                                      IN THE
                              TENTH COURT OF APPEALS

                                       No. 10-16-00045-CR

RICHARD GARCIA,
                                                                       Appellant
v.

THE STATE OF TEXAS,
                                                                       Appellee



                                From the 19th District Court
                                 McLennan County, Texas
                                Trial Court No. 2014-489-C1


                                MEMORANDUM OPINION


        In six issues, appellant, Richard Garcia, challenges his convictions for aggravated

assault and violation of a protective order. See TEX. PENAL CODE ANN. § 22.02 (West 2011);

see also id. § 25.07 (West Supp. 2016). We affirm.1




        1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
                              I. SUFFICIENCY OF THE EVIDENCE

        In his first issue, Garcia contends that the evidence is legally insufficient to

establish that the protective order was issued at a proceeding that he attended. We

disagree.

A.      Applicable Law

        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 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, 61 L. Ed. 2d

560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard enables the fact finder to draw

reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,

235 S.W.3d at 778. In performing our sufficiency review, we may not re-evaluate the

weight and credibility of the evidence or substitute our judgment for that of the fact

finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the

verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953


Garcia v. State                                                                         Page 2
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

        The Court of Criminal Appeals has stated that the hypothetically-correct jury

charge for a violation of a protective order offense would state the elements of the

charged offense as follows: (1) Garcia, (2) in violation of an order issued on the 28th day

of November, 2013, by Judge Virgil Bain of the ARNJ of McLennan County, Texas under

Article 17.292 of the Texas Code of Criminal Procedure, (3) at a proceeding that Garcia

attended, (4) knowingly and intentionally, (5) committed family violence against Joanna

Garcia by hitting her with a metal club. See Villarreal v. State, 286 S.W.3d 321, 327 (Tex.

Crim. App. 2009); Harvey v. State, 78 S.W.3d 368, 373 (Tex. Crim. App. 2002) (construing

the term “in violation of an order issued under Section 6.504 or Chapter 85, Family Code

[or] under Article 17.292, Code of Criminal Procedure” as meaning “in violation of an

order that was issued under one of those statutes at a proceeding that the defendant

attended or at a hearing held after the defendant received service of the application for a

protective order and notice of the hearing”); see also Morgan v. State, Nos. 10-10-00367-CR

& 10-10-00371-CR, 2011 Tex. App. LEXIS 8133, at **6-7 (Tex. App.—Waco Oct. 12, 2011,




Garcia v. State                                                                      Page 3
no pet.) (mem. op., not designated for publication). In this issue, Garcia challenges the

third element—whether the protective order was issued at a proceeding that he attended.

B.      Legal Sufficiency

        State’s Exhibit 36, which is a photocopy of the November 28, 2013 protective order

signed by Judge Bain, includes the following language: “This ORDER has been served

on Respondent [Garcia] in open court.” Moreover, with regard to the process for

notifying someone with a protective order against them, Officer John Ray of the Waco

Police Department testified that: “The Defendant would be notified the next morning

when they’re brought before a—a magistrate.” Officer Ray agreed that Garcia would

have been informed of the protective order before he was allowed to leave the jail. Officer

Ray later noted that Garcia indicated that he was aware of the protective order, which

ordered him to stay away from Joanna.

        Based on the foregoing, we conclude that the factfinder could have reasonably

concluded that the protective order was issued at a proceeding Garcia attended and that

Garcia had notice of the protective order. See Villarreal, 286 S.W.3d at 327; Harvey, 78

S.W.3d at 373; see also Lincecum v. State, 2016 Tex. App. LEXIS 3527, at **7-8 (Tex. App.—

El Paso Apr. 6, 2016, no pet.) (mem. op., not designated for publication) (“Second, the

protective order itself, which was admitted into evidence without objection, contains

recitations from which the trial court could have reasonably inferred Appellant was

served with notice. The protective order recites that the court, in considering Eloisa’s


Garcia v. State                                                                      Page 4
application for protective order, found ‘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.’ A recital in a protective order that the court had jurisdiction over the parties is

evidence the protective order was issued after notice and hearing as required by the

Family Code.” (internal citations omitted)); Morgan, 2011 Tex. App. LEXIS 8133, at **6-7;

Dillard v. State, No. 05-00-01745-CR, 2002 Tex. App. LEXIS 9151, at **8-9, **14-16 (Tex.

