                                                                          ACCEPTED
                                                                      03-14-00138-CR
                                                                              5177643
                                                           THIRD COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                                  5/6/2015 2:47:48 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
                     NO. 03-14-00138-CR
                IN THE COURT OF APPEALS
                                                      FILED IN
                                               3rd COURT OF APPEALS
                         FOR THE                   AUSTIN, TEXAS
                                               5/8/2015 8:38:00 AM
      THIRD SUPREME JUDICIAL DISTRICT         OFJEFFREY
                                                   TEXAS   D. KYLE
                                                       Clerk



               LARRY DEWAYNE GARRETT,
                       APPELLANT
                            vs.
                   THE STATE OF TEXAS
                       APPELLEE


                   APPELLANT'S BRIEF
        ON APPEAL FROM COUNTY COURT AT LAW
           NUMBER ONE, BELL COUNTY, TEXAS
                       NO. 2C1307176


                                  Bobby Dale Barina
                                  State Bar# 01738480
                                  Attorney for Appellant
                                  455 East Central Texas Expwy
                                  Suite 104
                                  Harker Heights, Texas 76548
                                  Telephone: (254) 699-3755
                                  Telecopier: (254) 699-1074
                                  bobbydalebarina@barinalaw.com

Oral Argument is not Requested
                   Identity of Parties and Counsel
     Appellant, pursuant to Rule of Appellant Procedure 38.1(a),
provides the following list of all parties to the trial court's judgement
and the names and addresses of all trial and appellant counsel.


Larry Dewayne Garrett                    Appellant
Judge John Mischtian                     Trial Judge
Judge of County Court at Law
Number Two
1201 Huey Road
Belton Texas, 76513

Mark Currier                             Trial Counsel for the State
Assistant County Attorney                Appellant Counsel for the State
Bell County Attorney's Office
SBOT No. 00793575
1201 Huey Road
Belton Texas, 76513

Mr. Michael White                        Trial Counsel for the Appellant
SBOT No. 00785231
100 Kasberg Drive, Suite A
Temple, Texas 76502

Bobby Dale Barina                        Appellant Counsel for the
SBOT No. 01738480                        Appellant
455 East Central Texas Expressway
Suite 104
Harker Heights, Texas 76548




                                                                            ii
went to jail on September 13, 2013. (3 R.R. at 39) He was in jail the

entire time. (3 R.R. at 43) The Appellant was brought from the jail to

the courtroom for the hearing on the divorce. (3 R.R. at 42)

REDIRECT EXAMINATION (3 R.R. at 45)

     During a hearing outside the presence of the jury, the State

summarized expected testimony in order to have the court allow the

question and answers on the subject. (3 R.R. at 47) The expected

testimony was that the Appellant had been in jail at the time of the

protective order. She had spoken to one of the prosecutors to get the

case, for which he was in jail, reduced to a class c misdemeanor. This

resulted in the Appellant actually being released from jail. (3 R.R. at 48,

50) Additionally, this prevented him from going back to prison on a

parole violation, if he were convicted of an assault causing bodily injury

on a family member. There was also a terroristic threat charged. (3 R.R.

at 50) This assault was the basis of the protective order. (3 R.R. at 48)

The Appellant objected to bolstering (3 R.R. at 48, 49) and that the

prejudice of the evidence outweighed any probative value. (3 R.R. at 49)

The court overruled the objection (3 R.R. at 49) and directed no mention

of the parole. (3 R.R. at 49) The court ruled the Appellant had opening
                                     5
                                               Index of Authorities
                                                                                                                  Page Number

Federal Cases

Jackson v. Virginia, 443 U.S. 307, 318-19, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
  ......................... ······ ............................. ·························· ............................................. 16
Jackson, 443 U.S. at 319, 99 S.Ct. 2781 ..................................................................... 19
State Cases

Brooks v. State, 323 S.W.3d 893, 902 (Tex.Crim.App.2010) ...................................... 16
Brooks, 323 S.W.3d at 902........................................................................................... 20
Chapter 85 of the Family Code ...................................................................................... 19
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007) ..................................... 16
Gharbi v. State, 131 S.W.3d 481, 482-83 (Tex.Crim.App.2003) ................................ 16
Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App.2001) ..................................... 16
Gray v. State, 152 S.W.3d 125, 127-28 (Tex.Crim.App.2004) ................................... 16
Harvey v. State, 78 S.W.3d 368, 370-71 (Tex.Crim.App.2002) .................................. 17
Harvey, 78 S.W.3d at 370-71 ...................................................................................... 19
Harvey, 78 S.W.3d at 371 ............................................................................................ 17
Malik v. State, 953 S.W.2d 234, 236-40 (Tex.Crim.App.1997) .................................. 16
Malik, 953 S.W.2d at 237 ............................................................................................ 16
Section 6.504 .......................................................................................................... 18, 19
Villarreal, 286 S.W.3d at 327 ...................................................................................... 19
State Statutes

25.07 of the Texas Penal Code .......................................................................... 1, 15, 19
Article 17.292, Code of Criminal Procedure ............................................................... 15
Chapter 83, Family Code ............................................................................................ 15
Chapter 85, Family Code ............................................................................................ 15
Chapter 88, Family Code ............................................................................................ 15
Section 6.504, Family Code ......................................................................................... 15
TEX. PENAL CODE ANN. § 25.07(a) ............................................................ 15, 16, 18
TEX. PENAL CODE ANN. § 25.07(a)(1)-(5) .............................................................. 15
TEX. CODE CRIM. PROC. ANN. art. 36.14 ............................................................... 16
Rule of Appellant Procedure 38.1(a) ................................................. ii




                                                                                                                                         iv
                          NO. 03-14-00138-CR
                    IN THE COURT OF APPEALS
                                FOR THE
       THIRD SUPREME JUDICIAL DISTRICT OF TEXAS


            LARRY DEWAYNE GARRETT, APPELLANT
                                    VS.
                THE STATE OF TEXAS, APPELLEE

                        APPELLANT'S BRIEF
To the Honorable Court of Appeals:
 STATEMENT OF THE NATURE AND RESULT OF THE CASE
     The Appellant was charged with violation of a protective order.

