United States v. Fix

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10789
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LAWRENCE CHRISTOPHER FIX,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
August 29, 2001
Before JOLLY, SMITH, and WIENER,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Lawrence Fix appeals his conviction of vio-
lating 18 U.S.C. § 922(g)(1) (2001), which
prohibits convicted felons from possessing
firearms “in and affecting” interstate com-
merce. We reverse and remand.
I.
In 1981, Fix pleaded guilty of arson in state
court and was sentenced to three years’ proba-
tion. In 1984, the state court granted his mo-
tion to set aside the sentence of probation,
grant a new trial, and dismiss the matter.
In May 2000, Fix was indicted in the instant
federal proceeding for being a felon in
possession of a firearm. He and the govern-
ment stipulated to his felony conviction for ar-
son and to the facts surrounding his arrest. Fix

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filed a motion to dismiss the federal in-
dictment, asserting that his arson conviction
could not serve as a predicate offense under 18
U.S.C. § 921(a)(20) because the state court
had set aside his probation. The federal dis-
trict court denied that motion, citing United
States v. Padia, 584 F.2d 85, 86 (5th Cir.
1978). Fix entered a conditional plea of guilty
and, pursuant to FED. R. CRIM. P. 11(a)(2), re-
served the right to appeal the denial of his mo-
tion to dismiss the indictment.
II.
Fix presents one issue on appeal: “Do[] the
prior proceedings in state court qualify [Fix]
for the exemption contained in 18 U.S.C.
§ 921(a)(20)?” That exemption, in regard to
whether a perso n found in possession of a
firearm is still considered a “felon” under
§ 922(g)(1), states:
What constitutes a conviction of such a
crime shall be determined in accordance
with the law of the jurisdiction in which
the proceedings were held. Any convic-
tion which has been expunged, or set
aside or for which a person has been
pardoned or has had civil rights restored
shall not be considered a conviction for
purposes of this chapter, unless such
pardon, expungement, or restoration of
civil rights expressly provides that the
person may not ship, transport, possess,
or receive firearms.
18 U.S.C. § 921(a)(20) (2001).
Fix argues that TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 20(a) completely restores
his civil rights. That statute provides:
If the judge discharges the defendant un-
der this section, the judge may set aside
the verdict or permit the defendant to
withdraw his plea, and shall dismiss the
. . . indictment against the defendant,
who shall thereafter be released from all
penalties and disabilities resulting from
the offense or crime of which he has
been convicted . . . .
TEX. CODE CRIM. PROC. ANN. art. 42.12,
§ 20(a) (Vernon Supp. 2001).
Fix claims that his previous felony convic-
tion cannot serve as a predicate offense under
§ 921(a)(20) because he successfully complet-
ed probation for that conviction. Consequent-
ly, he argues, the district court erroneously de-
nied his motion to dismiss the indictment.1
No person “who has been convicted in any
court of a crime punishable by imprisonment
for a term exceeding one year” may possess a
firearm “in or affecting” interstate commerce.
§ 922(g)(1).2 The law of the jurisdiction in
1 Fix claims that his rights were restored by
individualized certification under art. 42.12, § 20.
We disagree. Fix received an order from a Texas
state court granting his motion and stating that he
would “be released from further probation, granted
a new trial, and said probation be set aside, and
that this cause be dismissed from the docket of this
Court.” The order did not state that the conviction
was expunged or erased. Thus, Fix’s civil rights
were passively restored by operation of law under
art. 42.12, § 20.
2 Section 922(g)(1) provides:
(g) It shall be unlawful for any personSS
(1) who has been convicted in any court of,
a crime punishable by imprisonment for a
term exceeding one year; . . .
(continued...)

