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 Jan. 1, 2016 (repealed 2021); Baltimore v. State, 608 S.W.3d 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-freezone 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