Sedrick Lashawn Richie v. The State of Texas--Appeal from 23rd District Court of Wharton County

NUMBER 13-99-126-CR 
  
 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

___________________________________________________________________

SEDRICK LASHAWN RICHIE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 23rd District Court
of Wharton County, Texas.

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O P I N I O N
Before Justices Hinojosa, Chavez, and Rodriguez
Opinion by Justice Rodriguez

Pursuant to section 46.04 of the Texas Penal Code, appellant, Sedrick Richie, was found guilty of possession of a firearm by a felon.(1) By two issues, appellant argues that section 46.04 is unconstitutionally vague, and that its application violated his right to due process because it was applied retroactively. We affirm.

On March 18, 1994, appellant was convicted of aggravated unlawful possession of a controlled substance. At the time of his conviction, former Texas Penal Code section 46.05, possession of a firearm by a felon, was in effect.(2) That section was later renumbered as section 46.04 and amended, effective September 1, 1994.(3) On March 21, 1996, appellant was released from confinement. Two years later, appellant was stopped for traffic violations and a search of his vehicle revealed a .9 millimeter semiautomatic handgun. On January 20, 1999, appellant was charged with possession of a firearm by a felon. The jury found him guilty, and, on February 9, 1999, the court assessed punishment at twenty-five years in prison.

By his first issue, appellant urges that section 46.04 is unconstitutionally vague because its prohibitions are not clearly defined, and it does not give fair notice about what activity is prohibited.

Section 46.04 provides, in relevant part, that:

(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 date of the person's release from confinement following the conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever is later. . . .

Tex. Pen. Code Ann. 46.04 ( Vernon 1994).

Appellant specifically complains of the phrase "who has been convicted of a felony." He complains of the vagueness of the entire phrase because it requires one to guess that the statute applies to every felon, regardless of the date of the prior conviction.

Although due process requires that a penal statute be void for vagueness if its prohibitions are not clearly defined, see U.S. Const. amend. V & amend. XIV; Kolender v. Lawson, 461 U.S. 352, 357-58 (1983), when an appellant attacks the constitutionality of a statute, it is presumed that the statute is valid and that the legislature did not act unreasonably or arbitrarily in enacting the statute. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The burden is on the challenging appellant to prove that the statute is unconstitutional. See id. Appellate courts must uphold the statute if it can be reasonably construed to be constitutional. See Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979).

A vagueness challenge involves a two-pronged inquiry. See Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Ex parte Anderson, 902 S.W.2d 695, 698 (Tex. App.--Austin 1995, pet. ref'd). First, the court must determine whether the statute provides an ordinary law-abiding citizen with enough information to know whether his conduct risks violating the statute. Id. A statute is not vague so long as its terms are apparent to persons of common intelligence. See Cotton v. State, 686 S.W.2d 140, 141 (Tex. Crim. App. 1985). The second part of the fair warning test requires appellate courts to determine whether the statute provides enough notice to law enforcement officers to prevent arbitrary or discriminatory enforcement. See Papachristou, 405 U.S. at 162; Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989). Ex parte Anderson, 902 S.W.2d at 699. So long as a statute is sufficiently definite to avoid the possibility of arbitrary and erratic arrests and convictions, the statute is not unconstitutionally vague. See Papachristou, 405 U.S. at 162. Further, a statutory provision need not be mathematically precise; it need only give fair warning, in light of common understanding and practices. See Grayned, 408 U.S. at 110;Ex parte Anderson, 902 S.W.2d at 699. Finally, a statute is not unconstitutionally vague merely because the words or terms used are not defined. See Bynum, 767 S.W.2d at 774.

Appellant's complaint regarding vagueness is based on two appellate court opinions that interpreted the conviction element of the statute differently. At the time of appellant's arrest, only the Waco Court of Appeals had addressed whether the date of the prior conviction was an element of the offense, and if so whether the date of the conviction impacted on the applicability of the statute. See Burleson v. State, 935 S.W.2d 526, 528 (Tex. App.--Waco 1996, no pet.). In Burleson, the Waco Court held that if any element of an offense under section 46.04, including the prior conviction, occurred before the effective date of the statute, the statute did not apply. See id. Under the Waco Court's holding, because appellant's prior conviction occurred on March 18, 1994, before the effective date of the amended statute, appellant argues section 46.04 would not apply and he could not have been charged and convicted of the offense of firearm possession by a felon.

