Opinion issued December 12 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NOS. 0 1 - 18 - 00520 - CR, 01 - 18 - 00521 - CR, 01 - 18 - 00522 - CR

——————————— 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 T EX
. P ENAL C ODE § 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 possession2

of severa l 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 fi fth anniversary of his release from supervision under parole for this drug offense

. See T EX
. P ENAL C ODE § 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 conv icted 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 un disputed

. 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 two3

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 sea rched 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 i n a single statutory provision, we must decide w hat 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 a n 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.4

T EX
. P ENAL C ODE § 46.04(a). Thus, a felon never may possess a firearm outside of the pr emises where he lives. I d. ; 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. T E X
. P ENAL C ODE § 46.04(a); Mason , 980 S.W.2d at 638

– 39. A fter this five

- year period, however, a felon may possess a firearm on the premises where he lives. T EX
. P ENAL C ODE § 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. 2 d 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). Sub divisi ons (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 sub divisions do not set forth separate offenses. Analysis Dorsey was convicted under both sub divisions of section 46.04(a). The majority holds that this does not violate the g uarantee against double jeopardy because these sub divisions 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 thereafter5

in any place ot her 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 s ection 46.04(a)

. S ubdivision (1) prohibits a felon from possessing a firearm anywhere, unless five years has elapsed since he w as released from confinement or supervision, whichever is later. T EX
. P ENAL C ODE § 46.04(a) (1) ; Mason , 980 S.W.2d at 638

– 39. After this five

- year period, su bdivision (2) continues to prohibit a felon from possess ing a firearm anywhere except for a single location

— the premises where t he felon lives. T EX
. P ENAL C ODE § 46.04(a) (2) ; Mason , 980 S.W.2d at 638

– 39. The statutory scheme is a bi furcated 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 po ssession of a firearm , he had not yet been released from supervision under parole for th e 2012 drug offense . Dorsey therefore could not possess a firearm anywhere. See T EX
. P ENAL C ODE § 46.04(a)(1). Anywhere by definition includes the premises where Dorsey live d , which makes s ub division (2) altogether inapplicable to him

.6

The majority reasons that Dorsey can be convicted under both sub divisions because the state relied on different predicate felonies , the one from 2012 and the other from 2001 . But s ub divisions (1) and (2) can only be read as refer ring to the

same underlying felony. S ub division (1) criminalizes firearm possession by a felon anywhere “after conviction and before the fifth anniversary of the person’s release” while sub division (2) does so anywhere other than the felon’s home “after the period described by Subdivision (1).” T EX
. P ENAL C ODE § 46.04(a). Thus, the statu t e does not allow for simultaneous convictions under both sub divisions based on different underlying felonies

. The majority fu rther 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 possess ed all five of the firearms at issue. See T EX
. P ENAL C ODE § 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 se ction 46.04(a) prosecution). S ection 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

. T he statute forbids a felon from possess ing “a firearm,” but this does
not mean that each firearm is its own unit of prosecution. T he majority correctly7

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

- co nduct 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 simulta neous 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 supervi sion

. See T EX
. P ENAL C ODE § 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 Dorse y’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 federa l 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 purpose8

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 t hat mu ltiple 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 mult iple 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, 9 19. 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 of9

felons; the sectio n 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 th us was a single punishable criminal offense. See id. at 919

– 20. Nothing in the structure, la nguage, or purpose of section 46.04(a) compel s 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 g uarantee 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. T EX
. R. A PP
. P. 47.2(b).