Wiegand, Eric Gerard v. The State of Texas--Appeal from County Criminal Court No. 10 of Dallas County (memorandum opinion )

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AFFIRM; Opinion issued January 18, 2013. In The QtÃ¸atrt of i:piztk; fi1t1i JhIrirt of zu tt Oi1twi No. 05-1 14)0823-CR ERIC GERARD WIEGAND, Appellant V. TilE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court No, 10 Dallas County, Texas Trial Court Cause No. MA1O-16264 MEMORANDUM OPINION Before Justices Francis, Murphy, and Evans Opinion By Justice Murphy A jury found Eric Gerard Wiegand guilty of violating a protective order, and the trial court assessed punishment at 365 days confinement, probated for twenty-four months. and a fine of $2300. TEx. PENAL CO[)E ANN. § 25.07 (West 201 1). Appellant claims in a single issue that the evidence is legally insufficient to support his conviction because he was not properly served notice of the protective order and did not knowingly or intentionally violate the terms and conditions of the order. We affirm. The Honorable Joseph Moms. Retired Justice, was a member 0! the panel at the time this case was submitted for decision. Due to his retirement from this Court on December 3 2012, he did not participate in deciding the case. He was replaced on the panel by Justice David Ovans. See TEx. R APP. P. 41.1(a). Background ;\ppel laiit s wile requested and received a protective oider against appellant part 01 their divorce proceedings. Fhe protective order prohibited appellant from communicating with his older son. J.W.. hut did not prevent appellant from visiting or communicating with his younger son. Z.W., or daughter. V.W, The order required appellant to maintain a distance ol 500 leet trom the house in which the children and their mother resided except for times when appellant was picking up or dropping off LW. or . Specifically, the protective order contained the lollowing language: [Appellant j Prohibited from going to or near the residence and or school of J .W. ( which he normally attends. Specifically, I appellant (. is prohibited from going to or near (the residence( and the school which (J.W. I attends and to specifically require (appellant( to inaintam a distance of at least 50() feet from these locations, except when I appellant I picks up and returns the two minor children. I Z.W. I and I V.W.} for his periods of possession. At those times, only [appellant I may come to the residence. but is ORDERED to remain in his automobile for the deliver (sic I and pick up I of! the other children. . . . . , On July 26, 2010, appellant arrived at the residence to pick up Z.W. and take him to football camp. V.W., who was eight years 01(1 at the time, was to stay home alone for approximately ten to fifteen minutes until her mother arrived home from work. J .W. was dulTenhly out-of state. Although Z.W. s and appellant s versions of the events differed somewhat at trial, it was undisputed that appellant came to the door of the house, entered the house, and searched through various pails of the house (including the main bedroom, closets, and the attic). Z.W. and V.W. told appellant that he was not allowed in the house and he should leave. Z.W. called his mother, who in turn called the police and rushed home from work. When she arrived, the police were already at the house talking to appellant. Appellant was charged with violation of the protective order. Specifically, the information charged appellant with intentionally and knowingly going to and near J.W. s residence in violation of a protective order issued under authority of Section 6.504 and Chapter 85 of the Family ( ode and Article I 7.292 ol the Code of Criminal Procedure. Appellant asserted at trial that he was aware ot the protective order and that he had been read verhiaee over the phone 1w his civil attorney that jhe vas supposed to stay away f roin Ii.W. I. 500 led from his school, 500 feet of his residence. 1-ic claimed that althomth he was aware of the protective order and had been provided informat ion regarding it by phone. the first time he read the order was when a police officer showed it to him after he had entered the home. Appellant also testified that had he read the protective order prior to the incident, he would not have entered the home. 1)iscussion Appellant argues on appeal that the evidence at trial was legally insufficient to support the culpable mental state necessary for his conviction. In a legal sufficiency review, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson r. VirÃ§inia. 443 U.S. 307. 