Rodriguez v. State

47 S.W.3d 86, 2001 Tex. App. LEXIS 2583, 2001 WL 395399
Court of Appeals of Texas·Decided April 19, 2001·No. 14-99-00479-CR, 14-99-00517-CR·Published·Cited by 37 cases

Opinions

MAJORITY OPINION

YATES, Justice.

Appellants were charged by information with the offense of failing to report child abuse. See Tex. Fam.Code Ann. § 261.101(a) (Vernon Supp.1999). Failure to report such abuse is a Class B misdemeanor. See Tex Fam.Code Ann. § 261.109 (Vernon 1996).

Prior to trial, appellants filed a motion to quash their informations, contending the statute was facially unconstitutional because the term “immediately” was unconstitutionally vague. Appellant, Sandra Rodriguez, also filed a plea for immunity contending she was entitled to immunity under Texas Family Code section 261.106. The trial court denied the motions and, pursuant to a plea bargain agreement with the State, appellants pled nolo contendere and were sentenced to two days in jail and fined $750 each. Appellants gave timely notice of appeal. Appellants now challenge the trial court’s denial of the motion to quash the information and plea for immunity. We affirm.

On November 6, 1997, Officer Davis of the Houston Police Department knocked on the door of the apartment where Herman Aguilar, Sandra Rodriguez, Margarita Aguilar, and the complainant lived. Officer Davis was at the apartment to inquire about a report he had received from Hector Agomay that the complainant, a five year old boy, was being physically abused by his mother, Margarita Aguilar. Sandra Rodriguez responded to Davis’s knock on the door. Davis attempted to question Rodriguez, but discovered she did not speak English. Because Davis did not speak Spanish, he asked a passing neighbor, Paulette Sousa, to act as an interpreter. He asked Rodriguez if a five year old boy lived in the house. Rodriguez told Davis that no five year old boy lived in the house. Officer Davis then left the apartment.

After Officer Davis left, Rodriguez told Sousa that the boy was in the apartment. Rodriguez took Sousa to the back room of the apartment where Sousa saw the complainant, who was naked and covered with bruises. The complainant was in a closet at the time Sousa discovered him. At that time, Sousa called Officer Davis back to the apartment. Officer Davis attempted to determine where the complainant’s mother, Margarita, was. Rodriguez told him she was at “the clinic,” but could not tell the officer where the clinic was located. Officer Davis then took the complainant to Texas Childrens Hospital.

Rodriguez later told Sousa that she had witnessed Margarita beating the complainant while he was naked. This beating had taken place weeks or months before November 6, 1997. Rodriguez also told Sousa that Margarita had removed the complainant from school because she was afraid the teachers would discover the abuse.

Rodriguez denied that she had seen Margarita beat the complainant She stated she had cut the complainant’s hair after seeing Margarita pull his hair so hard she pulled some of it out. Rodriguez also testified that Margarita took the complainant out of school because she did not want to get in trouble. In a written statement, Rodriguez stated, “I didn’t report to the police because I didn’t even — I didn’t even know the telephone number from the office.”

Officer Gonzalez of the Houston Police Department conducted a follow-up investi[88] gation of the abuse. Gonzalez testified that both Herman Aguilar and Rodriguez told him they did not report the abuse to anyone. Rodriguez told him that she had heard Margarita hitting the complainant and had heard the child screaming behind the bedroom door. Gonzalez found and arrested Margarita two weeks after the complainant had been taken to the hospital. It was not until after her arrest that Herman Aguilar gave a statement to the police concerning the allegations.

Herman Aguilar testified that he and Rodriguez came to the United States and began living with Margarita and the complainant in September, 1997. He testified that Rodriguez told him that the complainant had been removed from school so the abuse would not be discovered.

Appellant, Sandra Rodriguez, filed two pretrial motions alleging the statute was unconstitutionally vague and requesting immunity under the statute because she had assisted in the investigation. Herman Aguilar filed a motion alleging the statute was unconstitutional. The trial court denied the motions, stating, “[T]his abuse had been going on for apparently quite sometime in very close quarters and I find it difficult to find good faith when I see this set of circumstances. So, with respects, I’m going to have to deny both your motions.”

In their first point of error, appellants claim the trial court erred in denying their motion to quash because the statute under which they were prosecuted is unconstitutionally vague. Texas Family Code section 261.109(a) provides: “A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.” In the instant case, appellants were required to report in the manner provided for under section 261.101(a), which states: “A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.”

In their motion to quash, appellants claim section 261.101(a) is unconstitutional because the term immediately has not been “determined, measured, defined or reduced to a reasonable certainty capable of common and ordinary understanding rendering it vague and uncertain as to the time in which the report required thereby must be made.”

Before we can address the merits of appellants’ claim that section 261.101(a) is unconstitutional, appellants must first show the statute is unconstitutional as applied to them. See Vuong v. State, 830 S.W.2d 929, 941 (Tex.Crim.App. 1992). When a vagueness challenge involves First Amendment concerns, the statute may be held facially invalid even though it may not be unconstitutional as applied to the appellant’s conduct. Long v. State, 931 S.W.2d 285, 288 (Tex.Crim. App.1996). Where no First Amendment rights are involved, however, the court need only examine the statute to determine whether it is impermissibly vague as applied to the appellant’s specific conduct. Bynum v. State, 767 S.W.2d 769, 774 (Tex.Crim.App.1989). Accordingly, it is the appellants’ burden to establish that the statute is unconstitutional as applied to them; that it might be unconstitutional to others is not sufficient. Id.

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Rodriguez v. State, 47 S.W.3d 86, 2001 Tex. App. LEXIS 2583, 2001 WL 395399 (Tex. Ct. App. 2001).

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