Gholamerza GHARBI, Appellant, v. The STATE of Texas.
Nos. 1543-02, 1545-02
Court of Criminal Appeals of Texas.
Dec. 17, 2003.
481
Patricia Poppoff Noble, Assistant District Attorney, Dallas, Matthew Paul, State‘s Attorney, Austin, for State.
OPINION
HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, KEASLER, HOLCOMB and COCHRAN, JJ., joined.
Appellant was convicted of violating the same protective order оn 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 protеcted individual in violation of an order issued under the Family Code. See
The records in these cases reflect that appellant was the subject of two protective
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, apрellant:
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 protectivе 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 coursе 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 werе 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, 2002 WL 32344344 (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 cаses, 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 wаs 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 ordеr]. 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
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 refleсt 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 latеr 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.
MEYERS, J., filed a concurring opinion in which COCHRAN, J., joined.
PRICE, WOMACK and JOHNSON, JJ., concurred.
MEYERS, J., filed a concurring opinion in which COCHRAN, J., joined.
I agree with the majority that this is an issue of evidentiary sufficiency rather than a variance issue as discussed by the Court of Aрpeals.
A variance occurs when the State proves the commission of a crime in a manner that varies from the allegations in the charging instrument. See Gollihar v. State, 46 S.W.3d 243, 254-255 (Tex.Crim.App., 2001) (immaterial variance between the indictment and the proof at trial); Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997) (variance between the charging instrument and the jury charge). In this case, a variance would have occurred if, for example, the charging instrument alleged that appellant violated the order proteсting Ivana by going to her daycare, but at trial the State instead proved that appellant violated the order by communicating with Ivana in a threatening manner or by possessing a firearm. In such a situation,
The charging instrument alleges that appellant violated the order protecting Ivana by going to the residеnce of Evelyn (who also happens to be a protected person-a fact not necessary to the allegation). Under
Whatever the status of Evelyn, the elements of the offеnse that were required to be proven at trial are: there was a valid order protecting Ivana; Ivana normally resided at the residence of Evelyn (her mother); and appellant intentionally and knowingly went to or neаr the residence of Evelyn. As a result, the evidence introduced at trial (Ivana‘s protective order) was sufficient to prove that she was a protected individual who resides at the home of her mother, Evelyn. This, couplеd with Evelyn‘s testimony that appellant came to her residence, is sufficient to support the findings of the triers of fact (a judge in the first trial and a jury in the second) that appellant violated the order protecting Ivana on two separate occasions.
The language describing Evelyn as “a protected person” may be surplusage. See Whetstone v. State, 786 S.W.2d 361, 364 (Tex.Crim.App.1990) (“allegations which are not essential to constitute the offense, and which might be entirely omitted withоut affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage.“) If Ivana normally resided with a family friend named Joe Bob and appellant had gone to Joe Bob‘s housе, then the charging instrument would have said that appellant unlawfully went to the residence of Joe Bob, a family friend, in violation of the order protecting Ivana. The prosecution would not be required to offer evidence at trial that Joe Bob was indeed a family friend because it is not an element of the offense and it is not necessary to the allegation that appellant violated the order protecting Ivana. Thus, the fact that thе charging instrument superfluously adds the fact that Evelyn was also a protected individual does not mean that must be proven at trial. However, even if the “protected person” language is not surplusage and must be proven at trial, introduction of the actual Evelyn protective order is not the only method by which the State can prove Evelyn‘s status as a protected individual. The record indicates that the State attempted to introduce both protective orders but the trial court required the prosecutor to choose only one to enter into evidence. The prosecution entered the Ivana protection order, the one that was spеcifically described in the information. The State then elicited testimony from Evelyn, as well as the police officers, who testified that she too was a protected person. The testimony of the police officеrs, that they had investigated the violations and had ascertained that there were valid orders protecting both Evelyn and Ivana, would be sufficient to prove Evelyn‘s status as a protected individual if that fact was necessary tо the allegation in the charging instrument.
With these comments, I join the judgment of the Court.