Opinion issued December 12, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
           NOS. 01-18-00520-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


                                 OPINION

      A grand jury indicted Benson Dorsey for possession of a controlled substance,

methadone, with intent to deliver and two violations of the statute barring felons

from possessing firearms. See TEX. HEALTH & SAFETY CODE §§ 481.102(4),

481.112(a); TEX. PENAL CODE § 46.04(a). After the trial court denied Dorsey’s
motion to suppress certain evidence, Dorsey pleaded guilty to all three charges. On

appeal, Dorsey contends that the trial court erred in denying his motion to suppress

and that his conviction and punishment for two separate felon-in-possession-of-

firearm offenses violates his constitutional guarantee against double jeopardy.

      We affirm.

                                 BACKGROUND

      This case arises from a rush-hour freeway shooting on the morning of

November 6, 2017. The driver of a pick-up truck became irate when another driver

tried to prevent him from maneuvering around traffic on the righthand shoulder and

responded by firing a handgun at the other driver’s vehicle. Law enforcement

officers later identified the shooter as Dorsey, a felon twice over. A subsequent

search of Dorsey’s residence turned up methadone and several firearms.

      A grand jury issued three separate indictments against Dorsey. The first

indictment alleged that Dorsey possessed a controlled substance, methadone, with

intent to deliver. See TEX. HEALTH & SAFETY CODE §§ 481.102(4), 481.112(a). The

second one alleged that Dorsey, a felon, possessed a firearm before the fifth

anniversary of his release from supervision under parole. See TEX. PENAL CODE

§ 46.04(a)(1). For purposes of this indictment, the State relied on Dorsey’s 2012

felony conviction for possession with intent to deliver a controlled substance and

possession of multiple firearms in his home. Dorsey was not scheduled to be released


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from supervision under parole for the drug conviction until 2018. The third alleged

that he possessed a firearm at a location other than his residence after having been

convicted of a felony. See id. § 46.04(a)(2). For purposes of this indictment, the State

relied on Dorsey’s 2001 felony conviction for possession of a controlled substance

and possession of multiple firearms in his home.

      Dorsey filed a pretrial motion to suppress the evidence against him. He

contended that the eyewitness identification procedure used by law enforcement

violated his due process rights by being impermissibly suggestive. Because this

identification was the lone basis for probable cause to search his residence, Dorsey

argued, the trial court was obligated to suppress the evidence obtained in the search.

      The trial court held an evidentiary hearing on Dorsey’s motion to suppress.

Several witnesses testified at the hearing, including Jennifer Burch, the complaining

witness who identified Dorsey as the shooter; responding officers K. Martinez and

D. Davila; their supervisor, Sergeant R. Houghton; and Dorsey himself.

      Burch testified that as she drove to work one morning in rush-hour traffic on

I-10, a white pick-up truck to her rear moved onto the shoulder to pass other

motorists. The truck was unable to maneuver around her. She then heard “what

sounded like a rock hitting” her car followed by “several more pops.” Burch looked

in her rearview mirror, saw that the driver of the truck had a gun, and realized he




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was shooting her car. In total, she heard around eight to eleven distinct gunshots.

The truck then managed to pull around her and sped off past the surrounding traffic.

         The truck was a Ford F250 with a red car-dealership sticker on it. Burch

clearly saw the driver as the truck passed her. She then telephoned for emergency

assistance. Burch provided the truck’s license plate number. In her testimony, she

described the driver as a black man wearing a white tee-shirt. He was “a thinner

male” with “a short, cleanly cut hairline.” Burch did not provide all of these details

about the driver to the emergency assistance operator, stating at that time only that

he was a black man. As Burch was talking to the emergency assistance operator, the

truck came back into view as her lane of traffic progressed. But the truck’s driver’s

side window was now up and it was tinted so that she could not see much inside

beyond the outline of his body and that “he was trying to say something” to her “in

a very aggressive fashion.”

