Hernandez, Lazaro v. State

Opinion Issued July 17, 2003 In The Court of Appeals For The First District of Texas NO. 01-02-00986-CR ____________ LAZARO HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 914099 MEMORANDUM OPINION Appellant, Lazaro Hernandez, was convicted of violating a magistrate’s order for emergency protection (“Order”), and the trial court assessed punishment at three years’ confinement. See Tex. Pen. Code Ann. § 25.07 (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 17.292 (Vernon Supp. 2003). In one issue, we determine whether the evidence is legally insufficient to support appellant’s conviction for violation of the Order. We affirm. Background On May 4, 2002, appellant was arrested for assaulting Guadalupe Alvarado, his girlfriend. On May 6, 2002, the trial court issued the Order, which prohibited “Lazaro Hernandez” from committing family violence against “Guadalupe Alvarado.” The Order remained in effect for 61 days from the date of its issuance and prohibited from • committing family violence involving [Guadalupe Alvarado]; • committing an act in furtherance of an offense under Section 42.071 (Stalking) of the Texas Penal Code involving [Guadalupe Alvarado]; • communicating directly with [Guadalupe Alvarado] in a threatening or harassing manner; • possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision; • Going to or near the residence of [Guadalupe Alvarado], specifically, within 200 feet of residence, to-wit: 1855 Wier, Houston TX 77017; or • going to or near the place of employment or business of [Guadalupe Alvarado], more specifically, within 200 feet of her place of employment. On June 1, 2002, within the 61-day period, Officer Rayne responded to a domestic-disturbance report. Officer Rayne arrived at the scene within two minutes of receiving the call for assistance. Upon arriving, he found Alvarado in front of an unidentified, single-family residence and observed that she had been beaten and was nearly unconscious. Officer Rayne, who was unable to communicate with Alvarado because she spoke only Spanish, called for assistance. Officer Miller, a bilingual officer who was fluent in both English and Spanish, responded to Officer Rayne’s call for assistance. Officer Miller spoke to Alvarado, who told him that she had been assaulted by her boyfriend, “Lazaro Hernandez.” Alvarado stated that appellant had come to a house where she was staying and had forced her into his car. While in the car, appellant beat Alvarado repeatedly. Even after appellant had stopped the car, appellant continued to beat Alvarado. After witnesses called the police, appellant fled. Officer Miller took photographs of Alvarado. The photographs showed that Alvarado’s face was bruised and swollen on the left side, that her nose and arms were bruised, and that her mouth and lips were swollen. The photographs were taken about 45 minutes after the officers arrived at the scene and after paramedics had treated Alvarado. Although Alvarado did not testify at trial, appellant offered her affidavit, which was admitted into evidence and stated that “Lorenzo Lazaro Hernandez” had an order to stay away from her and that he had assaulted her. Alvarado stated in her affidavit that she had met appellant so that they could talk and work things out, but that they had fought and had pushed each other. Officer Patterson had arrested appellant in May 2002 for an incident of domestic violence prior to the issuance of the Order, which arrest had led to the trial court’s imposition of the Order. At trial, Officer Patterson testified that appellant was the same person arrested in May 2002 for the previous acts of domestic violence against Alvarado. The trial court clerk testified about the manner in which the trial court typically provides a domestic-violence order to a defendant. The clerk indicated that the trial court verbally admonishes the defendant and articulates the prohibitions of a domestic-violence order. However, the clerk could not remember whether appellant received such verbal admonishment on the day that the Order was entered. The clerk also testified that appellant’s name was signed on the Order, but she could not personally attest that the signature was appellant’s. Legal Sufficiency In his sole point of error, appellant contends that the evidence was legally insufficient to support his conviction for violating the Order because no evidence showed whether (1) he had knowledge of the Order, (2) he was subject to the Order and was the person named in the Order, and (3) Alvarado was the same person as the victim named in the Order. In a legal -sufficiency review, we view the evidence in a light most favorable to the verdict and ask whether a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). The fact finder may reasonably infer facts from the evidence, credit any witnesses it wishes to credit, disbelieve any or all of the testimony proffered, and weigh the evidence in the manner that it chooses. Bruno v. State, 922 S.W.2d 292, 293 (Tex. App.