                                 NO. 07-06-0422-CR
                                 NO. 07-06-0423-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                FEBRUARY 14, 2008

                        ______________________________


               LINDA LITTLE AND WALTER LITTLE, APPELLANTS

                                           V.

                        THE STATE OF TEXAS, APPELLEE

                      _________________________________

       FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

   NOS. 114832 & 114834; HONORABLE W.F. “CORKY” ROBERTS, JUDGE

                       _______________________________



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                       OPINION


     Following a consolidated bench trial, Appellants, Linda Little and Walter Little, were

convicted of enticing a child, a Class B misdemeanor, and sentenced to 90 days
confinement, suspended in favor of one year community supervision.1 Appellants contend

the trial court erred in its determinations that: (1) the evidence in support of their

convictions was legally sufficient; (2) the evidence in support of their convictions was

factually sufficient; and (3) the testimony of their character witness, Nicole Gonzales, was

properly excluded at trial. We affirm.


                                         Background


       In the Fall of 2005, Abigail Medina was sixteen years old and living with her mother,

Matilde Medina. Abigail began dating Steven Little, whose parents are the Appellants

herein.2 Although Matilde initially approved of their dating relationship, she began to have

doubts when Appellants invited Abigail to their house to watch prophetic videos and

receive religious instruction; informed her the dating relationship would be no contact–no

hand-holding or kissing; requested that Matilde give them a set schedule of when Abigail

would be in their home; and offered to pay one-half of the expense of an internet

subscription for the Medinas. When Walter offered to pay one-half of their internet

subscription, Matilde informed him that her computer was not working. Afterwards, she

arrived at home to find him repairing her computer and learned that, at least for a portion




       1
        We combine these two appeals in a single opinion. The facts underlying both
convictions arise from the same criminal episode. Both parties are represented by the
same attorney on appeal and their briefs and issues stated therein are the same.
       2
           Walter was Steven’s natural father and Linda was Steven’s stepmother.

                                             2
of the time he was there, he had been alone with her two daughters. Matilde refused to

give Appellants a fixed schedule and turned down Walter’s internet offer.


       While Steven and Abigail were dating, Matilde allowed Abigail to attend Steven’s

Seventh Day Adventist Church on Saturdays and her regular church, a small Spanish

Assembly of God Church, on Sundays. Abigail enjoyed going to Appellants’ house

because they did a lot of fun things such as watching movies and playing games. There

were problems at her home,3 and she preferred spending time with Appellants.


       After associating with Appellants, however, Abigail’s attitude and behavior toward

her family changed. She would not eat with her family on Sabbath Days, Friday and

Saturday nights, complaining the food was bought from a store or restaurant. She also quit

speaking with her mother’s live-in fiancé, Carlos Olivas, because she now believed he was

a sinner and could not be trusted. She also would not speak to her mother or allow her to

hug her or let her close. Abigail stated that Appellants’ religion was now her religion, and

Walter was her “daddy.” When confronted about not following her mother’s wishes, Abigail

told Matilde that she was no longer under her authority.


       On December 12, Matilde gave Abigail permission to have dinner at Appellants’

house.     Matilde became worried when Abigail was hours late returning and called

Appellants. Linda told Matilde that her husband had left an hour earlier to bring Abigail


       3
        Matilde was grieving the loss of her father and devoting a substantial amount of
time to raising Abigail’s younger sister who required more attention than Abigail.

                                             3
home. In fact, he and Abigail were sitting alone in his parked car down the block from the

Medina’s house for more than forty-five minutes. Her daughter indicated Walter had been

giving her advice about Steven.


       On December 16, Matilde allowed Abigail to visit Appellants and see Steven off at

the airport. After Steven left, Appellants asked Matilde if Abigail could spend the night.

Matilde declined the invitation. On December 20, Matilde permitted Abigail to have dinner

with Appellants at their home. When she called home from work at 8:00 p.m., her younger

daughter told her Abigail was not at home and that Abigail had spoken with Walter on the

phone two days earlier for five hours. Matilde immediately called Walter and told him

enough was enough. Matilde told him to bring her daughter home and never to speak with

her again. When Matilde returned home two hours later, Abigail had not returned. When

Matilde called Appellants on their home and cell phones, there was no response. Matilde

sent Carlos to Appellants’ house to pick up Abigail. When he arrived, Walter told Carlos

that his wife had left with Abigail to take her home. At that point, Matilde informed Abigail

that she could not see Steven or Appellants anymore. Unbeknownst to Matilde during this

period, Appellants were talking to Abigail about moving in with them.


