KELLER, P.J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALÁ, JJ., joined.
We must determine whether the evidence shows that appellant violated a "no contact" condition of probation, when the condition allowed contact by telephone regarding issues of child custody and when appellant and his wife had an arrangement for appellant to babysit their children at his wife's home while she was at work. We conclude that the evidence fails to show that appellant violated the "no contact" condition.
On December 2, 2010, appellant was placed on deferred-adjudication probation for assaulting his wife. Condition 22, the "no contact" condition of his probation, provided:
The State filed a motion to revoke on the basis that appellant violated this condition.
The evidence at trial showed that appellant's orientation paperwork, filled out on December 15th, initially listed his home address as his wife's address, but that address was crossed out and his brother's address was written in its place. Appellant testified that he had initially listed his wife's residence as his own out of "force of habit" and not because he actually lived there.
Appellant's probation officer testified to a conversation that she had with appellant on January 3, 2011. She asked appellant about the crossed-out address,
Appellant's children were aged seventeen and fourteen. The probation officer testified that appellant described the fourteen-year-old as mildly retarded. Appellant's wife testified that the fourteen-year-old was a special-needs child with the mental age of an eight- or nine-year-old. Appellant's wife also testified that she worked in the emergency room at a hospital.
The trial judge took judicial notice that a protective order had barred appellant from being at his wife's residence and that the protective order ended on December 19th. Appellant and his wife both testified that appellant first visited his wife's home on December 23rd. Appellant also testified that his understanding of the "no contact" requirement was that he could not be living at his wife's residence.
The probation officer further testified that appellant had told her that he would not have pled guilty if he had known what was in the offense report and that his wife had lied about what had happened. Appellant's wife testified that she did not want the "no contact" condition and that it was difficult on her.
The trial judge adjudicated appellant's guilt, stating on the record that she was making a credibility finding in favor of the probation officer. In support of her conclusion that appellant violated the conditions of probation, the trial judge stated that appellant had "violated the terms by continual phone conversations on everything." The trial judge also stated her conclusion that appellant was living at his wife's residence because, "You don't live where you have one change of clothes." The trial judge sentenced appellant to four years in prison.
The court of appeals affirmed, holding that the evidence was sufficient to show that "appellant engaged in prohibited contact with his wife."
To convict a defendant of a crime, the State must prove guilt beyond a reasonable doubt,
The State's burden of proof informs the appellate standard of review for legal sufficiency of the evidence.
One practical way in which a legal-sufficiency review varies depending upon the burden of proof in the underlying case is the treatment of extrajudicial confessions. When the burden of proof is "beyond a reasonable doubt," a defendant's extrajudicial confession does not constitute legally sufficient evidence of guilt absent independent evidence of the corpus delicti.
But what happens when a defendant makes an extrajudicial statement that does not admit to conduct that violates probation but from which one might possibly infer that such conduct took place? In a concurring opinion, former Presiding Judge Onion suggested that, when the defendant's extrajudicial statement does not admit to all of the allegations necessary to sustain the State's motion to revoke, some sort of corroboration is required.
B. Did Appellant Confess to Prohibited Contact?
But first, we address the State's contention that appellant did confess to conduct that was a violation of probation.
At oral argument, the State claimed that appellant admitted to telephone communications that were in violation of the conditions of probation. Acknowledging that the conditions contained an exception for telephone communications about child custody, the State argued that the wife telling appellant, "I'm coming home; it is time for you to leave," was not a statement made for the purpose of child custody. So, the State contends, appellant's communications with his wife for the purpose of avoiding physical contact with her while he obtained and relinquished custody over the children were prohibited communications.
We disagree. These conversations related to the timing of the defendant's custody over the children — when custody would begin and when it would end. Moreover, the State's position would place appellant in a catch-22: He needed to know when to obtain and relinquish custody of his children so that he could avoid physical contact with his wife, but because he was prohibited from contacting his wife through a third party, he could obtain the needed information only if his wife conveyed it to him over the telephone.
The State also argued that appellant's telephone conversations violated the conditions of probation because he "consistently talked to her on the phone on a consistent basis." But the conditions of probation said nothing about the frequency of telephone conversations; the restriction was only on their content. Appellant's admission that he talked to his wife on the telephone frequently for the purpose of child custody was not an admission that he engaged in conduct that violated his probation.
The State contends that appellant's care of his children in his wife's home was an admission of "proximity" contact to his wife. The State argues that appellant essentially lived in the wife's home and that his arrangement with his wife made him a "looming presence" in her home. In support of its contention, the State cites several out-of-state cases.
The proximity cases cited by the State refer to a probationer's proximity to a person, not to the person's property. They are inapposite because appellant never admitted to being physically near his wife. At oral argument, Judge Cochran asked whether appellant could have cared for the children at his wife's home without violating the "no contact" condition if his wife had gone to New Jersey to help with the aftermath of Hurricane Sandy. The State conceded that staying at his wife's home would not be a violation of the "no
The trial judge concluded that appellant was living at his wife's residence because all of his property, other than a toothbrush and a change of clothes, was there. If what the trial judge meant by this conclusion were simply that the arrangement described by appellant — keeping almost all of his possessions at his wife's home and staying at the home on a frequent basis, though never at the same time as his wife — should aptly be labeled as "living there," then it begs the question. However one wants to label the arrangement described by appellant, that arrangement does not constitute prohibited contact with his wife.
C. Can Prohibited Contact Be Inferred from the Evidence?
Even though appellant did not admit to engaging in conduct that violated the "no contact" condition, we must address whether such conduct can be inferred by the finder of fact from the evidence. We turn to the evidence relied upon by the State and by the courts below.
