Page 33 - TPA Journal July August 2021

Joe C. Tooley, Legal Digest Editor
Joe C. Tooley, Attorneys & Counselors, Rockwall, Texas
www.TooleyLaw.com 972-722-1058

TEXAS POLICE ASSOCIATION

LEGAL DIGEST

July - August 2021

AUTHOR’S NOTE: It is the goal of this submission to extract those portions of relevant appellate
opinions or the syllabus of the legal reporter which bear directly upon law enforcement methods
and provide guidance for officers on an operational level. Much of the information pertaining to
these cases is lifted verbatim from the court opinion or syllabus with independent analysis inserted
as appropriate. Due to clarity for training purposes, the distinction between quotes from the
opinions and inserted analysis is not always identified and legal citations within the opinion are
often omitted. Emphasis is placed upon reported decisions from the Fifth Circuit Court of Appeals
and the Texas Court of Criminal Appeals.

EVIDENCE – POSSESSION OF FIREARM BY A in possession of the .38 revolver on or about April 29,
FELON. 2019 in violation of 18 U.S.C. § 922(g)(1). Smith
pleaded guilty to the charge. In connection with that
While at a friend’s house, Tredon Smith touched a plea, Smith signed a factual basis indicating that he had
Smith & Wesson .38 caliber revolver. He later pleaded “touched” the firearm, which the district court accepted
guilty to being a felon in possession of that firearm in as a sufficient basis for his conviction. The district court
violation of 18 U.S.C. § 922(g)(1). In connection with then sentenced Smith to 57 months of imprisonment,
his guilty plea, he signed a factual basis document with three years of supervised release to follow. Smith
indicating the only interaction he had with the firearm timely appealed.
was that he had “touched” it. The district court accepted
that factual basis as sufficient to sustain Smith’s § Smith challenges his plea colloquy, primarily co tending
922(g)(1) conviction. For the following reasons, we that the district court incorrectly concluded that his
VACATE Smith’s guilty plea, conviction, and sentence admission to having “touched” the .38 revolver
and REMAND for entry of a new plea and necessary constituted a sufficient basis for possession as required
proceedings thereafter. to sustain a conviction under 18 U.S.C. § 922(g)(1).

Midland, Texas police officers arrested Smith after they Among other requirements, Federal Rule of Criminal
recovered three stolen firearms on April 6, 2019. Procedure 11 requires a federal district court taking a
Following his arrest, Smith was shown a picture of one guilty plea to independently evaluate whether the
of the firearms—a Smith & Wesson .38 caliber defendant’s admitted-to conduct actually constitutes a
revolver—which he admitted to having seen and violation of the statute under which he is charged.
touched at a friend’s house. He statedthat he did not ………….
remember touching the other firearms. But where, as here, review is for plain error, we may
Smith was later arrested and charged with being a felon also “scan the entire record” for any other facts

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