Opinion
No. 08-14-00015-CR
04-06-2016
CALVIN CLAYTON LINCECUM, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the County Court at Law Number Four of Collin County, Texas (TC# 004-83824-2013) OPINION
Appellant Calvin Clayton Lincecum seeks to reverse his conviction for violating a protective order, contending the evidence was insufficient to show he had notice of the terms of the protective order. Appellant points out that the protective-order court failed to timely issue a written protective order, which resulted in its delivery to Appellant only after he had already allegedly violated the order. Appellant asserts he could not have intentionally or knowingly committed an act in violation of the order because he did not have actual knowledge of the order's specific terms. The State, however, was not required to prove that Appellant actually knew of the provisions in the protective order. The State was required to prove only that Appellant had been given the resources to learn of those provisions. We conclude the trier-of-fact could rationally draw a reasonable inference from the evidence that Appellant had the resources to learn of those provisions. Accordingly, we affirm.
This case was transferred from our sister court in Dallas, and we decide it in accordance with the precedent of that Court to the extent required by TEX. R. APP. P. 41.3.
BACKGROUND
In March 2013, Eloisa Lincecum obtained a protective order prohibiting Appellant from, among other things, coming within 300 yards of Eloisa or her residence. On April 18, 2013, Eloisa was mowing her lawn at her residence when Appellant drove by "maybe six times," at a distance of ten feet from the front door of her home. Appellant was charged by information with the misdemeanor offense of violation of a protective order. Appellant waived trial by jury, and after a bench trial, the trial court found Appellant guilty and sentenced him to 60 days in jail.
DISCUSSION
In his sole issue, Appellant argues that the trial court erred in finding him guilty of violating the protective order because there was no evidence to show he had notice of the terms of the protective order prior to his violation of the order. We disagree.
Standard of Review
In reviewing the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). This standard enables the fact finder to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. In performing our sufficiency review, we may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007).
Analysis
A person commits an offense if, in violation of a protective order issued under Section 6.504 or Chapter 85 of the Family Code, that person knowingly or intentionally goes to or near the residence of a protected individual, as specifically described in the protective order. TEX. PENAL CODE ANN. § 25.07(a)(3)(A) (West Supp. 2015). Appellant does not dispute the existence of the protective order or that he went within 300 yards of Eloisa's residence, but instead argues that the State did not establish his knowledge of the terms of the order.
Section 6.504 of the Family Code provides that on the motion of a party to a suit for the dissolution of marriage, a trial court may render a protective order as provided by Subtitle B. TEX. FAM. CODE ANN. § 6.504 (West 2006). Subtitle B both provides for protective orders when the court finds that family violence has occurred or is likely to occur and contains Chapter 85, which regulates the issuance of those orders. See TEX. FAM. CODE ANN. §§ 81.001, 85.001 (West 2014). The underlying protective order recites that in issuing the order, the court found that family violence had occurred and was likely to occur in the future.
In this regard, Appellant recognizes that the State was not required to prove that he had actual knowledge of the terms of the protective order but only that he had been given the resources to learn of the provisions. Harvey v. State, 78 S.W.3d 368, 373 (Tex.Crim.App. 2002). In Harvey, the Court of Criminal Appeals noted that one way to give the respondent in a protective-order proceeding the resources to learn of the provisions in a protective order is "that he be given a copy of the order[.]" Id. If the respondent is given a copy of the order, it "is nonetheless binding on the respondent who chooses not to read the order[.]" Id.
Appellant correctly points out that at the conclusion of the protective order hearing, which he admittedly attended, the written protective order was not issued or given to him in open court, and in fact was not signed by the judge until fifteen days later. This is evidenced by the written protective order itself, which recites that Eloisa's application for a protective order was heard on March 26, 2013, but that the written order was not signed until April 10, 2013. Appellant also asserts that the postal deliver receipt he put into evidence shows that he did not receive the written order until April 27, 2013, nine days after he was alleged to have violated its provisions.
However, Appellant also recognizes that the State can prove notice in other ways. For example, in Harvey, the Court of Criminal Appeals recognized that a respondent may receive effective notice of the provisions of a protective order by receiving "notice that an order has been applied for and that a hearing will be held to decide whether it will be issued." Harvey, 78 S.W.3d at 373. When a respondent receives notice of a hearing on an application for a protective order, the "order is nonetheless binding on the respondent . . . who chooses not to read the notice and the application and not to attend the hearing." Id.
In Harvey, the Court noted that the clerk of the court must issue a notice that an application for a protective order has been filed, that a respondent is entitled to service of that notice, and that the notice informs the respondent that if he does not attend the hearing a protective order may be entered against him. 78 S.W.3d at 372 (citing TEX. FAM. CODE ANN. §§ 82.041(b), 82.042(a), and 82.043(a, e)).
Appellant argues that although he did attend the hearing, the State failed to present any evidence that he was properly served with notice of the protective order hearing "which would allow the State to argue any resulting written order may be enforceable against him under the Harvey ruling." Appellant is correct that the notice of the protective order hearing was not in evidence, and there is no testimony regarding service. There is other evidence, however, from which the trial court could have reasonably concluded that Appellant had been served with the notice of the hearing.
