COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00133-CR
JOHN MICHAEL HENSCHEID APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE COUNTY COURT AT LAW OF COOKE COUNTY
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MEMORANDUM OPINION1
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The trial court convicted Appellant John Michael Henscheid of violating a
protective order, assessed punishment at confinement in the county jail for 180
days, suspended this sentence, and ordered community supervision for a period
of 365 days. Appellant challenges the sufficiency of the evidence to support his
conviction. We affirm.
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See Tex. R. App. P. 47.4.
Factual Background
Incident to divorce proceedings between Appellant and Rose Mary
Henscheid, the trial court issued a protective order on April 2, 2009, prohibiting
Appellant from, among other things, communicating with Rose Mary in a
threatening or harassing manner or communicating in any manner with Rose
Mary except through his attorney or a person appointed by the court.
On October 15, 2009, Rose Mary parked her car in front of Acme Dry
Cleaners, and as she exited her car, Appellant pulled up behind her car, blocking
her in. He rolled down the window, smiled at her, laughed, and said, “I just
wanted to say hi.” Visibly shaken, Rose Mary hurried into the dry cleaners and
remained there until Appellant left a few minutes later.
Appellant was charged by information with a violation of the protective
order. The information accused Appellant of “intentionally and knowingly
communicating directly with Rosemary [sic] Henscheid, a member of the family,
in a threatening or harassing manner, to wit: defendant communicated directly
with Rosemary [sic] Henscheid and not through her attorney or a person
appointed by the court.” Appellant requested a bench trial and pleaded not guilty
before the court.
Testimony
Three witnesses testified at trial: Rose Mary, the complainant; Tracy
McCain, the clerk at Acme Dry Cleaners; and the responding officer. Rose Mary
testified that she obtained a protective order against her husband because of his
explosive behavior and because he had threatened to kill her and put her in a
wooden box at the bottom of Muenster Lake. She further testified that she first
saw Appellant at the cleaners on October 15, 2009, after she parked in the
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parking lot and got out of the car. She described how he pulled his truck directly
behind her and blocked her vehicle in. She testified that she felt threatened and
became scared when Appellant rolled down his window, laughed, smiled, and
said hi. Rose Mary explained that she felt threatened and frightened by his
presence at the cleaners because of his threats to her in the past and the fact
that he seemed to believe he could do whatever he wanted despite the protective
order.
McCain, the clerk at the cleaners, testified that when Rose Mary entered
the business she looked terrified and was very pale and shaking. McCain saw
the truck directly behind Rose Mary’s car and testified that the truck was blocking
Rose Mary’s car from leaving. Although McCain did not see the driver of the
truck or hear anything that had been said, she saw that the window of the truck
was rolled down. McCain testified that she asked Rose Mary if she should call
the police and that Rose Mary did not respond for two to three minutes, but
ultimately agreed that she should. The responding officer described Rose Mary
as startled, shaking, upset, and frightened.
Sufficiency of the Evidence
In his first two issues, Appellant argues that the evidence is legally and
factually insufficient. In his third issue, Appellant contends, without authority, that
his words cannot be considered harassing as a matter of law. We first note that
it is well established that a threat “can be conveyed in more varied ways than
merely a verbal manner.” McGowan v. State, 664 S.W.2d 357, 359 (Tex. Crim.
App. 1984). Thus, we overrule Appellant’s third issue. As to Appellant’s first and
second issues, in light of the holding in Brooks v. State that there is no
meaningful distinction between the legal sufficiency standard and the factual
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sufficiency standard, we will evaluate the first two issues only under a legal
sufficiency standard. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010).
In reviewing the sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
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, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). In a bench trial, the trial judge, as the trier of fact, is the
exclusive judge of the credibility of the witnesses and the weight to be given to
their testimony. Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),
cert. denied, 129 S. Ct. 2075 (2009). 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. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007).
Appellant contends that the evidence is legally insufficient to support his
conviction because the State did not prove that he communicated in a
threatening and harassing manner as alleged in the information. A person
threatens another when he declares an intent or determination to inflict injury or
loss or indicates probable evil, violence, or loss to come. Patton v. State, 835
S.W.2d 684, 687 (Tex. App.—Dallas 1992, no pet.). A person harasses another
when he persistently disturbs, bothers continually, or pesters that person.
Patton, 835 S.W.2d at 687. The information in this case further alleged that
Appellant violated the protective order by communicating directly with the
complainant and not through her attorney or a person appointed by the court.
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See Tex. Penal Code Ann. § 25.07(a)(2) (Vernon Supp. 2010). We hold that the
evidence is sufficient to support the trier of fact’s finding, beyond a reasonable
doubt, that the manner in which Appellant communicated to Rose Mary was
harassing, that Appellant communicated directly with Rose Mary and not through
his attorney or a person appointed by the court, and that Appellant intentionally
violated a protective order. We overrule Appellant’s first and second issue and
affirm the trial court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 14, 2011
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