Justin Dunway Friar v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-22-00215-CR

JUSTIN DUNWAY FRIAR, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 452nd District Court
McCulloch County, Texas
Trial Court No. 6709, Honorable Robert R. Hofmann, Presiding

June 6, 2024
MEMORANDUM OPINION1
Before QUINN, C.J., and PARKER and DOSS, JJ.

A jury convicted appellant for unlawfully possessing a firearm by a felon.2 He

alleges that the State failed to prove the elements of the crime described in the indictment

by legally sufficient evidence. No one disputes his status as a felon who possessed a

shotgun while being pursued by law enforcement. Rather, the element in question

1 This appeal was transferred from the Third Court of Appeals. We apply the latter’s precedent
where it conflicts with ours. TEX. R. APP. P. 41.3.
2 This conviction is one of three which appellant appealed. We disposed of the other two appeals

via separate opinions in our cause numbers 07-22-00213-CR and 07-22-00214-CR.
involves his release from confinement. Furthermore, we sustain his contention and

reverse.

Background

On January 11, 2021, a DPS trooper was stopped on a residential street when he

observed appellant approaching in a white Cadillac Escalade from the opposite direction.

The trooper 1) had arrested him approximately two months earlier for driving with an

invalid license, 2) recognized appellant as he drove by, 3) witnessed appellant increase

his speed on the residential street, and 4) performed a u-turn to follow. Appellant then

performed several turns on the neighborhood streets, ran a stop sign, drove on the wrong

side of the street, and eventually stopped in the middle of an intersection. A video of the

incident also captured him leaning from the driver’s side window while in the intersection

and pointing a shotgun at the trooper. Thereafter, appellant sped away.

The abandoned Escalade soon was discovered. A search of it and the surrounding

area uncovered the shotgun and a shotgun shell. Law enforcement eventually succeeded

in arresting appellant.

The State later indicted him. Through the instrument, it alleged: “JUSTIN

DUNWAY FRIAR . . . on or about January 11, 2021, did then and there, having been

convicted of the felony offense of Burglary of a Habitation on the 21st day of April 2015 . . .

intentionally and knowingly possess a firearm before the fifth anniversary of the

defendant’s release from confinement following conviction of the felony.” A jury trial

ensued whereat appellant testified. His testimony included an admission (intentional or

otherwise) to his status as a felon and parolee at the time of the chase. However, the

State did not present evidence of the date from which he was released from confinement.

The jury found him guilty, nonetheless.
2
Discussion

Again, appellant questions the sufficiency of the evidence proving the date

of his release from confinement. We sustain the issue.

Statute defines the offense of felon in possession of a firearm as follows:

(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 is later.

TEX. PENAL CODE ANN. § 46.04(a)(1). As can be seen, two time periods are mentioned in

the alternative. One pertains to five years after release from confinement and the other

to five years after release from supervision or parole. The State selected the former to

include in the indictment. This selection was also included in the trial court’s charge

submitted to the jury.

In assessing the sufficiency of the evidence to support the resulting conviction, we

apply the standard of review discussed in Saldana v. State, 418 S.W.3d 722 (Tex. App.—

Amarillo 2013, no pet.). Our obligation is to view all of the evidence in the light most

favorable to the judgment and determine if any rational trier of fact “could have found the

essential elements of the crime beyond a reasonable doubt.” Id. at 724. The essential

elements are those defined by the hypothetically correct jury charge. Id. A hypothetically

correct charge is one that 1) accurately specifies the law, 2) is authorized by the

indictment, 3) does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and 4) adequately describes the

particular offense for which the defendant was tried. Id.

3
Moreover, where the State pleads one specific element from an offense that

contains alternatives for that element, the sufficiency of the evidence is measured by the

element it selected, not any other. Id. And, this remains true even if the alternatives

alluded to consist of different manner and means by which one may commit the crime.

We learn as much from Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App. 2011).

There, our Court of Criminal Appeals told us: “when the statute defines alternative

methods of manner and means of committing an element and the indictment alleges

only one of those methods, ‘the law’ for purposes of the hypothetically correct charge[] is

the single method alleged in the indictment.” Id. at 799 (quoting Gollihar v. State, 46

S.W.3d 243, 254 (Tex. Crim. App. 2001)) (emphasis added). That said, we turn to the

case at hand.

