AFFIRMED; Opinion Filed November 21, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01622-CR

                               TYRA WILLIAMS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 429th Judicial District Court
                                   Collin County, Texas
                           Trial Court Cause No. 380-80898-08

                             MEMORANDUM OPINION
                            Before Justices Bridges, Lang, and Evans
                                    Opinion by Justice Evans
       Appellant Tyra Williams appeals from the judgment adjudicating her guilty of criminal

nonsupport. Appellant asserts two points of error: (1) the trial court violated her right to due

process by failing to pronounce her guilty and pronounce punishment in her presence; (2) the

evidence was legally insufficient to support a finding of guilt; and (3) the trial court erred in

failing to find sufficient evidence to support appellant’s affirmative defense. Finding no merit in

appellant’s arguments, we affirm the trial court’s judgment.

                                         BACKGROUND

       On May 27, 1990, appellant and Kevin Ward had a child named Chelsea Ward. In 1996,

Ward filed a paternity suit to establish his paternity and, as a result, certain rights and

responsibilities were determined regarding the parent-child relationship. Specifically, Ward was

named the sole managing conservator of the child and appellant was ordered to pay support in
the amount of $275 per month until the child turned eighteen and graduated from high school or

was otherwise emancipated. The payments were scheduled to begin on January 23, 1998, and

would continue until the child turned eighteen and graduated from high school.

        Although appellant initially paid her child support obligations, those payments stopped

after approximately eighteen months. In 2002, criminal nonsupport charges were filed against

appellant. Appellant was held in contempt, placed on probation and eventually served time for

failure to pay court-ordered child support. A judgment was entered for child support arrearage in

the amount of $6,500.42. After being released from jail, appellant’s child support payment

obligations resumed but she either failed to make payments or made sporadic payments.

        In January 2008, appellant was indicted for intentionally and knowingly failing to

provide support for Chelsea.     At that time, appellant was in arrears of her child support

obligations in excess of $15,000.00.      Appellant testified that she gave money and clothes

directly to her daughter instead of making child support payments. A representative of the Child

Support Division of the Texas Attorney General’s Office testified that delinquency letters and

questionnaires were sent to the appellant on multiple occasions. The delinquency letters advised

her that she was delinquent on payments and the questionnaires were to help determine why she

was unable to pay. Appellant testified that she lost her job, had difficulty finding employment,

and suffered an injury in 2007 which prevented her from seeking employment for almost a year.

However, appellant also testified that she never called the Child Support Division or responded

to the letters.

        Following the conclusion of the trial on October 28, 2010, the court found the appellant

guilty of the offense of criminal nonsupport:

        Back on the record in 380-80898-2008, State of Texas versus Tyra Williams. The
        Court finds the defendant guilty on the evidence beyond a reasonable doubt in the
        offense of criminal nonsupport. Punishment is accessed [sic] eighteen months in
        TDC, but the sentence is suspended. The defendant will be placed on probation
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        for a period of two years with the following terms and conditions. Zero fine, the
        defendant will pay child support through the AG in the amount of $3,743.42. The
        probation fees are waived. The defendant may report by mail, and the defendant
        is to provide proof of the child support with each mail-in report.

Following this pronouncement, there was a discussion in the courtroom noting that any child

support arrearage, after the appellant was credited for payment of the $3,743.42, would still be

owed under the pending civil family law case. The State’s attorney then asked the court if the

child support was to be paid through probation or through the Attorney General’s office. The

trial court then stated as follows:

        Let me reconsider then. Let me think about this. If y’all will take a seat in here for
        just a moment, I’m going to make a phone call. So either way, regardless of the
        criminal matter, the civil stays in place, and the point of the criminal suit was just
        to put her in jail or not?

Appellant’s trial attorney asked that the court reconsider its verdict and the judge took a five

minute recess. When the trial judge returned, he stated as follows: “I'm going [to] take this

under advisement pending further research so I will let you know.” On November 15, 2010, the

court affirmed the ruling it made at the end of trial with a written docket entry.

