Ijah Iwasey Baltimore v. the State of Texas ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0928-20
IJAH IWASEY BALTIMORE, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY
HERVEY, J., delivered the opinion of the Court in which RICHARDSON,
NEWELL, KEEL, WALKER, SLAUGHTER, and MCCLURE, JJ., joined. KELLER, P.J.,
and YEARY, J., dissented.
OPINION
Appellant, Ijah Baltimore, was convicted of unlawful carrying of a handgun in
November 2016.1 TEX. PENAL CODE § 46.02 (2020). His offense was enhanced from a
Class A misdemeanor to a third-degree felony because the jury found that he committed
the offense on premises of an establishment licensed to sell alcoholic beverages. Id.
1
Since the time of the offense, Section 46.02 has since been significantly amended. Act of
May 27, 2021, 87th Leg., R.S., ch. 809, § 22, 2021 Tex. Sess. Law Serv. 1962, 1974.
Baltimore–2
§ 46.02(c). Appellant appealed, arguing that the evidence was insufficient to show that he
was on the premises of an establishment licensed to sell alcohol. Baltimore v. State, 608
S.W.3d 864, 865 (Tex. App.—Waco 2020). The court of appeals overruled his point of
error. Id. at 867.
We granted Appellant’s petition for discretionary review to address the court of
appeals’s holding that the evidence was sufficient. After we granted review, however, this
Court decided Curlee v. State, 620 S.W.3d 767, 785 (Tex. Crim. App. 2021). In Curlee,
the State asked a police officer whether a playground was open to the public, and without
further elaboration, the officer responded, “It is open to the public.” Id. at 784. We held
that the officer’s opinion “was a factually unsupported inference or presumption”
“[a]bsent the bases upon which [his] opinion was formed . . . .” Id. at 785. It appears that
Curlee, which the court of appeals did not have the benefit of, might apply to the
testimony about whether Appellant was on “premises” licensed to sell alcoholic
beverages. Accordingly, we vacate the judgment of the court of appeals and remand this
case for reconsideration in light of Curlee.
Delivered: October 6, 2021
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