App.—Waco Dec. 20, 2002, no pet.) (mem. op., not designated for publication)

(concluding the recital of jurisdiction in the protective order is sufficient to demonstrate

that the protective order was valid and issued after notice and a hearing). Accordingly,

viewing the evidence in the light most favorable to the jury’s verdict, we hold that the

evidence is sufficient to support Garcia’s conviction for violation of the protective order.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895; Clayton, 235 S.W.3d

at 778; Hooper, 214 S.W.3d at 16-17. We overrule Garcia’s first issue.

C.      Factual Sufficiency

        In his second and third issues, Garcia asserts that the evidence is factually

insufficient to prove that the protective order was issued at a proceeding that he attended

and that he used a metal pipe or that a metal pipe caused the victim’s injuries. The Court

of Criminal Appeals has determined that factual sufficiency no longer applies in criminal

cases. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010) (plurality op.)

(concluding that there is “no meaningful distinction between the Jackson v. Virginia legal


Garcia v. State                                                                          Page 5
sufficiency standard and the . . . factual-sufficiency standard, and these two standards

have become indistinguishable” and holding the following: “As the Court with final

appellate jurisdiction in this State, we decide that the Jackson v. Virginia standard is the

only standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is required to

prove beyond a reasonable doubt. All other cases to the contrary, including Clewis, are

overruled.”); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); see also Sanders

v. State, No. 10-14-00211-CR, 2015 Tex. App. LEXIS 4704, at *2 (Tex. App.—May 7, 2015,

pet. ref’d) (mem. op., not designated for publication). Garcia does not argue that the

evidence regarding the metal pipe was legally insufficient, thus conceding that the

evidence is sufficient under the Jackson v. Virginia standard of review. See, e.g., Sanders,

2015 Tex. App. LEXIS 4704, at *2 (“By asking this Court to only review the factual

sufficiency of the evidence, Sanders concedes the evidence is sufficient under the Jackson

standard of review.”). Moreover, in Garcia’s first issue, we have already concluded that

the evidence is legally sufficient to establish that the protective order was issued at a

proceeding that he attended. Accordingly, we overrule Garcia’s second and third issues.2



        2 Though recognizing that the Brooks Court concluded that the Jackson v. Virginia legal-sufficiency
standard and the factual-sufficiency standard have become “indistinguishable,” Garcia argues that this
Court should revive factual-sufficiency review because of various constitutional and statutory authorities.
In support of his contention, Garcia relies heavily on the Walker case that the Court of Criminal Appeals
granted discretionary review of on October 14, 2015, a few months after Garcia filed his appellant’s brief in
this case. See generally Walker v. State, Nos. PD-1429-14, PD-1430-14, 2016 Tex. Crim. App. Unpub. LEXIS
973 (Tex. Crim. App. Oct. 19, 2016). Garcia noted that one of the issues in Walker was as follows: “The
Court of Appeals erred in finding legally sufficient evidence in this case, and allows this Court to reexamine

Garcia v. State                                                                                        Page 6
                                          II. THE JURY CHARGE

        In his fourth issue, Garcia argues that the trial court failed to properly instruct the

jury regarding the offense of violating a protective order. Garcia first contends that the

trial court defined the terms “intentionally” and “knowingly” as though violating a

protective order is result-oriented only. Garcia asserts that the offense also includes a

circumstances-oriented component—namely, whether he had notice of the protective

order because it was issued at a proceeding he attended. Next, Garcia contends that the

charge wholly failed to instruct the jurors regarding an element of the offense—whether

the protective order was issued at a proceeding he attended.