Here, the hypothetically correct charge is that described by the trial court to the

jury. In its charge, the court wrote: “[t]o prove that the defendant is guilty of unlawful

possession of a firearm by a felon, the state must prove, beyond a reasonable doubt,

three elements. The elements are that . . . the defendant intentionally or knowingly

possessed a firearm; and . . . the defendant was convicted of a felony; and . . . said

possession of a firearm occurred before the fifth anniversary of the defendant’s release

from confinement following conviction of a felony.” The allegation both tracks

§ 46.04(a)(1) and evinces the State’s selection of a pertinent time period, i.e., “release

from confinement.” It could have selected the period defined by “release from supervision

. . . [or] parole” but opted otherwise. Furthermore, nothing obligated it to include both

release from confinement and supervision, though it also could have included both. See

Wood v. State, 636 S.W.3d 83, 90 (Tex. App.—Fort Worth 2021, no pet.) (stating that

“[t]he State was free to list multiple alternative timeframe elements in Wood’s indictment;
4
it could have alleged that he possessed a weapon before the fifth anniversary of his

release from confinement and of his release from parole supervision”). And, having

selected “release from confinement,” it became “the only statutory timeframe element

‘authorized by the indictment’ [for inclusion] . . . in the hypothetically correct jury charge—

the charge by which the sufficiency of the evidence is measured.” Id.; accord, Trevino v.

State, No. 13-14-00280-CR, 2015 Tex. App. LEXIS 4608, at *11–12 (Tex. App.—Corpus

Christi May 7, 2015, no pet.) (mem. op., not designated for publication) (holding that

“[b]ecause the ‘nature of release’ is one of the elements of the offense listed in the statute,

the State was required to prove that element as alleged, and the variance is per se

material”).

Release from confinement being the only applicable time period against which the

evidence is tested, we observe that appellant was found possessing a firearm on January

11, 2021. That date fell more than five years after his April 21, 2015 conviction for

burglarizing the habitation. And, appearing on the streets by January of 2021, if not a few

months earlier, means he was released from confinement at some time or another before

January 2021. The actual date when that occurred is something the State admits it did

not prove. Yet, it says that matters not for several reasons.

First, it attempts to fault appellant for not objecting to the indictment as improperly

omitting both release from confinement and from supervision or parole. But, there was

no defect requiring objection. Instead, as discussed and concluded above, the State had

several alternative time periods from which to select. It chose one. Having done so, it

was obligated to abide by its selection and prove appellant possessed a firearm within

five years after his release from confinement. To now say appellant had a duty to object

5
to the State’s selection and demand that it increase the ways by which he could be

convicted is rather nonsensical.

As for the State’s suggestion that the hypothetically correct jury charge should

include the entirety of § 46.04(a)(1), we refer back to Wood, Trevino, and our earlier

discussion of what constituted the hypothetically correct charge here. We need not repeat

it. The hypothetically correct charge was the one the trial court at bar submitted to the

jury.

Next, the State asserts that a jury could have deduced the date of release from the

few years between his earlier conviction and his subsequent possession of the weapon.

The date of appellant’s arrest for possessing a firearm was approximately nine months

beyond the five-year anniversary of his 2015 felony conviction. Admittedly, proof of the

actual release date may not be necessary when found in possession of a firearm within

five years of conviction. See Davis v. State, No. 06-19-00169-CR, 2020 Tex. App. LEXIS

4990, at *8 (Tex. App.—Texarkana April 6, 2020, no pet.) (mem. op., not designated for

publication) (so noting); Fagan v. State, 362 S.W.3d 796, 800 (Tex. App.—Texarkana

2012, pet. ref’d) (quoting Tapps v. State, 257 S.W.3d 438, 445 (Tex. App.—Austin 2008),

aff’d on other grounds, 294 S.W.3d 175 (Tex. Crim. App. 2009)). The same cannot be

said when the individual is found in possession more than five years later; then proof of

the actual date is necessary. Id. This is so because release may have come soon after

conviction due to pardon, clemency, or other lawful means. Fagan, 362 S.W.3d at 801.

And, to conclude “otherwise would be based upon speculation.” Id.; see Saldana, 418

S.W.3d at 726 (rejecting a “do the math” argument because the prosecutor’s invitation to

“infer the date of appellant’s release from confinement from the date of the 2007

6
conviction, the length of sentence, and jail credit offered the jury an unworkable formula

requiring surmise and speculation”).

We are also told by the State that the jury could have gained an understanding of

parole law from an instruction stating a person in prison “will not become eligible for parole

until the actual time served plus any good time conduct earned equals one-half of the

sentence imposed or thirty years.” Assuming this were so, the instruction, however, was

given at the punishment phase of the trial and after the guilt/innocence phase ended in a

guilty verdict. We deem it unreasonable to conclude that the jury could have calculated

the release date via a purported formula about which it had yet to be told.

Because the State failed to produce evidence from which a rational jury could

determine beyond reasonable doubt that appellant possessed the firearm within five

years of his release from confinement, an element of the offense for which he was

charged went unproven. Furthermore, we find no lesser-included offense implicit in the

elements established and of which appellant may be convicted. See Thornton v. State,

425 S.W.3d 289, 299–300 (holding that before rendering an acquittal due to insufficient

evidence, the reviewing court must determine whether the evidence proved a lesser-

included offense for which the appellant may be convicted). Accordingly, we reverse the

trial court’s judgment and render judgment of acquittal. See Wood, 636 S.W.3d at 91

(rendering a judgment of acquittal due to the absence of evidence proving the date of

release from confinement).

Brian Quinn
Chief Justice

Do not publish.
7