Full Opinion

NUMBER 13-24-00521-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG WILLIAM DEWAYNE LAYTON, Appellant, v. THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE COUNTY COURT AT LAW OF BOSQUE COUNTY, TEXAS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices Silva and Cron Memorandum Opinion by Justice Cron A jury convicted appellant William Dewayne Layton of violating a protective order that had been extended by court order while appellant was incarcerated on an unrelated matter. See TEX. PENAL CODE § 25.07(a). Appellant claims the evidence is insufficient to support his conviction because the State failed to prove that he received notice of the extension order. 1 The State maintains that, in terms of notice, it was required to prove that appellant had knowledge of the original protective order, but not the extension order. Alternatively, the State argues that it sufficiently proved notice of the extension order based on the presumption of regularity. The State notes that the extension order contains language directing the clerk of the court to send a copy of the extension order to appellant at the Tarrant County jail. According to the State, this directive is tantamount to a recital that appellant received notice of the extension order, thus triggering a rebuttable presumption that appellant failed to overcome. We conclude: (1) knowledge of the extension order was an element of the offense; (2) the extension order does not create a rebuttable presumption that appellant received a copy of it; and (3) the State failed to otherwise prove that appellant had knowledge of the extension order. Accordingly, we reverse and render. 2 I. BACKGROUND In October 2018, a court found that appellant committed family violence against his ex-wife and that family violence was likely to occur in the future. The court issued a protective order under Chapter 85 of the Texas Family Code that prohibited appellant from, among other things, “going to or near” his ex-wife’s residence. The original protective order, a copy of which was admitted at trial, contains a recital that appellant 1 This appeal was transferred to us from the Tenth Court of Appeals in Waco pursuant to a docket- equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the transferring court’s precedent to the extent that it differs from our own. See TEX. R. APP. P. 41.3. 2 Appellant also argues that the jury charge contained an egregiously harmful error by omitting knowledge of the extension order as an element of the offense. Because we resolve the appeal in appellant’s favor on his sufficiency challenge, we do not reach his other issue. See TEX. R. APP. P. 47.1. 2 appeared in person with his attorney of record and announced ready. The original protective order states that it “shall continue in full force and effect until October 10, 2020.” It contains no statutory warning that the protective order would be extended if appellant was incarcerated on the protective order’s expiration date. On February 10, 2021, the same court signed an order extending the expiration date until May 29, 2023. Appellant’s ex-wife confirmed at trial that she sought the extension order because she still feared for her safety. A copy of the extension order was also admitted at trial. It contains findings that appellant was imprisoned on October 10, 2020, and that his expected release date was May 29, 2021. Unlike the original protective order, it contains no recitals about whether appellant appeared at the February 10, 2021 extension hearing or was otherwise duly served notice of the proceedings but failed to appear. It does, however, contain the following directive: “IT IS FURTHER ORDERED that the Clerk of the Court issue a certified copy of this Order to the Tarrant County Correction Center, 100 E. Weatherford, Fort Worth, Te[x]as 76196 to be served to WILLIAM DEWAYNE LAYTON.” The State subsequently charged appellant by information of “intentionally and knowingly” violating the protective order by “going to or near” the protected residence on or about July 5, 2022. It was undisputed at trial that appellant went to a gas station across the road from the protected residence on the day in question. It was also undisputed that appellant’s eldest son was standing in the front yard of the protected residence and that appellant briefly spoke to him from across the road before leaving in his vehicle. 3 3 The original protective order defined “protected person” as appellant’s ex-wife and his two children with the following limitation: “The protective order as to [the] children is for 30 days only.” Thus, 3 Appellant’s ex-wife testified on direct examination that appellant was present at the original protective order hearing in 2018, but not the extension hearing in 2021. She also acknowledged that appellant was incarcerated on an unrelated matter at the time of the 2021 hearing. When appellant, who was proceeding pro se, attempted to cross examine her about whether he “ever received” the extension order, the State objected that his line of questioning was an impermissible collateral attack on the validity of the extension order, and the trial court sustained the objection. Appellant then attempted to ask his ex- wife whether she had any proof that he “was properly notified,” and the trial court interjected by saying, “She does not have to have that proof.” Appellant responded that “there is no proof that I’ve ever received it,” and the trial court replied that “the order establishes it.” At that point, appellant effectively abandoned his defensive theory about lack of notice. Appellant initially indicated that he would testify, but after the trial court admonished him about his Fifth Amendment rights, he elected not to testify and did not offer any other witnesses in his defense. The jury found appellant guilty, and the trial court sentenced him to six months in county jail. See id. § 25.07(g) (classifying the offense ordinarily as a Class A misdemeanor). Appellant was appointed appellate counsel, and this appeal ensued. II. STANDARD OF REVIEW & APPLICABLE LAW As a matter of constitutional due process, a criminal conviction must be supported by legally sufficient evidence. