1

NO. 04-15-00099-CR

IN THE COURT OF APPEALS FOR THE 

FOURTH DISTRICT OF TEXAS 

SAN ANTONIO, TEXAS 

______________________________ 

ROBERT CANO, 

Appellant 

v. 

THE STATE OF TEXAS, 

Appellee 

______________________________ 

ON APPEAL FROM COUNTY COURT-AT-LAW NO. 7

OF BEXAR COUNTY, TEXAS 

CAUSE NUMBER 477928 

______________________________ 

BRIEF FOR THE STATE 

______________________________ 

NICHOLAS “NICO” LaHOOD

Criminal District Attorney 

Bexar County, Texas 

ANDREW N. WARTHEN 

Assistant Criminal District Attorney 

Bexar County, Texas 

Paul Elizondo Tower 

101 W. Nueva Street 

San Antonio, Texas 78205 

Phone: (210) 335-2872 

Email: awarthen@bexar.org 

State Bar No. 24079547 

Attorneys for the State of Texas 

ORAL ARGUMENT WAIVED 

ACCEPTED

04-15-00099-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/22/2015 8:51:01 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 4/22/2015 8:51:01 AM KEITH E. HOTTLE Clerk
2

IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.2(a), the appellee supplements the appellant‟s list of 

parties as follows: 

APPELLATE STATE’S Andrew N. Warthen

ATTORNEY State Bar No. 24079547

Assistant Criminal District Attorney

 Paul Elizondo Tower

101 W. Nueva Street

 San Antonio, Texas 78205

(210) 335-2872

awarthen@bexar.org
3

TABLE OF CONTENTS

 

 Page

IDENTITIES OF PARTIES AND COUNSEL 2

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 5

ISSUES PRESENTED 5

APPELLANT’S SOLE ISSUE

The evidence was legally insufficient to support the jury‟s finding that Mr. Cano 

committed the offense of violation of a protective order.

STATE’S RESPONSE

A protective order was issued that specifically prohibited appellant from 

communicating with Evelyn Cano. However, appellant repeatedly 

communicated with Evelyn after the order was in place. The jury heard 

extensive evidence concerning these violations. Thus, the evidence was 

sufficient to find appellant guilty of violating the protective order. 

STATEMENT OF FACTS 5

SUMMARY OF THE ARGUMENT 6

ARGUMENT 6

PRAYER FOR RELIEF 12

CERTIFICATE OF COMPLIANCE AND SERVICE 13
4

INDEX OF AUTHORITIES

 Page

Tex. Code Crim. Proc. Ann. art. 12.02 (West 2015) 11

Tex. Penal Code Ann. § 25.07 (West 2015) 8-9

Acosta v. State, 429 S.W.3d 621 (Tex. Crim. App. 2014) 7

Carrizales v. State, 414 S.W.3d 737 (Tex. Crim. App. 2014) 6-7

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) 7-8

Jackson v. Virginia, 443 U.S. 307 (1979) 6

Perez v. State, No. 04-13-00476-CR,

2014 Tex. App. LEXIS 7858, at *5-6

(Tex. App.—San Antonio July 23, 2014, pet. ref‟d)

(mem. op., not designated for publication) 10

Sanchez v. State, 400 S.W.3d 595 (Tex. Crim. App. 2013) 10

Sledge v. State, 953 S.W.2d 253 (Tex. Crim. App. 1997) 10

Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012) 7
5

BRIEF FOR THE STATE

To the Honorable Fourth Court: 

Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar 

County, Texas, and files this brief for the State.

STATEMENT OF THE CASE

The State accepts appellant‟s Statement of the Case.

ISSUES PRESENTED

APPELLANT’S SOLE ISSUE

The evidence was legally insufficient to support the jury‟s finding that Mr. Cano 

committed the offense of violation of a protective order.

STATE’S RESPONSE

A protective order was issued that specifically prohibited appellant from 

communicating with Evelyn Cano. However, appellant repeatedly 

communicated with Evelyn after the order was in place. The jury heard 

extensive evidence concerning these violations. Thus, the evidence was 

sufficient to find appellant guilty of violating the protective order.

STATEMENT OF FACTS

The State challenges the factual assertions contained in appellant‟s brief. 

See TEX. R. APP. P. 38.2(a)(1)(B). The State will supply supplemental pertinent 

facts supported with record references within its response to appellant‟s points of 

error. The Reporter‟s Record will be referenced as “RR,” followed by the 

respective volume number. The Clerk‟s Record will be referenced as “CR.” 

