IN THE COURT OF CRIMINAL APPEALS
OF TEXAS




NOS. 1543/1545-02

 

GHOLAMERZA GHARBI, Appellant

v.


THE STATE OF TEXAS



ON APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
DALLAS COUNTY

Hervey, J., delivered the opinion of the Court in which Keller, PJ., Meyers Keasler, Holcomb and Cochran, JJ., joined. Meyers, J., filed a concurring opinion in which Cochran, J., joined. Price, Womack and Johnson, JJ., concurred.

 

OPINION



Appellant was convicted of violating the same protective order on two occasions. State law, in relevant part, defines the elements of the offense of violating a protective order as a person who knowingly or intentionally goes near the residence of a protected individual in violation of an order issued under the Family Code. See 25.07(a)(3)(A), Tex. Penal Code. The issue presented in these cases is whether the evidence is sufficient to support a conviction for this offense when the charging instruments contain an unnecessary allegation. We decide that the evidence is sufficient to support appellant's two convictions for violating a protective order.

The records in these cases reflect that appellant was the subject of two protective orders that were issued by the same court in a divorce proceeding between appellant and his wife. One order prohibited appellant from going within 500 feet of the residence of his wife (Evelyn), and the other order prohibited him from going within 500 feet of the residence of their minor daughter (Ivana). Ivana lived with Evelyn in the residence listed in the protective orders.

An information charged appellant with violating Ivana's protective order on May 5, 2000, and another information charged him with violating the same protective order on May, 17, 2000. For example, the information in cause number 1545-02 alleged that "on or about" May 17, 2000, appellant:

did unlawfully then and there intentionally and knowingly go to and near the residence of [Evelyn], a protected individual, at [a specific address] in violation of an order issued, to-wit: by the 292nd District Court of Dallas, Texas in Cause Number CV0000285-V, signed by the Court on April 13, 2000, which order is outlined in Section 4 thereof, to-wit: Going to or within 500 feet of the residence of [Ivana], to-wit: [the same specific address] and any subsequent address that may be taken during the pendency of this protective order except as ordered in writing by a District Court of Dallas County, Texas.



Evelyn testified at both trials that she obtained a protective order for herself and one for Ivana. Evelyn also provided testimony over the course of both trials that on May 5th and May 17th appellant came within 500 feet of the residence listed in the protective orders. Ivana's protective order was admitted into evidence at both trials. The jury charges in both trials were consistent with the allegations in the informations.

The sufficiency issue in these cases centers around the allegation in the informations referring to Evelyn as "a protected individual." On direct appeal in both cases, appellant claimed that a variance between this allegation and the proof at his trials was "fatal" rendering the evidence insufficient to support his convictions. The Court of Appeals rejected this claim in a single opinion that disposed of both cases. See Gharbi v. State, Nos. 11-01-00020-CR & 11-01-00021-CR, slip op. at 5 (Tex.App.-Eastland, May 30, 2002) (nonpublished).

We exercised our discretionary authority to review this decision. In the sole ground upon which we granted discretionary review in both cases, appellant claims that the evidence is insufficient to support his convictions because the prosecution did not prove the allegation in the informations referring to Evelyn as "a protected individual" under Ivana's protective order (which the prosecution could not have proven since Evelyn was not "a protected individual" under that order). Appellant argues in his brief:

One of the elements of the offense charged was that [Evelyn] was a protected individual under [Ivana's protective order]. In order to convict [appellant] the State must prove, and the jury must find, that [Evelyn] was a protected person under [Ivana's protective order]. There is no such evidence.



For evidentiary sufficiency purposes under both federal and state law, the prosecution alleged and proved everything that the law required when it alleged and proved that appellant came within 500 feet of the residence in violation of a protective order. See Fuller v. State, 73 S.W.3d 250, 252 (Tex.Cr.App. 2002) (federal constitutional law measures evidentiary sufficiency against the "elements of the criminal offense as defined by state law") and at 254 (state law measures evidentiary sufficiency against an "authorized by the indictment ... hypothetically correct jury charge" which "encompasses [the] statutory elements of the offense as modified by the charging instrument"); Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Cr.App. 2001); Malik v. State, 953 S.W.2d 234, 236-40 (Tex.Cr.App. 1997). The allegation in the informations referring to Evelyn as "a protected individual" under Ivana's protective order is not a statutory element or "an integral part of an essential element of the offense" of violating a protective order. See Fuller, 73 S.W.3d at 252; Gollihar, 46 S.W.3d at 253-55 (discussing how indictment allegations impact sufficiency analysis under state law). Disregarding this allegation for sufficiency purposes also does not require wholly rewriting the informations to charge a different offense. See Gollihar, 46 S.W.3d at 253 (courts "may disregard certain unnecessarily pled indictment allegations on sufficiency review" but they should not "allow the hypothetically correct charge to wholly re-write the indictment to charge a different offense"). (1)

In addition, the variance between the allegations in the informations referring to Evelyn as "a protected individual" and the proof at the trials is immaterial. The records in these cases reflect that appellant had sufficient notice of the charges against him and that he was not surprised by the proof at his trials. See Fuller, 73 S.W.3d at 254; Gollihar, 46 S.W.3d at 257. These records also reflect that appellant is not at risk of being prosecuted later for the same offenses since (for double jeopardy purposes) the records clearly show that appellant was convicted of going near Ivana's residence on May 5th and May 17th in violation of Ivana's protective order. See Fuller, 73 S.W.3d at 254; Gollihar, 46 S.W.3d at 257.

The judgment of the Court of Appeals is affirmed.



Hervey, J.



Delivered: December 17, 2003

Publish

1. We note that the allegation in the informations referring to Evelyn as "a protected individual" along with the other allegations in the informations arguably charge appellant with also violating Evelyn's protective order. This would violate the rule that a paragraph in a charging instrument should not charge more than one offense. See Article 21.24(b), Tex. Code Crim. Proc.;Callins v. State, 780 S.W.2d 176, 183 (Tex.Cr.App. 1986); Aguirre v. State, 732 S.W.2d 320, 325-26 (Tex.Cr.App. 1987) (op. on reh'g). But, this is a claim that appellant procedurally defaulted by not raising it in the trial court. See Article 1.14(b), Tex. Code Crim. Proc.; Callins, 780 S.W.2d at 183.