319 (1979); Brooks i . State, 323 S.W.3d 893, 894 95 (Tex. Crim. App. 2010). We (Icier to the jury s credibility and weight determinations, because the jury is the sole judge of the witnesses credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 319. Appellant was charged with violating a protective order under section 25.07 of the penal code. Under this section, a person commits an offense, in relevant part, if the person knowingly or intentionally . . . goes to or near the residence of a person protected by an order issued under article 17.292 of the code of criminal procedure or chapter 85 of the family code. TEx. PENAL CoDL ANN. § 25.07(a)(3). Appellant and the State disagree regarding the mental state necessary to find a violation of a protective order under this section. Appellant argues the State must prove he knew that by entering the house while IJ.W.I was not present. lie was violating the terms of the protective order. The State argues the evidence must show merely that the defendant had some knowledge of the order and was given the resources to learn the provisions of the order. The Texas Court of Criminal Appeals previously addressed this issue in Harvey ic State. 78 S.W.3d 368 (Tex. Crim. App. 2002). In Han ey, the defendant was charged with violating a protective order under section 25.07 of the penal code, the same section applicable here. He complained that the jury charge was defective because it did not require the jury to find that he committed assault knowing it would or intending to violate the protective order. Id. at 369. He also argued that the order did not require the juty to find that he knew the order existed, was aware of its terms, or knew that the order prohibited assault. liL The court of criminal appeals read section 25.07 to prescribe a culpable mental state for the element in violation of an order because the meaning of that term necessarily includes certain knowledge that amounts to a mental state. Itt at 371. But the court did not agree that intentionally and knowingly were the correct mental states. Instead, it concluded the relevant statutes under which a protective order could be prosecuted under section 25.07 all contained procedures to insure that the person to whom the protective order applies has knowledge of the order, or at the very least such knowledge of the application for a protective order that he would be reckless to proceed without knowing the terms of the order. Id. at 371. As a result a person charged with violating section 25.07 would know the terms ofthe order or would know that he was subject to the issuance of such an order. Id. at 373. The court concluded it is not necessary that the person charged knew its provisions. itt at 373. Instead: (tihe requirements are only that the respondent be given the resources to learn the provisions; that is, that he be given a copy of the order, or notice that an order has beenappliedforandthatahearingwillbeheldtodecidewhetheritwillbeissued. -4- lhe order is nonetheless binding on the respondent who chooses not to read the order, or who chooses not to read the notice and the application and not to attend the [icarin. (I. I3ased on this precedent, the State was not required to show appellant knew the specific terms of the protectic order in order to he bound: accordingly. it did not have to show appellant knew he was violating, those terms. All the State had to show was that appellant was given the resources to learn the order s provisions. Appellant admitted his attorney was present at the hearings on the application and signed the final order. Appellant also admitted he was aware of the protecti c order and had it read to Ihim I over the phone by I his civil attorney. Finally, part of appellant s argument regarding lack of knowledge of the protective order is the alleged failure of the State to prove appellant was served with the protective order as required by family code section 85.041(a). That section provides for delivery of a protective order by three methods, including delivery pursuant to rule 21a of the rules of civil procedure. See TEx, F\MILY CODE ANN. § X5.041(a)( 1) (West 2008). Rule 21a provides for service, among other methods, by delivery to a party s attorney. See TEx. R. Civ. P. 21a. Appellant s attorney signed the order, evidencing deli very. Viewing the evidence in the light most favorable to the verdict and deferring to the jury s determination of the credibility of the evidence, we conclude the evidence is legally sufficient to show appellant s knowledge of the protective order. 5-- We overrule appellant s single issue and affirm the trial couzt s judgment JUSTICE Do Not Publish TEX. R. APP. P.47 1 10824F.U05 -6- (!LuIrt uf Ttir:a1i !Fiftl! 3iitrirt uf Irxai at Ja1kui JUDGMENT ERIC GERARD WIEGAND, Appellant No. 05-I 1-0024-CR V. TIlE STATE OF TEXAS, Appellee Appeal from the County Criminal Court No. 10 of Dallas County. Texas. (Tr.Ct.No. MA 10-16264). Opinion delivered by Justice Murphy, Justices Francis and Evans participating. Based on the Court s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered January 18. 2013. 1 i MARY M(J P1iY 3 JUSTICE I / J

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