However, before appellant was convicted of possession of a firearm by a felon, the Texas Court of Criminal Appeals reviewed section 46.04 and handed down an opinion that differed from that of the Waco Court of Appeals. See Mason v. State, 980 S.W.2d 635, 641 (Tex. Crim. App. 1998). The court of criminal appeals concluded that the person's status as a felon is indeed an element of the offense, but without regard to the date of the prior conviction. Id. This result effectively overruled Burleson. Following the holding in Mason, section 46.04 would apply to the facts of this case and appellant would have been properly charged and subsequently convicted pursuant to section 46.04.

Appellant does not provide this Court, however, with any authority to support his contention that a statute is unconstitutionally vague when two appellate courts interpret an element of a statute differently, and we find none. See Tex. R. App. P. 38.1(h). Thus, we hold appellant's vagueness argument as it relates to differing opinions in the appellate courts is without merit.

Furthermore, the court of criminal appeals has held that section 46.05, now section 46.04, "is not void for vagueness because it gives 'a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute' and 'it does not encourage arbitrary and erratic arrests and convictions.'" Runo v. State, 556 S.W.2d 808, 810 (Tex. Crim. App. 1977) (citing Papachristou, 405 U.S. at 162). Accordingly, we conclude that the words "who was convicted of a felony," as used in section 46.04, have a meaning which may be understood by a person of ordinary intelligence and give enough fair notice that any felony offense may subject a felon to prosecution under this statute, regardless of the date of conviction, to prevent arbitrary or discriminatory enforcement. The statute provides enough information for an ordinary law-abiding citizen to know whether his conduct risks violating the statute. The statute can be reasonably construed to be constitutional, and is not so vague or indefinite as to violate due process of law. Appellant's first issue is overruled.

By his second issue, appellant contends that the application of the Mason ruling to his case violates the ex post facto provisions of the United States Constitution. Appellant urges the ex post facto provisions are violated because prior to the commission of his offense, section 46.04 had been judicially interpreted by the Waco Court of Appeals to apply only to persons with felony convictions after the statute's effective date, see Burleson, 935 S.W.2d at 528, and it was not until four months after the date of appellant's offense that section 46.04 was "reinterpreted" by the court of criminal appeals to apply to all persons with felony convictions, without regard to the date of the conviction. See Mason, 980 S.W.2d at 641. Appellant argues that he could not have reasonably foreseen the change in the interpretation of section 46.04.

The ex post facto clause of article one, section ten, of the United States Constitution is a limitation on the powers of the state legislatures and not state courts. See Marks v. United States, 430 U.S. 188, 191-92 (1977). However, the principle--that persons have, at the time they engage in conduct, a right to fair warning of what conduct will give rise to which criminal penalties--on which the clause is based, is fundamental to our concept of constitutional liberty, and is, thus, protected against judicial action by the due process clause. Id. at 191-93. Accordingly, a state judicial decision may not operate retroactively if it has the effect of depriving persons of fair warning of what conduct will give rise to which criminal penalties. Id.

A law can violate the ex post facto clause in one of three ways: (1) by punishing as a crime an act previously committed which was innocent when done, (2) by changing the punishment and inflicting a greater punishment than the law attached to a crime when committed, or (3) by depriving a defendant of any defense that was available at the time of the offense. See Weaver v. Graham, 450 U.S. 24, 28 (1981); Johnson v. State, 930 S.W.2d 589, 591 (Tex. Crim. App. 1996); Rodriguez v. State, 779 S.W.2d 884, 885 (Tex. App.--Corpus Christi 1989), aff'd, 808 S.W.2d 496 (Tex. Crim. App. 1991).

Appellant distinguishes Burleson and Mason in an attempt to support this argument. However, the distinctions are not relevant because under both interpretations, we reach the same result.

In Burleson, appellant draws our attention to the Waco court's conclusion that if any element of an offense under section 46.04, including the element "has been convicted of a felony," occurred before the effective date of the statute, the statute does not apply. See Burleson, 935 S.W.2d at 528. However, the Burleson court reversed the trial court, not only because of the court's determination regarding the date of the conviction, but also because the pre-1994 version of the statute governed the prosecution. See id. Because the old statute controlled, the State was required to allege and prove defendant's prior conviction involved violence or a threat of violence. See id. Because the indictment did not contain such an allegation, the court concluded the indictment was deficient, and held the trial court erred in overruling Burleson's motion to dismiss. See id. at 528-29.

