NO. 05-11-00824-CR ERIC GERARD WIEGAND IN THE VS. 5TH COURT STATE OF TEXAS OF APPEALS ACCEPTED 225EFJ016642337 FIFTH COURT OF APPEALS DALLAS, TEXAS 11 December 17 A11:28 Lisa Matz CLERK 5th Court of Appeals FILED: 12/17/11 14:00 Lisa Matz, Clerk APPELLANT S BRIEF On Appeal From Cause Number MA1016264 County Criminal Court #10 Dallas County, Texas The Honorable Robert Canas Presiding Submitted by: M. Michael Mowla, PLLC 603 N. Cedar Ridge Suite 100 Duncanville, TX 75116 Phone: 972-283-2600 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar # 24048680 Scott H. Palmer, P.C. 15455 Dallas Parkway Suite 540 Addison, TX 75001 Phone: (214) 987-4100 Fax: (214) 922-9900 scott@scottpalmerlaw.com Texas Bar # 00797196 Attorneys for Appellant ORAL ARGUMENT NOT REQUESTED Page i
TABLE OF CONTENTS I. IDENTITY OF PARTIES AND COUNSEL iii II. TABLE OF AUTHORITIES III. STATEMENT OF THE CASE IV. STATEMENT REGARDING ORAL ARGUMENT v viii ix V. FACTS 1 VI. SUMMARY OF THE ARGUMENT 4 VII. ISSUE PRESENTED 5 ISSUE ONE: THE EVIDENCE AT TRIAL IS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS OF BOND IN A FAMILY VIOLENCE CASE BECAUSE APPELLANT WAS NOT PROPERLY SERVED NOTICE OF THE PROTECTIVE ORDER, AND BECAUSE HE DID NOT KNOWINGLY OR INTENTIONALLY VIOLATE THE TERMS AND CONDITIONS OF THE PROTECTIVE ORDER. 5 1. Facts applicable to Issue One 5 2. Standard of Review for Claims of Legal Insufficiency 5 3. Law and Argument 8 4. Conclusion 13 VIII. CONCLUSION AND PRAYER 14 IX. CERTIFICATE OF SERVICE 15 Page ii
I. IDENTITY OF PARTIES AND COUNSEL Eric Gerard Wiegand Appellant Michael Herndon Attorney for Appellant 8115 Preston Road Suite 235 During Trial Dallas, Texas 75225 Phone: 214-739-5155 M. Michael Mowla Attorney for Appellant 603 N. Cedar Ridge Suite 100 On Appeal Duncanville, Texas 75116 Phone: (972) 283-2600 Fax: (972) 692-6636 michael@mowlalaw.com Scott H. Palmer, P.C. Attorney for Appellant 15455 Dallas Parkway Suite 540 On Appeal Addison, TX 75001 Phone: (214) 987-4100 Fax: (214) 922-9900 State of Texas Craig Watkins Dallas County District Attorney 133 N. Riverfront Blvd, LB 19 Dallas, TX 75207-4399 Phone: (214) 653-3600 Fax: (214) 653-5774 Stephanie Ernst Dallas County Assistant District Attorney 133 N. Riverfront Blvd, LB 19 Dallas, TX 75207-4399 Phone: (214) 653-3600 Fax: (214) 653-5774 Brian Mitchell Dallas County Assistant District Attorney 133 N. Riverfront Blvd, LB 19 Dallas, TX 75207-4399 Phone: (214) 653-3600 Fax: (214) 653-5774 Appellee Attorney for State of Texas At Trial and on Appeal Attorney for State of Texas At Trial Attorney for State of Texas At Trial Page iii
Mike Casillas Dallas County Assistant District Attorney 133 N. Riverfront Blvd, LB 19 Dallas, TX 75207-4399 Phone: (214) 653-3600 Fax: (214) 653-3643 Karen Wise Dallas County Assistant District Attorney 133 N. Riverfront Blvd, LB 19 Dallas, TX 75207-4399 Phone: (214) 653-3600 Fax: (214) 653-3643 Judge Robert Canas Dallas County Criminal Court #10 133 N. Riverfront Blvd, 4th Floor Dallas, TX 75207 Phone: (214) 653-5695 Attorney for State of Texas On Appeal Attorney for State of Texas On Appeal Presiding Judge over Trial Page iv
II. TABLE OF AUTHORITIES Cases Adelman v. State, 828 S.W.2d 418 (Tex. Crim. App. 1992) 6 Allen v. State, 651 S.W.2d 267 (Tex. Crim. App. 1983) 6, 12 Bain v. State, 677 S.W.2d 51 (Tex. Crim. App. 1984) 7 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 5 Carlsen v. State, 654 S.W.2d 444 (Tex. Crim. App. 1983) 6 Carter v. Estelle, 691 F.2d 777 (5th Cir. [Tex.] 1982) 7 Cooks v. State, 169 S.W.3d 288 (Tex. App. Texarkana 2005) 7, 13 Foster v. State, 635 S.W.2d 710 (Tex. Crim. App. 1982) 6, 12 Garza v. State, 715 S.W.2d 642 (Tex. Crim. App. 1986) 6 Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987) 7, 13 Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) 7, 8, 13 Gollihar v. State, 991 S.W.2d 303 (Tex. App. Texarkana 1999) 7 Greenwood v. State, 823 S.W.2d 660 (Tex. Crim. App. 1992) 5 Harvey v. State, 78 S.W.3d 368 (Tex. Crim. App. 2002) 9 Houston v. State, 663 S.W.2d 455 (Tex. Crim. App. 1984) 6 Jackson v. Virginia, 443 U.S. 307 (1979) 5, 6 Jones v. State, 680 S.W.2d 499 (Tex. App. Austin 1983, no pet.) 7 Klein v. State, 662 S.W.2d 166, 168 (Tex. App. Corpus Christi 1983, no pet.) 9 Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) 5 McFarland v. State, 930 S.W.2d 99 (Tex. Crim. App. 1996) 6, 12 Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) 6 Page v
