No. 05-05-01325-CR
Opinion filed April 10, 2007. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause, No. 296-81341-04.
Before Justices MORRIS, LANG, and LANG-MIERS.
DOUGLAS S. LANG, Justice.
John Paul Deltuva appeals the trial court's judgment convicting him of criminal nonsupport of his three children. The jury found Deltuva guilty and the trial court assessed his punishment at two years of confinement in state jail, probated for five years. Deltuva articulates his three issues on appeal as follows: (1) the trial court erred when it denied his motion to dismiss because his conviction for the offense of criminal nonsupport violated the double jeopardy provisions of the United States and Texas Constitutions; (2) the evidence is insufficient to show he intentionally and knowingly failed to provide the support described in the indictment; and (3) the evidence is insufficient to sustain his conviction because the evidence conclusively established his affirmative defense that he was unable to pay. We conclude the trial court did not err when it denied Deltuva's motion to dismiss. Also, we conclude the evidence is legally and factually sufficient to support Deltuva's conviction and to disprove his affirmative defense. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The evidence at trial is extensive as to Deltuva's financial history. We set forth the evidence in detail for the purpose of addressing Deltuva's sufficiency issues. On April 1, 1981, Deltuva, an optician, opened an optical store, Campbell Opticians, Inc. Deltuva was the president, chief executive officer, and sole shareholder of Campbell Opticians. His mother, Madeline Deltuva, was the secretary of the corporation and handled the bookkeeping. From 1981 to 1983, Deltuva "realized no money" from his business. However, beginning in 1983, his income increased steadily each year. Deltuva's business also generated money through a corporate brokerage division account. For the first few years, he "made thousands of dollars buying and selling stocks in short periods of time." However, Deltuva made investments "the average guy on the street" should not make. In 1982, Deltuva met Barbara Deltuva and, in 1984, they were married. There are three children from the Deltuvas' marriage, J.D.D., B.J.D., and W.G.D. During the marriage, Ms. Deltuva was a homemaker. In 1991, Deltuva opened a second optical store located in an ophthalmologist's office. Deltuva's income continued to increase and in 1999, he earned a salary of $125,000. However, in 1999, the ophthalmologist retired and Deltuva closed his second optical store. In November of 2000, after seventeen years of marriage, Ms. Deltuva petitioned for divorce. In April 2001, while the divorce was pending, Deltuva ceased contact with his children. On February 18, 2002, the 366th District Court entered the final decree of divorce. Under the terms of the divorce decree, Ms. Deltuva had custody of the children and Deltuva was ordered to pay child support in the amount of $1,800 per month and to provide medical insurance with a $500 deductible for the children. In 2001, Deltuva paid child support in the amount of $18,000. In 2002, Deltuva paid a total of $23,650 in child support and spousal maintenance. Also, on January 31, 2002, Deltuva filed for personal Chapter 7 bankruptcy. At the time of his divorce, Deltuva had medical insurance for his children and paid a quarterly premium of $1,100. However, he claims the premiums continuously increased, reaching a maximum quarterly payment of $2,500, so Deltuva changed the deductible from $500 to $2,500. As a result, in 2002, the 366th District Court found him in contempt and jailed him for three days. From May 2002 to December 2002, Deltuva made child support payments, but his payments were deficient by $3,400. In January 2003, Ms. Deltuva initiated an enforcement action and Deltuva paid the arrearage. On January 15, 2003, Deltuva paid $800 of the next $1,800 child support payment. After that payment, he ceased paying child support. On April 1, 2003, the 366th District Court found Deltuva in criminal and civil contempt of court for failing to pay child support from January 2003 through April 1, 2003. Beginning on April 1, 2003, Deltuva was confined in jail for criminal contempt for three days. Then, on April 4, 2003, Deltuva was jailed as coercive civil contempt until he paid the child support arrearage. Because he did not pay the arrearage as required by the coercive civil contempt order, he was confined in jail from April 4, 2003 through February 12, 