ILLEGAL POSSESSION OF A FIREARM

BY A CONVICTED FELON

Houston Criminal Defense Attorney John Floyd Discusses the Current

State of the Law Regarding Illegal Possession of a Firearm by a Felon

Terry Blanet Hukill, a convicted felon, was arrested in October 2006 by the
Dallas Police Department for illegal possession of 21 firearms, including a
sawed-off shotgun. The arrest culminated an investigation by the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) under a Project Safe
Neighborhoods program, a nationwide federal effort targeting gun crimes.
On December 14, 2007 U.S. District Judge Jane J. Boyle sentenced Hukill,
who pleaded guilty in September to possessing a prohibited firearm (sawed-
off shotgun) and possession of a firearm by a convicted felon, to fifteen
years in prison.

In August 2006 the Tohono O’Odham Police Department responded to a call

that shots had been fired on the Tohono O’Odham Indian Nation in Arizona.
During a search of the residence of Daniel Martinez, the police found three
firearms – a .38 Smith and Wesson revolver, a 370 caliber Winchester rifle
with a scope, and a .22 caliber Mossberg Model 70 Pinkster rifle with an
altered barrel and stock. The search also produced an assortment of other
weaponry - nunchakus, brass knuckles, and a stun gun - and illegal drugs.
Martinez admitted that all the weapons were his. Having previously been
convicted of assault with intent to commit murder and assault of a person
under age 16 in 1999, Martinez was charged with illegal possession of
firearms by a convicted felon. He was also prosecuted under the Project Safe
Neighborhoods program and in June 2007 he was sentenced to a term of 44
months in a federal prison.

In February 2006 Pennsylvania State Troopers executed a search warrant of

a motel room that had been rented by Deion Wilson. The officers found a
handgun in a coat located in the room. Wilson said that coat did not belong
to him and that he had never worn it. DNA analysis, however, established
that Wilson had worn the coat. As a three-time convicted felon, Wilson was
charged in a federal indictment with illegal possession of a firearm by a
convicted felon. On December 8, 2006 U.S. District Judge Terrence F.
McVerry sentenced Wilson to 27 years in prison and five years of
supervised release.
These random cases from across the nation reflect how serious federal/state
law enforcement and prosecutors consider illegal possession of firearms by
convicted felons. Both federal and Texas gun laws are strict.
FEDERAL GUN STATUTE

18 U.S.C. § 922(g) provides “it shall be unlawful for any person:”

1. who had been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year;
2. who is a fugitive from justice;
3. who is an unlawful user of or addicted to any controlled substance (as
defined in section 102 of the Controlled Substances Act [21 U.S.C. §
802]);
4. who has been adjudicated as a mental defective or who has been
committed to a mental institution;
5. who, being an alien (a) is illegally or unlawfully in the United States,
or (b) except as provided in subsection (y)(2), has been admitted to
the United States under a nonimmigrant visa (as that term is defined in
section 101(a)(26) of the Immigration and Nationality Act [8 U.S.C. §
1101(a)(26)]));
6. who has been discharged from the Armed Forces under dishonorable
conditions;
7. who, having a citizen of the United States, has renounced his
citizenship;
8. who is subject to a court order that (a) was issued after a hearing of
which such person received actual notice, and at which such person
had an opportunity to participate, (b) restrains such person from
harassing, stalking, or threatening an intimate partner of such person
or child of such intimate partner or person, or engaging in other
conduct that would place intimate partner in reasonable fear of bodily
injury to the partner or child, and (c)(i) includes a finding that such
person represents a credible threat to the physical safety of such
intimate partner or child, or (ii) by its terms explicitly prohibits the
use, attempted use, or threatened use of physical force against such
intimate partner or child that would reasonably be expected to cause
bodily injury; and
9. who has been convicted in any court of a misdemeanor crime of
domestic violence.
18 U.S.C. § 924(a)(4) provides that “except as otherwise provided in this
subsection, section (b), (c), or (f) of this section, or in section 929:”

• whoever violates section 922(g) shall be fined under this title,

imprisoned for not more than 5 years, or both. Notwithstanding any
other provision of law, the term of imprisonment imposed under this
paragraph shall not run concurrently with other term of
imprisonment imposed under any other provision of law. Except for
the authorization of a term of imprisonment of not more than 5 years
made in this paragraph, for the purpose of any other law a violation
of section 922(g) shall be deemed to be a misdemeanor.

§ 924(e)(1), known as the Armed Career Criminal Act (“ACCA”), provides

that a person convicted of possession of a firearm by a convicted felon in
violation of § 922(g) shall receive a mandatory sentence of 15 years
imprisonment if that person has three prior convictions “for a violent felony
or a serious drug offense.”

§ 924(e)(2)(A) defines a “serious drug offense” as:

• an offense under the Controlled Substances Act [21 U.S.C. § 821],

the Controlled Substances Import and Export Act [21 U.S.C. § 951],
or the Maritime Drug Law Enforcement Act [46 U.S.C. App. §
1901] for which a maximum term of imprisonment of ten years or
more is prescribed by law; or
• an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances
Act [21 U.S.C. § 802], for which a maximum term of imprisonment
of ten years or more is prescribed by law.

§ 924(e)(2)(B) defines a “violent felony” as “any crime punishable by

imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or destructive
device that would be punishable by imprisonment for such term if
committed by an adult, that:”
 • has as an element the use, attempted use, or threatened use of physical
force against the person or another; or
• is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.

