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Click here for the full text of this decision FACTS: The appellant was convicted of violating the same protective order on two occasions. State law, in relevant part, defines the elements of the offense of violating a protective order as a person who knowingly or intentionally goes near the residence of a protected individual in violation of an order issued under the Family Code. The records in these cases reflect that appellant was the subject of two protective orders that were issued by the same court in a divorce proceeding between appellant and his wife. One order prohibited appellant from going within 500 feet of the residence of his wife (Evelyn), and the other order prohibited him from going within 500 feet of the residence of their minor daughter (Ivana). Ivana lived with Evelyn in the residence listed in the protective orders. An information charged appellant with violating Ivana’s protective order on May 5, 2000, and another information charged him with violating the same protective order on May, 17, 2000. HOLDING: Affirmed. The issue presented in these cases is whether the evidence is sufficient to support a conviction for this offense when the charging instruments contain an unnecessary allegation. The sufficiency issue in these cases centers around the allegation in the informations referring to Evelyn as “a protected individual.” On direct appeal in both cases, appellant claimed that a variance between this allegation and the proof at his trials was “fatal” rendering the evidence insufficient to support his convictions. The court of appeals rejected this claim in a single opinion that disposed of both cases. For evidentiary sufficiency purposes under both federal and state law, the prosecution alleged and proved everything that the law required when it alleged and proved that appellant came within 500 feet of the residence in violation of a protective order. Fuller v. State, 73 S.W.3d 250 (Tex.Cr.App. 2002); Gollihar v. State, 46 S.W.3d 243 (Tex.Cr.App. 2001); Malik v. State, 953 S.W.2d 234 (Tex.Cr.App. 1997). The allegation in the informations referring to Evelyn as “a protected individual” under Ivana’s protective order is not a statutory element or “an integral part of an essential element of the offense” of violating a protective order. Disregarding this allegation for sufficiency purposes also does not require wholly rewriting the informations to charge a different offense. In addition, the variance between the allegations in the informations referring to Evelyn as “a protected individual” and the proof at the trials is immaterial. The records in these cases reflect that appellant had sufficient notice of the charges against him and that he was not surprised by the proof at his trials. These records also reflect that appellant is not at risk of being prosecuted later for the same offenses since (for double jeopardy purposes) the records clearly show that appellant was convicted of going near Ivana’s residence on May 5th and May 17th in violation of Ivana’s protective order. OPINION: Hervey, J., delivered the opinion of the Court in which Keller, PJ., Meyers Keasler, Holcomb and Cochran, JJ., joined. Meyers, J., filed a concurring opinion in which Cochran, J., joined. Price, Womack and Johnson, JJ., concurred. CONCURRENCE: Meyers, J. “The language describing Evelyn as “a protected person” may be surplusage. See Whetstone v. State, 786 S.W.2d 361, 364 (Tex. Crim. App. 1990) (‘allegations which are not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage.’) If Ivana normally resided with a family friend named Joe Bob and appellant had gone to Joe Bob’s house, then the charging instrument would have said that appellant unlawfully went to the residence of Joe Bob, a family friend, in violation of the order protecting Ivana. The prosecution would not be required to offer evidence at trial that Joe Bob was indeed a family friend because it is not an element of the offense and it is not necessary to the allegation that appellant violated the order protecting Ivana. Thus, the fact that the charging instrument superfluously adds the fact that Evelyn was also a protected individual does not mean that must be proven at trial. However, even if the ‘protected person’ language is not surplusage and must be proven at trial, introduction of the actual Evelyn protective order is not the only method by which the State can prove Evelyn’s status as a protected individual. The record indicates that the State attempted to introduce both protective orders but the trial court required the prosecutor to choose only one to enter into evidence. The prosecution entered the Ivana protection order, the one that was specifically described in the information. The State then elicited testimony from Evelyn, as well as the police officers, who testified that she too was a protected person. The testimony of the police officers, that they had investigated the violations and had ascertained that there were valid orders protecting both Evelyn and Ivana, would be sufficient to prove Evelyn’s status as a protected individual if that fact was necessary to the allegation in the charging instrument.”

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