O'Neal v. State, 811 S.W.2d 219, 221 (Tex. App. Dallas 1991) 5 Ortiz v. State, 577 S.W.2d 246 (Tex. Crim. App. 1979) 6, 12 Ramos v. State, 923 S.W.2d 196, 198 (Tex. App. Austin 1996, no writ) 11 Richardson v. State, 973 S.W.2d 384 (Tex. App. Dallas 1998, no pet.) 8 Schexnider v. State, 943 S.W.2d 194 (Tex. App. Beaumont 1997, no pet.) 8 Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989) 7 Small v. State, 809 S.W.2d 253, 256 (Tex. App. San Antonio 1991, pet. ref.) 9 Smith v. State, 961 S.W.2d 501 (Tex. App. San Antonio 1997, reh'g denied) 8 Torres v. State, 785 S.W.2d 824 (Tex. Crim. App. 1989) 7 Wallace v. State, 955 S.W.2d 148 (Tex. App. Beaumont 1997, no pet.) 8 Constitutions Tex. Const. Art. I, 10 12 U.S. Const. Art. V 12 U.S. Const. Art. XIV 12 Statutes Tex. Code Crim. Proc. Art. 44.25 6, 12 Tex. Fam. Code 85.041(a) 11 Tex. Rule App. Proc. 38.1 Tex. Rule App. Proc. 39.1 Tex. Rule App. Proc. 39.2 ix ix ix Tex. Rule Civ. Proc. 21a 11, 12 Tex. Rule Civ. Proc. 689 11 Page vi
Tex. Pen. Code 6.03(a) 9 Tex. Pen. Code 6.03(b) 10 Tex. Pen. Code 25.07 viii, 8, 9 Other Sources Elizabeth A. Martin, Oxford Dictionary of Law, ed. (2003), Oxford: Oxford University Press, ISBN 0198607563 9 Searcy, Pleading and Proving the Culpable Mental States Under the New Texas Penal Code, 6 Am. J. Crim. Law 243, 244-247 (1978) 9 Page vii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: ERIC GERARD WIEGAND, Appellant, in appealing his sentence for his conviction for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case, or violation of a protective order, under cause number MA1016264 before the Dallas County Criminal Court #10, respectfully submits this Brief in support of his appeal: III. STATEMENT OF THE CASE Appellant was charged by information for violation of a protective order, which is known in the Texas Penal Code as Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case pursuant to Texas Penal Code 25.07. (CR, 19) 1 ; Tex. Pen. Code 25.07. Specifically, it was alleged that on or about July 26th, 2010, in Dallas County, Texas, Appellant intentionally and knowingly went near the residence of Jared Wiegand ("CW"), at 709 Waverly, Coppell, Dallas County, Texas, in violation of an order issued by the 256th Judicial District Court of Dallas County, TEXAS, signed by the Court on August 17, 2009, under authority of Texas Family Code Section 6.504, Texas Family Code Chapter 85, and Texas Code of Criminal Procedure Article 17.292. (CR, 19). To this charge, Appellant pleaded "not guilty." (RR2, 8; CR, 14). A trial was had before a jury. (RR1-RR4). After consideration of the evidence presented at trial, on June 16, 2011, the jury found Appellant guilty of "Violation of a Protective Order," which is actually Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case. See Tex. Pen. Code 25.07; (CR, 14; RR2, 115). 1 The Clerk s Record, which is comprised of a single volume, is referenced throughout this Brief as CR, followed by the page number of the Clerk s Record. The Reporter s Record, which is comprised of three numbered volumes, 1, 2, and 4, and is referenced with an RR followed by the volume number (i.e., Volume 4 is "RR4"), and by the page number or Exhibit number. Note that the "Punishment Volume" is actually Volume 3 of the Reporter's Record, but will be referenced in this Brief as "Punishment," followed by the page number. Page viii
Appellant elected to have the trial court set his punishment. (Punishment, 1-21). On June 16, 2011, the trial court sentenced Appellant to 365 days in county jail, but probated the sentence for 24 months. (Punishment, 19-20; CR, 14). The trial court further fined Appellant $2,300.00, ordered that Appellant have no contact with the CW, stay at least one mile away from 709 Waverly, Coppell, Texas, and further ordered Appellant to attend a batterer's intervention program. (Punishment, 20; CR, 14-15). Appellant is currently on bond. (CR, 28). On June 28, 2011, Appellant filed his notice of appeal. (CR, 7-8). No motion for new trial was filed by Appellant. The trial court signed a certification of Appellant's right of appeal, certifying that the case was not a plea-bargain case, and that Appellant has the right of appeal. (CR, 9-10). Appellant also filed the proper Written Designation Specifying Matters for Inclusion in the Clerk's Record and the Request for Preparation of the Reporter's Record. (CR, 29-34). Thus, this case is properly before this Court of Appeals. IV. STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rules of Appellate Procedure 38.1, 39.1, and 39.2, Appellant does not request oral argument before this Court of Appeals. See Tex. Rule App. Proc. 38.1, 39.1, & 39.2. Although this is a meritorious appeal of a criminal case, Appellant believes that the facts and legal arguments are adequately presented in this brief and in the record. Appellant also believes that the decisional process of the Court of Appeals will not be significantly aided by oral argument. Page ix
