NUMBER 13-20-00062-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

BRIAN JAMES MATEW, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 218th District Court 

of Atascosa County, Texas.

 

OPINION

Before Justices Hinojosa, Tijerina, and Silva

Opinion by Justice Hinojosa

A jury convicted appellant Brian James Matew of unlawful possession of a firearm 

by a felon and unlawful possession of metal or body armor by a felon. See TEX. PENAL 

CODE ANN. §§ 46.04(a), 46.041(a)–(b). The trial court sentenced Matew to nine years and 

364 days in the Texas Department of Criminal Justice—Institutional Division along with a 
2

fine of $2000 for each offense, with the sentences to run concurrently. 

By six issues which we interpret and re-organize as five, Matew contends the trial 

court erred because: (1) it inappropriately used the predicate felony for the conviction, 

even though Matew had been granted judicial clemency for the underlying offense; (2) it 

failed to grant his motion to quash the indictment; (3) it wrongfully admitted evidence of 

the prior conviction during the guilt/innocence portion of the trial; (4) there was jury charge 

error regarding whether the predicate felony was a “final” conviction; and (5) the evidence 

was insufficient to support the verdict. We affirm.

I. BACKGROUND1

On October 30, 2013, Matew pleaded guilty to impersonating a public servant, a 

second degree felony, in Cause Number 2013CR2339 in the 290th District Court of Bexar 

County, Texas (the Bexar County felony). See id. § 37.11. The trial court sentenced him 

to a term of five years’ incarceration, suspended the sentence, and placed him on five 

years of felony community supervision. As a condition of felony community supervision, 

Matew could not possess firearms or body armor. 

On September 15, 2017, while under community supervision for the Bexar County 

felony, Matew was pulled over for driving one hundred miles per hour in a seventy-five 

mile per hour speed zone in Atascosa County, Texas. During the stop, officers discovered 

1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio 

pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. 

§§ 22.220(a) (delineating the jurisdiction of appellate courts); 73.001 (granting the supreme court the 

authority to transfer cases from one court of appeals to another at any time that there is “good cause” for 

the transfer). Because this is a transfer case, we apply the precedent of the San Antonio Court of Appeals 

to the extent it differs from our own. See TEX. R. APP. P. 41.
3

a firearm underneath Matew’s driver’s seat, and a bulletproof vest in the trunk of his 

vehicle. Matew was arrested for felon in possession of a firearm and felon in possession 

of body armor. See id. §§ 46.04(a), 46.041(a)–(b). 

On November 17, 2017, an Atascosa County grand jury indicted Matew for the 

September 15 offenses. The indictment, in pertinent part, reads as follows:

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS, the 

Grand Jury, duly selected, organized, sworn and impaneled as such for the 

County of Atascosa, State of Texas, at the July, A.D., 2017, term of the 

81st/218th Judicial District Court for said County, upon their oaths present 

in and to said Court, that on or about the 15[th] day of September 2017, and 

before the presentment of this indictment, in the County and State 

aforesaid, [Matew] (hereinafter styled Defendant) did then and there:

COUNT 1

having been convicted of the felony offense of Impersonating Public Servant 

on the 30[th] day of October 2013, in cause number 2013CR2339 in the 

290[th] District Court of Bexar County, Texas, intentionally or knowingly 

possess a firearm before the fifth anniversary of the defendant’s release 

from supervision under community supervision following conviction of said 

felony.

COUNT 2

having been convicted of the felony offense of Impersonating Public Servant 

on the 30[th] day of October 2013, in cause number 2013CR2339 in the 

290[th] District Court of Bexar County, Texas, intentionally or knowingly 

possess metal or body armor.

On April 5, 2018, Matew requested early termination of his Bexar County felony 

community supervision, four years into his five-year community supervision sentence. 

The trial court found that Matew successfully completed the terms and conditions of his 

community supervision, even though the charges for the September 15, 2017 offenses 
4

were pending,2 and granted the request for early termination of his probation. The trial 

court also granted Matew’s request for judicial clemency. See TEX. CODE CRIM. PROC.

ANN. art. 42A.701(f). The court thus dismissed the impersonating a public servant felony 

offense and signed an order discharging Matew “from all penalties and disabilities 

resulting from the offense . . . .” See id.

