ROJERIO GALLEGOS v. THE STATE OF TEXAS--Appeal from County Court at Law No 2 of Victoria County

NUMBER 13-01-634-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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  ROJERIO GALLEGOS, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. 2

of Victoria County, Texas.

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O P I N I O N

Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Rodriguez

On February 8, 2001, appellant, Rojerio Gallegos, was arrested for violating the terms of a protective order. After the State presented its case, Gallegos brought a motion for an instructed verdict. The trial court denied the motion, convicted Gallegos, and sentenced him to 180 days in the Victoria County Jail and assessed a $1,000.00 fine. By one point of error, Gallegos contends the trial court erred in denying his motion for an instructed verdict because the evidence is legally insufficient to establish he had proper notice the protective order existed. We affirm.

I. FACTS

On April 20, 2000, a trial judge issued a protective order barring Gallegos from visiting his daughter after making a finding that family violence had occurred and was likely to occur again. This protective order replaced a temporary ex parte order previously issued by the judge. The order was issued by default. However, Gallegos arrived at the court house shortly after the hearing and the assistant district attorney handling the case told Gallegos a final protective order had been issued and that it read in the same manner as the temporary ex parte order.[1] The assistant district attorney also told Gallegos that he would receive a copy of the final protective order.

The protective order was subsequently sent by first class mail to the address shown on the application for protective order. The protective order stated it would be Apersonally served upon respondent by placing a copy of the order in a wrapper properly addressed to Darren Tom in the same manner perscribed [sic] in the Texas Code of Civil Procedure 21(a).@ The name Darren Tom, instead of Rojerio Gallegos, appeared in the section of the order stipulating the requirements of service. The State conceded at trial the name Darren Tom was included in the order by accident.

On February 8, 2001, Gallegos was arrested after officers found him at the same residence as his daughter. Gallegos was charged with Aintentionally and knowingly@ violating the terms of the protective order.

II. LEGAL SUFFICIENCY

A. Standard of Review

By one point of error, Gallegos challenges the legal sufficiency of the evidence

put forth by the State. When reviewing the legal sufficiency of evidence, the evidence is viewed in a light most favorable to the verdict in order to determine whether any rational fact-finder could have found the essential elements of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000).

B. Analysis

Gallegos argues the evidence was legally insufficient to show he knowingly and intentionally violated the protective order because there is no evidence he had notice of the order.[2] Gallegos relies on Small v. State, 809 S.W.2d 253 (Tex. App.BSan Antonio 1991, pet. ref=d). However, this case is distinguishable. In Small, the defendant appealed his conviction alleging the State presented no evidence showing he actually knew of the court order, therefore, the defendant argued he could not violate an order of which he had no knowledge. Id. at 254. The court held the State must prove, beyond a reasonable doubt, the defendant knowingly and intentionally violated the protective order. Id. at 256. The court made clear that aside from the fact the defendant was served with notice of a hearing on the protective order, there was no evidence the defendant agreed to the order, attended the hearing regarding the order, was ever served with a copy of the order, or that he Ain any way received notice, formal or informal, of the issuance or existence of the court order@ before he violated it. Id. at 256 (emphasis added).

In this case, the record shows Gallegos received informal notice that the protective order was issued. First, Gallegos received notice of an application for a protective order which clearly stated that if Gallegos did not attend the hearing, a default judgment could result in a protective order being issued against him. In Ramos v. State, 923 S.W.2d 196 (Tex. App.BAustin 1996, no pet.), the court held that notice of application for protective order was sufficient to show that the defendant knew of the protective order because it contained a warning that a protective order could issue if he failed to attend the hearing. Id. at 197-99. Second, Gallegos was informed by the assistant district attorney, after he failed to appear at the hearing, that a protective order had been issued against him which read in the same manner as the temporary ex parte order which had previously been served to Gallegos.[3] The record shows the temporary ex parte order prohibited the same actions against the same people as the final protective order. Third, the protective order itself supports the assertion by the State that the accidental inclusion of the name ADarren Tom@ in the service portion of the order would not affect Gallegos=s knowledge that the order pertained to him and not someone else; the first page of the protective order clearly lists Gallegos as the party against whom the order was issued.

Finally, Gallegos=s argument that he could not violate the order because it was improperly served is without merit. Rule 21(a) of the Texas Rules of Civil Procedure lists the means by which service can be rendered. SeeTex. R. Civ. P. 21(a). This rule also allows a court to use its discretion to render service by means other than the ones listed. Id. In this case, the court used its discretionary power and properly sent the protective order to Gallegos via first class mail. Further, even if the order was not served properly, Gallegos would still be deemed to have notice because he was aware the protective order existed. See Small, 809 S.W.2d at 256-57 (emphasis added).

Based on the evidence in the record, a rational trier of fact could have found beyond a reasonable doubt that Gallegos knowingly and intentionally violated the protective order because he was aware of the order=s existence at the time of the violation. See Young, 14 S.W.3d at 753. Therefore, we hold the evidence is legally sufficient to support the conviction. Gallegos=s sole point of error is overruled.

Accordingly, we affirm the trial court=s judgment.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.3.

Opinion delivered and filed

this 3rd day of July, 2002.

[1]According to the record, Gallegos was served by citation with copies of the application for protective order and the temporary ex parte protective order. Although, the assistant district attorney did not give Gallegos the specific details of the final protective order, the record shows that the temporary and final orders prohibited the same actions against the same people by Gallegos.

[2]The Texas Penal Code provides that a person commits an offense if he Aknowingly and intentionally@ violates a protective order issued under chapter 85 of the Family Code. See Tex. Pen. Code Ann. ' 25.07(a) (Vernon Supp. 2002).

[3]Gallegos does not contest the existence of the temporary ex parte order or the method of service used to deliver a copy of the order to him.