MICHAEL GREGORY GAW, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed December 17, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00463-CR
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MICHAEL GREGORY GAW, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Collin County, Texas
Trial Court Cause No. 002-81574-07
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OPINION
Before Justices O'Neill, Francis, and Fillmore
Opinion By Justice Fillmore
        Michael Gregory Gaw was convicted of violating a protective order and was sentenced to one year in the county jail and a $4,000 fine. In three issues, he claims the trial court abused its discretion by overruling his challenges for cause and request for additional peremptory challenges, and the evidence was legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
        Kathey Gaw (Gaw) is the mother of Michael Gaw, appellant. She testified that appellant moved out of her house when he was “around 22 or 23” years old but returned to live with her periodically until he was approximately forty years old. Gaw said that living with appellant, who had “some mental issues” but refused medical treatment, “wasn't very pleasant” and that his behavior could be both threatening and destructive. She indicated that appellant made “a lot” of verbal threats, and that many of those threats were “serious.” Gaw eventually felt so threatened by appellant that she would only speak to him through a locked patio door because she did not want him to be close enough to hurt her. After one such incident, Gaw told appellant “[f]ace to face” that “he could not live with [her] any more, period.” Appellant then started calling Gaw's place of employment and mobile telephone number “24-seven” and leaving threatening messages. In an effort to end the harassment, Gaw brought appellant food each day at the hotel where he was staying and gave him money, but he continued calling her telephone number and leaving “frightening” messages. When appellant left a threatening message on Gaw's telephone indicating he was going to hurt her, she decided to seek legal protection in the form of a protective order.
        On April 11, 2006, a Collin County District Court issued a protective order against appellant that was effective until April 11, 2008. The order states that appellant, “although duly and properly cited, did not appear . . . ,” and 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.” The order specifically prohibited appellant from (1) “committing family violence as defined by section 71.004 of the Texas Family Code;” (2) “communicating directly with” Gaw “in a threatening or harassing manner;” (3) communicating a threat to her “through any person;” (4) “engaging in conduct directed specifically toward” Gaw, including following her, and conduct that was “reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” her; (5) going within 200 yards of Gaw; and (6) “going to or near” her residences or places of employment or business. The protective order also prohibited appellant “from going to or near 1109 Mill Valley Dr., Plano, TX 75075,” which was Gaw's residence, and specifically required appellant to stay “at least 200 yards from” that address.   See Footnote 1 
        Gaw testified that appellant was served with a copy of the protective order. According to her testimony, she met the process server at a restaurant and they drove to the hotel where appellant was staying. Gaw saw the process server walk up to appellant, hand him a copy of the protective order, and heard him explain to appellant that he was “not supposed to come near me, call me, stay away from me, the whole 9 yards.” Gaw was standing by the process server's side and heard appellant say to the server, “Yes, sir.” That night, appellant violated the protective order by telephoning Gaw “several times.”
        Appellant continued to come to his mother's house. Gaw recalled one occasion where appellant came to her house and she held “the paperwork” before the glass on her French doors, warning appellant that she would call the police if he did not leave. But appellant “kept coming and coming and coming until finally [Gaw] called the Plano police.” Prior to his arrest in the instant case, appellant was twice arrested for violating the protective order: the first arrest was for being on Gaw's porch on June 11, 2006, and the second arrest occurred after appellant was found in Gaw's garage on September 11, 2006. In both instances, appellant pleaded guilty to violating the protective order and received sentences of thirty and twelve days in jail, respectively.
        In February 2007, a few days before the present offense, Gaw called the police and reported that appellant had been in her garage. She testified that she suspected appellant had been in her garage because a door that was normally left open was closed. A few days later, on February 21, 2007, Gaw received a telephone call from an officer at the Plano police department who wanted “to know where [Gaw's] son was.” When Gaw told the officer that she suspected appellant was “probably” in her garage, the officer replied, “[O]kay, we're coming over.”         Plano police officers Michael Schoonover and Mike Donahoo were dispatched to Gaw's home to investigate the suspected violation of the protective order. After the officers verified that a protective order was still in effect, the officers walked around to the back of Gaw's house, where her garage was located. Gaw gave them permission to raise the garage door. Inside the garage, the officers found appellant standing on a mattress. He claimed he had his mother's permission to be there, but Gaw told the officers that appellant did not have her permission to stay in her garage.