Individual exhibits will be referenced as “Ex.,” followed by their respective 

number.
6

SUMMARY OF THE ARGUMENT

Appellant‟s argument that the evidence adduced at trial is insufficient is 

untenable. The evidence at trial is clear and uncontradicted that at some point on 

December 10, 2014, appellant spoke to Evelyn Cano, the complainant. Thus, he 

violated the protective order on that date. In addition, the State could prove a 

violation of the protective order at any time before presentment of the information

through the statute-of-limitations period. The record abounds with evidence that 

appellant communicated with Evelyn on countless occasions after the protective 

order was put into effect. Therefore, a rational trier of fact could have concluded 

beyond a reasonable doubt that appellant violated the protective order by 

communicating with Evelyn, as alleged in the information. 

ARGUMENT

1. Standard of Review

The Jackson v. Virginia, 443 U.S. 307 (1979), standard “is the only 

constitutional standard of review for assessing the legal sufficiency of evidence in 

a criminal case.” Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2014) 

(citations omitted). Under that standard, a reviewing court views “the evidence in 

the light most favorable to the verdict and determine[s] whether any rational trier 

of fact could have found the essential elements of the offense beyond a reasonable 

doubt.” Id. “It is not necessary that the evidence directly proves the defendant‟s 
7

guilt; circumstantial evidence is as probative as direct evidence in establishing the 

guilt of the actor, and circumstantial evidence alone may be sufficient to establish 

guilt.” Id. “In such cases, it is not necessary that every fact and circumstance 

point directly and independently to the defendant‟s guilt; it is enough if the 

conclusion is warranted by the combined and cumulative force of all the 

incriminating circumstances.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. 

App. 2014) (internal quotation marks and citations omitted).

When evaluating the evidence, “the trier of fact may use common sense and 

apply common knowledge, observation, and experience gained in ordinary affairs 

when drawing inferences from the evidence.” Id. Conflicts in evidence, or 

inferences therefrom, are questions of weight and credibility that are left solely for 

the jury‟s determination. See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 

2012). Thus, when confronted with evidence raising conflicting inferences, a 

reviewing court must presume that “the trier of fact resolved any such conflict in 

favor of the prosecution, and must defer to that resolution.” Id. That is to say, a

reviewing court defers “to the responsibility of the trier of fact to fairly resolve 

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts to ultimate facts.” Isassi v. State, 330 S.W.3d 633, 638 (Tex. 

Crim. App. 2010) (internal quotation marks and citations omitted). A reviewing 

court “is not to become a thirteenth juror.” Id. And it “may not re-evaluate the 
8

weight and credibility of the record evidence and thereby substitute [its] judgment 

for that of the fact finder.” Id. Instead, the role of a reviewing court “is restricted 

to guarding against the rare occurrence when a factfinder does not act rationally.” 

Id.

2. There was ample evidence that appellant communicated with Evelyn in 

violation of the protective order

Boiled down to its essential elements, appellant‟s argument is that Evelyn 

Cano was not a credible witness, that no rational jury could believe her, and that no 

other evidence showed that appellant violated the protective order by 

communicating with Evelyn. Appellant‟s argument is untenable. 

The protective order that appellant was convicted of violating was signed on 

February 20, 2013, and effective for two years thereafter. (State‟s Ex. 1—found in 

RR4—page 5.) The protective order was clear that appellant was prohibited from 

communicating in any manner with Evelyn, among others. (State‟s Ex. 1, page 2, 

provision (c).) It was equally clear that no one, including Evelyn, could give 

appellant permission to violate the order, except a court.1 (State‟s Ex. 1, page 4.)

 

1 At trial, appellant‟s strategy was to make it seem as though he had done nothing wrong because 

Evelyn had invited violations of the protective order. But, as appellant points out in his brief, 

that was legally insignificant because reconciliation between the protected party and the party 

under an order‟s restrictions does not undermine the validity of the protective order‟s legal force. 

See Tex. Penal Code Ann. § 25.07(d) (West 2015). Nor is it legally relevant that, as argued by 

appellant at trial, Evelyn was not arrested for inviting the violations because, as § 25.07(e) makes 

clear, the protected party cannot be arrested for violating the protective order. Id. § 25.07(e).
9

Appellant insists that there was not enough evidence that he communicated2

with Evelyn on December 10, 2014, to convict him beyond a reasonable doubt. 

Appellant‟s argument fails for two reasons. First, there was sufficient evidence 

adduced at trial that appellant communicated with Evelyn that day. Second, in 

spite of appellant‟s insistence to the contrary, the State did not have to prove that 

the communication occurred on that day alone.

Evelyn testified that on December 10, 2014, appellant spoke to her. (RR3 

24.) According to Evelyn‟s testimony, she could not understand what he said to 

her, and he did not get out of his vehicle, but she was resolute that he did say 

something to her. (RR3 24.) When Evelyn was cross-examined about whether she 

told the police that appellant exited his vehicle that day, she professed that she 

could not remember what she told them. (RR3 33-34.) Officer Melissa Guajardo, 

on the other hand, testified that Evelyn had told the dispatcher that appellant was 

banging on her car window. (RR3 46-47.)

