Ross v. State

• Decision Date: 28 March 2018
• Docket Number: NO. PD–0001–17,PD–0001–17
• Citation: 543 S.W.3d 227
• Parties: Rebekah Thonginh ROSS, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

543 S.W.3d 227

Rebekah Thonginh ROSS, Appellant

v.The STATE of Texas

NO. PD–0001–17

Court of Criminal Appeals of Texas.

DELIVERED: March 28, 2018

Jessica McDonald, for Appellant.

Steven Brent Lilley, for The State of Texas.

OPINION

Richardson, J., delivered the opinion for a unanimous Court.

In 2011 Appellant, Rebekah Thonginh Ross, worked as an investigator for the Greenville office of the Texas Department of Family and Protective Services (hereinafter referred to as "the Department" or "CPS"). In 2015, she was convicted of the offense of official oppression.¹ The charge was based on an allegedly unlawful search that Ross conducted pursuant to her duties as a CPS investigator. Ross's conviction was affirmed by the Sixth Court of Appeals.² We granted Ross's petition for discretionary review to determine whether the court of appeals correctly held that the evidence was sufficient to support Ross's conviction.

Based upon our review of the record, viewing the evidence in the light most favorable to the verdict, we hold that the evidence was insufficient to support the trial court's finding beyond a reasonable doubt that Ross knew her conduct was unlawful, which is an essential element ofthe offense of official oppression. We reverse the judgment of the court of appeals and render a judgment of acquittal.³

BACKGROUND FACTS

On December 12, 2011, the Department received a referral stating that a baby had just been born at a two bedroom, one bath, mobile home to a mother who was using drugs during her pregnancy. The report stated that the newborn had not received any medical attention, and the mother had a previous child who was removed due to the mother's drug use. Ross was assigned to the case on December 13, 2011.

After three days of searching databases and conducting research to locate the mother and baby, on December 15, 2011, Ross filed a Petition for Orders in Aid of Investigation of a Report of Child Abuse or Neglect and For Temporary Restraining Order. In her supporting affidavit, Ross reported what she had found through her investigation:

• The referral came to the Department on December 12, 2011, with very little information. Ross was assigned to the case on December 13, 2011. The newborn's parents were Leslie Avery Hunt Vargas (Hunt) and Nicholas Vargas (Vargas).

• Ross learned that the mother (Hunt) was recently in jail for warrants but had been released.

• The baby was born at a mobile home owned by the Vargas family located at 2321 Highway 69 S., Greenville, Texas.

• Ross and her supervisor, Natalie Ausbie Reynolds, went to the home on Highway 69 S. on or about December 13, 2011, and smelled ammonia coming from inside. All of the blinds on the windows were drawn. Ross knocked on the door and the blinds moved and someone appeared to look out.

• A Hispanic female and a white male opened the door. They stepped outside onto the porch but left the door slightly open. Ross observed an ammonia type smell coming from inside the home. Ross stated that, based on her training and experience, butane is an ingredient used in the manufacturing of methamphetamines and smells like ammonia.

• Ross asked the man and woman about the parents of the newborn baby. They stated that Hunt and Vargas had left just 5 minutes before Ross arrived. They confirmed that a baby had been born there and stated that they believed the baby was with Hunt and Vargas. The male explained that they were "just there to take a shower as their own water had been cut off." The man stated that Hunt and Vargas had a room in the home that was always locked and he assumed the baby stayed in that room. The man "stated that they will not cooperate with CPS or anyone else."

• A database search reflected that Hunt was arrested for DWI on December 8, 2011, two days before the birth. The jail stated there were charges from Rains County for possession of controlled substance and theft of property.

• A database search reflected that Hunt had two prior CPS cases. Her first child tested positive for marijuana when born. That child was ultimately removed by CPS as a result of Hunt's chronic use of drugs and her attempted suicide. During that case Hunt continued to use cocaine and tested positive for it in urinalysis tests and oral swabs. She would disappear for 48 hours at a time multiple times a month and come back bruised

and beat up.

• There were reports that the Vargas family were believed to use and manufacture drugs.

• Hunt used cocaine and attempted to commit suicide while caring for her first child. Hunt has an extensive history of drug use and was still using drugs at the close of her last CPS case which resulted in the child being placed with his father.

• Ross was told not to go back to the residence alone but to take Law Enforcement with her.

