Ijah Iwasey Baltimore v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0436-22
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IJAH IWASEY BALTIMORE, Appellant
v.

THE STATE OF TEXAS

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On State’s Petition for Discretionary Review
From the Tenth Court of Appeals
McLennan County
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YEARY, J., filed a dissenting opinion.

For the sake of focus, I will start by reminding the reader that the
court of appeals at first decided that the evidence in this case was legally
sufficient to show that the place where Appellant possessed a weapon
was a “premises licensed or issued a permit by this state for the sale of
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alcoholic beverages[,]” as required by the then-applicable version of
Texas Penal Code, Section 46.02(c). Acts 2015, 84th Leg., ch. 437, p.
1719, eff. Jan. 1, 2016 (repealed 2021); Baltimore v. State, 608 S.W.3d
864, 865 (Tex. App.—Waco 2020). We granted review of that opinion and
then remanded for the court of appeals to reconsider its opinion in light
of our decision in Curlee v. State, 620 S.W.3d 767 (Tex. Crim. App. 2021).
Baltimore v. State, 631 S.W.3d 727, 728 (Tex. Crim. App. 2021). The
court of appeals then reversed Appellant’s conviction, finding the
evidence legally insufficient to show that the place where he possessed
a weapon was a “premises licensed or issued a permit by this state for
the sale of alcoholic beverages.” Baltimore v. State, No. 10-19-00196-CR,
2022 WL 2977480 at *3 (Tex. App.—Waco July 27, 2022) (mem. op., not
designated for publication). And now we have granted the State’s
petition for discretionary review which asks whether “sworn,
unchallenged testimony on a material issue ha[s] probative value[.]”
The State’s question is clearly a response to the court of appeals’
most recent decision finding the evidence to be legally insufficient to
show that the place where he possessed the weapon was a “premises
licensed or issued a permit by this state for the sale of alcoholic
beverages.” And the Court now answers that frankly easy question on
the first page of its opinion: “Yes.” Majority Opinion at 1. But the
question we are apparently still wrestling with is how a court should
measure the sufficiency of the evidence in this and similar cases. And
that is why the Court goes on today, for another thirty-four pages,
explaining why it concludes that the evidence is legally insufficient.
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I. THE COURT’S MISGUIDED PERPETUATION OF ITS
ERRONEOUS DECISION IN CURLEE V. STATE.
Presiding Judge Keller and I dissented to this Court’s decision to
remand for the court of appeals to reconsider its decision on legal
sufficiency in light of the Court’s opinion in Curlee. For my part,
although I did not elaborate on it at the time, I did so because of my
concern that the remand in light of Curlee would further entrench that
erroneous precedent and cause its corrosive influence on our
jurisprudence to expand. I wrote a dissenting opinion in Curlee to
explain why I believed the Court’s decision in that case was erroneous.
620 S.W.3d at 795–97 (Yeary, J., dissenting).
Curlee had been found to have been in “possession of a controlled
substance within 1,000 feet of a drug-free zone, namely, a [church]
playground.” Curlee, 620 S.W.3d at 775. The issue in that case was
whether the evidence was legally sufficient to prove that the church
playground had been “open to the public” for purposes of the drug-free-
zone special issue authorized by Section 481.134(a)(3)(B) of the Texas
Health and Safety Code. TEX. HEALTH & SAFETY CODE §
481.134(a)(3)(B). The words “open to the public” had been left undefined
in the statute. Curlee, 620 S.W.3d at 796 (Yeary, J., dissenting).
The church playground in Curlee was shown to be surrounded by
a see-through chain-link fence with four different gates, only one of
which had a lock on it, and three were unlocked. Curlee, 620 S.W.3d at
776–77. A local sheriff’s investigator named Smejkal, who was able to
access the playground on his own through an unlocked gate, testified at
Curlee’s trial and confirmed that the playground was indeed “open to
the public.” Id. at 784. The Court found that, in the absence of an
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explanation for the basis of Smejkal’s opinion, his testimony was
“factually unsupported.” Id. at 785 (“Absent the bases upon which
Smejkal’s opinion was formed, his opinion that the playground was open
to the public was a factually unsupported inference or presumption.”).
The Court then concluded that the evidence in that case—including the
fact that the fence around the playground was not completely secure,
Smejkal’s testimony that the playground was open to the public, the fact
that the playground was on the grounds of a church, and the fact that
the playground could be seen through the chain link fence—was
“insufficient to show that the playground was ‘open to the public.’” Id. at
788.
The Court’s opinion in Curlee was, to my way of thinking, at least
difficult to understand. The statute at issue there required the State to
prove that the church playground was “open to the public.” TEX. HEALTH
& SAFETY CODE § 481.134(a)(3)(B). And there was testimony at the trial
from a local sheriff’s investigator that he was able to access the
playground and that the playground was “open to the public.” There was
also evidence that three of the four gates on the chain link fence
surrounding the playground were unlocked. And yet the Court still
required more, even though the words “open to the public” were not
defined to have a limited meaning in the statute.
Curlee might have made more sense had the words “open to the
public” in Section 481.134(a)(3)(B) of the Health and Safety Code been
subject to a specific, limited statutory definition. But this Court has long
held that, in the absence of such a definition, a jury is free to assign any
meaning to undefined statutory language that is available as a matter
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of ordinary English parlance. See Vernon v. State, 841 S.W.2d 407, 409
(Tex. Crim. App. 1992) (“Words not specially defined by the Legislature
are to be understood as ordinary usage allows, and jurors may thus
freely read statutory language to have any meaning which is acceptable
in common parlance.”). Perhaps, if there had been a statutory definition