Appellant attacks Evelyn‟s credibility by pointing out these contradictions

and concludes that the evidence was insufficient as a result. But the jury is free to 

 

2 Appellant makes a rather curious argument about the meaning of “communicate,” a term found, 

but not defined, in § 25.07(a)(2) of the Penal Code. He insists that simply speaking to someone 

is not communicating with them, arguing instead that communicating is a narrower form of 

interaction. Appellant‟s Br. 12. Putting aside the fact that “communicate” is typically 

understood in everyday language to simply mean speaking with or to someone else, cherrypicking dictionary definitions can become problematic because, even using one of appellant‟s 

own definitions, he would have been “conveying information” to Evelyn any time that he spoke 

with her. 
10

believe testimony in whole or in part. It alone is tasked with resolving conflicts in 

the evidence and arriving at the truth. But the one thing that the jury did not have 

to reconcile is the fact that appellant spoke to Evelyn at some point that day. 

Whether it was from his vehicle or while banging on her car window, the record is 

clear that appellant spoke to Evelyn. Viewed in a light most favorable to the 

verdict, that fact alone makes the evidence sufficient that appellant was guilty of 

violating the protective order.

Even if the evidence was insufficient to show that appellant communicated 

with Evelyn that day, it is of no matter. Appellant was not merely indicted for 

communicating with Evelyn on December 10, 2014. He was indicted for 

communicating with Evelyn on or about December 10, 2014. “It is well settled 

that the „on or about‟ language of an indictment allows the State to prove a date 

other than the one alleged in the indictment as long as the date is anterior to the 

presentment of the indictment and within the statutory limitation period.” Sanchez 

v. State, 400 S.W.3d 595, 600 (Tex. Crim. App. 2013) (quoting Sledge v. State, 

953 S.W.2d 253, 256 (Tex. Crim. App. 1997)).3 In spite of appellant‟s claims to 

the contrary, the jury was allowed to convict appellant for any one of the countless 

 

3

See also Perez v. State, No. 04-13-00476-CR, 2014 Tex. App. LEXIS 7858, at *5-6 (Tex. 

App.—San Antonio July 23, 2014, pet. ref‟d) (mem. op., not designated for publication) 

(applying that rule to a sufficiency review).
11

communications that he and Evelyn had after the protective order was put into 

place. The record is replete with such communications.

Appellant and Evelyn attempted to reconcile soon after the protective order 

was in place. They went out together. They lived together. They started a 

business together. Appellant‟s sole witness, his own mother, testified to these 

facts. (See, e.g., RR3 55, 61.) Appellant never demanded that the State elect 

which communication that the jury must agree upon. Moreover, no incidentunanimity instruction was requested, no objection was made to its exclusion, and 

incident unanimity is not argued on appeal. Additionally, the charge of the court 

included the “on or about” language. (CR 19.) Considering that any protectiveorder-violating communications were made within the statute-of-limitations 

period,4the jury was free to convict appellant of any of the numerous 

communications that it heard evidence about.

It is clear from the record that a rational trier of fact could have found 

beyond a reasonable doubt that appellant communicated with Evelyn in violation 

of the protective order, as alleged in the information. As a result, this court should 

overrule appellant‟s sole point of error and affirm the trial court‟s verdict.

 

4

See Tex. Code Crim. Proc. Ann. art. 12.02(a) (West 2015) (requiring a two year statute of 

limitations for Class A misdemeanors).
12

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas submits that the 

judgment of the trial court should, in all things, be AFFIRMED. 

Respectfully submitted, 

Nicholas “Nico” LaHood

Criminal District Attorney

Bexar County, Texas

___/s/_________________________

Andrew N. Warthen

Assistant Criminal District Attorney

Bexar County, Texas

 Paul Elizondo Tower

 101 W. Nueva Street

 San Antonio, Texas 78205

Phone: (210) 335-2872

Email: awarthen@bexar.org

State Bar No. 24079547

 Attorneys for the State
13

CERTIFICATE OF COMPLIANCE AND SERVICE

I, Andrew N. Warthen, herby certify that the total number of words in 

appellee‟s brief is 1,628. I also certify that a true and correct copy of the above 

and forgoing brief was emailed to attorney for appellant Robert Cano, Michael D. 

Robbins, Assistant Public Defender, at mrobbins@bexar.org, on this the 22nd day 

of April, 2015.

______/s/______________________

Andrew N. Warthen

Assistant Criminal District Attorney

Attorney for the State