Reversed and Rendered and Opinion filed June 12, 2012.




                                          In The


                      Fourteenth Court of Appeals

                                  NO. 14-11-00642-CR




                    MATTHEW ALFRED FRIEDSAM, Appellant


                                            V.


                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 212th District Court
                              Galveston County, Texas
                          Trial Court Cause No. 09CR3167

                                      OPINION

       Appellant Matthew Aldred Friedsam appeals his conviction for enticing a child.
Because the evidence is insufficient to support his conviction, we reverse the trial court’s
judgment and render judgment acquitting him of the charged offense.
                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was charged by indictment with the offense of “enticing a child” with
the intent to commit a felony, on or about May 24, 2009. TEX. PENAL CODE ANN.
§ 25.04(b) (West 2011). At the time of the charged offense, the 15-year-old child, K.B.,
was appellant’s neighbor and frequently babysat appellant’s daughter.           K.B. also
accompanied appellant and his daughter when they went four-wheeling or rode horses at
the home of one of appellant’s friends. In addition, appellant took K.B. and his daughter
for manicures and shopping for clothes. On five occasions, K.B. accompanied appellant
and his daughter on overnight trips. Sometimes appellant also took K.B. out to eat, and
once included K.B.’s boyfriend at her request. Once or twice every two or three weeks,
K.B. went to the movies with appellant, but on these occasions, appellant did not bring
anyone else. Although appellant never drank with K.B., he bought her alcohol and
cigarettes, and on one or two occasions, gave her marijuana.

       The State introduced testimony of an extraneous offense that occurred on May 9,
2009. K.B. testified that on one of their camping trips, she had five drinks before going
to bed wearing a bathing suit, shorts, and a T-shirt. She stated that appellant sat next to
her and penetrated her vagina with his fingers, and the next thing she remembered was
waking up the following morning. K.B. did not tell her parents because they had a poor
relationship and she did not think that they would believe her. Appellant was charged
with sexual assault of a child for this incident in trial court cause number 09CR3166.

       The incident made the basis of the indictment occurred May 24, 2009. Appellant
said that he was going sailing with a friend and asked permission from K.B.’s mother to
take K.B. with him. She gave him permission to do so. During the drive, appellant
offered to buy K.B. alcohol, but she declined. He made a phone call, then told K.B. that
the plans had changed, and he took her to a hotel in Galveston. K.B. was concerned to
see that room had a single king-sized bed, and she found a bag in the room containing a
box of cigarettes and a negligee. Appellant went to get something from his truck, and

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K.B. went to the hotel’s pool and used her cell phone to call her mother for a ride home.
When appellant joined K.B. at the pool and offered to buy her a drink, she accepted.
Appellant then took K.B. out to dinner, and while he was paying, K.B. called her mother
again to find out when she would be arriving. K.B. learned that her mother was waiting
for her at the hotel. Appellant and K.B. went back to the hotel room, and while appellant
was smoking a cigarette on the room’s balcony, K.B. took her luggage, went to her
mother’s car and left, taking the negligee with her. She testified that she did not simply
tell appellant that she wanted to go home because she was afraid he would get angry.

      K.B. testified that she never thought of living with appellant, and he never
suggested it.   He never spoke badly of K.B.’s parents, her home, or her living
arrangements, and he never encouraged K.B. to refuse to go to church, to school, or to
participate in activities with her family. K.B.’s mother always knew when she was
leaving and when she was due back, and K.B. always returned home when she was
expected to do so. Although K.B. sometimes thought about moving out of her parents’
home when she had been fighting with her mother, she testified that this had nothing to
do with appellant. She further testified that she drank alcohol and smoked cigarettes and
marijuana before she met appellant, but she followed her parents’ religion and the curfew
they set for her. She always had her cell phone with her when she was with appellant,
and she never was prevented from leaving an event she attended with him if she wanted
to go home.