2004. From April 2003 to June 2003, Deltuva was on work release, but he made no child support payments or payments on the arrearage. On July 1, 2003, the 366th District Court revoked Deltuva's work release because it found Deltuva was able to pay the child support ordered and had failed to do so. The 366th District Court ordered Deltuva confined in jail without work release until he paid all child support arrearage. After Deltuva's work release was revoked, Campbell Opticians remained open for an additional two weeks so an employee could distribute existing orders. Then, the store was closed until Deltuva was released from jail. While Deltuva was in jail, his mother directed the mail for Campbell Opticians forwarded to her apartment. Also, she paid some of Deltuva's debts, including his apartment lease at $1,105 per month, his business lease at approximately $1,500 per month, and his car payment at $300 per month. However, Deltuva would not ask his mother for assistance in paying his child support obligations because he believed the amount ordered by the 366th District Court was "excessive." Deltuva was released from jail on February 12, 2004, without having paid the arrearage or making any additional child support payments. In February of 2004, Ms. Deltuva arranged for Deltuva to have dinner with two of his children, B.J.D. and W.G.D. Deltuva spent a little over an hour with his sons. Subsequent to that dinner, Deltuva had no further contact with his children. After Deltuva was released from jail, he reopened his business. Deltuva claims the business had a negative cash flow, so he closed Campbell Opticians on October 31, 2004. He claims his corporate debts are in excess of $25,000. However, Deltuva put the business equipment in a rented storage unit with the hope of opening a store in New York. On July 20, 2004, Deltuva was indicted for criminal nonsupport and the case was assigned to the 296th District Court. The indictment alleged that on or about and between April 2, 2003 and July 10, 2004, Deltuva: (1) intentionally or knowingly failed to provide support for his children who were younger than 18 years of age; or (2) intentionally or knowingly failed to provide support for his children who were the subject of the final decree of divorce, which required him to support his children. After his arrest, Deltuva posted a $5,000 cash bond. In May 2005, Deltuva began working as an optician for an optical store. His salary was $14 per hour and he worked 30 to 40 hours per week. On July 21, 2005, after considering motions for enforcement filed by Ms. Deltuva, the 366th District Court entered a judgment against Deltuva, finding, in part, that Deltuva failed: (1) to make spousal support payments from February 1, 2003 through December 31, 2004 and was $14,950 in arrears; and (2) to make child support payments from January 2003 through July 2005, and was $45,300 in arrears for child support and $525.75 in arrears for medical child support. Also, the 366th District Court found Deltuva in contempt, but it did not assess a fine or order him confined. However, the 366th District Court ordered Deltuva to pay the child support and the arrearage, and, should Deltuva die before full payment, any amounts due under the order will be an obligation of Deltuva's estate. On July 22, 2005, Deltuva filed a motion in the 296th District court seeking dismissal of the indictment claiming it was barred by the constitutional provision against double jeopardy. Deltuva argued that: (1) on July 21, 2005, the 366th District Court found him guilty of contempt of court for failing to support his children from January 1, 2003 through July 31, 2005; and (2) the 366th District Court had previously found him in contempt and sentenced him to jail from April 1, 2003 through February 12, 2004, a total of 318 days. After a hearing, the trial court denied Deltuva's motion to dismiss. On July 26, 2005, Ms. Deltuva received a money order in the amount of $124.75 for spousal maintenance pursuant to the 366th District Court's July 21, 2005 judgment. Also, on July 26, 2005, the jury trial commenced in the 296th District Court. Before the charge was read to the jury, Deltuva moved for an instructed verdict and objected to the jury charge, arguing the second paragraph of the indictment that alleged Deltuva intentionally or knowingly failed to provide support for his children who were the subject of the final decree of divorce violated the double jeopardy provisions of the United States and Texas Constitutions. The 296th District Court denied the motion and overruled his objection. The jury found Deltuva guilty of criminal nonsupport and the trial court assessed Deltuva's punishment at two years of confinement in state jail, probated for five years. II. DOUBLE JEOPARDY
