White v. State
| Decision Date | 06 June 2001 |
| Docket Number | No. 10-99-104-CR,10-99-104-CR |
| Citation | 50 S.W.3d 31 |
| Parties | (Tex.App.-Waco 2001) LAURA I. WHITE, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Before Chief Justice Davis, Justice Vance and Justice Gray
A jury convicted Laura I. White of five counts of failure to report child abuse and assessed her punishment at 180 days' confinement on each count. She claims in five points that the court erred by denying: (1) her motion for directed verdict in which she alleged that the evidence was factually insufficient to support her convictions; (2) her requested jury charge on the statute of limitations as to the first count of the information; (3) her motion to dismiss in which she contends that the statute on which her prosecution is based is unconstitutionally vague; (4) her motion to quash in which she avers that the information does not provide adequate notice of the manner and means by which she committed the offenses; and (5) her objection to the admission in evidence of a photograph depicting a wooden paddle seized from her home without a warrant.
A Tarrant County grand jury presented an indictment against Laura on August 20, 1998.1 The indictment alleges that on or about August 31, 1997, she:
did then and there, having cause to believe that, the physical and mental health and welfare of a child, [C.W], had been affected by abuse and neglect, and would further be adversely affected, knowingly fail to report in accordance with section 34.02 of the Family Code of Texas in that the Defendant did not notify any law enforcement agency nor the Texas Department of Human Resources.
The State filed an information on March 10, 1999 which contains similar allegations. Count one of the information alleges that on or about November 15, 1996, Laura:
did then and there, having cause to believe that the physical or mental health or welfare of a child, [C.W], had been or may be directly affected by abuse or neglect, knowingly failed [sic] to report in accordance with section 261.103 of the Family Code of Texas in that the Defendant did not notify any local or state law enforcement agency nor the Texas Department of Protective and Regulatory Services.
The information contains four additional counts which allege that she committed similar offenses on or about August 31, 1997, September 19, 1997, October 15, 1997, and February 13, 1998.
Laura filed a motion to quash the information alleging that it is defective because it fails to specify "those acts that she failed to report" and thus does not "allege the specific acts which constitute and give rise to the duty of this defendant to act." She also filed a motion to dismiss contending that section 261.109 of the Family Code is unconstitutionally vague as applied to her.2 The court denied both motions.
The alleged victim C.W. is the daughter of Laura's former husband Eric from another relationship.3 Laura and Eric married in June 1994. At the time, they both worked as officers for the Fort Worth Police Department. They did not learn of C.W.'s existence until two years later. As Laura and Eric began visiting C.W. in her maternal grandmother's home, they noticed bruising and other signs of abuse and neglect. Laura testified that she reported these observations to the Child Protective Services Division of the Department of Protective and Regulatory Services ("CPS") on the advice of her attorney. According to Laura, CPS declined to investigate because a custody suit was already pending and C.W. would soon be in the Whites' home. C.W. came to live with Laura and Eric in October 1996. The family court awarded them managing conservatorship one month later.4
At trial, the State presented the testimony of witnesses who observed severe bruising on C.W. on several occasions after she went to live with the Whites. These witnesses all testified that they discussed their observations with Laura, who never reported them to CPS. A babysitter did report her observations to CPS, which investigated but failed to substantiate the allegations. Laura and Eric separated in May 1997. Several of the State's witnesses testified that C.W. remained primarily in Laura's care after the separation. Laura testified, however, that C.W. remained in Eric's care after the separation. The sitter who had previously called CPS noticed severe bruising on C.W. again on February 14, 1998 when she kept C.W. while Laura and Eric went to dinner.5 She called the police. The responding officers observed bruising on C.W.'s thigh, buttocks, and in both ears. They then went to Laura's house to discuss their findings.
According to a CPS caseworker, the Whites denied any knowledge of these bruises. However, Laura did volunteer that she had caused a bruise on the front of C.W.'s thigh several days earlier when she had spanked C.W. with a wooden paddle for lying about a bathroom accident. She also told the caseworker privately that Eric might have caused the other bruises.
Laura presented several witnesses to counter the State's evidence. She denied that she had seen any of the injuries testified to by the State's witnesses or that anyone had called them to her attention. Her witnesses testified that C.W. lived with Eric after Laura and he separated. They stated that Laura was not with C.W. on the dates alleged in counts two through four of the information. Another babysitter testified that Eric had full custody of C.W. after the separation and that she regularly babysat C.W. between September and December of 1997. She never saw Laura with C.W. during this time period. Laura likewise testified that she had little contact with C.W. after the separation.
The State presented the rebuttal testimony of one witness who stated that she had seen Laura with C.W. at the home of the sitter who reported the suspected abuse at least once per week and on three or four weekends between August and October of 1997.
Laura contends in her fifth point that the court erred by denying her motion to quash the information because it does not provide adequate notice of the manner and means by which she committed the offenses alleged. Each count alleges in pertinent part that, on the occasion in question Laura "did then and there, having cause to believe that the physical or mental health or welfare of a child, [C.W.], had been or may be directly affected by abuse or neglect, knowingly failed [sic] to report."
According to Laura, this allegation does not suffice because it does not provide "specific notice as to what type of abuse occurred to the child, how the abuse was alleged to [sic] occurred to the child, or when the actual abuse occurred to the child, if any, and in who's [sic] presence." In her case, the State did not have to prove the latter three (i.e., how, when, or in whose presence the abuse occurred). However, the State did have to show facts within Laura's knowledge which gave her cause to believe that C.W. had been "affected by abuse."6 See Tex. Fam. Code Ann. § 261.109(a) (Vernon 1996).
Section 261.001 defines the term "abuse" to include the following:
(A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning;
(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning;
(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;
(D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;
(E) sexual conduct harmful to a child's mental, emotional, or physical welfare;
(F) failure to make a reasonable effort to prevent sexual conduct harmful to a child;
(G) compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code;
(H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Section 43.21, Penal Code, or pornographic;
(I) the current use by a person of a controlled substance as defined by Chapter 481, Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child; or
(J) causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Chapter 481, Health and Safety Code.
Tex. Fam. Code Ann. § 261.001(1) (Vernon Supp. 2001).7 Therefore, the State had to
establish that Laura knew of facts which gave her cause to believe that C.W. had been directly affected by one of the ten types of abuse listed above.
"[W]hen a statute defines the manner or means of commission in several alternative ways, an indictment will fail for lack of specificity if it neglects to identify which of the statutory means it addresses." State v. Mays, 967 S.W.2d 404, 407 (Tex. Crim. App. 1998). Therefore, "[i]n the face of a motion to quash . . ., an information must provide more specific allegations if the 'statute identifies more than one method by which it can be violated.'" Tullous v. State, 23 S.W.3d 195, 196-97 (Tex. App.--Waco 2000,...
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