      K.B.’s mother D.B. similarly testified that her daughter carried a cell phone and
she, D.B., was able to have access to her child and to exercise parental control. K.B.’s
mother knew that K.B. and appellant went on some outings without other people, but
D.B. permitted this because she trusted appellant. Occasionally D.B. would not allow her
daughter to go on an outing with appellant, and on those occasions, K.B. obeyed her
parents and did not go. D.B. confirmed that on the date of the charged offense, K.B. had
permission to be with appellant, and had been on overnight trips to Huntsville and to

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Galveston with him and his daughter several times before.1 She further confirmed that
K.B. continued to reside with her parents throughout these events; that K.B. had never
gone with appellant without her parent’s permission; and that appellant always brought
K.B. home as agreed..

                                                 II. ANALYSIS

         In the dispositive issue in this case, appellant challenges the sufficiency of the
evidence to support his conviction. In determining whether the evidence is sufficient to
support a conviction, we consider all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and the reasonable inferences it
supports, a rational fact finder could have found the essential elements of the crime
beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).
Applying this standard, we consider whether the evidence would allow a reasonable juror
to find, beyond a reasonable doubt, all of the essential elements of the crime of enticing a
child.

         A person commits such an offense “if, with the intent to interfere with the lawful
custody of a child younger than 18 years, he knowingly entices, persuades, or takes the
child from the custody of the parent or guardian or person standing in the stead of the
parent or guardian of such child.” Id. § 25.04(a).2 Appellant challenges the sufficiency
of the evidence supporting his conviction on the ground that there is no evidence of intent
to interfere with the lawful custody of K.B. Thus, our disposition requires us to decide
what it means “to interfere with the lawful custody of a child.”

         In interpreting this statute, the Court of Criminal Appeals noted that “‘[c]ustody’
of a child connotes the right to establish the child’s domicile and includes the elements of
immediate and direct care and control of the child, together with provisions for its needs.”

         1
             In fact, they had stayed at the same hotel before.
         2
          The offense is a misdemeanor, “unless it is shown on the trial of the offense that the actor
intended to commit a felony against the child.” If such a showing is made, then the offense is a felony.
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Cunyus v. State, 727 S.W.2d 561, 564 (Tex. Crim. App. 1987) (quoting Leithold v. Plass,
413 S.W.2d 698, 700 (Tex. 1967)). See also Little v. State, 246 S.W.3d 391, 401 & nn.
10–11 (Tex. App.—Amarillo 2008, no pet.) (explaining that the common usage of the
word “custody” includes “the rights and duties of parents to have physical possession of
their child, direct [the child’s] moral and religious training, establish [the child’s]
residence, and provide care, control, protection, and reasonably discipline their child”);
Davis v. Davis, 794 S.W.2d 930, 936 (Tex. App.—Dallas 1990, no pet.) (“Custody
embraces the sum of parental rights with respect to the rearing of a child, including its
care. It includes the right to the child’s services and earnings, the right to direct the
child’s activities and make decisions regarding its care and control, education, health, and
religion.”).

       The purpose of the statute is “to prevent a minor child from being decoyed and
enticed away from his parent, guardian, or person standing in the stead of such parent or
guardian.” McNelly v. State, 152 S.W.2d 771, 771 (Tex. Crim. App. 1941) (discussing
predecessor statute, which made it an offense to “knowingly entice or decoy any minor in
the State away from the custody of the parent or guardian or person standing in the stead
of the parent or guardian”). Under the statute, as under its predecessor, “‘the person
offended against is not the minor but the parent of the minor who thus loses the privilege
of the society, and the custody, care, control and services of such minor.’” Cunyus, 727
S.W.2d at 564 (quoting Escobar v. State, 133 S.W.2d 781, 782 (Tex. Crim. App. 1939)).

       “Custody” is used in the statute in the same way that it historically has been used
in the context of family law. This is seen not only in the interpretive caselaw, see id., but
in the structure of the Penal Code. “Enticement” is classified as an offense against the
family, and the statute codifying the offense is found in the Texas Penal Code after the
offenses of “interference with child custody” 3 and “agreement to abduct from custody,”4


       3
           Id. § 25.03.
       4
           Id. § 25.031.
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and before the offense of “criminal nonsupport”5—each of which expressly refers to
court orders concerning the child’s custody, such as those commonly entered in cases of
divorce.

