          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                      NO. AP-76,575



               EX PARTE ANTONIO DAVILA JIMENEZ, Applicant



          ON APPLICATION FOR WRIT OF HABEAS CORPUS
    CAUSE NO. 1990CR4654-W3 IN THE 187TH DISTRICT COURT FROM
                          BEXAR COUNTY

        H ERVEY, J., delivered the opinion of the Court in which K ELLER, P.J., and
P RICE, W OMACK, J OHNSON, K EASLER, C OCHRAN and A LCALA, JJ., joined. M EYERS,
J., filed a dissenting opinion.

                                      OPINION

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

to Article 11.07. Applicant was charged with and convicted of unlawful possession of a

firearm by a felon. The State proved Applicant was a felon by introducing proof of

Applicant’s prior felony conviction for rape of a child. Subsequent to his conviction for

unlawful possession of a firearm by a felon, Applicant’s predicate felony conviction was

set aside. We filed and set this application to address Applicant’s claim that his

conviction for unlawful possession of a firearm by a felon is now void because the
                                                                                      Jimenez–2

predicate felony conviction used to prove his felony status was set aside and the charge

dismissed. We will deny relief.

                         FACTS AND PROCEDURAL HISTORY

       In 1982, Applicant was convicted of rape of a child.1 Nine years later, Applicant

was convicted of unlawful possession of a firearm by a felon2 and possession of heroin

under 28 grams.3 To prove Applicant was a felon at the time he possessed the weapon,

the State introduced proof of Applicant’s prior felony conviction for rape of a child. No

appeal was perfected challenging either conviction.

       On January 15, 1998, Applicant filed an application for a writ of habeas corpus

challenging his conviction for rape of a child. He claimed his plea was involuntary due to

ineffective assistance of counsel. Ex parte Jimenez, No. 73,544 (Tex. Crim. App. Sept.

29, 1999) (per curiam) (not designated for publication). This Court granted relief on

September 29, 1999 and set aside Applicant’s conviction. Id. Subsequently, the State


       1
         Applicant was charged under Section 21.09 of the Texas Penal Code. In 1983, Section
21.09 was repealed by the Legislature and replaced by Sections 21.011 and 22.021. Act of May
25, 1973, 63d Leg., R.S., ch. 399, § 21.09, sec. 1, 1973 Tex. Gen. Laws 883, 917-18, amended by
Act of May 30, 1983, 68th Leg., R.S., ch. 977, § 21.09, sec. 12, 1983 Tex. Gen. Laws 5311, 5321
(current version at TEX . PENAL CODE ANN . §§ 21.011, 22.021).
       2
        The offense of unlawful possession of a firearm by a felon was formerly governed by
Section 46.05 of the Texas Penal Code. However, in 1993 the Legislature amended the scope of
the offense and renumbered the provision. Act of May 25, 1973, 63d Leg., R.S., ch. 399,
§ 46.05, sec. 1, 1973 Tex. Gen. Laws 883, 964, amended by Act of May 31, 1993, 73d Leg., R.S.,
ch. 900, § 1.01, sec. 46.05, 1993 Tex. Gen. Laws 3586, 3688 (current version at TEX . PENAL
CODE ANN . § 46.04). We will refer to Section 46.05 in this opinion because it was the applicable
version of the statute at the relevant time.
       3
           T EX. H EALTH & S AFETY C ODE A NN. § 481.115(d).
                                                                                         Jimenez–3

dismissed the charge due to a missing witness.

       Applicant has previously filed two habeas corpus applications challenging his

conviction for unlawful possession of a firearm by a felon. Both of those applications

were dismissed.

       The instant application for habeas corpus was filed on March 1, 2011.4 In this,

Applicant’s third application, he argues that his conviction for unlawful possession of a

firearm is now void because the predicate felony supporting his conviction has been set

aside and the charge dismissed. The trial court entered findings of fact and conclusions

of law recommending that relief be granted on all grounds.

                             ARGUMENTS OF THE PARTIES

A. Applicant

       Applicant argues that his conviction for unlawful possession of a firearm is void in

light of our holding in Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). He

contends that, in Cuellar, we held that the defendant’s conviction for unlawful possession

of a firearm was void because the underlying felony used to support his conviction was

set aside. Id. at 820. Applying Cuellar to his case, Applicant argues that he should be

granted relief because he is still incarcerated for the crime of unlawful possession of a

firearm, even though the State is now unable to prove an element of that crime (that



       4
         Applicant is not barred from bringing this third writ application pursuant to Article
11.07, Section 4, because neither of Applicant’s previous applications resulted in a final
disposition. See TEX . CODE CRIM . PROC. ANN . art. 11.07, § 4.
                                                                                     Jimenez–4

Applicant has a previous felony conviction).