Were we to apply Burleson, which is persuasive but not mandatory authority for appellant's argument, we would still conclude appellant was a convicted felon at the time of his possession of the firearm. His felony conviction occurred on March 18, 1994, six months before section 46.04 became effective. The pre-1994 version of the statute, however, still provided that a person convicted of a felony commits an offense if he possesses a firearm. Therefore, even under Burleson, we would have concluded appellant was a convicted felon when he possessed the firearm.(4) Appellant is wrong in asserting that he was prosecuted and convicted "for behavior that did not constitute a criminal offense when it happened." Appellant's behavior was a criminal offense when it occurred, even pursuant to the old statute.

Accordingly, by applying Mason and concluding section 46.05 is the appropriate statute, the ex post facto clause is not violated because the act previously committed was not innocent when done, the punishment was not greater or changed from the punishment attached when the crime was committed, and appellant was not deprived of any defense that was available at the time of the offense. See Weaver, 450 U.S. at 28; Johnson, 930 S.W.2d at 591; Rodriguez, 779 S.W.2d at 885.

Further, even with the retroactive application of Mason, appellant was not deprived of fair warning of what conduct would give rise to which criminal penalties. See Marks, 430 U.S. at 191-92. We have concluded section 46.04 is not vague. The plain language of the statute provides that "a person who has been convicted of a felony commits an offense if he possesses a firearm" before the fifth anniversary of his release for the conviction of that felony. See Tex. Pen. Code Ann. 46.04 (Vernon 1994). Additionally, in 1979, well before appellant was charged with possession of a firearm, the court of criminal appeals handed down an opinion emphasizing the statute's central purpose which is to keep "felons from going about with firearms." See Shepperd v. State, 586 S.W.2d 500, 503 (Tex. Crim. App. 1979).(5) The court of criminal appeals stated that "it is not without support in reason to conclude that a person whose crime was a . . . felony is an undesirable person to possess firearms. . . ." Id. (citation omitted). Further, the court concluded that the statute was "a legitimate exercise of the directive Article 1, Section 23, of the Texas Constitution that the wearing of arms be regulated." Id. at 503-04. Finally, the court reemphasized that "the Texas Constitution does not protect the possession of firearms by a felon. The same is true of the United States Constitution." Id. at 504 n.4. Accordingly, we conclude that appellant had, at the time he engaged in the possession of a firearm, fair warning that his conduct would give rise to a criminal penalty.

We agree with the following reasoning in Mason:

There is no rational reason to distinguish, for purposes of applicability of 46.04, between felons whose prior conviction occurred before September 1, 1994 and those whose prior conviction went down after September 1, 1994. Viewing the date of the prior conviction as being an element of 46.04 would result in the absurd consequence of omitting all felons who committed their prior felonies before September 1, 1994 from the coverage of 46.04. The legislative history of 1.18 of S.B. 1067 reveals it was written to make application of the revisions of the Penal Code prospective. . . . This should mean that all felons who are found in possession of a firearm after September 1, 1994 would be subject to prosecution under 46.04, regardless of when they received their prior conviction. After all, the commission of the offense and the formation of appellee's criminal intent came together on the alleged date upon which appellee, a felon, possessed the firearm, and not upon the date in 1991 when appellee became a felon. . . .

Mason, 980 S.W.2d at 640. Appellant's second point of error is overruled.

The judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 31st day of August, 2000.

1. Tex. Pen. Code Ann. 46.04 (Vernon 1994).

2. Former section 46.05 of the Texas Penal Code set out that a person convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.

3. In 1993, the legislature amended this law, and former section 46.05 became section 46.04, effective September 1, 1994. Section 46.04 generally provides that a person convicted of a felony commits an offense if he possesses a firearm within a certain period of time after his conviction and release from imprisonment. See Act of May 24, 1973, 63rd Leg., R.S., ch. 399, 1, 1973 Ex. Gen. Laws 883, 964 amended by Act of May 29, 1993, 73rd Leg., ch., 900, 1.01, 1993 Tex. Gen. Laws 3586, 3688.

Both sections are substantively the same in their reference to being convicted of a felony.

4. Appellant does not challenge the violent nature of the crime of aggravated possession of a controlled substance, therefore, that issue is not before us.

5. Shepperd was decided under the old statute, section 46.05, which required the prior conviction be for a violent felony. Nonetheless, the opinion is well reasoned and relevant to our analysis regarding the question of whether appellant was deprived of fair warning of what conduct would give rise to which criminal penalties.