Felon in Possession Even if Felony is Reversed

Under section 46.04 of the Texas Penal Code, it is unlawful for a felon to possess a firearm.  Of course, it’s more complicated than that.  There are nuances.  But for the purpose of this post, I’ll leave it at that.  You can read the full text of section 46.04 here if you desire.

So here’s our scenario: A person is convicted of a felony.  Check.  Then that same person is caught possessing a firearm in violation of section 46.04.  Check.  He is then convicted for being a felon in possession.  Check.  But here’s the curveball…what if this person later challenges his original felony on appeal and wins?  Now the predicate offense is gone.  Poof!  Can his subsequent conviction for possession of a firearm by a felon still stand when he is no longer a felon?

The Texas Court of Criminal Appeals addressed this scenario in Ex Parte Jimenez.  To paraphrase the CCA’s answer…it depends.  It depends on when the person’s predicate felony was reversed.  If the predicate felony is reversed PRIOR to the conviction for possession of a firearm by a felon (as it was in Cuellar v. State, 70 S.W.3d 815), then the felon in possession conviction should not stand.  It should be reversed.  But if the predicate felony is reversed AFTER the person is convicted for possessing a firearm as a felon (as is the case here), then the conviction should not be disturbed.

The CCA looked to the U.S. Supreme Court’s holding in Lewis v. United States, 445 U.S. 55 (1980) which explained that “to obtain a valid conviction, the prosecution must prove the status of the defendant at the time he possessed the weapon.”

Therefore, if the defendant had the status of a felon at the time he possessed the firearm, a conviction for unlawful possession of a firearm by a felon is not void if the predicate felony is subsequently set aside.

In Jimenez's case, because his felony conviction was reversed AFTER he was convicted of possession of a firearm, the CCA denied him relief.

Judge Meyers dissented, opining that the facts of the case fit the criteria for an actual innocence claim under the CCA’s opinion in Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).

CCA Refuses to Grant New Trial in Capital Case After Medical Examiner Recants Trial Testimony and Trial Court Recommends New Trial

Ex Parte Neal Hampton Robbins – Tex. Crim. App. , June 29, 2011

In 1999, Neal Robbins was convicted of capital murder and sentenced to life in prison for the death of his girlfriend’s 17 month-old child. The cause of death as reported by the medical examiner was asphyxiation by compression. The medical examiner testified to her theory at trial and despite contrary evidence that the compression wounds may have resulted from adult administered CPR, the jury convicted Robbins of capital murder.

In 2007, at the urging of one of Robbins’s acquaintances, the original findings of the medical examiner were reviewed by the Harris County Medical Examiner’s Office. The Deputy Chief Medical Examiner disagreed with the findings and the trial testimony of the original medical examiner. The autopsy report was then amended to reflect that the cause and manner of death was “undetermined.” Eventually, the original medical examiner was asked to review her prior findings. In a letter to the district attorney, she stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of "undetermined" is best for this case.

She went on to explain that the bruises she originally equated with asphyxiation by compression could have resulted from aggressive CPR and other efforts to assist the child.

Armed with the recantation of the chief government witness, Robbins filed an application for writ of habeas corpus in June of 2007. The State did not oppose the application and recommended that Robbins be given a new trial “because his due process rights to a fair trial and impartial jury were violated.” In response, the trial court appointed yet another medical to review the evidence and offer an opinion. This time, the chairman of the Department of Pathology at Baylor College of Medicine opined that the original determination of the cause of death, as presented in the capital trial, could not be supported by the evidence.

Not satisfied with this opinion, the trial court ordered one last review by another pathologist. This last and final pathologist stated that it was her opinion that the child’s death was a homicide and that the manner of death was asphyxia by suffocation (a theory not presented at the original trial). After this finding, the State withdrew its recommendation that a new trial be granted, but agreed not to oppose the request for a new trial.

After an evidentiary hearing into the cause of the child’s death, the trial court recommended that the Texas Court of Criminal Appeals grant Robbins’s request for a new trial.

A slim majority (5-4) of the CCA was not equally convinced. Characterizing Robbins’s application as a “bare innocence claim,” the CCA explained that it must “look to see whether there is ‘clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.’”

The CCA concluded that:

[The original medical examiner] did not entirely repudiate her testimony. Although she can no longer stand by her more definite trial testimony, it remains at least possible that [the child’s] death could have occurred as [the medical examiner] originally testified. Thus, [her] re-evaluation does not void her trial testimony. The jury could have considered [her] “undetermined” opinion and still found Applicant guilty, especially in light of all of the other evidence adduced at trial. Applicant has, therefore, failed to make the requisite showing “by clear and convincing evidence that no reasonable juror would have convicted him in light of” [the medical examiner’s] re-evaluation.