Matew subsequently filed a motion to quash the indictment in the Atascosa County 

cases, claiming the State could not prove an essential element of their charges because 

he had been granted judicial clemency from the underlying Bexar County felony. In other 

words, Matew argued that the predicate felony for the felon in possession offenses could 

not be proven because he was not a convicted felon. The trial court denied this motion 

2 We do not have any reporter’s records from Cause Number 2013CR2339 in the 290th District 

Court of Bexar County before us. However, during a hearing in the underlying case, Matew’s counsel

represented that the Bexar County trial court was aware of the pending charges in Atascosa County. A 

motion to revoke probation had been filed, and according to Matew’s counsel, the State had either 

withdrawn its motion or the trial court had denied it:

[Counsel]: It was denied. They—it was either withdrawn or denied.

[The Court]: The probation—the motion to revoke?

[Counsel]: Yes. Uh-huh.

[The Court]: Why in the world would they do that?

[Counsel]: Your Honor, and the State was in agreement with us terminating the probation 

early, because he had done well, so at this—

[The Court]: Did they know about this arrest?

[Counsel]: Yes, they did.

[The Court]: Good Lord. . . . 

The Atascosa County prosecutor then stated that no one from the Bexar County District Attorney’s 

Office had spoken with them regarding the motion to revoke in the Bexar County felony or on the pending 

Atascosa County charges.
5

on June 17, 2019.

Trial commenced on June 18, 2019. During trial, the trial court admitted the Bexar 

County felony indictment and the judgment of conviction over Matew’s objection. Matew 

argued that these documents were admissible only during the punishment phase of trial, 

not during the guilt/innocence phase. See id. During the jury charge conference, Matew 

also requested that the trial court include a jury instruction that the State must prove 

beyond a reasonable doubt that the Bexar County felony was a “final” conviction. The trial 

court denied this request.

On June 19, 2019, a jury found Matew guilty of both felon in possession offenses. 

See TEX. PENAL CODE ANN. §§ 46.04(a), 46.041(a)–(b). The trial court sentenced Matew 

to nine years and 364 days confinement and ordered a $2000 fine on each offense, with 

the sentences to run concurrently. Matew appeals.

II. THE JUDICIAL CLEMENCY STATUTE

A. Applicable Law

The judicial clemency statute provides as follows:

(f) If the judge discharges the defendant under this article, the judge 

may set aside the verdict or permit the defendant to withdraw the 

defendant’s plea. A judge acting under this subsection shall dismiss 

the accusation, complaint, information, or indictment against the 

defendant. A defendant who receives a discharge and dismissal 

under this subsection is released from all penalties and disabilities 

resulting from the offense of which the defendant has been convicted 

or to which the defendant has pleaded guilty, except that:

(1) proof of the conviction or plea of guilty shall be made known to 

the judge if the defendant is convicted of any subsequent 

offense . . . .

3

3 Both parties agree that subsection (2) of this article is inapplicable to this case.
6

TEX. CODE CRIM. PROC. ANN. art. 42A.701.

The jury convicted Matew of unlawful possession of a firearm. This statute provides 

that 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 date is later; or

(2) after the period described by Subdivision (1), at any location other 

than the premises at which the person lives.

TEX. PENAL CODE ANN. § 46.04(a). 

In sum, a person on felony community supervision commits an offense if before 

the fifth anniversary of his release from community supervision, he possesses a firearm. 

See id. § 46.04(a)(1). Similarly, a person with a felony conviction commits an offense if

he possesses metal or body armor. See id. § 46.041(b). 

B. Analysis

Matew makes two primary arguments to express why it was improper for the trial 

court to use the Bexar County felony as the predicate felony Atascosa County convictions, 

even though Matew had been granted judicial clemency of the underlying offense. First, 

he claims the trial court improperly used Matew’s “status at the time” of his arrest. Second, 

he asserts that the statute does not define “conviction.” We address each argument in 

turn.

1. Use of the “Status at the Time” Argument

Matew contends that the trial court erred in using his felony “status at the time” of 
7

the arrest. We look to Ex parte Jimenez, a post-conviction writ of habeas corpus case, for 

guidance on this argument. See 361 S.W.3d 679, 682 (Tex. Crim. App. 2012). In Jimenez, 

Antonio Jimenez was convicted of rape of a child in 1982. Id. at 680. Nine years later, 

Jimenez was convicted of unlawful possession of a firearm by a felon, as well as for 

possession of heroin under twenty-eight grams. Id. at 681. In 1998, Jimenez filed an 

application for writ of habeas corpus regarding his rape conviction, claiming that his plea 

was involuntary because he received ineffective assistance of counsel. Id. The court 

granted Jimenez’s relief in 1999 and set aside the rape conviction. Id. The State then 

elected to dismiss the rape charge, seventeen years after the original conviction, because 

a key witness was now missing. Id.