See also: United States Sentencing Guidelines, § 4B1.2(a)(2)[“crime of

violence” defined as “any offense … that … involves conduct that presents a
serious potential risk of physical injury to another”].

The Supreme Court has gradually expanded what constitutes a “violent

felony” under the ACCA. See: Taylor v. United States, 495 U.S. 575 (1990);
Shepard v. United States, 544 U.S. 13 (2005). The Supreme Court in Taylor
and Shepard examined whether a state law burglary conviction that defined
the offense beyond the “generic offense of burglary,” one of the offenses
enumerated in § 924(e), would allow the government to seek enhancement
on the ground that the defendant committed a generic burglary. See: Taylor,
supra, 495 U.S. at 599-600. The court concluded that “a person has been
convicted of burglary for purposes of a § 924(e) enhancement if he is
convicted of any crime, regardless of its exact definition or label, having the
basic elements of unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.” Id. at 599.

Because the “ACCA generally prohibits the [district] court from delving into
particular facts disclosed by the record of conviction,” Shepard, 544 U.S. at
17, both Taylor (jury verdicts) and Shepard (guilty pleas) adopted what the
Supreme Court called a “formal categorical approach,” Taylor, 495 U.S. at
600, “leaving the [district] court normally to ‘look only to the fact of
conviction and the statutory definition of the prior offense’.” Shepard, 544
U.S. at 17 (quoting Taylor, 495 U.S. at 602).

More recently the Supreme Court held that a state attempted burglary
conviction could be considered a “violent felony” under the ACCA. See:
James v. United States, 550 U.S. ___, 127 S. Ct. 1586 (2007). The Eighth
Circuit, in an en banc decision, followed the James “categorical approach”
to find that a state DWI conviction also constitutes a “violent felony” under
ACCA, even though a conviction under the state statute does not always
involve the actual driving of a vehicle while intoxicated. See: United States
v. McCall, 507 F.3d 670, 674 (8th Cir. 2007)(en banc)[“a charging paper
alleging the felony offense of driving while intoxicated should be construed
as referring to the dominant offense of driving while intoxicated”]. The
McCall court elaborated further that because “a guilty plea to [this charge]
without more, raises no inference that the offense was not a violent felony,”
and the record did not offer any indication that the defendant was not driving
a vehicle at the time he committed the DWI, the district court was correct in
its conclusion that McCall’s guilty plea to that offense constituted a violent
felony. Id., 507 F.3d at 675.

It should be pointed out at this juncture that both Taylor and Shepard
recognized “an exception to this ‘categorical approach’ . . . for ‘a narrow
range of cases’” where state law defines an offense more broadly than the
generic enumerated offense. See: Shepard, 544 U.S. at 17 (quoting Taylor,
495 U.S. at 602). When a state prior conviction results from a jury verdict,
the district court may look to “the indictment or information and jury
instructions” to decide if the jury was “actually required to find all the
elements of [the] generic [offense].” Taylor, 495 U.S. at 602. In cases
involving guilty pleas, the district court “is limited to the terms of the
charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this
information” – all of which must show that the defendant “necessarily
admitted elements of the generic offense.” Shepard, 544 U.S. at 26. The
Eighth Circuit referred to this Taylor and Shepard approach as a “modified
categorical approach.” See: United States v. McCall (McCall I), 439 F.3d
967, 974 (8th Cir. 2006) (en banc).

The Supreme Court in James acknowledged that under this categorical

approach “[o]ne could … imagine a situation in which attempted burglary
might not pose a realistic risk of confrontation or injury to anyone” but
found the offense was a violent felony under the ACCA because the “ACCA
does not require metaphysical certainty. Rather, § 924(e)(2)(B)(ii)’s residual
provision speaks in terms of a ‘potential risk.’ . . .We do not view [Taylor’s
categorical] approach as requiring that every conceivable factual offense
covered by a statute must necessarily present a serious potential risk of
injury before the offense can be deemed a violent felony. . . . One can
always hypothesize unusual cases in which even a prototypically violent
crime might not present a genuine risk of injury . . . . As long as an offense
is of a type that, by its nature, presents a serious potential risk of injury to
another, it satisfies the requirements of § 924(e)(2)(B)(ii)’s residual
provision.” See: James, supra, 127 S. Ct. at 1597 (internal citation omitted).
This approach extends to a district court virtual unfettered discretion in
determining what constitutes a “violent felony” under the ACCA. This is
significant because it is rare for a firearms offense not to be accompanied by
other illegal conduct. For example, the U.S. Justice Department states that
the possession of a firearm is virtual prerequisite to the sale of drugs or the
commission of other violent acts. See: Bureau of Justice Statistics, U.S.
Dep’t of Justice, Federal Firearms Offenders, 1992-98 (2000). This has
created a sentencing bias in the federal system reflected by conclusions
drawn by federal circuits that defendants who are charged with unlawful
possession of a firearm are generally guilty of separate state or federal
crimes, although they may not always be charged with them. See: United
States v. Loney, 219 F.3d 281, 285-86 (3d Cir. 2000). See also: United
States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997)[“a firearm is a ‘tool of
the trade’ for drug dealers”].

Whether influenced by crime bias or realities, the U.S. Sentencing

Guidelines also provide for an increase in the base sentencing range when a
“firearm” is possessed in connection with “another felony offense.” See:
Loney, supra, 219 F.3d at 287-88. See also: United States v. McDonald, 165
F.3d 1032, 1037 (6th Cir. 1999)[Guidelines reflect the “concern about the
increased risk of violence when firearms are used or possessed during the
commission of another felony’]. USSG § 2K2.1(b)(6) provides, in relevant
part, that “if the defendant used or possessed any firearm or ammunition in
connection with another felony offense … [his sentence will] increase by 4
levels.”