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which the proceedings were held determines
what constitutes a crime.3 So, Texas law de-
termines whether Fix was a convicted felon for
purposes of § 922(g)(1). See, e.g., United
States v. Dupaquier, 74 F.3d 615, 617 (5th
Cir. 1996).
III.
In United States v. Daugherty, No.
00-20871, 2001 U.S. App. LEXIS 19201 (5th
Cir. Aug. 28, 2001), we upheld a conviction
under § 922(g)(1) in a somewhat different sit-
uation. The defendant had served his period of
probation, and the state court merely ordered
that “the Defendant is discharged from
probation.” Id. at *1 n.1. As here, the de-
fendant’s rights “were passively revived by
operation of law, not by individualized certifi-
cation.” Id. at *7. We concluded, based on
applicable federal and Texas precedent, that,
for purposes of § 922(g)(1), the defendant “re-
mained convicted even after successfully com-
pleting probation.” Id. at *13 (footnote omit-
ted).
Fix accurately argues that his circumstance
is materially distinguishable from that in
Daugherty. Specifically, as we have noted, the
state court order discharging Fix from pro-
bation also granted him a new trial and direct-
ed that the cause be dismissed. As Fix notes,
TEX. CODE CRIM. PROC. ANN. art. 40.08 stat-
ed, at the time of Fix’s dismissal,4 that “[t]he
effect of a new trial is to place the cause in the
same position in which it was before any trial
had taken place. The former conviction shall
be regarded as no presumption of guilt nor
shall it be alluded to in the argument.”
In its brief on appeal, the government
makes no effort to address art. 40.08. Instead,
it argues that “[w]hile the government does
not dispute that Fix’s core civil rights have
been restored by operation of Texas law, the
state’s restrictions on his right to possess
firearms trigger the “unless clause” of § 921-
(a)(20), and preclude him from receiving the
benefit of the provision.” This argument is
untenable.
We need never reach the “unless clause” in
Fix’s case, because, by operation of Texas law,
it is as though he had never been convicted.
Once a motion for new trial is granted, “the
case remained . . . in the same position as
2(...continued)
to ship or transport in interstate or foreign
commerce, or possess in or affecting com-
merce, any firearm or ammunition; or to
receive any firearm or ammunition which
has been shipped or transported in interstate
or foreign commerce.
18 U.S.C. § 922(g)(1) (2001).
3 Beecham v. United States, 511 U.S. 368, 371
(1994).
What constitutes a conviction of such a
crime shall be determined in accordance
with the law of the jurisdiction in which the
proceedings were held. Any conviction
which has been expunged, or set aside or for
which a person has been pardoned or has
had civil rights restored shall not be
considered a conviction for purposes of this
chapter, unless such pardon, expungement,
or restoration of civil rights expressly pro-
vides that the person may not ship, trans-
port, possess, or receive firearms.
18 U.S.C. § 921(a)(20) (2001).
4 This article was repealed in 1986 but was in
effect at the time of Fix’s discharge. See Acts
1985, 69th Leg., ch. 685, § 4.

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before the trial . . . took place.” Reed v. State,
516 S.W.2d 680, 682 (Tex. Crim. App. 1974)
(citing art. 40.08).
It may have been a fortuity that the state
court added the grant of a new trial to the or-
der terminating probationary status, but we
cannot ignore the effect of that action. For ex-
ample, “if a motion for new trial is granted,
jeopardy does not attach.” Franklin v. State,
693 S.W.2d 420, 432 (Tex. Crim. App. 1985)
(citing art. 40.08; Whitehead v. State, 286
S.W.2d 947 (Tex. Crim. App. 1956)); see also
Carter v. State, 848 S.W.2d 792, 796 (Tex.
App.SSHouston [14th Dist.] 1993, pet. ref’d).
This completely undermines the government’s
assertion that Fix’s argument based on art.
40.08 “begs the question of whether the state
could try him a second time.” By making this
pronouncement, however, the government
does reveal that it believes the question of jeo-
pardy is significant here.
In summary, because the state court grant-
ed Fix a new trial,5 he stands in the shoes of
one who was never convicted. Accordingly,
he cannot be under disability or restriction in
regard to the possession of firearms. There is
no predicate offense, so the conviction of pos-
session of a firearm by a felon cannot stand.
The judgment of conviction and sentence is
REVERSED, and this matter is REMANDED
for further appropriate proceedings.
5 We limit this decision to the precise situation
in which a defendant is granted a new trial under
Texas law at a time when he was subject to art.
40.08. We express no view on any other
hypothetical circumstances.

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