Gholamerza Gharbi v. State of Texas--Appeal from County Criminal Court No. 10 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Gholamreza Gharbi

Appellant

Vs. Nos. 11-01-00020-CR & 11-01-00021-CR B Appeals from Dallas County

State of Texas

Appellee

Two different juries convicted Gholamreza (Ray) Gharbi of two different violations of the same protective order. At the first trial,[1] appellant elected to have the judge assess the punishment; punishment was assessed at confinement for 1 year and a fine of $300, but the imposition of sentence was suspended for 24 months of community supervision. At the second trial,[2] appellant elected to have the jury assess the punishment; punishment was assessed at confinement for 180 days and a fine of $2,500. The jury refused appellant=s application for community supervision. Appellant appeals both convictions. We affirm.

The First Trial and Appeal

The information charged that on or about May 17, 2000, appellant did unlawfully go near the residence of AEVELYN GHARBI,@ a protected individual, at A1242 Dumont Drive, Dallas, Dallas County, Texas,@ in violation of an order issued by the 292nd District Court which ordered appellant not to go Awithin 500 feet of the residence of IVANA GHARBI, to-wit: 1242 Dumont Drive, Dallas, Texas 75086.@ (Emphasis added) The record showed that appellant and Evelyn were the parents of Ivana, that Evelyn and Ivana both resided at 1242 Dumont Drive, that the address was in the City of Richardson, and that the zip code was wrong.

The Second Trial and Appeal

The information charged that on or about May 5, 2000, appellant did unlawfully go near the residence of AEVELYN GHARBI, a protected individual, at 1242 Dumont Drive, Richardson, Dallas County, Texas,@ in violation of an order issued by the 292nd District Court which ordered appellant not to go Awithin 500 feet of the residence of IVANA GHARBI, to-wit: 1242 Dumont Drive, Richardson, Dallas County, Texas 75086.@ (Emphasis added) This record also showed that appellant and Evelyn were the parents of Ivana, that Evelyn and Ivana both resided at 1242 Dumont Drive, and that the zip code was wrong.

Points of Error

The first two points of error in the second appeal are identical to the only two points of error in the first appeal. They read in full as shown:

1. There is insufficient evidence to sustain the conviction of Appellant for the offense charged in the information.

2. There is a fatal variance between the allegation in the information as to the protected individual and the proof at trial of who was protected.

There is a third point of error in the second appeal. In that point, appellant argues that the admission into evidence before the jury of proof of the prior conviction Awas a due process violation.@

Relevant Testimony - First Trial

Before the first witness testified, there was a discussion between the trial court and the attorneys about the fact that there were two protective orders, one for the minor child and one for the mother. The trial court instructed the prosecutor that she was Agoing to have to pick which one...to go on.@[3]

The complainant, Evelyn Gharbi, was the first witness. She testified that she was married to appellant; that they were the parents of a little girl named AIvana@; that she and appellant were involved in divorce proceedings when she got protective orders to protect herself and her child; and that appellant violated those protective orders on May 17, 2000, when she and Ivana lived at 1242 Dumont Drive, Richardson, Dallas County, Texas. The complainant testified that appellant pulled his car into the driveway, parked the car, and walked directly toward her. The complainant said that appellant called her Abitch@ and Awhore@ and that he was looking at her like he was ready to Apunch [her] out.@ The complainant said that appellant then seemed to realize that he could not do what he had intended to do because there was a witness and that appellant turned around, ran to his car, and Atook off.@ The complainant testified that she called A911" and that two police officers Aarrived immediately.@ One of them interviewed her, and the other interviewed the witness.

Two police officers testified about their investigation of the incident on May 17. Appellant took the position that the complainant did not tell the truth to the officers or to the jury. Officer Jorge Hernandez of the Richardson Police Department testified that, when he saw the complainant that night, she Aseemed to be shaky@ and that Ashe was definitely in fear of something.@ Officer Hernandez said that he and Officer James W. Holley tried to Acalm her down@ and Afigure out what was going on.@ Detective Phillip Casavant of the Richardson Police Department testified that he did the follow-up investigation. He made sure that there was a protective order, and he took a signed statement from the complainant. Then he reviewed the report from the two officers, took a statement from the witness who was there when the incident occurred, and obtained an arrest warrant for appellant. The only other witness at the guilt/innocence phase of the trial was an alibi witness for appellant. The complainant and appellant were the only witnesses at the punishment phase of trial. Appellant testified that he did not violate the protective order and that he was not at the complainant=s house on May 17.

Relevant Testimony - Second Trial

The complainant, Evelyn Gharbi, was the first witness. She testified that she was married to appellant and that they had been married Asix and a half years.@ She also testified that they had a Afour year old by the name of Ivana.@ The complainant identified appellant and then testified that they had separated on February 10, 2000; that she applied for protective orders for herself and for their child[4]; that there were several hearings; and that the protective orders were granted on April 13. The complainant then testified about the incident on May 5, 2000. The complainant had taken Ivana to visit the complainant=s older child. They returned to their home at 1242 Dumont Drive in Richardson at 9:45 p.m., and Ivana was in the backseat of the car asleep in her car seat. The complainant said that appellant pulled his car into the driveway next to her car, that he called her names (Abitch@ and Awhore@), and that it made her feel like he was Aabusing@ her again. The complainant said that she Agot very upset,@ that she grabbed Ivana, and that she Aran into the house.@ The complainant said that appellant Apulled away@ because he knew that she was going to Acall 911." The complainant also testified that her zip code was A75080.@ The information and affidavit refer to the zip code as A75086.@ The complainant said that the police officer Aarrived pretty quick@ and that she told him what had happened.