V. FACTS Protective Order The protective order that Appellant is alleged to have violated provides the following command language, prohibiting Appellant from the following: 1. Committing family Violence as described in Section 71.004 of the Texas Family Code; 2. Communicating directly with the CW in a threatening and harassing manner; 3. Communicating a threat through any person to the CW; 4. Communicating in any manner with the CW except through Sheri Lynn Wiegand or a person appointed by the Court; 5. Engaging in conduct directed specifically toward the CW that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the CW; 6. Going to or near the residence and or school of the CW that he normally attends, and specifically going to or near 709 Waverly, Coppell, Texas 75019 and the school that the CW attends, and to specifically maintain a distance of at least 500 feet from these locations, except when Appellant picks up and returns his children, Zach Wiegand and Victoria Wiegand for his periods of possession, at which times Appellant may go to 709 Waverly, Coppell, Texas but must remain in his automobile for the delivery and pickup of Zach Wiegand and Victoria Wiegand; 7. From occupying the residence at 709 Waverly Coppell, Texas, 8. From removing the CW from the possession of Sheri Lynn Wiegand; 9. From having access to the CW until further order of the Court; and 10. From possessing a firearm or ammunition unless Appellant is a peace officer. (RR4, State's Exhibit 1; RR2, 12-15). In addition, the protective order, in capital letters, provides "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER." (RR4, State's Exhibit 1; RR2, 22). Page 1
Testimony The first person to testify was Sheri Wiegand, the mother of the CW. (RR2, 11). Sheri Wiegand testified that normally when Appellant came to the residence located at 709 Waverly, Coppell, Texas to pick up Zach and Victoria, the two younger children of Appellant, he would pull up to the curb, call on his cell phone and inform Sheri Wiegand that he is outside, and then Zach and Victoria would walk to the curb and get into Appellant's vehicle. (RR2, 15-16). Sheri Wiegand further testified that prior to the date of the alleged violation, and since the protective order was in place, Appellant had never entered the home. (RR2, 16). However, on July 26, 2010, Sheri Wiegand said that she received a call from Zach, who told her that Appellant was inside the home. (RR2, 17-18). Nobody else was inside the home besides Appellant, Zach, and Victoria. (RR2, 18). Sheri Wiegand had prearranged that Appellant was going to come to the home at about 4:45 p.m. and pick up Zach to take him to football camp. (RR2, 18). The agreement between Sheri Wiegand and Appellant was that Appellant would pick up and take Zach to football camp because Appellant had agreed to pay for it. (RR2, 21). July 26, 2010, which was a Monday, was not a first, third, or fifth Friday of a month, the normal day for Appellant to pick up the children. (RR2, 21). Sheri Wiegand denied that she herself violated a term of the protective order even when presented with the language that "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER." (RR4, State's Exhibit 1; RR2, 22). The protective order acts only to protect the CW and not Sheri Wiegand, Zach, or Victoria. (RR4, State's Exhibit 1; RR2, 25). The CW was not at home on July 26, 2010 at the time Appellant was at the home, but was with his cousins outside the State of Texas. (RR2, 26, 30-31). At the Page 2