        The trial court subsequently granted appellant’s writ of habeas corpus on October 28,

2013, which allowed appellant to file an untimely appeal. Appellant then filed a notice of appeal

on November 14, 2013.

                                             ANALYSIS

        I.      The Trial Court Did Not Violate Appellant’s Right to Due Process

        Appellant argues that the trial court rescinded the verdict it made against appellant when

the court took the case under advisement. Appellant further argues that because the trial court

rescinded its verdict at the end of trial, appellant’s physical presence was required at any later

proceedings related to findings of appellant’s guilt and punishment. We disagree.




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       Appellant notes that a trial court must pronounce the defendant’s sentence in her

presence. TEX. CODE CRIM. PROC. ANN. art. 42.03(1)(a) (West Supp. 2013). Appellant argues

that because the trial court pronounced its sentence by docket entry on November 15, 2010, that

she was not afforded due process because such sentence was not orally pronounced before her.

As an initial matter, the court stated at the end of trial that it was “going [to] take this under

advisement pending further research so I will let you know.” (emphasis added). Based upon the

court’s use of the word “this,” it is not clear what the court was going to take under advisement.

The court could have been referring to the sentence but it also could have been referring to

appellant’s counsel’s request that the court reconsider its verdict.

       Further, the trial court never stated on the record that it was rescinding its finding of guilt

and punishment. Appellant cites no precedent for her assumption that the court rescinded its

sentence by taking the matter under advisement. Based upon the record before us, we decline to

assume such action was taken by the court. Accordingly, we conclude that appellant was

afforded due process because the court pronounced its sentence against her on October 28, 2010.

We overrule appellant’s first issue.

       II.     The Evidence Was Legally Sufficient to Support Appellant’s Conviction

               A.      Standard of Review

       Appellant contends the evidence is legally insufficient to support a finding of guilt for the

offense of criminal nonsupport. When an appellant challenges the sufficiency of the evidence to

support a conviction, we review all the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

Evidence is sufficient if “the inferences necessary to establish guilt are reasonable based upon

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

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verdict.” Id. If the evidence is conflicting, we “‘presume that the factfinder resolved the

conflicts in favor of the prosecution’ and defer to that determination.” Id. (quoting Jackson v.

Virginia, 443 U.S. 307, 326 (1979)).

                 B.       Sufficient Evidence for Conviction

        A person commits the offense of criminal nonsupport if such person “intentionally or

knowingly fails to provide support for the individual’s child younger than 18 years of age, or for

the individual’s child who is the subject of a court order requiring the individual to support the

child.” TEX. PENAL CODE ANN. § 25.05(a) (West 2011).                   Although the term “support” is not

statutorily defined by the Texas Penal Code, a child support order can provide evidence of what

the appropriate level of support is. See Belcher v. State, 962 S.W.2d 653, 657-58 (Tex. App.—

Austin 1998, no pet.); Dawson v. State, No. 05-02-00336-CR, 2003 WL 147746, at *2 (Tex.

App.—Dallas Jan. 22, 2003, pet. ref’d) (not designated for publication) (“Although it does not

define ‘support,’ the statute clearly contemplates that a parent’s failure to pay the support

ordered by a court in a divorce be sufficient evidence to support a conviction for nonsupport.”);

Deltuva v. State, No. 05-05-01325-CR, 2007 WL 1054134, at *9 (Tex. App.—Dallas Apr. 10,

2007, no pet.) (not designated for publication) (“A child support order is relevant evidence of the

appropriate level of support.”).

        Viewing the evidence in the light most favorable to the verdict, there was evidence that

appellant intentionally or knowingly failed to support her child. The record clearly demonstrates

that appellant failed to make many of her child support payments of $275 per month during the

time period of 2002 to 2008. 1 Further, appellant testified that she made no attempt to contact the


    1
     According to the testimony of Joe Salgado, a field investigator for the Texas Attorney General’s Office Child
Support Division, appellant was released from jail in May 2002. She served ninety days for failing to make child
support payments and was ordered to begin making payments immediately upon her release. Appellant’s first
payment following her release in May 2002 did not take place until February 2004 in the amount of $26.19.
Appellant only made three other payments in 2004 totaling an additional $116. Appellant’s wages were regularly

                                                      –5–
Texas Attorney General’s Office to discuss her inability to pay despite the fact that she received

letters from them informing her that she was delinquent on payments. Appellant argues that she

did “support” her daughter by making over $11,000 in payments during the relevant time period

and by giving money and clothes directly to her daughter. Although the court could have

concluded that these payments constituted adequate support, it was under no obligation to do so.