Some federal appeal courts, however, have held that “another felony
offense” stated in § 2K2.1 requires a “distinction in time or conduct”
between the predicate offense and the possession of a firearm. See: United
States v. Fenton, 309 F.3d 825, 827-28 (3d Cir. 2002). In Fenton the
predicate offense was burglary of a sporting goods store. Id., at 826-27. The
defendant stole several firearms during that burglary. Id. The Third Circuit
reversed a district court finding that the burglary constituted “another felony
offense” and that the stolen firearms had been possessed “in connection
with” the burglary. Id. The Fenton court reasoned that the possession of a
firearm could not constitute an integral aspect of the burglary because if it
did, then the two offenses would have to be considered one and the same,
and, as such, the firearm possession could not be deemed “another felony
offense.” Id. The court summarized its holding by saying “a state law crime,
identical and coterminous with the federal crime, cannot be considered as
‘another felony offense’ within the meaning of the Sentencing Guidelines.”
Id., at 826.

But the federal circuits are sharply divided on this issue. Like the Third
Circuit, the Seventh Circuit has held that enhancement was improper under §
2K2.1(b)(6) for stealing firearms during the burglary of a pawn shop
because there was no separation of time or conduct. See: United States v.
Sanders, 162 F.3d 396, 399-400 (6th Cir. 1998). See also: United States v.
Szakacs, 212 F.3d 344, 351 (7th Cir. 2000)[conspiracy to steal firearms not
“sufficiently distinct” from firearms possession to be considered “another
felony offense”]. The Fifth and Eighth circuits, however, have reached
divergent conclusions. These circuits have ruled that a § 2K2.1(b)(6)
enhancement does indeed apply when a firearm is obtained as a result of a
burglary or theft. See: United States v. Luna, 165 F.3d 316, 323-24 (5th Cir.
1999); United States v. Kenney, 283 F.3d 934, 938-39 (8th Cir. 2002).

And the Third Circuit felt compelled to revisit and revise Fenton two years
after it was decided. See: United States v. Lloyd, 361 F.3d 197 (3d Cir.
2004). In Lloyd the defendant placed a bomb under the car of an intended
victim. He pleaded guilty to unlawful possession of a destructive device in
violation of 26 U.S.C. § 5861(d) and conspiracy to violate that provision in
violation of 18 U.S.C. § 371. Id., at 199. The district court found that the
defendant had possessed a firearm in connection with a state felony offense
of criminal mischief and applied the enhancement provisions of § 2K2.1(b)
(6). Id., at 199-200.

The Lloyd court rejected the narrower view of Fenton in favor of a “broader
analysis” of § 2K2.1(b)(6) under a “test” announced in Blockburger v.
United States, 284 U.S. 299 (1932). The Blockburger test permits
punishment under two criminal statutes based on the same conduct if each
offense requires proof of an element that the other does not. Id., 284 U.S. at
304. The Lloyd court said this analysis could also be applied to § 2K2.1(b)
(6) relative to “another felony offense” only if that offense and the firearm
possession offense each have one element the other does not. See: Lloyd,
supra, 361 F.3d at 200-01. See also: United States v. Purifoy, 326 F.3d 879,
880-81 (7th Cir. 2003)[holding that offense of assault, when committed with
firearm, could be “another felony offense” under § 2K2.1(b)(6)].
The Third Circuit last year seem to retreat even further from Fenton and
Lloyd. See: United States v. Navarro, ___ F.3d ____ (3d Cir. 2007, No. 05-
4102). The defendant in Navarro was involved in a police chase that resulted
in the crashing of his vehicle. He fled the scene only to be captured a short
time later. The police found a loaded, semiautomatic handgun on the roof of
the vehicle and a jacket that contained a quantity of marijuana and cocaine.
The defendant admitted to officers after his arrest that the handgun and
drugs belonged to him. Id. He stated that he had obtained the handgun in
2002 through a drug exchange (“three rocks” of crack for the gun). Id. He
was subsequently charged with one count of possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g) and two counts of simple
possession of a controlled substances under 21 U.S.C. § 844(a). He pleaded
guilty to these offenses. A pre-sentence report recommended a four-level
enhancement under § 2K2.1(b)(6), citing the predicate offense as the simple
possession charges. Id.

The defendant’s attorney objected to the enhancement, pointing out that the
simple possession offenses were not a felonies under 21 U.S.C. § 844(a).
The government conceded this point but argued that a § 2K2.1(b)(6)
enhancement could apply because of the defendant’s admitted drug
distribution offense (the crack for the handgun), a felony under 21 U.S.C. §
841. The district court agreed and sentenced the defendant to 108 months in
prison. The Third Circuit noted, however, that since the defendant had an
actual prior 1996 drug conviction, his simple possession offenses were no
longer misdemeanors under § 844(a) and unquestionably could be utilized as
the predicate offense. Id.