time that the Appellant entered the home, there was no danger of Appellant having any type of contact with the CW. (RR2, 27). When Sheri Wiegand learned that Appellant was inside the home, she called the police and left work to go home. (RR2, 19). Upon arrival at the home, Sheri Wiegand testified that she saw Appellant standing on the front yard with several police officers. (RR2, 19-20). Zach Wiegand testified that Appellant arrived on July 26, 2010 and asked him to come along with him to go to the football camp. (RR2, 30-31). Appellant also asked that Victoria accompany him as well because Appellant did not want Victoria, who was eight years of age at the time, to remain home alone. (RR2, 30-31). Zach Wiegand also testified that prior to that day, Appellant had never entered the home since the protective order was granted. (RR2, 37-39). Victoria Wiegand testified that when Appellant came into the home, he was looking for someone, perhaps a babysitter. (RR2, 45). Victoria did not recall Appellant ever entering the home before that day. (RR2, 46-47). Zach Wiegand also told Corporal Wimberg of the Coppell Police Department that Appellant seemed to be looking for "somebody." (RR2, 58). Appellant had not seen a copy of the protective order until July 26, 2010, when he was arrested. (RR2, 71-72). Appellant was told by his family law attorney that he needed to "stay away from the CW for 500 feet," and admits that he had become aware of the protective order prior to July 26, 2010. (RR2, 71). Appellant believed that the protective order applies only to the CW, and that he is to remain 500 feet away from the CW and 500 feet away from the CW's school. (RR2, 72-73, 80). Had he known that he could not enter the home at any time, he would have complied with the order in full. (RR2, 94). Further, Appellant testified that Sheri Wiegand told him that if they didn't answer when he arrived at the home, that he can knock on the door. (RR2, 73). At least 25 percent of the time, Appellant had to knock on the door. (RR2, 73). On Page 3
July 26, 2010, Appellant tried to call into the home on his cell phone, and nobody answered. (RR2, 73). Appellant further testified that on July 26, 2010, when he knocked on the door, he learned that nobody was home to supervise Victoria. (RR2, 74). It was primarily for this reason, Appellant testified, that he entered the home. (RR2, 79). Appellant had no intention of leaving an eight-year-old child alone in the home. (RR2, 82). Appellant also testified that he had entered the home to get some clothing and a couple of pairs of shoes because his personal belongings were still inside the home. (RR2, 76). Further, Appellant knew that the CW was not in the home, or even in the State of Texas on that day. (RR2, 82). VI. SUMMARY OF THE ARGUMENT Appellant presents one issue in this Brief. Appellant will show that the evidence provided at trial is legally insufficient to support a conviction for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case because Appellant was not properly served notice of the protective order, and because he did not knowingly or intentionally violate the terms and conditions of the protective order. Appellant will show that he believed that the protective order applied only for the protection of the CW, and that it was agreed by testimony that the CW was not present at the home when he entered it on July 26, 2010. Further, Appellant knew only those contents of the protective order as explained to him by his family law attorney, and the explanation was that the protective order applied for the protection of the CW. Finally, Appellant will show that he was not properly served with the protective order, and thus he cannot be held criminally responsible for violating the terms and conditions of the protective order. Page 4
VII. ISSUE PRESENTED ISSUE ONE: THE EVIDENCE AT TRIAL IS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS OF BOND IN A FAMILY VIOLENCE CASE BECAUSE APPELLANT WAS NOT PROPERLY SERVED NOTICE OF THE PROTECTIVE ORDER, AND BECAUSE HE DID NOT KNOWINGLY OR INTENTIONALLY VIOLATE THE TERMS AND CONDITIONS OF THE PROTECTIVE ORDER. 1. Facts applicable to Issue One Because this issue pertains to the legal sufficiency of the evidence, Appellant refers this Court of Appeals to the facts in Part V above in their entirety, as issues regarding legal sufficiency requires an analysis of the entire record. See Greenwood v. State, 823 S.W.2d 660, 661 (Tex. Crim. App. 1992) (entire record needed to resolve sufficiency point of errors); See also O'Neal v. State, 811 S.W.2d 219, 221 (Tex. App. Dallas 1991). 2. Standard of Review for Claims of Legal Insufficiency Under the Jackson v. Virginia legal-sufficiency standard, an appellate court is required to defer to a jury s credibility and weight determinations. Jackson v. Virginia, 443 U.S. at 307, 319 (1979). Further, the Jackson v. Virginia legal-sufficiency standard is the only standard that an appellate court should use in determining whether the evidence is sufficient to support each element of a criminal offense. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). When reviewing the legal sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, and not whether the appellate court believes that the evidence at the trial established guilt beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009), [quoting Jackson v. Virginia, 443 U.S. at 318-319 (1979)]. Further, after giving proper deference to the role of the trier of fact, an appellate court must uphold the verdict Page 5