        Appellant was charged with violating the April 11, 2006 protective order, a class A misdemeanor. See Tex. Penal Code Ann. § 25.07 (Vernon 2003). The information alleged that he intentionally and knowingly violated the protective order that was issued “under authority of Section 6.504 and Chapter 85 of the Family Code of Texas” by intentionally going to and near the residence described in the protective order. Before the jury, the trial court took judicial notice of section 6.504 and chapter 85 of the Texas Family Code. Appellant admitted on cross-examination that he knew his mother had obtained a protective order against him on April 11, 2006, but he thought the protective order was effective for only one year. Appellant agreed that each of his arrests for previous violations of the protective order, as well as his arrest on February 21, 2007, had occurred within the one year period that he thought the protective order was in effect.        
        The jury convicted appellant of violating a protective order and set punishment at one year in the county jail and a $4,000 fine. See id. § 12.21.
 
Discussion
 
Jury Selection
        Appellant's first issue claims the trial court abused its discretion by overruling his challenges for cause and his request for additional peremptory challenges.
         Background
        During voir dire, defense counsel asked the venire panel the following hypothetical question:
 
        . . . You're sitting on a jury, already found the defendant guilty, no doubt in your mind, proven by the state beyond a reasonable doubt, guilty. You know the range of punishment is--and I'm going to pick a range that's not applicable to this case--zero to five years of incarceration, or and--or, and/or zero to $5,000 fine. You heard the court say earlier today that you couldn't give zero, zero. So I'm going to tell you in your hypothetical that the minimum you can give the defendant is a $1 fine.
        You know the defendant is the worst character on the face of the earth. You heard the trial, you heard the evidence. Are you willing to consider a 1 dollar fine? 'Yes' or 'No.'
 
        Venire members Vanderloo, Sprowl, and Mashewske stated that they could not consider the minimum punishment. Venire member McManus said, “I don't think I would consider that. Maybe sometime.” Defense counsel then rephrased his hypothetical question: “My hypothetical could be any case but what I'm asking is, could you consider the minimum punishment if the defendant was a really bad person?” He also told the prospective jurors, “Take your worst nightmare. That was the evidence.”
        At the conclusion of the voir dire, the defense challenged jurors 6, 7, 8, and 9 for cause   See Footnote 2  on the basis that they could not consider the full range of punishment. The State argued that counsel's question was improper since a juror who has already heard that the defendant is “the worst guy in the world” no longer has to fairly consider the minimum sentence. The trial court denied appellant's challenges for cause.   See Footnote 3  Defense counsel then exercised his three allotted peremptory strikes   See Footnote 4  against jurors three, six, and seven. Juror eight was seated on the jury, and juror nine was struck by the State. Before the conclusion of the voir dire, appellant asked for an additional peremptory strike to remove juror eight, Maschewske, because he believed the trial court had erroneously denied his challenges for cause. The trial court denied the request.
         Standard of Review
        The trial court's denial of appellant's challenges of prospective jurors for cause is reviewed for abuse of discretion considering all the venirepersons' responses on voir dire. Swearingen v. State, 101 S.W.3d 89, 98-99 (Tex. Crim. App. 2003).