In 2011, Jimenez filed an application for writ of habeas corpus on the felon in 

possession of a firearm conviction, asserting that it should be “void because the predicate 

felony supporting his conviction ha[d] been set aside and the charge dismissed.” Id. The 

Texas Court of Criminal Appeals disagreed, holding that “to obtain a valid conviction, the 

State must prove a defendant’s felony status when he possessed the firearm.” Id. at 682 

(citing State v. Mason, 980 S.W.2d 635, 641 (Tex. Crim. App. 1998) (emphasis added). 

We find this guidance persuasive. Just like Jimenez, Matew had a felony conviction 

“at the time” he was arrested for the felon in possession charges. See Jimenez, 361 

S.W.3d at 683–84 (“[I]f the defendant had the status of a felon at the time he possessed 

the firearm, a conviction for unlawful possession of a firearm by a felon is not void if the 

predicate felony conviction is subsequently set aside”); Mason, 980 S.W.2d at 640

(holding that “the commission of the offense and the formation of appellee’s criminal intent 
8

came together on the alleged date upon which appellee, a felon, possessed the 

firearm. . . .); see also Lewis v. United States, 445 U.S. 55, 65 (1980) (holding that a 

defendant’s prior felony conviction can serve as the predicate for a later charge, even if 

the underlying felony conviction is subsequently found to be constitutionally infirm).

Accordingly, we disagree with Matew that the trial court erred in using his felon “status at 

the time” in its rulings.

2. Definition of “Convicted”

a. Other Statutes

Matew also argues that he was not a convicted felon for the purposes of the 

unlawful felon in possession offenses because had the Legislature intended to include 

offenses dismissed through judicial clemency, it would have explicitly written so. Matew

points out that the Texas Legislature defines the term “convicted” in certain other statutes 

to include convictions that have been granted judicial clemency. See TEX. GOV’T CODE 

ANN. § 411.171(4); TEX. HEALTH & SAFETY CODE ANN. § 841.003(b)(1)(A). For example, in 

the Concealed Handgun Act, the legislature defined “convicted” as an adjudication of guilt 

regardless of “whether or not the imposition of the sentence is subsequently probated 

and the person is discharged from community supervision.” TEX. GOV’T CODE ANN. 

§ 411.171(4); see Tune v. Tex. Dep’t of Pub. Safety, 23 S.W.3d 358, 364 (Tex. 2000) 

(noting that the Concealed Handgun Act includes dismissed convictions under the judicial 

clemency statute). Further, the Sexually Violent Predator Statute also includes 

convictions that have been dismissed via judicial clemency. See TEX. HEALTH & SAFETY 

CODE ANN. § 841.003(b)(1)(A) (declaring that a person is a repeat sexually violent 
9

offender “regardless of whether the sentence for the offense was ever imposed or 

whether the sentence was probated and the person was subsequently discharged from 

community supervision”); see also In re Bradshaw, No. 09-12-00570-CV, 2013 WL 

5874613, at *3 (Tex. App.—Beaumont Oct. 31, 2013, pet. denied) (mem. op.) (discussing 

same).

Matew argues that because the term “convicted” is not defined here in the Texas 

Penal Code to include convictions dismissed through judicial clemency, his Bexar County 

felony conviction should not be considered. See TEX. PENAL CODE ANN. §§ 1.07; 46.04. 

We disagree. “When interpreting a statute, we look to the literal text of the statute for its 

meaning.” Martin v. State, 635 S.W.3d 672 (Tex. Crim. App. 2021) (citing Boykin v. State, 

818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). “We ordinarily give effect to that plain

meaning unless application of the statute’s plain language would lead to absurd 

consequences that the Legislature could not possibly have intended or 

the plain language is ambiguous.” Id.