A.      Applicable Law

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly

preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved

at trial by a proper objection, as was the case here, a reversal will be granted only if the




the issue of factually sufficient evidence from Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).”
However, on October 19, 2016, the Court of Criminal Appeals issued its opinion in Walker and specifically
noted, “[b]ecause we hold that appellants’ second ground for review is dispositive in resolving their
sufficiency challenges, we do not consider their first ground for review, in which they urge this Court to
overrule Brooks and reinstate the law of factual sufficiency.” Id. at *5 n.1.

Garcia v. State                                                                                    Page 7
error presents egregious harm, meaning appellant did not receive a fair and impartial

trial. Id. To obtain a reversal for jury-charge error, appellant must have suffered actual

harm and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex.

Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

        Section 25.07 of the Penal Code establishes the offense of violation of a protective

order as follows, in relevant part:

     (a) A person commits an offense if, in violation of . . . an order issued under
         Article 17.292, Code of Criminal Procedure . . . the person knowingly or
         intentionally:

            (1) commits family violence . . . .

TEX. PENAL CODE ANN. § 25.07(a).

        Family violence is defined in section 71.004 of the Texas Family Code as:

        [A]n act by a member of a family or household against another member of
        the family or household that is intended to result in physical harm, bodily
        injury, assault, or sexual assault or that is a threat that reasonably places the
        member in fear of imminent physical harm, bodily injury, assault, or sexual
        assault, but does not include defensive measures to protect oneself . . . .

TEX. FAM. CODE ANN. § 71.004(1) (West Supp. 2016).

B.      Culpable Mental State

        First, Garcia asserts that the charge improperly defined “intentionally” and

“knowingly” only with respect to the result of his conduct, rather than with respect to the

circumstances surrounding his conduct. Here, the abstract portion of the jury charge

pertaining to violating a protective order provided the following:


Garcia v. State                                                                             Page 8
        A person commits an offense when he intentionally or knowingly violates
        a Magistrate’s Order for emergency protection issues [sic] under Article
        17.292, Code of Criminal Procedure, and the person intentionally or
        knowingly commits an act of family violence.

        Family violence means an act by a member of a family against another
        member of the family that is intended to result in physical harm, bodily
        injury, assault or sexual assault or that is a threat that reasonably places the
        member in fear of imminent physical harm, bodily injury or sexual assault,
        but does not include defensive measures to protect oneself.

                  ....

        A person acts intentionally, or with intent, with respect to a result of his
        conduct when it is his conscious objective or desire to cause the result.

        A person acts knowingly, or with knowledge, with respect to a result of his
        conduct when he is aware that his conduct is reasonably certain to cause
        the result.

        Additionally, the application portion of the charge provided the following, in

relevant part:

        As to the charge of Aggravated Assault, Count 1 and Violation of Protective
        Order, Count II, alleged in the indictment, the State has the burden of proof.
        The State must prove each of the elements of the charged offenses beyond
        a reasonable doubt. The elements are set out below for each count. If each
        of you believes the State has proved each and every element, of any count,
        beyond a reasonable doubt, you are required to return a verdict of guilty as
        to that individual count.

                If you believe the State has failed to prove one or more elements of
        any count listed, or if you have a reasonable doubt as to the Defendant’s
        guilt of any count, then you will find the Defendant not guilty of the offense
        charged in that individual count.

                  ....



Garcia v. State                                                                            Page 9
                                 ELEMENTS—COUNT II

    1. On or about the 1st day of January, 2014;

    2. in McLennan County, Texas;

    3. RICHARD GARCIA;

    4. did then and there intentionally and knowingly;

    5. violate the terms of an order issued by Virgil Bain of the ARNJ of McLennan
       County, Texas, on the 28th day of November, 2013; under authority of
       Article 17.292 of the Texas Code of Criminal Procedure,

    6. by intentionally and knowingly committing family violence against
       JOANNA GARCIA, to wit: hitting the said JOANNA GARCIA with a metal
       club.

