Background

• Appellant Robert Saldana challenges a conviction for unlawful possession of a firearm and a 12-year sentence enhancement.
• Appellant previously pled guilty to theft of a firearm on April 30, 2007, receiving a two-year state jail term.
• A September 19, 2012 traffic stop yielded possession of a .380 pistol and led to indictment under Texas Penal Code §46.04(a)(1).
• Indictment alleged possession within five years after release from confinement following the 2007 felony, but no evidence of release date was introduced.
• The jury instruction mirrored the statute; the application paragraph followed the indictment as charged, with no variance from pleaded theory.
• The State failed to prove the release date or date of confinement, creating a fatal evidentiary gap for the charged offense.

Issues

Key Cases Cited

• Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (standard for reviewing evidence sufficiency)
• Jackson v. Virginia, 443 U.S. 307 (1980) (beyond a reasonable doubt standard)
• Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) (hypothetical correct jury charge framework)
• Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) (elements defined by hypothetically correct charge)
• Malik v. State, 953 S.W.2d 240 (Tex. Crim. App. 1997) (element definition alignment with indictment)
• Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) (measure sufficiency by element pleaded; alternatives constrained by indictment)
• Macias v. State, 136 S.W.3d 702 (Tex. App.—Texarkana 2004) (fatal variance when indictment tracks only subset of statute)
• Fagan v. State, 362 S.W.3d 796 (Tex. App.—Texarkana 2012) (post-Cada treatment of alternative elements in statute)
• Nguyen v. State, 54 S.W.3d 49 (Tex. App.—Texarkana 2001) (earlier view on release-date proof not required absent premises element)
• Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (speculation cannot substitute for evidence)