Tyra Williams v. State ( 2014 )

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
–2–
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.
–3–
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
–4–
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.
–9–