Affirmed and Opinion filed February 24, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00038-CR
AMIR ALI SHARIF, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 18-CR-3283
OPINION
Appellant Amir Ali Sharif appeals from his conviction for the felony offense
of being a felon in possession of a firearm. See Tex. Penal Code § 46.04(a)(2)
(prohibiting felon from possessing firearm “at any location other than the premises
at which the person lives.”). Concluding the evidence is legally sufficient to
support appellant’s conviction and that the trial court did not reversibly err when it
defined “premises” in the jury charge as “a building or a portion of a building,” we
overrule appellant’s issues and affirm the trial court’s judgment.
BACKGROUND
Sergeant Bradley Macik of the Texas City Police Department saw a vehicle
drive through a stop sign on Westward Avenue without stopping. Sergeant Macik
pulled the vehicle over and determined that appellant was the driver and only
occupant of the vehicle. Sergeant Macik asked appellant if he had any weapons in
the vehicle. Appellant told Sergeant Macik that he did not.
Next, Sergeant Macik asked appellant for his driver’s license and proof of
insurance. While appellant searched for the requested documents, Sergeant Macik
asked appellant where he was going and where he was coming from. Appellant
answered that he was driving to his mother’s apartment in Texas City. Appellant
handed Sergeant Macik his paperwork. Sergeant Macik returned to his patrol car
to verify appellant’s information. During appellant’s trial, Sergeant Macik testified
that he noticed appellant was driving in the opposite direction from his stated
destination and he found that to be odd.
Sergeant Macik returned to appellant’s vehicle and asked if appellant would
consent to a search of his vehicle. According to Sergeant Macik, appellant
consented. During the ensuing search, Sergeant Macik found a loaded handgun
underneath the driver’s seat. During his trial testimony, appellant admitted that he
had possession of the handgun and that it was his. Appellant also admitted he was
aware that, as a convicted felon, he was not allowed to have a firearm in his
vehicle, only in his house. Sergeant Macik completed the search of appellant’s
vehicle and found some stereo equipment, “a couple of pieces of random clothing,”
and car-cleaning supplies. Sergeant Macik continued that, other than the handgun,
the items he found were items you would normally find in a person’s car. Based
on his experience, Sergeant Macik testified during cross-examination that there
was no evidence found in the vehicle indicating appellant was living in his vehicle.
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In addition, Sergeant Macik testified appellant never told him that he was living in
the vehicle.
Appellant testified during his trial that he was driving from his girlfriend’s
house where he had washed some of his clothes. According to appellant, he was
taking the clothes back to his mother’s residence, where he was living at the time.
Appellant further testified that his mother’s address on 13th Avenue in Texas City
was the address (1) listed on his driver’s license, (2) where his vehicle was
registered, (3) where he has packages delivered, and (4) the address he gave when
he was booked into jail on the charge at issue in this appeal. Appellant also
testified that he would occasionally sleep at other locations, including his
girlfriend’s residence and in his car at his place of employment, but he never
testified that he was homeless, nor that he was living in his vehicle. Finally, during
his trial testimony, appellant admitted to his prior felony conviction and that he
was released from that conviction more than 5 years before his trial.
The case was submitted to the jury in a charge that instructed the jury that
“premises” “means a building or a portion of a building.” Appellant objected to
the definition. Appellant argued the specific statute he was charged under did not
define “premises” and the trial court should therefore leave the term undefined and
rely on Section 311.011 of the Texas Code Construction Act which provides that
“words and phrases shall be read in context and construed according to the rules of
grammar and common usage.” The trial court overruled appellant’s objection.
The jury subsequently found appellant guilty as charged in the indictment. It then
assessed his punishment at three years in prison. This appeal followed.
ANALYSIS
Appellant raises two issues in this appeal. In his first issue, appellant argues
that the evidence is insufficient to support his conviction. Appellant argues in his
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second issue that the trial court reversibly erred when it defined “premises” as “a
building or a portion of a building.” We address these issues in order.
I. Sufficiency of the evidence
In his sufficiency challenge appellant argues there is a fatal variance
between the indictment and the evidence the State presented during the trial.
