Torres v. State

JOHN DAVID TORRES, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-19-00209-CR

Court of Appeals of Texas, Eighth District, El Paso

August 4, 2021

Do Not Publish

Appeal from the County Criminal Court No. 4 of El Paso County, Texas (TC# 20180C01479)

Before Rodriguez, CJ, Palafox, and Alley, JJ

OPINION

GINA M. PALAFOX, Justice

A jury found John David Torres guilty of violating a protective order. The trial court assessed his punishment and sentenced him to 365 days in prison, probated for twenty-one months. Appellant challenges his conviction in four issues. We affirm.

BACKGROUND

John David Torres and Sophia Avila have known one another since 2000, beginning with a nine-year period where they worked together at FedEx from 2000 to 2009. In 2017, Avila applied for a temporary protective order against Torres after a series of events where Torres attempted to contact her and members of her family and otherwise harassed her and made her feel uncomfortable.^[1] After the temporary protective order was granted, Avila then applied for a more permanent protective order against Torres. That application was set for hearing on March 21, 2017, in the 65th District Court of El Paso County. The parties arrived for the hearing as scheduled but no hearing took place. Instead, Torres agreed to the terms of the protective order sought by Avila. The district court thus rendered an "Agreed Protective Order" (the Order) on that date.

Relevant to this case, the Order prohibited Torres from: (1) communicating directly with Avila, or a member of her family in a threatening or harassing manner; (2) going within 200 yards of Avila's residence or place of employment; and (3) engaging in conduct specifically directed toward Avila or a member of her family that was "reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass" the person. The Order stated that it was to be in effect for the duration of Avila's and Torres' lives. Torres was served with a copy of the Order in open court on the day it was signed, March 21, 2017, and the Order was signed by Torres (along with Torres' attorney, Avila, the trial court, and the Assistant County Attorney).

On November 3, 2017, Avila received a message through her personal Facebook account from an unknown individual purportedly named Harry Lopez. The message asked, "Would it be ok if Chino talks to you? He's a mutual friend." Avila testified that Torres used "Chino" as a nickname when they worked together and among their common friends. Later in November, Torres sent a direct message from his own Facebook account to Avila that stated:

You're right, don't know why I felt so compelled to protect you and care about you didn't know it was 10 yrs already and when i look back on everything I know about you I'll just consider it all a coincidence and if this is what you want from me[, ] you got it, I Love You[, ] Sophia Villanuvea [sic].^[2]

Torres then posted the following on his own public Facebook page on November 30, 2017: "Can we please talk . . . [.]" Finally, on December 15 Torres sent another message from his Facebook account to Avila's, asking "Can we talk..?"

Avila reported these communications to the El Paso Police Department. Officer Patrick Pacheco was assigned to the case. After reviewing screenshots of the messages sent to Avila along with the Facebook posts, Officer Pacheco called Torres who admitted he had sent the messages. By information, Torres was later charged with having violated a protective order issued on March 21, 2017.

Torres' trial commenced on July 22, 2019. The State presented the Order, testimony by Avila and Officer Pacheco, and screenshots of the above-mentioned communications and posts. The defense presented no case-in-chief. The jury found Torres guilty of the offense of violation of a protective order. Torres elected that the trial court assess punishment. The trial court assessed punishment at 365 days in the county jail, probated for a period of twenty-one months of community supervision. Torres filed a motion for new trial, which was overruled by operation of law, and this appeal followed.

ISSUES ON APPEAL

Torres raises four issues on appeal. First, he argues the evidence was legally insufficient for a rational juror to find that there was a valid protective order in place. Second, he argues the evidence was legally insufficient for a rational juror to find that he directly communicated with Avila. Third, he argues the evidence was legally insufficient for a rational juror to find that any communication were made in a threatening or harassing manner. Fourth, he argues the evidence was legally insufficient for a rational juror to find that any communication was intentionally or knowingly threatening or harassing.

We construe Torres' four issues as a legal sufficiency challenge to his conviction for violation of a protective order and address the issues as they arise within the framework of the elements that make up the offense.

DISCUSSION

A. Standard of Review

The Fourteenth Amendment's guarantee of due process requires that every criminal conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson analysis, a reviewing court must consider all evidence in the light most favorable to the verdict, and in doing so, must determine whether a rational justification exists for the jury's finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95 (citing Jackson, 443 U.S. at 319).

In considering the evidence, we keep in mind the trier of fact is the sole judge of the weight and credibility of the evidence, and we must presume that the fact finder resolved any conflicting inferences in favor of the verdict and defer to that resolution. See TEX. CODE CRIM. PROC. ANN. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). We are not permitted to reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We treat circumstantial evidence as being as probative as direct evidence. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).

"[S]ufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Therefore, our task is to determine whether, based on the evidence and reasonable inferences drawn therefrom, a rational juror could have found the essential elements of the charged offense beyond a reasonable doubt. Id.

B. Applicable Law

To support a conviction for violation of a protective order, the State must have proved that Torres (1) was in violation of a protective order issued under Chapter 7A of the Texas Code of Criminal Procedure; (2) intentionally or knowingly communicated directly; (3) with a protected individual; (4) in a threatening or harassing manner. See TEX. PENAL CODE ANN. § 25.07(a)(2)(A).

As to the first element, whether Torres was in violation of a protective order issued under Chapter 7A of the Texas Code of Criminal Procedure, a jury may consider the language of the protective order itself in determining who was subject to the order and under which statute the order was issued, among other things. See Villarreal v. State, 286 S.W.3d 321, 327-28 (Tex. Crim. App. 2009). As part of this element, the State was required to prove at trial that Torres was present at-or at least had notice of-the hearing where the Order was granted, and that he had knowledge of the Order's issuance at the time of the alleged violation. See Harvey v. State, 78 S.W.3d 368, 372-73 (Tex. Crim. App. 2002). The State was not required to prove, however, that Torres understood the Order's provisions. See id. at 373. We also note that Harvey does not stand for the proposition that the State was required to relitigate the substantive justification for the underlying protective order in its prosecution for a violation of that order. Id. The respondent's signature on a protective order is evidence that the respondent was present at the hearing, received a copy of the Order, and had knowledge of its issuance. See Dunn v. State, 497 S.W.3d 113, 115-16 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (citing Wiley v. State, 410 S.W.3d 313, 320 (Tex. Crim. App. 2013)).

Regarding the second element of the offense, whether Torres intentionally or knowingly communicated directly, a person acts intentionally when it is his conscious objective or desire to cause the result of his action. TEX. PENAL CODE ANN. § 6.03(a). A person acts knowingly when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). The word "communicate" is not defined in the Texas Penal Code. Words not specifically defined by the Legislature are to be understood according to their ordinary meaning and common usage. TEX. CODE CRIM. PROC. ANN. art. 3.01. "Communicate" is the verb form of the noun "communication," which is defined as the "interchange of messages or ideas by speech, writing, gestures, or conduct." BLACK'S LAW DICTIONARY (10th ed. 2014). As the State points out, other courts have adopted this meaning of the word within the context of section 25.07. See, e.g., Epps v. State, No. 06-18-00046-CR, 2019 WL 961510, at *2 (Tex. App.-Texarkana Feb. 28, 2019, no pet.) (mem. op., not designated for publication).

Torres does not challenge the third element, whether Avila was an individual protected by the Order. However, we note that courts have held that the presence of an individual's name on a protective order introduced at trial is sufficient...