         Applicable Law
        Qualified prospective jurors must be willing to consider the full range of punishment applicable to an offense submitted for their consideration. Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998); Banda v. State, 890 S.W.2d 42, 55 (Tex. Crim. App. 1994). Questions that require a commitment from prospective jurors that they are able to consider the full range of punishment are proper questions. Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). The inability to consider the full range of punishment constitutes a bias or prejudice against the law and renders a prospective juror challengeable for cause. Von Byrd v. State, 569 S.W.2d 883, 891 (Tex. Crim. App. 1978); Mason v. State, 116 S.W.3d 248, 255 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). However, prospective jurors are not challengeable for cause merely because they will use the facts to determine punishment. Sadler, 977 S.W.2d at 143. “In designating a range of punishment instead of a fixed punishment, the legislature made it the jury's job to assess the specific facts and circumstances of each case and determine where on the punishment scale the specific criminal act fits.” Id. at 142. “In this way, the law requires the jury to tailor the punishment to fit the crime, as committed by the defendant.” Id.          Analysis
        In this case, the challenged potential jurors could not be removed for cause merely because they stated that, in a hypothetical case, they could not consider the minimum punishment if the evidence showed the defendant was the “worst character on the face of the Earth.” The law requires the jury to tailor the punishment to fit the crime, and the fact that prospective jurors indicated that they could not assess the minimum punishment after learning of particular facts does not disqualify those individuals or make them eligible for challenges based on cause. See Standefer, 59 S.W.3d at 183 n.28; Sadler, 977 S.W.2d at 142-43. Moreover, the potential jurors in this case never indicated that they could not fully and fairly consider the minimum punishment in a case where they believed the facts justified it. Thus, the trial court did not abuse its discretion by denying appellant's challenges for cause or by denying his request for additional peremptory challenges. We overrule appellant's first issue.
Legal Sufficiency
        Appellant's second issue claims the evidence is legally insufficient to support a conviction under section 25.07 of the Texas Penal Code. He argues the protective order “does not state that it is being issued under Chapter 85 of the Texas Family Code,” and also argues there is no evidence in the record establishing that the protective order “was issued pursuant to Chapter 85 of the Texas Family Code.”
         Standard of Review
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and 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); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004).         
        The jury is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. The jury is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for the jury's. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). 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). We presume that the jury resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
        Our analysis of whether the evidence is legally and factually sufficient is measured against the elements of the offense as defined in a hypothetically correct jury charge for the case. See Grotti v. State, 273 S.W.3d 273, 280-81 (Tex. Crim. App. 2008); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240. Malik controls “even in the absence of alleged jury charge error.” Gollihar v. State, 46 S.W.3d 243, 255 (Tex. Crim. App. 2001).        
         Analysis
        The information against appellant alleged that the protective order was issued “under the authority of Section 6.504 and Chapter 85 of the Family Code.” Section 6.504 of the family code governs the issuance of protective orders in divorce cases. See Tex. Fam. Code Ann. § 6.504 (Vernon 2006). Thus, as authorized by the information, the required elements for violation of a protective order under section 25.07 of the Texas Penal Code are (1) a person (2) in violation of a protective order issued under section 6.504 or chapter 85 of the family code, (3) knowingly or intentionally (4) went to or near a place that was specifically described in the protective order, including the residence of a protected individual. See Tex. Penal Code Ann. § 25.07(a)(3)(A) (Vernon 2003).
        Appellant does not dispute that, on February 21, 2007, he was found in the garage of his mother's residence at “1109 Mill Valley Dr., Plano, TX 75075,” which was the address specified in the April 2006 protective order. He argues, however, that the protective order “does not state that it is being issued under Chapter 85 of the Texas Family Code” and there is no evidence in the record establishing the protective order “was issued pursuant to Chapter 85 of the Texas Family Code.”
        In this case, after the State read the provisions of the protective order to the jury, the trial court, also before the jury, took judicial notice of section 6.504 and chapter 85 of the family code, stating, “Chapter 85 is too voluminous for me to read to you, and I choose instead to take judicial notice of it by presenting you with the actual law itself as an exhibit, and that is going to be forthcoming. I will also address that again in the instructions at the end of trial.” The trial court attached a photocopy of chapter 85 to the jury charge.
