Summary
holding a defendant's prior convictions could not support a felon-in-possession conviction because the trial court had dismissed the indictment and released the defendant from all penalties and disabilities
Summary of this case from Morris v. McAllesterOpinion
CAUSE NO. A-09-CR-116-LY.
August 18, 2009
ORDER GRANTING MOTION TO DISMISS
Before the Court are Defendant Robert Herbert Beck's Motion to Dismiss and Incorporated Memorandum of Law filed July 17, 2009 (Doc. #39) and the Government's Trial Brief Regarding Defendant's Motion to Dismiss filed July 24, 2009 (Doc. #59). Defendant Robert Herbert Beck is charged in a two-count indictment. Count 2 charges Beok with being a felon in possession of a firearm which had been shipped and transported in interstate commerce, in violation of Title 18, United States Code, Section 922(g)(1). In his motion to dismiss, Beck argues that his prior convictions may not be used as predicate offenses and requests that the Court dismiss Count 2.
The Court declined to consider the motion before trial, holding that the Government had the burden to prove beyond a reasonable doubt at least one underlying felony offense. The Court denied the motion without prejudice to Beck's reurging it at trial. Trial of this cause began July 27, 2009. During trial, Beckreurgedhis motion to dismiss. On July 29, 2009, the Court granted Beck's motion to dismiss Count 2 of the indictment. This Order supplements the Court's findings and conclusions stated in open court on July 29.
Factual Background
On January 4, 1979, before the 26th Judicial District Court of Williamson County, Texas, Beck pleaded guilty to possession of a controlled substance. The court sentenced Beck to a term of two years' probation. On October 30, 1980, the court terminated the probation and rendered an order stating, in pertinent part: "the Defendant is hereby permitted to withdraw his plea of guilty previously entered herein and it is ORDERED by the court that the indictment heretofore returned against the Defendant in this cause is in all things dismissed."
Thirteen years later, Beck again pleaded guilty to possession of a controlled substance, this time before the 147th Judicial District Court of Travis County, Texas. The court sentenced Beck to a term of four years' probation. Upon Beck's completion of the term in September 1998, the Court rendered an order discharging the probation, stating:
that the judgment of conviction theretofore rendered be and the same is hereby set aside; that the original sentence imposed is amended and modified to conform to the supervision period satisfactorily completed by the defendant; and the indictment against such defendant is hereby dismissed, and the defendant be, and (s)he [sic] released from all penalties and disabilities resulting from the crime or offense of which (s)he has been convicted, except that proof of said conviction shall be known to the Court should the defendant again be convicted of any criminal offense.
It is undisputed that both state convictions were for felony offenses under Texas law.
Discussion
By placing Beck's prior convictions in evidence, the Government has satisfied its initial burden of proving Beck's previous felony convictions. Although Beck served probated sentences for each offense, the convictions may still qualify as prior felony convictions under Section 922(g) of Title 18 of the United States Code. See United States v. Daugherty, 264 F.3d 513, 517 (5th Cir. 2001).
Beck argues that because the state courts specifically dismissed both indictments against him, the convictions cannot serve as predicate offenses, because they no long exist.
The Government responds, directing this Court to United States v. Padia, 584 F.2d 85 (5th Cir. 1978). In Padia, the court held that a Texas court order setting aside a guilty verdict and dismissing an indictment did not alter Padia's convicted-felon status for purposes of federal law. Padia, 584 F.2d. at 86. The court emphasized that post-conviction action by a state trial court did not control where a function of federal law was concerned. Id. The law, however, has changed since 1978.
After Padia, Congress determined that the law of the convicting jurisdiction would control:
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.
Firearms Owners' Protection Act, ch. 44, § 101, 100 Stat. 449, 449-50 (1986) (current version at 18 U.S.C. § 921(a)(20) (2000)). See also Beecham v. United States 511 U.S. 368, 371 (1994) (holding that what constitutes conviction "is governed by the law of the convicting jurisdiction"). Because Beck's convictions occurred in Texas, Texas law governs whether the convictions may serve as predicate offenses. See Daugherty, 264 F.3d. at 515.
