AFFIRM; Opinion issued January 18, 2013.
In The Qtøatrt 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. Virçinia.
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
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AFFIRM; Opinion issued January 18, 2013.
In The Qtøatrt 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. Virçinia.
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 Appeal from the County Criminal Court No. 10 of Dallas County. Texas. (Tr.Ct.No. No. 05-I 1-0024-CR V. MA 10-16264). Opinion delivered by Justice Murphy, TIlE STATE OF TEXAS, Appellee 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.
I / i
MARY M(J P1iY 3 JUSTICE J