Frost v. State

2 S.W.3d 625, 1999 Tex. App. LEXIS 6548, 1999 WL 672516

• Court: Court of Appeals of Texas
• Decided: August 31, 1999
• Docket: 14-97-00967-CR
• Status: Published

Opinions

MAJORITY OPINION

J. HARVEY HUDSON, Justice.

Dr. Scott Frost, appellant, was charged by information with the misdemeanor offense of making a false report. See Tex. Pen.Code Ann. § 42.06 (Vernon 1994). Appellant entered a plea of not guilty. After considering the evidence, a jury convicted appellant, and the court subsequently assessed his punishment at 90 days confinement in the Harris County Jail and a $350.00 fine. The court suspended the sentence, however, and placed appellant under the terms and conditions of community supervision for one year. On appeal, Dr. Frost contends his conviction should be reversed because (1) the jury’s verdict is not supported by sufficient evidence and (2) he was charged under the wrong statute. We affirm.

The record reflects that in April of 1995, Allen and Valerie Cecil lived in a small suburban subdivision in northwest Harris County. Mrs. Cecil had two small children, a two-and-one-half-year old boy and a six-month old daughter. Because of their young age, the children were not permitted to play in the front yard, but Mrs. Cecil would occasionally allow her son to accompany her to the front mail box. One annoying aspect of these short walks was the presence of dog excrement on the front lawn.

Appellant lived a short distance from the Cecils and owned two dogs. Mrs. Cecil had observed appellant and his wife walking their dogs and had seen the dogs urinating and defecating on her front lawn. Although irritated by this activity, Mrs. Cecil said nothing. However, the April edition of the neighborhood newsletter contained a large article which focused on the problem of dog and pet excrement in the neighborhood.

Shortly after midnight, on April 18, 1995, Mrs. Cecil, tending to her infant daughter, observed appellant and his wife coming down the street with their two dogs. One dog was in a neighbor’s lawn across the street. The other dog was urinating on the Cecil’s mailbox. Tired and angry, Mrs. Cecil proceeded downstairs to have a word with appellant and his wife. By the time she got out to the street, appellant was some distance away, but his wife was still nearby. Mrs. Cecil pointedly chastised her for permitting the dogs to soil neighborhood lawns. Mrs. Cecil explained she was particularly distressed because her son might conceivably step or fall in the feces. Mrs. Cecil was further annoyed by the fact this conduct continued even after it was the subject of an article in the neighborhood newsletter. She bluntly advised Ms. Frost that the practice was unacceptable, and that if she saw them doing it again, she would report them to the neighborhood association.

Ms. Frost was apparently shaken by the encounter. At approximately 8:30 a.m., she called Marcia Evans, another neighborhood resident, to complain about the early morning incident. She was very upset and asked how she might file a complaint against Mrs. Cecil with the neighborhood association. Ms. Evans explained to Ms. Frost that there was no official neighborhood association, but that she could possibly contact the subdivision developer or sales representative.

Approximately ninety minutes later, Dr. Frost called Child Protective Services and reported that he had seen two children living at the Cecil’s address, a three-year old girl and an eighteen-month old boy, who regularly played in the street while unsupervised. He also reported that the last time he had witnessed these children playing in the street was three days earlier on April 15, 1995. Appellant stated that because he was a neighbor, he did not want the children’s mother to know who had made the report.

Because of the dangerous nature of the reported activity, the call was classified as a “priority one” complaint, and an investigator was dispatched to check on the situation. At approximately 12:30 p.m., the case worker arrived at Mrs. Cecil’s front door and advised her that she had been accused of endangering her children by permitting them to play in the street. Mrs. Cecil, horrified, asked the case worker if she was sure she had the correct address. The case worker confirmed the address, and Mrs. Cecil invited her inside. The case worker proceeded to explain the nature of the complaint and examined both of Mrs. Cecil’s children as well as her home. Mrs. Cecil explained that her son was too small to get outside by himself and that her daughter could not yet crawl. The case worker then asked Mrs. Cecil about April 15, 1995, a day when the caller specifically said he had seen her children in the street.

