A Court of Criminal Appeals Excrescence


Can someone who has successfully completed felony deferred-adjudication probation in Texas (and been in no other trouble) possess a firearm under Texas law?

Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM BY FELON. (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…

What does that mean? Who could tell us?

I know! Let’s ask the Court of Criminal Appeals! Those folks are really smart! And fair! And intellectually honest! And…

On its face, the statute seems to make it an offense for a “person who has been convicted of a felony” to possess a firearm “after conviction” and “before the fifth anniversary” of either of two events:

(A) “the person’s release from confinement following conviction of the felony, or

(B) “the person’s release from supervision under community supervision, parole, or mandatory supervision.”

Therefore the class of persons who have “been convicted of a felony,” as that term is used in Section 46.04, includes those in any of three circumstances:

(1) those who have been in “confinement,”

(2) those who have been supervised under parole or mandatory supervision-all of whom will have been in confinement, since parole 3 and mandatory supervision 4 involve release after a final conviction, and

(3) those who have been under “community supervision,” which may not involve confinement. As defined in the Code of Criminal Procedure, “ ‘Community supervision’ means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which:

“(A) criminal proceedings are deferred without an adjudication of guilt; or

“(B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.” 5

Whether the Unlawful Possession of Firearm statute applies to a person who is, or has been, on deferred-adjudication community supervision is not clear.

In other words:

The legislature says that anyone who has been convicted of a felony cannot possess a firearm before the fifth anniversary of his release from confinement or release from community supervision. Deferred-adjudication probation is community supervision. Therefore whether deferred-adjudication probation is a felony conviction is not clear.

All mammals have warm blood. Therefore whether a duck is a mammal is not clear.

Obligatory Logic Lesson:

Under the Court of Criminal Appeals’ logic, any confinement or community supervision may be a felony conviction; it’s unclear. Time served on a misdemeanor? Could be a felony conviction; unclear. Misdemeanor deferred? Burn him; it’s unclear!

Paul Womack’s opinion didn’t say that felony deferred-adjudication probation is a felony conviction. It said that this question is open:

Whether a person who is on deferred adjudication has been “convicted” as that term is used in the Unlawful Possession of Firearm statute need not be resolved today. The claim before us is that the applicant was denied effective assistance of counsel when his attorney allowed him to plead guilty without raising this question in the trial court. We think that this may not be called ineffective assistance. For one thing, as we have explained, the issue of the proper construction of the statute was unresolved and remains unclear. In such circumstances, counsel usually may not be held to have rendered ineffective assistance.

Got it? They engaged in gross sophistry to find that trial counsel was not ineffective in pleading the defendant, who had never been convicted of a felony, guilty to felon-in-possession-of-a-firearm because the issue is unsettled.

It’s blatant horseshit. The point of a deferred-adjudication probation is that it’s not a conviction. A conviction by definition is a judgment. With deferred-adjudication probation the judge accepts the plea, but doesn’t find the defendant guilty and doesn’t enter a judgment.

Deferred-adjudication probation isn’t a conviction for purposes of impeachment, nor enhancement, nor probation eligibility. That “conviction” is defined for purposes of the sex-offender registration statute or the concealed-handgun-license statute to include deferred adjudication probation doesn’t change the fact that where it is not defined by statute it has its common meaning. (How many legs does a dog have, if the Texas concealed-handgun-licensing statute calls a tail a leg?)

The defendant, before the court on a pro se 11.07 writ of habeas corpus, got Kellered. The Court of Criminal Appeals was looking for a way to deny relief in a case in which the trial lawyer obviously screwed up. Even a mediocre lawyer on a bad day could have explained to the Court of Criminal Appeals the association fallacy.

Judge Paul Womack ought to be ashamed of himself.


6 responses to “A Court of Criminal Appeals Excrescence”

    • To the contrary, Ross, the Federal statute defines a “conviction” for a felony in terms of state law. 18 USC §921(a)(20).

      So whether a Texas felony deferred is a conviction under Texas law controls whether it is a conviction for purposes of 922(d)(1).

  1. Agreed that is horse shit, and another good point for another day is that the CHL dosnt ALWAYS define a Deferred as a conviction, for example most felonies after ten years are no longer “convictions according to the CHL laws. Texas DPS will also issue a CHL to a person with a midemeanor family violence deferred a permit after five years from the date of the deferred order, which means if the deferred is a conviction for puposes of 46.04, texas DPS is actually licensing the person to cary while they would be in violation under 46.04 because that statute is five years from the end of community supervision rather than five years from the date the deferred wa sordered. The CCA makes no sense, they rule in favor of Cueller, saying he was shielded from prosecution due to a Section 42.12(20) order yet pull this crap on a deferred. It seems that it would be much easier to say Cueller met the “has been convicted” language because at some point in time I guess he was convicted. The law is straightforward and these guys are just scared to stand up and say the truth because of the gun control advocates. I love your column and would call on you if I need criminal defense.

  2. “Some defendants who have been convicted were placed on community supervision.
    All defendendants whose adjudication was deferred were placed on community supervision.
    So whether deferred adjudicants were convicted is unclear.”

    That’s like saying:
    “Some motorized vehicles have two wheels.
    All bicycles have two wheels.
    So whether bicycles are motorized vehicles is unclear.”

    Somebody needs to review his Aristotelian Syllogisms.

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