The offense alleged was a violation of 25.07 of the Texas Penal Code. A

jury convicted Larry Dewayne Garrett of Violation of a Protective

Order. (C.R. at 21), (4 R.R. at 93). The Jury assessed his punishment at

180 days confinement in the county jail, and a five hundred dollar fine.

(C.R. at 24), (4 R.R. at 33-34). The trial court, the Honorable Judge

John Mischtian, Judge of County Court at Law Number Two, sentenced

Larry Dewayne Garrett in accordance with the verdict. Larry Dewayne

Garrett timely flied this notice of appeal. (C.R. at 29)



                                     1
                  Statement Regarding Oral Argument

    Oral argument will not aid the Court's decisional process in this
appeal.
                       STATEMENT OF FACTS

Volume 3 of7

January 27, 2014 (3 R.R. at 5)

      The Court called the case and both sides announced ready. (3 R.R.

at 5) The state read the indictment. (3 R.R. at 5-7) The charge was

violation of a protective order. The Appellant entered a plea of not

guilty. (3 R.R. at 6) The state's witnesses were sworn in. (3 R.R. at 8)

The state made his opening statement. (3 R.R. at 9-11) The Appellant

reserved the right to open. (3 R.R. at 11) The rule was invoked. (3 R.R.

at 12)

STATE'S CASE-IN-CHIEF

MARINA GARRETT (3 R.R. at 13)

     The state's frrst witness was Marina Garrett. She lived in Temple,

Bell County Texas. (3 R.R. at 13) She lived with her fifteen year old

daughter, identified as T.C. and her six year old son identified as

identified as L.G. (3 R.R. at 14)

                                     2
     She worked at Scott and White Hospital as an imaging specialist.

At the time of the trial the Appellant was her ex-husband. (3 R.R. at 14)

She identified the Appellant in the courtroom. (3 R.R. at 14-15) She had

obtained a protective order against the Appellant in June of 2013. (3

R.R. at 15)

     One of the conditions of the protective order was that the

Appellant was not to go within a thousand feet of her residence. Her

residence was                                                  . (3 R.R. at

16) The state offered a certified copy of the protective order as state's

exhibit number 1 and it was admitted without objection. (3 R.R. at 17)

     On September 10, 2013, she was at home and she heard her dog

barking. She got up to investigate. (3 R.R. at 18) She looked through the

peephole of the front door and she saw the Appellant standing right in

front of the door. (3 R.R. at 14). She told him that she was calling the

law because she had a protective order. He asked her if she had a man

in the house. (3 R.R. at 19) Her daughter came out of her bedroom,

while the Appellant was outside. (3 R.R. at 19, 26) She saw his car

parked outside the front door. (3 R.R. at 20)



                                     3
      The state offered pictures of the home as state's exhibit number 2-

8, and they were admitted without objection. (3 R.R. at 22) She

recognized him and she recognized his voice. She called the police. The

police came to the home. (3 R.R. at 27) She told the police what had

happened. (3 R.R. at 27-28) Once the Appellant left, he did not return.

(3 R.R. at 28) She believed that from the time that the Appellant

knocked on the door to time he left was maybe 5-6 minutes. (3 R.R. at

29)

CROSS-EXAMINATION (3 R.R. at 30)

      She gave a written statement to the police. (3 R.R. at 30) When

asked about how she knew it was the Appellant she stated that she

could see him through the peephole down to his waistline. (3 R.R. at 33)

She looked though the peephole and the window. (3 R.R. at 38) She

described his car as his 1997 Buick LeSabre with the trunk tied down.

(3 R.R. at 36) The car was parked outside her home. (3 R.R. at 37)


      She had flied for divorce and requested a protective order against

the Appellant. (3 R.R. at 42) This gave her an advantage in the divorce

if she could go to court while he was in jail. (3 R.R. at 42) Larry Garrett


                                     4
went to jail on September 13, 2013. (3 R.R. at 39) He was in jail the

entire time. (3 R.R. at 43) The Appellant was brought from the jail to

the courtroom for the hearing on the divorce. (3 R.R. at 42)

REDIRECT EXAMINATION (3 R.R. at 45)

     During a hearing outside the presence of the jury, the State

summarized expected testimony in order to have the court allow the

question and answers on the subject. (3 R.R. at 47) The expected

testimony was that the Appellant had been in jail at the time of the

protective order. She had spoken to one of the prosecutors to get the

case, for which he was in jail, reduced to a class c misdemeanor. This

resulted in the Appellant actually being released from jail. (3 R.R. at 48,

50) Additionally, this prevented him from going back to prison on a

parole violation, if he were convicted of an assault causing bodily injury

on a family member. There was also a terroristic threat charged. (3 R.R.

at 50) This assault was the basis of the protective order. (3 R.R. at 48)

The Appellant objected to bolstering (3 R.R. at 48, 49) and that the

prejudice of the evidence outweighed any probative value. (3 R.R. at 49)

The court overruled the objection (3 R.R. at 49) and directed no mention

of the parole. (3 R.R. at 49) The court ruled the Appellant had opening
                                     5
the door to this testimony. (3 R.R. at 50) The final ruling was that the

state could offer that the Appellant was in jail. (3 R.R. at 51)

     The jury returned to the courtroom. (3 R.R. at 52) In June when

the protective order was issued the Appellant was already in the county

jail. (3 R.R. at 52) He was brought over from the jail to the courtroom. (3

R.R. at 52) The protective order was based on charges where she was

the complaining victim. (3 R.R. at 52) She requested that the charges be

reduced so he would not go away for a long time. (3 R.R. at 53) The

result was that he was released from the county jail shortly after. (3

R.R. at 53) The Appellant offered her statement was defense exhibit

number one and it was admitted without objection. (3 R.R. at 54)

RE-CROSS EXAMINATION (3 R.R. at 54)

