Tremain Logan Velazquez v. State ( 2018 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
TREMAIN LOGAN VELASQUEZ, §
No. 08-16-00172-CR
Appellant, §
Appeal from the
v. §
County Court at Law Number One
§
THE STATE OF TEXAS, Of El Paso County, Texas
§
Appellee. (TC# 20160C00725)
§
OPINION
The trial court convicted Appellant Tremain Logan Velasquez of the misdemeanor offense
of Violation of a Protective Order upon his plea of not guilty to the bench. The trial court sentenced
him to 90-days’ confinement in the El Paso jail with credit for time served. Appellant brings a
single issue on appeal, challenging the sufficiency of the evidence to support his conviction.
Because the evidence is sufficient to support the trial court’s judgment, we affirm Appellant’s
conviction.
Brief Facts
On January 10, 2016, a magistrate judge entered a protective order prohibiting Appellant
from “going within 200 yards: of residence located at 10541 GRAND CIMA EL PASO TEXAS
79936 . . . [within 200 yards] of the Protected Parties, OCHOA, LAUREL KATHLEEN.” On
January 22, 2016, police were dispatched to a home on Russ Randall, where they met with Timothy
Ochoa, the son of Laurel Kathleen Ochoa, the protected party named in the January 10 protective
order. Officers Alegre and Torres listened on speakerphone to a threatening, profane telephone
call from Appellant, in which he yelled orders to Ochoa to come to his mother’s house so Appellant
could kick his ass. Officer Alegre testified he was already aware of the location of Ochoa’s
mother’s house at 10541 Grand Cima.
The officers knew Appellant had an active warrant for forgery, as well as the live protective
order. They left the home on Russ Randall for the Grand Cima address and parked a block away
from the house to avoid alerting anyone of their presence. They went on-foot to the protected
10541 Grand Cima address, and when they arrived they saw Appellant standing in the backyard
outside the house, near a four-foot-high rock wall. The officers approached outside the wall and
spoke to Appellant. When Officer Alegre informed Appellant of the warrant and the protective
order, Appellant responded that he was not in violation of the protective order because the
protected person, Laurel Ochoa, was not there. Officer Alegre told Appellant the address itself
was part of the protective order, and Appellant said it was okay because Appellant lived there.
Officer Alegre testified he was afraid Appellant would run into the house, so he reached over the
wall and grabbed Appellant’s arm. Officer Torres jumped into the backyard, and Torres and
Alegre, with the help of other officers who were present, managed to lift Appellant over the wall
and place him under arrest. The State offered, and the trial court admitted into evidence, State’s
Exhibit 3, the Protective Order that is the basis of the prosecution.
Sufficiency of the Evidence
In our due-process review of the sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the verdict to determine whether any rational
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trier of fact could have found the essential elements of the crime beyond a reasonable doubt.1 This
standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. 2
The trial judge as trier of fact in a bench trial is the sole judge of the weight and credibility
of the evidence.3 Thus, when performing an evidentiary sufficiency review, we may not re-
evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact
finder.4 Instead, we determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the verdict. 5 We must
presume that the fact finder resolved any conflicting inferences in favor of the verdict and defer to
that resolution.6
Appellant brings a single issue for appellate review, challenging only whether the evidence
proved Laurel Ochoa, the protected party, lived at the house on Grand Cima Road in El Paso where
Appellant was arrested or had ever lived there. There is no challenge to the existence of the
protective order, the sufficiency of the protective order, Appellant’s notice of the existence or
contents of the protective order, or his presence at the house on Grand Cima Road in El Paso,
1
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Jenkins v.
State, 493 S.W.3d 583, 599 (Tex.Crim.App. 2016).
2
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.
3
See TEX.CODE CRIM.PROC.ANN. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d 29, 33
(Tex.Crim.App. 2016).
4
See Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App. 2012).
5
Murray v. State, 457 S.W.3d 446, 448 (Tex.Crim.App.), cert. denied, 136 S. Ct. 198, 193
L. Ed. 2d 127 (2015).
6
Id. at 448–49; see Blea, 483 S.W.3d at 33.
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Texas.