The defendant pointed out on appeal that absent the § 2K2.1(b)(6)

enhancement he would have received a sentence between 63 to 78 months
based on a total offense level of nineteen and a criminal history category of
VI. While the Third Circuit noted that the defendant’s case was “atypical”
because the firearm was “neither used nor intended as a means of
intimidation or protection, but rather was proffered as an item of trade,” the
court was not persuaded by that distinction:

“From Lloyd and Fenton a two-part standard may be distilled for

determining whether an offense committed in connection with possession of
a firearm may support an enhancement under section 2K2.1(b)[6]. The first
part of the test, from Blockburger, is legal in nature and asks whether the
predicate offense and the firearms possession crime each have an element
that is not shared by the other. The second part of the test, from Fenton, is
essentially factual in nature and asks whether more than mere possession of
the firearm – brandishment or other use – was an integral aspect of the
predicate offense. If these two questions are answered in the affirmative,
then the four-level enhancement under section 2K2.1(b)[6] should apply.

“Judged by this standard, it is clear that the District Court properly applied
the enhancement under section 2K2.1(b)[6]. The predicate offense in this
case was drug distribution under 21 U.S.C. § 841(a), a ‘felony offense’
under the Guidelines.

“The offenses of drug distribution and firearms possession satisfy the first
part of the Lloyd standard, the Blockburger test. Dispensation of a controlled
substance is an element of drug distribution but not of firearms possession;
possession of a firearm is an element of firearms possession but not of drug
distribution. The two offenses each have an element not shared by the other
and therefore should be viewed as separate offenses for purposes of section
2K2.1(b)[6].” Id. (Internal citations omitted).

Felony Probation and Deferred Adjudications

Tese decisions reflect that the possession of a firearm by a convicted felon

under almost any circumstances will result in a seriously enhanced sentence
in the federal system. However, does this mean that an individual who has
received a past “probation before judgment” or some other type of deferred
adjudication before conviction would be subject to prosecution under §
922(g)?

§ 921(a)(20) provides:

“The term ‘crime punishable by imprisonment for a term exceeding one

year’ does not include –

“(B) any State offense classified by the laws of the State as a misdemeanor
and punishable by a term of imprisonment of two years or less.

“What constitutes a conviction of such a crime shall be determined

in accordance with the law of the jurisdiction in which the proceedings were
held. Any conviction which has been expunged, or set aside or for which a
person has been pardoned or has had civil rights restored shall not be
considered a conviction for purposes of this chapter, unless such pardon,
expungement, or restoration of civil rights expressly provides that the person
may not ship, transport, possess, or receive firearms.”

The United States Supreme Court in Beecham v. United States, 511 U.S.
368, 371 (1994) first interpreted this statutory provision to mean:

“What constitutes a conviction of such a crime shall be determined in

accordance with the law of the jurisdiction in which the proceedings were
held. Any conviction which has been expunged, or set aside or for which a
person has been pardoned or has had civil rights restored shall not be
considered a conviction for purposes of this chapter, unless such pardon,
expungement, or restoration of civil rights expressly provides that the person
may not ship, transport, possession of receive firearms.” Id., at 371. See
also: Caron v. United States, 324 U.S. 308, 313 (1998)[ "Not all . . .
convictions, however, count for purposes of § 922(g) . . . ." A conviction for
which the defendant's civil rights have been restored is not a predicate
offense "unless such . . . restoration of civil rights expressly provides that the
person may not ship, transport, possess, or receive firearms"].

The Fifth Circuit in United States v. Daughtery, 264 F.3d 513 (5th Cir. 2001),
cert. denied, 2002 U.S. LEXIS 1121 had an opportunity to apply these two
Supreme Court decisions to a § 922(g) case in which the defendant was
convicted in Texas for delivery of marijuana and injury to a child, and was
imprisoned for those offenses. The Texas court released him and placed him
on “shock probation” for ten years. He was discharged by the court from that
probation in 1995. Id., at 514.

The facts leading up to Daugherty’s §§ 922(g)(1)(a) and 924(a)(2)

conviction were set out by the court as follows:

“In March 2000, police officers responded to a disturbance call placed by

two sisters staying in a motel room. They complained that Daugherty had
repeatedly harassed and threatened them. The officers found Daugherty
standing outside the motel room, talked to him, and searched him for
weapons, finding none. They then spoke with the two sisters, who said
Daugherty had a weapon in his truck. One of the officers found a rifle,
which Daugherty admitted he owned and which was manufactured in Egypt
and imported through Knoxville, Tennessee.” Id.
Following his indictment, Daugherty’s attorney “filed a motion to dismiss
the indictment on the ground that his two state felony convictions did not
prohibit him from possessing a firearm, because he had been discharged
from probation for both offenses. The court denied that motion.” Id.

Citing United States v. Dupaquer, 74 F.3d 615, 617 (5th Cir. 1996), the Fifth
Circuit said that Texas law would determine whether Daugherty was a
convicted felon pursuant to § 922(g)(1). Id., at 515. Daugherty argued that
Tex. Code Crim. Proc. § 42.12(20)(a) (Vernon Supp. 2001) restored his civil
rights such that he no longer should be considered a “convicted” felon. Id.
The Fifth Circuit then outlined the legal issue squarely before the court:

”We have a two-part test to determine whether the ‘unless clause’ of §

921(a)(20), which supports a § 922(g)(1) conviction, is triggered. First, we
ask whether ‘the state which obtained the underlying conviction revives
essentially all civil rights of convicted felons, whether affirmatively with
individualized certification or passively with automatic reinstatement.’
Second, we ‘determine whether the defendant was nevertheless expressly
deprived of the right to possess a firearm by some provision of the
restoration law or procedure of the state of the underlying conviction.’

