Opinion
No. 05-02-00336-CR.
Opinion Issued January 22, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-81444-00. AFFIRMED.
Before Justices WHITTINGTON, RICHTER, and FRANCIS.
MEMORANDUM OPINION
Alfred Earl Dawson appeals his conviction for criminal nonsupport. After the jury found appellant guilty, the trial judge assessed punishment at two years' confinement. In two points of error, appellant claims the trial judge erred in admitting certain evidence and the evidence is legally and factually insufficient to support his conviction. The facts of this case are known to the parties, and we do not recite them here. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1. See Tex. R. App. P. 47.1. We affirm the trial court's judgment. In his second point of error, appellant contends the evidence is legally and factually insufficient to support his conviction. Appellant concedes he did not give his ex-wife money. However, he contends the failure to pay money is not enough to support a conviction, and that to establish criminal nonsupport, the State was required to show he did not provide clothes, medical care, property, insurance, or other non-monetary support for his child. We disagree. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In a legal sufficiency review, we consider all the evidence introduced, whether properly admitted or not. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998); Nickerson v. State, 810 S.W.2d 398, 400 (Tex.Crim.App. 1991). An individual commits the offense of criminal nonsupport if he intentionally or knowingly fails to provide support for the individual's child younger than eighteen years of age or for the individual's child who is the subject of a court order requiring the individual to support the child. Tex. Pen. Code Ann. § 25.05(a) (Vernon Supp. 2003); Belcher v. State, 962 S.W.2d 653, 656 (Tex.App.-Austin 1998, no pet.). Although appellant claims the evidence is legally and factually insufficient to support his conviction, we cannot agree. At trial, appellant's ex-wife Vanessa Geary-Dawson-Pauge testified she and appellant were married in 1986. Appellant is a professional civil engineer and has both a bachelor's degree and a master degree in civil engineering. In 1989, the couple had a son. One year later, the couple divorced. Vanessa was named primary custodian of their son, and appellant was ordered to pay $390 a month in child support. Although appellant had visitation rights, he had his son for only one two-week period in the summer of 1999. Vanessa testified that from March 31, 1998 to December 6, 2000, she did not receive any of the $390 per month support appellant was supposed to pay her for the care of their son. She also testified appellant was present at the divorce hearing when the order for child support was entered. On cross-examination, Vanessa testified that during those twenty-one months, she "never received any money at all — money orders or cash or anything in that regard" from appellant. Appellant offered no proof controverting Vanessa's testimony about the amount of child support ordered or contesting the number of months he failed to pay. Thus, the evidence shows appellant (i) was present at the divorce proceeding; (ii) was required to pay child support of $390 per month under the terms of the divorce decree; and (iii) had not paid twenty-one months of support. From these facts, we conclude a rational jury could find beyond a reasonable doubt that appellant knowingly or intentionally failed to provide support for his eleven-year-old son. In reaching this conclusion, we reject appellant's argument that the State was required to show he did not provide clothes, medical care, property, insurance, or other non-monetary support for his child. The nonsupport statute requires only that the accused (i) fail to provide support for a child who is the subject of a court order requiring the individual to support the child and (ii) know he is not providing all the support required. See Tex. Pen. Code Ann. § 25.05(a) (Vernon Supp. 2003); Belcher, 962 S.W.2d at 656. Although it does not define "support," the statute clearly contemplates that a parent's failure to pay the support ordered by a court in a divorce be sufficient evidence to support a conviction for nonsupport. See Belcher, 962 S.W.2d at 657-660. In this case, the evidence adduced at trial established appellant was under court order to pay $390 a month in child support and did not do so. Thus, it is irrelevant whether appellant provided clothes, medical care, property, insurance, or other non-monetary support because he failed to provide the support as set out in the court order. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction. Furthermore, giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence was so uncertain, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand. See Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). Nor can we conclude the verdict is against the great weight of the evidence so as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 11; Scott, 934 S.W.2d at 398. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error. In his first point of error, appellant contends the trial judge erred in admitting into evidence (i) a copy of his divorce decree in which he is ordered to pay $390 in child support a month and (ii) a copy of the Texas Attorney General Financial Activity Report for the Child Support Enforcement Division referencing his payment history. Appellant claims both documents were hearsay and were not properly authenticated. Appellant argues the improper admission of these documents was harmful, improperly influenced the jury, and mandates reversal. We disagree. Even assuming the trial judge should not have admitted the documents, we have previously concluded there is legally and factually sufficient evidence to support his conviction without considering either document. Therefore, the admission of the documents could not have harmed appellant. We overrule appellant's first point of error. We affirm the trial court's judgment.
In fact, he contends in his brief "there was no evidence that [appellant] failed to do anything but give [Vanessa] money from April 1998 to December 2000."