• Ross stated that there does not appear to have been any medical care for the newborn baby. The affidavit stated that "[t]he child may be at imminent risk of harm."

• Ross was told that Program Director Laura Ard had given permission for hair follicle tests to be performed on the mother, father, and child once they were located.

The district court issued an Order in Aid of Investigation on December 15, 2011. The Order was issued pursuant to Texas Family Code § 261.303(b), which provides that,

If admission to the home, school, or any place where the child may be cannot be obtained, then for good cause shown the court having family law jurisdiction shall order the parent ... to allow entrance for the interview, examination, and investigation.

The Order authorized a representative of the Department to enter the home at 2321 Highway 69 S. to examine the child and observe the premises. The Order listed several residences where the mother and child could be because Ross had done an extensive investigation to gather addresses of friends and family members. The Order provided as follows, in pertinent part:

2.2 The Court finds that there is good cause for the Department to have investigatory access to the child, UNKNOWN CHILD, and to enter the residence at 2321 Hwy 69 S., Greenville, TX [or other residences], where UNKNOWN CHILD is located, for an interview with and/or examination of UNKOWN [sic ] CHILD, and observation of the premises or immediate surroundings where UNKNOWN CHILD is located or where the alleged abuse or neglect occurred.

3.1 IT IS ORDERED that a representative of the Department is authorized to enter the residence at 2321 Hwy 69 S., Greenville, TX, [and seven other addresses] where UNKNOWN CHILD is located, for an interview with and/or examination of UNKNOWN CHILD, and observation of the premises or immediate surroundings where UNKNOWN CHILD is located or where the alleged abuse or neglect occurred in a manner consistent with the provisions of § 261.302, Texas Family Code with assistance from Law Enforcement if necessary.

3.2 IT IS ORDERED that Law Enform cent [sic ] accompany the Department to and inside the residence at 2321 Hwy 69 S., Greenville, TX, [and seven other residences], where UNKNOWN CHILD may be located by any means necessary.

The day after the order was issued, on December 16, 2011, Ross, two deputies, and another Department investigator, Jessica Francis, went back to the same mobile home on Highway 69 S. The deputies broke down the door because no one was home. In searching the bedroom, Ross and a deputy flipped over a mattress and discovered a large stain of blood and bodily fluid on its underside and on the box springs. There was also blood and bodily fluid that had sprayed onto the walls. In the bedroom they found a journal and a calendar indicating that the baby had been born at the home. There was nothing else to indicate whether the child was still alive or whether the child had died.

In the kitchen, Ross instructed a deputy to get a crock pot down from a shelf and look inside. Ross and the deputies also opened kitchen cabinets and drawers. Nothing more was found. Later that day the deputies and Department investigators located Hunt and the baby at a different residence.

After the search at the Highway 69 S. home, Francis reported to Ross's supervisor, Natalie Ausie Reynolds, and to her own supervisor, Rochell Bryant, that she did not believe Ross followed Department policies in conducting the search of the kitchen. Based on this complaint, Ross was eventually charged with the criminal offense of official oppression.⁴

Ross's indictment alleged that, on or about December 16, 2011, Ross, acting individually or as a party with Natalie Ausbie Reynolds,⁵ intentionally subjected complainant, Leslie Hunt, to search and/or seizure that Ross knew was unlawful, and Ross was acting under color of her employment as a public servant, namely a CPS investigator for the Texas Department of Family and Protective Services, at the time of the offense.

Ross's bench trial began on September 17, 2015. The State presented six witnesses, rested, and then the defense rested without presenting any witnesses. The State's first witness was Jessica Francis. She testified to the following facts:

• Generally speaking, the Department's investigators receive intakes of allegations regarding abuse or neglect, and they conduct interviews and gather information to investigate those allegations and determine if there is any intervention necessary to protect the children involved. Francis went with Ross to the Highway 69 S. home to assist her in this investigation.

• After the two members of the Hunt County Sheriff's Office broke down the door and made sure nobody was in the home, Ross entered the home. Francis stayed outside for "several minutes," then went into the home.

• She went into the bedroom where Ross and one of the deputies were searching. They had flipped the mattress (which had a bodily fluid and blood stains on it), and had been looking at a journal and a calendar. Francis said that she felt like the things they were looking at in the bedroom were helping them in their search for the child.

• Then they went into the kitchen, and Ross

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