Wednesday, September 30, 2009

Case Summary - Ricky Tapps v. State

Ricky Tapps failed to register as a sex offender and was convicted, making him a state jail felon. Then he possessed a firearm. A jury convicted him of felon in possession of a firearm. Based on enhancements from Louisiana convictions, he was sentenced to thirty-two years in prison for felon in possession of a firearm. The court of appeals affirmed the conviction, holding that a state jail felony is a "felony" for purposes of the felon in possession of a firearm statute (Section 46.04 of the Penal Code if you were wondering).

The Court of Criminal Appeals affirmed the conviction as well. Judge Price, writing for eight-and-a-half judges, explained that the statute unambiguously on its face appeared to include "state jail felony" in the term felony. The definition of felony in the Penal Code defines "felony" as an offense so designated by law, and the section of the Penal Code classifying felonies includes "state jail felony" in the list of all felonies. And hey, the CCA has also happened to have previously held that amendments to section 46.04 made it apply to all felons. So, when they say a state jail felon is a felon for purposes of section 46.04, they mean it.

Of course, Judge Price went on to reject Tapps' arguments that section 46.04 didn't apply to state jail felonies. First, just because Tapps was only sentenced to seven months in state jail and "traditional felonies" required a year in the penitentiary didn't make the statute any less applicable. The sentence actually imposed did nothing to change how the offense was categorized. And the fact that higher level felonies require "imprisonment" in a penitentiary while misdemeanors require "confinement" in jail also lacked merit. Felonies are defined by using the words "confinement" and "imprisonment" interchangeably. Second, the fact that section 46.04 refers to release from parole or mandatory supervision does not exclude state jail felonies from the general category of "felony". State jail felons are eligible to be released from community supervision, which is also referred to in that section, suggesting all levels of felony are covered by section 46.04. Finally, just because the legislature distinguished between felonies and state jail felonies in section 12.42 dealing with enhancement doesn't mean state jail felonies are not included in the general term "felony" in section 46.04. Section 46.04 doesn't draw the same distinction that section 12.42 does.

Presiding Judge Keller concurred with the everything the majority said, except the paragraph I just wrote. Here's a link to the CCA case info. Here's a link to the court of appeals case info. Here's a link to my post when discretionary review was granted. Here's a link to the oral arguments.

[I'm with Keller on this one, why go into tearing down the defendant's arguments when you've already said the statute unambiguously applies to state jail felons and you've already held as much. Is she saying that Price was unnecessarily thorough or inadvertently spiteful? Well, she's not really saying anything as she didn't even write an opinion, so I guess it's best not to speculate. Although, I guess it's good to explain why Campbell's holding was distinguishable, so maybe that's why eight other judges joined this part of the opinion. And really, what's the harm?]