Because the word “conviction” is not defined in the felon in possession statutes at 

issue, we defer to its plain and common meaning. See Martin, 635 S.W.3d 672. Black’s 

Law Dictionary defines “conviction” as “the act or process of judicially finding someone 

guilty of a crime; the state of having been proved guilty.” See BLACK’S LAW DICTIONARY

(11th ed. 2019). At the time of the alleged offense, Matew was convicted of the Bexar

County felony. He later possessed a firearm and body armor before the fifth anniversary 

of his release from community supervision for that conviction. See TEX. PENAL CODE ANN. 

§§ 46.04(a); 46.041(b). For this reason, we are unpersuaded by this argument concerning 
10

the definition of “conviction.”

b. Other Cases

Matew also cites Cuellar v. State in support of his contention that there was no 

predicate felony. 70 S.W.3d 815 (Tex. Crim. App. 2002). In Cuellar, the defendant Rudy 

Valentino Cuellar pleaded guilty to possession of heroin, a second-degree felony. Id. at 

816 (citing TEX. HEALTH & SAFETY CODE ANN. § 481.115(d)). The trial court sentenced 

Cuellar to five years’ imprisonment, suspended the sentence, and placed Cuellar on 

community supervision for five years. See id. In 1981, after Cuellar successfully 

completed his term of community supervision, the trial court granted Cuellar judicial 

clemency, setting aside and dismissing the judgment completely. See id.

Fifteen years later, on November 6, 1996, Cuellar was a passenger in a vehicle 

pulled over for a routine traffic stop. See id. The officer asked the driver and Cuellar if 

they possessed any weapons, and Cuellar informed the officer that he had a hunting rifle 

behind his seat. See id. The officer ran a background check on Cuellar, learned of the 

1976 conviction, and arrested him for unlawful possession of a firearm by a felon. See id. 

at 816–17.

The trial court found Cuellar guilty, and Cuellar appealed arguing that the evidence 

presented at trial was legally insufficient to sustain his conviction. Id. at 817. The court of 

appeals agreed with Cuellar and reversed, holding that a “person whose conviction is set 

aside” pursuant to judicial clemency4 “is not a convicted felon.” Id. at 820.

4 The court cited the former statute for judicial clemency, Texas Code of Criminal Procedure article 

42.12, § 20, in its opinion. See TEX. CODE CRIM. PROC. ANN. art. 42.12, repealed by Acts 2015, 84th Leg., 

ch. 770 (H.B. 2299), § 3.01, eff. Jan. 1, 2017; Acts 2017, 85th Leg., ch. 324 (S.B. 1488), §§ 23.012(d), 

23.013(d), 23.014(b), 23.015(b), 23.016(h), 23.017(b), 23.018(b), 23.019(b), 23.020(b), 23.021(b), eff. 
11

Cuellar, however, can be distinguished in one major way: Cuellar’s prior conviction 

was granted judicial clemency fifteen years before his next arrest. Here, Matew’s prior 

conviction was granted judicial clemency while he was under indictment for two pending 

offenses. As noted earlier, the State must prove a defendant’s felony status when the 

defendant possessed the firearm. See Jimenez, 361 S.W.3d at 683; Mason, 980 S.W.2d 

at 640 (Tex. 1998); Lewis, 445 U.S. at 65. Here, unlike Cuellar, Matew’s status as a felon 

had not been set aside by judicial clemency at the time of arrest. See Cuellar, 70 S.W.3d 

at 820.

In light of the plain words of the statute and case law interpreting it, we conclude 

the trial court properly used the Bexar County felony as the predicate felony Atascosa 

County convictions. See Jimenez, 361 S.W.3d at 683–84; Mason, 980 S.W.2d at 640. 

Ruling otherwise could lead to an absurd consequence—it would encourage a race to the 

courthouse whereby a defendant could escape pending felon in possession charges by 

seeking judicial clemency for prior felony convictions. See Martin, 635 S.W.3d 672. We 

overrule this issue.

III. MOTION TO QUASH INDICTMENT

By his next issue, Matew argues that the trial court erred in denying his motion to 

quash the indictment because the State could not prove the underlying offense.

A. Standard of Review & Applicable Law

Sept. 1, 2017; Acts 2017, 85th Leg., ch. 877 (H.B. 3016), § 11(a), eff. Sept. 1, 2017. 

This statute was repealed in 2015 and re-codified under Texas Code of Criminal Procedure article 

42A.701, the version we cite today. TEX. CODE CRIM. PROC. ANN. art. 42A.701.
12

“The sufficiency of a charging instrument presents a question of law. An appellate 

court therefore reviews a trial judge’s ruling on a motion to quash . . . de novo.” State v.