In his first issue, Deltuva argues the 296th District Court erred when it denied his motion to dismiss because his conviction for the offense of criminal nonsupport violated the double jeopardy provisions of the United States and Texas Constitutions. The State responds that the prior criminal contempt and the criminal nonsupport charge are not the same offense for double jeopardy purposes because each offense requires proof of elements not contained in the other. A. Applicable Law
The Double Jeopardy Clauses of the United States and Texas Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. See U.S. Const. amend. V; Tex. Const. art. I, § 14. Double jeopardy protects individuals from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. United States v. Dixon, 509 U.S. 688, 695-96 (1993); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex.Crim.App. 2006). In the multiple punishment and multiple prosecution contexts, the double jeopardy bar applies if the two offenses for which the defendant is punished or tried cannot survive the "same elements" or " Blockburger" test. Id. The "same elements" test inquires whether each offense contains an element not contained in the other. Id. However, the Double Jeopardy Clause in both the federal and state constitutions prohibit only attempts by the State to punish an individual multiple times for the "same offense." State v. Johnson, 948 S.W.2d 39, 40 (Tex.App.-Houston [14th Dist.] 1997, no pet.). When the State attempts to punish an individual for a separate occurrence of the same conduct, each occurrence constitutes a distinct offense for which that individual may be separately prosecuted without violating the double jeopardy protection. Johnson, 948 S.W.2d at 40 (citing see Ex parte Rathmell, 717 S.W.2d 33, 35 (Tex.Crim.App. 1986) (holding that Blockburger doctrine applies when State seeks to prosecute individual for two distinct statutory provisions, not when State seeks to prosecute individual for multiple violations of single statute)). If the rule were otherwise, it would be tantamount to saying that if an individual assaults his neighbor on Tuesday and then assaults that same individual again on Wednesday, he could not be charged with two separate crimes of assault. Johnson, 948 S.W.2d at 40. A person may be confined under a court's contempt powers for failure to pay child support. See Tex. Fam. Code Ann. §§ 157.001, 157.166(b) and (c), 157.167(a) (Vernon 2002 Supp. 2006); In re Henry, 154 S.W.3d 594, 596 (Tex. 2005). Contempt of court proceedings may be criminal or civil. See Ex parte Johns, 807 S.W.2d 768, 770-71 (Tex.App.-Dallas 1991, orig. proceeding); In re Johnson, 150 S.W.3d 267, 271 (Tex.App.-Beaumont 2004, orig. proceeding) (op. on reh'g). The distinction between criminal and civil contempt is based on the nature and purpose of the penalty imposed, not the fact of or severity of punishment. See Ex parte Johns, 807 S.W.3d at 770-71. Criminal contempt is punishment for past conduct. See id. at 771. Criminal contempt requires the following: (1) a reasonably specific court order; (2) a violation of that order; and (3) the willful intent to violate the order. See Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). There are two types of criminal contempt: direct and constructive. See Gonzalez v. State, 187 S.W.3d 166, 170 (Tex.App.-Waco 2006, no pet.). Direct contempt is committed in the presence of the court and involves disobedience or disrespect for the court's authority. See id.; In re Johnson, 150 S.W.3d at 271. Constructive contempt occurs outside the court's presence. See Gonzalez, 187 S.W.3d at 170; In re Johnson, 150 S.W.3d at 271. A criminal contempt order is punitive and unconditional. See Ex parte Johns, 807 S.W.3d at 771. A court can impose a fine, confinement, or both in a criminal contempt order. See id. The protection of the Double Jeopardy Clause applies to nonsummary criminal contempt prosecutions. Dixon, 509 U.S. at 696. Civil contempt is coercive because the court is attempting to persuade the contemnor to obey a previous court order. See id. at 770; In re Johnson, 150 S.W.3d at 271. A civil contempt order is conditional because it provides for confinement unless and until the contemnor performs the affirmative act required by the court's order. See Ex parte Johns, 807 S.W.3d at 