Brad Dennis McClure v. The State of Texas--Appeal from 2nd District Court of Cherokee County

NO. 12-05-00209-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BRAD DENNIS MCCLURE, APPEAL FROM THE 2ND

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Brad Dennis McClure appeals his conviction for unlawful possession of a firearm by a felon. In two issues, he contends that the evidence is legally and factually insufficient to prove that he possessed a firearm or that he possessed a firearm before the fifth anniversary of his release from confinement following a felony conviction. We reverse and render a judgment of acquittal.

Background

On March 4, 2005, police officers served a search warrant on what they believed to be Appellant s home. Appellant was not present, but the police found items of his personal effects, his wife and children, and four rifles in the home. Appellant is a felon, having previously been convicted of possession of a controlled substance. A Cherokee County grand jury indicted Appellant for possessing a firearm before the fifth anniversary of his release from confinement following a felony conviction.

The case was tried to a jury, and Appellant was found guilty. The jury assessed punishment at eight years of imprisonment. This appeal followed.

Legal Sufficiency

In his first issue, Appellant argues that the evidence is legally insufficient to show that he possessed the rifles or that his possession occurred within the five years immediately after his release from confinement following a felony conviction.

Standard of Review

In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). If the evidence is legally insufficient, the appropriate remedy is an acquittal. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

The Record

To support a conviction for unlawful possession of a firearm, as authorized by the indictment in this case, the State was required to prove that Appellant (1) had been convicted of a felony; (2) and he intentionally or knowingly possessed a firearm before the fifth anniversary of his release from confinement following conviction for the felony offense. See Tex. Pen. Code Ann. 46.04(a)(1) (Vernon 2005); Martinez v. State, 986 S.W.2d 779, 780 (Tex. App. Dallas 1999, no pet.).1

During the trial the parties stipulated that Appellant had previously been convicted of a felony. A stipulation was read into the record, and a written stipulation was prepared. Omitting the formal parts, the stipulations are as follows:

Oral Stipulation: The State will stipulate that Brad Dennis McClure is one and the same individual that was convicted in cause number 14810 for possession of a controlled substance in Cherokee County.

Written Stipulation: The Brad Dennis McClure on trial herein in cause No. 16064 for Felon in Possession of a Firearm is one and the same Brad Dennis McClure convicted of a felony, to-wit: Possession of a Controlled Substance in Cause no. 14801.2

The oral stipulation was ratified by Appellant s counsel immediately after it was presented to the jury, and the written stipulation was signed by Appellant and his counsel. The parties did not stipulate that Appellant s possession of the firearms came within five years of his release from confinement for a felony offense.

The State presented no evidence at trial that Appellant s possession of the firearms came within five years of his release from confinement. The disposition of this issue, then, turns on whether Appellant may complain about the sufficiency of the evidence on this point. A party may stipulate to any fact or to any element of an offense. Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005). When a criminal defendant does so, the stipulation is a kind of a judicial admission, and he will not be heard to question the stipulated fact on appeal. Id.

Analysis

In Smith v. State, 158 S.W.3d 463, 463 (Tex. Crim. App. 2005), the court of criminal appeals considered a case where the defendant stipulated to two prior convictions that were the jurisdictional predicate for a felony driving while intoxicated allegation. One of the convictions was too remote, and the evidence of jurisdiction would have been insufficient without it. Id. at 464. In affirming the conviction, the court noted that the timing of the prior convictions was not an element of the offense and that the appellant s stipulation to the prior convictions meant he lost the ability to complain about the sufficiency of the proof on that issue. Id. at 465.

Several months later, the court reached a similar conclusion in Bryant. See Bryant, 187 S.W.3d at 400. The court, citing McCormick on Evidence, concluded that a stipulation had the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Id.; 2 John W. Strong, et al., McCormick on Evidence 254 (5th ed. 1999). The court also cited a case from the Fifth Circuit Court of Appeals for the proposition that once a stipulation is entered, even in a criminal case, the government is relieved of its burden to prove the fact which had been stipulated by the parties. Id. at 401 (citing United States v. Branch, 46 F.3d 440 (5th Cir. 1995)).

As a general proposition, a stipulation is regarded as a contractual agreement between the parties. See Howeth v. State, 645 S.W.2d 787, 789 (Tex. Crim. App. 1983). If there is an ambiguity in a stipulation, it is to be resolved in favor of the party in whose interest the stipulation was made. See O'Conner v. State, 401 S.W.2d 237, 238 (Tex. Crim. App. 1966); St. Paul Guardian Ins. Co. v. Luker, 801 S.W.2d 614, 620 (Tex. App. Texarkana 1990, no writ); Bender v. State, 739 S.W.2d 409, 412 (Tex. App. Houston [14th Dist.] 1987, no pet.). A stipulation is to be viewed in the light most favorable to the judgment, and the trier of fact is entitled to draw reasonable inferences and deductions from a stipulation. See Yorko v. State, 699 S.W.2d 224, 226 (Tex. Crim. App. 1985).