       Following this confrontation, Abigail began receiving letters and gifts from Appellants

at her home. Matilde also received a three page, single-spaced typewritten letter from

Walter generally denigrating Matilde and stating “[t]he only reason you don’t have a major

rebellion on your hands already with Abby is because of my teaching her on submission


                                              4
to Godly authority.” Walter’s letter made no mention of Appellants’ desire that Abigail

come live with them.


       Abigail also began sneaking out of her house to attend church with Appellants.

When Matilde confronted Abigail, Abigail indicated Matilde was no longer her authority;

Walter was her father, and she wanted to live with Appellants. Matilde again asked Abigail

to sever her relationship with Appellants and Steven.


       During this same period, Abigail began telling Matilde that their house was filled with

sin. Walter had instructed Abigail to be spiritually prepared for all the demons living in their

house because Matilde and Carlos were living out of wedlock. Abigail told Matilde she

didn’t belong in her home any longer because she had to fight demons every day and she

belonged with her daddy, Walter. Abigail cried daily and spent a lot of time in her closet

during the daytime. At times, Matilde found Abigail in her closet with her Bible where she

twice slept overnight. Abigail also believed certain objects including her teddy bears were

possessed by demons. The only place Abigail could find comfort was in her closet with her

Bible. She told Matilde that her home was Walter’s home, and she wanted to live there.


       Before Christmas, Walter prepared a form for Matilde’s signature giving Abigail

permission to live with Appellants. The document was drafted by Walter and delivered by

Steven to Abigail at school. Appellants told Abigail to show the document to her mother




                                               5
and see if she would sign it.4 After Christmas, Walter purchased a cassette tape recorder

for Abigail. He would tape messages on a cassette tape and have the tape delivered to

Abigail through Steven at school. Abigail would listen to the message, tape her response

on the same cassette, and swap the tape back and forth.


       On December 31 and January 16, Matilde discovered her daughter speaking with

Walter on their phone. After each incident, Matilde called the police and the police then

spoke with Walter. On January 20, Sergeant Brush of the Amarillo Police Department

came to her home and received permission to have Abigail tested to see whether she had

been sexually assaulted. The test was negative.


       On January 21, Abigail attended the ROTC Ball at her high school. Matilde later

learned that Appellants sat with Abigail during the dinner. Matilde reported the incident to

the police and enlisted the assistance of a ROTC official, a math teacher, Abigail’s high

school principal, the school’s liaison officer, and school counselors to protect her child from

Appellants.


       A letter dated January 30 from Linda to Abigail stated:


       You have become a part of this family. . . . I have long prayed for a daughter
       that would hunger and thirst for God. In you, those prayers have been
       answered. . . . I also wait for the day you come home to us. . . . We look
       forward to sharing simple things in life with you . . . cooking, playing games


       4
       Appellants never discussed the document, or Abigail coming to live with them, with
Matilde. Abigail never showed her mother the document.

                                              6
       (Boogle anyone?), watching movies, going to a park on a picnic, walking in
       the park, playing some basketball, and most importantly sharing truth that
       God wants you to know and have in your treasury. . . . Soon Abby you will
       be with us. I see it in my minds eye.


       Abigail began begging her mother to allow her to leave and live with Appellants.

She told Matilde that God wanted her to live with Appellants; Appellants were her family;

Matilde was not her authority–not her mother; and God would make it happen. She further

indicated that Walter was her real father and her family was not her God-given family,

Appellants were.


       Matilde hired sitters to stay with her daughter while she was at work to keep her

daughter away from the telephone and assure Appellants did not contact her. On February

2, a sitter observed Appellants approaching Abigail at a choir concert and giving her hugs.

When Matilde confronted her daughter, Abigail told her that God had told Walter she

belonged to him. Abigail also told her mother that Walter had said: “He is my father and

in two weeks you’re going to take me to—and give me away to him. God has spoken. It

will happen, so I’m not worried about it anymore.”


       On February 18, nearly two weeks later, Abigail decided to run away from home.