—Amarillo 1996, no pet.). To show that appellant violated the Order, the State had to proffer evidence that appellant knowingly or intentionally committed family violence in violation of a protective order issued under article 17.292 of the Texas Code of Criminal Procedure. See Tex. Pen. Code Ann. § 25.07; Rohrscheib v. State, 934 S.W.2d 909, 911 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Family violence is defined by statute as including three distinct categories of violence. Tex. Fam. Code Ann. § 71.004 (Vernon 2002). Included within family violence is “dating violence.” Id. § 71.0021. Dating violence occurs when one person commits an act of violence against another person with whom the former has or has had a dating relationship. Id. § 71.0021(a). The act of violence must have been intended to result in or to threaten imminent physical harm, bodily injury, physical assault, or sexual assault. Id. A “dating relationship” must be one of a romantic or intimate nature, determined from such considerations as (1) the length of the relationship, (2) the nature of the relationship, and (3) the frequency and type of interaction between the persons involved in the relationship. Id. § 71.0021(b). First, appellant claims that the evidence is legally insufficient to show that he had knowledge of the Order. To demonstrate that appellant had knowledge of the Order, the State had to show that appellant was either present at the hearing at which the Order was issued or that he received notice of the hearing and simply failed to show. Harvey v. State, 78 S.W.3d 368, 372-73 (Tex. Crim. App. 2002). The State need not prove that appellant knew the contents of the Order, but merely that he received the Order so that he had the means to learn of its contents. See id. at 373. Upon receiving a copy of the Order, appellant was responsible for knowing the contents of the Order, whether he chose to read the Order or not. See id. Appellant argues that, because no evidence was presented at trial to show that the signature on the Order was his signature or that any witness saw him sign the Order, the State cannot prove that he had the requisite knowledge. Proving that the signature on the Order is appellant’s signature is relevant because the Order states that the party signing the document has received a copy of the Order. If appellant actually signed the Order, the requisite knowledge of the Order’s contents would be imputed to him. Although the State did not offer testimony of a handwriting expert that the signature on the Order was appellant’s, of any eyewitness who remembered seeing appellant sign the Order, or of any person familiar with appellant’s handwriting, the State presented evidence of the trial court’s standard procedures relating to protective orders. The Clerk testified about the trial court’s standard procedures relating to admonishments and prohibitions given for domestic violence orders. The Clerk also testified that the name of the signature matched the name of appellant. Therefore, we hold that the evidence was legally sufficient to show that appellant had knowledge of the Order. Appellant next alleges that the evidence is legally insufficient to show that he was both the person subject to the Order and that he was the person who caused Alvarado’s injuries. Officer Patterson identified appellant as the person he had arrested in May of 2002 for an assault on Alvarado. This arrest led to the imposition of the Order. The person named in the Order was “Lazaro Hernandez,” and the Order was signed by “Lazaro Hernandez.” Further, Alvarado told Officer Miller, who responded to the call for assistance on June 1, 2002, that her boyfriend, Lazaro Hernandez, had beaten her, and the photographs taken of Alvarado show that she had been very badly beaten and bruised. The evidence is, therefore, legally sufficient to show that appellant was both the person subject to the Order and the person who assaulted Alvarado. Finally, appellant claims that the evidence was legally insufficient to show that Alvarado was the victim named in the Order. Alvarado’s name and place of residence were listed on the Order, and the Order stated that Alvarado and Hernandez had a dating relationship. Officer Miller testified that, when he arrived at the scene on June 1, 2002, Alvarado told him that she had been badly beaten by her boyfriend, Lazaro Hernandez. Further, Alvarado executed an affidavit stating that “Lorenzo Lazaro Hernandez” had an order to stay away from her and that he had assaulted her. Therefore, the evidence is legally sufficient to show that Alvarado was the victim named in the Order. We overrule appellant’s sole point of error. Conclusion We affirm the trial court’s judgment. Laura C. Higley Justice Panel consists of Chief Justice Radack and Justices Alcala and Higley. Do not publish. Tex. R. App. P. 47.2(b).