DON KARL STUYVESANT v. THE STATE OF TEXAS--Appeal from County Court at Law No 4 of Nueces County

   NUMBER 13-05-664-CR

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  - EDINBURG

DON KARL STUYVESANT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law No. 4

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Garza

Appellant, Don Karl Stuyvesant, was charged with the offense of violation of a protective order. See Tex. Pen. Code Ann. ' 25.07(a)(2)(C) (Vernon Supp. 2005). Appellant pled not guilty to the offense. The trial court found appellant guilty of violating the protective order and assessed punishment at 180 days= confinement and a fine of $500. By one issue, appellant contends that the evidence was legally and factually insufficient to sustain his conviction. We affirm.

I. Facts

On March 7, 2005, the 148th District Court entered a protective order prohibiting appellant from communicating in any manner with complainant, Veronica Louise Frazier. The complainant alleges that appellant violated the terms of the protective order by placing collect telephone calls to her phone on July 1, 2005, and July 4, 2005. The complainant testified that, on these dates, she answered the phone herself and heard appellant=s recorded voice asking her to accept the collect calls and that she did not accept the calls. Photos of the complainant=s caller identification system were introduced into evidence. The photos show calls made on the dates in question that were alleged to have been placed by appellant while he was in jail. The trial court held that the phone calls were contacts in violation of the protective order and found appellant guilty of violating the order.

II. Relevant Law

A person commits the offense of violation of a protective order if, in violation of an order issued under Texas Family Code Chapter 85, the person knowingly or intentionally communicates in any manner with the protected individual except through the person's attorney or a person appointed by the court, if the order prohibits any communication with a protected individual. See id.

III. Legal Sufficiency

A. Standard of Review

When reviewing the legal sufficiency of evidence, we view the evidence 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). We are not fact-finders; our role is that of a due process safeguard, ensuring only the rationality of the trier of fact=s finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

B. Analysis

By his first issue, appellant contends the evidence is legally insufficient to prove that he Acommunicated@ with the complainant.@[1]

The term Acommunication@ has not been defined statutorily in reference to protective orders or violations thereof. Appellant provides a definition of Acommunication@ that assigns it the following meaning: the act of communicating or imparting; the imparting, conveying, or exchange of ideas, knowledge, information, etc., whether by interchange of speech, conversation, or conference; however, the cited authority for the definition is a dissenting opinion, and no Texas court has accepted that definition. See Ex parte Abell, 613 S.W.2d 255, 263 (Tex. 1981) (Spears, dissenting). Even assuming, without deciding, that appellant=s definition is appropriate, the evidence presented in this case is legally sufficient to support a finding that appellant communicated with complainant. Appellant placed two phone calls to the complainant, which complainant answered. Appellant=s recorded voice conveyed information to the complainant, specifically, that he wished the complainant would accept the call and speak directly with him. A rational trier of fact could have found beyond a reasonable doubt that this amounted to a communication in violation of the protective order. Thus, we hold the evidence is legally sufficient to support the conviction.[2]

IV. Factual Sufficiency

A. Standard of Review

In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether Athe proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder's verdict even if probative evidence exists that supports the verdict. See id. at 164; see also Johnson, 23 S.W.3d at 7.

B. Analysis

Appellant complains that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appellant offers no support for his factual insufficiency claim apart from that in his legal insufficiency claim.

After viewing the evidence discussed above in a neutral light, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury=s determination. In addition, the proof of guilt is not greatly outweighed by contrary proof. Therefore, we hold that the evidence is factually sufficient to support the jury's verdict.

Appellant=s sole issue is overruled.

We affirm the judgment of the trial court.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 29th day of June, 2006.

[1] Appellant points out that the judge characterized the phone calls as Acontacts@ and found appellant guilty of making Acontacts@ instead of Acommunications.@ He contends the trial court applied the wrong standard in determining guilt because the order prohibited Acommunication@ not Acontact.@ However, given our disposition of appellant=s first issue, that the voice message is a form of Acommunication@ in violation of the protective order, we need not address this contention.

[2] Although appellant has not argued specifically that a recorded voice message cannot be a communication sufficient to sustain a conviction for the violation of a protective order, we note that there have been unpublished cases finding that a voice message is sufficient to constitute such a communication. See Moreno v. State, No. 04-02-00727-CR, 2003 Tex. App. LEXIS 5998, at *4-5 (Tex. App.BSan Antonio 2003, no pet.) (not designated for publication); LeMaire v. State, 05-97-00290-CR, 1999 Tex. App. LEXIS 801 (Tex. App.BDallas 1999, pet. ref=d) (op. on reh=g) (not designated for publication).