770; In re Johnson, 150 S.W.3d at 271. A court can impose a fine, confinement, or both in a civil contempt order. See Ex parte Johns, 807 S.W.3d at 770. Also, a court can impose a determinate sentence that contains a "purge clause" in a civil contempt order. See id. However, double jeopardy principles do not apply to a coercive civil contempt order assessing confinement conditioned on a contemnor obtaining his release by purging the contempt. See Ex parte Hudson, 917 S.W.2d 24, 26 (Tex. 1996); Ex parte Jones, 36 S.W.3d 139, 142 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (op. on reh'g). A person commits the offense of criminal nonsupport when he intentionally or knowingly fails to provide support for: (1) his child younger than 18 years of age; or (2) his child who is the subject of a court order requiring him to support the child. See Tex. Pen. Code. Ann. § 25.05(a) (Vernon 2003). Criminal nonsupport is a continuing offense. See Ex parte Beeth, 142 Tex. 511, 514-15, 154 S.W.2d 484, 485-86 (Tex.Crim.App. 1941); Harvill v. State, 13 S.W.3d 478, 481 (Tex.App.-Corpus Christi 2000, no pet.); Belcher v. State, 962 S.W.2d 653, 656 (Tex.App.-Austin 1998, no pet.); State v. Paiz, 777 S.W.2d 575, 577 (Tex.App.-Amarillo 1989), aff'd 817 S.W.2d 84 (Tex.Crim.App. 1991) (en banc); cf. Williams v. State, 114 S.W.3d 920, 922 (Tex.Crim.App. 2003) (unnecessary to address whether separate acts of failing to pay child support are elements of continuing offense because stipulation stated offense occurred "on" June 1, 2000). However, each month a defendant fails to make a child support payment constitutes a separate offense, permitting successive prosecutions. Johnson, 948 S.W.2d at 40 n. 3. When a defendant is convicted of having failed to pay child support on a specific date, not "on or about" that date, the defendant was not convicted of failing to pay child support prior to that date. See generally, Williams, 114 S.W.3d at 922 (discussing guilty plea and stipulation to criminal nonsupport). Further, the pendency of a prosecution under section 25.05 does not affect the power of a court to enter an order for child support under the Texas Family Code. Tex. Pen. Code Ann. § 25.05(e). C. Application of the Law to the Facts
The parties focus their argument on whether contempt and criminal nonsupport require proof of the same elements for double jeopardy purposes. However, we must address this appeal in a slightly different manner. Initially, we must determine which, if any, contempt orders are subject to the double jeopardy analysis. Then, we will evaluate whether the order for criminal contempt and Deltuva's conviction for criminal nonsupport attempt to punish him for the "same offense" or separate occurrences of the same conduct. It is unnecessary to apply the "same elements" or " Blockburger" test. See Johnson, 948 S.W.2d at 40-41. At this juncture, we analyze the 366th District Court's contempt orders to determine which orders are subject to the double jeopardy analysis. First, the record shows that on April 1, 2003, the 366th District Court found Deltuva in criminal contempt for failing to pay child support from January 2003 to April 1, 2003. On this record, we conclude the portion of the of the 366th District Court's April 1, 2003 order finding Deltuva in criminal contempt and ordering him confined for three days is subject to this double jeopardy analysis because the protection of the Double Jeopardy Clause applies to criminal contempt. See Dixon, 509 U.S. at 696. Second, the record shows the 366th District Court found Deltuva in civil contempt and ordered him confined on April 4, 2003 until he paid all child support arrearage. During the trial, there was testimony that Deltuva went to jail with work release on April 1, 2003, his work release was revoked in July 2003, Deltuva could have been released from jail by paying the arrearage of $7,600, and Deltuva was released from jail on February 12, 2004, without paying the arrearage. The 366th District Court's July 1, 2003 order revoking Deltuva's work release ordered Deltuva confined until he paid all child support arrearage as ordered on April 1, 2003. Also, the 366th District Court's July 21, 2005 judgment found Deltuva served time in jail from April 4, 2003 until February 12, 2004 as coercive contempt for violations of the Court's order. A conditional order that provides for confinement unless and until the contemnor performs the affirmative act required by the court's order is a civil contempt order. See Ex parte Johns, 807 S.W.3d at 770; In re