Even though appellant testified that he initially filled out the form with his wife's address out of force of habit, the trial judge did not have to believe him. Nevertheless, while it is certainly possible that appellant initially filled in his wife's address because it really was his current address, such a conclusion would be mere speculation. At most, the crossed-out address would create suspicion regarding appellant's current residence, but, given that the crossed-out address occurred at the beginning of his probation when the requirement that he live elsewhere had only recently been imposed, it would not even be strong suspicion.
Appellant's Description of the Child Custody Arrangements
Given the deferential nature of a sufficiency review, we accept the trial court's decision to believe the probation officer's description of appellant's statements to her rather than the testimony of appellant and his wife. Thus, we accept that appellant told the probation officer that his arrangement with his wife to care for the children at her residence began when he was placed on probation, on December 2nd, and that his statement is proof of that fact. We disregard contrary testimony from appellant and his wife.
The question, though, is whether it was rational to infer from appellant's statements describing the custody arrangements that appellant engaged in other conduct that constituted prohibited contact with his wife. For example, appellant admitted that he talked to his wife on the telephone frequently for the purpose of arranging child custody. Would it be rational to infer from this admission that
In its brief, the State contends that a finder of fact could draw inferences from the fact that appellant "admittedly talked to his wife on the telephone on a regular basis." In concluding that appellant engaged in "continual phone conversations on everything," the trial judge seems to have drawn the inference that the telephone conversations, being frequent, must have involved matters other than child custody. But neither the State, nor the trial court, nor the court of appeals has explained how one can infer the content of telephone conversations from their frequency, and no explanation is apparent to us.
Relying upon Rickels v. State,
We do not think that the inferences the State seeks to have us draw in the present case are of the same quality as the inferences drawn in Rickels.
Appellant's statements that he took care of the children at his wife's home while she was gone might be probative in combination with other evidence, depending on the nature of that other evidence. If, for example, the State had introduced evidence of bruises on the wife's face, then appellant's admission that he had been to his wife's house might be probative to show appellant as the source of those bruises, and if he was the source of the bruises, then he engaged in prohibited contact. But the State introduced no evidence that could demonstrate the prohibited contact itself.
Motive and Opportunity
As evidence supporting the trial court's decision to revoke probation, the State points to appellant's statement that he would not have pled guilty if he had known what was in the offense report, and it points to his wife's testimony that she did not want the "no contact" condition and that it was difficult on her. This evidence has some tendency to show motive for appellant to have prohibited contact, and the wife's testimony may also show opportunity to do so. We have said that "[m]otive is a significant circumstance indicating guilt."
But these statements are based upon the unstated assumption that there is evidence of something to be "glued." We have held that motive and opportunity alone are not sufficient to demonstrate that a fire was an arson committed by the defendant.
Evidence of motive helps link a defendant to wrongful conduct or is supportive of other evidence of such conduct. The same is true of evidence of opportunity. But without evidence that wrongful conduct has occurred, there is nothing for motive and opportunity evidence to link the defendant to. If, for example, John has a motive for murdering Mary, but there is no evidence that Mary is dead (much less evidence that her death was a homicide), then John's motive is meaningless. His motive alone does not establish that a murder occurred, and the motive cannot link John to a murder without evidence that there was a murder. Motive alone is not even some evidence of a murder that could be used to revoke John's probation.
As we explained in Part 2 above, the State did not introduce any evidence that would establish that prohibited contact occurred. Without that, appellant's motive and opportunity to engage in prohibited contact is not evidence that he actually did so.
The State and the court of appeals also suggest that appellant and his wife attempted to conceal evidence by giving false testimony about the date appellant began visiting his wife's home to care for the children and about how much property he left there. Relying upon Wright v. West,
In Wright, the Supreme Court did indeed hold that perjured testimony could be affirmative evidence of guilt.
But in Wright, Wilson, and Zafiro the fact that a crime had occurred was established by other evidence. In Wright, a home had been burglarized.
Dyer was an appeal from the granting of summary judgment to the defendant in a civil suit alleging slander.
The present case involves more than just testimony that is believed to be false; it involves testimony that conflicts with an earlier, extrajudicial statement. But we have already accepted the earlier, extrajudicial statement as true for purposes of conducting a sufficiency review and have determined that it does not establish a violation of the "no contact" order. The State seeks to use the alleged perjury about the date appellant began visiting his wife's home to care for the children and about how much property he left there to infer the existence of a collateral fact — whether appellant was present in the home at the same time as his wife.
Violating the Protective Order
Finally, the State contends that the evidence shows that appellant violated a protective order that barred him from being at his wife's residence because the evidence shows that he was at his wife's residence before December 19th. The State candidly admits that violation of the protective order is not enough to revoke appellant's probation because the motion to revoke did not allege a violation of the law, but the State argues that it is a circumstance to consider.
But any purpose that might be served by such evidence — such as proving motive, intent, or even character conformity (setting aside any potential admissibility issues)
And like motive, a character-conformity inference is one that links the defendant to an act that has been shown to have occurred. It does so by using a prior act to link the defendant to a subsequent act, but if there is no evidence that the subsequent act occurred, then it is impossible to determine that the defendant acted in conformity with his prior behavior. For example, John's murder of Fred as character-conformity evidence to show that he also murdered Mary makes sense only if it is shown that Mary is dead and we are trying to ascertain whether John killed her. Otherwise, one could just draw a name out of a hat and say, "You killed Fred, so you must have killed this person also because I have not seen him lately."
6. Combined Weight of the Evidence
Appellate courts are not permitted to use a "divide and conquer" strategy for evaluating sufficiency of the evidence.
MEYERS, J., did not participate.