         An officer with the Houston Police Department telephoned Burch later that

morning and asked her to meet with police to identify the shooter. The officer told

her that unless she could identify the shooter, charges would not be brought against

him. She met officers at a gas station, where they showed her two men, and she

identified Dorsey as the shooter. She also identified Dorsey as the shooter in open

court.




                                          4
      Officers K. Martinez and D. Davila were on patrol together in the same patrol

car that morning. They both testified that dispatch radioed about the incident,

describing the shooter’s vehicle as a white Ford F250 and providing its license-plate

number. Martinez and Davila encountered a truck matching that general

description—a white Ford F250—a couple of blocks away from an I-10 offramp.

They could not read its plate number or see who was inside because the truck was

too far ahead of them, so they followed the truck and tried to catch up to it. After the

truck turned a corner, they lost sight of it for a couple of minutes but then found it

parked in a nearby residential driveway. When Martinez and Davila initially drove

by the residence, no one was in the truck, but two black men were standing in the

front doorway of the house or out in front of it. Martinez and Davila confirmed by

plate number that the truck in the driveway was the one driven by the freeway

shooter, and they learned that the truck was registered to a Jerold Jermane Freeman.

By the time Martinez and Davila returned to the residence in their patrol car, the two

men had gone inside but could be seen “peeking out the window.”

      Martinez and Davila called for backup, and when another unit arrived on the

scene they approached the house. Martinez went to the front door with one of the

officers who responded to the request for backup, while Davila went to the back of

the house. As Martinez approached, the two men who had previously stood in the

doorway came outside through the front door; one of these men was Dorsey, who


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was wearing a white tee-shirt. The other man wore a black tee-shirt. When

questioned, Dorsey said that the truck belonged to his nephew, Freeman. [Dorsey

said that he had not seen his nephew that morning. In the process of questioning

Dorsey, Martinez ran his name and discovered that an arrest warrant had been issued

for Dorsey based on a parole violation. Martinez asked for consent to search

Dorsey’s home, but Dorsey refused.

      When Sergeant Houghton arrived at the scene, Martinez and Davila had

detained Dorsey and the second man at the house. Houghton, Martinez, and Davila

determined that they would need to obtain a warrant to search Dorsey’s home, and

that to do so they would need Burch to identify Dorsey as the shooter. Houghton

telephoned Burch to arrange an identification and told her that the district attorney

would not charge Dorsey for the shooting unless she positively identified him as the

shooter. Houghton testified that he told Burch this so she would understand he

needed her help. Houghton disagreed that saying so was suggestive, or that the

identification procedure used by officers violated departmental rules. Though

Houghton conceded that other identification methods, like line-ups or photograph

arrays, are preferred, he testified that the gas-station show-up procedure used by

officers in this instance made sense due to the danger posed to the public by the

freeway shooter and the likelihood that any evidence would be disposed of absent a

timely search. Houghton also testified that the surrounding circumstances indicated


                                         6
that either Dorsey or the other man at his house was the driver of the white pick-up

truck and the shooter, because these men were the only people present at the home

and the events unfolded “very quickly”—that is, Martinez and Davila soon

encountered the same truck not far from the freeway and then found it parked in

Dorsey’s driveway shortly afterward.

      After Burch positively identified Dorsey as the shooter, Martinez and Davila

went to the district attorney’s office to complete an application for a search warrant.

Officer Davila made the necessary supporting affidavit. Davila swore that he had

reason to believe that there was evidence of a crime in the truck and Dorsey’s home,

including but not limited to evidence that a felon had a firearm. In summary, Davila

stated in the affidavit that he and Martinez:

      ●   received notice from dispatch that a black man in a white tee-shirt driving
          a white Ford F250, license plate number JXP5507, had shot at another car;
      ●   subsequently encountered a truck matching this general description on a
          nearby road but lost sight of the truck while following it;
      ●   found the same truck parked in the driveway of Dorsey’s home and
          verified the plate number was the same one relayed by dispatch;
      ●   detained at this location Dorsey, a black man dressed in a white tee-shirt,
          whom the complainant later identified as the freeway shooter; and
      ●   determined that Dorsey was a felon by reviewing his criminal history and
          believed that he was illegally in possession of a firearm.

