Ray Zepeda Sanchez Jr. v. State of Texas ( 2011 )

Opinion filed January 13, 2011
In The
Eleventh Court of Appeals
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No. 11-09-00105-CR
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RAY ZEPEDA SANCHEZ JR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 5
Tarrant County, Texas
Trial Court Cause No. 1143730
MEMORANDUM OPINION
A jury found Ray Zepeda Sanchez Jr. guilty of violating a protective order. The trial
court sentenced him to ninety days confinement in the county jail. We affirm.
Susana Villarreal and appellant were married pursuant to common law. They had four
children together. In June 2006, the 325th District Court entered a protective order in favor of
Villarreal against appellant. The court found that family violence had occurred and was likely to
occur again in the future and that a protective order was in the best interest of Villarreal.
Pursuant to the protective order, appellant was prohibited from committing family violence on or
against Villarreal, from communicating directly with Villarreal in a threatening or harassing
manner, from communicating a threat through any other person to Villarreal, and from going to
or within twenty feet of the property line of the residence of Villarreal.
In October 2008, appellant was released from custody and his family had a party for him
at his sister’s house. Appellant wanted their son to attend the party. Villarreal drove their son to
appellant’s sister’s house. While there, appellant and Villarreal talked. The next day, Villarreal
noticed appellant driving on the street in front of her house. When she left to take her daughter
to school, appellant drove up behind her until he caught up to her car, rolled down his window,
and threatened her. Appellant also sent Villarreal several texts throughout the day. Appellant
talked to Villarreal’s mother and threatened to hurt Villarreal. That afternoon, Villarreal called
the police. Appellant was charged with two counts of violation of a protective order. The
information charged that appellant did:
Intentionally or knowingly, in violation of an order of the 325th District Court of
Tarrant County, Texas, issued on the 19th day of June, 2006, in Cause Number
325-403560-06, under authority of the Texas Family Code Chapter 85, commit an
act of family violence, namely a threat that reasonably placed Susana Villarreal, a
member of his family or household, in fear of imminent physical harm, bodily
injury or assault[, and]
Intentionally or knowingly, in violation of an order of the 325th District Court, of
Tarrant County, Texas, issued on the 19th day of June, 2006, in Cause Number
325-403560-06, under authority of the Texas Family Code Chapter 85, commit an
act of family violence, namely communicating a threat through any person to-
wit: Patricia Visilio,1 to Susana Villarreal, that reasonably placed Susana
Villarreal, a member of the defendant’s family or household, in fear of imminent
physical harm, bodily injury, or assault.
Appellant pleaded not guilty and proceeded to a jury trial.
Appellant challenges the factual sufficiency of the evidence supporting his conviction for
violation of a protective order as alleged in both counts of the information. We note at the outset
of our analysis that the Texas Court of Criminal Appeals has now held in Brooks v. State, 323
S.W.3d 893 (Tex. Crim. App. 2010), that there is “no meaningful distinction between the
Jackson v. Virginia2 legal-sufficiency standard and the Clewis3 factual-sufficiency standard”;
that the Jackson v. Virginia standard is the “only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal offense that
the State is required to prove beyond a reasonable doubt”; and that “[a]ll other cases to the
contrary, including Clewis, are overruled.” Brooks, 323 S.W.3d at 895, 902, 912 (footnotes
1
We note that the name in the information is misspelled, but appellant acknowledges that Visilio is idem sonans for
Vasillio. See Escobar v. State, 578 S.W.2d 139, 140 (Tex. Crim. App. 1979).
2
Jackson v. Virginia, 443 U.S. 307 (1979).
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Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
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added). Accordingly, a challenge to the factual sufficiency of the evidence is no longer viable.
We also note that appellant did not have the benefit of the opinion in Brooks when this case was
briefed. We will review appellant’s factual sufficiency challenge under the legal sufficiency
standard set forth in Jackson v. Virginia. Under this standard, we must review all of the evidence
in the light most favorable to the verdict and determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307; Brooks, 323 S.W.3d at 899.
Under Chapter 85 of the Texas Family Code, a court may issue a protective order when it
finds that family violence has occurred and is likely to occur in the future. TEX. FAM. CODE
ANN. § 85.001 (Vernon 2008). A person commits an offense if, in violation of an order issued
under Chapter 85 of the Family Code, the person knowingly and intentionally communicates
directly with a protected individual in a threatening or harassing manner or communicates a
threat through any person to a protected individual. TEX. PENAL CODE ANN. § 25.07(a)(2)(A),
(B) (Vernon Supp. 2010).