unless a rational factfinder must have had reasonable doubt as to any essential element. Laster, 275 S.W.3d at 518, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). However, an appellate court is empowered to reverse a conviction because the verdict is contrary to the evidence presented at trial. Tex. Code Crim. Proc. Art. 44.25. A review of the sufficiency of evidence, although based upon a review of the facts, is a determination of law. Allen v. State, 651 S.W.2d 267, 269-270 (Tex. Crim. App. 1983). An appellate court must always address challenges to the sufficiency of the evidence. Garza v. State, 715 S.W.2d 642, 645 (Tex. Crim. App. 1986). Such a review must be conducted when a legal sufficiency challenge is raised, even if the conviction must be reversed on other grounds, because a finding that the evidence is legally insufficient to support the conviction prevents a retrial under double jeopardy law. Ortiz v. State, 577 S.W.2d 246, 250 (Tex. Crim. App. 1979); Foster v. State, 635 S.W.2d 710, 717 (Tex. Crim. App. 1982); McFarland v. State, 930 S.W.2d 99, 100 (Tex. Crim. App. 1996). In reviewing a legal sufficiency-of-evidence claim, the appellate court should review the evidence in the light most favorable to the verdict or judgment, and this standard is used whether the case was proven by direct evidence or circumstantial evidence. Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984). The standard for judging the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Carlsen v. State, 654 S.W.2d 444, 448 (Tex. Crim. App. 1983) (opinion on rehearing); Jackson v. Virginia, 443 U.S. at 319 n.12. The reviewing court should do as follows: (1) examine the record for evidence that supports the finding, while ignoring all evidence to the contrary; and (2) if there is no evidence to support the Page 6
finding, examine the entire record to see if the contrary proposition is established as a matter of law. Cooks v. State, 169 S.W.3d 288, 290 (Tex. App. Texarkana 2005), applying civil standard of Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). Evidence is legally sufficient only if the state has affirmatively proven each of the essential elements of the offense. Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987), overruled on other grounds, Torres v. State, 785 S.W.2d 824 (Tex. Crim. App. 1989). When considering a sufficiency point of issue, the appellate court should consider all of the evidence, both proper and improper, from both the guilt and punishment phases of the trial. Bain v. State, 677 S.W.2d 51, 52 n.1 (Tex. Crim. App. 1984); Jones v. State, 680 S.W.2d 499, 502 (Tex. App. Austin 1983, no pet.). The State s case falls short if there is a material variance between the indictment allegations and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (Explanation of a material variance versus an immaterial variance). In Gollihar, the State presented a facially adequate indictment alleging the theft of a go-cart that was described in part by listing a product serial number. Id. at 246. The proof at trial conformed in all respects to the allegations in the indictment except for a one-digit discrepancy in the serial number. Id. at 246. Although the jury convicted the defendant, the defendant claimed insufficiency of the evidence because the State had failed to prove what it had alleged in the indictment. Id. at 246. The court of appeals reversed the defendant s conviction based upon this fact. Gollihar v. State, 991 S.W.2d 303 (Tex. App. Texarkana 1999), overruled in Gollihar v. State, 46 S.W.3d at 246; Carter v. Estelle, 691 F.2d 777, 781-782 (5th Cir. [Tex.] 1982) (Texas courts consistently held that variances between proof and indictment allegations require reversal with prejudice). The Page 7
