



CR5-620.GOODMAN.DRAFT                                               



TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-95-00620-CR





Gabriel Austin Goodman, Appellant


v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT

NO. 18,933, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING





PER CURIAM

	A jury found appellant Gabriel Goodman guilty of unlawful possession of a firearm by a
felon and assessed punishment at five years' imprisonment and a $5,000 fine.  Appellant challenges his
conviction by two points of error.  Because our examination of the record discloses an unassigned
fundamental error, we will reverse the judgment of conviction.  Carter v. State, 656 S.W.2d 468, 468-70
(Tex. Crim. App. 1983); Ruiz v. State, 691 S.W.2d 90, 91 (Tex. App.--Austin 1985), aff'd, 753
S.W.2d 681 (Tex. Crim. App. 1988).  	
	A grand jury determined that on or about the fifth day of August 1994, appellant, having
previously been convicted of the felony offense of debit card abuse in March 1993, intentionally and
knowingly possessed a firearm before the fifth anniversary of his release from confinement following
conviction of the felony offense of debit card abuse.  
	It is obvious that appellant was charged and convicted under present Penal Code section
46.04(a).  The statute provides:


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.


Tex. Penal Code Ann. § 46.04(a) (West 1994).
	Before September 1, 1994, the offense of a felon in possession of a firearm was located
at Texas Penal Code section 46.05(a).  That statute provided:


A person who has been 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. 


Act of May 23, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 964.
	The Seventy-Third Legislature renumbered and made significant amendments to the offense
of a felon in possession of a firearm.  Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex.
Gen. Laws 3586, 3688.  The change in the law applied only to an offense committed on or after the
effective date of the amendatory act.  Id., § 1.18(a), 1993 Tex. Gen. Laws 3586, 3705.  An offense is
committed before the effective date if any element of the offense occurred before the effective date.  Id. 
An offense committed before the effective date is covered by the law in effect when the offense was
committed, and the former law was continued in effect for that purpose.  Id., § 1.18(b).  The new section
46.04 became effective September 1, 1994.  Id., § 1.19(a), 1993 Tex. Gen. Laws 3586, 3705. 
	Appellant was indicted under a law that was not in effect at the time of the alleged offense. 
At the time the indictment alleged that appellant possessed a firearm illegally, his possession was an
innocent act.  For appellant's possession of a firearm to be illegal on or about August 5, 1994, his previous
felony would have had to involve an act of violence or threatened violence.  Appellant's previous felony
conviction, debit card abuse, did not involve either an act of violence or threatened violence.  
	At issue is the improper retroactive application of a penal statute.  The ex post facto
provisions of the federal and state constitutions do not permit prosecution or conviction for behavior that
did not constitute a criminal offense when it happened.  U.S. Const. art. I, § 10, cl. 1; Tex. Const. art. I,
§ 16; Weaver v. Graham, 450 U.S. 24, 28 (1981); Ieppert v. State, 908 S.W.2d 217, 219 (Tex. Crim.
App. 1995).  While often constitutional claims may be waived, the improper retroactive application of a
penal statute is the type of claim included among a number of requirements and prohibitions that cannot be
waived or forfeited by a party.  Ieppert, 908 S.W.2d at 219 (citing Marin v. State, 851 S.W.2d 275, 279
(Tex. Crim. App. 1993)).   
	Within the concept of ex post facto is the fundamental principle that the "criminal quality
attributable to an act, either by the legal definition of the offense, or by the nature of amount of the
punishment . . . should not be altered by legislative enactment, after the fact, to the disadvantage of the
accused."  Ieppert, 908 S.W.2d at 223 (Baird, J., concurring and citing Beazell v. Ohio, 269 U.S. 167,
170 (1925)).
	Charging appellant under section 46.04 for conduct that at the time alleged was innocent
had the effect of altering the definition of the crime to the detriment of the accused.  This violates the ex post
facto provisions of the federal and state constitutions because it made criminal an act that was innocent
before its passage.  Beazell, 269 U.S. at 170.  
	We conclude that the ex post facto violation that occurred in this instance was an
unassigned fundamental error.  Because fundamental error occurred below, it is unnecessary for us to
address appellant's two points of error.  Tex. R. App. P. 90(a).  We reverse the trial court's judgment of
conviction and order the indictment dismissed.  




Before Justices Powers, Jones and B. A. Smith
Reversed and Indictment Ordered Dismissed
Filed:   November 20, 1996
Publish

h the person lives.


Tex. Penal Code Ann. § 46.04(a) (West 1994).
	Before September 1, 1994, the offense of a felon in possession of a firearm was located
at Texas Penal Code section 46.05(a).  That statute provided:


A person who has been 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. 


Act of May 23, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 964.
	The Seventy-Third Legislature renumbered and made significant amendments to the offense
of a felon in possession of a firearm.  Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex.
Gen. Laws 3586, 3688.  The change in the law applied only to an offense committed on or after the
effective date of the amendatory act.  Id., § 1.18(a), 1993 Tex. Gen. Laws 3586, 3705.  An offense is
committed before the effective date if any element 