       Here, there is no evidence that can be interpreted as demonstrating appellant’s
attempt to interfere with K.B.’s lawful custody, that is, to interfere with the K.B.’s
parents’ custodial rights, such as the right to establish her domicile, to decide what school
she will attend, and receive the benefit of her services. See Cunyus, 727 S.W.2d at 564.
Most tellingly, appellant sought and obtained permission from K.B.’s parents to take their
daughter on an overnight trip with him. Cf. The only witnesses to appear at trial were
K.B. and her mother, and both testified that appellant always brought K.B. home as her
parents expected.

       In every reported case affirming a conviction for enticing a child, there was
evidence, first, that the child stopped residing with his or her parents without their
consent, and second, that the defendant’s conduct persuaded the child to take such a step.
See, e.g., Escobar v. State, 133 S.W.2d 781, 782 (Tex. Crim. App. 1939) (affirming
conviction under predecessor statute where fifteen-year-old girl ran away with defendant
because she believed herself to be in love him, but “parents both testified that they did
not want her to leave home, and that they did not give their consent for appellant to take
her away”); Little v. State, 246 S.W.3d 391, 399–400 (Tex. App.—Amarillo 2008, no
pet.) (finding evidence legally sufficient to support conviction where appellants
encouraged child to follow a religion different from that of her family; criticized the
morals of the child’s mother; told child that “they were her God-given family”;
encouraged child to lie to and disobey her mother to continue contact with them after her
mother forbade it; offered to allow child to live with them; and supplied the manner,
means, and opportunity for child to run away).



       5
           Id. § 25.05.
                                             6
       On the other hand, without that evidence, the courts have reversed the conviction.
See, e.g., Cunyus, 727 S.W.2d at 562–63, 565 (where defendant played with boys at a
park, offered to buy them beer, told them to ask their parents for permission to go to a
movie with him, gave them “dirty books,” and boys accepted defendant’s offer to drive
them home, conviction reversed because his conduct, though “unacceptable adult
behavior” could not “validly be interpreted as an offer that would interfere with the
parents’ ‘right to establish the child’s domicile’” or intrude or their exercise of the right
to care for and control the child); Sanchez v. State, 712 S.W.2d 170, 171–72 (Tex.
App.—Austin 1986, no pet.) (per curiam) (reversing probation revocation because there
was no evidence of intent to interfere with parents’ lawful custody where evidence
showed only that child came to the appellant’s house, traveled with him to a motel where
the two had sex, and the appellant dropped the child off the next day near a relative’s
house at the child’s request).

       Here, however, it is undisputed that at all relevant times, K.B. continued residing
with her parents. Cf. Cockrell v. State, 160 S.W. 343, 345 (Tex. Crim. App. 1913) (“[I]t
must be shown the minor left the home of its parents at the instance, suggestion, and by
the persuasion of the person accused.”).         There is no evidence that appellant ever
attempted to persuade the child that she should live with him or that she should not
continue living with her parents. Indeed, both K.B. and her mother testified that the two
families had been on good terms; and far from trying to entice K.B. away from her
family’s custody, appellant allowed his own daughter to spend the night at their home.
Even if the jury could infer that appellant intended to have sex with K.B., such evidence
does not support the conclusion that K.B. had left her parents’ custody, much less that
appellant had enticed her to do so. See Sanchez, 712 S.W.2d at 172. We therefore
sustain appellant’s second issue.




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                                   III. CONCLUSION

      After reviewing the evidence in the light most favorable to the verdict, we
conclude that no rational juror could have found beyond a reasonable doubt that
(a) appellant knowingly enticed, persuaded, or took K.B. from her parents’ custody; and
(b) he did so with the intent to interfere with K.B.’s parent’s lawful custody of her. We
accordingly reverse appellant’s conviction and render judgment acquitting him of the
charged offense.




                                         /s/       Tracy Christopher
                                                   Justice



Panel consists of Justices Boyce, Christopher and Jamison.
Publish — Tex. R. App. P. 47.2(b).




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