

 




 
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.

