IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 00-20871

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MITCHELL RAY DAUGHERTY,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

August 28, 2001

Before JOLLY, SMITH, and WIENER,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mitchell Daugherty appeals his conviction

of violating 18 U.S.C. § 922(g)(1) (2001),

which prohibits convicted felons from possessing firearms “in and affecting” interstate

commerce. We affirm.

I.

Daugherty was convicted in state court of

delivery of marihuana and injury to a child and

was imprisoned. In 1985, the state court

released him and placed him on “shock probation” for ten years. In 1995, the court discharged him from probation.1

InMarch2000, police officersresponded to

a disturbance call placed by two sistersstaying

in a motel room. They complained that

1 The order read, in pertinent part: “and it

further appearing to the satisfaction of the Court

that the period of probation herein has expired, and

that all conditions of probation have been

satisfactorily fulfilled, . . . the Defendant is discharged from probation.”
2

Daugherty had repeatedly harassed and

threatened them. The officers found Daugherty standing outside the motel room, talked to

him, and searched him for weapons, finding

none. They then spoke with the two sisters,

who said Daugherty had a weapon in histruck.

One of the officers found a rifle, which

Daugherty admitted he owned and which was

manufactured in Egypt and imported through

Knoxville, Tennessee. 

II.

Daugherty was indicted for being a felon in

possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). He filed

a motion to dismiss the indictment on the

ground that his two state felony convictions

did not prohibit himfrompossessing a firearm,

because he had been discharged from probation for both offenses. The court denied

that motion. 

Daugherty consented to a bench trial based

on a written stipulation of facts. After the

government had presented its case, Daugherty

moved for a judgment of acquittal under FED.

R. CRIM. P. 29 on the basis that there was an

insufficient nexus with interstate commerce.

Daugherty again argued that his completion of

probation allowed him to possess a firearm.

The court overruled both motions and found

Daugherty guilty.

III.

The question whether a felony conviction

may serve as a predicate offense for a prosecution for being a felon in possession of a firearm

pursuant to § 922(g)(1) is “purely a legal one.”

United States v. Thomas, 991 F.2d 206, 209

(5th Cir. 1993). Consequently, “our review is

plenary.” Id. We affirm a § 922(g)(1)

convictionifsubstantial evidence existsto support it. United States v. Ybarra, 70 F.3d 362,

364 (5th Cir. 1995). The court must decide

“whether anysubstantialevidence supportsthe

finding of guilty,” id. (quoting United States v.

Davis, 993 F.2d 62, 66 (5th Cir. 1993)), and

“whether the evidence is sufficient to justify

the trial judge, as trier of the facts, in

concluding beyond a reasonable doubt that the

defendant was guilty.” Id. 

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

which the proceedings were held determines

what constitutes a crime.3 So, Texas law

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; . . .

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

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3

determines whether Daugherty was a convicted felon for purposes of § 922(g)(1). See,

e.g., United States v. Dupaquier, 74 F.3d 615,

617 (5th Cir. 1996). 

“Not all . . . convictions, however, count

for purposes of § 922(g) . . . .” Caron v.

United States, 524 U.S. 308, 313 (1998). A

conviction for which the defendant’s civil

rights have been restored is not a predicate

offense “unless such . . . restoration of civil

rights expressly provides that the person may

not ship, transport, possess, or receive firearms.” § 921(a)(20).4

Section 922(g)(1) has three requirements:

“(1) that the defendant previously had been

convicted of a felony; (2) that he possessed a

firearm; and (3) that the firearm traveled in or

affected interstate commerce.” United States

v. Gresham, 119 F.3d 258, 265 (5thCir. 1997)

(citing United States v. Fields, 72 F.3d 1200,

1211 (5th Cir. 1996)). The parties have stipulated that the first two factors are met.

Daugherty, however, contends that, under

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

20(a) (Vernon Supp. 2001), the successful

completion of his probation restored his civil

rights such that he no longer should be considered convicted.

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 . . . .

Daugherty reasonsthat, consequently, histwo

felony convictions cannot serve as predicate

offenses under § 921(a)(20).

We have a two-part test to determine

whether the “unless clause” of § 921(a)(20),

which supports a § 922(g)(1) conviction, is

triggered. Dupaquier, 74 F.3d at 617. First,

we ask whether “the state which obtained the

underlying conviction revives essentially all

civil rights of convicted felons, whether affirmatively with individualized certification or

passively with automatic reinstatement.” Id.

(quoting Thomas, 991 F.2d at 213). Second,

we “determine whetherthe defendant was nevertheless expressly deprived of the right to

possess a firearm by some provision of the restoration law or procedure of the state of the

underlying conviction.” Id. (emphasis added).

