CourtListener 10745495•Dennis M. Murphy v. the State of Texas
Testo completo
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00068-CR
Dennis M. MURPHY,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2023CR7429
Honorable Jennifer Peña, Judge Presiding
Opinion by: Adrian A. Spears II, Justice
Sitting: Irene Rios, Justice
Lori Massey Brissette, Justice
Adrian A. Spears II, Justice
Delivered and Filed: November 26, 2025
AFFIRMED
A jury convicted Dennis Murphy of the offense of repeated violations of a protective order.
See TEX. PENAL CODE § 25.072. The trial court sentenced Murphy to four years in prison. On
appeal, Murphy argues the evidence is legally insufficient to support the jury’s verdict because the
protective order was invalid. We affirm.
04-25-00068-CR
BACKGROUND
A grand jury returned an indictment alleging that Murphy, on multiple days in 2021:
intentionally and knowingly violated an Order of the 285th District Court of Bexar
County, Texas, dated the 15th day of OCTOBER, 2021, under Cause Number 2021-
CI-12377, issued under the Texas Family Code Sec. 86.001, by intentionally and
knowingly communicating directly by telephone and through electronic
communication with [the complainant] in violation of a court order prohibiting any
communication.
The indictment further alleged that the violations occurred on October 23, 2021, November 3,
2021, November 25, 2021, November 26, 2021, November 27, 2021, November 28, 2021, and
November 29, 2021. Murphy pled not guilty to the allegations in the indictment.
The criminal case proceeded to trial before a jury. At trial, the evidence showed that the
complainant filed an application for a protective order—a civil matter—in a Bexar County district
court. Murphy was served with the application. On October 7, 2021, the district court held a final
hearing on the protective order application. Both Murphy and the complainant appeared at this
hearing. At the end of the hearing, the district court granted the application for a protective order.
On October 15, 2021, the district court signed the final protective order, which contained a finding
that Murphy had committed family violence and prohibited Murphy from communicating with the
complainant in any manner. A certified copy of the final protective order was admitted into
evidence at the criminal trial.
The complainant testified that she and Murphy were divorced and had two children.
Between October 23, 2021, and November 29, 2021, Murphy sent her numerous text messages.
Copies of these text messages were admitted into evidence. The text messages admitted into
evidence include the following:
I don’t care [complainant] because I know this protection order you put on me is
fucking fake you might be real [in] the eyes of this fucking world but we know how
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you got it by fucking lying so they’ll be on your conscious I won’t be here so fuck
it[.]
Forget it I’m pleading the fifth all the way to trial.
Go ahead I give you permission to use all this stuff because it’s all gonna be part of
my testimony anyways send me to jail I’m ready.
Sorry I had to say that . . . because if I’m gonna face felony charges might as well
write it put it all out there.
OK I lied I guess I’m not stopping[.] If the cops still come here though I’m not
going down easy[.]
Murphy also testified. Murphy admitted that he appeared at the final protective order
hearing. He further admitted that he knew the protective order prohibited him from communicating
with the complainant, stating: “I knew I was not supposed to communicate with [the complainant]
at all.” Additionally, Murphy testified that he had “not talked” to the complainant since before the
protective order was issued. Murphy denied that he had sent the text messages in question and
asserted that they had been fabricated by the complainant.
The jury found Murphy guilty as charged in the indictment.
DISCUSSION
“In assessing the legal sufficiency of the evidence to support a criminal conviction, we
consider all the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and reasonable inferences therefrom, a rational juror could have found the
essential elements of the crime beyond a reasonable doubt.” Martin v. State, 635 S.W.3d 672, 679
(Tex. Crim. App. 2021). “When considering a claim of evidentiary insufficiency, we must keep in
mind that a juror may choose to believe or disbelieve all, some, or none of the evidence presented.”
Edward v. State, 635 S.W.3d 649, 655 (Tex. Crim. App. 2021). We defer to the jury’s credibility
determinations. Martin, 635 S.W.3d at 679. “We measure the sufficiency of the evidence against
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the hypothetically-correct jury charge, defined by the statutory elements as modified by the
charging instrument.” Edward, 635 S.W.3d at 656.
Murphy was indicted for the offense of repeated violation of a protective order under
section 25.072(a) of the Texas Penal Code, which provides: “A person commits an offense if,
during a period that is 12 months or less in duration, the person two or more times engages in
conduct that constitutes an offense under Section 25.07.” TEX. PENAL CODE § 25.072(a). As
applicable to this case, section 25.07 provides that a person commits an offense if he violates a
protective order by intentionally or knowingly communicating in any manner with the protected
individual, if the violation is of an order described by this subsection and the order prohibits any
communication with a protected individual. See id. § 25.07(a)(2)(C).
On appeal, Murphy’s chief complaint is that the evidence is legally insufficient to support
his criminal conviction because the final protective order is “invalid.” Murphy asserts the final
protective order is invalid because of alleged errors in the protective order proceeding, namely, (1)
he was not properly served with the protective order application, (2) the protective order
application was not in the proper form, (3) he was not given sufficient notice of the final protective
order hearing, (4) the final protective order was obtained by a private attorney rather than the
district attorney, and (5) a copy of the signed final protective order was not served on him.