     Defense Counsel questioned her about an affidavit that was

marked as Defendant's exhibit number 2. (3 R.R. at 54) This was

introduced into the evidence without objections. (3 R.R. at 55) In the

affidavit she referred to an argument that was minor. Where no one

was hurt and she did not want to press charges. (3 R.R. at 55)




                                     6
FURTHER DIRECT EXAMINATION (3 R.R. at 60)

     She signed the defense exhibit number 2 with the intent of

helping the Appellant. She bonded him out of jail. (3 R.R. at 62)


     The state reviewed State's Exhibit number 9, which was a police

report, with her. She stated in the report that she wanted him to get

help. (3 R.R. at 63)

T.C. A Minor Child (3 R.R. at 70)

     She was Marina Garrett's daughter and The Appellant's former

step daughter. (3 R.R. at 71) She lived at the same address as her

mother. (3 R.R. at 70) She identified the Appellant in the courtroom. (3

R.R. at 71)

     She testified about what occurred on September 10, 2013. She

lived with her mother and her brother. (3 R.R. at 72) She spoke about

what happened about 2:00A.M. She had gone to bed around 11;45 P.M.

on September 9, 2013. (3 R.R. at 73) She woke up because the Appellant

had come to the house. (3 R.R. at 73) She recognized his voice and she

saw him though the peephole. (3 R.R. at 75) He left before the police

arrived. She spoke to the police officers. (3 R.R. at 77)

                                      7
CROSS-EXAMINATION (3 R.R. at 78)

        She gave a statement to the police. (3 R.R. at 79) She met with the

prosecutors and she gave another statement. (3 R.R. at 79)


REDIRECT EXAMINATION (3 R.R. at 85)

        The state showed the witness State's Exhibit Number 10. She

recognized it as a statement. Someone else wrote it and she signed it. (3

R.R. at 85)


        It was dated March 12, 2013. (3 R.R. at 85) The incident described

in the statement was on March 12, 2013.


RE-CROSS EXAMINATION (3 R.R. at 86)

        She was mistaken about making a statement about the events of

September 10, 2013. (3 R.R. at 86)

VOLUME40F7

January 28, 2014. (4 R.R. at 6)


        The court called the case and both sides announced ready. (4 R.R.

at 6)



                                      8
BILLY BURCH (4 R.R. at 7)

      He was a Temple Police Officer. (4 R.R. at 7) He was dispatched to

                                        . (4 R.R. at 9) The call was for a

domestic disturbance. He spoke with Marina Garrett. (4 R.R. at 9) She

was upset and she described her ex-husband coming to the door and

banging on the door. (4 R.R. at 10) She provided an active protective

order. (4 R.R. at 10)

      Her address was listed in the protective order as a place where the

respondent was prohibited from going. (4 R.R. at 11) He then spoke to

the person's daughter while he was there. (4 R.R. at 12) Her story was

the same as her mother's. (4 R.R. at 12) He did ask the daughter for a

statement. (4 R.R. at 12)

CROSS-EXAMINATION (4 R.R. at 13)

      He did not included in his report that he spoke to the daughter

(T.C.). (4 R.R. at 16)


REDIRECT EXAMINATION (4 R.R. at 28)

      He had Marina Garett write out a statement. (4 R.R. at 29)


                                    9
STATE RESTS (4 R.R. at 32)

DEFENSE CASE IN CHIEF (4 R.R. at 34)

LARRY DEWAYNE GARRETT (4 R.R. at 34)

      He was the Appellant. The focus of the questioning was directed to

the events of September 10, 2013. (4 R.R. at 35) He was married during

September of 2013. He recognized T.C. as present at court. (4 R.R. at

35)

      He did not live at                                       during

September of 2013. He did not go there. (4 R.R. at 35) He was never in

front of the home, he never at the entryway, on the porch or thousand

feet around the property. (4 R.R. at 36)


      He had a lab part mixed dog at the residence. (4 R.R. at 37) He

testified that the dog would not bark at him. (4 R.R. at 37)

CROSS-EXAMINATION (4 R.R. at 41)

      He was present in Judge Trudo's court in June 2013 for the

protective order hearing. (4 R.R. at 42) He was informed that the

protective order had been issued against him. (4 R.R. at 42) He was


                                    10
ordered to stay a thousand feet away from

               . (4 R.R. at 42) He testified that is why he honored the

protective order. (4 R.R. at 43) He had never violated the protective

order. He has left Marina Garrett and her daughter alone. (4 R.R. at 43)

     He did not do anything to her. (4 R.R. at 45) He did not have

contact with T.C. (4 R.R. at 45) He did offer that it might have been

another who approached the home. (4 R.R. at 47) He testified that he

was pulled over by a bounty hunter who asked about someone else.

This bounty hunter may have been the person that his ex-wife saw at

her home. (4 R.R. at 47) He attempts to clarify this throughout his

testimony. While it is confusing testimony, he does maintain that he did

not approach the home. He knows that she did not see him there. (4

R.R. at 55)


     He testified that he was a convicted felon (48) and that he was on

parole. (4 R.R. at 49)

     He was shown state's exhibit number 11. He wrote it to Judge

Trudo. (4 R.R. at 56) It stated that the bounty hunter went by and

violated hiss restraining order for him. (4 R.R. at 57) It appeared that


                                    11
he was trying to explain or figured out why he was in jail. (4 R.R. at 58)

The bounty hunter told him that he was going by there to look for

someone. (4 R.R. at 59)

REDIRECT EXAMINATION (4 R.R. at 59)

DEFENSE RESTED (4 R.R. at 64)

STATE CLOSES (4 R.R. at 64)

JURY VERDICT (4 R.R. at 93)

     The jury found beyond a reason doubt that the appellant was

guilty of the offense of violation of a protective order. (4 R.R. at 93)


VOLUME50F7

SENTENCING HEARING

January 28, 2014

     The court called the case and both sides announced ready. Both

sides waived opening statements. (5 R.R. at 5)




                                      12
STATE'S CASE IN CHIEF

T.C. A Minor Child (5 R.R. at 6)

     The State's first witness was the child T.C. (5 R.R. at 6) She had

called the police in March. (5 R.R. at 6) She called 911late at night. (5

R.R. at 6) She heard a disturbance in the front room. (5 R.R. at 7) Her

little brother was in the front room and he had started screaming. (5

R.R. at 7) She saw the Appellant on the couch with her mother over his

lap. There had been previous incidents. Therefore, she called 911. (5

R.R. at 8). The Appellant told her mother that he was going to kill her.

