Case Summary - Ex parte Gregory Lynn Smith

Gregory Lynn Smith plead guilty to felon in possession of a firearm based upon an indictment that alleged he possessed the firearm before the fifth anniversary of his release from community supervision having been convicted of the felony offense of possession of a controlled substance with intent to deliver. Problem was, he wasn't "convicted" he had been placed on deferred adjudication probation. However, he pleaded guilty to the felon in possession case as part of a deal that his ten-year sentence there run concurrently with the twenty-five-year sentence he received when the trial court adjudicated him on the controlled substance case. He filed a writ of habeas corpus challenging the sufficiency of the evidence (which you can't do on a writ) and the effectiveness of his trial counsel. Smith claimed trial counsel rendered ineffective assistance of counsel for failing to investigate and discover that he'd been placed on deferred rather than "convicted." He also claimed that his plea was involuntary for the same reason.

Judge Womack, writing for a eight-judge-majority, denied relief. Section 46.04 of the Penal Code makes it an offense for a person to possess a firearm if that person has been convicted of a felony or if the person possesses a firearm after conviction and before the fifth anniversary of the person's release from community supervision. Article 42.12 has defined "community supervision" to include "deferred adjudication", but "deferred adjudication" does not result in a conviction until after adjudication. So which is it? The Court noted that another statute dealing with the regulation of concealed handguns gave "conviction" a special definition that included deferred adjudication.

Ultimately, the Court dodged the issue and held that trial counsel was not ineffective for recommending the plea in light of the concurrent sentence offer and the uncertainty of the law. Presiding Judge Keller concurred in the result without an opinion. Here's a link to the CCA case info. Because this was a writ of habeas corpus case, there was no underlying opinion.

[Kind of frustrating not getting the answer, but again, it's better not to overreach. However, I am happy to have a case that essentially stands for the proposition that a trial attorney is not ineffective for failing to make an argument when the law in that area is unsettled. I know there must be other cases like that out there, but I always have a devil of a time trying to find them.]