Because Daugherty’s rights were passively

revived by operation of law, not by individu3

(...continued)

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 is referred to as the “unless clause” of

§ 921(a)(20). See Caron, 524 U.S. at 309. In

passing the Firearm Owners Protection Act of

1986, Pub. L. No. 99-308, § 1(a), 100 Stat. 449

(1986), Congress amended Section 921(a)(20) “to

give federal effect to state statutesthat fully restore

the civil rights of convicted felons when they are

released from prison, or are granted a pardon, or

have their convictions expunged.” Thomas, 991

F.2d at 209.
4

alized certification,5 we examine Texas law to

decide whether any provision or procedure

limits hisright to possessfirearms. See Caron,

524 U.S. at 313-15, 317-18 (Massachusetts

law). The government contends that, even

assuming that Daugherty’s general civil rights

were restored under art. 42.12, § 20, so as to

fulfill the first part ofthe Dupaquiertest,some

“procedure of the state of the underlying

conviction” expresslydeprived himofthe right

to possess a firearm.6

The government argues that TEX. PENAL

CODE ANN. § 46.04(a) (Vernon 2001) prohibits Daugherty from possessing firearms.

That statute generally provides that it is unlawful for a person convicted of a felony to

possess a firearm. Daugherty claims that a

person discharged from probation under art.

42.12, § 20, is no longer “convicted.” 

Neither art. 42.12, § 20, nor § 46.04 explainswhether successful completion of probation supervision renders one “no longer convicted.” Before enactment of the “unless

clause,” however, the Supreme Court concluded that one is considered convicted even

after the completion of probation.7 This cir

cuit has reached the same conclusion. In

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

Cir. 1978), we affirmed a conviction of receiving firearms in interstate commerce by a convicted felon, stating that probation does not

erase the conviction8but only “rewards a convicted party for good behavior during probation by releasing him from certain penalties

and disabilities otherwise imposed upon convicted persons byTexaslaw.” Id. (citing Gonzalez de Lara v. United States, 439 F.2d 1316,

1318 (5th Cir. 1971)).9

Although Padia and Lehmann applied art.

5 This circuit has considered only situations in

which the defendant’s civil rights were passively

restored by operation of state law. See Thomas,

991 F.2d at 209-16 (Texas law); Dupaquier, 74

F.3d at 617-19 (Louisiana law). 

6

See Dupaquier, 74 F.3d at 617; Caron, 524

U.S. at 316-17 (holding that, because Massachusetts law expressly provided that felons could not

possess firearms, that law activated the “unless

clause” of § 921(a)(20) and prevented petitioner

from owning a firearm).

7

See Dickerson v. New Banner Inst., Inc., 460

(continued...)

7

(...continued)

U.S. 103, 112 n.6, 113-14 (1983). There, the

Court stated that “Congress’ intent in enacting

§§ 922(g) and (h) . . . was to keep firearms out of

the hands of presumptively risky people.” Id. at

112 n.6 (citation omitted). Bearing legislative intent in mind, the Court stated: “[F]or purposes of

the federal gun control laws, we equate a plea of

guilty and its notation by the state court, followed

by a sentence of probation, with being convicted

within the language of §§ 922(g) and (h).” Id. at

114 (citation omitted).

8 Padia involved an application of TEX. CODE

CRIM. PROC. ANN. art. 42.12, § 7 (subsequently

recodified as art. 42.12, § 20), to 18 U.S.C.

§ 922(h). Padia, 584 F.2d at 85.

9 Accord United States v. Morales, 854 F.2d

65, 68 (5th Cir. 1988) (“We have previously held

that persons given probated sentences for Texas

felony convictions, whether the probations are still

pending, . . . or successfully completed, . . . are

persons convicted for purposes of 18 U.S.C. §§

922(g), (h) (1982). The rationale of those

precedentsfurnish guidance today.”)(citations and

quotation marks omitted); United States v.

Lehmann, 613 F.2d 130, 135 (5th Cir. 1980) (following Padia’s holding that “a prior conviction did

exist where a defendant, convicted of a crime in

Texas, was given probation”).
5

42.12, § 7, to § 922(g)(1) before enactment of

the “unless clause,” see Padia, 584 F.2d at 86,

this circuit’s precedent regarding the effect

that probation has on a conviction in Texas has

not changed since Congress enacted the “unless clause.” In United States v. Morales, 854

F.2d 65, 68 (5th Cir. 1988), we noted

specifically that the successful completion of

probation does not expunge a conviction for

purposes of § 922(g). We decided Morales

two years after Congress amended § 922(g) to

include the “unless clause.” Thus, under Fifth

Circuit precedent, Daugherty remained a

convicted felon.

The government also contends that the

Concealed Handgun Act (“CHA”), TEX.

GOV’T CODE ANN. § 411.171(4) (Vernon

Supp. 2001), preventsDaughertyfromowning

a firearm. The government strongly relies on

Tune v. Tex. Dep’t of Pub. Safety, 23 S.W.3d

358 (Tex. 2000), in which the defendant was

denied a license to carry a concealed handgun

because he had been convicted of a felony.

See id. at 360. He argued that, because his

conviction had been was set aside under art.

