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Jordan v. State

Texas Penal Code '46.04 is not an ex post facto law under either the Texas or the United States constitutions because the criminal conduct the statutes proscribes, possession of the firearm, occurred after the amendment of the statute, which changed only the circumstances under which a person is considered a felon.

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OPINION ON MOTION FOR REHEARING

Appellant, Dwayne Keith Jordan, has filed a motion for rehearing asking us to re-examine our opinion of May 24, 2001, in which we affirmed his conviction. We withdraw our opinion and judgment of May 24, 2001, and issue this opinion in its place. We expand our treatment of points of error three and eight to address their merits, but deny appellant’s motion for rehearing.

Appellant was charged by indictment with possession of a firearm by a felon. Tex. Pen. Code Ann. � 46.04 (Vernon 1994). Appellant pled guilty, pursuant to a plea-bargain agreement. The trial court found appellant guilty and assessed punishment at five years in prison. Appellant brings eight points of error, claiming the denial of his motion to quash the indictment was reversible error because: the term “possess” has multiple statutory meanings and is vague; the term “firearm” was not described in the indictment; and section 46.04 of the Penal Code, as applied to appellant, violates (1) the Texas Constitution’s restrictions on the authority of the legislature to limit the right to “wear” firearms, (2) the due process, due course of law, and ex post facto provisions of the Texas and United States Constitutions, and (3) the Texas Constitution’s prohibitions against retroactive laws. We affirm.

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