Court of Criminal Appeals thus held that only a material variance between the indictment and proof offered at trial will render the evidence insufficient. Gollihar v. State, 46 S.W.3d at 247. The standard of proof used in circumstantial evidence cases is the same ultimate standard as used in direct evidence cases, and a reviewing court may consider the existence of all alternative reasonable hypotheses in conducting such a review. Schexnider v. State, 943 S.W.2d 194, 198 (Tex. App. Beaumont 1997, no pet.); Wallace v. State, 955 S.W.2d 148, 151 (Tex. App. Beaumont 1997, no pet.); Smith v. State, 961 S.W.2d 501, 504 (Tex. App. San Antonio 1997, reh'g denied); Richardson v. State, 973 S.W.2d 384, 385 (Tex. App. Dallas 1998, no pet.). 3. Law and argument Appellant was convicted of violating a protective order, which under the statute is referred to as "Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case." Tex. Pen. Code 25.07. A person commits the offense of Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case if the person, in violation of...an order issued under Texas Family Code 6.504, or Chapters 83 or 85 of the Texas Family Code, knowingly or intentionally...(2) communicates (A) directly with a protected individual or a member of the family or household in a threatening or harassing manner; (B) a threat through any person to a protected individual or a member of the family or household; or (C) in any manner with the protected individual or a member of the family or household except through the person's attorney or a person appointed by the court;... or (3) goes to or near any of the following places as specifically described in the order,... Tex. Pen. Code 25.07. This statute, by its very language, and specifically the words "knowingly" and "intentionally," requires knowledge on the part of Appellant that he knew that by entering the home while the CW was not present, he was Page 8
violating the terms of the protective order. Thus, Appellant's must have had the necessary mens rea to commit the offense. Mens rea is a state of mind in which the defendant is said to have a guilty mind. Elizabeth A. Martin, Oxford Dictionary of Law, ed. (2003), Oxford: Oxford University Press, ISBN 0198607563. A defendant acts intentionally, or with intent, with respect to the nature of the defendant s conduct or to a result of the conduct when the defendant s conscious objective or desire is to engage in the conduct or cause the result. Tex. Pen. Code 6.03(a). The mental state of intent is not used to apply to circumstances surrounding conduct, but concerns the person s perception of the existence of the circumstances, that is, knowledge, recklessness, or criminal negligence. See Searcy, Pleading and Proving the Culpable Mental States Under the New Texas Penal Code, 6 Am. J. Crim. Law 243, 244-247 (1978). Further, it is not permissible for a state s witness to give an opinion as to whether the defendant s act was intentional. Klein v. State, 662 S.W.2d 166, 168 (Tex. App. Corpus Christi 1983, no pet.). An essential element of the state's proof of a violation of Texas Penal Code 25.07 is the defendant's knowledge of the protective order, so the State must prove that the defendant knowingly and intentionally violated the order. Small v. State, 809 S.W.2d 253, 256 (Tex. App. San Antonio 1991, pet. ref.). Texas Penal Code 25.07 prescribes a culpable mental state for the element "in violation of an order," because the meaning of that term necessarily includes certain knowledge that amounts to a mental state. Harvey v. State, 78 S.W.3d 368, 370 (Tex. Crim. App. 2002). Further, violation of a protective order under the provisions of Section 25.07 requires a culpable mental state even though the statute does not prescribe one. Harvey v. State, 78 S.W.3d at 370. Page 9