The protective order specifically enumerated the house at 10541 Grand Cima and the
location of the person of Laurel Ochoa as places Appellant was required to avoid. He was not
ordered specifically to avoid the home of Laurel Ochoa. The misdemeanor information, however,
alleged that Appellant violated the January 10, 2016 order only by going within 200 yards of the
“residence of Laurel Ochoa a protected individual or a member of the family and household . . . .”
Appellant does not challenge the sufficiency of the charging instrument, nor does he challenge
sufficiency of the notice it provided, nor does he claim surprise or that Appellant was never ordered
to stay away from Laurel Ochoa’s residence when she was not present at the residence. Rather,
he argues only that the allegations of the misdemeanor information increase the State’s burden to
prove, not only Appellant’s presence at the Grand Cima address, but to prove beyond a reasonable
doubt that the Grand Cima address was Laurel Ochoa’s home.
Appellant argues the State was required to prove Laurel Ochoa resided at 10541 Grand
Cima in El Paso County and that even the trial court “agreed that Ochoa did not reside there,”
citing to the first volume of the reporter’s record at page 74. Appellant misconstrues the record.
Appellant had offered the testimony of Laurel Ochoa:
Q. Okay. And were you present at that address on January the 22nd of 2016?
A. I don't know.
Q. When Tremain was arrested for violation of a protective order?
A. Yes, I was there that night, yes.
Q. Now, listen to my question. Were you present on January 22nd, 2016, at the
Grand Cima address when Tremain was arrested for a violation of a protective
order?
A. Oh, no, sir. No, I was not.
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Ochoa also testified her father had been paying her bills for a while, including rent for
places she lived with Appellant as his “common-law” wife “if that’s what you would call it, I
guess, when you live together.” She testified she had known Appellant since July 2012, and that
they began living together at the end of July 2012. Her son lived with Appellant and knew him
before Laurel Ochoa met Appellant. She testified her father became more and more ill and she
had to live with him at the Russ Randal address. But she testified her son loved taking care of her
father and would go over to Russ Randal, where the police talked to him, while she would go to
Grand Cima to see Appellant and stay for a couple of days. She would stay overnight. But, she
testified, it was never her intent to move into that house. Indeed, she testified that her son took
care of her dad for quite a few years.
On the night of Appellant’s arrest at Grand Cima for the assault that was the basis for the
protective order, Laurel claimed she was intoxicated and remembered little of her conversations
with the police. She was very angry and very intoxicated, so she did not remember exactly what
she said. She could have said anything because that’s what angry, intoxicated people do. Laurel
testified that she called a telephone number to talk to a lady with the district attorney’s office who
had left a card with her.
The frustrated trial judge, after hearing about attempts by Appellant, directly and through
Laurel, to get the order changed or lifted altogether, stated,
And trust me, Mr. Velasquez, I'm well aware of sitting here day in and day
out, orders that I issue are constantly, routinely ignored, or for lack of a better word,
not ignored. Just people don't pay enough attention to that piece of paper.
And it's very frustrating for the Court to order something, to set something
up, and for whatever reason, people, the accused, or through his lawyer, things kind
of get in a fog.
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Sometimes I question the sincerity of that kind of business, and sometimes
I know flat out that it's just fancy footwork taking place.
But the bottom line is, an order is issued by a Judge and you must adhere to
it. It is not for you to decide.
This ain't right. It is not her residence. And by the way, you're not on the
lease anyway. Technically, if we want to talk technicalities, your name is not on
that lease, it is in the other gentleman's name on that lease.
So that doesn't take away from the fact that you can still reside there with
his permission or what have you. But technically, that ain't even your residence
because your name is not on that lease.
Clearly, contrary to Appellant’s reading of the record, the trial court expressed no
understanding that Appellant’s position was either correct or defensible. He specifically decried
Appellant’s ignoring the court’s order and then suggesting he was not obligated to comply with
the court’s order. Clearly, the trial court explained that it was the court, not Appellant and not
Complainant, who determined the enforceability of an order.
Holding
Considering the entire record as a whole, and applying the appropriate standard of review,
we hold the evidence is sufficient to support the trial court’s judgment. We overrule Appellant’s
sole issue on appeal and affirm the trial court’s judgment.
July 13, 2018
LEE ANN DAUPHINOT, Senior Justice Ret.
Before McClure, C.J., Palafox, J., and Dauphinot, Senior Justice Ret.
Dauphinot, Senior Justice Ret. (Sitting by Assignment)
(Do Not Publish)
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