Michael R. Feldman v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                          Order

Michael R. Feldman

Appellant

Vs.                   Nos. 11-02-00339-CR, 11-02-00340-CR, 11-02-00341-CR, 11-02-00342-CR, 

                       11-02-00343-CR, & 11-02-00344-CR -- Appeals from Dallas County

State of Texas

Appellee

Our former opinion and judgments dated December 18, 2003, are withdrawn, and our opinion and judgments dated February 5, 2004, are substituted therefor.

PER CURIAM

February 5, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Michael R. Feldman

Appellant

Vs.                   Nos. 11-02-00339-CR, 11-02-00340-CR, 11-02-00341-CR, 11-02-00342-CR, 

                       11-02-00343-CR, & 11-02-00344-CR -- Appeals from Dallas County

State of Texas

Appellee

In a single trial, the jury convicted Michael R. Feldman as charged in six separate informations of the offense of violating a protective order. The trial court assessed punishment in each case at confinement for 365 days and a $150 fine, but the court suspended the imposition of the sentence and placed appellant on community supervision for 2 years.  We reverse and render in Cause Nos. 11-02-00339-CR, 11-02-00340-CR, and 11-02-00341-CR; and we affirm in Cause Nos. 11-02-00342-CR, 11-02-00343-CR, and 11-02-00344-CR. 

In Cause Nos. 11-02-00339-CR, 11-02-00340-CR, and 11-02-00341-CR, appellant has briefed four points of error.  In the other three causes, appellant presents three points of error.  The first three points of error in all six briefs are similar. In the first point, appellant contends that the evidence is legally insufficient to prove that he had notice of the existence of the protective order.  In the second point, appellant asserts that the trial court erred in denying appellant=s request for a jury instruction on the issue of notice.  In the third point, appellant argues that the trial court erred in failing to instruct the jury on all of the elements of the offense as provided for in TEX. PENAL CODE ANN. ' 25.07 (Vernon 2003).  In the fourth point, appellant contends that the evidence is legally insufficient to prove that his conduct amounted to a communication under Section 25.07. 

In order to address the legal sufficiency points, we must review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  Section 25.07(a)(2) provides in relevant part that a person commits an offense if, in violation of a protective order, the person knowingly or intentionally Acommunicates@:

(A) directly with a protected individual or a member of the family or household in a threatening or harassing manner; [or]

(C) in any manner with the protected individual or a member of the family or household except through the person=s attorney or a person appointed by the court, if the order prohibits any communication with a protected individual or a member of the family or household.

Appellant was charged in Cause Nos. 11-02-00339-CR, 11-02-00340-CR, and 11-02-00341-CR with violating a protective order by communicating via letter with his son, Samuel Feldman.  Appellant was charged in Cause Nos. 11-02-00342-CR, 11-02-00343-CR, and 11-02-00344-CR with violating a protective order by communicating via letter with his ex-wife, Robin Feldman, in a threatening and harassing manner. 

The record shows that the Superior Court of King County, Washington, issued a protective order on January 20, 1999.  Although appellant was not present at the hearing in which the protective order was granted, appellant=s attorney was present.  Appellant=s attorney signed the order, acknowledging that he received a copy.  While the protective order was in effect, appellant sent letters addressed to Samuel. The content of the letters indicated that appellant was aware that Robin would be reading them.  In the letters, appellant made many extremely derogatory remarks about Robin and also made such threatening and harassing comments as: AI am surprised your mother didn=t do to you what Susan Smith did to her two young sons@; AShe is ruining your life and depriving you of a father and his family.  This creature [Robin] must be stopped@; ASome day things will change and she will get her due@; A[S]he knew I would kill her if she murdered my child!@; and AWhen you study about World War II and Hitler, you will understand how if the only Jews Hitler meant were like the creature [Robin], he would want to kill all Jews.@ Robin did not allow Samuel to see or read the letters from appellant. 

In his first point of error, appellant contends that there is no evidence that he had notice of the existence of the order.  However, the terms of the protective order were agreed to by appellant=s attorney, who signed the order and acknowledged that he received a copy of the order.  Furthermore, while appellant, an attorney, was cross-examining Robin, he asked the following questions: 

Q: And didn=t I state -- do you know from your personal knowledge, I stated that I was afraid to go to the State of Washington because I feared you would have me arrested?

