Texas Court of Criminal Appeals: Under State Felon in Possession of Firearm Statute, Possessing Multiple Firearms Simultaneously Constitutes One Offense, Not Multiple
by Douglas Ankney
The Court of Criminal Appeals of Texas held that possession of a firearm by a convicted felon is a “circumstances offense;” consequently, simultaneously possessing multiple firearms is one offense.
Floyd Woods was charged by two indictments with the offense of unlawful possession of a firearm by a felon with each indictment alleging possession of a different firearm. The indictments alleged the same date for the offenses and relied on the same prior conviction to qualify Woods as a felon. The two firearms were found by law enforcement during the same incident.
Woods pleaded guilty to each offense and was sentenced to concurrent terms of 18 years’ imprisonment on each offense. He subsequently filed a habeas petition in state court, alleging that conviction on both offenses violates double jeopardy. In its initial findings, the habeas court determined that Woods suffered a double-jeopardy violation.
The Court defined the issue as “the proper unit of prosecution,” i.e., whether the statute punishes a felon for each firearm possessed or whether it punishes a felon possessing one or more firearms.
The statute proscribing possession of a firearm by a felon provides in relevant part: “A person who has been convicted of a felony commits an offense if he 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.” Tex. Penal Code § 46.04(a)(1).
In determining the allowable unit of prosecution, the Court first looked to the “focus” of the offense. Stevenson v. State, 499 S.W.3d 842 (Tex. Crim. 2016). The three types of focus for an offense are (1) result of conduct, (2) nature of conduct, and (3) circumstances surrounding the conduct. Id. When, as in the instant case, particular circumstances make otherwise innocent behavior criminal, the offense is a “circumstances” offense. Robinson v. State, 466 S.W.3d 166 (Tex. Crim. 2015). The Court reasoned: “Because criminal liability under the statute before us turns upon the status of a person being a felon and because it is this status that makes the otherwise innocent conduct of possessing a firearm criminal, the statute before us prescribes a ‘circumstances’ offense.”
If an offense is a “circumstances offense,” then different or discrete conduct in violation of a statute may nevertheless be part of a single crime if the circumstances are the same. Stevenson. In Stevenson, the defendant had been adjudicated a sexually violent predator (“SVP”) and had been civilly committed pursuant to a judicial order. The defendant then violated that order by (1) going to his girlfriend’s house without approval, (2) removing the GPS device and leaving the designated commitment facility without permission, and (3) failing to make progress in the treatment program. When the defendant was prosecuted for violating the commitment order, the court held that those three different acts were part of the same offense. The defendant’s otherwise innocent actions were made criminal only because he was adjudged an SVP. Similarly, in the instant case, Woods’ otherwise innocent actions were made criminal only because he was adjudged a felon, according to the Court.
The Court recognized that possessing more than one firearm may seem to be more serious conduct than possessing a single firearm. However, the same could be said for multiple violations of a civil commitment order. The trier of fact is free to take into account how many firearms the defendant possessed when it assesses punishment. Thus, the Court concluded Woods suffered a double jeopardy violation and was entitled to relief.
Accordingly, the Court vacated his conviction. See: Ex parte Woods, 2022 Tex. Crim. App. LEXIS 643 (2022).
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