Johnson, 150 S.W.3d at 271. Double jeopardy does not apply to a coercive civil contempt order assessing confinement conditioned on a contemnor obtaining his release by purging the contempt. See Ex parte Hudson, 917 S.W.2d at 26; Ex parte Jones, 36 S.W.3d at 142. On this record, we conclude the portion of the 366th District Court's April 1, 2003 order finding Deltuva in civil contempt and ordering him confined from April 4, 2003 until he paid the child support arrearage as previously ordered by the court is not subject to this double jeopardy analysis. Third, the record shows that on July 21, 2005, the 366th District Court entered a judgment that found Deltuva in contempt for failing to pay child support and spousal maintenance from January 2003 through July 2005. However, that judgment did not assess a fine or order Deltuva confined. Instead, the judgment orders Deltuva to pay the arrearage and provides that should he die before full payment, any amounts due under the order will be an obligation of his estate. On this record, we conclude the portion of the 366th District Court's July 21, 2005 judgment finding Deltuva in contempt is not subject to this double jeopardy analysis. Now, we compare the 366th District Court's April 1, 2003 criminal contempt order, which we have concluded is subject to double jeopardy analysis, with Deltuva's indictment in the 296th District Court for criminal nonsupport to determine whether these orders attempt to punish him for the "same offense" or separate occurrences of the same conduct. The record shows that on April 1, 2003, the 366th District Court found Deltuva in criminal contempt for failing to pay child support from January 2003 to April 1, 2003. During the trial, there was testimony that Deltuva went to jail with work release on April 1, 2003 for failing to pay child support from January to April 1, 2003. The 366th District Court's July 21, 2005 judgment found Deltuva served three days in jail for criminal contempt beginning April 1, 2003 for violations of the Court's orders. Criminal contempt is punishment for past conduct. See Ex parte Johns, 807 S.W.3d at 771. As a result, the 366th District Court's finding of criminal contempt pertained only to Deltuva's failure to pay child support before April 1, 2003. See Johnson, 948 S.W.2d at 40. On July 20, 2004, Deltuva was indicted for criminal nonsupport. In contrast with the 366th District Court's criminal contempt order, the indictment alleges the criminal conduct occurred "on or about and between the dates of April 2, 2003 and July 10, 2004." The jury charge also indicates the only offense with which Deltuva was charged and for which the jury is to consider his guilt or innocence occurred "on or about and between the dates of April 2, 2003 and July 10, 2004." The indictment and jury charge include the language "on or about." However, that language is followed by "and" and the limiting language "between the dates of April 2, 2003 and July 10, 2004." As a result, the conduct alleged to constitute criminal nonsupport is limited to the conduct that occurred between April 2, 2003 and July 10, 2004. The divorce decree ordered Deltuva to pay child support in the amount of $1,800 per month. As a result, each month Deltuva failed to pay child support constituted a separate offense. See Johnson, 948 S.W.2d at 40 n. 3. On the one hand, the 366th District Court's finding of criminal contempt pertained to Deltuva's failure to pay child support before April 1, 2003. On the other hand, the indictment charging Deltuva with criminal nonsupport alleged Deltuva failed to support his children from April 2, 2003 through July 10, 2004. When Deltuva was indicted for criminal nonsupport, the State was attempting to prosecute and punish Deltuva for separate occurrences of similar conduct, i.e., failing to pay child support, not the same occurrences for which he was previously held in criminal contempt. See Johnson, 948 S.W.2d at 40. We conclude Deltuva's criminal contempt pertains to a different time period than the criminal nonsupport allegations. Accordingly, the 296th District Court did not err when it denied Deltuva's motion to dismiss because the State's prosecution of and Deltuva's conviction for criminal nonsupport are not barred by double jeopardy. Deltuva's first issue is decided against him. III. SUFFICIENCY OF THE EVIDENCE TO SUPPORT CONVICTION
