Opinion
No. 05-04-01800-CR
Opinion issued July 25, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F03-57848-JM. Affirmed.
OPINION
Appellant was indicted for and, after a trial before the court without a jury, convicted of the state jail felony offense of interference with child custody in violation of the provisions of section 25.03 (a)(1) of the Texas Penal Code. The trial court assessed appellant's punishment at confinement in a state jail facility for two years; however, the judge suspended imposition of sentence and placed appellant on three years' community supervision. Appellant appeals her conviction, complaining only that the evidence is legally insufficient to support the verdict. We affirm the trial court's judgment.
Facts
Appellant and Mark Sims were divorced by decree on February 1, 2002. They are the parents of one child, Mason Sims, who at the time of this offense was four years old. Under the terms of the divorce decree, which was admitted into evidence at trial and appears in the record on appeal, Mark had visitation the first, third, and fifth weekends, Wednesdays, and alternating Thanksgiving and Christmas holidays. The divorce decree also provided, in relevant part:IT IS ORDERED that the primary residence of the child shall be in Dallas County, Texas and the contiguous counties thereto, and the parties shall not remove the child from Dallas County, Texas and the contiguous counties thereto for the purpose of changing the primary residence of the child [until modified by further order of the court of continuing jurisdiction or by written agreement signed by the parties and filed with the court.(Emphasis added.) On or about October 2, 2003, appellant asked Mark's permission to take Mason to Colorado where she was going to help her father relocate. Mark agreed, however, the evidence is in dispute about the terms of that agreement, which was not in writing. Mark testified he agreed only to Mason being absent from Texas for two weeks. Appellant testified the agreement was that Mason could be absent from Texas for one month. Appellant and Mason went to Colorado and stayed with appellant's father at his apartment. After two weeks, appellant told Mark she was going to stay another two weeks. On November 19 or 20, 2003, appellant told Mark she would be staying in Colorado because her father had been in a car wreck and she was taking care of him. On November 25, 2003, the Tuesday before Thanksgiving, Mark called appellant in Colorado to tell her he was coming to Colorado to pick up Mason for his Thanksgiving visitation. Appellant hung up on him. Mark went to Colorado to appellant's father's apartment. In Colorado, he sought assistance from the local police to gain possession of his son. When the police knocked on the apartment door, no one responded. The police left and told Mark to watch the apartment and if he saw someone there, to call them. Later that afternoon, Mark called the apartment and Mason answered. Mark quickly hung up and called the police. The police, however, did not respond for several hours. When they arrived and talked to appellant's father, he told them appellant was not present. He also later told Mark the same thing. Mark returned to Dallas. Mark later spoke to appellant who told him she knew that he and the police were looking for her but she chose to ignore them. On December 4, 2003, Mark borrowed money from his father and hired an attorney, who filed a motion for enforcement of visitation and a petition to modify. Criminal charges were also pursued. Appellant was arrested in Colorado on December 5, 2003. On December 26, 2003, Mark saw Mason for the first time since October 2, 2003. Appellant testified at trial that the agreement was for her to be gone a month. Appellant stored her furniture at her grandmother's house before leaving for Colorado and took only clothes with her on the trip. Appellant further testified she did not intend to move to Colorado; she planned for Mason to go to school in the Dallas area the next school year. Appellant was angry because Mark had not been making child support payments. She testified she was delayed for some three weeks from returning to Texas because of the pending charges against her. Appellant also testified she did not return the detective's telephone call because she did not know he had called. She admitted she faxed a letter to the guardian ad litem on November 13, 2003, reflecting a Colorado address, and stating that when her fiancé's grandfather died in California, she would be hired onto the company and would be remarrying. She stated that she sent the letter because she was angry with the ad litem for not getting her child support. Appellant further admitted that as early as November 10, 2003, she knew she was in violation of the oral agreement to take Mason to Colorado. The following testimony was developed during redirect by her counsel.
[Defense Counsel]: At-on November 13th, you were just past your 30 days; is that correct?[Appellant]: Yes, sir.
[Defense Counsel]: Did you know that there was a possibility that you would be in violation of your agreement with Mark at that time?[Appellant]: Yes, I knew it was right at 30 days.