      Based on the affidavit, a judge signed a warrant for the search of the truck and

Dorsey’s home. In the subsequent search of Dorsey’s home, law enforcement


                                           7
officers found five bottles containing the prescription drug methadone. Officers also

found several loaded firearms, including two revolvers, two semi-automatic pistols,

and a shotgun. Officers did not find the keys to the truck and they did not find any

contraband in the truck when they searched it.

      Dorsey testified that he was at his house that morning, waiting for his landlord

to come collect the rent. He stated that he did not leave the house at any point that

morning. Dorsey said that he did not see his nephew, Freeman, drop off the pick-up

truck at his house, but that Freeman did so some time after seven in the morning.

Dorsey saw or heard the truck pull into his driveway, but when he went outside to

see who it was he did not see Freeman. Dorsey did see a police cruiser drive by

shortly afterward, within a couple of minutes of the truck’s arrival.

      When police officers came to his door, Dorsey went out and spoke with them.

He told them that the truck belonged to Freeman, who worked at a nearby

construction site and parked his truck across the street several days each week.

Dorsey told the officers that he assumed that was how the truck ended up in his

driveway. He said that he’d never been in the truck, let alone driven it. He denied

that he was the freeway shooter.

      The trial court denied Dorsey’s motion to suppress. Dorsey then pleaded

guilty to the three offenses for which the grand jury indicted him. The trial court

assessed his punishment at 25 years’ confinement for the drug offense. It assessed


                                          8
his punishment at 20 and 25 years’ confinement respectively for the two firearms

offenses. The trial court ordered these three sentences to run concurrently.

                                   DISCUSSION

I.    Motion to Suppress

      Dorsey contends that the trial court erred in denying his motion to suppress

the evidence law enforcement officers found in the search of his home. He argues

that Burch’s identification of him as the shooter was the sole basis for probable cause

underlying the search warrant and that the identification procedure used by the

officers was impermissibly suggestive in violation of his right to due process. When

the tainted identification is stricken from the affidavit, Dorsey posits, there was no

probable cause for the issuance of the search warrant, making the search illegal.

      A.     Standard of review and applicable law

      In general, we apply a bifurcated standard of review to a trial court’s decision

on a motion to suppress; we give almost total deference to the historical facts found

by the trial court and analyze de novo its application of the law. State v. Cuong Phu

Le, 463 S.W.3d 872, 876 (Tex. Crim. App. 2015). When the trial court has not made

explicit findings of historical fact, we view the evidence in the light most favorable

to its decision. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

      If some of the information in a search-warrant affidavit must be excluded as

illegally obtained, we must decide whether the independently acquired and lawful


                                          9
information contained in the affidavit nonetheless clearly supplies probable cause

for the warrant’s issuance. Cuong Phu Le, 463 S.W.3d at 877. We interpret the

remaining    information   contained    in     the   search-warrant   affidavit   in   a

commonsensical and realistic manner, drawing reasonable inferences from this

information. Id.

      Probable cause exists if, under the totality of the circumstances, there is a fair

probability that contraband or evidence of a crime will be found at a specified

location. Id. at 878. Probable cause is a flexible, non-demanding standard. Id. It

requires a relatively high degree of suspicion but far less proof than a preponderance

of the evidence. Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009); see

also Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).

      B.     Analysis

      Dorsey argues (1) Burch’s identification of him as the shooter was tainted and

(2) without her tainted identification, law enforcement officers lacked probable

cause to search his home. Therefore, Dorsey concludes, the trial court erred in

denying his motion to suppress the evidence officers obtained in the search.

Assuming for the sake of argument but not deciding that Burch’s identification was

tainted, we disagree that there was not probable cause to search Dorsey’s home.

