Anthony Desean Williams A/K/A Anthony Williams v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-201-CR
ANTHONY DESEAN W ILLIAMS
A/K/A ANTHONY W ILLIAMS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two points, Appellant Anthony DeSean W illiams a/k/a Anthony W illiams
appeals his conviction for violation of a protective order. W e affirm.
II. Factual and Procedural History
On December 19, 2007, seventy-three-year-old Lucille W illiams applied for a
protective order and a temporary ex parte order against her son, W illiams, to prevent
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 See Tex. R. App. P. 47.4.
any acts of family violence against her. On January 7, 2008, the trial court issued
the protective order, which was valid for two years. At the time that Lucille applied
for the protective order and at its issuance, W illiams was incarcerated in the Tarrant
County Jail.
On June 27, 2008, just a few days after being released from jail, W illiams
arrived at Lucille’s home and tried to enter, first by using his key and then by ringing
the doorbell. W hile Lucille called the police, W illiams went around to the back of the
house and forced his way in by kicking the door off its hinges. After entering the
house, he kicked a box fan, denting it, and he kicked in the glass door of the stove,
shattering it. He shoved Lucille onto the resulting shards of glass on the floor, which
cut her legs.
Fort Worth Police Officer Daniel Davis responded to Lucille’s 911 call, which
was played for the jury, and he photographed her injury and the property damage.
W illiams left before Officer Davis arrived, but Lucille told him that W illiams would be
at his father’s house, a few blocks away. Officer Davis found W illiams at his father’s
house and, after discovering via dispatch that there was a protective order protecting
Lucille from W illiams, arrested W illiams for violating it. A jury found W illiams guilty
of violating the protective order and sentenced him to eight years’ confinement. This
appeal followed.
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III. Sufficiency of the Evidence
W illiams complains that the evidence is not legally and factually sufficient to
support his conviction because the State failed to show that he was aware that the
protective order had been issued against him.
A. Applicable Law
Williams was charged in the indictment with intentionally or knowingly violating
the protective order by intentionally causing bodily injury to Lucille by pushing her to
the floor. A person commits the offense of violation of a protective order if, in
violation of an order issued under chapter 85 of the family code, among others, he
knowingly or intentionally commits family violence. See Tex. Penal Code Ann. §
25.07(a)(1) (Vernon Supp. 2009); Harvey v. State, 78 S.W .3d 368, 370 (Tex. Crim.
App. 2002). Furthermore, there is a culpable mental state for the element “in
violation of an order” because the meaning of that term necessarily requires some
knowledge of the order—that is, the respondent must know of the order, or at least
of the application for the order, for him to be able to violate it. Harvey, 78 S.W .3d
at 371, 373 (“The requirements are only that the respondent be given the resources
to learn the [protective order’s] provisions; that is, that he be given a copy of the
order, or notice that an order has been applied for and that a hearing will be held to
decide whether it will be issued.” (emphasis added)).
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B. Evidence Pertaining to Knowledge
The application for protective order, the temporary ex parte order and show
cause order (“temporary order”), and the protective order were entered in evidence
at trial. They each bear an officer’s return signed by Deputy Constable Dale Gilliam,
the deputy assigned to provide service of court documents to inmates at the Tarrant
County Jail. Constable Sergio DeLeon testified in Deputy Gilliam’s place because
Deputy Gilliam was home recovering from an on-the-job injury.
Constable DeLeon testified that court documents are hand-couriered to his
department and logged into the county’s mainframe before being dispersed to the
various deputies in his department. W ith regard to service of documents at the
county jail, Constable DeLeon testified that if there is more than one inmate with the
same name, the individual will be identified using his name and date of birth to
determine his location in the jail.
Constable DeLeon described the procedure used by Deputy Gilliam to serve
inmates as first checking his weapon at the jail entrance, then instructing the
elevator operator to deliver him to the particular “pod” where the inmate lives, and
then meeting the pod’s deputy, who escorts him to the pod where “the inmate is then
called out to receive service of process.” He stated that Deputy Gilliam will then ask
the particular defendant, “[A]re you so and so,” and when the particular defendant
replies, “[Y]es,” Deputy Gilliam serves the court document.
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Constable DeLeon further testified that after a defendant has been served, a
deputy is “instructed by law[] to fill out the return, and that’s, basically, who served
it, who was served, the date and time it was served, and then . . . get that back to the
court in an expeditious manner.” He noted that occasionally a signature is required
by the person receiving service but that usually this is a requirement set out by the
plaintiff, and in “a majority, 99 percent of our particular serves, we’re just there to
serve the defendant and then that’s it.” He testified that protective orders do not
require a signature by the person receiving service.
Constable DeLeon testified that all three documents were served on W illiams
at the Tarrant County Jail and that he had never had any problems with Deputy
Gilliam delivering documents according to their operating procedures. He stated that
Deputy Gilliam delivered the protective order application and temporary order to
W illiams on December 20, 2007, in person at the Tarrant County Jail, at 4:25 p.m.
