Just got a reversal on a possession of firearm by felon.

At trial, stipulation entered as to prior conviction, as alleged in the indictment.

Indictment shows date of conviction on underlying felony within five years of date of trial (not to mention arrest date)

Appeals court reversed and acquitted for sufficiency of evidence.

I think I have a PDR. Anyone else have any thoughts?

I may be unusually dopey today, but why was the evidence insufficient?

Appellate court said it could not tell from the record that defendant was in possession within five years.

A pure sufficiency claim may be the most difficult to get heard by the CCA. How about a MFR first? This will allow you to fine tune your arguments and further evaluate whether to file a PDR. Of course, the CCA doesn't take cases just because the COA got it wrong. I have a useful summary of a recent talk given by Judge Cochran on "How to get your PDR granted." Email me (with a FAX number) at jstride@co.collin.tx.us, if you would like me to fax it to you. This is one of most useful cheat sheets in deciding to file a PDR and, when you do so, how to do it properly.

Unless I'm misreading it, the opinion seems to indicate the stipulation doesn't refer back to the indictment. (They've omitted the "formal parts" so I dunno).

If it did refer back to the conviction "as alleged in the indictment", you might have a better argument in a PDR.

The stipulation, entered into evidence, reads generally,

The [defendant] on trial herein in Cause no. xxx for Felon in Possession of a Firearm is one and the same [defendant] convicted of a felony, to wit: Possession of a Controlled Substance in Cause no. xxx

Hmm.. . Then it seems the issue turns on whether the "five years" thing is an element. And it probably is (your guy was in his house, no?).

If that's the case, it appears as though the stipulation doesn't go far enough to proving the element.

This is another reason that courts should not have taken the position they can require prosecutors to enter into a stipulation. This same sort of gamesmanship was played in the DWI context. Eventually, the CCA said the Defendant waives the right to complain if he asks for a stipulation. Check out Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005).

John Bradley
District Attorney
Williamson County, Texas

Well, in Gordon's case they don't seem to have stipulated to the fact that the conviction was within 5 years. In Bryant, they stipulated to the prior DWI convictions (which was all that was necessary).

Again, it turns on whether the State has to prove the five year time period. (I don't see how it isn't an element: it's the one thing that distinguishes an illegal home-based-possession-of-a-gun-by-a-felon from a legal one.)

Thanks to all. This appears to be a case of age and cunning overcoming youth and enthusiasm. (Unfortunately, I cannot lay claim to being the youth, but I have learned from the prior mistake.)

The good news is the opinion is unpublished.