The second witness was Officer James W. Holley of the Richardson Police Department. He testified that he went to 1242 Dumont Drive on May 5 in response to a call from dispatch, that he arrived within five or ten minutes from the time he received the call, and that the complainant was Aextremely upset@ and Acrying.@ Officer Holley testified that the complainant Awas shaking a little bit@ and that she seemed to be Aextremely frightened and scared.@ The third witness, Detective Phillip Casavant of the Richardson Police Department, testified that he did the follow-up investigation on the May 5 offense. He took the complainant=s sworn statement and obtained the arrest warrant. Detective Casavant testified that he knew that the zip code for that part of the City of Richardson was A75080" even though the number was hard to read on the protective order. Detective Casavant also testified that appellant=s driver=s license showed the same street address which was shown on the protective order and that the zip code shown on appellant=s driver=s license was A75080.@

Appellant was the last witness to testify during the guilt/innocence phase of trial. He testified that he Avacated the premises@ on February 10, and he swore that he did not go there on May 5. Appellant also testified that the complainant had threatened him a Anumber of times,@ saying that she was going to have him deported if he did not do what she wanted. On cross-examination, he agreed that he knew the exact address of the house where his wife and daughter were living and that he was Afully aware that address where [his] wife and daughter were living was off limits@ to him. Appellant also testified that the complainant was Aa liar.@ Appellant agreed that he was telling the jury that his wife was lying when she claimed that he Aviolated the protective order.@

Sufficiency of Evidence: Claim of AFatal@Variance

The evidence in both cases shows that there were two protective orders. One protective order named appellant=s wife, Evelyn, who is the complainant in both appeals. The other protective order named their daughter, Ivana. Both named the home where all three of them had lived.

The court of criminal appeals has discussed the problems involved in variances between the allegations and proof in two recent cases. See Gollihar v. State, 46 S.W.3d 243, 256-58 (Tex.Cr.App.2001), where the court reaffirmed the Afatal variance@doctrine and overruled Asurplusage law and its Burrell exception.@[5] The court then held that Aonly a >material= variance will render the evidence insufficient.@ The court said the question is Awhether the variance...was a >material= one that prejudiced appellant=s substantial rights.@ The court then restated the question as whether the charging instrument (either an indictment or an information) informed the defendant of the charge against him Asufficiently to allow him to prepare an adequate defense at trial@ and was sufficient to keep the defendant from Athe risk of being prosecuted later for the same crime.@ The court held that an Aimmaterial variance is disregarded in a sufficiency of the evidence review.@ See also Fuller v. State, No. 1283-98, 2002 WL 459834 (Tex.Cr.App. March 27, 2002), where the court explained its holdings in Gollihar. Points of Error Nos. 1 and 2 in both appeals are overruled.

The ADue Process@ Claim in the Second Appeal

During the punishment phase of the second case, just before the State offered proof of appellant=s conviction in the first case, the record showed the following proceedings:

THE COURT: Do you want to state your objection?

[DEFENSE COUNSEL]: Yes, Your Honor. It=s my understanding that the prosecutor is about ready to offer for identification another case that is pending in this court.[6] And, that since any alleged violation from that particular case is not a final judgment it should not be considered by this jury or anyone else for any purpose whatsoever. And, the alleged date of the event preceded...the date of this event. [For those] two reasons we would object to this jury=s consideration of anything in [the exhibit for the conviction in the first trial].

After that objection was overruled, the State introduced the exhibit which showed that appellant was convicted in a jury trial on November 7 for violation of a protective order and sentenced to Aone year confinement in the County Jail,@ probated for 24 months.

The State made two responses to this point of error. First, the State argues that appellant has not preserved this claim for appellate review because the objection varies from the claim urged by the point of error. The State correctly notes that an objection during trial on one theory will not support a point of error urging a different theory. See, e.g., Johnson v. State, 803 S.W.2d 272, 292 (Tex.Cr.App.1990). Second, the State argues that appellant failed to show that the trial court erred by admitting evidence of appellant=s prior conviction. We agree. Appellant cites no authority in support of this point of error, and TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3 (Vernon Supp. 2002) provides in relevant part:

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant...and...any other evidence of an extraneous crime or bad act that is shown...regardless of whether he has previously been charged with or finally convicted of the crime or act. (Emphasis added)

The third point of error in the second appeal is overruled.

This Court=s Judgment

The judgments of the trial court are affirmed.

BOB DICKENSON

SENIOR JUSTICE

May 30, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and Dickenson, S.J.[7]

[1]Cause No. MA00-40172-L in the County Criminal Court No. 10 of Dallas County and No. 11-01-00020-CR on the docket of this court.

[2]Cause No. MA00-40217-L in the County Criminal Court No. 10 of Dallas County and No. 11-01-00021-CR on the docket of this court.

[3]The protective order which was introduced into evidence is the one which ordered appellant to stay away from the residence of the child. The information referred to the other protective order.

[4]The protective order which was introduced into evidence is the one which ordered appellant to stay away from the residence of the child. The information referred to the other protective order.

[5]Burrell v. State, 526 S.W.2d 799, 802 (Tex.Cr.App.1975).

[6]See Footnote No. 1.

[7]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.