Disregarding the identification, the warrant affidavit still shows probable cause.

      In the warrant affidavit, Davila stated that he and Martinez received a notice


                                          10
from dispatch about the freeway shooting. This notice informed them of the make

and model of the shooter’s vehicle, a Ford F250, its color, white, and its license plate

number, JXP5507. It also informed them that the shooter was a black man in a white

tee-shirt. Davila and Martinez encountered a truck matching the subject’s general

description and followed it into a neighborhood. They lost sight of the truck, drove

around the block, and found it parked in a residential driveway. They confirmed that

the truck parked in the driveway had the reported license plate number. At the

residence, they spoke with Dorsey, a black man, who lived there. When Martinez

investigated whether Dorsey had any criminal history, she found that he had prior

felony convictions.

      Interpreting this information in a commonsensical fashion, including the

reasonable inferences that may be drawn from it, we conclude that the affidavit

clearly supplies probable cause for the search warrant for Dorsey’s home without

Burch’s identification of Dorsey, since it supplies a relatively high degree of

suspicion that he was a felon unlawfully in possession of a firearm. Cf. McAllister v.

State, 28 S.W.3d 72, 76 (Tex. App.—Texarkana 2000, no pet.) (search warrant

established probable cause to search home based on identification of home owner’s

vehicle by plate number as vehicle used by perpetrators of robbery).

      To the extent that Dorsey contends that the suppression-hearing testimony

undermined or contradicted the preceding information from Davila’s affidavit, we


                                          11
disagree. Davila’s and Martinez’s testimony conformed to the material facts outlined

by Davila in the search-warrant affidavit. After hearing their testimony and the

testimony of the other witnesses, the trial court concluded that the officers “probably

still could have gotten in the house with a warrant” without Burch’s identification

“based on the evidence they had, and the officers following the truck off the freeway,

same license number, and finding it at the house” in a short time-span and finding

Dorsey there as well. Viewing the evidence in the light most favorable to the trial

court’s decision and deferring to its implied findings of historical fact, we hold that

the trial court did not err in denying Dorsey’s motion to suppress the evidence.

II.   Double Jeopardy

      Dorsey contends that two felon-in-possession-of-firearm convictions and the

imposition of two separate punishments for them violate his constitutional guarantee

against double jeopardy. He argues that the legislature intended that only a single

punishment be meted out to a felon who is found to be in possession of several

firearms simultaneously. Because Dorsey possessed the five firearms at the same

time, he contends that only a single conviction and punishment is permissible.

      A.     Waiver

      The State contends that Dorsey waived his right to make a double-jeopardy

claim by pleading guilty to the two firearm offenses pursuant to a plea bargain and




                                          12
not raising double jeopardy in the trial court or securing the trial court’s permission

to appeal based on this issue. Under the circumstances of this case, we disagree.

      The constitutional guarantee against double jeopardy is fundamental and

therefore may be raised for the first time on appeal, provided that the double-

jeopardy violation is apparent on the face of the record and the enforcement of

ordinary rules of default do not serve a legitimate state interest. Gonzalez v. State, 8

S.W.3d 640, 643 (Tex. Crim. App. 2000); Eubanks v. State, 326 S.W.3d 231, 243

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). A double-jeopardy claim is

apparent on the face of the record if its resolution does not require further

proceedings to introduce additional supporting evidence. Ex parte Denton, 399

S.W.3d 540, 544 (Tex. Crim. App. 2013). The State does not have a legitimate

interest in maintaining a conviction if the record clearly shows that it was obtained

in violation of the constitutional guarantee against double jeopardy. Id.

      The State asserts that the rule stated in Gonzalez solely applies to instances of

procedural default, rather than to cases like this one, in which the defendant pleaded

guilty and thus affirmatively waived the right to raise unasserted defenses. Gonzalez

belies the State’s position. In Gonzalez, the Court of Criminal Appeals relied in part

on Menna v. New York, in which the United States Supreme Court held that a guilty

plea does not waive the right to assert a double-jeopardy claim on appeal if, judged

on its face, the charge is one that the State cannot constitutionally prosecute. 423


                                          13
U.S. 61, 62 (1975) (per curiam); see Gonzalez, 8 S.W.3d at 644 (discussing this

aspect of Menna).

