United States of America v. LAWRENCE CHRISTOPHER FIX

New Orleans, LA - Criminal defense lawyer represented defendant

with a felon in possession of a firearm charge.

In May 2000, Fix was indicted in the instant

federal proceeding for being a felon in

possession of a firearm. He and the government stipulated to hisfelony conviction for arson and to the factssurrounding his arrest. Fix

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filed a motion to dismiss the federal indictment, asserting that his arson conviction

could not serve as a predicate offense under 18

U.S.C. § 921(a)(20) because the state court

had set aside his probation. The federal district court denied that motion, citing United

States v. Padia, 584 F.2d 85, 86 (5th Cir.

1978). Fix entered a conditional plea of guilty

and, pursuant to FED.R.CRIM. P. 11(a)(2), reserved the right to appeal the denial of his motion to dismiss the indictment.

II.

Fix presents one issue on appeal: "Do[] the

prior proceedings in state court qualify [Fix]

for the exemption contained in 18 U.S.C.

§ 921(a)(20)?” That exemption, in regard to

whether a person found in possession of a

firearm is still considered a "felon” under

§ 922(g)(1), states:

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 civilrightsrestored

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.

18 U.S.C. § 921(a)(20) (2001).

Fix argues that TEX. CODE CRIM. PROC.

ANN. art. 42.12, § 20(a) completely restores

his civil rights. That statute provides:

Ifthe judge dischargesthe defendant under this section, the judge may set aside

the verdict or permit the defendant to

withdraw his plea, and shall dismiss the

. . . 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 . . . .

TEX. CODE CRIM. PROC. ANN. art. 42.12,

§ 20(a) (Vernon Supp. 2001).

Fix claims that his previous felony conviction cannot serve as a predicate offense under

§ 921(a)(20) because he successfully completed probation for that conviction. Consequently, he argues, the district court erroneously denied his motion to dismiss the indictment.1

No person "who has been convicted in any

court of a crime punishable by imprisonment

for a term exceeding one year” may possess a

firearm "in or affecting” interstate commerce.

§ 922(g)(1).2

The law of the jurisdiction in

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Fix claims that his rights were restored by

individualized certification under art. 42.12, § 20.

We disagree. Fix received an order from a Texas

state court granting his motion and stating that he

would "be released fromfurther probation, granted

a new trial, and said probation be set aside, and

that this cause be dismissed from the docket of this

Court.” The order did not state that the conviction

was expunged or erased. Thus, Fix's civil rights

were passively restored by operation of law under

art. 42.12, § 20.

2

Section 922(g)(1) provides:

(g) It shall be unlawful for any personSS

(1) who has been convicted in any court of,

a crime punishable by imprisonment for a

term exceeding one year; . . .

(continued...)

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which the proceedings were held determines

what constitutes a crime.3

So, Texas law determines whether Fixwas a convicted felon for

purposes of § 922(g)(1). See, e.g., United

States v. Dupaquier, 74 F.3d 615, 617 (5th

Cir. 1996).

III.

In United States v. Daugherty, No.

00-20871, 2001 U.S. App. LEXIS 19201 (5th

Cir. Aug. 28, 2001), we upheld a conviction

under § 922(g)(1) in a somewhat different situation. The defendant had served his period of

probation, and the state court merely ordered

that "the Defendant is discharged from

probation.” Id. at *1 n.1. As here, the defendant's rights "were passively revived by

operation of law, not by individualized certification.” Id. at *7. We concluded, based on

applicable federal and Texas precedent, that,

for purposes of § 922(g)(1), the defendant "remained convicted even aftersuccessfully completing probation.” Id. at *13 (footnote omitted).

Fix accurately argues that his circumstance

is materially distinguishable from that in

Daugherty. Specifically, as we have noted, the

state court order discharging Fix from probation also granted him a new trial and directed that the cause be dismissed. As Fix notes,

TEX. CODECRIM. PROC. ANN. art. 40.08 stated, at the time of Fix's dismissal,4

that "[t]he

effect of a new trial is to place the cause in the

same position in which it was before any trial

had taken place. The former conviction shall

be regarded as no presumption of guilt nor

shall it be alluded to in the argument.”

In its brief on appeal, the government

makes no effort to address art. 40.08. Instead,

it argues that "[w]hile the government does

not dispute that Fix's core civil rights have

been restored by operation of Texas law, the

state's restrictions on his right to possess

firearms trigger the "unless clause” of § 921-

(a)(20), and preclude him from receiving the

benefit of the provision.” This argument is

untenable.

We need never reach the "unless clause” in

Fix's case, because, byoperation ofTexaslaw,

it is as though he had never been convicted.

Once a motion for new trial is granted, "the

case remained . . . in the same position as

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(...continued)

to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which

has been shipped or transported in interstate

or foreign commerce.

18 U.S.C. § 922(g)(1) (2001).

3 Beecham v. United States, 511 U.S. 368, 371

(1994).

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.

18 U.S.C. § 921(a)(20) (2001).

4 This article was repealed in 1986 but was in

effect at the time of Fix's discharge. See Acts

1985, 69th Leg., ch. 685, § 4.

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before the trial . . . took place.” Reed v. State,

516 S.W.2d 680, 682 (Tex. Crim. App. 1974)

(citing art. 40.08).

It may have been a fortuity that the state

court added the grant of a new trial to the order terminating probationary status, but we

cannot ignore the effect of that action. For example, "if a motion for new trial is granted,

jeopardy does not attach.” Franklin v. State,

693 S.W.2d 420, 432 (Tex. Crim. App. 1985)

(citing art. 40.08; Whitehead v. State, 286

S.W.2d 947 (Tex. Crim. App. 1956));see also

Carter v. State, 848 S.W.2d 792, 796 (Tex.

App.SSHouston [14th Dist.] 1993, pet. ref'd).

This completely underminesthe government's

assertion that Fix's argument based on art.

40.08 "begs the question of whether the state

could try him a second time.” By making this

pronouncement, however, the government

doesreveal that it believesthe question of jeopardy is significant here.

In summary, because the state court granted Fix a new trial,5

he stands in the shoes of

one who was never convicted. Accordingly,

he cannot be under disability or restriction in

regard to the possession of firearms. There is

no predicate offense, so the conviction of possession of a firearm by a felon cannot stand

The judgment of conviction and sentence is

REVERSED, and this matter is REMANDED

for further appropriate proceedings