of “open to the public,” the Court might have been correct to expect some
additional testimony about why the church playground was not only
“open to the public” as a matter of the common understanding of that
phrase but also “open to the public” in the more limited sense required
by the hypothetical statutory definition. But there was no such limiting
definition in the statute.
The Court might also have been excused for requiring more if the
phrase “open to the public” had taken on some kind of “technical
meaning” or was a “term of art.” When a statutory term has taken on a
technical meaning or is a term of art, the Court has said that it will
understand the term to have its technical meaning or the meaning it has
as a term of art. See State v. Hardin, 664 S.W.3d 867, 873 (Tex. Crim.
App. 2022) (“When a particular term is not legislatively defined but has
acquired a technical meaning, we construe that term in its technical
sense.”) (emphasis added). But the Court did not consider that
possibility there.
The statutory phrase “open to the public” at issue in Curlee should
have been treated by the Court as having its commonly understood
meaning. The jury there did not act irrationally to conclude, based on
Smejkal’s testimony and the other circumstances present in that case,
that the church playground there fell within the otherwise undefined
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common meaning of the phrase “open to the public.” The Court just
disagreed with the jury’s conclusion that the playground was “open to
the public.” And, in disagreeing, in my view, the Court succumbed to the
temptation, not to simply ask whether the jury’s different decision was
rational, but to impose its own will on the outcome, as would the
proverbial thirteenth juror. Edwards v. State, 666 S.W.3d 571, 574 (Tex.
Crim. App. 2023) (“When considering a claim of evidentiary
insufficiency, a reviewing court does not sit as the thirteenth juror and
may not substitute its judgment for that of the factfinder by
reevaluating the weight and credibility of the evidence.”).
The Court’s decision in Curlee was wrong. See 620 S.W.3d at 795–
97 (Yeary, J., dissenting). I would not have asked the court of appeals to
reconsider its opinion in light of Curlee. But that does not mean I would
have left the court of appeals’ decision alone in this case either. Instead,
I would have simply considered whether the court of appeals had
correctly reviewed the legal sufficiency of the evidence in this case, in
the first place.
II. CORRUPTION OF THE STANDARD FOR LEGAL SUFFICIENCY
There is still a more troubling aspect to the Court’s decision in
this case. As the Court acknowledges, the trial court, in its charge to the
jury, defined “premises” according to the definition of that term found in
Section 11.49(a) of the Texas Alcoholic Beverage Code. TEX. ALCO. BEV.
CODE § 11.49(a). The court of appeals similarly assumed without
deciding, in its first opinion, that the definition from that code was
proper. Baltimore, 608 S.W.3d at 867 n.2. And the Court in its opinion
today says that, in reviewing the sufficiency of the evidence in this case,
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it “assume[s] without deciding that [the] definition [of ‘premises’ found
in Section 11.49(a) of the Alcoholic Beverage Code] is the appropriate
definition to be applied to the statutory enhancement under Sec. 46.02(c)
as it existed at the time of the offense.” Majority Opinion at 23. But that
is not how we measure legal sufficiency of the evidence.
When conducting a legal sufficiency analysis, we do not do so
based upon potentially incorrect assumptions about the meaning of the
law. This Court’s precedents explain that courts are supposed to
measure the sufficiency of evidence presented against the
“‘hypothetically correct jury charge for the case.’” Hernandez v. State,
556 S.W.3d 308, 312 (Tex. Crim. App. 2017) (quoting Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997)). “A hypothetically correct jury
charge is ‘one that 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.’” Id.
(quoting Malik, 953 S.W.2d at 240) (emphasis added). The Court
acknowledges this in its opinion. Majority Opinion at 19. But the Court
fails to begin its analysis by determining what the hypothetically correct
jury charge would say in this case. To do that, the Court would first have
to actually construe the statutory language in question.
Perhaps the Court does not want to do that. After all, the court of
appeals has yet to construe the meaning of the applicable Penal Code
phrase “premises licensed or issued a permit by this state for the sale of
alcoholic beverages.” Acts 2015, 84th Leg., ch. 437, p. 1719, eff. Jan. 1,
2016 (repealed 2021). If that is the issue holding the Court back from
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conducting a proper legal sufficiency review, I understand. Ordinarily,
on discretionary review, this Court addresses only the “decisions” of the
courts of appeals. See TEX. R. APP. P. 66.1, 68.1 (Court of Criminal
Appeals “may review a court of appeals’ decision in a criminal case”
either on its own initiative or on petition by any party); Gilley v. State,
418 S.W.3d 114, 119 (Tex. Crim. App. 2014) (“As a general proposition,
this Court will review only the ‘decisions’ of the courts of appeals.”).
But I would not simply undertake a modified legal sufficiency of
the evidence review based on a construction of the statute that has only
been assumed to be the correct construction. That can only lead to
further corruption of our jurisprudence. Instead, I would remand to the
court of appeals, as we should have done in the first instance, for that
court to reconsider both of its former opinions, but this time to begin by
properly construing the meaning of the phrase “premises licensed or
issued a permit by this state for the sale of alcoholic beverages.” Acts
2015, 84th Leg., ch. 437, p. 1719, eff. Jan. 1, 2016 (repealed 2021).
III. CONCLUSION
In my view the Court errs to perpetuate its erroneous and
misguided opinion in Curlee. It also perpetrates a corruption of our
standard of review for legal sufficiency of the evidence by measuring the
evidence in this case only against an assumed proper understanding of
the applicable law. I would remand for the court of appeals to properly
construe the law in the first instance. Because the Court does not, I
respectfully dissent.

FILED: May 22, 2024
PUBLISH