(5 R.R. at 8)


BILLY BURCH (5 R.R. at 10)

     He testified during the guilt/ innocence portion of the trial.

responded to the same address on March 12, 2013. On that date, he

stayed with the Appellant and the other responding officers took

statements. (5 R.R. at 11) The Appellant was agitated. (5 R.R. at 11)

STATE RESTED (5 R.R. at 12)




                                    13
DEFENSE CASE IN CHIEF

LARRY DEWAYNE GARRETT (5 R.R. at 13)

      He testified about the incident on March 12. (5 R.R. at 13)


VERDICT (5 R.R. at 33)

      The jury assessed punishment at 180 days confinement in the

county jail (5 R.R. at 33) and a fine of five hundred dollars. (5 R.R. at

34)




                                     14
                           POINT OF ERROR
     The evidence was insufficient to support the Appellant's conviction
because the State failed to establish under what statute the restraining
order Appellant violated was issued.

                ARGUMENT AND AUTHORITIES
               ON POINT OF ERROR NUMBER ONE

     The evidence was insufficient to support his conviction because

the State failed to establish under what statute the restraining order

Appellant violated was issued. The Appellant was convicted of violating

section 25.07 of the Texas Penal Code. This section states that "A

person commits an offense if, in violation of a condition of bond set in a

family violence case and related to the safety of the victim or the safety

of the community, an order issued under Article 17.292, Code of

Criminal Procedure, an order issued under Section 6.504, Family Code,

Chapter 83, Family Code, if the temporary ex parte order has been

served on the person, or Chapter 85, Family Code, or an order issued by

another jurisdiction as provided by Chapter 88, Family Code, the person

knowingly or intentionally.... " TEX. PENAL CODE ANN. § 25.07(a)

(West 2010). The statute then set forth various types of conduct that

will complete the commission of the offense. TEX. PENAL CODE ANN.

§ 25.07(a)(1)-(5) (West 2013).

                                    15
      The standard of review for evidentiary sufficiency challenges.

Jackson v. Virginia, 443 U.S. 307, 318-19, 324, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 902

(Tex.Crim.App.2010); Clayton v. State, 235 S.W.3d 772, 778

(Tex.Crim.App.2007). The sufficiency of the evidence is measured

against the elements of the offense as defined by the hypothetically

correct jury charge for the case. Gharbi v. State, 131 S.W.3d 481, 482-

83 (Tex.Crim.App.2003); Gollihar v. State, 46 S.W.3d 243, 254

(Tex.Crim.App.2001); Malik v. State, 953 S.W.2d 234, 236-40

(Tex.Crim.App.1997). A hypothetically correct jury charge is one that

accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State's burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the

particular offense for which the defendant was tried. Malik. 953 S.W.2d

at 237. See also TEX.CODE CRIM. PROC. ANN. art. 36.14 (West 2012);

Gray v. State, 152 S.W.3d 125, 127-28 (Tex.Crim.App.2004) (trial

court's charge to the jury must set forth the "law applicable to the

case").

      One of the elements of the offense under 25.07(a) of the Texas


                                     16
Penal Code is that the culpable act be performed in violation of an order

issued under one ofthe enumerated statutes. Harvey, 78 S.W.3d at

371. See Villarreal v. State, 286 S.W.3d 321 (Tex.Crim.App.2009),

where the court addresses the evidentiary sufficiency and stated that

the hypothetically correct jury charge for that prosecution under section

25.07 would include the fact the defendant acted "in violation of an

order issued ... under Article 17.292, Code of Criminal Procedure .... "

     Here the evidence was insufficient. The Texas Court of Criminal

Appeals addressed this in Harvey v. State, 78 S.W.3d 368, 370-71

(Tex.Crim.App.2002). There, the court said, "[s]ection 25.07(a) makes it

an element of the offense that the culpable act be performed in violation

of an order issued under [the enumerated statutes]." Harvey, 78 S.W.3d

at 371.

     The State's amended information of appellant alleged multiple

statutory authority under which the protective order was issued, and

the evidentiary record is silent on the question. There was evidence the

protective order was in effect at the time of appellant's violative

conduct, and a copy of the protective order was in evidence. The order,

which was introduced as State's exhibit number one, does not states


                                     17
which specific Family Code provision under which it was issued from

among those listed in section 25.07(a). In fact it does list any provision

of the Family Code to indicate under what provision to order was

Issues.


     The amended information states that "go to and within a thousand

feet of the residence of MARINA GARRETT at

                                              who was then and there a

protected individual and a member of the family and household of the

Defendant, and such act was in violation of an order issued under

Section 6.504 and Chapter 85 and Family Code and under Article

17.292 and Chapter 7A of the Code of Criminal Procedures and by

another jurisdiction as provided by Chapter 88 Family Code, in the

264'" Judicial District Court" (C.R. at 8) The Court's charge has two

different family code provisions in the application paragraph. The

application paragraph states "Now, if you find from the evidence beyond

a reasonable doubt that on or about the lOth day of September, 2013, in

Bell County, Texas, the defendant, Larry Garrett, did then and there

intentionally or knowingly go to or within a thousand feet of the residence

of Marina Garrett at                                                   ,

                                     18
      , who was then and there a protected individual or a member of the

family or household of the Defendant, and such act was in violation of a

court order issued under Section 6.504 or Chapter 85 of the Family Code in

the 264th Judicial District Court, then you will find the defendant guilty of

a misdemeanor as charged in the information. But, unless you so find

beyond a reasonable doubt, or you have a reasonable doubt thereof, you will

find the defendant not guilty." C.R. at 18 This shows that jury was not

informed of which statute the protective order was issued against the

Appellant. Therefore the evidence was insufficient to support the

Appellant's conviction because the State failed to establish under what

Family Code section the protective order was issued. This is essential in

this case because the State was required to show the protective order

was issued under the authority of one of the statutes listed in Penal

Code section 25.07(a). Villarreal, 286 S.W.3d at 327; Harvey, 78 S.W.3d

at 370-71.


