Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-21-00566-CR
Johnny Gabriel LAZALDE, Appellant
v.
The STATE of Texas, Appellee
From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2019-CR-8681 Honorable Velia J. Meza, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Irene Rios, Justice Liza A. Rodriguez, Justice Sandee Bryan Marion, Chief Justice (Ret.) 1
Delivered and Filed: October 11, 2023
REVERSED AND REMANDED
Appellant Johnny Gabriel Lazalde appeals his conviction for unlawfully carrying a weapon
on premises licensed or permitted by the State to sell alcoholic beverages, a then third-degree
felony offense. See Act of May 24, 2017, 85th Leg., R.S., ch. 1049, § 4, sec. 46.02; Act of May
23, 2007, 80th Leg., R.S., ch. 693, § 1, sec. 46.02; Act of June 1, 1997, 75th Leg., R.S., ch. 1261,
1 Sitting by assignment pursuant to section 74.003(b) of the Texas Government Code. 04-21-00566-CR
§ 24, sec. 46.02 (hereinafter referred to as “Former Section 46.02”). 2 We reverse the trial court’s
final judgment and remand for further proceedings consistent with this opinion.
BACKGROUND
In January of 2019, Lazalde was arrested for driving without a valid license after parking
his car on a sidewalk and walking towards the entrance of a convenience store that sold alcoholic
beverages. Law enforcement recovered a handgun from a holster on Lazalde’s ankle while
conducting a search incident to his arrest and then charged Lazalde with the misdemeanor offense
of unlawfully carrying a weapon. See Former Section 46.02(a). Lazalde was then subsequently
indicted and tried for the felony offense of unlawful carrying a weapon on premises licensed or
permitted by the State to sell alcoholic beverages. See id. 46.02(a), (c).
At trial, Lazalde objected to the proposed definition of “premises” in the jury charge and
requested a different definition of “premises” that excluded the sidewalk and entrance area
immediately outside the convenience store. The trial court denied his objection and request. The
jury convicted Lazalde of the felony offense. See id. The trial court sentenced Lazalde to two years
in prison but suspended his sentence and placed him on community supervision for two years.
DISCUSSION
In his first issue, Lazalde asserts jury charge error. In his second issue, Lazalde argues the
evidence is insufficient to support his conviction. We address Lazalde’s second issue first because
it is a rendition issue.
2 Since the time of the offense in January 2019, the legislature has significantly amended section 46.02 of the Texas Penal Code, including repealing Former Section 46.02(c) in 2021, the subsection under which Lazalde was convicted. See Act of May 24, 2021, 87th Leg., R.S., ch. 809, §§ 22, 26(8), 28, 29.
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SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
We review the sufficiency of the evidence to support a conviction under the standard set
forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010). Under that standard, we view all the evidence in the light most favorable
to the verdict and determine, based on that evidence and any reasonable inferences therefrom,
whether any rational factfinder could have found the essential elements of the offense beyond a
reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson,
443 U.S. at 318–19). The jury is the sole judge of the credibility and weight to be given to the
testimony of the witnesses. Id. In this role, the jury may choose to believe all, some, or none of the
testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim.
App. 1991).
B. Hypothetically Correct Jury Charge
In determining whether the evidence is legally sufficient, we must compare the evidence
produced at trial to “‘the essential elements of the offense as defined by the hypothetically correct
jury charge.’” David v. State, 663 S.W.3d 673, 678 (Tex. Crim. App. 2022) (quoting Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “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.’” David, 663 S.W.3d at 678 (quoting Malik,
953 S.W.2d at 240). “The ‘law as authorized by the indictment’ includes the statutory elements of
the offense . . . as modified by the charging instrument.” David, 663 S.W.3d at 678 (quoting Curry
v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)).
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C. The Elements of the Offense
In January 2019, Former Section 46.02(a) stated that a person unlawfully carried a weapon
if the person “intentionally, knowingly, or recklessly carrie[d] on or about his or her person a
handgun;” and the person was not on his own premises or premises under his control or inside of
or directly en route to a motor vehicle or watercraft that the person owned or was under his control.