Villarreal testified that she dropped their son off at appellant’s sister’s house the evening
appellant was released from custody and that she and appellant had a civil conversation. They
talked about the protective order still being in effect and the fact that he could not come to her
house. Villarreal testified that appellant told her that she needed to get her boyfriend out of their
house and then he would leave her alone. She told him that she would work on it but that she
needed some time. Villarreal testified that she did not feel threatened during the conversation
and left the house thinking that everything was going to be okay.
However, the next day she noticed appellant drive by her house in his dad’s black
Cadillac Escalade. She testified that she was concerned and that she waited to take their daughter
to school. When she noticed that he was not passing her house anymore, she took their daughter
to school. Villarreal testified that, when she turned onto Long Street, she saw appellant coming
from behind her. She testified that she was scared and pulled her car to a complete stop.
Appellant pulled up beside her; he had his window down and told their daughter to roll down her
window. Appellant yelled at Villarreal from his vehicle, “That wetback better not be -- I better --
that wetback better not be here or all hell was going to break loose, and all bets are off.”
Villarreal testified that she was very scared and thought that he was going to “hit [her] car or do
something. I really thought something bad was going to happen. . . . [R]ight then in that
minute.” Villarreal testified that appellant also sent her five to twelve text messages throughout
the day. She called the police after she received a text that asked how it felt knowing that her
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“boyfriend or the police can’t protect you.” Villarreal also testified that she was scared enough
that she bought a handgun and rented a hotel room for a week; she was too scared to be at her
house.
A.S. testified that she was the daughter of appellant and Villarreal. She testified that she
was present when appellant pulled up beside her mother’s car. A.S. testified that, when her
mother saw appellant, she gasped and put her hand over her chest and that her mother seemed
very scared at the time. A.S. testified that she was not scared but that her mother clearly was.
On cross-examination, A.S. stated that appellant did not threaten Villarreal but, rather, just
wanted someone out of the house.
Patricia Vasillio testified that she is Villarreal’s mother. On the same day that appellant
drove by Villarreal’s house and sent her text messages, he also called Vasillio. Vasillio testified
that appellant told her that he wanted to get back together with Villarreal and that she had no
business being with that “wetback” Jose. Vasillio tried to convince appellant to leave Villarreal
alone. She testified that appellant then stated: “Well, if she’s not going to be mine, she’s not
going to be nobody else’s.” Vasillio testified that she took this to mean that appellant was going
to harm Villarreal. However, Vasillio did not tell Villarreal because she did not want to scare
her. Later, after Villarreal had called the police, Vasillio told the police and Villarreal about her
conversation with appellant.
Appellant argues that the State waived count two of the information because the trial
court’s docket sheet states that count two was waived. However, the record does not support this
conclusion. The State never waived count two. The jury was charged on both counts and
returned a verdict of guilty as charged in the information. The trial court’s judgment states in the
heading of the document: “Judgment & Sentence Count One.” However, the body of the
judgment reiterates that the jury found appellant guilty as charged in the information. See
Ex parte Gray, 426 S.W.2d 241, 241 (Tex. Crim. App. 1968) (a document that contains the
wrong title but has all essential elements of a judgment of sentence will suffice as a judgment).
Appellant contends that the evidence is insufficient because the statements he made
directly to Villarreal were threats against Villarreal’s boyfriend, Jose, not Villarreal. He further
argues that, because the evidence did not show that Jose was in the house at the time the threats
were made, Villarreal’s fear of imminent physical harm was not reasonable. We disagree. The
evidence showed that Villarreal was afraid that appellant was going to assault her and that
appellant had never even spoken to Jose. Villarreal testified that the threats were against her, not
Jose. Villarreal was scared enough to buy a handgun and to stay in a hotel for a week. A
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rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. The evidence is sufficient to support the jury’s verdict as to count one.
Regarding count two, appellant argues that the evidence does not show that appellant
intended for Vasillio to relay to Villarreal the statements he made to Vasillio. However, the
record indicates that Villarreal became aware of what appellant said to Vasillio. Vasillio
testified that Villarreal had already called the police when she got home. Vasillio told the police
and Villarreal what appellant had said to her on the phone. Vasillio testified that she believed
that appellant intended to hurt Villarreal and that he meant what he had said. The evidence is
sufficient to support the jury’s verdict as to count two. We overrule appellant’s issues on appeal.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
January 13, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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