In his second issue, Deltuva argues the evidence is insufficient to support his conviction. He argues the evidence does not show he intentionally or knowingly failed to support his children because the State failed to introduce evidence of his ability to contribute. The State responds that the evidence shows Deltuva received income and paid for personal expenses, and he believed the amount of child support ordered was excessive. Also, the State responds that, in 1987, the criminal nonsupport statute was amended to remove the element of ability to pay and to add the affirmative defense of inability to pay. A. Standards of Review
Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Lee v. State, 186 S.W.3d 649, 654 (Tex.App.-Dallas 2006, pet. ref'd). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See id. 1. Legal Sufficiency
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Lee, 186 S.W.3d at 654. In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 210 S.W.3d at 625; Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998); Lee, 186 S.W.3d at 654. 2. Factual Sufficiency
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 417. When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial. See Marshall, 210 S.W.3d at 625; see also King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Lee, 186 S.W.3d at 655; Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson, 23 S.W.3d at 9 (factual sufficiency review requires reviewing court to afford "due deference" to jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (factual sufficiency review requires "deferential standards of review applied" to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001); Lee, 186 S.W.3d at 655. An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. Reversal for factual insufficiency occurs only when there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See id.; see also Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. B. Applicable Law
Pursuant to section 25.05(a) of the Texas Penal Code, a person commits the offense of criminal nonsupport if he intentionally or knowingly fails to provide support for his child younger than 18 years of age, or for his child who is the subject of a court order requiring him to support the child. See Tex. Pen. Code Ann. § 25.05(a). However, the criminal nonsupport statute does not automatically impose a criminal sanction on any parent who violates the terms of a child support order. See Belcher, 962 S.W.2d at 657-58. Evidence the defendant was notified of his arrearage in child support and of his statements that he would retaliate against his ex-wife by not paying child support is sufficient for a rational jury to find beyond a reasonable doubt that the defendant's failure to support his child was intentional or knowing. See id. at 658. A child support order is relevant evidence of the appropriate level of support. Id. However, child support orders are not the sole standard of support in the criminal nonsupport statute. Id. Also, evidence of county records showing each child support payment made by the defendant is relevant to the issue of nonsupport. See id. The ability of a defendant to pay child support is not an element of the offense of criminal nonsupport. See Belcher, 962 S.W.2d at 657; Lyons v. State, 835 S.W.2d 715, 719 (Tex.App.-Texarkana 1992, pet. ref'd). Although the ability to pay child support was an element in an earlier version of the statute, in 1987, the legislature amended section 25.05 to remove the question of a defendant's ability to provide support for the child from the elements of the offense. See Belcher, 962 S.W.2d at 657; Lyons, 835 S.W.2d at 719. C. Application of the Law to the Facts
Viewing the evidence in the light most favorable to the verdict, there was evidence that Deltuva intentionally or knowingly failed to support his children. Ms. Deltuva testified she filed six to eight enforcement actions against Deltuva for failing to pay child support. Also, Deltuva testified he did not ask his mother to assist him with his child support payments because he believed the amount ordered was excessive. The 366th District Court's July 21, 2005 judgment for arrearage was entered into evidence. The judgment against Deltuva found he failed to pay child support from January 2003 through July 2005 and was $45,300 in arrears for child support and $575.75 in arrears for medical child support. Also, Ms. Deltuva testified Deltuva had not paid child support since January 15, 2003, he had no contact with his children, and he did not provide food, clothing, or transportation for his children. Deltuva conceded he had not paid child support since January 2003. Records from the Collin County District Clerk's Office showed Deltuva ceased paying child support after making a payment in the amount of $800 on January 15, 2003. Viewing the evidence in a neutral light, we conclude there is evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Deltuva intentionally or knowingly failed to support his children. The great weight and preponderance of the evidence do not contradict the jury's verdict. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Deltuva's conviction for criminal nonsupport. Deltuva's second issue is decided against him. IV. SUFFICIENCY OF EVIDENCE TO DISPROVE AFFIRMATIVE DEFENSE