A conviction may not serve as a predicate offense if the defendant's civil rights have been restored. See Daugherty, 264 F.3d. at 515. A mere discharge from probation is not sufficient to restore a defendant's civil rights. Daugherty, 264 F.3d at 516-17. In Daugherty, the convicting court later discharged the defendant from probation. Id. at 514 n. 1. In analyzing the discharge order, the circuit court distinguished between a trial court's restoring civil rights "affirmatively with individualized certification" and "passively with automatic reinstatement" Id. at 515. The court held that the defendant's discharge of probation was simply a passive restoration of the defendant's rights and did not erase the conviction. Id. at 517.
In United States v. Fix, Fix was sentenced to three years' probation by the state convicting court. 264 F.3d 532, 533 (5th Cir. 2001). That court later "set aside the sentence of probation, grant[ed] a new trial, and dismiss[ed] the matter." Id. The circuit court distinguished the case from Daugherty, placing emphasis on Texas state law, in effect at the time, that once a motion for new trial is granted, the case reverts to the position it held before trial. Id. at 535 (citing Reed v. State, 516 S.W.2d 680, 682 (Tex.Crim.App. 1974)). The court held that because the state court granted a new trial, Fix stood "in the shoes of one who was never convicted." Id. at 535.
Altbough Fix is limited to its facts, which are slightly different than those presented here, this court finds its logic persuasive. See id. at n. 5. Current Texas law provides as follows:
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. . . .
TEX. CODE CRIM. PROC. ANN. art. 42.12 § 20(a) (West Supp. 2006). That is what the state court did in Fix and that is what the state court did in each instance here. Like Daugherty and Fix, the restoration of Defendant's rights was passive, but like Fix and unlike Daugherty, the state courts in each instance dismissed the indictment against Beck.
The Government argues that Fix is inapplicable because Beck was not also granted a new trial. This Court is unpersuaded. The key event is the dismissal of the indictment. Once the indictment is dismissed, the case ceases to exist. The conviction has been "set aside" under state law. See Firearms Owners' Protection Act, supra.
The Texas Court of Criminal Appeals has so construed Texas law. In Cuellar v. State, 70 S.W.3d 815 (Tex.Crim.App. 2002), the court observed that the Texas Code of Criminal Procedure had "two entirely different types of `discharge'" supervision." Id. at 818 (construing TEX. CODE CRIM. PROC. ANN. art. 42.12 § 20(a)). The first occurs when a person has fulfilled the conditions of supervision. Id. That person must be discharged from supervision but is still considered a felon. Id. The second, less common type of discharge "is a matter of `judicial clemency' within the trial court's sole discretion." Id. at 818-19. If the trial judge determines the person has been rehabilitated, "the trial 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.'" Id. at 819 (citations omitted). If the court exercises this discretion, "the conviction is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom `released from all penalties and disabilities' resulting from the conviction." Id. (citation omitted).
Each of the orders regarding Beck's previous convictions is consistent with the second, discretional type of discharge. The 1980 order specifically permits Beck to withdraw his guilty plea and dismisses the indictment against him. The 1998 order sets aside the conviction, dismisses the indictment; and further releases Beck "from all penalties and disabilities resulting from the crime." The effect of the affirmative, individualized actions of the state trial courts is to place Beck in the same position as one who was never convicted. The Government may not use either of Beck's prior felony convictions as a predicate offense to support Count 2 of the indictment. As a result, Beck is under no disability or restriction in regard to the possession of firearms.
IT IS THEREFORE ORDERED that Defendant Robert Herbert Beck's Motion to Dismiss (Doc. #39) is GRANTED. IT IS FURTHER ORDERED that Count 2 of the two-count indictment against Defendant Robert Herbert Beok is hereby DISMISSED.