Bell v. State, 02-21-00098-CR

CourtCourt of Appeals of Texas
Writing for the CourtBonnie Sudderth, Chief Justice
PartiesCandace Bell, Appellant v. The State of Texas
Docket Number02-21-00098-CR
Decision Date23 November 2022

Candace Bell, Appellant

The State of Texas

No. 02-21-00098-CR

Court of Appeals of Texas, Second District, Fort Worth

November 23, 2022

On Appeal from County Criminal Court No. 1 Denton County, Texas Trial Court No. CR-2020-01494-A.

Before Sudderth, C.J.; Kerr and Birdwell, JJ.


Bonnie Sudderth, Chief Justice


I. Background

In two points, Appellant Candace Bell appeals her conviction and 180-day sentence for violation of a protective order. See Tex. Penal Code Ann. § 25.07(a)(3)(B) (providing that a person commits an offense if, in violation of an order issued under Chapter 85 of the Family Code, the person knowingly or intentionally goes to a child-care facility where a child protected by the order attends).

The facts are quite simple. It is undisputed that on October 4, 2019-in violation of a protective order that prohibited Bell from "going to or near" and "within 1000 yards of" Hebron Montessori School, the child-care facility that her son (Son) attended-Bell went to see Son at Hebron. After Bell left, Hebron's director reported Bell's presence to Son's father, James Hawkins. Hawkins immediately called the police and drove to the school. A police officer arrived at Hebron shortly thereafter, made a report, and obtained a warrant for Bell's arrest. Bell was later arrested.

Bell was charged with knowingly violating the protective order. See id. A jury convicted her and assessed her punishment at 180 days in jail.

In her first point on appeal, Bell complains of the trial court's refusal to include an instruction in the court's charge regarding a clerk's duty under Texas Family Code Section 85.042(b) to deliver a copy of a protective order to the affected child-care


facility.[1] In her second point, Bell argues that there was insufficient evidence to support a finding of guilt against her. We affirm.

II. Analysis A. Point One: Refusal of Bell's Requested Jury Instruction

In her first point, Bell argues that the trial court should have instructed the jury that "[o]ur law provides that if a protective order made under Chapter 85 of the Family Code prohibits the Defendant from going to or near a childcare facility or school, the clerk of the Court shall send a copy of the order to the childcare facility or school."

At trial, after Bell's attorney requested this charge instruction, the trial court refused the request, stating, "I'm going to deny that request .... I do not believe that that's an element of the offense." While Bell's attorney agreed that the content of the requested instruction did not represent an element of the offense, he nevertheless urged the trial court to provide it as "an explanation of the law that is used to obtain a conviction under Chapter 85 of the Family Code .... [i.e.,] an instruction to the jury explaining the law to them." The trial court again denied the request and refused to include the requested instruction in the court's charge.


Bell is correct that because this protective order prohibited Bell from going to or near Hebron, the clerk of the court was required under Family Code Section 85.042(b) to send a copy of the protective order to Hebron. Tex. Fam. Code Ann. § 85.042(b) (providing that "[i]f a protective order made under this chapter prohibits a respondent from going to or near a child-care facility or school, the clerk of the court shall send a copy of the order to the child-care facility or school"). And it is undisputed that the clerk failed to carry out its obligation to do so.

Article 36.14 of the Texas Code of Criminal Procedure required the trial court here to instruct the jury in writing as to "the law applicable to the case" without "expressing any opinion as to the weight of the evidence, . . . summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury." Tex. Code Crim. Proc. Ann. art. 36.14.[2] But Bell's requested instruction regarding the clerk's duty to send the protective order to Hebron had no place in this charge; it was not applicable to the


case here because it would not have assisted the jury in identifying the elements of the offense that the State was required to prove, nor would it have identified a defense, an affirmative defense, or a justification for the jury to consider. See Tex. Penal Code Ann. § 25.07. Indeed, had the trial court included the requested instruction in the charge, the court would have run the risk of commenting on the weight of the evidence, see Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008) ("Even a seemingly neutral instruction may constitute an impermissible comment on the weight of the evidence because such an instruction singles out that particular piece of evidence for special attention."), which it is expressly forbidden to do.

The trial court did not err by refusing Bell's requested instruction. We overrule Bell's first point.

B. Point Two: Sufficiency of the Evidence

In her second point, Bell complains that there was insufficient evidence to support a finding of guilt against her. The record demonstrates otherwise.

In an evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

To determine whether the State has met its burden to prove a defendant's guilt beyond a reasonable doubt, we compare the crime's elements as defined by a


hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) ("The essential elements of an offense are determined by state law."). Such a 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 the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Hammack, 622 S.W.3d at 914.

The law as authorized by the indictment means the statutory elements of the offense as modified by the charging instrument's allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021); see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) ("When the State pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory elements."). "Under this standard, evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt." Queeman, 520 S.W.3d at 622 (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013)).

When a sufficiency issue turns on the meaning of the statute under which the defendant was prosecuted, we review the statutory construction issue de novo. Flores v. State, 620 S.W.3d 154, 158 (Tex. Crim. App. 2021); Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015);


see Prichard v. State, 533 S.W.3d 315, 319-20 (Tex. Crim. App. 2017) (reciting principles of statutory construction). "In those situations, after viewing the evidence in the light most favorable to the verdict, we ask if certain conduct actually constitutes an offense under the statute" as construed. Flores, 620 S.W.3d at 158; see Timmins v. State, 601 S.W.3d 345, 347-48 (Tex. Crim. App. 2020).

"[W]ords not specially defined by the Legislature are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance." Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992); see Green v. State, 476 S.W.3d 440, 445-47 (Tex. Crim. App. 2015) (quoting Vernon). "Accordingly, when...

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