        Several Texas courts have concluded that the gravamen of section 25.07 is the

“result,” rather than the “nature” of the actor’s conduct. See Harvey, 78 S.W.3d at 368-69

(“A person commits the offense of violation of protective order if, in violation of an order

issued under [one of the certain provisions of the Family Code or Code of Criminal

Procedure], the person knowingly or intentionally commits family violence or performs

another prohibited act.” (internal quotations omitted)); Avilez v. State, 333 S.W.3d 661, 670

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (“A conviction for violation of a

protective order requires proof of a protective order issued under Chapter 85 of the

Family Code and proof that the defendant (1) one time, (2) intentionally or knowingly

violated that order, (3) by committing family violence or another specified action, by

communicating with or threatening a protected person, or by going to or near the home


Garcia v. State                                                                       Page 10
or workplace of a protected person.”); see also Torres v. State, No. 08-11-00151-CR, 2012

Tex. App. LEXIS 10055, at * 19 (Tex. App.—El Paso Dec. 5, 2012, pet. ref’d) (mem. op., not

designated for publication) (“We conclude that the gravamen of Section 25.07 is the

‘result’ rather than the ‘nature’ of Torres’s conduct.”). We therefore cannot say that it

was error for the charge to include result-oriented instructions with regard to the

“intentionally” and “knowingly” culpable mental states.

        In any event, Garcia urges that the second component of the offense focuses on the

circumstances surrounding the offense. This assertion is contrary to the Harvey, Avilez,

and Torres decisions. Additionally, neither of the cases cited by Garcia directly support

his position. See Hughes v. State, 897 S.W.2d 285, 295 (Tex. Crim. App. 1994); see also

Sterling v. State, 01-99-00377-CR, 2000 Tex. App. LEXIS 3621 (Tex. App.—Houston [1st

Dist.] June 1, 2000, no pet.) (not designated for publication). And furthermore, the

language contained in the application portion of the jury charge pertaining to violating a

protective order substantially tracks section 25.07 of the Penal Code, which is the

operative statute in this case, and effectively restricts the jury's deliberations to the

allegations in the indictment. See TEX. PENAL CODE ANN. § 25.07; Plata v. State, 926 S.W.2d

300, 302-03 (Tex. Crim. App. 1996), overruled on other grounds by Malik, 953 S.W.2d at 234

(holding that the inclusion of merely superfluous abstraction never produces reversible

error in the court's charge because it has no effect on the jury's ability to implement fairly

and accurately the commands of the application paragraph or paragraphs); Grady v. State,


Garcia v. State                                                                        Page 11
614 S.W.2d 830, 831 (Tex. Crim. App. 1981) (“[T]his Court held that abstract statements

of the law that go beyond the allegations in the indictment will not present reversible

error when the court's application of the law to the facts effectively restricts the jury's

deliberations to the allegations in the indictment.” (citing Toler v. State, 546 S.W.2d 290,

293-94 (Tex. Crim. App. 1977))); see also Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App.

1994) (“A jury charge which tracks the language of a particular statute is a proper charge

on a statutory issue.”).

C.      Charge Instructions on the Elements of Section 25.07

        While the specific language of section 25.07 does not require a finding that Garcia

attended the hearing on the November 28, 2013 protective order, this element in some

form is required to be included in the application paragraph of the jury charge. See

Harvey, 78 S.W.3d at 372-73; see also Morgan, 2011 Tex. App. LEXIS 8133, at *7. As shown

above, the application paragraph of the charge did not include language regarding

Garcia’s attendance at the hearing on the November 28, 2013 protective order. The failure

to include this instruction is error. See Harvey, 78 S.W.3d at 372-73; see also Morgan, 2011

Tex. App. LEXIS 8133, at **7-8. In light of this error, we must now determine whether

Garcia was egregiously harmed.

        In determining whether charge error has resulted in egregious harm, we consider:

(1) the entire jury charge; (2) the state of the evidence, including the contested issues and

the weight of the probative evidence; (3) the final arguments of the parties; and (4) any


Garcia v. State                                                                       Page 12
other relevant information revealed by the trial court as a whole. Allen v. State, 253 S.W.3d

260, 264 (Tex. Crim. App. 2008). Jury-charge error is egregiously harmful if it affects the

very basis of the case, deprives the defendant of a valuable right, or vitally affects a

defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v.

