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Saldana v. State

Court of Appeals of Texas, Seventh District, Amarillo

December 6, 2013

Robert SALDANA, Appellant
v.
The STATE of Texas, Appellee.

Page 723

Adrian Castillo, Amarillo, for Robert Saldana.

Randall C. Sims, for the State of Texas.

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

Appellant Robert Saldana, appeals his conviction for unlawful possession of a firearm and enhanced sentence of twelve years' imprisonment. Through a single issue he argues the evidence was insufficient to support his conviction. Finding the State did not prove an element of the offense as charged, we will reverse the judgment of the trial court and render judgment of acquittal.

Background

On April 30, 2007, appellant pled guilty to the state jail felony offense of theft of a firearm and was that day sentenced to confinement in a state jail facility for two years. According to the April 30 judgment, appellant received time credit for " In 10-1-06 Out 10-2-06; In 10-22-06 to present date."

During a routine traffic stop on September 19, 2012, appellant was found in possession of a .380 pistol. He was arrested, and later indicted by an instrument charging him with an offense under Penal Code section 46.04(a)(1).[1] In relevant part the indictment alleged:

[O]n or about the 19th day of September, 2012, and before the presentment of this indictment, in Potter County, Texas, [appellant] did then and there having been convicted of the felony offense of Theft of a Firearm, on Aprill (sic), 30, 2007 ... intentionally or knowingly possess a firearm before the fifth anniversary of the [appellant's] release from confinement following conviction of that felony.

At trial a copy of the 2007 judgment convicting appellant of theft of a firearm was admitted. No evidence was admitted of his release date from confinement.

The jury charge contained an abstract instruction quoting section 46.04(a)(1) and (2), but the application paragraph properly limited the jury's consideration to the charge as alleged in the indictment.[2]

In closing argument the prosecutor told the jury:

You've got the evidence, and I don't think it's really being disputed that the defendant is ...

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