Mrs. Cecil explained that on April 15, 1995, the residents of the subdivision had conducted an Easter egg hunt and “pot luck” dinner on her street which was a cul-de-sac. To ensure the safety of their children, barricades and signs were erected, closing the entrance to all motor vehicle traffic other than residents. Beginning at approximately 4:00 p.m., children and adults filled the street hunting for eggs and later gathering for dinner. On several occasions the barricades were moved to permit a vehicle to pass down the street when necessary.¹ In each instance, lawn chairs and tables were moved and the children herded onto adjacent lawns to permit a safe passage. However, the street was closed to normal vehicular traffic and the children were accompanied by at least fifty adults. The Cecils attended the festivities and volunteered their lawn as one of sites for the Easter egg hunt. Her son participated in the hunt, and was supervised by his father, grandmother, and two adult stepsisters.

When Child Protective Services asked for references, Mr. and Mrs. Cecil consented to have case workers contact any of their neighbors. Moreover, the Cecils provided the case worker with the names and telephone numbers of other persons who lived on their street. After interviewing some of the neighbors and conducting a thorough investigation, the agency concluded there was no basis for the report.

In his first point of error, appellant contends the evidence was legally and factually insufficient to support the jury’s verdict. Specifically, Frost contends there is no evidence he initiated a false report that two children were playing in the street unsupervised. Frost further contends that even if the report was false, he filed the report with good intentions.

When assessing the legal sufficiency of the evidence to support a conviction, “the relevant question is whether, after viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Moreover, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence. See Penton v. State, 799 S.W.2d 364, 366 (Tex.App.-Houston [14 th Dist.] 1990, no pet.). Rather, it is to position itself as a final, due process safeguard ensuring only the rationality of the factfinder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). Once the trier of fact has assessed and weighed the probative value of the evidence, an appellate court must not dissect the evidence into its individual components for the purpose of reevaluating the integrity, credibility, or persuasiveness of distinct items of evidence. See Fernandez v. State, 805 S.W.2d 451, 456 (Tex.Crim.App.1991). This, the trier of fact has already done. See Moreno, 755 S.W.2d at 867. An appellate court has only the discretion to determine if any rational trier of fact could have logically found the essential elements of the offense beyond a reasonable doubt. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991).

The charging instrument states that appellant did, on April 18, 1995, “knowingly initiate a report of a past emergency, namely two children playing in the street unsupervised ... that he [knew was] false.” Appellant now concedes that Mrs. Cecil’s children were not playing in the street.² As the dissent points out, it could be argued that Dr. Frost perhaps saw two other children playing in the street unsupervised. This possibility is bolstered by appellant’s description of the children, ie., he reported seeing a three-year old girl and an eighteen-month old boy in the street while the Cecils had a two-and-one-half-year old boy and a six-month old girl. Thus, the dissent concludes the State’s evidence is insufficient to support a conviction for false report as alleged in the information.

Several facts persuasively refute this contention. First, appellant reported to Child Protective Services that virtually every time he arrived home before dark, he saw the two children playing in the street. From this, he surmised the children played in the street “every day.” Thus, this was not an isolated incident, but an activity with which appellant claimed to be familiar. Second, appellant reported that while the children were usually unsupervised, he had seen the mother with the children on several occasions. In other words, these were not just any children, they belonged to Mrs. Cecil. Third, although he did not know the family’s name, appellant specifically identified the Cecil’s address as the children’s home. Fourth, appellant had a motive for making a false report because Mrs. Cecil had verbally accosted his wife earlier that day. In fact, appellant’s wife had searched for some means to file a complaint with the neighborhood association. Fifth, appellant specifically requested that Children’s Protective Services not reveal his identity to the mother. While a legitimate, good faith, repartee might prefer that his identity not be disclosed, anonymity is even more important where the reportee is knowingly making a false report. Moreover, appellant requested his identity be shielded not from the parents or family, but from, the mother, who seems again to have been the focus of his attention.