     Once all of the evidence is considered in the light most favorable to

the judgment, it is clear that a rational trier of fact could not have

found, beyond reasonable doubt, that element of the alleged violation of

section 25.07. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Brooks, 323

                                     19
S.W.3d at 902. Therefore this court should sustain the Appellant's Point

of Error and reverse the judgment of the trial court, and render a

judgment of acquittal.

                            CONCLUSION


          Because the evidence is insufficient to support the Appellant's

conviction the judgement of the trial court should be reversed and a

judgement of acquittal.

                                PRAYER

        WHEREFORE, PREMISES CONSIDERED, Larry Dewayne

Garrett, Appellant prays this Honorable Court to reverse the judgment

of conviction for Violation of a Protective Order and, rendered or in the



prays for any other relief that he may be e



                                         Attorney for Appellant
                                         455 East Central Texas
                                         Expressway, Suite 104
                                         Harker Heights, Texas 76548
                                         Telephone: (254) 699-3755
                                         Telecopier: (254) 699-1074
                                         bobbydalebarina@barinalaw.com
                                         State Bar No. 01738480
                                    20
                    CERTIFICATE OF SERVICE
         This is to certify that a copy of the above entitled and numbered
brief has been served on the Bell County Attorney's Office, Texas, by
delivery of a true copy to them, by depositing the same, postpaid, in an
official depository und~he care and custody of the United States
Postal Service on the +      day of April, 2015, properly addressed to
James Nichols County Attorney, P.O. Box 1127, lton, Tex , 6513.



                                            BOBBY DALE BARINA


                    CERTIFICATE OF SERVICE
         This is to certify that a copy of the above entitled and numbered
brief has been served on Larry Dewayne Garett, Appellant, by delivery
of a true copy to him, by depositing the same, postpaid, in an official
depository under the care and custody of the United States Postal
Service on the~ day of April, 2015.




                                             OBBY DALE BARu'lrn:----
                                                "
                  CERTIFICATE OF COMPLIANCE
     The undersigned hereby certifies, pursuant to Rule of Appellate
Procedure 9.4(i)(3), that this computer-generated brief contains 3, 779
words. The software is Microsoft Word 2013.




                                    21
                          APPENDIX
1. Amended Information Filed on November 25, 2013.

2. Application paragraph from the Court's Charge (C.R. at 18)

3. The Final Protective Order introduced as State's Exhibit Number

  One.

4. Section 25.07 of the Texas Penal Code




                               22
               APPENDIX. I
Amended Information Filed on November 25, 2013.
AMENDED 2Cl307176
                                                                                                 RLED FOR REr.n~n
mFORMAUON-GENERAL
                                                                                                      NOV 25 2013
IN TilE NAME AND BY AUTHORJTY OF 1HE STATE OF TEXAS:                                                  SHEu.EY COSi ON
                                                                                                 COUNTY CI.K. BfU. CO. TEXAs
   I, James E. Nichols, County Attorney, of the County of Bell, State of Texas, on the written
affidavit of BILLY BURCH, a competent and credible person herewith filed in the Collllty Court-
At-Law No. 2, of Bell County, Texas, do present in and to said Court: That in the County of Bell,
State of Texas, on or about the lOTH DAY OF SEPTEMBER. 2013. A.D., and anterior to the filing
of this information, one LARRY GARRETT, the defendant, did then and there intentionally and

knowingly,

go to and within a thousand feet oftheresidcnceofMARINA GABREIT at                                                                         .
                                                                                                                                                   :;.



who was then and there a protected individual and a member of the family and household of the Defendant. and such act was

in violation of an order issued under Section 6.504 and Chapter 85 and Family Code and under Article 17.292 and Chapter

7A of the Code of Crimirad Procedures and by another jurisdiction as provided by Chapter 88 Family Code,



         in the 264'' Judicial District Court




AGAmSTTHE PEACE AND DIGNITY OF 1HE STATE.


                                                        James E. Nichols
                                                        County uorney, Bell County, Texas
                                                                ' ~·
                                                        By: __~~~------------­
                                                                    Assistant County Attorney




                                                                                                                                                    .,,
                                                                                                                            --
                                           1111111~1111,~ 11m
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                                                                                                                                               -
                      APPENDIX2

Application paragraph from the Court's Charge (C.R. at 18)
     Now, if you find from the evidence beyond a reasonable doubt
that on or about the lOth day of September, 2013, in Bell County,
Texas,   the   defendant,   Larry    Garrett,   did   then   and   there
intentionally or knowingly go to or within a thousand feet of the
residence of Marina Garrett at
                        who was then and there a protected individual
or a member of the family or household of the Defendant, and such
act was in violation of a court order issued under Section 6. 504 or
chapter 85 of the Family code in the 264th Judicial District Court,
then you will find the defendant guilty of a misdemeanor as charged
in the information.     But, unless you so find beyond a reasonable
doubt, or you have a reasonable doubt thereof, you will find the
defendant not guilty.