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. appellant’s eldest son was not a protected person at the time of the alleged offense. 4 2009). “Evidence is sufficient to support a criminal conviction if a rational jury could find each essential element of the offense beyond a reasonable doubt.” Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In conducting a sufficiency analysis, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018). We assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences from the evidence in a manner that supports the verdict. Id. “We may not re-weigh the evidence or substitute our judgment for that of the factfinder.” Id. We consider all the evidence in the record, regardless of whether the evidence was properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We measure the sufficiency of the evidence against “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. “Each respondent to an application for a protective order is entitled to service of notice of an application for a protective order,” which “must be served in the same manner 5 as citation under the Texas Rules of Civil Procedure, except that service by publication is not authorized.” TEX. FAM. CODE § 85.043(a), (c). 4 A protective order “is binding on a respondent who does not attend a hearing if: (1) the respondent received service of the application and notice of the hearing; and (2) proof of service was filed with the court before the hearing.” Id. § 85.006(a). The respondent must receive a copy of the protective order. Id. § 85.041. For instance, when the respondent fails to appear at the hearing, “the clerk of the court shall . . . mail a copy of the order to the respondent not later than the third business day after the date the hearing is concluded.” Id. § 85.041(d). Absent special findings that do not apply in this case, protective orders generally cannot exceed two years in duration. Id. § 85.025(a). However, as relevant here, the expiration date “is extended” if the subject of the protective order is incarcerated “on the date the protective order would expire.” Id. § 85.025(c). In this case, the court extended the protective order’s expiration date to correspond with the second anniversary of appellant’s expected release date on May 29, 2021. See id. § 85.025(c)(2). A party may file a motion to modify an existing protective order, including one that seeks to modify the expiration date of the protective order in accordance with Section 85.025(c). See id. §§ 87.001, 87.002. The respondent is entitled to notice of the motion to modify, and notice “is sufficient if delivery of the motion is attempted on the respondent at the respondent’s last known address by registered or certified mail as provided by Rule 21a, Texas Rules of Civil Procedure.” Id. § 87.003. 4 There have been numerous amendments to Chapter 85 since the original protective order was issued in 2018. Unless indicated otherwise, all citations to Chapter 85 are to the version that existed in 2018. 6 It is a criminal offense to violate a condition of a protective order issued under Chapter 85, including when the subject of the protective order “knowingly or intentionally . . . goes to or near . . . the residence . . . of a protected individual.” TEX. PENAL CODE § 25.07(a)(3)(A). The culpable mental state for this offense “requires some knowledge of the protective order.” Harvey v. State, 78 S.W.3d 368, 373 (Tex. Crim. App. 2002). The State is not required to prove that an accused was actually aware of the protective order’s provisions, but it must prove that he was “given the resources to learn the provisions.” Id. This element of the offense can be satisfied by showing that the accused received either “a copy of the order” or notice of both the application and the hearing but elected not to appear. Id.; see also Ramirez v. State, No. 08-07-00207-CR, 2008 WL 3522369, at *3 (Tex. App.—El Paso Aug. 14, 2008, no pet.) (not designated for publication) (“[W]hen a protective order has been issued under the Family Code provisions, the respondent may be guilty of violating that order, even though he does not know it has been issued or its provisions, provided he has been given a copy of the application for the protective order and notice of the hearing to determine whether the protective order will be issued.” (citing Harvey, 78 S.W.3d at 372–73)). The “some knowledge” requirement can also be satisfied by showing that the respondent attended the protective order hearing. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Harvey, 78 S.W.3d at 372–73)). III. ANALYSIS A. The Hypothetically Correct Jury Charge As an initial matter, the parties disagree on the hypothetically correct jury charge 7 in this case. Appellant does not dispute that the record establishes his knowledge of the original protective order, which, by its express terms, expired on October 10, 2020. He argues instead that the State was required to prove that he had knowledge of the extension order because it extended the validity of the protective order until May 29, 2023, and he was accused of violating the protective order on July 5, 2022. The State responds that it was under “no obligation to prove that [appellant] was put on notice of the order extending the original protective order.” According to the State, it was enough to show that he had knowledge of the original protective order. We find the State’s position incompatible with the notice requirements of the family code and, more importantly, the mens rea requirement of the criminal offense. First, appellant was statutorily entitled to notice of his ex-wife’s motion to modify the expiration