In his third issue, Deltuva argues the evidence is legally and factually insufficient to to disprove his affirmative defense that he was unable to pay. The State responds that the jury needed only to find that Deltuva was able to support his children more than he did and there was evidence he could work, believed the amount of child support ordered was excessive, and was able to obtain money to pay for other things. A. Standards of Review
An appellate court may review the legal sufficiency of the evidence to support the jury's rejection of a defendant's affirmative defense. See Clark v. State, 190 S.W.3d 59, 62 (Tex.App.-Amarillo 2005, no pet.); Cleveland v. State, 177 S.W.3d 374, 388 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (en banc), cert. denied, 126 S.Ct. 1774 (2006); Ballard v. State, 161 S.W.3d 269, 272 (Tex.App.-Texarkana 2005), aff'd 193 S.W.3d 916 (Tex.Crim.App. 2006); Howard v. State, 145 S.W.3d 327, 334 (Tex.App.-Fort Worth 2004, no pet.); Nolan v. State, 102 S.W.3d 231, 238 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Also, well-established law permits appellate review of the factual sufficiency of the evidence to support a jury's negative finding on an affirmative defense. See Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App. 1990); Cleveland, 177 S.W.3d at 385. 1. Legal Sufficiency to Disprove Affirmative Defense
When conducting a legal sufficiency review regarding a defendant's affirmative defense or an issue on which the defendant had the burden of proof, an appellate court reviews the evidence in the light most favorable to the verdict and reverses only when the evidence conclusively establishes the opposite. See Wheat v. State, 165 S.W.3d 802, 806 n. 6 (Tex.App.-Texarkana 2005, pet. dism'd); Howard, 145 S.W.3d at 331. An appellate court reviews the legal sufficiency of the evidence to support the jury's rejection of the defendant's affirmative defense under a two-part test. See Clark, 190 S.W.3d at 62; Cleveland, 177 S.W.3d at 388; Ballard, 161 S.W.3d at 272; Howard, 145 S.W.3d at 334; Nolan, 102 S.W.3d at 238. First, the appellate court examines the record for evidence that supports the jury's rejection of the defendant's affirmative defense while ignoring all evidence to the contrary. See Clark, 190 S.W.3d at 62; Cleveland, 177 S.W.3d at 388; Ballard, 161 S.W.3d at 272; Howard, 145 S.W.3d at 334; Nolan, 102 S.W.3d at 238. Second, if there is no evidence to support the jury's rejection of the defendant's affirmative defense, then an appellate court examines whether the record supports the defendant's affirmative defense as a matter of law. See Clark, 190 S.W.3d at 62; Cleveland, 177 S.W.3d at 388; Ballard, 161 S.W.3d at 272; Howard, 145 S.W.3d at 334; Nolan, 102 S.W.3d at 238. If the record reveals evidence of the defendant's affirmative defense that was not subject to a credibility assessment by the jury, then the evidence shows as a matter of law that the defendant proved his affirmative defense. See Cleveland, 177 S.W.3d at 388-89. However, if the evidence supporting the defendant's affirmative defense was subject to the jury's assessment of credibility, that evidence is not considered in the appellate court's matter-of-law assessment. See Cleveland, 177 S.W.3d at 389. 2. Factual Sufficiency to Disprove Affirmative Defense
When conducting a factual sufficiency review regarding a defendant's affirmative defense or an issue on which the defendant had the burden of proof, an appellate court reviews all of the evidence in a neutral light. See Clark, 190 S.W.3d at 63; Cleveland, 177 S.W.3d at 390; Wheat, 165 S.W.3d at 807 n. 6. When a defendant has asserted an affirmative defense, an appellate court considers all of the evidence and determines whether the judgment rendered is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Edwards v. State, 106 S.W.3d 833, 843 (Tex.App.-Dallas 2003, pet. ref'd); Cleveland, 177 S.W.3d at 390; Ballard, 161 S.W.3d at 271; Wheat, 165 S.W.3d at 807 n. 6. When an appellate court concludes the contrary evidence is insufficient to support the jury's rejection of a defendant's affirmative defense, it must clearly state why the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust, why it shocks the conscience, or why it clearly demonstrates bias. See Meraz, 785 S.W.2d at 154 n. 2; Howard, 145 S.W.3d at 335. B. Applicable Law
