Ethan Thomas Brown v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-21-00377-CR
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ETHAN THOMAS BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CR35078
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MEMORANDUM OPINION
A jury found Ethan Thomas Brown “guilty of the felony offense of violation
of Bond 2+ Times During a Continuing Period Twelve Months or Less in Duration
as charged in the indictment.” See Tex. Penal Code Ann. § 25.072(e). The jury
assessed punishment at imprisonment in the Correctional Institutions Division of the
Texas Department of Criminal Justice for a term of 10 years and a $10,000 fine. The
trial court signed a judgment in accord with the jury’s verdict and Brown filed a
notice of appeal. In a single issue raised in his appeal, Brown argues the judgment
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should be reversed and reformed to reflect a conviction for the lesser included
offense of attempted violation of a bond or protective order two or more times within
a 12-month period. We affirm the trial court’s judgment.
The caption on the indictment identifies the charge as “VIOL
BOND/PROTECTIVE ORDER 2+ TIMES W/I 12 MO” and “25.072(e) Penal
Code”. The body of the indictment recites
that on or about the 24th day of March A.D. 2020, in the County of
Liberty and State of Texas, and anterior to the presentment of this
indictment, ETHAN THOMAS BROWN did during a continuous
period that was twelve months or less in duration, namely from on or
about the 29th day of January, 2020 through the 24th day of March,
2020, engage in conduct two or more times that constituted an offense
under Section 25.07 of the Texas Penal Code, namely made multiple
attempts to directly communicate with [the complaining witness], a
protected person as defined in the Order Amending Conditions of Bond
signed the 29th day of January, 2020 at 5:35 p.m. by the Honorable
Thomas Chambers, Presiding Judge County Court at Law No. 1 of
Liberty County, Texas, in a threatening or harassing manner[.]
Brown did not file a motion to quash the indictment and on appeal he insists
the indictment is not defective. He argues that to allege an offense under section
25.072 of the Penal Code the indictment must describe conduct that is an offense
under section 25.07. A person commits the offense of violation of a bond or
protective order under section 25.07(a) if, in violation of a condition of bond set in
a family violence case and related to the safety of a victim, a person “communicates:
(A) directly with a protected individual . . . in a threatening or harassing manner[.]”
See Tex. Penal Code Ann. § 25.07(a)(2)(A). Brown contends the indictment filed in
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Trial Cause Number CR35078 charged him with committing an offense that does
not exist under section 25.072 of the Penal Code because the indictment alleged that
he “made multiple attempts to directly communicate with” a protected person when
the predicate offense under section 25.07(a)(2)(A) requires that the accused
“communicate … directly with a protected individual.” Brown concedes the jury
necessarily found that all of the elements of criminal attempt and he argues the
appropriate relief is to reform the judgment to reflect a conviction for criminal
attempt and to remand the case to the trial court for a new punishment hearing. See
Thornton v. State, 425 S.W.3d 289, 299-300 (Tex. Crim. App. 2014).
Brown cites only one case in his brief: Walker v. State, 594 S.W.3d 330 (Tex.
Crim. App. 2020). In Walker, the appellant was acquitted of engaging in organized
criminal activity, not because the State alleged a non-existent predicate offense, but
because the State failed to produce evidence supporting each element of the
predicate offense it relied upon to obtain a conviction. See id. at 337.
The indictment in Walker alleged that the defendant engaged in organized
criminal activity by commission of the predicate offense of possession of a
controlled substance. Id. at 333. The intermediate appellate court overruled Walker’s
challenge to the sufficiency of the evidence but found Walker suffered egregious
harm from the jury charge that omitted elements of the offense. Id. at 337. The State
filed a petition for discretionary review in which it conceded it had produced
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insufficient evidence to support a conviction for engaging in organized criminal
activity but argued the Court of Appeals should have reformed the judgment to
possession of a controlled substance with intent to deliver. Id. at 334-35.
The Court of Criminal Appeals held the intermediate appellate court erred by
failing to measure the sufficiency of the evidence against a hypothetically correct
jury charge. Id. at 337. Comparing the evidence at trial against a hypothetically
correct jury charge, the Court held the State failed to prove that Walker committed
a predicate offense that was authorized by the indictment because the State failed to
produce evidence that Walker, or a member of the combination, either possessed the
controlled substance through forgery, fraud, misrepresentation, or deception or there
had been an actual delivery of hydrocodone. Id. The lack of a valid predicate offense
amounted to a substantive defect in the charging instrument that Walker did not
object to before trial, not the lack of an indictment altogether, and even if the
substantive defect impermissibly lowered that State’s burden at trial with regard to
the greater offense the indictment authorized a conviction for possession of a
controlled substance with intent to deliver. Id. at 340. The Court held that if the jury
convicts a defendant of an offense on an indictment that alleges a non-existent
predicate offense, the appellate court may reform the judgment to reflect a
conviction for an existent lesser-included offense. Id. at 332.