Appellant asserts the evidence is legally insufficient because, in his view, the
indictment alleged that he lived at N. Westward Ave. and there was no evidence in
the record proving beyond a reasonable doubt that he lived at that location.
Appellant asserts this means the State failed to prove that he possessed a firearm at
a location other than the premises where he lived.
A. Standard of review and applicable law
Section 46.04 provides that
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.
Tex. Penal Code § 46.04.
In reviewing the sufficiency of the evidence to support a conviction, we
must consider all of the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1973); Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim. App. 2012). In our
review, we consider all of the evidence in the record, whether admissible or
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inadmissible. Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (citing Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013)). We measure the sufficiency of the evidence supporting a conviction
by comparing the evidence presented during the trial to the elements of the offense
as defined in a hypothetically-correct jury charge, as modified by the charging
instrument. Edward v. State, 635 S.W.3d 649, 656 (Tex. Crim. App. 2021). A
hypothetically correct jury charge accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof, or
unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried. Ramjattansingh v. State, 548
S.W.3d 540, 546 (Tex. Crim. App. 2018).
“The sufficiency of an indictment is a question of law that is reviewed de
novo.” Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009). An
indictment is sufficient if it charges the commission of an offense “in ordinary and
concise language of common understanding to know what is meant, and with that
degree of certainty that will give the defendant notice of the particular offense with
which he is charged.”1 Tex. Code Crim. Proc. art. 21.11. Generally, an indictment
is legally sufficient if it tracks the language of the statute in question. State v.
Moff, 154 S.W.3d 599, 602 (Tex. Crim. App. 2004). “A written instrument is an
indictment . . . under the constitution if it accuses someone of a crime with enough
clarity and specificity to identify the penal statute under which the State intends to
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If appellant was confused about what he was being charged with, he should have
objected to the allegedly defective indictment before his trial started. See Tex. Code Crim. Proc.
art. 1.14(b) (“If the defendant does not object to a defect, error, or irregularity of form or
substance in an indictment or information before the date on which the trial on the merits
commences, he waives and forfeits the right to object to the defect, error, or irregularity and he
may not raise the objection on appeal or in any other postconviction proceeding. Nothing in this
article prohibits a trial court from requiring that an objection to an indictment or information be
made at an earlier time in compliance with Article 28.01 of this code.”); Teal v. State, 230
S.W3d 172, 182 (Tex. Crim. App. 2007).
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prosecute, even if the instrument is otherwise defective.” Teal, 230 S.W.3d at 181.
A variance occurs when there is discrepancy between the allegations in the
indictment and the proof offered at trial. Byrd v. State, 336 S.W.3d 242, 246 (Tex.
Crim. App. 2011). There are two types of variances in a legal sufficiency analysis:
material and immaterial variances. Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim.
App. 2014). Only a material variance, one that prejudices a defendant’s substantial
rights, will render the evidence insufficient. Ramjattansingh, 548 S.W.3d at 547.
A material variance happens when the indictment, as written, (1) fails to
adequately inform the defendant of the charge against him, or (2) subjects the
defendant to the risk of being prosecuted later for the same crime. Id. In
summary, a reviewing court tolerates variances as long as they are not so great that
the proof at trial shows an entirely different offense than what was alleged in the
charging instrument. Id. The burden of demonstrating a material variance rests
with the defendant. Rogers v. State, 200 S.W.3d 233, 237 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d).
In viewing the evidence in the light most favorable to the verdict, we must
“defer to the jury’s credibility and weight determinations because the jury is the
sole judge of the witnesses’ credibility and the weight to be given their testimony.”
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (citing Jackson, 443
U.S. at 319). In conducting a sufficiency review, we do not engage in a second
evaluation of the weight and credibility of the evidence but only ensure that the
jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex.
App.—Houston [14th Dist.] 2012, pet. ref’d). Direct and circumstantial evidence
are treated equally. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). The jury may reasonably infer facts from the evidence as it sees fit. Price
v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
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When the record supports conflicting inferences, we presume the trier of fact
resolved the conflicts in favor of the verdict and defer to that determination.
