Opinion
No. 05-03-00222-CR
Opinion Filed July 1, 2004. DO NOT PUBLISH Tex.R.App.P. 47.
On Appeal from the 199th District Court, Collin County, Texas Trial Court Cause No. 199-81477-02. Affirm.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
OPINION
Dana Elisha Putnam appeals her conviction for interference with child custody. After finding appellant guilty, the trial court sentenced appellant to 180 days in state jail, probated for five years. Appellant brings two points of error contending she did not receive effective assistance of counsel and the verdict was "contrary to the overwhelming weight of the evidence." We affirm the trial court's judgment.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her first point of error, appellant contends her trial counsel was ineffective. To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish: (1) trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions; and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (1986). We indulge a strong presumption that defense counsel's conduct falls within the wide range of reasonable, professional assistance. See Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Jackson, 877 S.W.2d at 771. In Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002), the court stated trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. In this case, appellant asserts her trial counsel was ineffective and her plea of not guilty was involuntary because he failed to spend sufficient time with her and to provide sufficient information to convince her to accept the State's proffered plea bargain of "deferred adjudication probation" for three years. She argues that if she had accepted the plea bargain and lived out the probation term, she would not have a felony conviction, which, appellant asserts, will cause her to lose her job as a teacher with Plano Independent School District. The record contains no evidence of any proffered plea bargain, the amount of time counsel spent with appellant, or the information counsel provided appellant concerning any plea bargain. Appellant filed a motion for new trial, but the motion did not assert ineffective assistance of counsel. The record does not contain any evidence of the reasoning behind trial counsel's actions. Accordingly, we cannot conclude counsel's performance was deficient. We overrule appellant's first point of error.FACTUAL SUFFICIENCY
In her second point of error, appellant contends the trial court's verdict is "contrary to the overwhelming weight of the evidence" supporting appellant's defenses of mistake of fact and law and her necessity defense.Factual Background
Appellant and Floyd Iglehart are the parents of a nine-year-old child, M. Under a November 30, 2000 court order, appellant is the sole managing conservator of the child, and Iglehart is a possessory conservator. The order provided that Iglehart has the right to possession of the child on the first, third, and fifth weekends of each month from 6:00 p.m. on Friday through 6:00 p.m. on Sunday. Although Iglehart lived near Houston, the custody order stated he was to exercise his possession at his mother's house in Dallas. Appellant stipulated the November 30, 2000 order of the court had not been modified or superseded and was in effect on January 18, 2002. At about 3:00 p.m. on January 18, 2002, the third Friday in January 2002, Iglehart went to appellant's apartment where he found the child and appellant's other two children, ages seven and five, in the apartment without adult supervision. The children let Iglehart into the apartment, and Iglehart called the police. Plano police officer Kristi Bradford testified she went to appellant's apartment and met Iglehart, who told her he had arrived to pick up his daughter early "to go hang out at his mother's house" but he found the children (M., her stepbrother, and her stepsister) home alone and was concerned. Appellant telephoned her apartment and told Bradford she had been in an accident, was not hurt, and would soon be there. Bradford testified that when appellant arrived, Bradford told her Iglehart was there to pick up his daughter. Appellant became angry and demanded Bradford make Iglehart leave the apartment complex. Bradford declined; appellant then refused to let Iglehart have the child because Iglehart's possession did not begin until 6:00 p.m. Bradford told appellant that Iglehart would return at 6:00 p.m., but appellant said she would not give Iglehart possession of the child. Bradford told appellant that if she refused to follow the court order, then Bradford would file charges against her for interference with child custody. When appellant said a proceeding to terminate Iglehart's parental rights was pending, Bradford told her she was still required to follow the order that was in effect. Bradford advised Iglehart to return at 6:00 p.m. to pick up the child. At 6:00 p.m., Iglehart returned to appellant's apartment, but appellant would not give him possession. Iglehart called Bradford, who went to appellant's apartment, but appellant refused to open the door. Bradford instructed the dispatcher to telephone appellant and tell her that if she did