Ross v. State
| Decision Date | 30 November 2016 |
| Docket Number | No. 06–15–00179–CR,06–15–00179–CR |
| Parties | Rebekah Thonginh ROSS, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Jessica Edwards, Attorney at Law, Greenville, TX, for appellant.
Steven Lilley, Assistant Hunt County District Attorney, Noble D. Walker Jr., Hunt County District Attorney, Greenville, TX, for appellee.
Before Morriss, C.J., Moseley and Burgess, JJ.
As a result of an unlawful search of a home, Rebekah Thonginh Ross, an investigator for the Texas Department of Family and Protective Services (the Department or CPS), was indicted for official oppression.1 After a bench trial, Ross was found guilty, sentenced to one year in the Hunt County Jail, and fined $2,000.00. The sentence was suspended, and Ross was placed on two years' community supervision, conditioned on her serving thirty days in jail. On appeal, Ross contends (1) that the trial court erred because there was insufficient evidence to support her conviction, (2) that she was denied her constitutional right to a fair trial, and (3) that she was denied her constitutional right to effective assistance of counsel. We affirm the trial court's judgment.
On December 15, 2011, the Department filed a petition for orders in aid of investigation of a report of child abuse or neglect2 and for a temporary restraining order under cause number 77600 in the 354th Judicial District Court of Hunt County. Respondents in the cause were the parents of the child, Leslie Avery Hunt Vargas (Hunt) and Nicholas V. Vargas (Vargas). The petition was supported by the affidavit of Ross. In her affidavit, Ross averred that the Department had received a referral on December 12, 2011, stating that a child had been born at home and had not had medical attention, that the mother was using drugs during her pregnancy, that the mother had had another child removed due to drug use, and that it was believed that the new child had been exposed to drugs.
The affidavit also stated that Ross had been assigned to the case on December 13, 2011, and detailed her investigation, which revealed that Hunt had two prior CPS cases, including one in which a child had been removed for drug use, and that she had been arrested for driving while intoxicated (DWI) two days before giving birth. In her affidavit, Ross stated that she had made contact with a couple present at the house located at 2321 Highway 69 South, Greenville, Texas, who stated that Hunt and Vargas had left moments before she arrived and that the child was believed to be with them. The couple confirmed that the child was born at home. The couple also said that Hunt and Vargas had a room in the house and that they assumed that the baby stayed in the room with them.
The affidavit further stated that, while talking with the couple, Ross smelled an odor of ammonia emanating from the house, which she averred is often found where methamphetamine is being manufactured. It also stated that several "collaterals"3 had stated that they suspected the family to use and manufacture drugs and had warned her not to go to the residence alone. Finally, the affidavit also detailed Hunt's CPS and criminal histories.
The 354th District Court issued its order in aid of investigation of child abuse or neglect and temporary restraining order on December 15, 2011. The order provided, in relevant part:
At trial, Jessica Francis, who was also an investigator for the Department, testified that at 6:00 a.m. on December 16, 2011, she met Ross at the Highway 69 house to search for a newborn infant. Ross had been assigned to the investigation, and Francis was assisting her. Francis was aware that an order in aid of investigation had been entered, and she reviewed it when they arrived. In addition to Francis and Ross, two deputies from the Hunt County Sheriff's Office were present. The deputies broke down the door and went inside the residence to determine who, if anyone, was present. When they came back and told Francis and Ross no one was there, Ross went into the residence with the deputies.
Francis initially stayed outside, talking with another officer. After a while, Francis entered the residence to see why they were still there. Francis walked throughout the house and took photographs showing that the house had been evacuated and that the people had moved, apparently in a rush. She also spoke with Ross, who was in a bedroom. Ross and an officer were searching the bedroom—they had flipped up a mattress and were looking through a journal. Ross had Francis take a photograph of a scale and showed her a calendar where the mother had written that the baby was born at home.
According to Francis, the mattress had a big stain of bodily fluid or blood on its underside, and they assumed that is where the baby was born. Francis did not recall where the journal had been found, but she testified that Ross and the deputies had gone through drawers. Ross showed her some of the entries in the journal, but did not recall how extensively she looked at it. Francis felt all of the things that were being reviewed in the bedroom were to help them determine where the child could be and if it had been there. Based on what they found in the bedroom, Francis concluded that the baby had been there at some point and that Hunt had recently occupied the house.
Francis also testified that at some point they went into the kitchen, where Ross instructed the deputy to get a crock pot or a pot down from either a shelf or the refrigerator to look in it. Francis felt that this was beyond what was contemplated in the order in aid of investigation since they were no longer looking for the baby. She told Ross that there was not going to be a baby in the pot and that they needed to go find the baby, to which Ross responded, "Okay, Kenny." Francis explained that Kenny Stillwagoner was a special investigator4 with the Department and that Ross was implying that Francis was lazy. Francis also testified that the kitchen cabinets and drawers were also opened by either Ross or the deputies. It appeared to her that the deputies were working at Ross' direction throughout the house. One of the pots found in the kitchen had some residue dried up in it, and Ross commented that it might have been used for making drugs.
Based on the evidence in the bedroom, Francis concluded that the baby was not there, and Ross agreed with that conclusion. Francis felt like they were wasting time searching the rest of the house. A short time later, they went outside and talked with the deputies. They then contacted Stillwagoner to go with them to another residence to look for the child. Since she did not believe Ross was following the Department's policies, Francis reported the search of the kitchen to Ross' supervisor, Natalie Reynolds, as soon as they left the first residence, and later she reported the search to her own supervisor, Rochell Bryant.
Francis testified that they eventually located Hunt and the baby at the third residence they visited. The baby was very small, but there was nothing troubling about it at first glance. However, when they changed its diapers, they found that the umbilical cord had been tied with a shoestring. Francis began making telephone calls to get the baby seen by a medical professional, but Ross was making telephone calls to get a hair-follicle drug test approved for the baby. Ross told her that she wanted to make sure the baby was taken for the drug screening before being seen by a doctor.
On cross-examination, Francis testified that Ross was hired one month before her in 2008. She said that the residence where the incident took place was off of a county road. She agreed that the situation involving the newborn was an extraordinary case and that there was a sense of urgency to find the baby. She confirmed that she did not know who opened the drawers in the kitchen, just that she remembered Ross directing the deputies where to look. She testified that she did not have a problem with them initially looking around, just when they started looking into everything. She also acknowledged that the photographs of the mattress and box springs showed a lot of blood and bodily fluids. She denied that she and Ross had discussed that the baby may have died and stated that they had only discussed that the baby had been born there.
Francis said it never crossed her mind that the baby may have died there. She also testified that Ross discussed that drugs were being made in the house and looking into other areas to find evidence that drugs were being made in the house. Francis believed that Ross was concerned with gathering information about drug use. She also acknowledged that there was methamphetamine in the baby's system.
Sandra Balderas, the training academy manager for Region 3 of the Department, also testified. According to Balderas all new investigators go through seven weeks' training in the Department's CORE classes, then specialized training comprised of three weeks of...
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...the guilt of a defendant, and guilt can be established by circumstantial evidence alone." Ross v. State; 507 S.W.3d 881, 904 (Tex. App.—Texarkana 2016, pet. granted) (Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015)); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d ......