date. See TEX. FAM. CODE § 87.003. Moreover, recent amendments to Chapter 85 suggest that the type of modification that occurred in this case has always been coupled with notice to the respondent. All protective orders issued under Chapter 85 must contain certain statutory warnings. See id. § 85.026(a). In 2021, three years after the original protective order was issued in this case, the Legislature amended the statutory warning to include language that tracks Section 85.025(c)—the provision used to extend the protective order in this case. See Act of May 19, 2021, 87th Leg., R.S., ch. 787, § 3, sec. 85.026(a), 2021 Tex. Sess. Law Serv. 1865, 1865 (codified at TEX. FAM. CODE § 85.026(a)). Two years later, the Legislature amended Section 85.026 by adding subsection (d), which dictates that each protective order must specify its expiration date and “provide notice of any extensions that may apply to a person who is the subject of 8 the order, as a result of any confinement or imprisonment of that person.” See Act of May 17, 2023, 88th Leg., R.S., ch. 1117, § 2, sec. 85.026(d), 2023 Tex. Sess. Law Serv. 3471, 3472 (codified at TEX. FAM. CODE § 85.026(d)). According to the author’s statement of intent, this amendment was designed to eliminate the need for subsequent modification hearings, “which involve notice to the [respondent] and the opportunity for them to appear in court with the victim,” by ensuring advanced notice of possible automatic extensions. S. Comm. on State Affs., Bill Analysis, Tex. H.B. 1423, 88th Leg., R.S. (2023). Consequently, for protective orders presently issued under Chapter 85, a respondent receives simultaneous notice of both the expiration date and potential automatic extensions. TEX. FAM. CODE § 85.026(a), (d). While these amendments were undoubtedly enacted to benefit victims of family violence, achieving that legislative end relies on providing respondents with advanced, explicit notice within the original protective order itself. See S. Comm. on State Affs., Bill Analysis, Tex. H.B. 1423, 88th Leg., R.S. (2023). Lastly, the State cites an unpublished memorandum opinion from one of our sister courts for the proposition that it “had no burden to show that [appellant] had knowledge of the extension of the protective order.” See Nielsen v. State, No. 02-19-00157-CR, 2020 WL 1808574 (Tex. App.—Fort Worth Apr. 9, 2020, pet. ref’d) (mem. op., not designated for publication). Although not authoritative, a plain reading of Nielsen proves our point. In that case, the original protective order expired on January 18, 2014, but the applicant obtained a modified protective order that extended the expiration date until November 28, 2032, and the defendant was convicted of violating the modified protective order by being within 100 yards of a protected place on August 1, 2016. Id. at *1–2. The defendant 9 argued on appeal “that the State failed to establish that she acted with the mental state necessary to commit an offense under Penal Code Section 25.007.” Id. at *2. After discussing the knowledge requirement established in Harvey, the court concluded that, under a hypothetically correct jury charge, the State was not required to show the defendant had actual knowledge of the modified protective order’s provisions, but it was required “to show that the modified protective order was issued at a hearing held after [the defendant] received service of the application for the modified protective order and notice of the hearing.” Id. at *4. Here, like Nielsen, appellant was not tried for violating the original protective order; rather, he was tried for violating the modified version of the protective order. See id. at *1–2. In sum, we are aware of no authority that excuses that State from proving that appellant had “some knowledge” of the modified protective order. Harvey, 78 S.W.3d at 373. Further, the State has provided no compelling reason to distinguish this case from Harvey. Accordingly, the hypothetically correct jury charge in this case required the State to prove that appellant either received notice of the motion to modify and the corresponding hearing but defaulted, attended the modification hearing, or received a copy of the extension order. See Harvey, 78 S.W.3d at 373; Villarreal, 286 S.W.3d at 327. B. No Evidence that Appellant Received Notice We can quickly dispense with the first two categories of notice. There is nothing in the record showing that the motion to modify, which was not offered or admitted into evidence, was sent to appellant’s “last known address by registered or certified mail as provided by Rule 21a, Texas Rules of Civil Procedure.” TEX. FAM. CODE § 87.003. The 10 record also does not establish that he had “some knowledge” of the modified expiration date by virtue of his attendance at the modification hearing. See Villarreal, 286 S.W.3d at 327. Indeed, the record affirmatively establishes that appellant did not attend the modification hearing and that he was incarcerated on an unrelated matter at the time. Under the third category, the State argues that the extension order itself creates a rebuttable presumption that appellant received a copy of the order because it “said that [appellant] was to be served with a copy.” The State also contends that appellant “put on no evidence rebutting the presumption in the extension order that he received a copy of the extension order.” “The presumption of regularity is a judicial construct that requires a reviewing court, absent evidence of impropriety, to indulge every presumption in favor of the regularity of the proceedings and documents in the lower court.” Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000). Through this lens, a “court document is presumed to be regular and its contents are presumed to be correct.” State v. Guerrero, 400 S.W.3d 576, 585 (Tex. Crim. App. 2013). Thus, an appellate court presumes that the recitals in a court’s judgment or order are correct absent any evidence to the contrary. See Swartz v. State, 691 S.W.3d 757, 762 (Tex. App.