Clayton, 235 S.W.3d at 778.
B. The evidence is legally sufficient to support appellant’s conviction.
We begin by examining the language of the indictment in this case. The
State alleged that appellant “intentionally or knowingly possess[ed] a firearm after
the fifth anniversary of [appellant’s] release from confinement following
conviction of said felony at a location other than the premises at which [appellant]
lived, to wit: N. Westward Ave., Texas City, Texas.” The jury charge tracked the
indictment’s language.
Appellant asserts that the evidence is insufficient because, in his view, the
indictment alleged that he lived at “N. Westward Ave., Texas City, Texas” and
there is no evidence in the record proving that allegation. Appellant made that
argument at trial. We disagree with appellant’s understanding of what the State
alleged in the indictment. Rather than alleging where appellant lived, we conclude
the indictment instead alleged that N. Westward Avenue “was the location other
than the premises at which [appellant] lived.” In other words, the language
described the place in Galveston County where the traffic stop occurred and where
appellant was found in possession of a firearm while he was driving his vehicle.
The State was required to prove only that appellant possessed a firearm “at any
location other than the premises at which [appellant] lived.” Tex. Penal Code §
46.04(a)(2). The record evidence, summarized above, proved that allegation. We
conclude there was no variance between the allegation and the proof offered by the
State. See Hogue v. State, 711 S.W.2d 9, 14 (Tex. Crim. App. 1986) (“We fail to
see how the wording of the indictment, although not grammatically correct, misled
or confused appellant.”); Coleman v. State, 631 S.W.3d 744, 755 (Tex. App.—
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Houston [14th Dist.] 2021, pet. ref’d) (holding that while the defendant generally
attacked the sufficiency of the evidence supporting his conviction, he did “not
assert that the indictment failed to sufficiently inform him of the charge against
him to allow him to prepare an adequate defense at trial or subjected him to the
risk of being prosecuted twice for the same offense.”).
To the extent appellant argues that the evidence is insufficient because
appellant was homeless and living in his vehicle and therefore the State did not
prove the allegation that he possessed a firearm at a location other than the
premises where he lived, we again disagree. In the present case, the evidence was
undisputed that appellant had been convicted of a felony. The evidence was also
undisputed that appellant possessed a firearm in the vehicle he was driving when
he was stopped by Sergeant Macik. Having reviewed the entire record, we
conclude there is no evidence in the record that appellant was homeless and living
in his vehicle when he was stopped. As pointed out above, appellant testified that
at the time he was stopped, he was living at his mother’s residence in Texas City.
While he did testify that he occasionally slept in his vehicle at his place of
employment, that does not transform his vehicle into his residence. There was also
evidence that his driver’s license showed his mother’s residence as the place where
he resided and that is the address where he registered his vehicle. Based on the
evidence in the record, we conclude the jury could have reasonably found that
appellant was living at his mother’s residence, not in his vehicle, and therefore
possessed a firearm at a location where he did not live.
Even if the evidence conclusively established appellant was living in his
automobile at the time of his arrest, the evidence would still be sufficient because
“the obvious intent of the statute proscribing possession of firearms by convicted
felons is to keep violent offenders from going about with firearms.” Lucas v. State,
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791 S.W.2d 35, 64 (Tex. Crim. App. 1989). By statute, a convicted felon is “not
entitled to possess a firearm wherever they are or wherever they stay. They may
only possess a firearm where they live, within the meaning and intent of the
statute.” Nesbit v. State, 720 S.W.2d 888, 891 (Tex. App.—Austin 1986, no pet.).
As a result, we conclude that appellant’s vehicle could not serve as a “premises”
under Section 46.04 of the Penal Code. See id. (“Failure to have a place to live
cannot transform an ordinary pickup into a premise for living simply because one
may sleep in it.”). We overrule appellant’s first issue.