not give Iglehart possession of M., charges would be filed against her for interference with child custody. Appellant never opened the door. Bradford did not believe appellant ever told her that appellant was "under the impression that Mr. Iglehart was there early so that he could get back to Houston in time." Appellant "may have" told Bradford she was afraid Iglehart was going to take the child to Houston, but Bradford denied hearing appellant say she was not letting the child go with Iglehart because she was fearful for the child's physical safety or was afraid Iglehart would abscond with her or abuse her. Iglehart testified in detail about his arrival in the afternoon and again at 6:00 p.m. on January 18, 2002 to exercise visitation privileges with his daughter and appellant's refusal to permit him access to the child. He had been allowed visitation by appellant five times since entry of the custody order, and he had taken the child to his mother's house in Dallas during each overnight stay. He denied saying he intended to take the child to Houston during this visitation. Iglehart testified that he was attempting to modify the previous order so he could take the child to Houston where he resided, but Judge Caton deferred resolution of the entire matter to a later date pending receipt of evidence, and the judge left the prior order in effect. Detective Jeff Rich spoke to appellant on several occasions in January and February as the investigating officer in this case. Appellant told him she did not have to follow the custody orders, that is, to give Iglehart possession of the child, because Judge Caton had advised her in court that she did not have to do so. Rich spoke to Judge Caton and concluded the November 30, 2000 custody order had not been suspended. Appellant testified to a long history of Iglehart's failure to comply with the court's orders. She testified that Iglehart had taken the child to Houston over Christmas in violation of the current order. Appellant testified that under previous orders, she had filed motions for contempt against Iglehart. When she did so, Iglehart either would not appear for visitation or he would disappear with the child, sometimes for months, until appellant withdrew the petitions for contempt. Appellant testified that when she arrived at the apartment complex on January 18, Bradford told her, "he's come early to pick up [the child] because they've got a long drive back to Houston." Although Iglehart was at her apartment twice, she never talked directly to him, and on the second occasion, close to 6:00 pm, when Iglehart and a police officer returned to her apartment to assist Iglehart's exercise of his visitation rights, appellant refused to open the door. Appellant told Bradford earlier that Iglehart did not have authority to take the child to Houston, and if that was his intent, then she would not release the child to him. Appellant further testified that because she had filed a petition for termination of Iglehart's parental rights, she was afraid Iglehart would take the child and not return. This fear was based on "past" events, prior to Iglehart's exercise of his visitation rights under the November 30, 2000 custody order. Iglehart had exercised visitation rights at least five times under the custody order and on each occasion had returned the child as ordered, although he returned the child "late." Appellant admitted she did not give Iglehart custody of M. on January 18, 2002, as required by the court's order. Appellant argues the overwhelming weight of the evidence supports her affirmative defense of mistake of law and her defenses of mistake of fact and necessity.Inadequate Briefing
Other than citing Clewis v. State, 922 S.W.2d 126, 134-35 (Tex.Crim.App. 1996), for the standard of review, appellant has not cited any relevant statute or legal authority or provided any analysis or argument in support of these contentions. It is appellant's responsibility to provide argument and applicable case law to assist this court in evaluating her contentions. These contentions are inadequately briefed and present nothing for review. Tex.R.App.P. 38.1(h); McDuff v. State, 939 S.W.2d 607, 621 (Tex.Crim.App. 1997); Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex.Crim.App. 2000); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App. 2000); Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000). Nevertheless, we address each of appellant's claims.Standard of Review
When a defendant challenges the factual sufficiency of the rejection of a defense, we view all of the evidence in a neutral light, and we will not reverse unless (1) the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the evidence in support of the defense is so strong that the beyond-a-reasonable-doubt standard for finding against appellant on the defense could not have been met. See Tex. Pen. Code Ann. § 2.03(d) (Vernon 2003); Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004); Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). In performing this analysis, the reviewing court must give due deference to the trier of fact's determination of the credibility of the evidence. See Swearingen v. State, 101 S.W.3d at 89, 97 (Tex.Crim.App. 2003).Analysis
