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
CLERK2 IDENTITY OF PARTIES AND COUNSEL

Pursuant to T EX

. R. A PP

. 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 S treet San Antonio, Texas 78205 (210) 335

- 2872 awarthen@bexar.org3 TABLE OF CONTENTS

Page

IDENTITIES OF PARTIES AND COUNSEL 2

INDEX OF AUTHORITIES 4

STATEMENT OF THE CA SE 5

ISSUES PRESENTED 5

APPELLANT’S SOLE ISSUE

The evidence wa s 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 orde r 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 eviden ce 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 134 INDEX OF AUTHORITIES Page

Tex. Cod e 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 (Te x. 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

- C R,

201 4 Tex. App. LEXIS 7858, at *5

- 6 (Tex. App.

— San Ant onio July 23, 2014, pet. r ef‟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) 75 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 PR ESENTED

APPELLANT’S SOLE ISSUE

The evidence wa s 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 p rohibited 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 appell ant guilty of violating the protective order.

STATEMENT OF FACTS

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

See T EX

. R. A PP

. P. 38.2(a)(1)(B). The State will supply supplemental pertinent

facts supported with record r eferences within its response to appellant‟s point s 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.

, ” fol lowed 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 t o 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 prot ective 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 i n

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‟s7

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. C onflicts in evidence, or

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

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

2012) . Thus, w hen 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 f

acts 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 the8

weight and credibility o f 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 fact finder does not act rationally.”

Id

.

2. There was ample e vidence 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 ev idence 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 effect ive for two years there after. ( 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 Eve lyn, 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 point s 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 arg ued by appellant at trial, Evelyn was not arrested for inviting the violations because, as § 25.07(e) makes clear, the protect ed party cannot be arrested for violating the protective order. Id . § 25.07(e).9

Appellant insists that there was not enough evidence that he communicated 2

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

Ap pellant‟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 communi cation occurred on that day alone.

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

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

her, and he did not get out of his vehicle, but she was resolute th at 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 r esult. 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 spe aking 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, c herry

picking 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 Ev elyn at some point that day.

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

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

verdict, t hat fact alone makes the evidence sufficient that appel lant 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. H e 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 t he 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 c ontrary, 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 reconcil e 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 incident

unanimity instruction was requested, no objection was made to its exclusion, and

incident unanimity is not argued on appeal

. Additionally, the charge of the court

in cluded the “on or about” language. (CR 19.) Considering that any protective

order

- violating communications were made within the statute

- of

- limitations

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

communications that it heard evi dence 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

o verrule appellant‟s sole point of error and a ffirm the trial court‟s verdict.

4 See Tex. Code Crim. Proc. Ann. art. 12.02(a) (West 2015) (req uiring a two year statute of limitations for Class A misdemeanors)

.12 PRAYER

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

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

Respectfully submitted,

Ni cholas “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 Str eet San Antonio, Texas 78205 Phone: (210) 335

- 2872 Email: awarthen@bexar.org

State Bar No. 24079547

Attorneys for the State13 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