Patton v. State

835 S.W.2d 684, 1992 Tex. App. LEXIS 2114, 1992 WL 134697
CourtCourt of Appeals of Texas
DecidedJune 11, 1992
DocketNos. 05-91-00751 to 05-91-00753-CR
StatusPublished
Cited by12 cases

This text of 835 S.W.2d 684 (Patton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patton v. State, 835 S.W.2d 684, 1992 Tex. App. LEXIS 2114, 1992 WL 134697 (Tex. Ct. App. 1992).

Opinion

OPINION

THOMAS, Justice.

Robert Patton (Husband) appeals three misdemeanor convictions for violation of a protective order. In a bench trial, the court found Husband guilty and assessed punishment for each conviction at 365 days’ confinement, probated for two years, and a $300 fine. In three points of error, Husband asserts that: (1) the evidence is insufficient to support his convictions in cause numbers MA91-43673-F and MA91-39498-F; (2) the protective order is invalid because it failed to specifically describe Vicki Patton’s (Wife) place of employment; and (3) there is a fatal variance between the informations and proof.1 We overrule all points of error. Accordingly, we affirm the trial court’s judgments.

FACTUAL BACKGROUND

Husband and Wife were married for twelve years. After they separated, Wife filed an application for protective order against Husband. Husband obtained a continuance and sought a protective order against Wife. On September 20, 1990, the family district court entered an agreed protective order restraining both Husband and Wife from committing certain acts for one year.

Wife testified that Husband “repeatedly” violated the protective order. Husband eventually was charged with four violations of the protective order by making threatening or harassing telephone calls to Wife at her place of employment and by going within 500 feet of her place of employment. The court found the evidence insufficient to support one of the charges and found Husband guilty of the other three charges.

SUFFICIENCY OF THE EVIDENCE [1,2] Husband complains that the evidence is insufficient to support his convictions in cause numbers MA91-43673-F and MA91-39498-F. In reviewing the sufficiency of the evidence, this Court views the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App.), cert, denied, — U.S. -, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991). Questions concerning the credibility of the witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert, denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985).

Husband was charged by informations with violations of a protective order. Tex.Penal Code Ann. § 25.08(a) (Vernon Supp.1992). Section 25.08 of the Texas Penal Code provides in pertinent part:

(a) A person commits an offense if, in violation of an order issued under Section 3.581, Section 71.11, or Section 71.12, Family Code, the person knowingly or intentionally:
* * * * * *
(2) directly communicates with a member of the family or household in a threatening or harassing manner ...
(3) goes to or near any of the following places as specifically described in the protective order:
[686]*686(A) The residence or place of employment or business of a member of the family or household[.]

Tex.Penal Code Ann. § 25.08(a)(2) & (3)(A) (Vernon Supp.1992). The protective order in this case was entered pursuant to section 71.11 of the Texas Family Code. The protective order prohibited Husband from, inter alia, (1) communicating directly with Wife in a threatening or harassing manner and (2) going to or within 500 feet of Wife’s residence or business unless at the times specified for the specific purpose of picking' up or returning the children.

A. February 19, 1991 Violation (Cause No. MA91-43673-F).

The information in cause number MA91-43673-F alleged that Husband “did then and there knowingly and intentionally communicate by telephone with [Wife] in a threatening or harassing manner and did go to her business located at [address], Dallas, Texas, to wait for her to leave.” Husband argues that his telephone communications to Wife cannot reasonably be construed as threatening or harassing by a person of ordinary sensitivities; that the communications are at best vague and do not evidence any reasonable level of annoyance, harassment, or alarm; and that Wife did not testify that she perceived the calls as threatening or harassing. He further argues that the State failed to introduce any evidence that he was within 500 feet of Wife’s place of employment.

Wife testified that, on February 19, 1991, Husband called her numerous times at the post office where she worked. When she answered the calls, Husband told her that he was going to follow her home from work and run her car off the road. When Wife left work that evening, Husband was in the rear parking lot of the post office. He began to follow her, so she returned to the post office and called the police. Dallas Police Officer Michael L. Kronig testified that, on February 19, 1991, he was dispatched regarding a call about a person violating a protective order. Wife told Officer Kronig that Husband had called her at work that day and had told her that he was going to come to her place of work, follow her home, and run her car off the road. Wife also told Kronig that, when she came out from work, she saw Husband driving through the rear parking lot of the post office. Husband later was detained and arrested two or three miles from the post office where Wife worked.

A person threatens another when he declares an intent or determination to inflict injury or loss or indicates probable evil, violence, or loss to come. See Webster’s Encyclopedic UnabRidged Dictionary 1478 (1989). A person harasses another when he persistently disturbs, bothers continually, or pesters that person. See Webster’s Encyclopedic Unabridged Dictionary 645 (1989). The evidence showed that Husband called Wife at work numerous times and told her that he was going to follow her home and run her car off the road. A rational trier of fact could have found that such telephone calls to wife were threatening or harassing.

On the other hand, there is insufficient evidence to prove beyond a reasonable doubt that Husband went within 500 feet of Wife’s place of employment on February 19, 1991. Although testimony showed that Wife saw Husband in the rear parking lot of the post office, there is no evidence of where this parking lot was located in relation to the post office or that this parking lot was within 500 feet of Wife’s place of employment.

An information that charges commission of an offense by more than one method is sustained by proof of any one of the methods alleged. Robinson v. State, 656 S.W.2d 111, 120 (Tex.App. — San Antonio 1983, pet. ref’d); see Staten v. State, 686 S.W.2d 268, 272 (Tex.App. — Houston [14th Dist.] 1985, no pet.). Evidence of all methods alleged may be offered, and proof of one method is sufficient to sustain a conviction. Robinson, 656 S.W.2d at 120; see Staten,

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Bluebook (online)
835 S.W.2d 684, 1992 Tex. App. LEXIS 2114, 1992 WL 134697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patton-v-state-texapp-1992.