Deltuva v. State, No. 05-05-01325-CR (Tex. App. 4/10/2007)
| Decision Date | 10 April 2007 |
| Docket Number | No. 05-05-01325-CR.,05-05-01325-CR. |
| Parties | JOHN PAUL DELTUVA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-81341-04.
Affirmed.
Before Justices MORRIS, LANG, and LANG-MIERS.
John Paul Deltuva appeals the trial court's judgment convicting him of criminal nonsupport of his three children. The jury found Deltuva guilty and the trial court assessed his punishment at two years of confinement in state jail, probated for five years.
Deltuva articulates his three issues on appeal as follows: (1) the trial court erred when it denied his motion to dismiss because his conviction for the offense of criminal nonsupport violated the double jeopardy provisions of the United States and Texas Constitutions; (2) the evidence is insufficient to show he intentionally and knowingly failed to provide the support described in the indictment; and (3) the evidence is insufficient to sustain his conviction because the evidence conclusively established his affirmative defense that he was unable to pay. We conclude the trial court did not err when it denied Deltuva's motion to dismiss. Also, we conclude the evidence is legally and factually sufficient to support Deltuva's conviction and to disprove his affirmative defense. The trial court's judgment is affirmed.
The evidence at trial is extensive as to Deltuva's financial history. We set forth the evidence in detail for the purpose of addressing Deltuva's sufficiency issues.
On April 1, 1981, Deltuva, an optician, opened an optical store, Campbell Opticians, Inc. Deltuva was the president, chief executive officer, and sole shareholder of Campbell Opticians. His mother, Madeline Deltuva, was the secretary of the corporation and handled the bookkeeping. From 1981 to 1983, Deltuva "realized no money" from his business. However, beginning in 1983, his income increased steadily each year. Deltuva's business also generated money through a corporate brokerage division account. For the first few years, he "made thousands of dollars buying and selling stocks in short periods of time." However, Deltuva made investments "the average guy on the street" should not make.
In 1982, Deltuva met Barbara Deltuva and, in 1984, they were married. There are three children from the Deltuvas' marriage, J.D.D., B.J.D., and W.G.D. During the marriage, Ms. Deltuva was a homemaker.
In 1991, Deltuva opened a second optical store located in an ophthalmologist's office. Deltuva's income continued to increase and in 1999, he earned a salary of $125,000. However, in 1999, the ophthalmologist retired and Deltuva closed his second optical store.
In November of 2000, after seventeen years of marriage, Ms. Deltuva petitioned for divorce. In April 2001, while the divorce was pending, Deltuva ceased contact with his children. On February 18, 2002, the 366th District Court entered the final decree of divorce. Under the terms of the divorce decree, Ms. Deltuva had custody of the children and Deltuva was ordered to pay child support in the amount of $1,800 per month and to provide medical insurance with a $500 deductible for the children.
In 2001, Deltuva paid child support in the amount of $18,000. In 2002, Deltuva paid a total of $23,650 in child support and spousal maintenance. Also, on January 31, 2002, Deltuva filed for personal Chapter 7 bankruptcy.
At the time of his divorce, Deltuva had medical insurance for his children and paid a quarterly premium of $1,100. However, he claims the premiums continuously increased, reaching a maximum quarterly payment of $2,500, so Deltuva changed the deductible from $500 to $2,500. As a result, in 2002, the 366th District Court found him in contempt and jailed him for three days.
From May 2002 to December 2002, Deltuva made child support payments, but his payments were deficient by $3,400. In January 2003, Ms. Deltuva initiated an enforcement action and Deltuva paid the arrearage. On January 15, 2003, Deltuva paid $800 of the next $1,800 child support payment. After that payment, he ceased paying child support.
On April 1, 2003, the 366th District Court found Deltuva in criminal and civil contempt of court for failing to pay child support from January 2003 through April 1, 2003. Beginning on April 1, 2003, Deltuva was confined in jail for criminal contempt for three days. Then, on April 4, 2003, Deltuva was jailed as coercive civil contempt until he paid the child support arrearage. Because he did not pay the arrearage as required by the coercive civil contempt order, he was confined in jail from April 4, 2003 through February 12, 2004.