      As explained in Menna, the reason that a guilty plea ordinarily bars the

assertion of previously unasserted constitutional defenses on appeal is that the plea

“validly removes the issue of factual guilt from the case” and factual guilt generally

is a sufficient basis for the imposition of punishment. 423 U.S. at 62 n.2. A guilty

plea thus “renders irrelevant those constitutional violations not logically inconsistent

with the valid establishment of factual guilt and which do not stand in the way of

conviction if factual guilt is validly established.” Id. But when it is clear on the face

of the record that a conviction or punishment is arguably barred by double jeopardy

regardless of the defendant’s factual guilt, a guilty plea does not bar the double-

jeopardy claim on appeal. See id.; see also United States v. Broce, 488 U.S. 563, 576

(1989) (double-jeopardy claims are cognizable for first time on appeal despite guilty

plea if they can be resolved without resort to evidence contradicting the indictments).

      Dorsey does not dispute the allegations of the indictments or his factual guilt

as to the charges. Dorsey instead contends that, given the facts to which he pleaded

guilty, the imposition of multiple punishments for the unlawful possession of a

firearm violates his guarantee against double jeopardy. His double-jeopardy claim

thus is apparent on the face of the record and may be asserted for the first time on

appeal because its resolution does not depend on further proceedings to introduce


                                           14
additional evidence bearing on his factual guilt. See Menna, 423 U.S. at 62. n.2;

Denton, 399 S.W.3d at 544. We therefore turn to the merits of Dorsey’s claim.

      B.     Merits

             1.    Applicable law

      The Fifth Amendment to the United States Constitution guarantees that a

defendant shall not be subject to double jeopardy. Among other things, it prohibits

the imposition of multiple punishments for the same offense. Bien v. State, 550

S.W.3d 180, 184 (Tex. Crim. App. 2018). When a defendant asserts a multiple-

punishments double-jeopardy claim, our analysis turns on whether the legislature

intended multiple punishments. Stevenson v. State, 499 S.W.3d 842, 850 (Tex. Crim.

App. 2016). Whether offenses are the same and disallow multiple punishments thus

requires us to decide the number of punishments contemplated by the legislature. Id.

Because the offenses at issue are codified in a single statutory provision—section

46.04(a) of the Penal Code—we discern the legislature’s intent by conducting a

units-of-prosecution analysis, which considers what the allowable unit of

prosecution is, based on the statute’s construction, the offense’s gravamen, and how

many units are shown by the evidence. Id. Double jeopardy is not violated if the

legislature intended the offenses to be separate allowable units of prosecution. Id.

      The gravamen of an offense is the best indicator of legislative intent when

deciding whether a multiple-punishments double-jeopardy violation has occurred.


                                         15
Garfias v. State, 424 S.W.3d 54, 59 (Tex. Crim. App. 2014); see also Jones v. State,

323 S.W.3d 885, 889 (Tex. Crim. App. 2010) (absent explicit statutory statement as

to allowable unit of prosecution, best indicator is gravamen of offense). Thus, we

look to the gravamen of the offense first. See Stevenson, 499 S.W.3d at 850. The

gravamen of a given offense may be the result of the conduct, the nature of the

conduct, or the circumstances surrounding the conduct. Id. Result-oriented offenses

focus on result, which is the basis for prosecution. Id. Conduct-oriented offenses

focus on the conduct, with different types of conduct constituting separate offenses.

Id. Finally, circumstance-oriented offenses focus on the surrounding circumstances;

different types of conduct may simply be alternate methods of proving a single

offense, as opposed to separate ones, so long as the pertinent circumstances

surrounding the conduct are the same. Id. at 850–51. In other words, the focus is on

the particular circumstances that exist instead of the discrete, and perhaps different,

acts that a defendant might commit under those circumstances. Id. at 851.