II. Charge Error
Appellant asserts in his second issue that the trial court reversibly erred
when it defined “premises” in the jury charge as a “building or a portion of a
building.” Appellant objected in the trial court that the term should be left
undefined because the statute prohibiting felons such as appellant from possessing
firearms “at any location other than the premises at which the person lives” does
not define the term “premises.” The trial court overruled appellant’s objection.
A. Standard of review and applicable law
In a criminal case, we review complaints of jury charge error in two steps.
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). First, we determine
whether error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.
App. 2005). Second, we review the record to determine whether sufficient harm
was caused by the error to require reversal of the conviction. Id. at 743–44.
If a jury charge is erroneous, the harm analysis hinges upon whether a
defendant objected to the charge. See Marshall v. State, 479 S.W.3d 840, 843
(Tex. Crim. App. 2016); see also Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim.
App. 2006). If a defendant, like appellant did here, objected to an erroneous jury
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charge, reversal is required if we find “some harm” to his rights. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)); Ngo, 175 S.W.3d at
743. Under Almanza, the record must show that the charge error caused the
defendant actual, rather than merely theoretical, harm. Ngo, 175 S.W.3d at 750. In
evaluating whether a defendant was harmed by an erroneous jury instruction, the
degree of harm must be measured by the following factors: (1) the entire jury
charge; (2) the state of the evidence; (3) the parties’ arguments; and (4) all other
relevant record information. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim.
App. 2015); see French v. State, 563 S.W.3d 228, 237 (Tex. Crim. App. 2018)
(“Whether jury charge error is preserved or not, the degree of harm resulting from
the error must be measured in light of all four factors identified in Almanza.”).
Neither party has the burden to show harm. Reeves v. State, 420 S.W.3d 812, 816
(Tex. Crim. App. 2013).
The trial court’s charge must fully instruct the jury on the law applicable to
the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d
125, 127 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc. art. 36.14. “Because
the charge is the instrument by which the jury convicts, [it] must contain an
accurate statement of the law and must set out all the essential elements of the
offense.” Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The law
applicable to the case includes statutory definitions that affect the meaning of the
elements of the offense. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App.
2011); Lovings v. State, 376 S.W.3d 328, 337 (Tex. App.—Houston [14th Dist.]
2012, no pet.). “A trial court has broad discretion in submitting proper definitions
and explanatory phrases to the jury.” Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d). Proper instructions are those which
help the jury in answering the questions and which find support in the evidence
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and the inferences to be drawn from the evidence. Id. “Nevertheless, the trial
court must define any legal phrase that a jury must necessarily use in properly
resolving the issues, and provide the statutory definition, if available.” Id. “It is
not the function of the charge merely to avoid misleading or confusing the jury: it
is the function of the charge to lead and to prevent confusion.” Reeves, 420
S.W.3d at 818.
Assuming for purposes of this issue on appeal that the trial court erred when
it included the challenged definition of “premises” in the charge, we turn to
whether appellant suffered some actual harm from the trial court’s decision.
Appellant objected to the trial court’s definition of “premises” as a “building or a
portion of a building.” Appellant argued that the trial court should leave
“premises” undefined and allow the jury to apply the commonly understood
meaning of the word. “Premises” is defined as “a piece of land with the structures
on it.” Merriam-Webster Dictionary New Edition 567 (2004). Because the
definition the trial court included in the charge almost exactly matches the
commonly understood meaning of the term, we conclude appellant did not suffer
any harm as a result of the trial court’s use of the definition over his objection. See
Olveda v. State, 650 S.W.2d 408, 409 (Tex. Crim. App. 1983) (stating that when a
term is left undefined, “it is assumed the jury would consider the commonly
understood meaning in its deliberations”); cf. Lovings, 376 S.W.3d at 338
(concluding there was no harm because, “on the facts of this case, the commonly
understood meaning of ‘without consent’ closely resembles the applicable statutory
definitions and would not have confused the jury or caused the jury to misapply the
law.”). We overrule appellant’s second issue.
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CONCLUSION
Having overruled appellant’s issues raised in this appeal, we affirm the trial
court’s judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
Publish — TEX. R. APP. P. 47.2(b).
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