Benson Dorsey v. State

Opinion issued December 12, 2019
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-18-00520-CR, 01-18-00521-CR, 01-18-00522-CR
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BENSON DORSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case Nos. 1569925, 1570348, 1570349
DISSENTING OPINION
Benson Dorsey appeals from two judgments of conviction for the offense of
unlawful possession of a firearm. See TEX. PENAL CODE § 46.04(a). He contends that
these two convictions violate the constitutional guarantee against double jeopardy
because they subject him to multiple punishments for the simultaneous possession
of several firearms. Because Dorsey is correct, I respectfully dissent from the
majority’s contrary holding. I concur with the remainder of the majority opinion.
BACKGROUND
A grand jury issued two indictments against Dorsey for unlawful possession
of a firearm. In the first indictment, the state alleged that Dorsey possessed a firearm
after having been convicted of the felony offense of possession with intent to deliver
a controlled substance in 2012 and before the fifth anniversary of his release from
supervision under parole for this drug offense. See TEX. PENAL CODE § 46.04(a)(1).
In the second indictment, the state alleged that Dorsey possessed a firearm at a
location other than his residence after having been convicted of the felony offense
of possession of a controlled substance in 2001. See id. § 46.04(a)(2).
Dorsey pleaded guilty to both of the charged offenses. The trial court entered
separate judgments of conviction and assessed Dorsey’s punishment at 20 years of
confinement for the first offense and 25 years of confinement for the second one.
The trial court ordered that these two sentences are to run concurrently.
The material facts underlying these two convictions are undisputed. Dorsey
does not dispute his 2001 and 2012 felony convictions. Nor does he dispute that he
had not yet been released from supervision under parole for the latter conviction at
the time of his arrest for unlawful possession of a firearm. When law enforcement
officers searched Dorsey’s residence, they found five loaded firearms, including two
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revolvers, two pistols, and one shotgun. Dorsey apparently had fired one of these
firearms at the complainant’s vehicle multiple times while driving on the highway
shortly before law enforcement searched his residence.
DISCUSSION
Applicable Law
The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution bars a state from imposing multiple punishments for the same offense
in a single prosecution. Stevenson v. State, 499 S.W.3d 842, 850 (Tex. Crim. App.
2016). An analysis as to whether the state has done so turns on how many punishable
offenses the legislature intended to create. See id. When, as here, the charged
offenses are set forth in a single statutory provision, we must decide what the
allowable unit of prosecution is based on the statute’s construction and the gravamen
of the offense, and how many units were shown by the evidence at trial. See id.
Texas law makes it unlawful for a felon to possess a firearm under two distinct
sets of circumstances. Section 46.04(a) of the Penal Code provides 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 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; or
(2) after the period described by Subdivision (1), at any location
other than the premises at which the person lives.
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TEX. PENAL CODE § 46.04(a). Thus, a felon never may possess a firearm outside of
the premises where he lives. Id.; State v. Mason, 980 S.W.2d 635, 638–39 (Tex.
Crim. App. 1998). Nor may a felon possess a firearm on the premises where he lives
within five years of the date of his release from confinement or supervision,
whichever is later. TEX. PENAL CODE § 46.04(a); Mason, 980 S.W.2d at 638–39.
After this five-year period, however, a felon may possess a firearm on the premises
where he lives. TEX. PENAL CODE § 46.04(a); Mason, 980 S.W.2d at 638–39.
Under section 46.04(a), the gravamen of the offense is the defendant’s status
as a felon. See Mason, 980 S.W.2d at 638–39; see also Tapps v. State, 294 S.W.3d
175, 178–79 (Tex. Crim. App. 2009) (statute’s purpose is to criminalize possession
of firearms by felons). Subdivisions (1) and (2) specify the two situations in which
it is unlawful for a felon to possess a firearm: off his premises and on his premises
within a defined timeframe. See Fagan v. State, 362 S.W.3d 796, 800 (Tex. App.—
Texarkana 2012, pet. ref’d); Macias v. State, 136 S.W.3d 702, 706 (Tex. App.—
Texarkana 2004, no pet.). These subdivisions do not set forth separate offenses.
Analysis
Dorsey was convicted under both subdivisions of section 46.04(a). The
majority holds that this does not violate the guarantee against double jeopardy
because these subdivisions state separate offenses. The majority reasons:
[A]n offense can occur in both of two separate circumstances:
anywhere, within five years of release from confinement, and thereafter
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in any place other than the premises at which the felon lives. Benson
had multiple felony convictions, of various ages. While most were
older, and therefore relevant only to section 46.04(a)(2), at least one
placed him in the ambit of section 46.04(a)(1), which prohibits a felon
from possessing a firearm anywhere.
The majority’s reasoning, however, disregards the structure, language, and
purpose of section 46.04(a). Subdivision (1) prohibits a felon from possessing a
firearm anywhere, unless five years has elapsed since he was released from
confinement or supervision, whichever is later. TEX. PENAL CODE § 46.04(a)(1);
Mason, 980 S.W.2d at 638–39. After this five-year period, subdivision (2) continues
to prohibit a felon from possessing a firearm anywhere except for a single location—
the premises where the felon lives. TEX. PENAL CODE § 46.04(a)(2); Mason, 980
S.W.2d at 638–39. The statutory scheme is a bifurcated one; under it, a felon either
is barred from possessing firearms altogether or is barred from possessing them
anywhere but where he lives. A felon is never simultaneously subject to both
subdivisions.
