                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-393-CR


NOEL RONALDO VILLARREAL                                               APPELLANT

                                              V.

THE STATE OF TEXAS                                                         STATE

                                          ------------

           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

      A jury convicted Appellant Noel Ronaldo Villarreal of violating a protective

order by committing an act of family violence.           The trial court sentenced

Appellant, who was charged as a habitual offender, to sixty years’ confinement

in the Institutional Division of the Texas Department of Criminal Justice.




      1
          … See T EX. R. A PP. P. 47.4.
         In three points, Appellant challenges the legal and factual sufficiency of

the evidence and the jury instructions defining dating violence and dating

relationship. Because we hold that the evidence is both legally and factually

sufficient to support Appellant’s conviction and that the trial court did not err

by defining the terms for the jury, we affirm the trial court’s judgment.

                               BACKGROUND FACTS

         Appellant began dating the complainant in January 2005. On February

6, 2005, she obtained a protective order against him. On March 2, 2005, as

the complainant was driving home from work, Appellant called her on her cell

phone and told her to meet him or he’d “wrap [her] car around a telephone

pole.”     Appellant was at that time in his truck, following her SUV.         She

suggested that they meet at Hot Rods and Hoggs, a bar. The complainant

testified that when Appellant ordered her a drink, he told her to “drink it or

wear it or have it knocked upside [her] head.” She drank continually while she

was with Appellant at the bar. Appellant also drank.

         At some point, the complainant went to order another round of drinks and

then went out the side door. She walked to her vehicle, got in, and started it,

but before she could drive away, her head was slammed against the steering

wheel. She testified that she did not remember what happened after that.




                                          2
      A witness testified that as he got into his car to leave the bar, he saw a

woman walk to her vehicle and saw a man walk up to her and begin hitting her.

That witness went back to the bar and notified bar staff about the altercation

in the parking lot. A bar employee restrained the assailant and called the police,

who arrested the assailant, Appellant. The employee who restrained Appellant

testified that after the altercation in the parking lot had been broken up, the

complainant attempted to back her vehicle out of the parking space, and in the

process, she backed into a parked van.

      After Appellant’s arrest, the complainant wrote a letter to the magistrate

who had issued the protective order, asking her to lift the order.            The

complainant testified that she wrote the letter at Appellant’s insistence and that

she did so in the hope that he would then leave her alone.         For the same

reason, she testified, she also executed an affidavit of nonprosecution and told

the grand jury that Appellant had not injured her, that she had hit her head

getting into her car because she was drunk, that Appellant was only trying to

help her that night, and that she was so drunk that she had not even realized

that she had backed into another car. She testified that Appellant drove her to

testify to the grand jury and that he told her what to say in her grand jury

testimony.




                                        3
      The indictment contains a paragraph alleging that the complainant was

a member of Appellant’s family or household, but the State waived that

paragraph and that allegation was never submitted to the jury. Consequently,

except for the conclusory statement that Appellant committed an act of family

violence, the indictment contains no allegation that the complainant was a

member of Appellant’s family or household or that a dating relationship had

existed between the two. And although the jury was provided a definition of

dating relationship and dating violence, the application paragraph did not require

a finding of either a dating relationship or dating violence. Nor is there any

allegation in the indictment that Appellant had been previously convicted of

family violence, and the jury was not asked to find any prior convictions for

family violence.

          LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

      In challenging the legal and factual sufficiency of the evidence in his first

two points, Appellant offers three arguments: (1) the evidence fails to establish

that Appellant violated the terms of the protective order; (2) the State’s

contradictory evidence does not prove that an assault occurred; and (3) the

evidence raises serious questions about the complainant’s character for

truthfulness.




                                        4
                                  Protective Order

      Appellant argues that the protective order prohibited him from committing

family violence as it regards members of the same household and members of

a family but not family violence in terms of dating violence. Appellant is correct

that the definition contained in State’s Exhibit Four, the magistrate’s order for

emergency protection family violence, does not include the definition of family

violence in terms of dating violence.         The portion of the “order” to which

Appellant refers, however, is the portion appended after the order itself and

after the requisite warning.2 It is part of neither the order nor the warning, and

Appellant has directed us to no authority providing otherwise.3

      Our review of the emergency protective order shows that it specifically

names the complainant and the offense now before this court. It also names

her parents and her children. The order prohibits Appellant’s committing family

violence and prohibits his communicating in a threatening and harassing manner

directly with the complainant or a member of her family or household and from

communicating a threat through any person to the complainant or members of




      2
          … See T EX. C ODE C RIM. P ROC. A NN. art. 17.292(g) (Vernon Supp. 2007).
      3
      … See T EX. R. A PP. P. 38.1(h); Tong v. State, 25 S.W.3d 707, 710 (Tex.
Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001).