Application for writ of habeas corpus is denied.

Judge Cochran, joined with Judges Womack and Johnson dissented, stating:

I certainly agree [that]…applicant has not established his actual innocence-not even close. But, given the inexperienced trial and habeas judge’s legitimate and serious concerns about the impact of [the medical examiner’s] testimony at trial on the critical and hotly disputed issue of [the child’s] cause of death, I agree that applicant did not receive a fundamentally fair trial based upon reliable scientific evidence (or the honest admission that science cannot resolve the critical issue.)

Judge Alcala also dissented in a separate opinion, stating that she would grant relief because Robbins “was denied due process of law by the State’s use of false testimony to obtain his conviction.”

If only Robbins had been tried in Florida by Casey Anthony’s jury, this entire appeal could have been averted.

A Flood of Habeas Relief

Last week the Texas Court of Criminal Appeals released several cases in which it granted the ever-elusive habeas corpus relief to a Texas applicant.  The per curiam opinions were not designated for publication and were less than 2 pages in length, but here are the bases for the grants:

Ex Parte Richardson (Dallas County) - Ineffective assistance of counsel for failing to timely file notice of appeal.  (Counsel was since disbarred for dishonesty, fraud, deceit, or misrepresentation in a different criminal case.)

Ex Parte Oshia (Harris County) - Trial court issued an illegal setence (more harsh than the original sentence) after applicant's community supervision was revoked.

Ex Parte Cephus (Tarrant County) - Ineffective assistance of counsel because counsel failed to advise applicant that he had a right to a jury determination of the deadly weapon issue even though he elected to have the trial court assess his punishment.

Ex Parte Whatley (Montague County) - Court found that applicant's plea of guilty was involuntary because he was incompetent at the time it was entered.

Ex Parte Farrar (Franklin County) - Applicant had never been previously convicted of a family violence assault and therefore the enhancment to a felony conviction was improper.

Ex Parte Barnes (Smith County) - Appellate counsel rendered ineffective assistance because counsel
failed to timely notify Applicant that her conviction had been affirmed.

Ex Parte Herrerra (El Paso County) - Guilty plea was involuntary because neither trial counsel nor the trial court advised him of the immigration consequences of his guilty plea.

Not too much there for law nerds to get excited about, but it goes to show that a meritorious claim may receive favor from the Court.

It's Our Fault, But You Have to Fix It.

The Texas Court of Criminal Appeals admitted an error last week in the case Ex Parte Rendon.  The error, the CCA explained, was in the format provided for post-conviction habeas applications.  By rule, the  application (whether it be made by an applicant or his attorney) must be sworn to before a notary public (or, if the applicant is incarcerated, an inmate's declaration must be made), but the application form did not include a signature block for an attorney to sign in the presence of a notary public.  Because of this, the applicant's attorney simply signed the application and filed it with the court.  The CCA concluded that the application was not properly verified, but recognized that the fault lied with the court and its form, not with the applicant or his attorney.

The CCA gave instructions on how to correct the error in the future, but dismissed the application (without prejudice) and advised the applicant that he could refile using the clarified procedure if he wants to have his application considered.  What?  Seriously?  The CCA accepts responsibility for the error in the application, but dismisses the application and makes the applicant refile?  Why not just consider the application now?

Judge Johnson expressed similar shock at the Court's opinion HERE.  In her dissenting opinion, she states:

The difficulty in this case arose because this Court’s prescribed form for an application for a writ of habeas corpus did not require what is now held to be required.  Today we change the rules, yet hold an applicant, who properly filed his application on the old form, to the new rules.  On a basis of which he had no knowledge, we now dismiss his petition and tell him to refile. This strikes me as unjust. This Court’s form created the problem, and this Court should not use that court created problem to place a new burden on this applicant and other applicants who, as of the date of the issuance of the Court’s opinion, had properly filed applications on the old form.

Tolling the Statute of Limitations for a Separate Offense

A period of limitations may be tolled for 2 reasons:

1) the time that a defendant is absent from the state; or
2) the time that another indictment is pending.

Accordingly, if the state dismisses an indictment and then reissues the indictment, charging the same offense, the statute of limitations for that offense would be tolled for the entire period that the previous indictment was pending.  But what if the new indictment alleges a different offense than the first indictment?  Is the limitation period still tolled?