        Although there is no direct testimony that the April 2006 protective order was issued under the authority of chapter 85 of the family code, the protective order itself, which was admitted into evidence, specifically stated that family violence had occurred and is likely to occur in the future, as required by section 85.001(a). See Tex. Fam. Code Ann. § 85.001(a) (Vernon 2008); see also Gardner v. State, No. 05-05-00750-CR, 2006 WL 1413098, at *2 (Tex. App.-Dallas May 24, 2006, no pet.) (not designated for publication). It also stated that appellant has been “duly and properly cited,” and that he did not appear. See Tex. Fam. Code Ann. § 85.006(a) (Vernon 2008). It ordered appellant to begin counseling, after finding the protective order was necessary for the prevention of family violence. See id. § 85.022(a). The order prohibited appellant from committing family violence, communicating directly with Gaw in a threatening or harassing manner, communicating a threat through any person to Gaw, going to or near her residence or place of employment, and possessing a firearm or ammunition. See id. § 85.022(b). It required appellant to file an affidavit regarding compliance with the trial court's counseling directive within the time limits specified in section 85.024. See id. § 85.024. It was effective for two years. See id. § 85.025(a). The order included the warnings required by section 85.026. See id. § 85.026. It also required that a copy of the order be delivered to the sheriff and the “appropriate constable” of Collin County, in accordance with section 85.042. See id. § 85.042.
        The trial judge in this case, at the request of the State, took judicial notice of chapter 85 of the family code. In addition, the trial judge incorporated a photocopy of the full text of chapter 85 into the court's jury charge. A hypothetically correct jury charge would have instructed the jury on only those provisions of chapter 85 that were applicable to this case, rather than incorporating the entirety of the chapter containing various provisions that are inapplicable to this case. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007) (trial court's charge to the jury must set forth the “law applicable to the case”); Gray v. State, 152 S.W.3d 125, 127-28 (Tex. Crim. App. 2004) (trial court required to fully instruct jury on law applicable to the case and apply that law to facts presented). Applying a hypothetically correct jury charge that instructed the jury according to the applicable provisions of chapter 85 as noted above, we conclude that a comparison of the protective order to the applicable provisions of chapter 85 supports the jury's finding beyond a reasonable doubt that the protective order was issued under the authority of chapter 85.
        Appellant also claims the evidence is legally insufficient to show that he “was properly served and given notice of the protective order,” as required by chapter 85. Chapter 85 of the family code permits issuance of a protective order only after service upon a 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. § 85.006(a) (Vernon 2008) (protective order binding on respondent who did not appear at hearing if he received service of application and notice of the hearing). The April 2006 protective order was issued by the 296th Judicial District Court, a court of general jurisdiction, and is regular on its face. It recited that appellant, “although duly and properly cited, did not appear and wholly made default.” It also recited that “all necessary prerequisites of the law have been satisfied and that this Court has jurisdiction over the parties and the subject matter of this cause.” The recitals in the order that appellant was duly and properly cited and failed to appear, and that the court had jurisdiction over the parties, is evidence the protective order was valid and issued after notice and hearing as required by the family code. See 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); see also Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g) (recitations in records of trial court are binding in the absence of direct proof of their falsity).
        In addition, Gaw testified that she was present when the process server served appellant with a copy of the protective order, and she heard the process server explain to appellant that he was “not supposed to come near me, call me, stay away from me, the whole 9 yards.” We also note that appellant never contested that he was served with notice of the application and hearing, and there is no contrary proof in the record. Accordingly, a rational trier of fact could have found beyond a reasonable doubt that appellant received service of the application for a protective order and notice of the hearing, and that, as a result, the protective order was properly issued under chapter 85 of the family code.