                                          5
her family or household. It also prohibits his going within three hundred feet of

the residence, business, or place of employment of the complainant or member

of her family or household protected under the order. It does not specify the

type of family violence prohibited.

      Appellant does not claim on appeal that the indictment is defective for

failing to specify which kind of family violence he committed; that is, whether

he committed family violence against a member of his family or household or

whether he committed family violence against someone with whom he was or

had been in a dating relationship, nor does he complain of the denial of any

motion to quash the indictment.4

      The State’s burden on appeal was to prove that Appellant, intentionally

or knowingly in violation of the protective order, committed an act of family

violence. The statute defines family violence as

      (1) an 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;

      (2) abuse, as that term is defined by Sections 261.001(1)(C), (E),
      and (G), by a member of a family or household toward a child of
      the family or household; or


      4
          … See Teal v. State, 230 S.W.3d 172, 182 (Tex. Crim. App. 2007).

                                        6
       (3) dating violence, as that term is defined by Section 71.0021.5

Section 71.0021(a) defines dating violence as

       an act by an individual that is against another individual with whom
       that person has or has had a dating relationship and that is
       intended to result in physical harm, bodily injury, assault, or sexual
       assault, or that is a threat that reasonably places the individual in
       fear of imminent physical harm, bodily injury, assault, or sexual
       assault, but does not include defensive measures to protect
       oneself.6

       Contradictory Evidence of Assault and Credibility of Complainant

       Appellant argues that the State’s contradictory evidence does not prove

that an assault occurred and further contends that the evidence raises questions

about the complainant’s credibility. He also argues that the complainant’s head

could have slammed into the steering wheel when she hit the vehicle behind

her, especially since she had no recollection of seeing Appellant in the parking

lot.

       It is not our place to resolve the conflicts in the evidence or to judge the

complainant’s credibility. In reviewing the legal sufficiency of the evidence to

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

prosecution in order to determine whether any rational trier of fact could have




       5
           … T EX. F AM. C ODE A NN. § 71.004 (Vernon 2002).
       6
           … Id. § 71.0021.

                                          7
found the essential elements of the crime beyond a reasonable doubt. 7 This

standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.8 The trier of fact is the sole judge

of the weight and credibility of the evidence. 9 Thus, when performing a legal

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the fact-finder. 10 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.” 11     We must presume that the fact-finder

resolved any conflicting inferences in favor of the prosecution and defer to that




      7
      … Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
      8
      … Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d
at 778.
      9
       … See T EX. C ODE C RIM. P ROC. A NN. art. 38.04 (Vernon 1979); Margraves
v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
      10
       … Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert.
denied, 529 U.S. 1131 (2000).
      11
           … Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).

                                        8
resolution.12

      Similarly, when reviewing the evidence for factual sufficiency, unless the

record clearly reveals that a different result is appropriate, we must defer to the

jury’s determination of the weight to be given contradictory testimonial

evidence because resolution of the conflict “often turns on an evaluation of

credibility and demeanor, and those jurors were in attendance when the

testimony was delivered.” 13 Thus, we must give due deference to the fact-

finder’s determinations, “particularly those determinations concerning the

weight and credibility of the evidence.” 14

      The indictment alleges that Appellant violated the protective order by

committing an act of family violence, namely “intentionally causing bodily injury

to [the complainant], by striking her with his hand or pushing her with his hand,

and said act of family violence was intended to result in physical harm, bodily

injury, or assault . . . .” Although the State argues that the complainant ran to

her car as fast as possible but, before she could drive off, Appellant opened her

car door and slammed her head against the steering wheel, we cannot read her



      12
           … Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d
at 778.
      13
           … Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
      14
           … Id. at 9.

                                        9
testimony in such a clear manner.

         The complainant stated that she left the bar through a side door. As she

was leaving the bar, she was alone and did not notice anyone else in the

parking lot, although she was not really paying attention. Her intent was to get

into her car and to run. She made it to her car and managed to open the door.

She testified, “I got it into reverse.” The prosecutor sought clarity, “So you

actually were able to get to the car?” The complainant testified that she was

just beginning to pull out with the car in reverse gear, when “the car door

opened up and [her] head was slammed against the steering wheel.”            The

complainant testified that she was probably drunk when she got into her car to

leave. She did not remember backing into a van that was parked behind her.

The complainant testified, when asked if she knew who had opened the door

just before she struck her head, “Yes, it was [Appellant].” The complainant

never specifically testified that Appellant slammed her head into the steering

wheel; instead she testified that she had no personal recollection of what had

happened.

         The complainant admitted that she had signed a letter asking that the

restraining order be lifted but testified that she did so only because Appellant

insisted that she do so and because she wanted him to go away and leave her

alone.