See Former Section 46.02(a). Commission of an offense under this subsection in January 2019 was
a Class A misdemeanor. See id. 46.02(b). However, “if the offense [was] committed on any
premises licensed or issued a permit by this state for the sale of alcoholic beverages[,]” the offense
was a third-degree felony. Id. 46.02(c).
Former Section 46.02 defined “premises” as including “real property and a recreational
vehicle that is being used as living quarters, regardless of whether that use is temporary or
permanent.” Id. 46.02(a–2). The jury charge included a portion of this definition; namely, that
“premises” included “real property” but further instructed the jury:
With regard to premises licensed or issued a permit by this state for the sale of alcoholic beverages, “premises” means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person. 3
See TEX. ALCO. BEV. CODE ANN. § 11.49(a).
When terms are not clearly defined by statute, we “may articulate a definition [of the
common term] in assessing the sufficiency of the evidence[.]” Kirsch v. State, 357 S.W.3d 645,
651 (Tex. Crim. App. 2012); see Green v. State, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015). In
doing so, we look to the common, ordinary meaning of the word. Williams v. State, 270 S.W.3d
140, 146 (Tex. Crim. App. 2008); see Medford v. State, 13 S.W.3d 769, 771–72 (Tex. Crim. App.
3 As more fully explained in the jury charge issue, we believe the trial court erred in further defining premises as it did here.
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2000) (explaining that “terms not legislatively defined are typically to be understood as ordinary
usage allows, and jurors may thus give them any meaning which is acceptable in common
parlance”). In determining the common, ordinary meaning of a word, we may consult standard
dictionaries. See Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011).
According to Black’s Law Dictionary, “real property” is defined as “[l]and and anything
growing on, attached to, or erected on it, excluding anything that may be severed without injury to
the land.” See Property – real property, BLACK’S LAW DICTIONARY (11th ed. 2019). A standard
dictionary defines “property” as “something owned or possessed[,] specifically: a piece of real
estate[.]” See Property, MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-
webster.com/dictionary/property. “Real estate” is defined as “property in buildings and land[.]”
See Real Estate, MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-
webster.com/dictionary/realestate.
Moreover, Black’s Law Dictionary defines “premises” as “[a] house or building, along
with its ground; [especially], the buildings and land that a shop, restaurant, company, etc. uses.”
See Premises, BLACK’S LAW DICTIONARY (11th ed. 2019). Similarly, a standard dictionary defines
“premises” as “a tract of land with the buildings thereon [or] a building or part of a building usually
with its appurtenances (such as grounds)[.]” See Premises, MERRIAM-WEBSTER ONLINE
DICTIONARY, https://www.merriam-webster.com/dictionary/premise.
D. The State’s Evidence
Here, San Antonio Police Officers Mical Rochford and Zachery Rodriguez testified they
were on patrol together the evening of January 24, 2019, when they saw Lazalde drive his car onto
and park on the public sidewalk just outside the front door of a convenience store. The store had
parking spaces on both sides of the building. Because Lazalde parked on the sidewalk, Officers
Rochford and Rodriguez initiated a traffic stop. Officers Rochford and Rodriguez both explained
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that immediately upon the activation of the emergency lights on the patrol car, Lazalde exited his
car and began walking towards the front door but did not go inside the store. According to Officer
Rochford, Lazalde “made it to the door, but he never opened it or made it inside.” Rather, when
Officer Rochford called him, Lazalde walked away from the door and towards Officer Rochford.
Officer Rochford acknowledged during cross-examination that Lazalde was “outside the door of
that store, and the sidewalk, and the private walkway, or the closest he would have gotten would
be the entryway” to the store before he turned around.
Officers Rochford and Rodriguez eventually detained Lazalde by placing him in handcuffs
and putting him in the backseat of the patrol car because he did not keep his hands away from his
pockets while the officers discussed the traffic stop with him. Soon thereafter, Officer Rochford
discovered Lazalde did not have a valid driver’s license and placed Lazalde under arrest for driving
without a valid driver’s license. Upon conducting a search incident to his arrest, the officers
discovered a holstered handgun on Lazalde’s ankle.