Instead, the court could have concluded that appellant’s occasional provision of clothing or food

or money was insufficient. Although the court was not required to consider the child support

order conclusive evidence, the court is free to determine that the child support order is the

appropriate level of support. Belcher, 962 S.W.2d at 658; Dawson, 2003 WL 147746, at *2;

Deltuva, 2007 WL 1054134, at *9.

        III.    The Evidence Was Sufficient to Reject Appellant’s Affirmative Defense

        In her third issue, appellant argues that the evidence is legally and factually sufficient to

support her affirmative defense of inability to pay.

                A.      Standard of Review

        When conducting a legal sufficiency review regarding a defendant’s affirmative defense,

an appellate court reviews the evidence in the light most favorable to the verdict and only

reverses when the evidence conclusively establishes the opposite. See Wheat v. State, 165

S.W.3d 802, 806 n. 6 (Tex. App.—Texarkana 2005, pet. dism’d). When conducting a factual

sufficiency review regarding a defendant’s affirmative defense, an appellate court reviews all of

the evidence in a neutral light. See Clark v. State, 190 S.W.3d 59, 63 (Tex. App.—Amarillo

2005, no pet.). However, an appellate court may not usurp the function of the factfinder by


garnished from February to November 2005 but then no additional payments were made until March 2006.
Appellant’s wages were again garnished from March to August 2006. From September 2006 through January 2007,
appellant made payments through involuntary unemployment collections. After January 2007, no additional
payment was received until September 2008. Although appellant’s child had turned eighteen by this time,
collections continued for the arrearages owed which exceeded $15,000.


                                                   –6–
substituting its judgment in place of the factfinder’s assessment of the weight and credibility of

the witnesses’ testimony. Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim. App. 2013). Thus,

an appellate court may sustain a defendant’s factual sufficiency claim only if the court clearly

states why the verdict is so against the great weight of the evidence as to be manifestly unjust.

Id.

               B.       Sufficient Evidence to Reject Affirmative Defense

       Pursuant to Texas Penal Code Section 25.05, it is an affirmative defense to prosecution

that the actor could not provide support for the actor’s child. TEX. PENAL CODE ANN. § 25.05(d)

(West 2011).        The appellant had the burden of proving the affirmative defense by a

preponderance of the evidence.      See Howard v. State, 145 S.W.3d 327, 335 (Tex. App.—Ft.

Worth 2004, no pet.). Here, the testimony indicated that appellant failed to make child support

payments from 2002 through 2008 with total arrearages in excess of $15,000.              Although

appellant testified that an injury precluded her for working for over a year, this injury did not

take place until 2007. Appellant, however, failed to make her child support payments for years

before this event. In addition, appellant testified that she gave money and clothes directly to her

daughter and that she chose to do so instead of making child support payments. Accordingly,

appellant’s own testimony indicates that she had the ability to assist her daughter but elected not

to make the required payments. The evidence is both legally and factually sufficient for the

factfinder to have rejected appellant’s affirmative defense of inability to pay.




                                                –7–
                                         CONCLUSION

       We resolve appellant’s issues against her and affirm the trial court’s judgment.



                                                            / David Evans/
                                                            DAVID EVANS
                                                            JUSTICE


Do Not Publish
TEX. R. APP. P. 47
131622F.U05




                                               –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

TYRA WILLIAMS, Appellant                            On Appeal from the 429th Judicial District
                                                    Court, Collin County, Texas
No. 05-13-01622-CR        V.                        Trial Court Cause No. 380-80898-08.
                                                    Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                        Justices Bridges and Lang participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of November, 2014.




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