                                    18
          APPENDIX3
The Final Protective Order introduced as
     State's Exhibit Number One.
    ,
                            I
                                   STATE'S
•                                  EXHIBIT
                                    L
                                                                                        ORIG!NAL
                            I th714 li:                                                                -=
                                                                                                       ;:::;


        MARINA• GARRETT
                                                    NO. 264.361

                                                          §
                                                          §
                                                                 IN THE DISTRICT C
                                                                                                       E
                                                                                                        ""'
                                                                                                        N
                                                                                                        C)
                                                                                                                  -
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                                                                                                                  ~----

                                                                                                                  til
        AND                                               §                                              l>
                                                          §                                               q       0
        LARRYDEWAYNEGARRETT                               §                                                 (JI
                                                                                                            I'

                                         FINAL PROTECTIVE ORDER
                       ~(1,)JJ{:)
                 On Jun~ '26, 2013 the Court heard the Application of MARINA GARRETT for a

        Protective Order.

        Appearances

                 Applicant, MARINA GARRETT, appeared in person and through attorney of record,

        Erena Streltsov, and announced ready.

                 Respondent, LARRY DEWA YNE GARRE1T, appeared in person and announced ready.

        Jurisdiction

                 The Court, after examining the record and hearing the evidence and argument of counsel,

        finds that all necessary prerequisites of the law have been satisfied and that this Court has

        jurisdiction over the parties and subject matter of this case.

        Record

                 A record of the hearing was made by the court reporte(.ofthe 264111 District Court.

        Findings
                                                    ~~:::.J-~~,..
                 The Court finds that Respondent's iQ;me      c;
                                                                  -                 }p.()
                                                                                            ' -..J>.r-
                                                                                               6 ~

               The Court further finds that Applicant and Respondent are intimate partners pursuant to

        18 U.S.C. § 92l(a)(32).

                 The Court finds that family violence has occurred and that family violence is likely to

        occur in the future. The Court finds that Respondent, LARRY DEWAYNE GARRETT, has
committed family violence. The Court finds that the following protective orders are for the

safety and welfare and in the best interest of Applicant and other members of tbe family and are

necessary for the prevention of family violence.

"Protected Person"

         In this order, "Protected Person" means Applicant, TIARA CHAMBERS and LARRY

GARRETT

Orders

         IT IS ORDERED that Respondent, LARRY DEW AYNE GARRETT, is:

         Prohibited from committing fiunily violence as defined by section 71.004 of the Texas

Family Code.

         Prohibit from doing any act that is intended to result in physical harm, bodily injury,

assault, or sexual assault against any Protected Person.

         Prohibited from doing any act that is a threat that reasonably places any Protected Person

in fear of imminent physical harm, bodily injury, assault, or sexual assault.

         Prohibited from committing abuse of a child of the family or household as defined by

Texas Family Code section 261.00l(I)(C), (E), and (G).

         Prohibited from communicating directly with any Protected Person in a threatening or

harassing manner.

         Prohibited from communicating a threat through any person to any Protected Person.

         Prohibited, on the basis of good cause shown, from communicating in any manner with

any Protected Person.

         Prohibited from engaging in conduct directed specifically toward any Protected Person,

including following Protected Person, that is reasonably likely to harass, annoy, alarm, abuse,

torment, or embarrass Protected Person.
        Prohibited from going to or near, or within I 000 FEET of, any location where any

Protected Person is known by Respondent to be and further prohibited from remaining within

I 000 FEET after Respondent becomes aware of Protected Person's presence.

       Prohibited from going to or near the residences or places of employment or business of

any Protected Person. Specifically, Respondent is prohibited !rom going to or near

                            and Respondent must specifically maintain 1000 FEET from that

location.

        Prohibited from going to or near the residences, child-care facilities, or schools TIARA

CHAMBERS and LARRY GARRETT normally attend or in which TIARA CHAMBERS and

LARRY GARRETT normally reside and Respondent must maintain 1000 FEET from any such

location.

        Prohibited from removing TIARA CHAMBERS and LARRY GARRETT from the

possession of MARINA GARRETT.

        Prohibited from harming, threatening, or interfering with the care, custody, or control of a

pet, companion animal, or assistance animal, as defined by section 121.002 of the Texas Human

Resources Code, that is possessed by any Protected Person.

        Prohibited from possessing a firearm or ammunition, unless Respondent is a peace

officer, as defined by section 1.07 of the Texas Penal Code, actively engaged in employment as a

s~m,   full-time paid employee of a state agency or political subdivision.

       Prohibited from interfering with Applicant's use of the residence located at

                        , including but not limited to disconnecting utilities or telephone service

or causing such services to be disconnected.

       IT IS ORDERED        that~~ense to carry a concealed handgun ~as issued to
Respondent, LARRY DEW A YNE GARRETT, under section 411.177 of the Texas Government
   ';t
Code is suspended.
    1..
          IT IS ORDERED that Applicant, MARINA GARREIT, is granted exclusive possession

of the residence located at

          IT IS ORDERED that Respondent enroll in a battering intervention and prevention

progrdlll accredited under article 42.141 of the Texas Code of Criminal Procedure

          IT IS FURTHER ORDERED that Respondent file with the Court, before the sixtieth day

after the date this order is rendered, an affidavit stating either that Respondent has started the

program or that the program is not available within a reasonable distance of Respondent's

residence. IT IS FURTHER ORDERED that, if Respondent files an affidavit that Respondent

has started the program, Respondent shall file with the Court before the date this protective order

expires (I) a statement that Respondent completed the program not later than the earlier of the

thirtieth day before this protective order expires or the thirtieth day before the first anniversary of

the date of this protective order is issued and (2) a letter, notice, or certificate from the program

that verifies Respondent's completion of the program.          If Respondent fails to provide the

affidavit and, if required, the statement and verification of completion of the program as ordered,

Respondent may be punished for contempt of court, as provided by section 21.002 of the Texas

Government Code, by a fine not to exceed $500, by confinement in jail for a term not to exceed

six months, or by both.

          IT IS ORDERED that Applicant is granted exclusive possession of the children, TIARA

CHAMBERS and LARRY GARRETT.