B. The State

       The State argues that Applicant waived his right to collaterally attack his unlawful

possession of a firearm conviction. The State reasons that, when proof of Applicant’s

prior felony conviction was introduced at his trial for unlawful possession of a firearm by

a felon, he was required to challenge the validity of that predicate conviction at that trial

or on direct appeal. See Ex parte Richardson, 201 S.W.3d 712, 713-14 (Tex. Crim. App.

2006); Ex parte Pena, 71 S.W.3d 336, 338 (Tex. Crim. App. 2002).

       Alternatively, the State contends that Applicant’s conviction for unlawful

possession of a firearm is constitutionally sound because his status as a felon at the time

of the offense is dispositive. See State v. Mason, 980 S.W.2d 635, 641 (Tex. Crim. App.

1998). Similarly, the State argues that Cuellar is distinguishable because, in that case, the

defendant’s predicate felony was set aside before he was charged with unlawful

possession of a firearm. Cuellar, 70 S.W.3d at 820. Thus, the defendant in Cuellar did

not have the status of a felon when he possessed the weapon. In contrast, Applicant had

the status of a felon at the time he possessed the firearm because his underlying felony

conviction was set aside after he was convicted.

       The State also cites Lewis v. United States, 445 U.S. 55, 65 (1980), in which the

Supreme Court held that a defendant’s prior felony conviction can serve as the predicate

for a later charge, despite the fact that the underlying felony conviction may be
                                                                                      Jimenez–5

constitutionally infirm. The State asserts that the Supreme Court’s reasoning in Lewis

establishes that the use of a defendant’s extant felony conviction, even if it is

subsequently set aside, does not offend due process so long as the defendant had the

status of a felon at the time he committed the offense requiring a prior felony conviction.

       Finally, the State contends that the plain language of Section 46.05 of the Texas

Penal Code demonstrates that the State need prove only the felony status of the defendant

at the time he possessed the weapon to obtain a valid conviction for unlawful possession

of a firearm by a felon.

                                        DISCUSSION

       Today, we must decide whether a defendant’s conviction for unlawful possession

of a firearm by a felon is void because the defendant successfully challenged his predicate

felony conviction after he was found guilty of possessing a firearm. In doing so, we must

construe the phrase “[a] person who has been convicted of a felony . . . .” T EX. P ENAL

C ODE A NN. § 46.05 (1973). Although this phrase remains in the statute as it exists today,

other aspects of the statute are substantively different than when Applicant was charged

with the offense.5 We intimate no view on any other aspect of the statute not relevant to

Applicant’s claim.

       At the time Applicant was charged with unlawful possession of a firearm, Texas



       5
         For example, in 1993, the Legislature removed the requirement that the predicate felony
conviction involve an act of violence to person or property but added another placing a temporal
limit on the applicability of the statute. See also note 2, supra.
                                                                                  Jimenez–6

Penal Code Section 46.05 provided the following:

       § 46.05—Unlawful Possession of Firearm by Felon.
          (a) 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.
          (b) An offense under this section is a felony of the third degree.

T EX. P ENAL C ODE A NN. § 46.05 (1973).

       We have previously addressed what must be proven by the State to obtain a valid

conviction for unlawful possession of a firearm by a felon. State v. Mason, 980 S.W.2d

635 (Tex. Crim. App. 1998). In Mason, the defendant was indicted for unlawful

possession of a firearm by a felon. Id. at 636. On appeal, the issue presented was which

version of the statute controlled—the amended version simply requiring a predicate

felony conviction or the former version requiring a felony conviction involving an act of

violence or threatened violence to a person or property. Id. at 636-37. Addressing the

predicate felony requirement, we held that to obtain a valid conviction, the State must

prove a defendant’s felony status when he possessed the firearm. Id. at 641.