Each document contained the officer’s return stating that Deputy Gilliam delivered
it “to the within named Anthony D. W illiams in person” and notice that a hearing
would be held on January 7, 2008. Constable DeLeon also testified that on January
10, 2008, Deputy Gilliam received the protective order issued on January 7 at 11:00
a.m. and served it to W illiams at 3:45 p.m. The officer’s return states that Deputy
Gilliam delivered it “to the within named Anthony D. W illiams.”
On cross examination, Constable DeLeon gave the following testimony:
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Q. And even though you didn’t actually serve any of the papers in this
case, you have a procedure that everybody follows, correct?
A. Correct.
Q. I mean, you do the same thing over and over in the same way every
time. That way, you can come in and say, “This is how we do it,” and
“I know this is how we do it because that’s the way we do it all the
time”?
A. Correct.
Q. And with very few exceptions, would you agree with me, that’s the
way it’s done?
A. Sure.
Q. And there might be an exception somewhere, but as a general rule,
that’s not the case; would you agree with me on that?
A. Yes, sir, I would.
C. Legal Sufficiency
1. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
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, 319, 99
S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.
2007).
2. Application
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W illiams argues that the State presented no evidence that he had actual
notice of the protective order’s existence. 2 Under Harvey, however, the State only
had to present sufficient evidence that W illiams had notice that Lucille applied for an
order and that the court would hold a hearing on that application. See 78 S.W .3d at
373. The legal sufficiency standard of review is the same for direct and
circumstantial evidence cases. Clayton, 235 S.W .3d at 778.
Here, Constable DeLeon’s testimony and the returns of service on the
documents themselves establish that Deputy Gilliam served W illiams with the
application, the temporary order, and the protective order. See Sauve v. State, 638
S.W .2d 608, 610 (Tex. App.—Dallas 1982, pet. ref’d) (explaining in a juvenile
transfer case that a facially valid officer’s return carries a presumption of the truth of
the facts stated on the return and of regularity; this presumption can only be rebutted
by testimony coupled with corroborating facts and circumstances). Therefore,
viewing all of the evidence in the light most favorable to the prosecution, we
conclude that the jury could have found beyond a reasonable doubt that W illiams
received notice of the application, the temporary order, and the protective order and,
therefore, that he intentionally or knowingly violated the protective order by his
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 W illiams does not challenge the sufficiency of the evidence to support the
offense’s remaining elements and, based on our review of the record, there is
sufficient evidence to support them. That is, the State demonstrated that a
protective order had been issued against W illiams for Lucille’s protection and that
W illiams violated it by intentionally causing bodily injury to Lucille by pushing her to
the floor.
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actions on June 27, 2008. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W .3d at 778. W e overrule W illiams’s second point.
D. Factual Sufficiency
1. Standard of Review
W hen reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State,
280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006). W e then ask whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the factfinder’s
determination is clearly wrong and manifestly unjust or whether conflicting evidence
so greatly outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204
S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,
with some objective basis in the record, that the great weight and preponderance of
all the evidence, although legally sufficient, contradicts the verdict. Watson, 204
S.W .3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we must
give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson v.
State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.
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Evidence is always factually sufficient when it preponderates in favor of the
conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.
2. Application
In his first point, attacking the factual sufficiency of the evidence, W illiams
contends that no one testified that he was actually notified of the protective order’s
existence, that Constable DeLeon based his testimony on his deputy’s records and
not on personal knowledge, and that no one testified that W illiams was the same
W illiams who received service.
A factual sufficiency review of circumstantial evidence is the same as a review
of direct evidence. King v. State, 29 S.W .3d 556, 565 (Tex. Crim. App. 2000);
Kutzner v. State, 994 S.W .2d 180, 184 (Tex. Crim. App. 1999) (reasoning that
“[c]ircumstantial evidence, by itself, may be enough to support the jury’s verdict”).
Notwithstanding Constable DeLeon’s testimony that Deputy Gilliam properly served
W illiams with the protective order on January 10, 2008, the State also put forth the
only evidence that Harvey requires—evidence showing that W illiams was notified of
the application and of the impending hearing. See Harvey, 78 S.W .3d at 373. And
Constable DeLeon testified extensively about the procedures used to identify the
correct inmate for service of process in the county jail. Considering all of the
evidence in a neutral light, we hold that the proof of notice is not so weak that the
jury’s determination that W illiams intentionally or knowingly violated the protective
order is clearly wrong and manifestly unjust. See Steadman, 280 S.W .3d at 246.
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And there is no conflicting evidence in the record to outweigh the evidence
supporting the conviction or that would render the jury’s determination manifestly
unjust. See id.; Watson, 204 S.W .3d at 414–15, 417; cf. Polley v. State, No.
11-03-00340-CR, 2004 W L 2964785, at *2 (Tex. App.—Eastland Dec. 16, 2004, pet.
ref’d) (not designated for publication) (holding that the evidence was factually
sufficient to establish notice of the protective order based on a witness’s testimony,
even though return of service was not introduced in evidence). Accordingly, we
overrule W illiams’s first point.
IV. Conclusion
Having overruled both of W illiams’s points, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and W ALKER, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 8, 2010
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