                                       NO. 07-01-0382-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                     JANUARY 2, 2003
                             ______________________________

                                       JIM STACY SMITH,

                                                               Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                   Appellee
                           _________________________________

               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                       NO. 42,808-E; HON. ABE LOPEZ, PRESIDING
                          _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.1

       Appellant Jim Stacy Smith appeals his conviction of the offense of criminal non-

support by contending 1) the evidence is legally insufficient to sustain his conviction, and

2) the evidence is legally insufficient to support a finding against his affirmative defense.

We affirm the judgment of the trial court.




       1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV’T
CODE ANN. §75.002(a)(1) (Vernon 1998).
      Issue One - Legal Sufficiency of the Evidence to Support the Conviction

        In his first issue, appellant challenges the legal sufficiency of the evidence to

sustain his conviction. We overrule the issue.

        The standards by which we review the legal sufficiency of the evidence are well

established, and it is unnecessary for us to reiterate them. We cite the parties to Jackson

v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2871, 61 L. Ed.2d 560 (1979) and King v. State,

29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000) for explanation of the same.

        An individual commits the offense of criminal non-support if he intentionally or

knowingly fails to provide support for his child who is younger than 18 years of age or who

is the subject of a court order requiring him to support the child. TEX . PEN . CODE ANN .

§25.05(a) (Vernon Supp. 2003). The offense is committed by omission or neglect and

continues as long as the neglect continues without excuse. Belcher v. State, 962 S.W.2d

653, 656 (Tex. App.—Austin 1998, no pet.). Appellant was charged with failing to provide

support for Nathan-Ferril Smith, who was the subject of a court order, from and after

August 18, 1997. The complaint was filed on August 14, 2000.

        With the exception of the indictment, the only evidence admitted at trial was that put

on by appellant, including his own testimony.2 The statute provides that a conviction can

be had on the uncorroborated testimony of a party to the offense. Id. §25.05(c). Further,

a conviction may be sustained irrespective of whether the prosecution or the defense




        2
          The record indicates that the parties had entered into a stipulation with respect to at least some
of the facts of the case and the court accepted the stipulation, but the stipulation itself does not appear in
the record.

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provides the evidence of guilt. Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston

[1st Dist.] 2000, no pet.).

        Next, through the indictment at bar, the State alleged that appellant “on or about the

18th day of August, 1997 . . . did then and there intentionally and knowingly fail to provide

support for Nathan-Ferril Smith, who was then and there the subject of a court order

requiring the defendant to support said child . . . .” At bar, there appears evidence that

appellant was divorced in 1988. Via the divorce decree, he was ordered to pay child

support of $350 per month.3 However, in 1989, he was sent to prison for ten years. While

he was in prison, one or more of his parents died in 1993 and left him an inheritance of

$25,000 cash, over 150 acres of land, and a house. Furthermore, tenants of the house

and acreage paid monthly rent of $300 and $2,000 respectively. These funds, along with

the original $25,000, the house, and the acreage, were held for appellant in “trust.” Thus,

as of August 18, 1997 (the date alleged in the indictment), appellant owned a substantial

amount of monies and assets. However, he did not pay his child support obligation until

after being released from prison in 1998, and then did so sporadically.4 And, upon his

release from prison, appellant spent much of his money on restoring the house he

inherited, as opposed to paying child support.


        3
          Appellant has not contested that the amount in the court order is not the appropriate level of
support for the child.
        4
          Appellant attempts to justify his failure to pay the child support obligation by alleging that he thought
his ex-wife and child had died in an auto accident. He purportedly saw a news clip on a local television
station depicting the wrecked car of his ex-wife. Yet, whether the news commentator indicated that his child
and ex-wife were killed is unknown. Whether anyone said that his child was in the car is unknown. When
this supposed accident occurred is unknown. And, whether he asked anyone (such as a family member)
about the health of his child or to investigate the incident (assuming he could not) is unknown. Giv en this,
the factfinder could well have discredited his excuse for foregoing payment and the care of his child.

                                                        3
       The court, as factfinder, found that appellant had “consciously directed his

resources that he had available to him . . . to benefit himself when he should have

supported his child.” Viewing the evidence in the light most favorable to the prosecution

as we must, a rational trier of fact could have found (beyond reasonable doubt) that

appellant intentionally and knowingly failed to support his child who was the subject of a

court order. Thus, the evidence was legally sufficient to support the judgment.

              Issue Two - Insufficiency of the Evidence as to Ability to Pay

       In his second issue, appellant complains of the legal sufficiency of the evidence to

demonstrate that he had the ability to support his child. We overrule the issue.

       An affirmative defense to the prosecution of the offense of criminal non-support is

that the actor could not provide support. TEX . PEN . CODE ANN . §25.05(d) (Vernon Supp.

2003). As recited above, the record contains evidence as to appellant’s ability to pay

during at least part of the time for which he was charged with non-support. More

importantly, the factfinder was entitled to believe and conclude, beyond reasonable doubt,

that he had the ability to pay.

       Accordingly, the judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                   Justice

Do not publish.




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