Larry Dewayne Garrett v. State
03-14-00138-CR
| Tex. App. | May 8, 2015Background
- Appellant Larry Garrett was convicted of Violation of a Protective Order under Texas Penal Code §25.07 by a Bell County jury.
- A final protective order was issued June 26, 2013 in the 264th District Court (Final Protective Order) barring Garrett from certain proximity and contact.
- State’s Exhibit One (the protective order) was admitted, but it did not specify which Family Code provision issued the order.
- Amended information alleged multiple authorities (various Family Code provisions, Article 17.292, and related statutes) but the record was silent on the exact issuing provision.
- The jury charge stated that conduct violated an order issued under Section 6.504 or Chapter 85 of the Family Code, without identifying the precise provision; Garrett moved and objected.
- Garrett appeals arguing the evidence is insufficient because the state failed to prove under which statute the protective order was issued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the evidence legally sufficient to prove a 25.07 violation given no specific issuing statute? | Garrett argues the order’s issuing statute was not proven. | State contends the order was valid and evidence supported the violation. | Insufficient evidence; reversal and acquittal warranted. |
Key Cases Cited
- Harvey v. State, 78 S.W.3d 368 (Tex.Crim.App.2002) (25.07(a) element requires violation of an order issued under enumerated statutes)
- Villarreal v. State, 286 S.W.3d 321 (Tex.Crim.App.2009) (hypothetically correct charge includes basis for order under enumerated statutes)
- Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997) (standard of review for sufficiency; Malik 237)
- Gharbi v. State, 131 S.W.3d 481 (Tex.Crim.App.2003) (defines hypothetically correct jury charge and sufficiency)
- Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001) (establishes sufficiency framework for appellate review)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard of review for evidentiary sufficiency)
- Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) (evidentiary sufficiency review in Texas)