A: I believe you stated that.

Q: And, in fact, as we already mentioned, you=ve got an order of protection in the State of Washington 10 days prior to the time that I was supposed to first go, correct?

A: Yes. 

The Texas Court of Criminal Appeals has concluded that the only requirement with respect to this issue is that the defendant:

[B]e given the resources to learn the provisions; that is, that he be given a copy of the order, or notice that an order has been applied for and that a hearing will be held to decide whether it will be issued.  The order is nonetheless binding on the respondent who chooses not to read the order, or who chooses not to read the notice and the application and not to attend the hearing.

Harvey v. State, 78 S.W.3d 368, 373 (Tex.Cr.App.2002).  In this case, notice that a protective order had been sought was shown through appellant=s representation at the hearing by his attorney.  Furthermore, appellant=s knowledge of the existence of the protective order was shown through his questioning of Robin.  We hold that the evidence is sufficient to establish the requisite knowledge.  See Harvey v. State, supra. Appellant=s first point of error is overruled. 

In his fourth point, appellant contends that there is no evidence that he communicated with Samuel.  With respect to Cause Nos. 11-02-00339-CR, 11-02-00340-CR, and 11-02-00341-CR, the informations charged that appellant did: 

[T]hen and there intentionally and knowingly communicate directly and indirectly with SAMUEL FELDMAN...in that the defendant communicated via a letter with complainant, in violation of an order issued by the Superior Court of King County, Washington.

ACommunication@ was defined in the jury charge as Ainformation given, the sharing of knowledge by one another; conference; consultation or bargaining preparatory to making a contract.  Intercourse; connection.@  That definition was taken from BLACK=S LAW DICTIONARY.  The common meaning of Acommunicate@ is Ato make known@ or Ato pass from one to another.@ THE MERRIAM-WEBSTER DICTIONARY 163 (1997).  There is no evidence indicating that Samuel received, read, or even knew about the letters. Consequently, appellant did not Acommunicate@ with Samuel.  Although appellant clearly attempted to communicate with Samuel, appellant was neither charged with nor convicted of attempting to violate the protective order with respect to Samuel.  Furthermore, although Section 25.07(a)(2)(C) makes it an offense to communicate with a member of the protected person=s household or family, appellant was not charged with violating the protective order by communicating with a member of Samuel=s household.  Because the informations did not allege that appellant committed an offense by communicating with a member of Samuel=s family or household, a jury charge on that basis would not have been Aauthorized by@ the information and, thus, would not have been included in the hypothetically correct jury charge in these cases.  Gollihar v. State, 46 S.W.3d 243, 253-56 (Tex.Cr.App.2001); Curry v. State, 30 S.W.3d 394, 404-05 (Tex.Cr.App.2000); Planter v. State, 9 S.W.3d 156 (Tex.Cr.App.1999); Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App.1997).  The evidence, as measured by the hypothetically correct jury charge, is insufficient to support the jury=s verdicts in Cause Nos. 11-02-00339-CR, 11-02-00340-CR, and 11-02-00341-CR.  Therefore, we must sustain the fourth point of error and reverse the convictions in which Samuel was the complainant:  Cause Nos. 11-02-00339-CR, 11-02-00340-CR, and 11-02-00341-CR.

In his second point of error, appellant contends that the trial court erred by denying his request for a jury instruction on the issue of notice.  Appellant requested the following instruction:  A[U]nless the Defendant is aware of what he is prohibited from doing by a specific court order he cannot be guilty of knowingly and intentionally violating that court order.@  The trial court denied appellant=s request. 

In Harvey, the court stated that, in a trial for the violation of a protective order, the jury charge Ashould include a definition of the term >in violation of an order issued under=@ the applicable statutes.  Harvey v. State, supra at 373.  The court defined the term as:

[I]n 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.

Harvey v. State, supra at 373.  The court also stated that, as defined, that term Ais in effect a requirement of a culpable mental state for that element.@ Harvey v. State, supra at 373.  Although the protective order at issue in Harvey differed from the one at issue in this case because it was not issued by another jurisdiction, the Harvey court noted that it had not overlooked protective orders that were issued by other jurisdictions.  The Harvey court reasoned that other jurisdictions Alikely@ had similar notice provisions.  We hold that the trial court in the present case erred by failing to include a definition similar to the one required by the court in Harvey. 