        Furthermore, appellant had knowledge of the protective order before he went to his mother's home on February 21, 2007. Appellant admitted on cross-examination that he knew there was a protective order in place on February 21, 2007, when he was found inside his mother's garage. In addition, appellant twice pleaded guilty to violating the protective order before he was arrested on February 21, 2007. Appellant incorrectly claims there is no evidence that these prior convictions involved the same protective order that he was accused of violating in this case. Both of the prior convictions were heard by the same judge in the same court as the present case. The prior convictions also related to the identical provision of the protective order that appellant was accused of violating in the instant case, i.e., he intentionally went “to and near” Gaw's residence. Moreover, Gaw testified that the prior convictions and the instant offense involved the same protective order. When, as in this case, a defendant has been convicted previously of violating the same protective order, it is evidence the defendant was aware of the protective order and its provisions. See Ramos v. State, 923 S.W.2d 196, 198-99 (Tex. App.-Austin 1996, no pet.); see also Harvey, 78 S.W.3d at 373 (statute does not require proof that the defendant actually knew the provisions of the protective order, but defendant must have had “some knowledge of the protective order”). Thus, we conclude that a rational trier of fact could have found beyond a reasonable doubt that a valid protective order existed and that appellant had knowledge of or was aware of the order before going to Gaw's home on February 21, 2007. See Ramos, 923 S.W.2d at 198-99; see also Harvey, 78 S.W.3d at 373.
        Having reviewed all the evidence under the appropriate standard of review, and deferring to the jury's determination of the credibility of the evidence, we conclude the evidence is legally sufficient to support appellant's conviction. We overrule appellant's second issue.
Factual Sufficiency
        Appellant's third issue contends that the evidence is factually insufficient to support the conviction.
         Standard of Review
        In a factual sufficiency review, we consider whether, after viewing the evidence in a neutral light, a rational trier of fact was justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). We “must be cognizant of the fact that a jury has already passed on the facts and must give due deference to the determinations of the jury.” Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). “A verdict should be set aside only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust.” Id. at 705. Consequently, we will not reverse a judgment on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417.
        In determining whether the evidence is factually insufficient to support a conviction that is supported by legally sufficient evidence, it is not enough for us to “harbor a subjective level of reasonable doubt to overturn [the] conviction.” Id. We cannot conclude a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the jury's. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless we conclude it is necessary to correct a manifest injustice, we must give due deference to the jury's determinations, “particularly those determinations concerning the weight and credibility of the evidence.” Johnson, 23 S.W.3d at 9. Our deference in this regard safeguards the defendant's right to a trial by jury. Lancon, 253 S.W.3d at 704.
         Analysis
        The jury weighed the credibility of the witnesses and we are not at liberty to substitute our judgment for the jury's. See Johnson, 23 S.W.3d at 12; Cain, 958 S.W.2d at 407. As noted previously, the jury had sufficient evidence from which it could conclude beyond a reasonable doubt that (1) a valid protective order was issued under the authority of chapter 85 of the family code; and (2) appellant had knowledge of or was aware of the order before he went to Gaw's home on February 21, 2007. We believe that, viewing all the evidence in a neutral light, the evidence supporting the conviction is not so weak that the jury's determination is clearly wrong and manifestly unjust, nor does the conflicting evidence so greatly outweigh the evidence supporting the conviction that the jury's determination is manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414-15, 417. Accordingly, the evidence was factually sufficient to support appellant's conviction. We overrule appellant's third issue.
         We affirm the trial court's judgment.
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080463F.U05
 
Footnote 1 A certified copy of the protective order was introduced into evidence as State's Exhibit No. 1.
Footnote 2 The voir dire record is not entirely clear as to which particular juror statements were being challenged for cause. The responses of the potential jurors to defense counsel's hypothetical question are identified in the reporter's record according to their names, but, with the exception of juror eight, Maschewske, defense counsel based his challenges for cause on the potential jurors' numbers, not their names. Furthermore, the parties' strike lists are not part of the record on appeal. At the motion for new trial hearing, appellant identified jurors Sprowl, Mashewske, and McManus as three of the jurors he was complaining about. Based on the record, Vanderloo appears to be the other juror challenged for cause.
Footnote 3 Appellant also challenged juror 17 for cause, but this juror was outside the strike range and therefore not within the pool of potential jurors.
Footnote 4 See Tex. Code Crim. Proc. Ann. art. 35.15(c) (Vernon 2005) (providing for three peremptory strikes for misdemeanor cases tried in the county courts at law).