             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                            No. AP-76,102


                       EX PARTE GREGORY LYNN SMITH, Applicant



                      On Application for a Writ of Habeas Corpus from
                    Case No. 31558CR of the 40th Judicial District Court of
                                        Ellis County


               WOMACK , J., delivered the opinion of the Court, in which MEYERS,
               PRICE, JOHNSON, KEASLER, HERVEY , HOLCOMB, and COCHRAN, JJ.,
               joined. KELLER, P.J., concurred in the judgment.


       This is a post-conviction application for a writ of habeas corpus brought pursuant to

Article 11.07 of the Code of Criminal Procedure. The applicant seeks relief from a conviction for

unlawful possession of firearm.

       The indictment alleged that he intentionally or knowingly possessed a firearm on or about

September 6, 2006, before the fifth anniversary of his having been released from community

supervision, he having been convicted of the felony offense of possession of controlled substance

with intent to deliver on August 5, 2005.
                                                                                     (Ex parte Smith - 2)

        When he was found to be in possession of a firearm (which is not disputed) the applicant

was on deferred-adjudication community supervision for the second-degree felony offense of

possession of controlled substance.

        The applicant pleaded guilty to the indictment and was sentenced to the maximum

punishment of ten years in prison. The trial court ordered that the sentence run concurrently with

the twenty-year sentence that it imposed in the controlled-substance case after adjudicating the

defendant guilty.

        The applicant seeks relief from the possession-of-firearm conviction on three grounds:

insufficient evidence of guilt, ineffective assistance of counsel, and unknowing and involuntary

plea.

                                             Insufficient Evidence

        Petitioners may not, in post-conviction habeas corpus, collaterally attack the sufficiency

of the evidence to support the conviction.1 Even if the attack could be made, we notice that the

applicant judicially confessed to committing the offense, which was sufficient evidence to

support a plea of guilty.

                Ineffective Assistance of Counsel and Unknowing and Involuntary Plea

        Ineffective assistance of counsel may be a ground for habeas-corpus relief after

conviction. The question is whether the applicant has shown that counsel’s performance was

deficient. There is a strong presumption that counsel’s performance was adequate. The applicant

must identify acts or omissions that were outside the wide range of professional competence.2


        1
            Ex parte Easter, 615 S.W.2d 719, 721(Tex. Cr. App. 1981).

        2
            See Strickland v. Washington, 466 U.S. 668, 687–91 (1984).
                                                                                     (Ex parte Smith - 3)

       The applicant alleges that counsel’s performance at trial was deficient because he failed

to investigate applicant’s criminal history concerning prior felonies. “Applicant was not a

convicted felon,” and counsel should have known that.

       Similarly, the applicant alleges that he did not understand that, because his deferred

adjudication was not a final conviction, he was not a convicted felon. Therefore his plea was

unknowing and involuntary.

                                            Discussion

       The indictment alleged a violation of the following provisions of the most recent version

of the Unlawful Possession of Firearm statute, Section 46.04 of the Penal Code (effective

September 1, 2003):

              (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; ….

       On its face, the statute seems to make it an offense for a “person who has been convicted

of a felony” to possess a firearm “after conviction” and “before the fifth anniversary” of either of

two events:

       (A) “the person’s release from confinement following conviction of the felony, or

       (B) “the person’s release from supervision under community supervision, parole, or

mandatory supervision.”

        Therefore the class of persons who have “been convicted of a felony,” as that term is

used in Section 46.04, includes those in any of three circumstances:
                                                                                                     (Ex parte Smith - 4)

                     (1) those who have been in “confinement,”

                     (2) those who have been supervised under parole or mandatory supervision — all

         of whom will have been in confinement, since parole3 and mandatory supervision4

         involve release after a final conviction, and

                     (3) those who have been under “community supervision,” which may not involve

         confinement. As defined in the Code of Criminal Procedure, “‘Community supervision’

         means the placement of a defendant by a court under a continuum of programs and

         sanctions, with conditions imposed by the court for a specified period during which:

                     “(A) criminal proceedings are deferred without an adjudication of guilt; or

                     “(B) a sentence of imprisonment or confinement, imprisonment and fine, or

         confinement and fine, is probated and the imposition of sentence is suspended in whole or

         in part.”5

         Whether the Unlawful Possession of Firearm statute applies to a person who is, or has

been, on deferred-adjudication community supervision is not clear.

         The statute begins by limiting the class of offenders to the “person who has been

convicted,” and it repeats that the offense is committed by possession of a firearm “after

conviction.” Deferred adjudication is distinguished from other forms of community supervision



         3
           “‘Parole’ means the discretionary and conditional release of an eligible inmate sentenced to the
institutional division so that the inmate may serve the remainder of the inmate’s sentence under the supervision of the
pardon and paroles division.” G O V ’T C O D E § 508.001(6).

         4
           “‘Mandatory supervision’ means the release of an eligible inmate sentenced to the institution division so
that the inmate may serve the remainder of the inmate’s sentence not on parole but under the supervision of the
pardons and paroles division.” Id., § 508.001(5).

         5
             C O D E C RIM . P RO C . art. 42.12, § 2.
                                                                                             (Ex parte Smith - 5)

in that the defendant is not found guilty. It may be, and has been, said that it is not a conviction:

“The essence of deferred adjudication is that the defendant is placed on community supervision

without a finding of guilt and without being convicted of any offense.”6

       Another statute that deals with firearms, regulating the carrying of concealed handguns,

gave “convicted” a special definition that included deferred adjudication:

       “‘Convicted’ means an adjudication of guilt or, except as provided in Section
       411.1711, an order of deferred adjudication entered against a person by a court of
       competent jurisdiction whether or not the imposition of the sentence is
       subsequently probated and the person is discharged from community supervision.
       The term does not include an adjudication of guilt or an order of deferred
       adjudication that has been subsequently:
              (A) expunged; or
              (B) pardoned under the authority of a state or federal official.”7

A related statute created an exemption from the status of being “convicted” for some persons

who were on deferred adjudication.8

       Whether a person who is on deferred adjudication has been “convicted” as that term is

used in the Unlawful Possession of Firearm statute need not be resolved today. The claim before

us is that the applicant was denied effective assistance of counsel when his attorney allowed him

to plead guilty without raising this question in the trial court. We think that this may not be called

ineffective assistance. For one thing, as we have explained, the issue of the proper construction




       6
           George E. Dix & Robert O. Dawson, Texas Practice – Criminal Practice and Procedure § 39.51 (2001).

       7
           G O V ’T C O D E § 411.171.

       8
           Id., § 411.1711.
                                                                                                   (Ex parte Smith - 6)

of the statute was unresolved and remains unclear. In such circumstances, counsel usually may

not be held to have rendered ineffective assistance. 9

         For another, the circumstances of the case must be taken into account. The applicant was

on deferred adjudication for a felony of the second degree; he faced a twenty-year sentence for

any violation of the conditions of supervision. He also pleaded guilty to several other felony

offenses, with the agreement that the sentences in those cases, like the sentence in this case,

would run concurrently with the twenty-year sentence.

         Given the unsettled state of the law regarding the possession of firearm statute, and the

agreement for concurrent sentencing in that case and other cases, we do not think that counsel’s

advice to plead guilty to the firearm offense can be called ineffective assistance.

         Relief is denied.


Delivered September 30, 2009.
Publish.




         9
          See Ex parte Chandler, 182 S.W .3d 350, 358 (Tex. Cr. App. 2005); Ex parte Welch, 981 S.W .2d 183,
184 (Tex. Cr. App. 1998) (“[W ]e will not find counsel ineffective where the claimed error is based upon unsettled
law”).