                                        10
      The complainant also admitted that she had signed an affidavit of

nonprosecution. At trial, however, she testified that she had signed it only “if

it would make everything go away.” She prepared a written statement that she

sent to Appellant’s now former defense counsel to prepare the affidavit of

nonprosecution. She stated in that document,

      I . . . do hereby declare that on the night of the incident that
      [Appellant] was arrested in front of Hot Rods and Hoggs, that I was
      very intoxicated, that [Appellant] did not injure me in any way. My
      injuries occurred when I was trying to enter my vehicle and hit my
      head on the side of the car when I went to step in the vehicle.
      [Appellant] was not even present with me at the time.

             Furthermore, I was so intoxicated . . . that night that I also
      hit a parked car which I was not even aware that I hit until the
      police told me that I had hit another vehicle. There was not any
      reason for [Appellant] to be arrested during this incident. He was
      only trying to help me at the time because I had been injured. I am
      not fully sure why he even went to jail that night. We had agreed
      to meet that night to discuss our situation at a neutral place just as
      the judge told us to do. There was no malicious or physical
      conduct to justify his arrest.

      The lawyer prepared the affidavit of nonprosecution and the complainant

subsequently signed it. The affidavit provided,

            My name is [the complainant]. I am of sound mind and
      capable of making this affidavit. I am personally acquainted with
      the facts herein stated, which are true.

            On the date this incident occurred, I was at Hot Rods and
      Hog[g]s with [Appellant]. I had invited him to meet me there.
      During the evening I became very intoxicated and walked out of the
      bar. [Appellant] did not even know that I had left.

                                       11
            I walked out of the bar and was trying to enter my vehicle.
      While trying to step into my vehicle, I hit my head on the side/roof
      and fell to the ground.

            [Appellant] came out shortly thereafter. While he was trying
      to assist me, other individuals grabbed him and he was later
      arrested.

            I do not even know why he was arrested because at no time
      did he act maliciously or physically harm me.

      Despite the complainant’s earlier written statement and affidavit and her

failure to remember how the head injury happened, another witness, David

Paden, saw the assault. He testified that he saw a man attack a female who

was trying to get into her car.    The male came up behind the female and

pushed her so that the woman hit her head on the doorjamb. Paden went for

help, and when he returned to the scene of the fight, he saw the female in the

driver’s seat turned sideways and the male was leaning over her trying to hit

her with his fists and hands as she attempted to defend herself. Paden testified

that the male who was subdued by the bar employees and arrested by the

police was the same person he saw attack the female.




                                      12
      Applying the appropriate standards of review,15 we hold that the evidence

is both legally and factually sufficient to support the trial court’s judgment and

overrule Appellant’s first two points.

                                  JURY CHARGE

      In his third point, Appellant contends that the trial court erred by including

instructions in the jury charge that addressed dating violence and dating

relationship. The indictment charged that Appellant committed an act of family

violence against [the complainant] in violation of a protective order. The jury

was charged that they could convict upon a finding of dating violence. As

discussed above, section 71.004 of the family code defines family violence,

and subsection (3) of that section specifically includes dating violence as part

of the definition of family violence. While the indictment might be subject to

a motion to quash requiring the State to prove the nature of family violence,

given that the statute provides three separate definitions of family violence, 16

Appellant does not complain that the trial court denied a motion to quash. It



      15
        … See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235
S.W.3d at 778 (both providing legal sufficiency standard of review); Watson v.
State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175
S.W.3d 795, 799 (Tex. Crim. App. 2005); Sims v. State, 99 S.W.3d 600, 603
(Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 11 (all providing factual
sufficiency standard of review).
      16
           … See T EX. F AM. C ODE A NN. § 71.004.

                                         13
is well settled that a jury charge may not authorize a conviction upon a theory

not alleged in the indictment,17 but in this case there was a general allegation

of family violence and no request for greater specificity.18 The trial court did

not err by charging the jury on dating violence and the dating relationship. We

overrule Appellant’s third point.

                                    CONCLUSION

      Having overruled Appellant’s three points, we affirm the trial court’s

judgment.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PANEL B: DAUPHINOT, GARDNER, and MCCOY, JJ.




      17
       … Rodriguez v. State, 18 S.W.3d 228, 232 (Tex. Crim. App. 2000);
Nunez v. State, 215 S.W.3d 537, 542 (Tex. App.—W aco 2007, pet. ref’d).


      18
         … See Ex parte Porter, 827 S.W.2d 324, 327 (Tex. Crim. App. 1992)
(“[A]bsent a motion to quash for lack of notice, the State is not required to
allege in the indictment that the forged instrument ‘purported to be the act of
another who did not authorize the act’ since such allegation does not constitute
an element of the offense of forgery.”); Hall v. State, 640 S.W.2d 307, 309
(Tex. Crim. App. 1982) (holding that when appellant fails to point out
specifically how a more precise allegation was required for adequate notice,
alleging attempted murder without specifying which type of murder under the
statute is sufficient).

                                        14
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: April 17, 2008




                            15