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Brown argues that condition exists here. He argues the indictment alleges the
commission of a non-existent predicate offense of violating a bond by attempting to
communicate with a protected person but that the jury necessarily found that he
committed the lesser included offense of criminal attempt. Brown does not argue
that the State failed to present evidence that Brown violated an order setting
conditions of bond more than two times in a twelve-month period by communicating
directly with a protected individual in a threatening or harassing manner. Indeed, in
his brief Brown states:
[The complaining witness] accused Appellant of sexually assaulting her
that night, which led to Appellant being arrested and bond conditions
being imposed on him on January 29, 2020. Among other conditions,
Appellant was ordered not to communicate with [the complaining
witness] in a threatening or harassing manner. [The complaining
witness] testified to numerous violations of this order and Appellant
testified, admitting that he sent messages and letters that he knew were
a violation of the order.
When we review the legal sufficiency of the evidence to support the
conviction, we assess all the evidence in the light most favorable to the prosecution
to determine whether any rational trier of fact could find the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give
deference to the jury’s responsibility to fairly resolve conflicting testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Hooper, 214 S.W.3d at 13. We measure the sufficiency of the evidence by the
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elements of the offense as defined by a hypothetically correct jury charge for the
case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically
correct jury charge “accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which
the defendant was tried.” Id. The law as “authorized by the indictment” includes the
statutory elements of the offense “as modified by the charging instrument.” Curry v.
State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).
A hypothetically correct jury charge need not incorporate indictment
allegations that would give rise to only immaterial variances. Thomas v. State, 444
S.W.3d 4, 9 (Tex. Crim. App. 2014). In determining whether a variance is material,
we examine whether the indictment informed the defendant of the charge against
him sufficiently to allow him to prepare an adequate defense at trial and whether the
indictment would subject him to the risk of being prosecuted later for the same crime.
Gollihar v. State, 46 S.W.3d 243, 248 (Tex. Crim. App. 2001).
When the State pleads a specific element of a penal offense that has statutory
alternatives for that element, the sufficiency of the evidence will be measured by the
element that was actually pleaded, and not any alternative statutory elements. Cada
v. State, 334 S.W.3d 766, 774 (Tex. Crim. App. 2011). For instance, in Cada, an
indictment alleging retaliation against person on account of his service as a witness
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did not authorize conviction for retaliation on account of the person’s service as an
informant because pleading of one statutory element and proof of a different
statutory element is a material variance. See id.Brown argues the indictment identified a non-existent predicate offense, but
a subsection of section 25.07 that the State relied upon as the predicate offense for
the alleged violation of section 25.072 is readily identifiable from the face of the
indictment: Penal Code Section 25.07(a)(2)(A) (“communicates: (A) directly with a
protected individual or a member of the family or household in a threatening or
harassing manner[]”). That the indictment alleged that Brown “made multiple
attempts to directly communicate” with the protected person does not mean that to
secure a conviction the State could not rely on evidence that Brown directly
communicated with her. The State did not, as Brown implies, allege that Brown
committed the offense of criminal attempt as the predicate offense under section
25.072. See Tex. Penal Code § 15.01(a) (“A person commits an offense if, with
specific intent to commit an offense, he does an act amounting to more than mere
preparation that tends but fails to effect the commission of the offense intended.”).
An indictment charges a person with criminal attempt if it tracks the language of
section 15.01(a) or if the indictment alleges facts which show that the defendant
committed acts amounting to more than mere preparation that tended but failed to
effect the commission of the intended offense. McCravy v. State, 642 S.W.2d 450,
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459-60 (Tex. Crim. App. 1982) (op. on reh’g). The indictment in this case neither
alleged that Brown committed an act that tended to but failed to affect the
commission of the intended offense nor alleged facts showing the attempted
communication did not occur. We conclude that the indictment authorized a
conviction under Penal Code section 25.072.
The State produced evidence that Brown was released on bond on an
accusation of sexual assault committed against the complaining witness. A condition
of bond prohibited Brown from communicating with the complaining witness. The
State produced text messages that showed that during the period of time alleged in
the indictment, the complaining witness received many, many messages: text
messages purporting to being from friends expressing their disbelief that the
complaining witness would accuse Brown of sexual assault, text messages imploring
the complaining witness to reconcile with Brown, text messages beseeching the
complaining witness to sign a non-prosecution affidavit, text messages warning the
complaining witness that her house might go into foreclosure, and text messages
containing vague threats that she could face civil liability or criminal prosecution for
having accused him of sexual assault.
Brown testified in his own defense at trial and freely admitted he had sent the
text messages to the complaining witness. Brown admitted he knew he was not
supposed to write to the complaining witness but he sent letters to her from jail
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anyway. The complaining witness testified she felt all the letters, phone calls, and
texts were meant to be threatening and to wear her down.
Viewing all of the evidence in the light most favorable to the prosecution, we
conclude a rational jury could find beyond a reasonable doubt that Brown, during a
period of time that is twelve months or less in duration, intentionally or knowingly
engaged in conduct two or more times that constitutes direct communication with
the complaining witness in a threatening or harassing manner, and that the
complaining witness is a protected individual pursuant to an order on conditions of
bond. We overrule the issue on appeal and affirm the trial court’s judgment.
AFFIRMED.
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JAY WRIGHT
Justice
Submitted on February 28, 2023
Opinion Delivered March 8, 2023
Do Not Publish
Before Golemon, C.J., Horton and Wright, JJ.
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