Texas intermediate appellate courts have rejected similar complaints about protective
orders issued in civil cases and later challenged in criminal appeals because they constitute
impermissible collateral attacks. See, e.g., Torres v. State, No. 08-19-00209-CR, 2021 WL
3400598, at *4 (Tex. App.—El Paso Aug. 4, 2021, no pet.) (mem. op., not designated for
publication) (“[E]ven if the Order was not justified for any one of the reasons Torres now
complains of, in any case, such error would have made the Order voidable—not void—and Torres’
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remedy was a direct challenge of the Order, in accordance with the appropriate procedures and
deadlines at the time of the Order’s issuance.”); Nielsen v. State, No. 02-19-00157-CR, 2020 WL
1808574, at *6 (Tex. App.—Fort Worth Apr. 9, 2020, pet. ref’d) (mem. op., not designated for
publication) (“Nielsen’s contention that the modified protective order is void constitutes a
collateral attack on that order, one that is not permissible in this proceeding.”); Rogers v. State,
No. 09-15-00270-CR, 2017 WL 2698038, at *3 (Tex. App.—Beaumont June 21, 2017, no pet.)
(mem. op., not designated for publication) (“Rogers . . . cannot collaterally attack the validity of
the protective order on an appeal for his conviction for violating it.”); Glandon v. State, No. 14-
10-0020-CR, 2011 WL 345634, at *6 (Tex. App.—Houston [14th Dist.] Feb. 1, 2011, no pet.)
(mem. op., not designated for publication) (“Appellant may not collaterally attack the April 9,
2008 protective order in this appeal from his conviction for violating that order.”).
“[A] ‘collateral attack’ is an attempt to avoid the effect of a judgment in a proceeding
brought for some other purpose.” Adams v. State, 222 S.W.3d 37, 57 (Tex. App.—Austin 2005,
pet. ref’d). “Collateral attacks on final judgments are generally disallowed.” Browning v. Prostok,
165 S.W.3d 336, 345 (Tex. 2005). “Only a void judgment may be collaterally attacked.” Id. at 346.
“A judgment is void only when it is apparent that the court rendering judgment ‘had no jurisdiction
of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular
judgment, or no capacity to act.’” Id. (citing Browning v. Placke, 698 S.W.2d 362, 363 (Tex.
1985)). “All errors other than jurisdictional deficiencies render the judgment merely voidable, and
such errors must be corrected on direct attack.” Placke, 698 S.W.2d at 363. “[A] protective order
that is not void, only voidable, is only subject to direct attack.” In re S.M., 658 S.W.3d 876, 879
(Tex. App.—El Paso 2022, no pet.).
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Murphy does not assert that the final protective order issued against him is void; rather, he
asserts that it is “invalid” or voidable. We conclude that Murphy’s complaint about the validity of
the final protective order is an impermissible collateral attack that cannot be considered in an
appeal from his criminal conviction for violating that order. See Poteet v. State, 957 S.W.2d 165,
167 (Tex. App.—Fort Worth 1997, no pet.) (noting appellant’s complaint about protective order
was an impermissible collateral attack in appeal from criminal conviction). Accordingly, we will
not consider Murphy’s complaint about the invalidity of the final protective order in reviewing the
sufficiency of the evidence to support his conviction.
To perform a sufficiency review, we compare the evidence produced at the criminal trial
to the essential elements of the offense as defined by the hypothetically correct jury charge. Curlee
v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021). Here, the State produced evidence showing
that Murphy intentionally and knowingly communicated with the complainant two or more times
in a twelve-month period in violation of the final protective order. A certified copy of the October
15, 2021 final protective order was admitted into evidence. The final protective order identifies
the complainant as a “Protected Person” and “[p]rohibit[s] [Murphy] . . . from communicating in
any manner with any Protected Person.” The final protective order recites that Murphy was present
at the final hearing, and Murphy testified that he appeared at the final hearing where the final
protective order was granted. Murphy also testified that he knew the final protective order was in
place and that he knew it prohibited him from communicating with the complainant.
According to the complainant’s testimony, after the final protective order was issued,
Murphy repeatedly communicated with her by sending text messages to her cell phone. Copies of
dozens of text messages showing they were sent on October 23, 2021, November 3, 2021,
November 25, 2021, November 26, 2021, November 27, 2021, November 28, 2021, and November
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29, 2021, were admitted into evidence. The complainant explained that many of the text messages
were sent by Murphy because she recognized his cell phone number and because of “the tone, the
texture and the comments within them.” She also explained that some of the text messages were
sent by Murphy from her son’s cell phone, which Murphy used when his cell phone was lost and
their son was at Murphy’s house. Finally, the complainant explained that another text message was
sent by Murphy because she recognized the sending phone number as Murphy’s work phone
number. See Butler v. State, 459 S.W.3d 595, 602-03 (Tex. Crim. App. 2015) (holding evidence
identifying cell phone number and content of text exchanges may permit a proper inference that
the purported author of an electronic communication actually sent the message). Although Murphy
testified that he did not send the text messages in question, the jury was entitled to disbelieve this
part of his testimony. See Edward, 635 S.W.3d at 655 (“The jury is the sole judge of the weight
and credibility of the evidence.”).
Viewing the evidence and all reasonable inferences in the light most favorable to the jury’s
verdict and deferring to the jury’s credibility determinations, we conclude a rational jury could
have found the essential elements of the offense beyond a reasonable doubt. Accordingly, the
evidence is legally sufficient to support the jury’s verdict. See Diaz v. State, 549 S.W.3d 896, 900
(Tex. App.—Amarillo 2018, no pet.) (holding State presented legally sufficient evidence to
support conviction for violating a protective order two or more times within a twelve-month
period).
CONCLUSION
The trial court’s judgment is affirmed.
Adrian A. Spears II, Justice
DO NOT PUBLISH
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