From April 2003 to June 2003, Deltuva was on work release, but he made no child support payments or payments on the arrearage. On July 1, 2003, the 366th District Court revoked Deltuva's work release because it found Deltuva was able to pay the child support ordered and had failed to do so. The 366th District Court ordered Deltuva confined in jail without work release until he paid all child support arrearage. After Deltuva's work release was revoked, Campbell Opticians remained open for an additional two weeks so an employee could distribute existing orders. Then, the store was closed until Deltuva was released from jail.
While Deltuva was in jail, his mother directed the mail for Campbell Opticians forwarded to her apartment. Also, she paid some of Deltuva's debts, including his apartment lease at $ 1,105 per month, his business lease at approximately $1,500 per month, and his car payment at $300 per month. However, Deltuva would not ask his mother for assistance in paying his child support obligations because he believed the amount ordered by the 366th District Court was "excessive."1
Deltuva was released from jail on February 12, 2004, without having paid the arrearage or making any additional child support payments. In February of 2004, Ms. Deltuva arranged for Deltuva to have dinner with two of his children, B.J.D. and W.G.D. Deltuva spent a little over an hour with his sons. Subsequent to that dinner, Deltuva had no further contact with his children.
After Deltuva was released from jail, he reopened his business. Deltuva claims the business had a negative cash flow, so he closed Campbell Opticians on October 31, 2004. He claims his corporate debts are in excess of $25,000. However, Deltuva put the business equipment in a rented storage unit with the hope of opening a store in New York.
On July 20, 2004, Deltuva was indicted for criminal nonsupport and the case was assigned to the 296th District Court. The indictment alleged that on or about and between April 2, 2003 and July 10, 2004, Deltuva: (1) intentionally or knowingly failed to provide support for his children who were younger than 18 years of age; or (2) intentionally or knowingly failed to provide support for his children who were the subject of the final decree of divorce, which required him to support his children. After his arrest, Deltuva posted a $5,000 cash bond.
In May 2005, Deltuva began working as an optician for an optical store. His salary was $14 per hour and he worked 30 to 40 hours per week.
On July 21, 2005, after considering motions for enforcement filed by Ms. Deltuva, the 366th District Court entered a judgment against Deltuva, finding, in part, that Deltuva failed: (1) to make spousal support payments from February 1, 2003 through December 31, 2004 and was $14,950 in arrears; and (2) to make child support payments from January 2003 through July 2005, and was $45,300 in arrears for child support and $ 525.75 in arrears for medical child support. Also, the 366th District Court found Deltuva in contempt, but it did not assess a fine or order him confined. However, the 366th District Court ordered Deltuva to pay the child support and the arrearage, and, should Deltuva die before full payment, any amounts due under the order will be an obligation of Deltuva's estate.
On July 22, 2005, Deltuva filed a motion in the 296th District court seeking dismissal of the indictment claiming it was barred by the constitutional provision against double jeopardy. Deltuva argued that: (1) on July 21, 2005, the 366th District Court found him guilty of contempt of court for failing to support his children from January 1, 2003 through July 31, 2005; and (2) the 366th District Court had previously found him in contempt and sentenced him to jail from April 1, 2003 through February 12, 2004, a total of 318 days. After a hearing, the trial court denied Deltuva's motion to dismiss.
On July 26, 2005, Ms. Deltuva received a money order in the amount of $124.75 for spousal maintenance pursuant to the 366th District Court's July 21, 2005 judgment. Also, on July 26, 2005, the jury trial commenced in the 296th District Court. Before the charge was read to the jury, Deltuva moved for an instructed verdict and objected to the jury charge, arguing the second paragraph of the indictment that alleged Deltuva intentionally or knowingly failed to provide support for his children who were the subject of the final decree of divorce violated the double jeopardy provisions of the United States and Texas Constitutions. The 296th District Court denied the motion and overruled his objection. The jury found Deltuva guilty of criminal nonsupport and the trial court assessed Deltuva's punishment at two years of confinement in state jail, probated for five years.
In his first issue, Deltuva argues the 296th District Court erred when it denied his motion to dismiss because his conviction for the offense of criminal nonsupport violated the double jeopardy provisions of the United States and Texas Constitutions. The State responds that the prior criminal contempt and the criminal nonsupport...
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