                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-368-CR


RAY C. GILBERT                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Ray C. Gilbert appeals his conviction for unlawful possession

of a firearm, claiming in a single point that he was egregiously harmed by the

the jury charge’s combining the indictment’s allegations in the disjunctive. We

affirm.




      1
          … See Tex. R. App. P. 47.4.
      On May 13, 2006, less than five years after appellant had been convicted

of burglary and sentenced to one year’s confinement in state jail, appellant

discharged a firearm in the parking lot of a Fort Worth bar in front of an off-duty

police officer. The indictment charged appellant with the offense of unlawful

possession of a firearm 2 in two paragraphs. In one paragraph, the indictment

alleged that appellant possessed a firearm within five years of his release from

confinement, community supervision, parole, or mandatory supervision for his

August 2001 felony burglary conviction.3 In a second paragraph, designated

“COUNT TWO,” the indictment alleged that after his burglary conviction, he

possessed a firearm away from the premises where he lived.4

      The trial court combined the indictment’s two paragraphs in the

application paragraph of the court’s charge as follows:

            Now, therefore, if you find and believe from the evidence
      beyond a reasonable doubt, that the Defendant . . . on or about the
      13th day of May, 2006, did intentionally or knowingly possess a
      firearm and prior to said possession the Defendant was convicted
      of the felony offense of burglary . . . and said possession was
      within five years of the release of the Defendant from confinement,
      community supervision, parole, or mandatory supervision, after the
      Defendant was convicted for the above felony, as charged in Count
      One of the Indictment; or if you find and believe from the evidence


      2
          … See Tex. Penal Code Ann. § 46.04(a) (Vernon Supp. 2008).
      3
          … See id. § 46.04(a)(1).
      4
          … See id. § 46.04(a)(2).

                                        2
      beyond a reasonable doubt, that the Defendant . . . on or about the
      13th day of May 2006, did intentionally or knowingly possess a
      firearm away from the premises where the Defendant lived and
      prior to said possession the Defendant was convicted of the felony
      offense of burglary . . . as charged in Count Two of the Indictment,
      then you will find the Defendant guilty of unlawful possession of a
      firearm by a felon. [Emphasis added.]

The charge, to which neither side objected, was submitted with a single general

verdict form.

      The jury found appellant guilty, and after hearing evidence relevant to

punishment, assessed appellant seven years’ confinement and a $10,000 fine.

The trial court sentenced appellant accordingly.

      In a single point on appeal, appellant claims that the trial court’s charge

erroneously combined two statutory offenses in the disjunctive without a

specific instruction requiring the jurors to unanimously decide which of two

offenses appellant committed.5

      Verdicts in felony criminal cases must be unanimous. 6 The unanimity

requirement is met when the jury unanimously agrees on the offense the




      5
       … Appellant acknowledges that the charge instructed the jury that “your
verdict must be by a unanimous vote of all members of the jury” but asserts
that this instruction was “boilerplate” and insufficient.
      6
       … Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2008); Pizzo
v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007); Jefferson v. State,
189 S.W.3d 305, 311 (Tex. Crim. App.), cert. denied, 549 U.S. 957 (2006).

                                       3
defendant committed.7 The jury is not required to agree on the specific manner

or means the defendant used to commit an offense.8

      Section 46.04 of the Texas Penal Code provides:

      (a) A person who has been convicted of a felony commits an
      offense if he possesses a firearm:

              (1) after conviction and before the fifth anniversary of
              the person’s release from confinement following
              conviction of the felony or the person’s release from
              supervision under community supervision, parole, or
              mandatory supervision, whichever date is later; or

              (2) after the period described by Subdivision (1), at any
              location other than the premises at which the person
              lives.9


A plain reading of section 46.04(a) makes clear that it is an offense for a

person with a felony conviction to possess a firearm in two separate instances:

1) if the possession is during the five-year period beginning with a defendant’s

release from confinement or post-confinement supervision imposed as a result

of a felony conviction, the defendant is prohibited from possessing a firearm




      7
          … Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005).
      8
      … Pizzo, 235 S.W.3d at 714; Jefferson, 189 S.W.3d at 311–12;
Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004).
      9
          … Tex. Penal Code Ann. § 46.04(a).

                                         4
anywhere,10 or 2) after this five-year period has elapsed, the defendant may not

possess a firearm anywhere except his home.11

      In this case, the trial court’s charge allowed the jury to find that appellant

committed the offense of unlawfully possessing a firearm within the five-year

period following his release from confinement after his felony burglary

conviction, or five years after his felony conviction at a location that was not

his home. In either instance, we hold there was no error because the charge

authorized a conviction only if the jury believed beyond a reasonable doubt that

appellant committed the offense of unlawfully possessing a firearm after being

convicted of a felony.      We overrule appellant’s sole point and affirm the

judgment.




                                                   PER CURIAM


PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)


DELIVERED: May 7, 2009



      10
           … See id. § 46.04(a)(1).
      11
           … See id. § 46.04(a)(2).

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