[Defense Counsel]: Did that cross your mind that you were in violation of the agreement on the 10th?[Appellant]: Yes.
[Defense Counsel]: Did that have anything to do to prompt you to try to put pressure on the guardian ad litem to get you some money?[Appellant]: Yes.
Standard of Review
Evidence is legally insufficient if, when viewed in a light most favorable to the verdict, a rational fact finder could not have found each element of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the fact finder to reconcile conflicts in the evidence. See Wesbrook, 29 S.W.3d at 111. The evidence will be found legally insufficient only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319.Analysis
Appellant contends the State did not prove a violation of any of the express terms of the divorce decree, thus the evidence was legally insufficient to support the verdict and a judgment of acquittal should be entered. Appellant recognizes the State must prove she violated at least one of the custodial elements of the court order. She contends, however, that the indictment did not allege with specificity which custodial order was violated. Appellant further contends the State did not present any evidence that she was attempting to change Mason's primary residence either permanently or for an extended period of time. She also argues that Mark's possessory rights were contingent upon him residing within 100 miles of the primary residence of the child and the State presented no evidence of the location of the primary residence or the distance from there to Mark's residence; thus there was no evidence Mark had any right of possession nor that such a right was violated. Appellant also complains the State failed to prove that at the time she went to Colorado that Mark lived in Dallas County or a contiguous county. If Mark did not live in either Dallas or a contiguous county, appellant was free to change the child's primary residence. Finally, appellant says the evidence is insufficient to prove Mark's custodial right to have Mason at Thanksgiving because, under the terms of the divorce decree he was to pick up Mason at appellant's residence in Dallas County and there was no evidence he attempted to do so. The indictment alleges, in relevant part, that appellant[o]n or about the 2nd day of October A.D., 2003 in the County of Dallas and said State, did unlawfully then and there intentionally and knowingly take and retain Mason Sims, a child younger than 18 years, knowing that the taking and retention violated the express terms of a judgment and order of the 303rd Judicial District Court of Dallas, County, Texas, signed February 1, 2002, disposing of the child's custody.Section 25.03 of the Texas Penal Code provides, in relevant part, that a person commits an offense if the person takes or retains a child younger than eighteen years when the person knows that the person's taking or retention violates the express terms of a judgment or order of a court disposing of the child's custody. See Tex. Pen. Code Ann. § 25.03(a)(1) (Vernon 2003). An offense under this section is a state jail felony. See id. § 25.03(d). The divorce decree ordered that Mark and appellant were "appointed parent Joint Managing Conservators of [Mason]." At the time appellant took Mason to Colorado and stayed in Colorado with him beyond the one month to which she said Mark orally agreed, Mark was about $3000 in arrears on child support. Although appellant testified that she did not intend to stay in Colorado, she also testified that as early as November 10, 2003, she knew she was in violation of her agreement with Mark to take Mason to Colorado. The trial judge as fact finder, had the responsibility to resolve the conflicts in the evidence and was free to choose to believe or disbelieve all or part of any witness's testimony. In that capacity, it is clear the trial judge discredited appellant's testimony: The judge stated,
[b]eing a divorced mother of two young children myself, I understand how frustrating it is and can be at times. However, that does not in any way negate your responsibility to follow court's orders. The fact that you openly admit that you lied to the guardian ad litem definitely makes me doubt your credibility here on this stand also, Ms. Sims. The Court finds that you lie when it's convenient for yourself. I find you guilty as charged in the indictment.Given the trial court's comments, the trial court could reasonably have inferred that appellant was changing Mason's primary residence, notwithstanding her denial that was her intent. The evidence is legally sufficient to show appellant violated the final decree of divorce, even as modified by the oral thirty-day agreement to which appellant testified. Of course, the decree required any modification to be in writing and filed with the court. Therefore, removing Mason from Texas without a written agreement filed with the court violated the divorce decree. Viewed in the light most favorable to the verdict, we conclude appellant's testimony alone is sufficient to prove beyond a reasonable doubt she committed the offense of interference with child custody. Therefore, the evidence is legally sufficient to support the verdict. We resolve appellant's issue against her. We affirm the trial court's judgment.