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holding that record reflects that protective order was issued under chapter 85 of the family code
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No. 05-05-00750-CR
Opinion Filed May 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-85523-04. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION
A jury convicted William Brian Gardner of violating a protective order. The trial court assessed punishment at 180 days in the county jail, probated for eighteen months. Gardner appeals, arguing in three points of error that the trial court erred by denying his motion for instructed verdict, the evidence is legally insufficient to establish he violated a protective order issued as alleged in the information, and the evidence is factually insufficient to prove that he violated the protective order by going near the residence identified in the order. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. Gardner dated a woman for about a year and they had a child together. After the child was born, they separated and agreed to a protective order in connection with disputes over custody and visitation of their child. The protective order prohibited Gardner from going within 500 yards of the woman's residence. One evening, the woman and her boyfriend went outside her house and saw Gardner driving slowly down the street. They both recognized Gardner and his car. A police officer estimated that Gardner would have been approximately 25 yards from the woman's home at the time he allegedly drove down the street. An assistant district attorney testified that the protective order had been issued under the authority of chapter 85 of the family code. In his first two issues, Gardner challenges the legal sufficiency of the evidence. We apply the appropriate standard of review for legal sufficiency challenges. See Jackson v. Virginia, 443 U.S. 307, 318-19, 324 n. 16 (1979) (legal sufficiency measured against the "substantive elements of the criminal offense as defined by state law."); Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (legal sufficiency). We measure the sufficiency of the evidence against the elements of the offense as defined by the hypothetically correct jury charge for the case. Gharbi v. State, 131 S.W.3d 481, 482-83 (Tex.Crim.App. 2003); Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App. 2001); Malik v. State, 953 S.W.2d 234, 236-40 (Tex.Crim.App. 1997). When alternative theories of committing the same offense are submitted to the jury in the disjunctive and the jury returns a general verdict of guilty, the verdict will be sustained if the evidence is sufficient to support a finding of guilt under any of the theories submitted. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). As relevant to this case, the penal code defines the elements of the offense of violating a protective order as a person who knowingly or intentionally goes near the residence of a protected individual in violation of a protective order issued under one of several sections of the family code. Tex. Pen. Code Ann. § 25.07(a)(3)(A) (Vernon Supp. 2005); see also Gharbi, 131 S.W.3d at 481. The information against Gardner alleged the protective order was issued "under the authority of Section 6.504 and Chapter 85 of the Family Code." Section 6.504 of the family code governs issuance of protective orders in divorce cases. See Tex. Fam. Code Ann. § 6.504 (Vernon 1998). Gardner argues the evidence is legally insufficient to support his conviction because there was no evidence that he violated a protective order issued under section 6.504 (i.e. no evidence the protective order was issued in connection with a divorce case). He asserts that because the information alleged the protective order was issued under section 6.504 and chapter 85 of the family code, the State was required to prove the order was in fact issued under both statutes to obtain a conviction. We disagree. Under state law, the State had to prove the protective order was issued under the authority of only one of the statutes listed in penal code section 25.07. Tex. Pen. Code Ann. § 25.07(a). When a statute provides multiple means for the commission of an offense and those means are subject to the same punishment, the State may plead them conjunctively, but is required to prove only one of the alleged means in order to support the conviction. Lawton v. State, 913 S.W.2d 542, 551 (Tex.Crim.App. 1995); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). Although alleged conjunctively in the information, the State was not required to prove the protective order was issued under both section 6.504 and chapter 85 of the family code. See Kitchens, 823 S.W.2d at 258 (holding that "although the indictment may allege the differing methods of committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive."). Because the hypothetically correct charge in this case would have submitted the statutory authority for the protective order disjunctively, the verdict will be sustained if the evidence is sufficient to support a finding of guilt under any of the theories submitted. Kitchens, 823 S.W.2d at 258. The record reflects the protective order was issued under chapter 85 of the family code and was in effect at the time of the offense. Gardner admitted he knew of the protective order and that it prohibited him from going within 500 yards of the residence. There was evidence that Gardner drove within 25 yards of the residence. Having considered all of the evidence, including the above evidence, in the light most favorable to the judgment, we conclude a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Margraves, 34 S.W.3d at 917. We conclude the trial court did not err in denying Gardner's motion for instructed verdict and that the evidence is legally sufficient to support the jury's finding. We overrule Gardner's first two points. In his third point of error, Gardner contends the evidence is factually insufficient to show that he drove near his former girlfriend's residence in violation of the protective order. He argues the State's witnesses were strongly biased against him and he presented contrary evidence that he spent the night with his then current girlfriend. We apply the appropriate standard of review for factual sufficiency challenges. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Gardner argues the complainant's boyfriend testified he wanted her to win the custody battle and failed to identify Gardner as the driver of the car in his initial statement to police. The boyfriend testified that the car had dark-tinted windows and it was late at night when he saw the car. Gardner also asserts the complainant was in a custody and visitation battle with Gardner, had filed previous charges against him for violating the protective order, and could describe his car from memory. Gardner contends his former girlfriend had no reason not to tell the truth when she testified that he spent the night with her because they were not dating at the time of trial. The record indicates that both the complainant and her boyfriend identified Gardner's car and testified they saw him driving down the street in front of her residence. They also testified the driver's window was open. The complainant recognized Gardner's license plate number on the car. It is clear that this case rests on a determination of the credibility of the witnesses. The jury determined the credibility of the witnesses and resolved the conflicting testimony. Nothing in the appellate record clearly reveals a different result is appropriate, therefore, we defer to the jury's determination of credibility and the weight to give contradictory evidence. See Johnson, 23 S.W.3d at 8. After a neutral review of all the evidence, including the above evidence, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Accordingly, we conclude the evidence is factually sufficient. We overrule Gardner's third point of error. We affirm the trial court's judgment.