Hammack v. State, PD-0636-19

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 622 S.W.3d 910
• Decision Date: 19 May 2021
• Docket Number: NO. PD-0636-19,PD-0636-19
• Parties: Michael Anthony HAMMACK, Appellant v. The STATE of Texas

622 S.W.3d 910

Michael Anthony HAMMACK, Appellant
v.
The STATE of Texas

NO. PD-0636-19

Court of Criminal Appeals of Texas.

Delivered: May 19, 2021

Jessica McDonald, for Appellant.

Stacey M. Soule, Austin, for State.

Newell, J., delivered an opinion in which Hervey, Richardson, Yeary, Walker, Slaughter and McClure, JJ., joined.

Does the State have to prove that a defendant was served with a copy of an emergency protection order that removes a child from custody to establish that a person commits the offense of "Interference with Child Custody"? No. The plain terms of the statute only require proof that the person who takes or retains a child in violation of a judgment or order, including a temporary one, knows that he or she is doing so in violation of such an order. Proof that the person has been served with a temporary order may satisfy the State's burden to prove such knowledge, but it is not required if knowledge can be proven through other means. In this case, the State presented sufficient evidence that Appellant knew about the existence and relevant terms of the emergency protection order even though the evidence showed he had successfully avoided service. Consequently, we affirm the court of appeals.

622 S.W.3d 912

Background

On February 23, 2018, a school counselor contacted the Texas Department of Family and Protective Services ("the Department" or "TDFPS")¹ regarding her concerns about potential child abuse involving Appellant's sixteen-year-old daughter.² Department Investigator Amber Davidson opened a case and called Appellant, telling him about the investigation. Later that day, Davidson went to Appellant's home to investigate, but Appellant told her to get off his property and to come back with a court order.

She did. On February 27, 2018, Davidson obtained (1) an Order of Protection of a Child in an Emergency ("the Order") that awarded custody of Appellant's child to the Department; and (2) a Writ of Attachment that commanded any sheriff or constable in Texas to take the child and deliver her into the Department's possession.³ This order granted sole managing conservatorship of the child to TDFPS as well as sole right of possession and custody of the child.⁴

That same day, Davidson returned to Appellant's residence, accompanied by Department Investigator Rhonda West, to serve Appellant the Order. Davidson and West identified themselves and explained to Appellant that, pursuant to the Order, they were there to take custody of the child. Appellant immediately became aggressive and ordered them off his property. According to West, Appellant knew who she was and was not surprised that she was there.⁵ Based on her interactions with Appellant, she had "no doubt" that at that time Appellant understood that a court order had been issued to retain the child and knew that TDFPS had custody of the child.

Davidson and West left Appellant's residence but went to the child's school, where they took custody of the child with the assistance of the school's resource officer. After bringing the child back to the Department's office, Davidson telephoned Appellant to tell him that the Department had obtained custody of the child as a result of the Order and had thus picked her up at school. Davidson asked Appellant to come to the office so she could give Appellant the paperwork and talk to him about the situation. Appellant asked how Davidson had obtained the Order. When Davidson replied with the name of the judge who signed the Order, Appellant said, "[T]hat can't be possible because I only work with a different judge." Appellant did not comply with Davidson's request to come to the office.

622 S.W.3d 913

Based upon the phone conversation, Davidson testified that Appellant was "fully aware" that TDFPS had custody at that point. Davidson had "no doubt" that Appellant understood that TDFPS had taken custody of the child pursuant to a Court Order and Writ of Attachment when she telephoned him.

After the phone call, the child escaped from TDFPS custody and the Greenville and Commerce Police Departments were alerted. Commerce Police Officer Kelvin Rhodes traveled to Appellant's home, joined separately by TDFPS investigators. Officer Rhodes asked Appellant if his daughter was home or if he had heard from her, but Appellant said that she was not there and that he had not. Rhodes informed Appellant "[t]hat we were in search of [the child] due to her being missing from the custody of Child Protective Services." Appellant did not appear to be surprised by this information. It appeared that he knew the child was supposed to be with the Department. Rhodes’ search of the home revealed that the child was not there.

Shortly after Officer Rhodes confronted Appellant, the TDFPS investigators drove to other residences to look for the child, including the child's mother's house, Appellant's mother's house, the house where the child's sister was staying, and the child's boyfriend's house. When their attempts were unsuccessful, they returned to Appellant's mother's house for a second time. As they approached the house, TDFPS Investigator Torres noticed a car that was not there previously and called the Commerce police to inquire about the car.

While waiting for the police, Torres saw the child and the child's then-boyfriend walk into the house. Commerce Police Officer Marcus Cantera arrived and spoke with Appellant's mother, Linda Hammack. He told Linda that the child had escaped from the Department after the writ of attachment was executed and that he was looking for her. Linda testified that she was never told why the police were looking for her granddaughter. Linda allowed Cantera to enter the house and look for the child. While searching, Cantera heard people talking in the attic and found Appellant on a ladder leading to the attic. Appellant began yelling and accusing Cantera of violating his constitutional rights. On witnessing the confrontation, Linda recanted her prior consent to Cantera's search of the house.

As Cantera was leaving, Appellant followed him outside. Cantera pointed out the TDFPS vehicle parked three or four feet away, which contained two TDFPS investigators who were waiting to transport the child if found. According to Cantera, Appellant "was told about the order before [he] got there" and knew that the Department had temporary custody of the child.

Less than a week later, Appellant brought the child, who was pregnant, to Oklahoma and consented to her marriage to her eighteen-year-old boyfriend. The following day, Investigator Davidson received a phone call telling her that someone had seen the child at Appellant's residence. Davidson and a Commerce police officer retrieved the child from Appellant's home.

The State charged Appellant with interference with child custody. A jury convicted him and sentenced him to two years’ confinement in state jail. The trial court placed Appellant on community supervision for a term of five years. The terms and conditions of his probation specified that Appellant could not live with the child (or any of his children) or have unsupervised access to any child under eighteen years of age.

622 S.W.3d 914

Appeal

In his sole point of error on appeal, Appellant claimed that the evidence was legally insufficient to prove he knew he was violating the terms of a judgment or order when he secreted the child. Appellant did not contest the fact that he retained the child in violation of the terms of a temporary order. Instead, he challenged the jury's finding that he had knowledge of the Order.

The court of appeals concluded that the evidence was legally sufficient to support the jury's verdict of guilt and affirmed the trial court's judgment.⁶ The court reasoned that although Appellant was not formally served with the Order, Investigator West, Investigator Davidson, Officer Rhodes, and Officer Cantera all testified that Appellant had been repeatedly notified about the Order and that he knew TDFPS had obtained custody of the child pursuant to that order.⁷ From this testimony and Appellant's participation in secreting the child, the court of appeals held that a jury could infer that Appellant knew he was violating the terms of a child-custody order by retaining the child.⁸

Standard of Review

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.⁹ We measure legal sufficiency by the elements of the offense as defined by a hypothetically correct jury charge.¹⁰ "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 unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried."¹¹

A reviewing court must defer to the jury's credibility and weight determinations because the jury is the "sole judge" of witnesses’ credibility and the weight to be given testimony.¹² In reviewing the sufficiency of the evidence, we should...