Fees, Charges, and Expenses

          IT IS ORDERED that LARRY DEWAYNE GARRETT shall pay the $16 protective

order fee, the standard fee for cost of service of this order, the costs of court, and all other fees,

charges, or expenses incurred in connection with this order.
       IT IS THEREFORE ORDERED that Respondent shall pay sixteen dollars ($16.00) and

all other costs to the clerk of this Court on or before the sixtieth day after the date this order is

rendered at 1201 Iluey Dr, Belton, TX 76513 by cash, cashier's check, or money ordt:r.

Relief Not Granted

       IT IS 0 RDERED that all relief requested in the Application for Protective Order but not

expressly granted is denied.

Order Forwarded

       A copy of this order, along with the information provided by Applicant's attorney that is

required under section 411.042(b)(6) of the Texas Government Code, shall be forwarded by the

clerk of this Court to the sheriff and the appropriate constable of BELL County, Texas.

Effictive Period

       This order shall continue in full force and effect until June 26, 2015. If LARRY

DEWA YNE GARRETT is confined or imprisoned on the date the Protective Order would

expire, then this Protective order will continue in full force and effect until the first anniversary

of the date that LARRY DEWA YNE GARRETT is released from confinement or imprisonment.

Effect on Previous Order

       The Court finds that an order for emergency protection has been previously issued under

article 17.292 of the Texas Code of Criminal Procedure. The Court further finds that, pursuant

to article 17.292(f-l) of the Texas Code of Criminal Procedure, to the extent that a condition

imposed by that previously issued order conflicts with a condition imposed by this order, this

order supersedes the order previously issued under article 17.292 of the Texas Code of Criminal

Procedure.

Enforcement of Child Custody Provisions

        NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE
REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODY SPECIFIED

IN THIS ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT

ORDER AND THE OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE

IMMUNITY AGAINST ANY CLAIM, CIVIL OR OTHERWISE, REGARDING THE

OFFICER'S GOOD FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S

DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT RELATE TO CHILD

CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN

ORDER THAT IS !NVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT

MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS

AND A FINE OF AS MUCH AS $10,000.

                                    Warnings:

     A PERSON WHO VIOLATES THlS ORDER MAY BE PUNISHED FOR CONTEMPT

OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN JAIL FOR AS

LONG AS SIX MONTHS, OR BOTH.

     NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY TillS ORDER,

MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE A.NY PROVISION OF

THIS ORDER.   DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY

PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT

CHANGES THE ORDER.

     IT IS UNLAWFUL FOR ANY PERSON, OTIIER THAN A PEACE OFFICER, AS

DEFINED BY SECTION 1.07, PENAL CODE, ACfiVELY ENGAGED IN EMI'LOYMENT

AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL

SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A

FIREARM OR AMMUNITION.
     A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY

THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
      ..
CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT

RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED AS A SEPARATE

MISDEMEANOR OR FELONY OFFENSE.           IF THE ACT IS PROSECUTED AS A

SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON

FOR AT LEAST TWO YEARS.

     IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE

ORDER TO POSSESS A FIREARM OR AMMUNITION. POSSESSION OF 1\ FIREJ\RM

OR AMMUNITION, AS DEFINED IN 18 U.S.C. § 921, WHILE THIS PROTECTIVE ORDER

IS IN EFFECT MAY BE A FELONY UNDER FEDERAL LAW l'NISHABLE BY UP TO TEN

YEARS IN PRISON, A $250,000 FINE, OR BOTH.

      PURSUANT TO 18 U.S.C. § 92S(a)(l), THE RESTRICTIONS ON POSSESSION OF

FIREARMS OR AMMUNITION FOUND AT 18 U.S.C. § 922(g)(8), AND IMPOSED BY

THIS PROTECTIVE ORDER, DO NOT APPLY TO FIREARMS OR AMMUNITION

ISSUED BY THE UNITED STATES OR ANY DEPARTMENT OR AGENCY THEREOF OR

ANY $TATE OR ANY DEPARTMENT, AGENCY, OR POLITICAL SUBDIVISION

THEREOF.    WHICH   RESPONDENT    POSSESSES   IN   CONNECTION    WITH   THE

DISCHARGE OF OFFICIAL GOVERNMENT DUTIES.              THE   POSSESSION OF

PRIVATELY    OWNED FIREARMS       AND   AMMUNITION,   HOWEVER,    REMAINS

UNLAWFUL AND VIOLATES TilE TIIERMS OF THIS PROTECTIVE ORDER.

     IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE

ORDER TO KNOWINGLY PURCHASE, RENT, LEASE, OR RECEIVE AS A LOAN OR

GIFT FROM ANOTHER, A HANDGUN FOR THE DURATION OF THIS ORDER.
     INTERSTATE VIOLATION OF TillS PROTECTIVE ORDER MAY SUBJECT

RESPONDENT TO FEDERAL CRIMINAL PENALTIES. THIS PROTECTIVE ORDER IS

ENFORCEABLE IN ALL FIFTY STATES, THE DISTRICT OF COLUMBIA, TRIBAL

LANDS, AND U.S. TERRITOIUES.



                                            -z..te,I 2of3.


                                               I   ·::fc._ _ ____,




     APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE:




                               Respondent




                               Applicant

                                                  CERTIFIED COPY
                                              DOCUMENT ATTACHED IS A
                                              TRUE AND CORRECT COPY
                                              OF THE ORIGINAL ON FILE
           APPENDIX4
Section 25.07 of the Texas Penal Code
§ 25.07. Violation of Certain Court Orders or Conditions of•.. , TX PENAL§ 25.07




  Vernon's Texas Statutes and Codes Annotated
    Penal Code (Refs & Annos)
      Title 6. Offenses Against the Family (Refs & Annos)
        Chapter 25. Offenses Against the Family (Refs & Annos)

                                                 V.T.C.A., Penal Code§ 25.07

                            § 25.07. Violation of Certain Court Orders or Conditions of Bond
                                in a Family Violence, Sexnal Assault or Abuse, or Stalking Case

                                                 Effective: September 1, 2013
                                                         Currentness


