Roy Moreno v. The State of Texas--Appeal from County Court at Law No 7 of Bexar County

MEMORANDUM OPINION
No. 04-02-00727-CR
Roy MORENO,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 803110
Honorable Bill White, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 16, 2003

AFFIRMED

Roy Moreno ("Moreno") was convicted of violation of a protective order after a bench trial. Moreno contends the evidence is legally and factually insufficient to support his conviction. Because the issues in this appeal are settled by existing precedent, we affirm the trial court's judgment in this memorandum opinion. See Tex. R. App. P. 47.4.

1. In his first issue, Moreno contends that the evidence is legally insufficient to support his conviction because the information charged him with violating a protective order of the 150th District Court of Bexar County, Texas, issued in Cause Number 1999 CI 11564, but no evidence was introduced to prove the number of the court that issued the protective order or the cause number in which it was issued. In Gollihar v. State, the Texas Court of Criminal Appeals overruled surplusage law and the Burrell exception (1) and reaffirmed the fatal variance doctrine. 46 S.W.3d 243, 256-57 (Tex. Crim. App. 2001). A variance between the wording of an information and the evidence presented at trial will be fatal only if: (1) the information fails to inform the defendant of the charge against him sufficiently to allow him to prepare an adequate defense; or (2) prosecution under the deficiently drafted information would subject the defendant to the risk of being prosecuted later for the same crime. 46 S.W.3d at 257; see also Sisk v. State, 74 S.W.3d 893, 897 (Tex. App.--Fort Worth 2002, no pet.). Although the State was required to prove the existence of a protective order, section 25.07 of the Texas Penal Code does not require the State to prove the number of the court that issued the protective order or the cause number in which the order was issued. See Tex. Pen. Code Ann. 25.07 (Vernon Supp. 2003); Lee v. State, 983 S.W.2d 77, 78 (Tex. App.--San Antonio 1998, no pet.). Moreno's testimony proved that he knew about the protective order that he was alleged to have violated. The failure to prove the court number and cause number is not a material or fatal variance. See Gollihar, 46 S.W.3d 256 n.21 (noting that if allegation is not essential to constitute offense and might be omitted from information, variance will rarely meet materiality test). Moreno's first issue is overruled.

2. In his second issue, Moreno contends that the evidence is factually insufficient to prove that he violated the protective order by communicating directly with Priscilla Garcia, the protected individual, in a threatening or harassing manner. In reviewing factual sufficiency, we look at all of the evidence in a neutral light, and will reverse only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Although we have some authority to disregard evidence that supports the verdict, we must be appropriately deferential so as to avoid substituting our own judgment for that of the fact finder and we must not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of witness testimony. Id.

Garcia testified that Moreno left an "ugly" message on her voice mail stating that he was going to hurt her like he had before and that she "was going to pay for whatever [she had] done to him and he was going to hurt [her] child. Both [her] children." Garcia testified that she contacted the police because she was afraid. Garcia testified that she played the message for the investigating officer, but the investigating officer could not recall hearing the message. The investigating officer's report was lost and had to be replaced. Moreno testified that he did not call Garcia. Two individuals that lived at the same address as Moreno also testified that Moreno had not called Garcia, but the two individuals also admitted that they were not present at the house all the time that Moreno was present.

The trial judge assessed the credibility of the witnesses and believed that Moreno left a voice mail message that threatened Garcia. See Patton v. State, 835 S.W.2d 684, 686 (Tex. App.--Dallas 1992, no pet.) (noting person threatens another when he declares intent to inflict injury or indicates probable evil to come). In addition, telephone contact is a sufficient direct communication for purposes of section 25.07. See Patton, 835 S.W.2d at 687 (holding evidence sufficient to prove violation of protective order based on threatening or harassing telephone calls); see also Lemaire v. State, No. 05-97-00290-CR, 1999 WL 57956, at *3-4 (Tex. App.--Dallas Feb. 9, 1999, pet. ref'd) (not designated for publication) (rejecting contention that jury should be charged that direct communication does not include telephone calls and messages). Moreno's second issue is overruled.

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. The Burrell exception provided that where an extra or unnecessary allegation is descriptive of that which is legally essential to charge a crime, the State must prove it as alleged though needlessly pled. Gollihar, 46 S.W.3d at 250 (attributing exception to Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975)).