The stipulations in this case were not ambiguous and were simply an admission that Appellant had been convicted of a felony. It is plain, based on Smith and Bryant, that Appellant may not contest a fact to which he has stipulated, and Appellant s stipulation that he had a prior felony conviction relieved the State of its burden to prove that fact. But it did not serve to relieve the State of its burden to prove that Appellant was within five years of his release from confinement at the time of the present offense. See e.g.,Braxton v. United States, 500 U.S. 344, 350 51, 111 S. Ct. 1854, 1858 59, 114 L. Ed. 2d 385 (1991) (Stipulation that defendant shot through a door would not support conclusion that he shot at a marshal or that he shot with the requisite intent.); United States v. Gilliam, 167 F.3d 628, 639 (D.C. Cir. 1999) (Government obligated to prove every element of the charged offense absent a stipulation or a waiver by the defendant of his right to put the government to its proof.); Stell v. State, 496 S.W.2d 623, 626 (Tex. Crim. App. 1973) (Evidence will fail when stipulation is insufficient to prove element of offense.); Bender, 739 S.W.2d at 412 13 (Venue could not be inferred from stipulation but could be inferred from the other evidence.);Tompkins v. State, 607 S.E.2d 891, 893 (Ga. 2005) (Reversal appropriate where stipulation did not include agreement as to venue and the record contained no other evidence of venue.).

The timing of Appellant s release from confinement is different from the remoteness of the prior conviction in Smith. In Smith, the timing of the prior convictions was not an element of the offense, and so the stipulation to the prior convictions provided all the proof the State needed on that issue. Smith, 158 S.W.3d at 465. By contrast, the timing of the prior conviction was an element of the offense in this case. This case is also different from Bryant where the issue was not the breadth of the stipulation but whether the appellant could complain about a stipulated fact. See Bryant, 187 S.W.3d at 399 400.

We have considered the argument that the language in Bryant that a defendant waive[s] any right to contest the absence of proof on the stipulated elements [emphasis added] could be construed to mean that Appellant could not raise this issue because he stipulated to the prior conviction element. See id. at 401. But, we do not read Bryant to mean that a specific stipulation to one fact must be considered to be a stipulation to another just because they are grouped in the same clause or element of a charging instrument. Even if the prior conviction part of this offense is a single element, it contains two parts, and Appellant s specific concession of one of them is not a concession of the other, especially in light of the specificity of the stipulation.

In the end, the court of criminal appeals has determined that a stipulation is a judicial admission. We are mindful that the law favors stipulations and that they are to be construed liberally. However, the judicial admission in this case is discrete and unambiguous. Appellant agreed not to contest the fact that had been convicted of a felony in a certain case, nothing more.

We have carefully searched the record for evidence (the State directs us to none) that less than five years had elapsed from Appellant s release from confinement. There is no such evidence. Moreover, the sum of the judicial admission and the evidence adduced at trial is insufficient to prove that Appellant was within five years of his release from confinement following conviction for a felony offense.

Appellant may complain that the evidence does not show that he was within five years of his release because he did not stipulate to that fact. The date of his release, as it relates to the possession of firearms, is an element of the offense. Under Texas law, a felon may lawfully possess a firearm in his home unless he is within five years of his release from confinement or supervision. Tex. Pen. Code Ann. 46.04(a)(2). On this record, we cannot conclude that Appellant was within five years of his conviction or release from confinement when the rifles were found in his home. Cf. Orona v. State, 52 S.W.3d 242, 247 (Tex. App. El Paso 2001, no pet.) ( Appellant stipulated that he had previously been convicted as alleged in the indictment [emphasis added]. ).

Because we sustain this part of Appellant s first issue, we need not reach Appellant s argument that he did not possess the rifles or his second issue regarding the factual sufficiency of the evidence. See Tex. R. App. P. 47.1.

Disposition

We reverse the judgment of the trial court and render a judgment of acquittal.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

1 A felon may not possess a firearm for five years after his release from confinement, community supervision, parole, or mandatory supervision, whichever is later. Tex. Pen. Code Ann. 46.04(a)(1). For the sake of simplicity, and because it is not an issue, we will use the language of the indictment. We are mindful that at least one court has not invalidated a conviction where there was not proof of the timing of the release from confinement and the felon was not in his home when he possessed the firearm. See Nguyen v. State, 54 S.W.3d 49, 56 (Tex. App. Texarkana 2001, pet. ref d). The State has not made that argument here, and at trial the State argued that the rifles were found in Appellant s home.

2 The different cause numbers are reproduced as they appear in the record. The grand jury alleged that the cause number was 14801.