”Because Daugherty's rights were passively revived by operation of law, not

by individualized certification, we examine Texas law to decide whether any
provision or procedure limits his right to possess firearms. The government
contends that, even assuming that Daugherty's general civil rights were
restored under art. 42.12, § 20, so as to fulfill the first part of the Dupaquier
test, some ‘procedure of the state of the underlying conviction’ expressly
deprived him of the right to possess a firearm.” Id., 515-16 (internal citations
omitted)[emphasis original].

The government argued that Tex. Penal Code Ann. § 46.04(a)(Vernon 2001)
prohibited Daugherty from possessing a firearm. Daugherty, on the other
hand, argued that under § 42.12(20) a person discharged from a probation is
no longer “convicted.” The Fifth Circuit noted that neither § 42.12(20) nor §
46.04 explains whether the “successful completion of probation supervision
renders one ‘no longer convicted’.” Id., at 516. The Fifth Circuit addressed
this statutory conflict as follows:

“In United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988), we noted
specifically that the successful completion of probation does not expunge a
conviction for purposes of § 922(g). We decided Morales two years after
Congress amended § 922(g) to include the ‘unless clause.’ Thus, under Fifth
Circuit precedent, Daugherty remained a convicted felon.

”The government also contends that the Concealed Handgun Act ("CHA"),
TEX. GOV'T CODE ANN. § 411.171(4) (Vernon Supp. 2001), prevents
Daugherty from owning a firearm. The government strongly relies on Tune
v. Tex. Dep't of Pub. Safety, 23 S.W.3d 358 (Tex. 2000), in which the
defendant was denied a license to carry a concealed handgun because he had
been convicted of a felony. See id. at 360. He argued that, because his
conviction had been was set aside under art. 42.12, § 20, he was no longer
‘convicted’ under the CHA. Id. at 363. The Texas Supreme Court, noting
that the CHA deemed a felon convicted ‘after an adjudication of guilt is
entered against him whether or not his sentence is subsequently probated
and he is discharged from supervision,’ id. (citation omitted), declared that
Tune was not eligible for a concealed-handgun license. Id. at 364. After
Tune, most Texas courts have held that a person applying for a concealed-
handgun license remains convicted for purposes of the CHA.

”Daugherty responds correctly that Tune applied only to the definition of

‘convicted’ as provided in the CHA and thus is not squarely on point here.
The court in Tune stated, however, that ‘the Legislature may wish to keep
concealed handguns out of the hands of persons who have been convicted of
a felony, even if those persons satisfactorily completed community
supervision.’ Id. That rationale also applies here, because the Texas
Legislature has passed laws designed to keep firearms out of the hands of
convicted felons.

”Both § 46.04 and the CHA demonstrate the power of the legislature ‘to
regulate the bearing of arms, with a view to prevent crime.’ TEX. CONST.
art. I, § 3. Thus, Tune provides strong analogous support for affirming
Daugherty's conviction.

”Under Texas law, Daugherty remained convicted even after successfully

completing probation. Consequently, he is subject to the penalties that state
law imposes on convicted felons. Section 46.04 prohibits felons from
possessing firearms outside their homes. Accordingly, Texas statutory law
activated the ‘unless clause’ in § 921(a)(20) and prevents Daugherty from
possessing a firearm.” Id., 517-18.
Sixth years later the Fifth Circuit in an immigration case expanded
Daugherty by holding that a Texas deferred adjudication, not considered a
felony conviction under state law, could be used for sentencing enhancement
purposes. See: United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004).
See also: See also: Moosa v. Immigration and Naturalization Service, 171
F.3d 994, 1001-02 (5th Cir. 1999) [“The term ‘conviction’ is now defined as
a formal judgment of guilt entered by the court or, if an adjudication of guilt
has been withheld, where the judge has imposed some form of punishment,
penalty, or restraint on the alien’s liberty”].

Inasmuch as a “deferred adjudication” always entails “some form of

punishment, penalty, or restraint” in order to qualify for a non-finding of
guilt, these “deferred” proceedings could fall within the meaning of
“conviction” as defined by the Fifth Circuit. Deferred Adjudications are
definitely considered felony convictions for immigration purposes and for
sentencing enhancements under the federal sentencing guidelines.

THE TEXAS GUN STATUTE

Tex. Penal Code § 46.04 provides:

“(a) A person who has been convicted of a felony commits an offense if he

possesses a firearm:

“(1) after conviction and before the fifth anniversary of the person's release
from confinement following conviction of the felony or the person's release
from supervision under community supervision, parole, or mandatory
supervision, whichever date is later; or
“(2) after the period described by Subdivision (1), at any location other than
the premises at which the person lives.

“(b) A person who has been convicted of an offense under Section 22.01,
punishable as a Class A misdemeanor and involving a member of the
person's family or household, commits an offense if the person possesses a
firearm before the fifth anniversary of the later of:

“(1) the date of the person's release from confinement following conviction
of the misdemeanor; or
“(2) the date of the person's release from community supervision following
conviction of the misdemeanor.
“(c) A person, other than a peace officer, as defined by Section 1.07,
actively engaged in employment as a sworn, full-time paid employee of a
state agency or political subdivision, who is subject to an order issued under
Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Chapter
7A, Code of Criminal Procedure, or by another jurisdiction as provided by
Chapter 88, Family Code, commits an offense if the person possesses a
firearm after receiving notice of the order and before expiration of the
order.

“(d) In this section, "family," "household," and "member of a household"

have the meanings assigned by Chapter 71, Family Code.

