                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00133-CR


JOHN MICHAEL HENSCHEID                                             APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE COUNTY COURT AT LAW OF COOKE COUNTY

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                         MEMORANDUM OPINION1
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      The trial court convicted Appellant John Michael Henscheid of violating a

protective order, assessed punishment at confinement in the county jail for 180

days, suspended this sentence, and ordered community supervision for a period

of 365 days. Appellant challenges the sufficiency of the evidence to support his

conviction. We affirm.




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       See Tex. R. App. P. 47.4.
                                Factual Background

         Incident to divorce proceedings between Appellant and Rose Mary

Henscheid, the trial court issued a protective order on April 2, 2009, prohibiting

Appellant from, among other things, communicating with Rose Mary in a

threatening or harassing manner or communicating in any manner with Rose

Mary except through his attorney or a person appointed by the court.

         On October 15, 2009, Rose Mary parked her car in front of Acme Dry

Cleaners, and as she exited her car, Appellant pulled up behind her car, blocking

her in. He rolled down the window, smiled at her, laughed, and said, “I just

wanted to say hi.” Visibly shaken, Rose Mary hurried into the dry cleaners and

remained there until Appellant left a few minutes later.

         Appellant was charged by information with a violation of the protective

order.     The information accused Appellant of “intentionally and knowingly

communicating directly with Rosemary [sic] Henscheid, a member of the family,

in a threatening or harassing manner, to wit: defendant communicated directly

with Rosemary [sic] Henscheid and not through her attorney or a person

appointed by the court.” Appellant requested a bench trial and pleaded not guilty

before the court.

                                     Testimony

         Three witnesses testified at trial:   Rose Mary, the complainant; Tracy

McCain, the clerk at Acme Dry Cleaners; and the responding officer. Rose Mary

testified that she obtained a protective order against her husband because of his

explosive behavior and because he had threatened to kill her and put her in a

wooden box at the bottom of Muenster Lake. She further testified that she first

saw Appellant at the cleaners on October 15, 2009, after she parked in the


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parking lot and got out of the car. She described how he pulled his truck directly

behind her and blocked her vehicle in. She testified that she felt threatened and

became scared when Appellant rolled down his window, laughed, smiled, and

said hi. Rose Mary explained that she felt threatened and frightened by his

presence at the cleaners because of his threats to her in the past and the fact

that he seemed to believe he could do whatever he wanted despite the protective

order.

         McCain, the clerk at the cleaners, testified that when Rose Mary entered

the business she looked terrified and was very pale and shaking. McCain saw

the truck directly behind Rose Mary’s car and testified that the truck was blocking

Rose Mary’s car from leaving. Although McCain did not see the driver of the

truck or hear anything that had been said, she saw that the window of the truck

was rolled down. McCain testified that she asked Rose Mary if she should call

the police and that Rose Mary did not respond for two to three minutes, but

ultimately agreed that she should. The responding officer described Rose Mary

as startled, shaking, upset, and frightened.

                            Sufficiency of the Evidence

         In his first two issues, Appellant argues that the evidence is legally and

factually insufficient. In his third issue, Appellant contends, without authority, that

his words cannot be considered harassing as a matter of law. We first note that

it is well established that a threat “can be conveyed in more varied ways than

merely a verbal manner.” McGowan v. State, 664 S.W.2d 357, 359 (Tex. Crim.

App. 1984). Thus, we overrule Appellant’s third issue. As to Appellant’s first and

second issues, in light of the holding in Brooks v. State that there is no

meaningful distinction between the legal sufficiency standard and the factual


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sufficiency standard, we will evaluate the first two issues only under a legal

sufficiency standard. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010).

      In reviewing the 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). In a bench trial, the trial judge, as the trier of fact, is the

exclusive judge of the credibility of the witnesses and the weight to be given to

their testimony. Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency

review, we may not re-evaluate the weight and credibility of the evidence and

substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007).

      Appellant contends that the evidence is legally insufficient to support his

conviction because the State did not prove that he communicated in a

threatening and harassing manner as alleged in the information.             A person

threatens another when he declares an intent or determination to inflict injury or

loss or indicates probable evil, violence, or loss to come. Patton v. State, 835

S.W.2d 684, 687 (Tex. App.—Dallas 1992, no pet.). A person harasses another

when he persistently disturbs, bothers continually, or pesters that person.

Patton, 835 S.W.2d at 687. The information in this case further alleged that

Appellant violated the protective order by communicating directly with the

complainant and not through her attorney or a person appointed by the court.


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See Tex. Penal Code Ann. § 25.07(a)(2) (Vernon Supp. 2010). We hold that the

evidence is sufficient to support the trier of fact’s finding, beyond a reasonable

doubt, that the manner in which Appellant communicated to Rose Mary was

harassing, that Appellant communicated directly with Rose Mary and not through

his attorney or a person appointed by the court, and that Appellant intentionally

violated a protective order. We overrule Appellant’s first and second issue and

affirm the trial court’s judgment.




                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 14, 2011




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