Pursuant to section 25.05(d) of the Texas Penal Code, it is an affirmative defense to prosecution that the defendant could not provide support for his child. Tex. Pen. Code Ann. § 25.05(d). The defendant has the burden of proving an affirmative defense by a preponderance of the evidence. See Howard, 145 S.W.3d at 329, 333. Evidence supporting a jury's adverse finding on a defendant's affirmative defense of inability to pay can include the following: (1) ability to work; (2) receipt of income during the time he failed to pay child support; (3) award from the settlement of a lawsuit; and (4) receipt of income while in prison. See Howard, 145 S.W.3d at 335-36. C. Application of the Law to the Facts
Viewing the evidence in the light most favorable to the verdict, there was evidence to support the jury's rejection of Deltuva's affirmative defense. The record shows Deltuva had the ability to work. Deltuva testified he has an Associate of Science degree from the Interburo Institute of Ophthalmic Dispensing and he owned an optical store from 1981 to October 31, 2004. Although he closed his optical store, he stated he began working as an optician for another optical store in May 2005. Also, the record shows he received income during the time he failed to pay child support and while he was confined for contempt of court. Over the years, Deltuva earned salaries from his optical store as follows: (1) $125,200 in 1999; (2) $112,527 in 2000; (3) $45,750 in 2001; (4) $48,350 in 2002; and (5) $20,250 in 2003. Deltuva also testified he received bonus checks from his company, but the bonus income would be reflected on his W-2 forms. During cross-examination, Deltuva testified regarding the information contained in bank records for a Campbell Opticians account. He stated the bank records showed the following deposits into the account from January 2003 to October 2004: (1) $5,000 in January 2003; (2) $4,500 in February 2003; (3) $5,600 in March 2003; (4) $5,600 in April 2003; (5) $5,000 in May 2003; (6) $3,000 in June 2003; (7) $2,261.48 in March 2004; (8) $4,557.67 in April 2004; (9) $4,587.46 in May 2004; (10) $6,043.69 June 2004; (11) $2,800 in July 2003; (12) $1,000 in August 2003.(13) $7,666 in July 2004; (14) $10,487.63 in August 2004; (15) $9,326.96 in September 2004; and (16) $7,777.93 in October 2004. Also, while Deltuva was in jail, his corporation paid him $12,000 as a member of the board. In addition, to Deltuva receiving income while he was in jail, the record shows his expenses were paid. Specifically, Deltuva testified his mother handled the bookkeeping for his optical store, she had the store's mail forwarded to her apartment while he was in jail, and she paid his debts, including his apartment lease at $1,105 per month, his business lease at approximately $1,500 per month, and his car payment at $300 per month. We conclude there is evidence that supports the jury's rejection of the defendant's affirmative defense. Accordingly, we need not address whether the record supports Deltuva's affirmative defense as a matter of law. Viewing the evidence in a neutral light, the evidence contrary to Deltuva's affirmative defense is sufficient to support the jury's rejection of his affirmative defense. As discussed in the previous portion of this opinion dealing with the legal and factual sufficiency of the evidence to support Deltuva's conviction and the legal sufficiency of the evidence to support the jury's rejection of his affirmative defense, the evidence was factually sufficient for the jury to reject his affirmative defense of inability to provide support for his children. The jury's finding against Deltuva's affirmative defense is not against the great weight and preponderance of the evidence. Accordingly, we conclude the evidence is factually sufficient to support the jury's rejection of Deltuva's affirmative defense. Deltuva's third issue is decided against him. V. CONCLUSION
The trial court did not err when it denied Deltuva's motion to dismiss. Also, the evidence is legally and factually sufficient to support Deltuva's conviction and to disprove his affirmative defense. The trial court's judgment is affirmed.