Finally, and perhaps most significantly, appellant’s defensive theory on appeal is not consistent with the one he raised at trial. Once it became clear during trial that Mrs. Cecil’s oldest child was a boy, appellant began to refer to the child he had seen in the street as a boy. Although confused about the child’s gender at first, appellant testified that he almost struck the oldest child with his automobile approximately six weeks before calling Child Protective Services. Appellant said he was forced to make a panic stop to avoid hitting the child:

A ... I tried to figure out where this child came from or who he ■ was — I had never — I could not say I had seen it before, the little one was retrieved from the sidewalk to the front door and that’s when she — he went in.

Q. Was that the Cecil home?

A. I now know it to be the Cecil home but I did not know who she was for another year after that.

(Emphasis added).

Thus, the defense presented to the jury was not a misidentification of the Cecil children. Rather, the defensive theory was that, due to his work as an orthopedic surgeon, appellant had become hypersensitive to dangers faced by small children. Accordingly, he was more likely than most to see the Easter egg hunt as imperiling the safety of the children. In fact, he described the neighborhood party as a “poltergeist chaos nightmare of children running everywhere.” Dr. Frost testified no barricades were in place, lots of children were in the street, and no adults were visibly present.³ Appellant also testified that among the children he saw that day was the “little boy” that he had almost hit six weeks earlier, standing in front of the Cecil house.

Ironically, it was the State who suggested on cross-examination that appellant could not logically deduce with absolute certainty that the boy he almost hit lived in the Cecil home. Appellant admitted this was so, but then went on to describe the child with greater particularity and said he had straight dark hair. Moreover, the Cecil boy was apparently the only child in the neighborhood who fit this description. Appellant said:

A. It’s the only one with straight dark hair in the neighborhood. All the rest of them are redheads, blondes

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Q. The only child with dark hair in the neighborhood?

A. That I’ve seen.

Thus, appellant identified the child as belonging to the Cecil household by (1) his disappearance into the house, (2) his standing in the street in front of the house during the Easter egg hunt, and (3) his distinctive straight dark hair. Accordingly, it was never seriously disputed that the child appellant claims to have seen in the street was Mrs. Cecil’s son.

The dissent concludes the aforementioned circumstances -will only support inferences, but no ultimate conclusion. However, it is the obligation of the factfin-der to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781; Van Guilder v. State, 709 S.W.2d 178, 179 (Tex.Crim.App.1985); Revell v. State, 885 S.W.2d 206, 208 (Tex.App.-Dallas 1994, pet. ref'd). In fact, participation in a criminal offense may be inferred entirely from the circumstances. See Miranda v. State, 813 S.W.2d 724, 732 (Tex.App.-San Antonio 1991, pet. ref'd).

Of particular importance in this case is the evidence suggesting appellant possessed a motive to humiliate Mrs. Cecil. Appellant denied any such motive, of course. In fact, he testified he did not know his wife had argued with Mrs. Cecil. Appellant claims his wife told him a lady had complained about their dogs, but she did not identify the woman. Appellant added that many people in the neighborhood had complained about his dogs and that “it wasn’t that big of a deal to me.” The jury evidently concluded appellant was lying.

Nevertheless, the dissent concludes that evidence of motive is not sufficient to establish a false report, citing Wood v. State, 577 S.W.2d 477 (Tex.Crim.App.1978). In Wood, the court analyzed the circumstantial evidence of motive and held that it failed to exclude “every other reasonable hypothesis” than guilt. Id. at 480. That case was decided, however, at a time when circumstantial evidence was considered to be decidedly inferior to direct evidence. Circumstantial evidence, like motive, was analyzed under the “reasonable hypothesis analytical construct.” See Geesa v. State, 820 S.W.2d 154, 155 (Tex.Crim.App.1991). If the circumstances would support any reasonable hypothesis other than guilt, the evidence was considered insufficient as a matter of law. Thus, rather than asking if a rational jury could reasonably find the defendant guilty, the test in cases of circumstantial evidence was whether a rational jury could have reasonably found the defendant not guilty. If so, the evidence was insufficient.