State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

        1.        The Entire Jury Charge

        Above, we addressed Garcia’s complaints about the jury charge, concluding that

the instructions for the culpable mental states were not erroneous, but that the trial court

erred in not including an instruction regarding Garcia’s attendance at the hearing on the

November 28, 2013 protective order. Other than these two complaints, Garcia does not

allege additional errors in the charge. Accordingly, we now turn to the remaining factors

to determine whether the error in failing to include an instruction regarding Garcia’s

attendance at the hearing on the November 28, 2013 protective order prejudiced the jury’s

consideration of the evidence or substantially affected their deliberations. See Bagheri v.

State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).

        2.        The State of the Evidence

        Here, the State offered Exhibit 36, which was the November 28, 2013 protective

order. As noted earlier, the November 28, 2013 protective order included language that

the order was served on Garcia in open court, thus negating any possible argument that

Garcia did not have notice of the protective order. Additionally, Officer Ray testified that


Garcia v. State                                                                       Page 13
that Garcia indicated that he was aware of the protective order, which ordered him to

stay away from Joanna. Given this evidence, we cannot say that this factor weighs in

favor of finding egregious harm.

        3.        Closing Arguments

        At trial, Garcia did not assert lack of knowledge of the November 28, 2013

protective order as a defensive theory. Instead, Garcia urged lesser-included instructions

on deadly-weapon and serious-bodily-injury grounds. During closing arguments, the

State asserted that there was “zero doubt” that Garcia was guilty of violating the

November 28, 2013 protective order. Garcia argued that the State did not prove beyond

a reasonable doubt that he committed the offense of causing serious bodily injury to

Joanna by hitting her with a metal club during the incident. In other words, there was no

dispute at trial as to Garcia’s attendance at the hearing on the November 28, 2013

protective order. Based on our review of the record, we cannot say that this factor weighs

in favor of finding egregious harm.

        4.        Other Relevant Information

        Other than repeating arguments made under the aforementioned factors of this

analysis, Garcia does not direct us to any other compelling or relevant factors present in

the record. Once again, we cannot say that this factor weighs in favor of finding egregious

harm.




Garcia v. State                                                                     Page 14
         5.       Summary

         Based on the foregoing, we conclude that the failure of the trial court to include an

instruction in the charge regarding Garcia’s attendance at the hearing on the November

28, 2013 protective order was harmless. See Almanza, 686 S.W.2d at 171; see also Stuhler,

218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121. Accordingly, we overrule Garcia’s fourth

issue.

                                        III. COURT COSTS

         In his fifth and sixth issues, Garcia asserts that the trial court erred in assessing

court costs against him. First, Garcia argues that he should not have to pay court costs

because he is indigent. Garcia also argues that the statutes authorizing the assessment of

court costs against indigent criminal defendants are unconstitutional as applied to him

and violate his right to equal protection because court costs are not assessed against

indigent civil parties. See, e.g., Campbell v. Wilder, 487 S.W.3d 146, 152 (Tex. 2016) (“It is

an abuse of discretion for any judge, including a family law judge, to order costs in spite

of an uncontested affidavit of indigence.”).

         On December 7, 2016, this Court recently overruled substantially-similar

arguments pertaining to the imposition of court costs for indigent criminal defendants.

See, e.g., Martinez v. State, No. 10-16-00217-CR, ___ S.W.3d.___, 2016 Tex. App. LEXIS

12948, at **3-7 (Tex. App.—Waco Dec. 7, 2016, no pet. h.). In light of our decision in




Garcia v. State                                                                        Page 15
Martinez, we are not persuaded by Garcia’s arguments regarding court costs. See id.

Accordingly, we overrule Garcia’s fifth and sixth issues.

                                    IV.     CONCLUSION

        Having overruled all of Garcia’s issues on appeal, we affirm the judgments of the

trial court.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed January 11, 2017
Do not publish
[CRPM]

*(Chief Justice Gray concurs in the judgment of the Court to the extent it affirms the trial
court’s judgment, but does not join the opinion. A separate opinion will not issue.)




Garcia v. State                                                                      Page 16