“(e) An offense under Subsection (a) is a felony of the third degree. An

offense under Subsection (b) or (c) is a Class A misdemeanor.”

For the State to obtain a conviction for the unlawful possession of a firearm
by a felon under § 46.04(a)(1), it must establish the following elements:

• a person
• who has been convicted of a felony
• possesses a firearm
• after conviction and before the fifth anniversary of the person’s
release from confinement following conviction of the felony or the
person’s release from supervision under community supervision,
parole, or mandatory supervision, whichever date is later.

See: Hunt v. State, 994 S.W.2d 206, 208 (Tex.App.-Texarkana 1999, pet.
ref’d).

§ 46.04(a)(1) has survived the litany of constitutional challenges listed

below:

• Right to Bear Arms – defendants have challenged that § 46.04 violates

the right of every “citizen” to keep and bear arms guaranteed by
Article I, Section 23 of the Texas Constitution - a right that applies
only to “citizens” of the State of Texas. See: Jordan v. State, 56
S.W.3d 326, 330 (Tex.App.-Houston [1st Dist.] 2001). But even if a
citizen has “standing” to challenge § 46.04 under Tex. Const. art. I, §
 23, the courts have held that the Texas Legislature had a “rational
basis” for restricting a convicted felon’s possession of firearms. Id.
See also: Wilson v. State, 44 S.W.3d 602, 605 (Tex.App.-Fort Worth
2001, pet. ref’d).
• Due Process Under Due Course of Law and Due Process Provisions
of the Texas and United States Constitutions – The courts have held
that § 46.04 does not offend the due process provisions of either the
fourteenth amendment to the U.S. Constitution or art. I, § 19 of the
Texas Constitution. See: Sheppard v. State, 586 S.W.2d 500, 502, 503
n.4 (Tex.Crim.App. 1979). Texas courts apply essentially the same
standards in assessing a due course of law challenge under the state
constitution and a due process challenge under the U.S. Constitution.
See: Jordan v. State, supra, 56 S.W.3d at 331. See also: Garay v.
State, 940 S.W.2d 211, 217-18 (Tex.App.-Houston [1st Dist.] 1997,
pet. ref’d). Following the lead of the Fifth Circuit Court of Appeals in
United States v. Giles, 640 F.2d 621, 624-25 (5th Cir. 1981) whose
interpretation of 18 U.S.C. § 922(g)(1)-(8) sets forth the prerequisites
for a firearms conviction as a conviction of a crime, violent or
otherwise, and punishable for more than one year in prison, Texas
courts have said that § 46.04 adheres to this precise federal standard.
See: Jordan v. State, supra. The Jordan court held: “Giles concerned a
constitutional challenge to the federal statute under virtually identical
grounds to those appellant raises here. In Giles, the defendant claimed
the federal statute, as amended to include convictions for nonviolent
crimes, violated the equal protection guarantees rooted in the Due
Process Clause, on which appellant relies here, by not distinguishing
between violent and nonviolent prior convictions. Id. at 624. In
rejecting the challenge, the United States Court of Appeals for the
Fifth Circuit joined several other federal circuit courts in concluding
the statute was rationally related to the congressional goal of
precluding access to firearms for those convicted of serious crimes
because of their greater potential to abuse the right to possess
firearms. Id. at 625-27. While not bound by this analysis, we agree
with it and conclude it is dispositive of appellant's challenge to section
46.04.” Id., 56 S.W.3d at 331.
• Ex Post Facto Violation – Article I, § 10 of the U.S. Constitution and
Art. I, § 16 of the Texas Constitution provides that an ex post facto
law (1) punishes, as a crime, any act committed previously that was
innocent when done; (2) changes the punishment and inflicts greater
punishment than the law attached to the crime offense when it was
 committed; or (3) deprives a person charged with a crime of any
defense available when the act was committed. See: Jordan v. State,
supra, 56 S.W.3d at 331. The defendant in Jordan agued that at the
time he committed his prior felony of possession of marijuana, §
46.04 applied only to those previously convicted of a violent felony.
He said that a “greater punishment” had been inflicted on him than
authorized by the law attached to the criminal offense when he
committed the prior offense. Id., at 332. The Jordan court held that “in
a “closely related situation in a case involving possession of firearm
by a felon, the Court of Criminal Appeals found no ex post facto
violation. See Salazar v. State, 423 S.W.2d 297, 298-99 (Tex. Crim.
App. 1968). The prior conviction in Salazar was for robbery. Id. at
298. After Salazar was convicted of robbery, the statute proscribing
felons possessing firearms was changed to include not only prior
convictions involving violence, but burglary and robbery as well. Id.
In rejecting the ex post facto challenge, the Court of Criminal Appeals
emphasized that Salazar was being punished for actions he committed
after the enactment of the amendment that brought his prior robbery
conviction within the ‘felon in possession’ statute. See id. at 298-99.”
Id.
• Double Jeopardy – In May 2004 Arnoldo Belmontes was involved in
a fight that resulted in the death of Robey Guerra. He was indicted for
murder and unlawful possession of a firearm by a felon. The State
tried him on the murder charge first. In January 2005 a jury found him
not guilty. Belmontes testified in his own defense, admitting that he
possessed a firearm while on supervised probation for a felony offense
of conspiracy to possess with intent to distribute marijuana.
Belmontes then entered a plea of nolo contendere to the § 46.04
violation. See: Belmontes v. State, 2006 Tex.App. LEXIS 2917
(Tex.App.-San Antonio 2006). On appeal Belmontes argued that the
Fifth Amendment of the U.S. Constitution’s guarantee against double
jeopardy prevented the state from prosecuting him on the § 46.04
violation following his acquittal of murder. See also: Tex. Code Crim.
Proc. Ann. art. 1.10 (Vernon 2005). Applying the Blockburger test to
reject Belmontes claim, the appeals court held that “the murder
offense of which Belmontes was acquitted required proof that: (1) a
person, (2) intentionally or knowingly, (3) intends to cause serious
bodily injury and commits an act clearly dangerous to human life that
causes the death of an individual. TEX PEN. CODE ANN. § 19.02 (b)
(Vernon 2005); Brown v. State 955 S.W.2d 276, 284 (Tex. Crim. App.
 1997). The conviction for the unlawful possession of a firearm by a
felon required proof that: (1) a person, (2) who has been convicted of
a felony, (3) possesses a firearm, (4) after conviction and before the
fifth anniversary of the person's release from confinement following
conviction of the felony or the person's release from supervision under
community supervision, parole, or mandatory supervision, whichever
date is later. TEX. PEN. CODE ANN. § 46.04 (a) (1) (Vernon 2003);
Hunt v. State, 994 S.W.2d 206, 208 (Tex. App.--Texarkana 1999, pet.
ref'd). Application of the Blockburger test demonstrates that unlawful
possession of a firearm requires proof of at least one element that the
murder offense does not.” Id., LEXIS at 8-9.