A defendant acts knowingly, or with knowledge, with respect to the nature of the defendant s conduct or to circumstances surrounding the conduct when the defendant is aware of the nature of the conduct or that the circumstances exist, or where the defendant is aware that the conduct is reasonably certain to cause the result. Tex. Pen. Code 6.03(b). In the case before this Court of Appeals, the State presented no evidence that Appellant intentionally or knowingly violated any provision of the protective order. Appellant's unrebutted testimony was that he had not seen a copy of the protective order until July 26, 2010, when he was arrested. (RR2, 71-72). The only knowledge of the contents of the protective order possessed by Appellant on that day was that he was told by his family law attorney that he needed to "stay away from the CW for 500 feet," and otherwise states that he was only aware of the protective order prior to July 26, 2010. (RR2, 71). Appellant reasonably believed that the protective order applies only to the CW, and that he is to remain 500 feet away from the CW and 500 feet away from the CW's school. (RR2, 72-73, 80). Had he known that he could not enter the home at any time, he would have complied with the order in full. (RR2, 94). Further, Appellant testified that Sheri Wiegand told him that if they didn't answer when he arrived at the home, that he can knock on the door. (RR2, 73). At least 25 percent of the time, Appellant had to knock on the door. (RR2, 73). On July 26, 2010, Appellant tried to call into the home on his cell phone, and nobody answered. (RR2, 73). Appellant further testified that on July 26, 2010, when he knocked on the door, he learned that nobody was home to supervise Victoria. (RR2, 74). It was primarily for this reason, Appellant testified, that he entered the home. (RR2, 79). Appellant had no intention of leaving an eight-year-old child alone in the home. (RR2, 82). Further, Sheri Wiegand had on numerous occasions allowed Appellant to approach the door when he would not get a response from the home while calling from his vehicle parked by Page 10
the curb. In addition, the date that Appellant attempted to pick up Zach, July 26, 2010, was not a day that he regularly would have picked up his son, so Sheri Wiegand may have in fact violated the protective order. Most importantly in this case, a protective order against family violence must be served on the person against whom it is enforceable. Tex. Fam. Code 85.041(a). A protective order will not be criminally enforceable against the person until the person has notice of the order, by service or otherwise. See Ramos v. State, 923 S.W.2d 196, 198 (Tex. App. Austin 1996, no writ). Service of the protective order may be made one of three ways [Tex. Fam. Code 85.041(a)]: as prescribed for service of notices in civil actions generally under Texas Rules of Civil Procedure 21a, which is by personal or courier delivery, certified or registered mail, or facsimile transmission, (2) in the manner prescribed for service of a writ of injunction, that is by delivery by a sheriff or constable [See Tex. Rule Civ. Proc. 689], or (3) by delivery in open court at the close of the hearing on the application for the protective order. The State failed to prove that Appellant was served in any of the three methods proscribed by Texas Family Code 85.041(a). There simply was no evidence presented to show how Appellant was served with the protective order. There is no evidence that Appellant was present in court when the protective order was issued. There is no evidence that Appellant was served pursuant to a writ of injunction under Texas Rule of Civil Procedure 689, where an officer who received a writ of injunction indorsed the date of its receipt by the officer, delivered the protective order to Appellant, and then returned to the court from which the protective order issued the writ. See Tex. Rule Civ. Proc. 689. Finally, the State presented no evidence that Appellant was served under Texas Rule of Civil Procedure 21a, which requires that the State show that the document the terms of which Appellant is alleged to have violated (protective Page 11
order) was served on Appellant by delivering a copy to Appellant, Appellant's authorized agent or attorney of record, to Appellant's last known address, or by telephonic document transfer to Appellant's current fax number. See Tex. Rule Civ. Proc. 21a. Even though evidence was presented that Appellant's family law attorney read provisions of the protective order to Appellant, the only evidence came from Appellant, who testified that he was told by his family law attorney that he is to stay 500 feet away from the CW only and from the CW's school. Thus, it is unclear what version of the protective order the family law attorney was explaining to Appellant, and the State did not present evidence that could have allowed the trier of fact to determine whether this service actually occurred, such as obtaining the testimony of the family law attorney or the attorney for Sheri Wiegand. Finally, because the evidence is legally insufficient