Ross, 573 S.W.3d 817, 820 (Tex. Crim. App. 2019) (quoting Smith v. State, 309 S.W.3d 

10, 13–14 (Tex. Crim. App. 2010)).

A defendant’s right to notice of accusations against him are set forth in both the 

United States and Texas constitutions. See U.S. CONST. amend. VI; TEX. CONST. art. I, 

§ 10. The indictment must be specific enough to inform the defendant of the nature of the 

accusation against him so that he can prepare a defense. State v. Mays, 967 S.W.2d 404, 

406 (Tex. Crim. App. 1998). The Texas Legislature has provided guidance for an 

indictment’s requisite specificity. Id. Ordinarily, an indictment is legally sufficient if it tracks 

the penal statute in question. State v. Moff, 154 S.W.3d 599, 602 (Tex. Crim. App. 2004). 

B. Analysis

Here, the indictment required the State to prove that “on or about the 15[th] day of 

September 2017,” Matew was a felon in possession of both a firearm and metal armor 

within five years of the Bexar County felony. The indictment specifically informed Matew 

of the charges against him and when they accrued. See Mays, 967 S.W.2d at 406. It also 

tracked both penal statutes in question—Texas Penal Code §§ 46.04(a)(1) (felon 

possession of a firearm) and § 46.041(b) (felon possession of metal or body armor). See 

Moff, 154 S.W.3d at 602. 

Because we previously held that the trial court properly used the Bexar County 

felony as a predicate felony in this matter, we hold that Matew had sufficient information 

regarding the charges to prepare his legal defense. See Mays, 967 S.W.2d at 406. The 
13

trial court did not err when it denied Matew’s motion to quash the indictment. See 

Moff, 154 S.W.3d at 601. We overrule this issue.

IV. THE ADMISSION OF EVIDENCE

A. Standard of Review

An appellate court applies an abuse of discretion standard of review when 

reviewing a trial court’s ruling on the admission of evidence. See Casey v. State, 215 

S.W.3d 870, 879 (Tex. Crim. App. 2007). “A trial court abuses its discretion when its 

decision lies outside the zone of reasonable disagreement.” Id. (citing Green v. State, 934 

S.W.2d 92, 101–02 (Tex. Crim. App. 1996)). 

B. Analysis

Matew posits that the trial court abused its discretion because Texas Code of 

Criminal Procedure article 42A.701 provides that proof of the conviction or plea of guilty 

for which a person received judicial clemency “shall be made known to the judge if the 

defendant is convicted of any subsequent offense.” TEX. CODE CRIM. PROC. ANN. 

art. 42A.701 (emphasis added). Matew therefore asserts that any evidence of such 

should only be admitted during the punishment portion of the trial, not during 

guilt/innocence. 

We disagree with this contention. Matew’s argument would mean that the State 

could never introduce evidence of a prior felony in a felony in a possession case until the 

punishment phase of the case. See TEX. PENAL CODE ANN. §§ 46.04(a)(1), 46.041(b). The 

predicate felony, however, is a basic element to these offenses and evidence regarding 

the same is therefore admissible. See Jimenez, 361 S.W.3d at 680 (noting that, at trial, 
14

“[t]he State proved Applicant was a felon by introducing proof of Applicant’s prior felony 

conviction for rape of a child”); Fennell v. State, 455 S.W.2d 248, 249 (Tex. Crim. App. 

1970) (concluding prior felony conviction for former unlawful possession of a weapon 

statute “was an essential element of the offense charged in the indictment” and must be 

proven at the guilt phase of trial); Cuellar, 40 S.W.3d at 727–28 (“To prosecute a 

convicted felon for violation of Section 46.04, the State must prove two elements: (1) the 

defendant was convicted of a felony; and (2) the defendant possessed a firearm away 

from his residence.”).

We conclude the trial court did not abuse its discretion in admitting evidence of 

Matew’s Bexar County felony conviction. See Casey, 215 S.W.3d at 879. We overrule 

this issue.