       This requirement is consistent with the cases cited by Applicant and the

State—Lewis and Cuellar. In Lewis, the Supreme Court addressed whether a defendant’s

infirm extant felony conviction could constitute the predicate for a subsequent conviction

for unlawfully possessing a firearm as a felon. Lewis, 445 U.S. at 56. The defendant in

Lewis was convicted of felony breaking and entering with intent to commit a

misdemeanor. Id. at 56-57. Sixteen years later, he was indicted for knowingly receiving
                                                                                     Jimenez–7

and possessing a firearm in violation of federal law. Id. Like the statute in this case, the

statute at issue in Lewis punished “any person who has been convicted of a felony.” 6 At

trial, the defendant argued that his felony conviction for breaking and entering could not

be used to prove he was a felon when he possessed the firearm because he was not

represented by counsel when he was convicted of breaking and entering. Id. at 58-59.

The Supreme Court analyzed the plain meaning of the statute and held that the prohibition

in the statute was constitutional, despite the fact that the predicate felony may be subject

to collateral attack on constitutional grounds. Id. at 65-67. Implicit in the Court’s

holding was that, to obtain a valid conviction, the prosecution must prove the status of the

defendant at the time he possessed the weapon. See id. at 64 (discussing Congress’s

intent that the defendant clear his status as a felon before obtaining a firearm).

       Later, in Cuellar, we addressed whether a felony conviction that was set aside

could subsequently be used to prove that the defendant was a felon at the time of

possession when he was arrested for felony possession of a firearm. Cuellar, 70 S.W.3d

at 816. In 1976, Rudy Cuellar pled guilty to the felony offense of possession of heroin.

Id. After successfully completing community supervision, the trial court discharged the

defendant, set aside his conviction, and dismissed the indictment against him in

accordance with Article 42.12, § 20 of the Texas Code of Criminal Procedure. Id.; see



       6
        Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. App.
§ 1202(a)(1) (1968), amended by Firearms Owners’ Protection Act of 1986, Pub. L. No. 99-308,
§ 104(b), 100 Stat. 449, 459 (current version at 18 U.S.C. § 922(a)(1)(A)).
                                                                                      Jimenez–8

T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 20. In 1996, the defendant was arrested for

unlawful possession of a firearm by a felon. Cuellar, 70 S.W.3d at 816. He pled not

guilty, but he was convicted. Id. at 817. On appeal, the defendant argued that one of the

elements of unlawful possession of a firearm is a previous felony conviction and that,

because his conviction for possession of heroin was set aside and the indictment

dismissed, he could not be guilty of unlawful possession of a firearm by a felon because

he was not a felon at the time he committed the offense. Id. We agreed with the

defendant and held that his 1976 conviction could not be used to prove he was a felon

when he possessed the firearm. Id. at 816, 820. However, Applicant’s case is

distinguishable from Cuellar because, in Cuellar, the defendant’s predicate felony

conviction was set aside before he possessed the firearm which led to his being arrested.

Id. at 816-17. In contrast, Applicant’s rape of a child conviction was set aside in 1999,

eight years after he had already been convicted of unlawfully possessing a firearm as a

felon.

         Today we reaffirm our holding in Mason. To obtain a valid conviction for

unlawful possession of a firearm by a felon, the State must prove a defendant’s felony

status at the time of the possession of the firearm. Mason, 980 S.W.2d at 641. Therefore,

if the defendant had the status of a felon at the time he possessed the firearm, a conviction

for unlawful possession of a firearm by a felon is not void if the predicate felony
                                                                                         Jimenez–9

conviction is subsequently set aside.7

       Under these facts, Applicant is not entitled to relief because he had the status of a

felon when he possessed the firearm which led to the new charges.

                                        CONCLUSION

       Applicant’s conviction for unlawful possession of a firearm is valid because he

had the status of a felon at the time he possessed the firearm. As a result, Applicant’s

application for a writ of habeas corpus relief is denied.

                                                                     Hervey, J.

Delivered: February 8, 2012
Publish




       7
         We have previously addressed the topic of void judgments, and we note that Applicant’s
claim does not comport with our case law delineating when judgments may be void. See Nix v.
State, 65 S.W.3d 664, 668-69 (Tex. Crim. App. 2001) (listing situations when criminal
judgments are void: (1) the alleged charging instrument does not satisfy the requisites of a
charging instrument, (2) the trial court lacks subject matter jurisdiction over the offense charged,
(3) the record reflects no evidence to support the conviction, or (4) when an indigent defendant is
required to face criminal trial proceedings without appointed counsel, when such has not been
waived). While we noted that the list is not exclusive, we did indicate that it is “very nearly so.”
Id. at 668.