to support a conviction in this case, and questions of insufficiency of the evidence implicate questions of due process of law and the due course of law, Appellant's rights to due process under the Fifth and Fourteenth Amendments of the United States Constitution have been violated. See Howeth v. State, 645 S.W.2d 787, 788 (Tex. Crim. App. 1983); U.S. Const. Art. V; U.S. Const. Art. XIV. Appellant's rights under the Texas Constitution have also been violated. See Tex. Const. Art. I, 10. As a result, this Court of Appeals should reverse this conviction because the verdict is contrary to the evidence presented at trial. See Tex. Code Crim. Proc. Art. 44.25. In reviewing the facts of this case, this court should make a determination of law that the evidence was legally insufficient to warrant a conviction. See Allen v. State, 651 S.W.2d at 269-270. In finding that the evidence was legally insufficient to support the conviction, this Court of Appeals should enter a judgment of acquittal. See Ortiz v. State, 577 S.W.2d at 250; Foster v. State, 635 S.W.2d at 717; McFarland v. State, 930 S.W.2d at 100. Even when reviewing the evidence in the light Page 12
most favorable to the verdict or judgment, this Court of Appeals should conclude that the evidence is legally insufficient because the State failed to affirmatively proven each of the essential elements of the offense. See Gold v. State, 736 S.W.2d 685. As stated infra, the State failed to that Appellant knowingly or intentionally violated the terms and conditions of the protective order. The State has also failed to show that Appellant was properly served with the protective order, as required by statute. Therefore, even when this Court of Appeals examines the record for evidence that supports the finding, while ignoring all evidence to the contrary, it is clear that there is no evidence to support the verdict, and the fact that the evidence is legally insufficient to support a finding of guilt is established as a matter of law. See Cooks v. State, 169 S.W.3d at 290. Finally, there is a material variance between the allegations in the information and the proof presented at trial because the State failed to show the mens rea on the part of Appellant that he knowingly and intentionally violated any terms of the protective order. See Gollihar v. State, 46 S.W.3d at 246. 4. Conclusion Appellant has shown that the evidence provided at trial is legally insufficient to support a conviction for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case because Appellant was not properly served notice of the protective order, and because Appellant did not knowingly or intentionally violate the terms and conditions of the protective order. Based upon instruction and explanation from his family law attorney, Appellant believed that the protective order applied only to the CW, and the evidence at trial was clear that the CW was not present at the home when Appellant entered it on July 26, 2010. Appellant also was not properly served with the protective order, and thus he cannot be held criminally responsible for violating the terms and conditions of the protective order. Page 13
Therefore, the evidence is legally insufficient to show that Appellant violated the applicable protective order. Thus, this Court of Appeals should reverse Appellant's conviction, and render a judgment of acquittal. VIII. CONCLUSION AND PRAYER For the above and forgoing reasons, Appellant respectfully prays that upon appellate review, the Court of Appeals reverse the judgment of conviction and render a judgment of acquittal for Appellant. Respectfully submitted, Scott H. Palmer, P.C. 15455 Dallas Parkway Suite 540 Addison, TX 75001 Phone: (214) 987-4100 Fax: (214) 922-9900 scott@scottpalmerlaw.com Texas Bar # 00797196 M. Michael Mowla, PLLC 603 N. Cedar Ridge Rd Suite 100 Duncanville, Texas 75116 Phone: 972-283-2600 Fax: 972-692-6636 michael@mowlalaw.com By: /S/ M. Michael Mowla M. MICHAEL MOWLA Attorney for Appellant State Bar No. 24048680 Page 14
IX. CERTIFICATE OF SERVICE This is to certify that on December 19, 2011, a true and correct copy of the above and foregoing document was served on the Dallas County District Attorney Appellate Division, 133 N. Riverfront Blvd, LB 19, Dallas, Texas 75207, by fax 214-653-3643 and by email to Michael Casillas (michael.casillas@dallascounty.org) and Karen Wise (karen.wise@dallascounty.org). /S/ M. Michael Mowla M. MICHAEL MOWLA Page 15