Officer Rochford testified that after finding the handgun, he further charged Lazalde with
misdemeanor unlawfully carrying a weapon. See Former Section 46.02(a), (b). When specifically
asked by the State why he charged Lazalde with the misdemeanor offense, Officer Rochford
explained he charged Lazalde with the misdemeanor offense rather than felony unlawfully
carrying a weapon on premises licensed or permitted by the State to sell alcohol because “when
we made contact with him[,] he hadn’t made it into the store yet[.]” See id. 46.02(c). Officer
Rochford described the area in front of the door as the street where his patrol car was parked, a
small shoulder next to the left of the white line on the street, a sidewalk, and then “about three feet
of storefront up to the actual walls of the store.” During cross-examination, Officer Rochford
acknowledged an employee of the store stated she and others frequently parked in the same
location Lazalde parked the night of his arrest. The footage from Officer Rodriguez’s body-camera
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reflects the employee coming out of the store and telling the officers that people usually drive up
on the sidewalk where Lazalde parked.
Officers Rochford’s and Rodriguez’s body-camera footage reflects that Lazalde parked on
the sidewalk very close to the building and front door, with the driver’s side closest to the building.
Additionally, the footage shows Lazalde near the door of the store before he turns around to speak
to the officers. Noteworthy, when Officer Rodriguez informs Lazalde that he cannot drive and park
on the sidewalk, Lazalde states that he parks there all the time and that he is parked on “the store’s
property.”
Jaswinder Lalia, the convenience store’s former owner, testified that the store sold
alcoholic beverages at the time of Lazalde’s arrest. Lalia explained the store had parking spaces
on both sides of the building, but “[n]othing on the front.” Lalia further explained that with respect
to the front of the building, “there’s a sidewalk and there’s some place in front of the store that
belongs to the building.”
E. Analysis
Lazalde concedes all the elements of the offense for which he is charged except that he
unlawfully carried a weapon on “any premises licensed or issued a permit by this [S]tate for the
sale of alcoholic beverages.” Specifically, Lazalde asserts that because he never actually went
inside the store—an element Lazalde argues is required for the jury to find him guilty of the felony
offense—he did not commit the offense of unlawfully carrying a weapon on premises licensed or
permitted to sell alcoholic beverages.
We disagree. We do not conclude that under a hypothetically correct jury charge, the statute
applicable at the time of Lazalde’s offense required him to enter the store to have been found guilty
of committing the felony offense. Rather, when considering the terms “real estate” and “premises”
as commonly defined above, the evidence was sufficient to convict Lazalde if he was unlawfully
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carrying a weapon on the convenience store’s property, not just inside the store itself. Based on
the officers’ testimonies, the officers’ body-camera footage, Lalia’s testimony, and even Lazalde’s
statements himself, the jury’s determination that Lazalde parked on the convenience store’s
property, exited his car on the store’s property, and walked near the front entrance of the building
on the store’s property was not unreasonable. When viewing the totality of the evidence in the
light most favorable to the jury’s verdict while applying the hypothetically correct jury charge, we
conclude the evidence sufficiently proves Lazalde was on the store’s premises. See Jackson, 443
U.S. at 319; Temple, 390 S.W.3d at 360; see also David, 663 S.W.3d at 678.
In sum, a rational factfinder, having considered the evidence presented at trial, could have
found beyond a reasonable doubt that Lazalde unlawfully carried a weapon on premises licensed
or permitted by the State to sell alcoholic beverages as that offense existed in January 2019. See
Jackson, 443 U.S. at 319; see also Former Section 46.02(a), (c). Accordingly, we overrule
Lazalde’s second issue.