Five years after Wood was decided, the Court of Criminal Appeals announced that “direct and circumstantial evidence are equally probative.” Hankins v. State, 646 S.W.2d 191, 199 (Tex.Crim.App.1981). Further, in 1991, the court abandoned the “reasonable hypothesis analytical construct,” concluding it is inconsistent with the “reasonable doubt” standard set forth in Jackson v. Virginia. See Geesa, 820 S.W.2d at 155. Accordingly, the supporting rationale in Wood has been overruled and the decision has no precedential value.

It is not the duty of this court to disregard, realign, or weigh the evidence. See Bonilla v. State, 933 S.W.2d 538, 540 (Tex.App.-Houston [1 st Dist.] 1995, no pet.). Because the jury was in the best position to consider all the evidence first hand, and to view the demeanor and expression of the witnesses, the verdict must stand unless it is irrational or unsupported by more than a mere modicum of evidence. See Morales v. State, 828 S.W.2d 261, 263 (Tex.App.-Amarillo 1992), aff'd, 853 S.W.2d 583 (Tex.Crim.App.1993). “Reading a cold record without the benefit of observing the physical and emotional responses, if any, of live witnesses is one of the major factors, if not the major factor, as to why the standard for a reviewing court bases an examination of the evidence ‘in the light most favorable to the verdict.’ ” Wiley v. State, 820 S.W.2d 401, 404 (Tex.App.-Beaumont 1991, no pet.).

Proof of the defendant’s mental state must, by necessity, almost always depend upon circumstantial evidence. Sadler v. State, 728 S.W.2d 829, 831 (Tex.App.-Dallas 1987, no pet.). Here, the sequence of events suggest appellant’s call to Child Protective Services was motivated solely by a desire to embarrass Mrs. Cecil.⁴ Thus, a rational jury could reasonably conclude from the evidence presented here that appellant did not see two children playing in the street unsupervised and that his statement to the contrary was a complete and utter fabrication. Appellant’s first point of error is overruled.

In point of error two, appellant contends for the first time on appeal that the doctrine of in pari materia required he be charged under the Family Code section that deals specifically with filing a false report concerning child abuse or neglect, not the more general Penal Code provision.⁵ Frost claims that because he was charged under a statute with a greater penalty, we must reverse with instructions to dismiss. Frost, however, did not attack the indictment at the trial level. As a result, Frost has not preserved this point of error for appellate review. See Milligan v. State, 859 S.W.2d 117, 119 (Tex.App.-Eastland 1993, pet. ref'd); Tex.Code CRiM. PRoc. Ann. Art. 1.14 (Vernon Supp. 1999); TexR.App. P. 33.1(a).

Accordingly, appellant’s second point of error is overruled, and the judgment of the trial court is affirmed.

1 . One of the persons who sought, and was permitted, to drive past the barricade that day was the appellant.

2 . Appellant’s brief states: “It is undisputed that the children, if any, that Dr. Frost saw were not those belonging to Ms. Cecil.”

3 . Appellant’s description was contradicted by several neighbors who attended the party as well as photographs of the festivities. When confronted with their testimony, appellant said the neighbors had lied.

4 . "And though it hath pleased God to reserve the art of reading men’s thoughts to himself: yet, as the fruit tells the name of the tree; so do the outward works of men (so far as their cogitations are acted) give us whereof to guess at the rest." Sir Walter Raleigh, Preface to the History of the World, in The Harvard Classics 68 (Charles W. Eliot ed., 1969).

5 . At the time of this offense, Section 34.031 of the Family Code made it a Class B misdemeanor offense for a person to intentionally or knowingly make a report of abuse or neglect of a child which the person knew lacked any factual foundation. See Act of June 1, 1987, 70th Leg., R.S., ch. 1052, § 6.07, 1987 Tex. Gen. Laws 3574, repealed by Act of April 6,1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 282.