George, Christopher Anthony
PD-1463-15
| Tex. App. | Nov 12, 2015Background
- Christopher George was convicted of unlawful possession of a firearm by a felon after police found a gun in his impounded vehicle on February 10, 2014.
- The State proved a prior robbery conviction dated January 29, 2009 and introduced the judgment and a pen packet showing George was transferred from county jail to the penitentiary on February 18, 2009 to serve a three-year sentence.
- Neither party introduced evidence of George’s actual release date from confinement or the date his supervision/parole ended.
- The indictment alleged the February 10, 2014 possession occurred within five years of George’s release from confinement/supervision, as required by Tex. Penal Code § 46.04(a)(1).
- The Third Court of Appeals affirmed the conviction, reasoning the pen packet established George was confined as of February 18, 2009, so his release must have been after that date and the 2014 possession fell within five years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that possession occurred within five years of release | State: pen packet + conviction date show confinement began Feb 18, 2009, so possession on Feb 10, 2014 was within five years | George: State failed to prove actual release date; jury was asked to "do the math" and speculate from sentence/pen packet | Court of Appeals: Evidence sufficient — transfer date in pen packet means release necessarily after Feb 18, 2009, so Feb 10, 2014 is within five years |
| Whether a pen packet admitted only to prove conviction can also prove release timing | State: pen packet’s transfer date is admissible and proves confinement start date, which bounds release | George: pen packet was admitted to prove conviction; using it to infer release requires jurors to interpret agency records and speculate | Court: permissible to rely on pen packet transfer date to infer that release occurred after that date; no exact release date required here |
| Whether inviting jurors to infer release date from conviction/sentence/jail credit is impermissible speculation | George: analogous to Saldana — inviting jury to "do the math" leads to speculation and insufficient evidence | State: unlike Saldana, here record shows transfer to prison on a specific date, eliminating speculative gaps | Court: distinction valid — this case did not require speculative surmise because confinement date was shown |
| Remedy requested | George: reversal and acquittal (or other relief) because verdict not rationally based on evidence | State: conviction should be affirmed | Court: affirmed conviction; overruled sufficiency challenge |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (Due process requires proof of every element beyond a reasonable doubt)
- Fagen v. State, 362 S.W.3d 796 (Tex. App. — Texarkana 2012) (release date may be necessary when period extends beyond five years from conviction)
- Saldana v. State, 418 S.W.3d 722 (Tex. App. — Amarillo 2013) (reversal where jury would need to speculate on release date from sentence/jail credit)
- Tapps v. State, 257 S.W.3d 438 (Tex. App. — Austin 2008) (discussing need for release date to determine statutory period)
- Gill v. State, 57 S.W.3d 540 (Tex. App. — Waco 2001) (affirmance where confinement date shown made proof of exact release date unnecessary)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (a conviction cannot rest on mere speculation)