Edward Dewayne Brockman v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00125-CR

EDWARD DEWANE BROCKMAN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 287th District Court of Walker County, Texas Trial Court No. 29,247, Honorable Hal R. Ridley, Presiding

October 14, 2020

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Edward Dewane Brockman appeals, through two issues, his conviction for

“improper contact with the victim while confined.” The first concerns the sufficiency of the

evidence supporting conviction while the second involves the trial court’s decision to

overrule his objection to admission of a protective order. We affirm.1

1 Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See Tex. R. App. P. 41.3. Issue One

Appellant contends that the State failed to prove he “directly contacted” the victim,

as alleged in the indictment. Instead, the evidence purportedly established that the

contact occurred indirectly. So, in his view, the evidence was insufficient to support his

conviction under a hypothetically correct jury charge. We overrule the issue.

The standard of review we apply here was explained in Braughton v. State, 569

S.W.3d 592, 607–08 (Tex. Crim. App. 2018). We apply it here.

Next, a person commits an offense if, “while confined in a correctional facility after

being charged with or convicted of an offense listed in Article 62.001(5), Code of Criminal

Procedure, contacts by letter, telephone, or any other means, either directly or through a

third party, a victim of the offense or a member of the victim’s family, if the director of the

correctional facility has not . . . received written and dated consent to the contact . . . and

. . . provided the person with a copy of the consent.” TEX. PENAL CODE ANN.

§ 38.111(a)(1), (2) (West Supp. 2020). As can be seen, the statute speaks of “contact”

either “directly or through a third party.” Here, the State alleged in its indictment that

appellant “intentionally and knowingly contact[ed] directly by telephone” K.C.

(Emphasis supplied). The meaning of the highlighted words from the basis of the

appellant’s complaint.

The record illustrates that appellant, while imprisoned, phoned his sister. The call

was being recorded, and during it, he told her to call K.C. That resulted in his sister

completing some type of three-way conversation wherein appellant could be heard

“directly talking” to K.C. While all were on the line, he asked K.C. about “where [her] mind

was” and if she had “a boyfriend.” So too did he say: “he loves me, why I don’t visit.”

2 Upon realizing that “the conversation was going to keep going,” K.C. “disconnected the

call.”

The penal statute in question speaks of “contact” “either directly or through a third

party.” TEX. PENAL CODE ANN. § 38.111(a). Yet, the legislature failed to define either

“contact” or “directly” in the provision. That is of no consequence since, under those

circumstances, we apply “the plain meaning of the text, unless the language is ambiguous

or the plain meaning leads to absurd results that the Legislature could not have possibly

intended.” Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim. App. 2014). Whether used

as a noun or verb, “contact” describes communication or communicating. In turn, the

word “direct,” when used as an adjective in reference to “contact” denotes a lack of circuity

or an intervening agency or party. Indeed, the legislature’s contrast of “direct” with

“through a third party” in the statute confirms what we perceive to be the plain meaning

of the word, that being the contact or communication must come from the accused

himself, not a third party. That is what occurred here.

Appellant undoubtedly had his sister arrange the medium of contact or

communication, i.e., the phone. Yet, the actual communication or words heard by K.C.

came from his mouth to her ear without interruption or reiteration by some third party. So,

his communication or contact with her was “direct,” as alleged in the indictment and

contemplated by the penal statute. Thus, we hold that the State did present sufficient

evidence, under the standard espoused in Braughton, to support appellant’s conviction.

3 Issue Two

In his second and final issue, appellant asserts that the trial court abused its

discretion in admitting into evidence a protective order. It purportedly was irrelevant. We

overrule the issue.

To preserve one’s complaint to the admission of evidence, the litigant must object

each time the evidence is mentioned. Davis v. State, No. 10-17-00393-CR, 2019 Tex.

App. LEXIS 8948, at *3–4 (Tex. App.—Waco Oct. 9, 2019, pet. ref’d) (mem. op., not

designated for publication); Lamper v. State, No. 07-18-00035-CR, 2018 Tex. App. LEXIS

6788, at *13 (Tex. App.—Amarillo Aug. 24, 2018, no pet.) (mem. op., not designated for

publication). The need to continuously object may be obviated by receiving a running

objection or requesting the court to consider and rule upon the objection outside the jury’s

presence. Lamper, 2018 Tex. App. LEXIS 6788, at *13.

The record, at bar, illustrates that appellant’s objection to the protective order was

originally sustained. However, the trial court eventually overruled it and admitted the

order into evidence. That led to the witness being questioned about it. Later, K.C. was

called to testify. She too was asked about the protective order. Neither the inquiries

propounded to her nor her answers to them were met by an objection from appellant. Nor

had appellant sought either a running objection or opportunity to address his complaints

about the protective order outside the jury’s presence when the trial court earlier decided

to admit it. Thus, the complaint urged on appeal was not preserved.

Having overruled each of appellant’s issues, the trial court’s judgment merits

affirmation. Before we do that, though, we modify it in one respect. Under the category

“Statute for Offense” appears reference to “§ 38.11” of the Texas Penal Code. However,

4 § 38.111 of the Penal Code was the statute under which the State prosecuted appellant

and a jury found him guilty. Consequently, we modify the judgment to reflect the true

“Statute of Offense” as § 38.111 and affirm it as modified. See Youngstrom v. State, No.

07-13-00385-CR, 2014 Tex. App. LEXIS 6215, at *8 (Tex. App.—Amarillo June 9, 2014,

pet. ref’d) (mem. op., not designated for publication) (stating that an appellate court has

the authority to modify the trial court’s judgment to make the record speak the truth when

it has the necessary information to do so).

Brian Quinn Chief Justice

Do not publish.