to § 46.04.

Relevance to Family Law

Family cases routinely involve protective orders, SAPCR temporary orders, and injunction fights where “self-defense,” firearms possession, and alleged family violence overlap with pending or prior criminal exposure. Strong is a charge-instruction case, but its practical lesson translates: when a party is a prohibited possessor (or arguably committing a firearms offense), Texas courts are more likely to treat that status as “criminal activity” that strips away favorable presumptions and framing devices that litigants try to import into civil hearings (e.g., “I was presumed reasonable,” “stand-your-ground,” “castle doctrine” rhetoric). In custody and divorce disputes—especially where possession/access to firearms is a live issue—this opinion strengthens the strategic argument that a prohibited possessor’s “justification narrative” should be viewed through the lens of ongoing illegality and risk, not presumptions.

Case Summary

Fact Summary

Strong shot the complainant fourteen times after a pool-party dispute escalated into a physical fight and a chaotic confrontation at an apartment. Strong advanced self-defense and defense-of-others theories, contending the complainant was forcing entry and that Strong feared for himself and others. The evidence was disputed as to whether the complainant had a gun and whether the complainant was attempting to break in; Strong admitted he did not see a gun at the moment he fired.

Critically for the appellate issue, Strong also admitted he was a felon and knew he was not supposed to possess or be around firearms. He nevertheless used a firearm to kill the complainant. At the charge conference, Strong requested the statutory presumption that his belief in the necessity of deadly force was reasonable—an instruction that is unavailable if the actor is “engaged in criminal activity” at the time. Strong’s path around that limitation was constitutional: he argued Penal Code § 46.04 (felon-in-possession) was unconstitutional as applied to him under the Second Amendment, so he was not engaged in “criminal activity” when he possessed the gun.

Issues Decided

• Whether the trial court erred by refusing to submit a presumption-of-reasonableness instruction under Penal Code §§ 9.31(a)(3) and 9.32(b) when the defendant was a felon in possession of a firearm at the time of the shooting.
• Whether an as-applied Second Amendment challenge to Penal Code § 46.04 could negate the “engaged in criminal activity” limitation and thereby entitle the defendant to the presumption-of-reasonableness instruction.

Rules Applied

• Tex. Penal Code § 9.32(b) (deadly force self-defense presumption) and related provisions in § 9.31 (self-defense) and the charge submission framework (including § 2.05 references in the opinion).
• Tex. Penal Code § 46.04 (unlawful possession of a firearm by a felon) as the asserted “criminal activity” that defeats the presumption instruction.
• Second Amendment as-applied doctrine as invoked by Strong (the court rejected the attempt to use a Second Amendment challenge to obtain the defensive presumption in the jury charge on these facts).

Application

The court treated the presumption instruction as a statutory benefit conditioned on the actor not being engaged in criminal activity at the time deadly force is used. The record contained Strong’s admissions: he was a felon; he knew felons cannot possess firearms; and he used a firearm during the incident. That was enough for the court to conclude the “criminal activity” condition was not met—because unlawful felon-in-possession is criminal activity contemporaneous with the use of deadly force.

Strong tried to convert the jury-charge question into a constitutional off-ramp: if § 46.04 is unconstitutional as applied to him, then his possession would not be criminal activity and the presumption should be submitted. The court rejected that maneuver. In substance, the panel refused to treat an as-applied Second Amendment attack on § 46.04 as a vehicle to compel a presumption-of-reasonableness instruction, and it affirmed the trial court’s decision to deny the requested instruction. The statutory presumption is not a “free-standing” self-defense entitlement; it is contingent, and the “criminal activity” bar remained operative here.

Holding

The Second Court of Appeals affirmed the judgment and held the trial court did not err by refusing the presumption-of-reasonableness instruction. Strong was engaged in criminal activity—unlawful possession of a firearm by a felon—when he used deadly force, which statutorily defeats the presumption.

The court further held Strong’s as-applied Second Amendment challenge to § 46.04 did not entitle him to the statutory presumption in the jury charge. The attempted constitutional reframing did not remove the “criminal activity” impediment on this record.

Practical Application

For Texas family-law litigators, Strong is a clean appellate citation for a practical proposition you often need in temporary orders, protective orders, and custody trials: a prohibited possessor’s firearm-related conduct can be framed as ongoing “criminal activity,” which undermines attempts to cloak violent incidents in presumptions of reasonableness or “stand-your-ground” messaging.

Use cases include:

• Protective orders / family violence findings: When the respondent is a felon (or otherwise prohibited) and the incident involved a gun, the “he was just defending himself” narrative is strategically weaker because his possession itself is unlawful, and courts are less receptive to presumptive reasonableness framing.
• SAPCR conservatorship and possession/access: If a parent is a prohibited possessor and firearms are present in the home/vehicle, Strong supports highlighting the illegality as contemporaneous risk behavior—not merely “past criminal history.”
• Temporary orders and injunctions involving firearms: When negotiating firearm turn-over, no-contact provisions, or geographic restrictions, Strong supports a risk-based narrative: the party is not situated to claim the benefit of presumptive reasonableness while committing firearm-possession crimes.
• Cross-examination strategy: Strong underscores the evidentiary value of admissions (“I’m not supposed to have guns”) to collapse credibility on self-defense framing and to argue dangerous decision-making under TFC § 153.002 best-interest factors and family-violence considerations.

Checklists

Firearms + Family Violence: Building the “Criminal Activity” Record

• Plead and prove the respondent’s prohibited-possessor status (felony judgments, deferred adjudications, probation terms, release dates).
• Obtain admissions (requests for admission, deposition, or live cross) that the party knew they could not possess/own/be around firearms.
• Develop specifics on possession/access (location of gun, who bought it, who stores it, who has safe/combination, photographs, texts, social media).
• Tie possession temporally to the incident (same day, same location, same confrontation) to emphasize contemporaneous illegality and risk.

Temporary Orders/SAPCR: Relief to Request When Firearms Illegality Is in Play

• Firearm surrender/turnover order with compliance deadline and proof-of-compliance mechanism.
• Injunction against possessing firearms and ammunition (track both actual and constructive possession).
• Exclusive use of residence/vehicle orders where firearms were stored or displayed.
• Supervised visitation or exchanges at safe locations if weapons and threats are part of the fact pattern.
• Orders prohibiting third-party “storage” schemes that still give the prohibited possessor access.

Defensive Posture (If Your Client Is the Prohibited Possessor)

• Assume opposing counsel will argue you were engaged in unlawful conduct at the moment of the incident; plan to mitigate rather than deny the obvious.
• Address firearm access immediately (document surrender, remove access, comply with bond/probation conditions).
• Reframe away from “presumptions” and toward necessity/avoidance facts that do not depend on statutory presumptions.
• Prepare for credibility impeachment using prior convictions and “knowledge of prohibition” admissions; clean up testimony and timelines early.

Citation

Strong v. State, No. 02-25-00115-CR (Tex. App.—Fort Worth Mar. 26, 2026) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

In divorce and custody litigation, Strong can be weaponized to counter a gun-involved family-violence incident being recast as “reasonable defensive conduct.” If the responding party is a felon (or otherwise prohibited) and a firearm is present, you can argue the court should view the episode through the lens of ongoing illegal conduct and elevated risk—supporting protective orders, firearm surrender provisions, supervised access, and best-interest findings that restrict conservatorship rights. Conversely, if you represent the prohibited possessor, Strong is a warning that “I acted reasonably” narratives can be undercut by the simple, provable point that the client’s possession itself is criminal activity, making credibility and compliance remediation (immediate surrender and documentation) essential before the first temporary-orders hearing.

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