This was the issue presented to the Texas Court of Criminal Appeals in Ex Parte Brooks.  In that case, the State originally charged the defendant with theft that was alleged to have occurred "between 7-1-98 through 4-1-2000."  Prior to trial, however, and over the defendant's objection, the trial court allowed the State to dismiss the indictment.  The State then re-indicted the defendant and included specific language alleging aggregated theft under Texas Penal Code Section 31.09.

Via a pretrial application for a Writ of Habeas Corpus, the defendant claimed that prosecution on the new indictment was barred by the statute of limitations.  His reasoning was that the statute of limitations was not tolled by the previous indictment because the previous indictment alleged a separate offense (felony theft versus aggregated felony theft).  The trial court, along with the 12th District Court of Appeals denied relief, never actually considering whether the limitations period was tolled by the previous indictment.

The CCA, noting that its discretionary power permits review only of decisions by the lower court, reversed the judgment of the 12th Court of Appeals and remanded the case back to that court to consider the tolling issue.

Judge Meyers concurred.

So the real precedential value of this case is the holding that a pretrial application for writ of habeas corpus is a proper means to challenge this limitations issue.  We will have to wait for the more substantive and interesting issue as the 12th Court takes a second look.

No Current Confinement Necessary: Habeas Relief Available for Collateral Consequences

On May 26, 2010, the Texas Court of Criminal Appeals released its opinion in Ex parte Harrington, which has the potential to substantially increase habeas corpus litigation in Texas.  In Harrington, the Court was faced with the question:

[W]hether a person who has discharged his sentence prior to filing an application, but who continues to suffer collateral consequences arising from the challenged conviction, is entitled to seek post-conviction habeas relief under Article 11.07.

 The basis for applicant's petition was that due to his confinement for felony DWI, he suffered collateral consequences, namely, he lost his long-time job with the Texas Workforce Commission.  The applicant argued that but for his counsel's ineffective assistance in failing to investigate his prior DWI conviction, he would not have plead guilty for felony DWI and, in turn, would not have been sentenced to confinement.

In 1987, the CCA answered this question in the negative, holding:

an applicant who alleges only that he is under “restraint,” but who is not “in custody” at the time of filing, is precluded from seeking relief under Article 11.07.  [U]nless an applicant is confined pursuant to a commitment for a felony conviction, a postconviction application for habeas corpus relief from collateral consequences of another conviction will not lie under Article 11.07.

However, in 1995, the Code of Criminal Procedure was amended.

Article 11.07, § 3(c), now explicitly provides that “confinement means confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Thus, a showing of a collateral consequence, without more, is now sufficient to establish “confinement” so as to trigger application of art. 11.07. That an applicant is not in the actual physical custody of the government at the time of filing does not preclude his application nor deprive the trial court of jurisdiction to consider it.

Holding that the Court indeed has jurisdiction to entertain Applicant's petition regarding relief from the collateral consequences of his confinement, the Court granted relief and remanded the case back to the trial court for resentencing as a Class A misdemeanor.

No More Discretion for Published Cases

So, for the past few months, I've been sorting through all of the Texas criminal appellate decisions as they are released to determine, first, which cases are designated for publication, and, second, whether those published cases are worth writing about.  From now on, I'm taking away my own discretion.  I will simply post about every published criminal case, regardless of the level of intrigue I believe the case possesses (or doesn't).  Of course, those cases that I deem interesting will receive a much broader coverage, and those other cases, well...I'll just let you know that they're out there and you can read them if you want to learn more.

Here's one of those "other" cases.  The Texas Court of Criminal Appeals released its opinion in Ex Parte Michael Florence.  For any non-lawyers reading - when a CCA case begins with Ex Parte, its a dead giveaway that you're about to read a case regarding an application for a writ of habeas corpus.  Habeas Corpus is a legal action wherein a person seeks relief from (what he deems) unlawful detention.

In this case, Michael Florence, the applicant, submitted an application for a writ of habeas corpus seeking credit for pre-sentence confinement.  As the Court explained in dismissing the application (below), a writ of habeas corpus is not the correct procedure to gain the requested relief.
  

  Pre-sentence time credit claims typically must be raised by a motion for judgment nunc pro tunc filed with the clerk of the convicting trial court.  If the trial court denies the motion for judgment nunc pro tunc or fails to respond, relief may be sought by filing an application for writ of mandamus in a court of appeals.  If the court of appeals denies the application, ...relief may be sought by filing an application for writ of mandamus in this Court.  The applicant did not use that procedure.
     Instead he has sought relief by a post-conviction writ of habeas corpus under Article 11.07.  An application for writ of habeas corpus under Article 11.07 may be used to raise a claim for pre-sentence time credit if an applicant alleges that he is presently being illegally confined because he would have discharged his sentence if given the proper time credit.