             2.     Analysis

      The language of the felon-in-possession-of-firearm statute shows that the

gravamen of the offense is the circumstances surrounding the proscribed conduct.

The statute provides that:

      (a) A person who has been convicted of a felony commits an offense if
          he possesses a firearm:



                                          16
           (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 § 46.04(a). This section is a circumstances-surrounding-the-

conduct offense because a violation arises only by the circumstance that the person

has been adjudicated a felon. See Stevenson, 499 S.W.3d at 851 (statute

criminalizing violations of sexually violent predator civil-commitment orders was

circumstances-surrounding-conduct offense because violation arose only by

circumstance that person had been adjudicated predator and civilly committed). In

general, mere possession of firearms—particularly in one’s home or vehicle—is

lawful. See TEX. CONST. art. I, § 23; TEX. PENAL CODE § 46.02 (criminalizing

carrying of handguns outside of one’s premises or vehicles, subject to concealed-

carry licensure); TEX. PENAL CODE § 46.03(a) (criminalizing carrying firearms in

schools, polling places, courts, racetracks, airports, and places of execution). It is the

very circumstance of being a felon the makes otherwise innocent conduct—firearm

possession—criminal under section 46.04(a). See Stevenson, 499 S.W.3d at 851; see

also Tapps v. State, 294 S.W.3d 175, 178–79 (Tex. Crim. App. 2009) (plain

language of section 46.04(a) shows legislature enacted statute to prohibit all felons

from possessing firearms); Plummer v. State, 426 S.W.3d 122, 127 (Tex. App.—

                                           17
Houston [1st Dist.] 2012, pet. ref’d) (plain language of section 46.04(a) shows that

its purpose is to criminalize possession of firearms by felons).

      With the gravamen of the offense identified, we turn to the record evidence.

See Stevenson, 499 S.W.3d at 851. Dorsey was charged with and pleaded guilty to

being a felon in possession of a firearm before the fifth anniversary of his release

from supervision under parole. See TEX. PENAL CODE § 46.04(a)(1). He also was

charged with and pleaded guilty to being a felon in possession of a firearm outside

of his home. See id. § 46.04(a)(2). Based on the undisputed evidence introduced at

the suppression hearing, law enforcement officers found five firearms in Dorsey’s

home. While the gravamen of the offense can be generally described as “felon-in-

possession-of-firearm,” the legislature, when drafting the statute, specified that an

offense can occur in both of two separate circumstances: anywhere, within five years

of release from confinement, and thereafter 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 separateness of the offenses is further bolstered by the fact that Dorsey

possessed multiple firearms. While it is not clear which of his five firearms he had

with him in his truck in violation of section 46.04(a)(2), the possession of any one


                                          18
of the other four in the premises in which he lived was a violation of section

46.04(a)(1). Because Dorsey’s particular circumstances included at least two

separate prior felonies, and the possession of at least two separate firearms in two

separate locations, each felon-in-possession conviction was wholly independent of

the other. In Dorsey’s situation, then, double jeopardy cannot attach. See, e.g.,

Huffman v. State, 267 S.W.3d 902, 908 (Tex. Crim. App. 2008) (citing Spradling v.

State, 773 S.W.2d 553, 556–57 (Tex. Crim. App. 1989) (“[W]e have held that a

separate prosecution for failure to stop and render aid can occur for each individual

injured in the accident whom the defendant fails to aid.”), superseded by statute on

other grounds as recognized in Curry v. State, PD-0577-18, 2019 WL 5587330,

— S.W.3d — (Tex. Crim. App. Oct. 30, 2019).

                                    CONCLUSION

      We affirm the trial court’s judgments of conviction in case numbers 1569925,

1570348, and 1570349.




                                              Peter Kelly
                                              Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

Justice Goodman, dissenting.

Publish. TEX. R. APP. P. 47.2(b).

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