Although appellant=s requested instruction was a misstatement of the law under Harvey, it was sufficient to apprise the trial court of the omission in the charge and, thus, was sufficient to preserve the error for appellate review.  See Francis v. State, 36 S.W.3d 121, 123 (Tex.Cr.App.2000); Chapman v. State, 921 S.W.2d 694 (Tex.Cr.App.1996); Stone v. State, 703 S.W.2d 652, 655 (Tex.Cr.App.1986); see also TEX. CODE CRIM. PRO. ANN. art. 36.15 (Vernon Supp. 2003).  Consequently, we must determine if the error Awas calculated to injure the rights of defendant,@ meaning that reversal is required if the accused suffered Asome harm@ from the error.  TEX. CODE CRIM. PRO. ANN. art. 36.19 (Vernon 1981);  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985).  The actual degree of harm caused by the error must be determined in light of the entire jury charge; the state of the evidence, including the contested issues and the weight of the probative evidence; the argument of counsel; and any other relevant information revealed by the record.  Almanza v. State, supra. 

We hold that the error was not calculated to injure appellant=s rights.  Pursuant to the standard set out in Harvey, appellant need not have attended the hearing or actually been served with the protective order. Appellant must merely have known that an order had been applied for and that a hearing was scheduled.  The evidence in this case clearly showed that appellant was aware that  Robin had applied for a protective order, that a hearing was scheduled and held, and that appellant was represented by his attorney at the hearing.  The only question with respect to this issue was whether appellant actually had knowledge of the specific provisions in the order.  Such specific knowledge, however, is not a requirement of the culpable mental state for the offense of violation of a protective order.  Harvey v. State, supra at 373.  After reviewing the entire jury charge, the evidence, the contested issues, and the jury arguments, we conclude that the omission in the jury charge did not cause Asome harm@ to appellant.  Appellant=s second point of error is overruled. 

In his third point of error, appellant argues that the trial court erred by failing to charge the jury on all of the elements of the offense.  Appellant=s complaint concerns the failure of the application portion of the jury charge to include the requisite culpable mental state.  The jury charge in each case reads in relevant part:

You are instructed that our law provides that a person commits an offense if, in violation of an order issued under [the relevant statutes], the person intentionally or knowingly communicates in any manner with the protected individual or a member of the family or household except through the person=s attorney or a person appointed by the court, if the order prohibits any communication with a protected individual or member of the family or household. 

                                                          *     * *

Now, if you find and believe from the evidence beyond a reasonable doubt that the defendant...did unlawfully then and there intentionally or knowingly communicate directly or indirectly with [Robin/Samuel] by writing a letter to [Robin/Samuel], a protected individual, defendant=s said actions were in violation of a court order, to-wit: a protective order...you will find the Defendant guilty as charged in the Information. 

While we agree with appellant that the application portion of the jury charge was erroneous, we note that appellant did not object at trial to that portion of the jury charge. Therefore, pursuant to Almanza and Article 36.19, we must review the entire jury charge, the evidence, the arguments of counsel, and any other relevant information in order to determine whether the error was so egregious that appellant was denied a fair and impartial trial.  We cannot find under the circumstances of this case that the error was egregious.  See Lane v. State, 957 S.W.2d 584, 587 (Tex.App. - Dallas 1997, pet=n ref=d)(concluding that the failure to include a culpable mental state in an application paragraph did not deny the defendant a fair and impartial trial when the defendant=s culpable mental state was not a contested issue).  It is clear from the record that appellant had the culpable mental state that was required by Harvey.  Appellant, at a minimum, had knowledge that a protective order had been sought. Appellant was represented by his attorney at the hearing on the protective order.  Furthermore, appellant=s questioning of Robin appears to acknowledge that he was aware of the order and that he did not visit Samuel in Washington because he feared that he would be arrested.  Appellant=s third point of error is overruled. 

The trial court=s judgments in Cause Nos. 11-02-00339-CR, 11-02-00340-CR, and 11-02-00341-CR are reversed; and we render a judgment of acquittal in those cases.  The judgments of the trial court in Cause Nos. 11-02-00342-CR, 11-02-00343-CR, and 11-02-00344-CR are affirmed. 

PER CURIAM

February 5, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.