Appellant readily admits, and the evidence is undisputed, that he attended the protective-order hearing.
Appellant does not argue that his attendance at the hearing somehow takes him out of the Harvey rule. In any event, we conclude that this would be a distinction without a difference, and that receipt of the application and notice of hearing is sufficient to put a respondent on notice of the provisions of the resultant protective order, whether or not the respondent attended the hearing. --------
First, Chapter 85 of the Family Code permits issuance of a protective order only after service upon respondent of a copy of the application and notice of the hearing. See Harvey, 78 S.W.3d at 372; see also TEX. FAM. CODE ANN. §§ 82.043, 85.006(a). The record includes both testimony and Appellant's concession that he was present at the hearing on the application for protective order. Appellant's presence at the protective-order hearing is evidence from which the trial court could reasonably infer that Appellant had been served with notice of the application for protective order and hearing, which not only afforded Appellant some knowledge of the protective order, but also gave him the resources to learn of its provisions.
Second, the protective order itself, which was admitted into evidence without objection, contains recitations from which the trial court could have reasonably inferred Appellant was served with notice. The protective order recites that the court, in considering Eloisa's application for protective order, found "that all necessary prerequisites of the law have been satisfied and that this Court has jurisdiction over the parties and subject matter of this case." A recital in a protective order that court had jurisdiction over the parties is evidence the protective order was issued after notice and hearing as required by the Family Code. Dillard v. State, No. 05-00-01745-CR, 2002 WL 31845796, at **3, 5 (Tex.App. - Dallas Dec. 20, 2002, no pet.) (not designated for publication). Thus, proof that Appellant was served with the application and notice of hearing was satisfied by the recital in the protective order that the court had jurisdiction and that all prerequisites of law had been satisfied. The underlying protective order was issued by the 366th Judicial District Court, a court of general jurisdiction, and is regular on its face. Absent evidence to the contrary, both this Court and the trial court were required to indulge every presumption in favor of its regularity. Laredo v. State, No. 08-13-00073-CR, 2015 WL 182079, at *2 (Tex.App. - El Paso Jan. 14, 2015, no pet.) (not designated for publication) (absent evidence to the contrary, the courts must indulge every presumption in favor of the regularity of a formal judgment and documents in the lower court).
In any event, there is also evidence in the record from which the trial court could have reasonably concluded that Appellant was orally informed by the court at the conclusion of the protective order hearing of the specific prohibitions of the protective order. Appellant recognizes that when a protective order has not been reduced to writing, Section 85.041(c) of the Family Code requires the court at the completion of the hearing to give a respondent, who is present at the hearing, oral notice of the prohibitions the court is imposing. TEX. FAM. CODE ANN. § 85.041(c) (West 2014). In the protective order, the court recited that the protective "order [was] judicially PRONOUNCED AND RENDERED in court," even though the written protective order was not signed until April 10, 2013. We hold that this recital was some evidence from which the trial court could reasonably infer that the protective-order court orally informed Appellant of the specific prohibitions it was imposing at the conclusion of the protective order hearing, as it was required to do by Section 85.041(c). In doing so, we reject Appellant's contention that the State was required to present more specific evidence that he was provided with oral notice of the provisions of the order at the conclusion of the hearing.
Appellant notes that Section 85.041(c) also requires that when the order is not reduced to writing at the hearing, the clerk of the court must mail a copy of the written order to the respondent no later than the third business day after the date the hearing is concluded, which was impossible in the present case since the trial court did not sign a written order until fifteen days after the hearing. We do not understand Appellant to be arguing that the failure to meet this three-day requirement somehow invalidated the court's oral notification at the conclusion of the protective-order hearing or invalidated the written protective order itself. If Appellant were making that argument, he would be essentially asking this Court to find the protective order invalid for want of notice and to thereafter issue an acquittal in his criminal prosecution for violating the protective order. This would be an impermissible collateral attack on the validity of the protective order in his criminal conviction.
We addressed a similar attack on the underlying protective order following a criminal conviction for its violation in Ramirez v. State, No. 08-07-00207-CR, 2008 WL 3522369, at *4 (Tex.App. - El Paso Aug. 14, 2008, no pet.) (not designated for publication). In Ramirez, we noted that collateral attacks are impermissible based on policy reasons favoring the finality of judgments, and held that the appellant could not collaterally attack the validity of the protective order for lack of notice on appeal from his criminal conviction. Id. Likewise in the present case, to the extent Appellant is arguing that the failure to meet the three-day requirement to mail a copy of the written protective order somehow invalidates the order or the proceedings that resulted in the order, we reject that challenge as an impermissible collateral attack.
CONCLUSION
We conclude the trial court, as the finder of fact, could reasonably and rationally infer from the evidence that Appellant was served with the application for protective order and notice of hearing in the underlying protective order proceedings and that Appellant was orally informed of the prohibitions that were being imposed on his conduct at the conclusion of the protective order hearing. Accordingly, we conclude that the evidence was sufficient for conviction because it demonstrated that Appellant had been given the resources to learn of the protective order's provisions. We overrule Appellant's sole issue on appeal and affirm the trial court's judgment.
STEVEN L. HUGHES, Justice April 6, 2016 Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)