Gharbi v. State
Decision Date | 17 December 2003 |
Docket Number | No. 1545-02.,No. 1543-02.,1543-02.,1545-02. |
Citation | 131 S.W.3d 481 |
Parties | Gholamerza GHARBI, Appellant, v. The STATE of Texas. |
Court | Texas Court of Criminal Appeals |
Richard B. Tanner, Richardson, for Appellant.
Patricia Poppoff Noble, Assistant District Attorney, Dallas, Matthew Paul, State's Attorney, Austin, for State.
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, 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 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) ( ) and at 254 ( ); 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 ( ). 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 ( ).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.
I agree with the majority that this is an issue of evidentiary sufficiency rather than a variance issue as discussed by the Court of Appeals.
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) ( ); Malik v. State, 953 S.W.2d 234 (Tex.Crim. App.1997) ( ). In this case, a variance would have...
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