—Houston [14th Dist.] 2024, no pet.). A recital in a judgment or order is generally a statement of fact. See Recital, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining the term as “[a]n account or description of some fact or thing”). For instance, a judgment of conviction must contain a recital detailing the defendant’s plea to the charged offense. See Guerrero, 400 S.W.3d at 583 (“When a person attacks the validity of his prior guilty plea as that plea is reflected in the 11 written judgment, he bears the burden of defeating the normal presumption that recitals in the written judgment are correct.”); see also Green v. State, 670 S.W.3d 633, 635 (Tex. Crim. App. 2023) (discussing whether a recital in a judgment nisi stating that the defendant’s name was “distinctly called at the courtroom door” satisfied the statutory requirement for bond forfeiture that the defendant’s name “shall be called distinctly at the courthouse door”). In civil litigation, judgments and final orders—especially those based on default—typically contain recitals stating whether a defendant or respondent was duly served with process, whether they filed an answer, and whether they appeared at trial or the final hearing. E.g., Barnes v. Deadrick, 464 S.W.3d 48, 51 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (“On April 9, 2009, the trial court signed an order in the SAPCR proceeding. The order recited that Deadrick had appeared at trial with her attorney on March 23, 2009. The order stated that, although he had been ‘duly and properly cited, [Barnes] did not appear [at trial] and wholly made default.’” (alteration in original)). In prosecutions under Section 25.007, appellate courts have found sufficient evidence of the “some knowledge” requirement based on recitals in the protective order or modified protective order. See Dunn v. State, 497 S.W.3d 113, 116 (Tex. App.— Houston [14th Dist.] 2016, pet. ref’d) (“[I]n light of the presumption of regularity of the Order and the absence of any evidence in the record showing that the signature on the Order did not belong to appellant, the signature on the Order is evidence that appellant signed the Order and certified that he was present at the hearing, received a copy of the Order in open court, and had knowledge of the issuance of the Order.”); see also Nielsen, 2020 WL 1808574 at *4 (concluding the evidence was sufficient to establish the “some 12 knowledge” requirement because the modified protective order, which had been admitted into evidence, contained various recitals, including one that the defendant had been duly and properly cited with notice but failed to appear at the modification hearing); Gaw v. State, No. 05-08-00463-CR, 2009 WL 5193931, at *6 (Tex. App.—Dallas Dec. 17, 2009, no pet.) (not designated for publication) (“The recitals in the order that appellant was duly and properly cited and failed to appear, and that the court had jurisdiction over the parties, is evidence the protective order was valid and issued after notice and hearing as required by the family code.”). The extension order in this case, however, does not contain any such recitals; there are no recitals in the order stating that appellant received notice of the motion to modify and subsequent hearing but failed to appear, that he was present at the hearing, or that he in fact received a copy of the order. See Dunn, 497 S.W.3d at 116; see also Nielsen, 2020 WL 1808574 at *4; Gaw, 2009 WL 5193931, at *6. Rather, the State claims that the court’s directive to the clerk to send a copy of the extension order to appellant by certified mail was effectively a recital entitled to the presumption of regularity. But unlike the recitals discussed above, the court’s directive was not a statement of fact about something that had already occurred or a condition that had been satisfied; instead, it was a command to perform a future task. We are aware of no authority establishing that such a directive gives rise to an evidentiary presumption that the clerk subsequently sent notice to appellant. Simply put, it is not a recital entitled to the presumption of regularity. Finally, although we can imagine several ways in which the State could have produced at least some evidence that the clerk followed the court’s directive, no such evidence 13 exists in the record. 5 Having found no evidence in the record establishing that appellant had “some knowledge” of the extension order, we sustain his sufficiency challenge. See Harvey, 78 S.W.3d at 373. IV. CONCLUSION We reverse the judgment of conviction and render a judgment of acquittal. JENNY CRON Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed on the 8th day of October, 2026. 5 Even if the presumption of regularity applied in this case, we would find appellant’s conviction problematic. The State faults appellant for failing to produce “evidence rebutting the presumption in the extension order that he received a copy of the extension order.” Yet, as appellant correctly points out, the State objected when he attempted to elicit testimony about his alleged lack of notice, and the trial court prevented him from developing the record by sustaining the objection and then interjecting when appellant attempted to ask another question on the topic. We note that parties are generally estopped from taking inconsistent positions at trial and on appeal. See Ruffins v. State, 666 S.W.3d 636, 642 (Tex. Crim. App. 2023) (explaining that “a party may be estopped from asserting a claim that is inconsistent with that party’s prior conduct” (quoting Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003))). In any event, the trial court’s improper ruling and interjection would likely entitle appellant to a new trial so that he would have an opportunity to rebut the presumption by presenting his lack-of-notice defense. 14