42.12, § 20, he was no longer “convicted” under the CHA. Id. at 363. The Texas Supreme

Court, noting that the CHA deemed a felon

convicted “after an adjudication of guilt is

entered against him whether or not his sentence is subsequently probated and he is discharged from supervision,” id. (citation omitted), declared that Tune was not eligible for a

concealed-handgun license. Id. at 364. After

Tune, most Texas courts have held that a person applying for a concealed-handgun license

remains convicted for purposes of the CHA.10

Daughertyresponds correctlythat Tune applied only to the definition of “convicted” as

provided in the CHA and thus is not squarely

on point here. The court in Tune stated, however, that “the Legislature may wish to keep

concealed handguns out of the hands of persons who have been convicted of a felony,

even if those persons satisfactorily completed

community supervision.” Id. That rationale

also applies here, because the Texas Legislature has passed laws designed to keep firearms

out of the hands of convicted felons. See

§ 46.04. 

Both § 46.04 and the CHA demonstrate the

power of the legislature “to regulate the wearing of arms, with a view to prevent crime.”

TEX. CONST. art. I, § 3. Thus, Tune provides

strong analogoussupportfor affirmingDaugherty’s conviction. Even without Tune,

however, Padia and its progeny are con10 See Texas Dep’t of Pub. Safety v. McLendon,

35 S.W.3d 632, 633 (Tex. 2000) (per curiam)

(following Tune and rendering judgment that Mc-

(continued...)

10(...continued)

Lendon was not eligible for a license); Tex. Dep’t

of Pub. Safety v. Kreipke, 29 S.W.3d 334, 337-38

(Tex. App.SSHouston [14th Dist.] 2000, pet. denied) (holding that Kreipke was not eligible for a

concealed-handgun license because of a previous

felony conviction, even though his crime was no

longer a felony and the conviction had been set

aside); Tex. Dep’t of Pub. Safety v. Randle, 31

S.W.3d 786, 787-88 (Tex. App.SSHouston [1st

Dist.] 2000, no pet.) (following the reasoning of

Kreipke and rendering judgment that defendant was

not eligible for a concealed handgun license). But

see Cuellar v. State, 40 S.W.3d 724, 725-29 (Tex.

App.SSSan Antonio 2001, no pet.) (holding that

the art. 42.12 order relieved Cuellar of the penalty

limiting hisright to possess a firearm); Kreipke, 31

S.W.3d at 338-40 (Wittig, J., concurring in part

and dissenting in part) (stating that “[t]oday’s

erosion of right, howeverslight, is not unlike one of

the first drops of rain on Noah’s head”) (emphasis

added).
6

trolling.

UnderTexaslaw, Daughertyremained convicted even after successfully completing

probation.11 Consequently, he is subject to the

penalties that state law imposes on convicted

felons. Section 46.04 prohibits felons from

possessing firearms outside their homes. Accordingly, Texas statutory law activated the

“unless clause” in § 921(a)(20) and prevents

Daugherty from possessing a firearm.

IV.

Daugherty aversthat the government failed

to prove that he possessed a firearm “in and

affecting” interstate commerce, asrequired by

§ 922(g)(1). See Gresham, 119 F.3d at 265

(citing Fields, 72 F.3d at 1211). He claims

that this case is “a classic example of a purely

local offense.” In evaluating a Commerce

Clause challenge under United States v. Lopez,

514 U.S. 549 (1995), however, we repeatedly

have said that evidence similar to that presented inDaugherty’s case sufficesto maintain

a § 922(g)(1) conviction,12 and Daugherty

admits as much. Thus, his constitutional

challenge to § 922(g) fails, because “the

constitutionality of § 922(g) is not open to

question.” United States v. DeLeon, 170 F.3d

494, 499 (5thCir.), cert. denied, 528 U.S. 863

(1999).

Daugherty urges us to reconsider the interstate commerce element of § 922(g)(1) in light

of two recent, intervening decisions: United

States v. Morrison, 529 U.S. 598 (2000), and

Jones v. United States, 529 U.S. 848 (2000).

Both, however, are distinguishable from the

present case, because a plain jurisdictional element exists in § 922(g), and there is stipulated

evidence showing that the gun traveled in

interstate commerce. Neither Jones nor Morrison affects or undermines the constitutionality of § 922(g).

IV.

Because the Texas Supreme Court has not

addressed the first issue in this case, we must

“decide the case as would an intermediate appellate court of the state in question . . . .”

Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d

1245, 1247 (5thCir. 1997) (per curiam)(quoting DiPascal v. N.Y. Life Ins. Co., 749 F.2d

255, 260 (5th Cir. 1985)). There is substantial

support in Texas law for the proposition that

persons convicted of a felony are still considered convicted felons even after they successfully complete community supervision. This

circuit hasrepeatedly reached that conclusion,

and Daugherty cites no cases in opposition.

There was a sufficient nexus between Daugherty’s possession of the weapon and interstate

commerce.

AFFIRMED.

11 See United States v. Sauseda, 2001 WL

694490, at *3 (W.D. Tex. Jan. 10, 2001) (finding

defendant guilty of violating. § 922(g)(1)).

12 See United States v. Kuban, 94 F.3d 971 (5th

Cir. 1996) (affirming a § 922(g)(1) conviction

where the weapon was manufactured in Belgium

and possessed in Texas); United States v. Rawls,

85 F.3d 240 (5th Cir. 1996) (affirming a § 922-

(g)(1) conviction where the weapon was manufactured inMassachusetts and possessed in Texas).