We first determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt. To find appellant guilty, the trial court had to find beyond a reasonable doubt that appellant retained possession of M. and knew that her retention violated the express terms of an order of a court disposing of the child's custody. See Tex. Pen. Code Ann. § 25.03(a)(1) (Vernon 2003). In this case, appellant testified she knew the November 30, 2000 order was in effect on January 18, 2002, that it required her to give Iglehart possession of M., and that she retained possession of the child in violation of the express terms of the order. Iglehart's, Bradford's, and Rich's testimony also established the elements of the offense. We conclude the evidence of appellant's guilt, taken alone is not too weak to support the finding of guilt beyond a reasonable doubt. We next consider whether review of all the evidence in support of appellant's defenses is so strong that the beyond-a-reasonable-doubt standard for finding against appellant on the defense could not have been met. Before an appellant is entitled to a review of the factual sufficiency of the evidence of a defense, there must be some evidence raising the defense. See Stefanoff v. State, 78 S.W.3d 496, 499-501 (Tex. App.-Austin 2002, pet. ref'd). The mistake-of-law affirmative defense is set forth in section 8.03 of the Texas Penal Code. The only portion of this section relevant in this case, provides:It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon: (1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question. . . .Tex. Pen. Code Ann. § 8.03(b)(1) (Vernon 2003). Section 1.07(a)(30) defines "Law" as meaning "the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute." Id. § 1.07(a)(30). A custody order of a court does not constitute a "law" within the meaning of this statutory definition. Thus, what purportedly occurred during a court proceeding does not constitute "law" for purposes of the mistake-of-law affirmative defense under section 8.03(b) of the penal code. However, even if the trial court's statements could constitute "law" under section 8.03(b), the court proceeding on which she relies occurred on January 31, 2002, thirteen days after the offense. Appellant may not justify her conduct by relying on an event occurring subsequent to her conduct. We conclude no evidence raises the affirmative defense of mistake of law. Under the mistake of fact defense, "the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense." Id. § 8.02. Appellant admitted she knew the child custody order of November 30, 2000 was in effect on the date of the offense. Thus, appellant's own testimony affirmed the kind of culpability required for the commission of this offense. Appellant does not direct us to the specific "mistaken belief" upon which she relies. If the mistaken belief was that Iglehart intended to take the child to Houston, this belief did not negate the kind of culpability required for the commission of this offense. If the mistaken belief related to her understanding of what a judge purportedly said at a legal proceeding held after the commission of her conduct, appellant's evidence showed the court granted a motion for continuance and stated the court would need to hear evidence before taking any further action in the custody proceeding. Appellant stipulated the November 30, 2000 custody order was in effect and appellant knew it had not been modified in any way on January 18, 2002. Obviously, any judicial action regarding visitation taken after the date of the offense cannot raise a mistake of fact defense. We conclude the evidence in the record does not raise the mistake of fact defense. Appellant's necessity defense is based on her testimony that Iglehart had previously disappeared with M. for months at a time prior to the entry of the November 30, 2000 custody order, that Bradford informed appellant that Iglehart planned to take the child to Houston, and that with the petition to terminate Iglehart's parental rights pending, she was afraid Iglehart would take the child and she would never see the child again. Bradford testified Iglehart said he intended to take the child to his mother's house in Dallas. Iglehart testified he had not taken the child for months at a time and that he told Bradford on January 18 that he was taking the child to his mother's house. Under the necessity defense, Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.Id. § 9.22. Assuming, without deciding, that the evidence raised the defense of necessity, we apply the factual sufficiency standard of review to the defense. After reviewing all the evidence in a neutral light and giving deference to the trial court's determination of the credibility of the evidence, we conclude the evidence in support of the necessity defense is not so strong that the beyond-a-reasonable-doubt standard for finding against appellant on the necessity defense could not have been met. See Zuniga, 2004 WL 840786, at *7; Saxton, 804 S.W.2d at 914. We overrule appellant's second point of error. We affirm the trial court's judgment.