JURY CHARGE ERROR
Lazalde complains in his first issue that the jury charge erroneously (1) defined “premises”
as “the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including
any adjacent premises if they are directly or indirectly under the control of the same person,” as
the term is defined by section 11.49(a) of the Texas Alcoholic Beverage Code, and (2) excluded
his requested definition from former section 46.035(f)(3) 4 of the Texas Penal Code as it existed in
January 2019. See TEX. ALCO. BEV. CODE ANN. § 11.49(a) 5; Act of May 26, 2017, 85th Leg., R.S.,
4 “‘Premises’ means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.” Act of May 26, 2017, 85th Leg., R.S., ch. 1143, §§ 11, 12; Act of May 18, 2017, 85th Leg., R.S., ch. 324, §§ 15.004, 15.005; Act of May 4, 2017, 85th Leg., R.S., ch. 34, § 32. 5 We cite to the current statute because the 2019 and 2021 amendments did not amend the subsection relevant to this appeal.
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ch. 1143, §§ 11, 12; Act of May 18, 2017, 85th Leg., R.S., ch. 324, §§ 15.004, 15.005; Act of May
4, 2017, 85th Leg., R.S., ch. 34, § 32 (hereinafter referred to as “Former Section 46.035(f)(3)”) 6.
We must review “all alleged jury-charge error . . . regardless of preservation in the trial
court.” Kirsch, 357 S.W.3d at 649. In reviewing a jury charge, we first determine whether error
occurred; if none occurred, our analysis ends. Id. However, if the charge is erroneous, then we
must decide whether the appellant suffered harmed. Wooten v. State, 400 S.W.3d 601, 606 (Tex.
Crim. App. 2013); see Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). The standard
of review we apply to assess harm depends on whether the defendant preserved error. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If a defendant timely objects to alleged jury
charge error, the error is reversible if it caused “some harm.” Id.; see also Jordan v. State, 593
S.W.3d 340, 346 (Tex. Crim. App. 2020). “Some harm” means “actual harm and not merely a
theoretical complaint.” Jordan, 593 S.W.3d at 347. Harm must be evaluated in light of the
complete jury charge, the arguments of counsel, the entirety of the evidence, including the
contested issues and weight of the probative evidence, and any other relevant factors revealed by
the record as a whole. Wooten, 400 S.W.3d at 606. Neither party bears the burden to show harm.
Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
B. Jury Charge Conference
During the jury charge conference, Lazalde objected to the trial court’s inclusion of the
Texas Alcoholic Beverages Code’s definition of “premises.” See TEX. ALCO. BEV. CODE ANN.
§ 11.49(a). Instead, Lazalde requested orally and in writing that the trial court utilize the
6 Since the time of the offense in January 2019, the legislature has significantly amended section 46.035 of the Texas Penal Code, including repealing Former Section 46.035(f)(3) in 2021, the subsection Lazalde refers to during the jury charge conference. See Act of May 24, 2021, 87th Leg., R.S., ch. 809, § 26(10).
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“premises” definition from Former Section 46.035 of the Texas Penal Code as it existed in January
2019. See Former Section 46.035(f)(3). 7 The trial court denied Lazalde’s objection and request,
indicating Former Section 46.035(f)(3) only applied to licensed handgun holders, and Lazalde did
not possess a handgun license. Additionally, the trial court stated Former Section 46.02(a–2)
provides its own definition of “premises” and that section 11.49(a) of the Texas Alcoholic
Beverage Code addresses premises with respect to establishments licensed or permitted to sell
alcoholic beverages. Thus, the trial court included the section 11.49 definition of “premises.”
Compare TEX. ALCO. BEV. CODE ANN. § 11.49(a), with Former Section 46.035(f)(3); see also
Former Section 46.02(c).
Therefore, because Lazalde preserved error, we determine whether error occurred in
denying Lazalde’s objection or request; and if error occurred, we determine whether Lazalde
suffered “some harm.” See Jordan, 593 S.W.3d at 346.
C. Analysis
1. Did the trial court err?
Generally, “the jury is the exclusive judge of the facts, but it is bound to receive the law
from the court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13. Hence, the trial
court must give the jury a written charge “distinctly setting forth the law applicable to the case;
not expressing any opinion as to the weight of the evidence, not summing up the testimony,
discussing the facts or using any argument in [its] charge calculated to arouse the sympathy or
excite the passions of the jury.” Id. art. 36.14; Green, 476 S.W.3d at 445.