In 2012, Dorsey was convicted of the felony offense of possession with intent
to deliver a controlled substance. At the time of Dorsey’s arrest for unlawful
possession of a firearm, he had not yet been released from supervision under parole
for the 2012 drug offense. Dorsey therefore could not possess a firearm anywhere.
See TEX. PENAL CODE § 46.04(a)(1). Anywhere by definition includes the premises
where Dorsey lived, which makes subdivision (2) altogether inapplicable to him.
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The majority reasons that Dorsey can be convicted under both subdivisions
because the state relied on different predicate felonies, the one from 2012 and the
other from 2001. But subdivisions (1) and (2) can only be read as referring to the
same underlying felony. Subdivision (1) criminalizes firearm possession by a felon
anywhere “after conviction and before the fifth anniversary of the person’s release”
while subdivision (2) does so anywhere other than the felon’s home “after the period
described by Subdivision (1).” TEX. PENAL CODE § 46.04(a). Thus, the statute does
not allow for simultaneous convictions under both subdivisions based on different
underlying felonies.
The majority further reasons that Dorsey’s convictions do not violate the
guarantee against double jeopardy because he “possessed multiple firearms” and did
so “in two separate locations.” Neither circumstance supports the majority’s result.
Dorsey simultaneously possessed all five of the firearms at issue. See TEX.
PENAL CODE § 1.07(a)(39) (possession means “actual care, custody, control, or
management”); Powell v. State, 112 S.W.3d 642, 644 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d) (applying this definition in section 46.04(a) prosecution).
Section 46.04(a)’s language does not suggest that the legislature intended to
treat simultaneous possession of multiple firearms differently from possession of a
single firearm. The statute forbids a felon from possessing “a firearm,” but this does
not mean that each firearm is its own unit of prosecution. The majority correctly
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concludes that section 46.04(a) is a circumstance-of-conduct crime; the legislature’s
use of the indefinite article “a” as to a circumstance-of-conduct crime is not
indicative of the allowable unit of prosecution. Stevenson, 499 S.W.3d at 851–52.
Nor does section 46.04(a)’s language lend any support to the majority’s notion
that the legislature intended to impose multiple convictions for the simultaneous
possession of firearms in separate locations as opposed to a single place. On the
contrary, Dorsey was barred from possessing a firearm anywhere—irrespective of
location—because five years had not yet elapsed from the date of his release from
supervision. See TEX. PENAL CODE § 46.04(a)(1).
The majority does not cite a single decision in which a Texas appellate court
has affirmed convictions under both subdivisions (1) and (2) of section 46.04(a). I
have not been able to find one either. Because Dorsey’s case is one of first
impression, I think it is useful to consider federal law on this general subject.
Section 922(g)(1) of title 18 of the United State Code is the equivalent federal
statute making it unlawful for a felon to possess a firearm. Jordan v. State, 56 S.W.3d
326, 331 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). In relevant part, the
federal statute makes it unlawful for anyone who has been convicted of a crime
punishable by imprisonment for more than a year to possess in or affecting
commerce any firearm. 18 U.S.C. § 922(g)(1). The structure and language of section
922(g)(1) differ from our statute. The gravamen, however, is the same; the purpose
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of section 922(g)(1) is to criminalize the possession of firearms by felons based on
their status as felons. United States v. Berry, 977 F.2d 915, 919 (5th Cir. 1992).
The federal courts have held that multiple convictions under section 922(g)(1)
“for the simultaneous possession of multiple weapons” violate the constitutional
guarantee against double jeopardy. United States v. Hope, 545 F.3d 293, 296 (5th
Cir. 2008); see also United States v. Hodges, 628 F.2d 350, 351 (5th Cir. 1980)
(interpreting statutory predecessor to section 922(g)(1) and citing decisions from
federal appellate courts in support of proposition that it is “well-established that the
simultaneous, undifferentiated possession of multiple firearms constitutes only one
offense”). Similarly, the federal courts have held that multiple convictions under
section 922(g)(1) for uninterrupted possession of a firearm in multiple locations over
time are a double-jeopardy violation. See Hope, 545 F.3d at 296–97.
The Fifth Circuit’s Berry decision is illustrative. In that case, police officers
searched the defendant’s motel room and car under a search warrant. See Berry, 977
F.2d at 917. They found three firearms, one of which was located in the defendant’s
car. See id. The trial court convicted the defendant of and sentenced him for three
counts of unlawful possession of a firearm by a felon under section 922(g)(1). Id. at
917, 919. The Fifth Circuit vacated these convictions, holding that multiple
convictions violated the guarantee against double jeopardy. Id. at 919–20. The court
noted that the “evil Congress sought to suppress by section 922 was the arming of
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felons; the section is based on the status of the offender and not the number of guns
possessed.” Id. at 919. Simultaneous possession of the three firearms in different
locations thus was a single punishable criminal offense. See id. at 919–20.
Nothing in the structure, language, or purpose of section 46.04(a) compels a
result different from the one the federal courts have reached in interpreting section
922(g)(1). I therefore would hold that Dorsey’s multiple convictions and
punishments under section 46.04(a) violate the guarantee against double jeopardy.
CONCLUSION
When there is a double-jeopardy violation, we must retain the conviction for
the most serious offense—generally the one for which the greatest punishment was
assessed—and vacate the other conviction. See Bien v. State, 550 S.W.3d 180, 188–
89 (Tex. Crim. App. 2018). As the majority does not do so, I respectfully dissent.
Gordon Goodman
Justice
Panel consists of Justices Keyes, Kelly, and Goodman.
Justice Goodman, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
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