Jim Stacy Smith v. State ( 2003 )

NO. 07-01-0382-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JANUARY 2, 2003
______________________________
JIM STACY SMITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 42,808-E; HON. ABE LOPEZ, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, SJ.1
Appellant Jim Stacy Smith appeals his conviction of the offense of criminal non-
support by contending 1) the evidence is legally insufficient to sustain his conviction, and
2) the evidence is legally insufficient to support a finding against his affirmative defense.
We affirm the judgment of the trial court.
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV’T
CODE ANN. §75.002(a)(1) (Vernon 1998).
Issue One - Legal Sufficiency of the Evidence to Support the Conviction
In his first issue, appellant challenges the legal sufficiency of the evidence to
sustain his conviction. We overrule the issue.
The standards by which we review the legal sufficiency of the evidence are well
established, and it is unnecessary for us to reiterate them. We cite the parties to Jackson
v. Virginia, 443 U.S. 307, 309, 99 S. Ct. 2871, 61 L. Ed. 2d 560 (1979) and King v. State,
29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000) for explanation of the same.
An individual commits the offense of criminal non-support if he intentionally or
knowingly fails to provide support for his child who is younger than 18 years of age or who
is the subject of a court order requiring him to support the child. TEX . PEN . CODE ANN .
§25.05(a) (Vernon Supp. 2003). The offense is committed by omission or neglect and
continues as long as the neglect continues without excuse. Belcher v. State, 962 S.W.2d
653, 656 (Tex. App.—Austin 1998, no pet.). Appellant was charged with failing to provide
support for Nathan-Ferril Smith, who was the subject of a court order, from and after
August 18, 1997. The complaint was filed on August 14, 2000.
With the exception of the indictment, the only evidence admitted at trial was that put
on by appellant, including his own testimony.2 The statute provides that a conviction can
be had on the uncorroborated testimony of a party to the offense. Id. §25.05(c). Further,
a conviction may be sustained irrespective of whether the prosecution or the defense
2
The record indicates that the parties had entered into a stipulation with respect to at least some
of the facts of the case and the court accepted the stipulation, but the stipulation itself does not appear in
the record.
2
provides the evidence of guilt. Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston
[1st Dist.] 2000, no pet.).
Next, through the indictment at bar, the State alleged that appellant “on or about the
18th day of August, 1997 . . . did then and there intentionally and knowingly fail to provide
support for Nathan-Ferril Smith, who was then and there the subject of a court order
requiring the defendant to support said child . . . .” At bar, there appears evidence that
appellant was divorced in 1988. Via the divorce decree, he was ordered to pay child
support of $350 per month.3 However, in 1989, he was sent to prison for ten years. While
he was in prison, one or more of his parents died in 1993 and left him an inheritance of
$25,000 cash, over 150 acres of land, and a house. Furthermore, tenants of the house
and acreage paid monthly rent of $300 and $2,000 respectively. These funds, along with
the original $25,000, the house, and the acreage, were held for appellant in “trust.” Thus,
as of August 18, 1997 (the date alleged in the indictment), appellant owned a substantial
amount of monies and assets. However, he did not pay his child support obligation until
after being released from prison in 1998, and then did so sporadically.4 And, upon his
release from prison, appellant spent much of his money on restoring the house he
inherited, as opposed to paying child support.
3
Appellant has not contested that the amount in the court order is not the appropriate level of
support for the child.
4
Appellant attempts to justify his failure to pay the child support obligation by alleging that he thought
his ex-wife and child had died in an auto accident. He purportedly saw a news clip on a local television
station depicting the wrecked car of his ex-wife. Yet, whether the news commentator indicated that his child
and ex-wife were killed is unknown. Whether anyone said that his child was in the car is unknown. When
this supposed accident occurred is unknown. And, whether he asked anyone (such as a family member)
about the health of his child or to investigate the incident (assuming he could not) is unknown. Giv en this,
the factfinder could well have discredited his excuse for foregoing payment and the care of his child.
3
The court, as factfinder, found that appellant had “consciously directed his
resources that he had available to him . . . to benefit himself when he should have
supported his child.” Viewing the evidence in the light most favorable to the prosecution
as we must, a rational trier of fact could have found (beyond reasonable doubt) that
appellant intentionally and knowingly failed to support his child who was the subject of a
court order. Thus, the evidence was legally sufficient to support the judgment.
Issue Two - Insufficiency of the Evidence as to Ability to Pay
In his second issue, appellant complains of the legal sufficiency of the evidence to
demonstrate that he had the ability to support his child. We overrule the issue.
An affirmative defense to the prosecution of the offense of criminal non-support is
that the actor could not provide support. TEX . PEN . CODE ANN . §25.05(d) (Vernon Supp.
2003). As recited above, the record contains evidence as to appellant’s ability to pay
during at least part of the time for which he was charged with non-support. More
importantly, the factfinder was entitled to believe and conclude, beyond reasonable doubt,
that he had the ability to pay.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
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