I have been told conflicting interpretations of what "conviction" means under Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. So, I would like some clarification from anyone with experience in this area.

Question: Under Texas law, is a person who has completed deferred adjudication probation for a felony offense considered "convicted" for purposes of purchasing or possessing a firearm?

If the case was not adjudicated, then there was no conviction and that prior does not "count" under PC 46.04. But I don't know if federal law differs re: purchases, etc.

No. A deferred by its very terms is not a conviction. A straight probation, by contrast, is a conviction, although not a final conviction for purposes of enhancement under Chapter 12 of the Penal Code.

quote:

Originally posted by Shannon Edmonds:
If the case was not adjudicated, then there was no conviction and that prior does not "count" under PC 46.04. But I don't know if federal law differs re: purchases, etc.

Got it thank you. As to federal law, it all depends on the Circuit you are in. Some circuits consider it a conviction, while others do not. The 5th Circuit treats deferred adjudication as a conviction for enhancement under the U.S. Sentencing Guidelines and the Immigration and Nationality Act.

One more data point to add: read Cuellar v State, 70 S.W.3d 815, and its progeny. Cuellar involved a straight probation, but when the defendant was discharged, it was a "judicial clemency"-type discharge, which dismissed the indictment, set aside the conviction, and released him from all penalties and disabilities of the conviction. As a result, Cuellar was no longer a "felon" for the purposes of section 46.04(a). Be sure that a crafty defense attorney doesn't sneak that language into a discharge order and slide it by your judge.

Yes. I read that case and it clarified that a "judicial clemency" sets aside the conviction, and therefore, the person is no longer constrained by the disabilities of not being able to possess a firearm. Thank you for the reply