In 1997 the Legislature amended the Texas Code of Criminal Procedure to

allow a “deferred adjudication” to be used for enhancement purposes. See: §
12.42(c)(2) and (g)(1).This legislative amendment automatically triggered
the question of whether a discharged deferred adjudication could be used as
a prior felony conviction under § 46.04.

Four years after this legislative amendment the Texas Court of Criminal
Appeals was called upon to answer that specific question: “Can a
successfully completed deferred adjudication be used to enhance punishment
for a later offense when the provision permitting such enhancement did not
exist at the time adjudication was deferred?” See: Scott v. State, 55 S.W.3d
593 (Tex.Crim.App. 2001).

The Court of Criminal Appeals refused to follow the lead of the Fifth Circuit
in Daugherty and Moosa by answering the question with a resounding “no.”
Id., at 594. The court of criminal appeals explained why:

“Under the Texas Penal Code enhancement scheme, a life sentence must be
assessed to a defendant who commits a sexual offense listed in § 12.42(c)(2)
(A) if that defendant has previously been convicted of a sexual offense listed
in § 12.42(c)(2)(B). When appellant pled guilty in 1991 to indecency with a
child, the deferred adjudication statute provided that a discharged deferred
adjudication would not be considered a conviction except in certain
enumerated circumstances:

”A dismissal and discharge under this section may not be deemed a

conviction for the purposes of disqualifications or disabilities imposed by
law for conviction of an offense except that….
”None of the exceptions involved the use of a deferred adjudication to
enhance a subsequent offense. In 1997, § 12.42 was amended to add a
provision that makes a deferred adjudication count as a conviction under
subsection (c)(2)(B), regardless of whether sentence was ever imposed or the
defendant was subsequently discharged from community supervision:

”For the purposes of Subsection (c)(2): (1) a defendant has been previously
convicted of an offense listed under Subsection (c)(2)(B) if the defendant
was adjudged guilty of the offense or entered a plea of guilty or nolo
contendere in return for a grant of deferred adjudication, regardless of
whether the sentence was ever imposed or whether the sentence was
probated and the defendant was subsequently discharged from community
supervision.

”In the same bill that amended § 12.42, the Legislature also amended the
"disqualifications and disabilities" clause of Article 42.12, § 5(c) to
accommodate the change in § 12.42(g)(1): "Except as provided by Section
12.42(g), Penal Code, a dismissal and discharge under this section may not
be deemed a conviction for the purposes of disqualifications or disabilities
imposed by law for conviction of an offense" (1997 amendatory language
italicized).” Id., 595-96.

The Scott court, however, added the following caveat:

“The distinguishing factor in this case is the existence in the prior statute of
an explicit limitation on the collateral consequences of deferred
adjudication. The resolution of criminal charges will always carry the
possibility of collateral consequences, and as long as those consequences are
not statutorily restricted, disabilities and disqualifications which the
defendant might not have anticipated may proceed from the prior cause. But
when a statute explicitly restricts the collateral consequences of an offense,
the defendant is entitled to rely on that restriction. Punishment for the
offense is increased by the removal of the statutory restriction, and such an
increase in punishment constitutes an ex post facto law.” Id., 597-98

In 1991 when the defendant in Scott pleaded guilty to indecency with a

child, the deferred adjudication statute provided that a discharged deferred
adjudication would not be considered a conviction except in enumerated
circumstances. Id., at 595.
The Scott decision tracked a previous Court of Criminal Appeals decision
rendered nearly twenty-five years before which held a deferred adjudication
is not a criminal conviction. McNew v. State, 608 S.W.2d 166
(Tex.Crim.App. 1978)[upholding Tex.C.Cr.P. art. 42.12, Section 3d, that
authorized a judge to place a criminal defendant on probation before they
have been convicted].