(a) A person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault or abuse, or
stalking case and related to the safety of a victim or the safety of the community, an order issued under Article 17.292, Code
ofCnminal Procedure, an order issued under Section 6.504, Family Code, Chapter 83, Family Code, if the temporary ex parte
order has been served on the person, or Chapter 85, Family Code, or an order issued by another jurisdiction as provided by
Chapter 88, Family Code, the person knowingly or intentionally:


  (1) commits family violence or an act in furtherance of an offense under Section 22.011, 22.021, or 42.072;


  (2) communicates:


    (A) directly with a protected individual or a member of the family or household in a threatening or harassing manner;


    (B) a threat through any person to a protected individual or a member of the family or household; or


    (C) in any manner with the protected individual or a member ofthe family or household except through the person's attorney
    or a person appointed by the court, if the violation is of an order described by this subsection and the order prohibits any
    communication with a protected individual or a member of the family or household;


  (3) goes to or near any of the following places as specifically described in the order or condition of bond:


    (A) the residence or place of employment or business of a protected individual or a member of the family or household; or


    (B) any child care facility, residence, or school where a child protected by the order or condition of bond normally resides
    or attends;


  (4) possesses a firearm; or




                                                                          Gcven-;mert: VVorks.
§ 25.07. Violation of Certain Court Orders or Conditions of•.. , TX PENAL§ 25.07




  (5) hanns, threatens, or interferes with the care, custody, or control of a pet, companion animal, or assistance animal that is
  possessed by a person protected by the order.


(a-!) For purposes of Subsection (aX5), possession of a pet, companion animal, or assistance animal by a person means:


  (I) actual care, custody, control, or management of a pet, companion animal, or assistance animal by the person; or


  (2) constructive possession of a pet, companion animal, or assistance animal owned by the person or for which the person
  has been the primary caregiver.


(b) For the purposes of this section:


  (I) "Family violence," "family," "household," and "member of a household" have the meanings assigned by Chapter 71,
  Family Code.


  (2) ''Firearm" has the meaning assigned by Chapter 46.


  (3) "Assistance animal" has the meaning assigned by Section 121.002, Human Resources Code.


  (4) "Sexual abuse" means any act as described by Section 21.02 or 21.11.


  (5) "Sexual assault" means any act as described by Section 22.011 or 22.021.


  (6) "Stalking" means any conduct that constitutes an offense under Section 42.072.


(c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor
may be prosecuted under either section or under hoth sections.


(d) Reconciliatory actions or agreements made by persons affected by an order do not affect the validity of the order or the
duty of a peace officer to enforce this section.


(e) A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may not
arrest a person protected by that order for a violation of that order.


(f) It is not a defense to prosecution under this section that certain information has been excluded, as provided by Section 85.007,
Family Code, or Article 17.292, Code of Criminal Procedure, from an order to which this section applies.




             ---------------
                                                                                                                                 2
§ 25.07. Violation of Certain Court Orders or Conditions of... , TX PENAL§ 25.07



(g) An o:ffense under this section is a Class A misdemeanor, except the o:ffense is a felony of the third degree if it is shown
on the trial of the offense that the derendant:


  (I) has previously been convicted two or more times of an offense under this section or two or more times of an offense under
  Section 25.072, or has previously been convicted of an o:ffense under this section and an offense under Section 25.072; or


  (2) has violated the order or condition of bond by committing an assault or the offense of stalking.


Credits
Added by Acts !983, 68th Leg., p. 4049, ch. 631, § 3, eff. Sept. I, 1983. Amended by Acts !985, 69th Leg., ch. 583, § 3, eff.
Sept I, !985; Acts 1987, 70th Leg., ch. 170, § I, eff. Sept I, 1987; Acts 1987, 70th Leg., ch. 677, § 8, eff. Sept I, !987; Acts
!989, 7lst Leg., ch. 614, §§ 23 to 26, eff. Sept I, !989; Acts !989, 7lst Leg., ch. 739, §§ 4 to 7, eff. Sept I, 1989; Acts 1991,
72nd Leg., ch. 366, § 2, eff. Sept 1, !991. Renumbered from V.T.C.A., Penal Code§ 25.08 and amended by Acts 1993, 73rd
Leg., ch. 900, § l.Ol, eff. Sept I, !994. Amended by Acts 1995, 74th Leg., ch. 658, §§ 2, 3, eff. June 14, 1995; Acts 1995,
74th Leg., ch. 660, §§ 1, 2, eff. Sept I, 1995; Acts 1995, 74th Leg., ch. !024, § 23, eff. Sept 1, 1995; Acts !997, 75th Leg.,
ch. 1, § 2, eff. Jan. 28, !997; Acts 1997, 75th Leg., ch. 1193, § 21, eff. Sept I, 1997; Acts !999, 76th Leg., ch. 62, § 15.02(c),
eff. Sept I, 1999; Acts 200 I, 77th Leg., ch. 23, § 1, eff. Sept I, 200 1; Acts 2003, 78th Leg., ch 134, § 1, eff Sept 1, 2003;
Acts 2007, 80th Leg., ch. 66, § 2, eff. May II, 2007; Acts 2007, 80th Leg., ch. lll3, § § 1, 2, eff. Jan. I, 2008; Acts 2009, 8! st
Leg., ch. 87, § 19.001, eff. Sept 1, 2009; Acts 20 II, 82nd Leg., ch. 136 (S.B. 279), §§ 3, 4, eff. Sept 1, 201l; Acts 2013, 83rd
Leg., ch. 96 (S B 743), § 2, eff Sept. 1, 2013; Acts 2013, 83rd Leg., ch. 543 (S.B. 555), § 3, eff. Sept. I, 2013; Acts 2013,
83rd Leg., ch. 760 (S.B. 893), §§ 4 to 6, eff. Sept. I, 2013.



Notes of Decisions (51)

V. T. C. A., Penal Code§ 25.07, TX PENAL§ 25.07
Current through the end of the 2013 Third Called Session of the 83rd Legislature

 End of Document                                                     © 2015 Thomson Reuters. No c!aim to original U.S. Govemment Works.




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