V. THE JURY CHARGE ISSUE

A. Applicable Law

In reviewing a challenge to a jury charge, we first must determine if the jury charge 

contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). “[W]e review 

alleged charge error by considering two questions: (1) whether error existed in the 

charge; and (2) whether sufficient harm resulted from the error to compel reversal.” Ngo 

v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If error is found, we then analyze

the harm resulting from the error. Id. at 743. If “an error is preserved with a timely

objection . . . then the jury-charge error requires reversal if the appellant suffered some 

harm as a result of the error.” Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 

2012) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). If the 
15

appellant “failed to preserve the jury-charge error, then we would have reviewed the 

record for egregious harm.” Id. at 775. “The failure to preserve jury charge error is not a 

bar to appellate review, but rather it establishes the degree of harm necessary for 

reversal.” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).

If the “error in the charge was the subject of a timely objection in the trial court, 

then reversal is required if the error is ‘calculated to injure the rights of defendant,’ which 

means no more than that there must be some harm to the accused from the error.” 

Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting Almanza, 686 

S.W.2d at 171). When an “appellant d[oes] not object to the charge, the error does not 

result in reversal ‘unless it was so egregious and created such harm that appellant was 

denied a fair trial.’” Warner, 245 S.W.3d at 461 (quoting Almanza, 686 S.W.2d at 171). 

“Egregious harm deprives appellant of a fair and impartial trial.” Trejo v. State, 313 

S.W.3d 870, 871 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Almanza, 686 

S.W.2d at 171). “Charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory.” Servin v. 

State, 582 S.W.3d 629, 631 (Tex. App.—San Antonio 2019, no pet.) (quoting Villarreal v. 

State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015)).

To determine harm, we consider four factors: (1) the charge itself, (2) the state of 

the evidence, including contested issues and the weight of the probative evidence, 

(3) arguments of counsel, and (4) any other relevant information revealed by the trial 

record. Servin, 582 S.W.3d at 631. To establish both egregious or “some” harm, the 

“appellant must have suffered actual, rather than theoretical, harm.” Warner, 245 S.W.3d 
16

at 461. Neither party bears the burden on appeal to prove harm. Reeves, 420 S.W.3d at 

816.

B. Analysis

Matew contends that there was jury charge error because the charge did not 

include language providing that the State had to prove that the Bexar County felony was 

a “final” conviction. He submitted the following charge instruction to the court, which the 

court overruled:

The State has the burden to prove beyond a reasonable doubt that the 

felony offense of Impersonating a Public Servant on the 30[th] of October 

2013, in cause number 2013CR2339 in the 290[th] District Court of Bexar 

County, Texas was a final conviction. If you find that it was not a final 

conviction, you must find the defendant “Not Guilty” on verdict form for 

Count 1 and Count 2.

Instead, the charge for both counts provided that the State had to prove beyond a 

reasonable doubt that Matew “had been convicted of a felony, on October 30, 2013, in 

cause number 2013CR2339, in Bexar County, Texas . . . .”

At the outset, we note that the felon in possession statutes at issue do not include 

the word “final.” See TEX. PENAL CODE ANN. §§ 46.04(a)(1), 46.041(b). The statutes 

instead just require a prior felony “conviction.” Here, the jury charge tracked the language 

of the statute. “A jury charge which tracks the language of a particular statute is a proper 

charge on the statutory issue.” Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994). 

The statutes do not include the word “final,” and we decline to add it. “Adding language to 

a statute is legislating from the bench.” State v. Doyal, 589 S.W.3d 136, 152 (Tex. Crim. 

App. 2019) (quoting State v. Markovich, 77 S.W.3d 274, 285 (Tex. Crim. App. 2002)

(Keasler, J., dissenting)). This we cannot do.
17

We thus conclude there was no jury charge error. And because there is no error, 

we need not conduct a harm analysis. Price, 457 S.W.3d at 440. We overrule this issue.5

VI. CONCLUSION

We affirm the trial court’s judgment.

LETICIA HINOJOSA

Justice

Publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

3rd day of February, 2022. 

5 Matew also asserted a fifth, contingent issue on appeal—sufficiency of the evidence to support 

the conviction. He argued that “if our [c]ourt sustains any one of Matew’s objections to the use of the 

dismissed [p]redicate [f]elony conviction, then the “evidence would be legally insufficient to sustain a 

conviction under the Felon in Possession Statute(s).” However, we have overruled Matew’s objections 

regarding the use of the Bexar County felony as the predicate felony, thus making this final asserted issue 

moot. We therefore do not address it. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a 

written opinion that is as brief as practicable but that addresses every issue raised and necessary to final 

disposition of the appeal.”).