Given the restrictions the legislature has placed on the trial courts’ authority to instruct
juries, the Court of Criminal Appeals has cautioned trial courts to avoid defining terms that are not
7 “‘Premises’ means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.” See Former Section 46.035(f)(3).
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defined by statute. Green, 476 S.W.3d at 445. That is because “definitions for terms that are not
statutorily defined are not considered to be the ‘applicable law[,]’ and it is thus generally
impermissible for the trial court to define those terms in the jury instructions.” Id. (citations
omitted); see also Beltran de la Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019)
(explaining trial courts should “avoid including non-statutory instructions in the charge because
such instructions frequently constitute impermissible comments on the weight of the evidence”);
Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007) (“[S]pecial, non-statutory
instructions, even when they relate to statutory offenses or defenses, generally have no place in
the jury charge.”). Rather, “terms not legislatively defined are typically to be understood as
ordinary usage allows, and jurors may thus give them any meaning which is acceptable in common
parlance.” Medford, 13 S.W.3d at 771–72.
At the time of Lazalde’s alleged offense, Former Section 46.02 defined “premises” as “real
property[.]” See Former Section 46.02(a–2). The legislature did not further define “real property”
within this section. Additionally, Former Section 46.02(c) that elevates the offense to a felony for
unlawfully carrying a weapon on premises licensed or permitted to sell alcoholic beverages does
not refer to the Texas Alcoholic Beverage Code’s definition of “premises.” See id. 46.02(c).
Moreover, in former sections of Chapter 46 of the Penal Code concerning offenses related to
carrying weapons, the legislature either defined “premises” in those statutes or made specific
references to other Penal Code sections to define “premises.” See Act of May 24, 2017, 85th Leg.,
R.S., ch. 1049, § 6 (hereinafter referred to as “Former Section 46.03(c)(2)”) 8; Former Section
46.035(f)(3). Surely, if the legislature had desired to apply the definition of “premises” as provided
8 Since the time of the offense in January 2019, the legislature has significantly amended section 46.03 of the Texas Penal Code, including amending Former Section 46.03(c)(2) and adding subsection 46.03(c)(4) in 2021, which effectively moves the definition of “premises” previously located in Former Section 46.035(f)(3) to current subsection 46.03(c)(4). See Act of May 24, 2021, 87th Leg, R.S., ch. 809, § 23.
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in Former Section 46.035(f)(3), it would not have defined it within Former Section 46.02, or it
would have referred to Former Section 46.035(f)(3) as it did in Former Section 46.03(c)(2). We
conclude the trial court did not err in denying Lazalde’s request to include the definition of
“premises” as provided in Former Section 46.035(f)(3).
Nevertheless, while we conclude the trial court did not err by denying Lazalde’s request to
include the definition of “premises” as provided by Former Section 46.035(f)(3) of the Penal Code,
the trial court included the definition of “premises” from section 11.49 of the Texas Alcoholic
Beverage Code. As previously discussed, Former Section 46.02 defined “premises” without any
reference to the Alcoholic Beverages Code.
Based on the legislative restrictions on instructing the jury and the Court of Criminal
Appeals’ reiterations cautioning the same, trial courts should avoid defining terms not defined
within the statute. See TEX. CODE CRIM. PROC. ANN. art. 36.14; Beltran de la Torre, 583 S.W.3d
at 617; Green, 476 S.W.3d at 445; Walters, 247 S.W.3d at 211. “Even a judge’s innocent attempt
to provide clarity for the jury by including a neutral instruction can result in an impermissible
comment on the weight of the evidence because the instruction singles out a particular piece of
evidence for special attention, which the jury may then focus on as guidance from the judge.”
Beltran de la Torre, 583 S.W.3d at 617 (citations omitted).
Because the trial court provided a specific instruction of “premises” in addition to the
definition provided by the charged offense, rather than allow the jury to freely give the word its
common meaning, we conclude the trial court erred by providing the definition of “premises” from
the Alcoholic Beverage Code. See Former Section 46.02(a–2); see also Cummins v. State, No. 06-
17-00010-CR; 2017 WL 2664442, at *2–3 (Tex. App.—Texarkana June 21, 2017, no pet.) (not
designated for publication) (declining to hold the trial court erred by failing to include the
“premises” definition from section 11.49 of the Alcoholic Beverage Code because Former Section
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46.02 of the Penal Code provided its own definition of “premises,” and distinguishing Terry v.