Other courts have followed the McNew lead. In Breedy v. State, 194 S.W.3d
595 (Tex.App.-Houston [1st Dist.] 2006) held that a criminal “conviction”
requires a judgment of guilt and an assessment of punishment. Id., at 599.
See also: Ex parte Evans, 964 S.W.2d 643, 646-47 (Tex.Crim.App. 1998);
Green v. State, 663 S.W.2d 134, 136 (Tex.App.-Houston [1st Dist.] 1983)[a
“deferred adjudication probation” is not an “adjudication of guilt” and is not
“equivalent of probation under article 38.29 of Code of Criminal Procedure”
(now rule 609).”]

The Breedy court referred to a more recent Court of Criminal Appeals

decision in Donovan v. State, 68 S.W.3d 633, 636-37 (Tex.Crim.App. 2002)
in which the court held that a deferred adjudication is not a “conviction”
because defendant on “deferred-adjudication community supervision” has
not been found guilty. Id., at 600.

The Donovan court held that “one of the signal benefits of deferred
adjudication” is that there is no “’finding or verdict of guilt’.” Id.

Finally, Court of Criminal Appeals in 2002 clearly articulated what Scott

had implied: that “a felony conviction set aside pursuant to Article 42.12, §
20, of the Texas Code of Criminal Procedure is not a felony conviction for
purposes of Penal Code § 46.04(a).” See: Cuellar v. State, 70 S.W.3d 815
S.W.3d (Tex.Crim.App. 2002)

What exactly does § 42.12(20) say:

“At any time, after the defendant has satisfactorily completed one-third of
the original community supervision period or two years of community
supervision, whichever is less, the period of community supervision may be
reduced or terminated by the judge. Upon the satisfactory fulfillment of the
conditions of community supervision, and the expiration of the period of
community supervision, the judge, by order duly entered, shall amend or
modify the original sentence imposed, if necessary, to conform to the
community supervision period and shall discharge the defendant. If the
judge discharges the defendant under this section, the judge may set aside
the verdict or permit the defendant to withdraw his plea, and shall dismiss
the accusation, complaint, information or indictment against the defendant,
who shall thereafter be released from all penalties and disabilities resulting
from the offense or crime of which he has been convicted or to which he has
pleaded guilty, except that:

”(1) proof of the conviction or plea of guilty shall be made known to the
judge should the defendant again be convicted of any criminal offense; and

”(2) if the defendant is an applicant for a license or is a licensee under

Chapter 42, Human Resources Code, the Texas Department of Human
Services may consider the fact that the defendant previously has received
community supervision under this article in issuing, renewing, denying, or
revoking a license under that chapter.”

In Cuellar, over the opposition of the State, the Court of Criminal Appeals
interpreted § 42.12(20) in § 46.04(a) cases as follows:

“Once the trial court judge signs the Article 42.12, § 20, order, the felony
conviction disappears, except as specifically noted in subsections (1) and
(2). Under subsection (1), if the discharged person is subsequently convicted
of another criminal offense, the previously dismissed "former" felony
conviction will resurrect itself and be made known to the trial judge. Id.
Under subsection (2), if the discharged person is applying for a license to
run a child care facility or currently has such a license, the Texas
Department of Human Services, in issuing, renewing, denying, or revoking
such a license, may consider the fact that the person had previously received
community supervision. Id. Both of these exceptions make good sense. They
are, however, the only listed exceptions. The Legislature could add other
exceptions if it so chooses. For example, it could add a provision stating that
a person whose conviction is dismissed under Article 42.12, § 20, is still
considered a felon for purposes of carrying an otherwise legal firearm. 8
However, in the absence of such an exception, the clear language of Article
42.12, § 20, governs.” Id., at 820.

Cuellar is distinguishable from Daugherty in one significant respect: the

Court of Criminal Appeals made it clear that a discharged deferred
adjudication or a successfully completed community supervision must be
accompanied by a § 42.12(20) in order not to qualify under § 46.04(a). As
the court explained in Cuellar:

“Penal Code § 46.04(a) requires a felony conviction as an element of the

offense. Here, appellant's prior felony conviction was set aside pursuant to
an Article 42.12, § 20, order. Accordingly, there was no predicate felony
conviction to support a conviction under § 46.04(a).” Id., at 821. [Emphasis
acdded]. See also: Wolfe v. State, 917 S.W.2d 270, 277 (Tex.Crim.App.
1996)[cited by Cuellar to support this finding]. A passive restoration of
rights by “operation of law” without “individualized certification,” as was
the case in Daugherty, would not preclude prosecution under § 46.04.

In conclusion, it must be clearly understood that a § 42.12(20) order does not

change the meaning of “convicted” under the state’s Concealed Handgun
Act as pointed out by the Texas Supreme Court in Tune v. Tex. Dep't of
Pub. Safety, 23 S.W.3d 358 (Tex. 2000). See also: Texas Dep’t of Pub.
Safety v. McLendon, 35 S.W.3d 632 (Tex. 2000)[“convicted” designation
still applies under CHA even though a new trial granted and the case
dismissed].

Therefore, while a person with a § 42.12(20) order may not be charged with
possession of a firearm by a convicted felon under § 46.04, he possibly
remains subject to prosecution under § 922(g) because of the interpretation
the Texas Supreme Court has attached to the term “convicted” under the
CHA. See: Daugherty, supra.

CONCLUSION

When a criminal defense attorney is called upon to defend a case in which

the defendant has been charged under either 18 U.S.C. 922(g) or § 46.04
with possession of a firearm by a convicted felon, the first line of factual and
legal investigation must be to determine (1) whether the prior conviction
qualifies under either statute and (2) whether the prior conviction was
constitutionally obtained.