                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00038-CR

DEREK SHANE PERRY,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                       From the County Court at Law No 2
                             Johnson County, Texas
                          Trial Court No. M201000150


                          MEMORANDUM OPINION


      The State filed an information charging Derek Shane Perry with seven counts of

violation of a protective order. The jury convicted Perry on Counts Six and Seven. The

trial court assessed punishment at confinement for one year and a $700.00 fine but

suspended imposition of the sentence and placed Perry on community supervision for

two years. Perry raises two issues: (1) the trial court erred in denying his motion to

quash; and (2) the evidence is insufficient to support his conviction. We will affirm.

      Perry filed a motion to quash the information alleging that the State failed to
inform him of the charges against him with such particularity as to enable him to

prepare a defense to the charges. Count Six of the information stated:

        Derek Shane Perry … on or about the 27th day of January, 2010 … did then
        and there intentionally and knowingly violate the terms of a protective
        order … by intentionally communicating directly with Amanda Perry, a
        member of the family or household described in said protective order, in a
        threatening or harassing manner, to wit: causing Amanda Perry’s
        telephone to ring multiple times.

Count Seven was the same except for the date (January 28, 2010).

        The Texas and United States Constitutions grant a criminal defendant the right to

fair notice of the specific charged offense. State v. Barbernell, 257 S.W.3d 248, 250 (Tex.

Crim. App. 2008). The charging instrument must convey sufficient notice to allow the

accused to prepare a defense. Id. An information is sufficient if it

        charges the commission of the offense in ordinary and concise language in
        such a manner as to enable a person of common understanding to know
        what is meant, and with that degree of certainty that will give the
        defendant notice of the particular offense with which he is charged, and
        enable the court, on conviction, to pronounce the proper judgment.

TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2009); see id. art. 21.23 (“The rules with

respect to allegations in an indictment and the certainty required apply also to an

information.”); see also id. art. 21.21(7) (“An information is sufficient if it has the

following requisites: (7) That the offense be set forth in plain and intelligible words”).

An indictment or information normally provides sufficient notice if it tracks the

language of the statute. Olurebi v. State, 870 S.W.2d 58, 62 (Tex. Crim. App. 1994). A

charging instrument should be read as a whole in determining whether it sufficiently

charges an offense. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988). We


Perry v. State                                                                       Page 2
review de novo a trial court’s ruling on a motion to quash. State v. Moff, 154 S.W.3d 599,

601 (Tex. Crim. App. 2004).

        In analyzing whether a charging instrument provides adequate notice, we

engage in a two-step analysis. Barbernell, 257 S.W.3d at 255. First, a court must identify

the elements of an offense. Next, when the Legislature has defined an element of the

offense that describes an act or omission, a court must ask whether the definitions

provide alternative manners or means in which the act or omission can be committed.

Id. If this second inquiry is answered in the affirmative, a charging instrument will

supply adequate notice only if, in addition to setting out the elements of an offense, it

also alleges the specific manner and means of commission that the State intends to rely

on at trial. Id.

        A person commits the offense of violation of an order issued under Article 6.08

of the Code of Criminal Procedure if the person intentionally or knowingly

communicates directly with a protected individual in a threatening or harassing

manner. TEX. PENAL CODE ANN. § 25.071(a)(2)(A) (West 2009). The information tracked

the language of section 25.071 and sets out the elements of the offense. Harassment is

not defined in the statute. The information provided Perry notice that he committed the

offense by repeatedly causing Amanda Perry’s phone to ring on or about the dates

specified. We find that the information provided Perry adequate notice to prepare a

defense. The language in the information concerning Perry’s conduct is not so vague or

indefinite as to deny him effective notice of the acts he allegedly committed.         See

DeVaughn, 749 S.W.2d at 67. We overrule the first issue.

Perry v. State                                                                      Page 3
        In his second issue, Perry argues that the evidence is insufficient to support his

conviction. The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert. denied, ___ U.S. ___, 132

S.Ct. 2712, 183 L.Ed.2d 71 (2012).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326. Further,

direct and circumstantial evidence are treated equally: “Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it

is well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Perry v. State                                                                              Page 4
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        Derek Perry and Amanda Perry were divorced in 2004 and were named joint

managing conservators of their daughter. In 2008, Amanda obtained a protective order

prohibiting Derek from communicating directly with her in a threatening or harassing

manner, or indirectly communicating a threat through any person to Amanda or to a

member of the family or household.

        Derek’s telephone records for January 27 and 28, 2010 were in evidence.

Amanda testified at trial that Derek called her phone over 40 times between 4:09 p.m.

and midnight on January 27, 2010, and 155 times on January 28, 2010. Amanda further

testified that Derek called her 19 times within 16 minutes. Amanda did not answer all

of the phone calls. Amanda testified that Derek would leave voice-mail messages and

that “the voice mails consisted of him blowing into the phone so that he would occupy

the voice mail space so that no one else could leave a voice mail.” Amanda spoke to

Derek on one of the calls and asked him to stop calling her. The record shows that

Derek called Amanda’s phone 167 times in a period of 17 hours on the days of January

27 and 28.

        Derek argues that the evidence is insufficient to show that he communicated

directly with Amanda or that he communicated with Amanda in a threatening or

harassing manner.     Derek contends that causing Amanda’s phone to ring is not

evidence of direct communication. Telephone communication has been found to be

sufficient direct communication for purposes of section 25.071. Moreno v. State, No. 04-

02-00727, 2003 WL 21658594, at *2 (Tex. App.—San Antonio 2003, no pet.) (mem. op.,

Perry v. State                                                                    Page 5
not designated for publication) (citing Patton v. State, 835 S.W.2d 684, 687 (Tex. App.—

Dallas 1992, no pet.)). In Patton, the defendant continuously called his wife at work,

and his wife hung up the phone. The court found that a rational factfinder could find

that the defendant, in these telephone calls, persistently disturbed, continually

bothered, or pestered his wife. Patton, 835 S.W.2d at 687.

        Derek next argues that the evidence is insufficient to show that he caused

Amanda’s phone to “ring” multiple times because Amanda testified that her phone was

at times on silent or “vibrate.” Amanda testified that her phone rang or vibrated

numerous times on January 27 and 28. She further stated that she had to turn the ringer

off at times because Derek called continuously.

        Derek further argues that there is insufficient evidence to show he had the

requisite criminal intent to commit the offense. Derek contends that his attempted

communication with Amanda concerned their child and was not intended to harass or

threaten her. Amanda testified that she spoke with Derek on January 27 and told him

their child was safe. The record shows that Derek called 167 times in 17 hours. Derek

left voice mail messages, but these messages did not seek information about the welfare

of the child. We find that a rational fact finder could have found that Derek committed

the offense of violation of a protective order. We overrule the second issue.

        We affirm the trial court’s judgment.




                                          REX D. DAVIS
                                          Justice

Perry v. State                                                                    Page 6
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 30, 2012
Do not publish
[CR25]




Perry v. State                                Page 7