State, 877 S.W.2d 68 (Tex. App—Houston [1st Dist.] 1994, no pet.).
2. Did Lazalde suffer harm?
As Lazalde preserved his jury charge error and we conclude the trial court erred, we next
determine whether the error caused Lazalde “some harm.” See Jordan, 593 S.W.3d at 347. “To
assess harm, [under this standard,] we must evaluate the whole record, including the jury charge,
contested issues, weight of the probative evidence, arguments of counsel, and other relevant
information.” Id.
The only disputed element at trial was whether Lazalde was unlawfully carrying the
weapon on the convenience store’s premises. The evidence revealed Lazalde parked on the
sidewalk and area close to the front of the store, and that he walked near the entrance to the store
before turning back towards the officers. However, Officer Rochford testified that he only arrested
and charged Lazalde with misdemeanor unlawful carrying of a weapon rather than a felony for
unlawfully carrying the weapon on a premises licensed or permitted to sell alcoholic beverages by
the State because Lazalde did not go into the store.
When reviewing the entire jury charge, only a few definitions are provided. They are not
in any order, including alphabetical, and the charge defines “premises” first. After providing the
definition of “premises” from Former Section 46.02, 9 the charge also states in a separate
paragraph,
With regard to premises licensed or issued a permit by this state for the sale of alcoholic beverages, “premises” means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.
9 “‘[P]remises’ includes real property.” See Former Section 46.02.
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The charge also directly instructs the jury to follow the law as provided by the court within the
charge.
During the State’s opening statement, the State emphasized that “the case will boil down
to, in a nutshell” what “premises” means. Moreover, at the beginning of the State’s closing
argument, while referring to the charge and the provided definition of “premises” therein, the State
informed the jury that the definition provided by the charge was not made up, but rather “[i]t’s
coming straight from the bench. It’s the law.” Then, on rebuttal after Lazalde’s closing, wherein
defense counsel referred to Officer Rochford’s testimony claiming Lazalde was not on the
convenience store’s premises because he never went inside the store, the State explained how the
evidence matched the definition of “premises” as provided within the charge, namely that Lazalde
was on the store’s property—the appurtenances, meaning the area in front of the store where
Lazalde parked and walked towards the store’s front entrance.
Lazalde’s defense hinged on the definition of “premises.” Considering the entire record
and the trial court’s inclusion of the additional “premises” definition from section 11.49 of the
Alcoholic Beverage Code, the trial court’s instruction usurped the jury of its factfinding function
“to consider and evaluate the evidence in whatever way they consider[ed] it relevant to the
statutory offenses.” Walters, 247 S.W.3d at 211. This, coupled with the charge further instructing
the jury that “the law of the case” will be “receive[d] from the Court as contained in these
instructions, and [the jury’s decision shall] be governed thereby[,]” impermissibly guided the
jury’s understanding of the term “premises.” See Kirsch, 357 S.W.3d at 652.
Jury charge error that affects “the very basis of the case,” “deprive[s] the defendant of a
valuable right,” or “vitally affect[s] a defensive theory[,]” causes the defendant harm necessitating
the reversal of the trial court’s judgment. See Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim.
App. 2011) (citation and internal quotation marks omitted). The trial court’s inclusion of the
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additional definition of “premises” within the charge here resulted in the type of jury charge error
causing “some harm.” See id.; see also Jordan v. State, 593 S.W.3d at 346–47; Wooten, 400
S.W.3d at 606.
Accordingly, we sustain Lazalde’s first issue.
CONCLUSION
Having overruled Lazalde’s sufficiency issue but sustained his jury charge error argument,
we reverse the trial court’s final judgment and remand the case for further proceedings consistent
with this opinion.
Irene Rios, Justice
DO NOT PUBLISH
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