She called Walter, told him her plans, and asked if he would pick her up the next morning

at 2:00 a.m. Walter agreed and told her to call him when she was ready. The following

morning at 2:00 a.m., Appellants were waiting for Abigail in their car across the street from

the Medina house. Abigail left a note for her mother to find. Over the next nineteen hour


                                             7
period that Abigail was with Appellants, they went to breakfast, lunch, a movie, and to a

church.5 They did not go to Appellants’ home because they were afraid they would be

discovered there. During the course of the day, Abigail changed her mind about running

away, and told Appellants she wanted to return home. In the evening, Abigail testified they

went to a church to “talk without anybody bothering us or any worries about anybody

finding us.” They talked about her living with them and going back home. At 9:00 p.m. the

police were called and they returned Abigail to her mother at 11:00 p.m., after which Abigail

met with her pastor.


       The next morning Abigail told her mother she had been with Appellants and

apologized for leaving. Abigail told her it was preplanned and she had been instructed to

write the runaway note. Soon thereafter, Matilde discovered an undated card from Walter

to Abigail which stated:


       Missing you Abby. Distance never separates hearts that really care. Though
       we may not spend as much time together as we’d like . . . You’re always in
       my thoughts because you’re always in my heart. I love and miss you very
       much, mi jita! Love always, Dad. (See back).




       5
        When Matilde initially discovered Abigail was not at home, she thought Abigail had
gone to her church with Matilde’s sister. However, when she discovered Abigail was not
returning from church, she called the police and reported Abigail missing. Although she
called Appellants’ home and cell phones, she never received an answer. Matilde
accompanied the police to Appellants’ house but no one was at home. The police brought
Abigail home around 11:00 p.m. that night. At no time during the nineteen hour period did
Appellants attempt to contact Matilde. Steven was not with them.

                                             8
       To my adorable daughter, Just a quick note to go along w/this token of my
       love for you. I will be praying for you today for strength to carry on and
       encouragement as God’s hand moves to bring you home. I’ll also be fasting
       all day Wed for you–remember I’m on vacation this week. Some quick high-
       lights: (1) Remember your mother saying we could not “afford you” . . . So
       as you can see, God is taking care of that as well. You will be WELL taken
       care of. . . . (3) We now have Caller I.D. and call forward on the line so if you
       call our toll free # and we’re not at home, it’ll forward to my cell phone. I
       need a big hug from my loving daughter! I love you so very much, Abby!
       You are truely my precious daughter. Love you always, Dad. P.S. How was
       your talk w/Steven? I’ll tell you what God told me to do when we talk again.
       Steven has free will like the rest of us, so it’s still his decision to follow God
       or not.


       Matilde then hired an attorney to keep Appellants away from her daughter. In a

letter to Appellants dated March 7, her attorney directed them to cease all contact with

Abigail, or legal action would be taken.


       On March 10, during Spring Break, Matilde searched her daughter’s room and found

personal letters, cards, and notes to her daughter from Appellants. After Matilde’s mother

had prohibited Abigail from communicating with Appellants in December 2005, Walter

developed a number of ways of communicating with Abigail. Steven would give Abigail

letters and candy from Appellants at school. She and Walter would communicate by giving

messages to her friend, Marshall, also at school. Walter also arranged for them to speak

through voice-mail. Abigail would dial a toll-free number, give her password and either

receive messages or leave messages for Walter and so forth.




                                               9
       Walter also had an agreement with Abigail that she would meet and talk with him

each morning when he dropped Steven off at school.6 In fact, after Appellants were

arrested, Walter continued to meet with Abigail in this fashion even though it was a

violation of his appearance bond.


       After Appellants were arrested, Walter drafted a document dated April 13, 2006,

entitled “My Statement” and instructed Abigail to sign and notarize the document. He also

instructed Abigail to re-type the document so that it would appear that Abigail had written

it. When Abigail completed her re-drafting, the document was ninety percent Walter’s

language and ten percent her own. Walter also told Abigail that the document was

intended to be used in court to obtain custody of Abigail. Abigail last spoke with Appellants

near the end of April or early May 2006. Walter told Abigail that he had thrown away all

the letters she had sent him and their tapes.


       Abigail testified that she continued to see Appellants after her mother forbade her

to do so because she wanted to see them. She testified Appellants called her “daughter,”

and she called them “mom” and “dad.” She indicated Appellants were very supportive of

her and expressed a lot of love for her. She testified Appellants encouraged her to leave

her home and live with them. Walter also testified that Appellants encouraged Abigail to

live with them and that Abigail wanted to live with them.




       6
           Steven was not present during these conversations.

                                             10
       Abigail testified as follows:


       At one point I did not want to keep—I did not want to keep disobeying my
       mother and lying and doing all the secretive things that I was doing—but they
       encouraged me and I just kept going. I said, okay. I’ll do just one more lie.
       I’ll disobey my mom one other time. That–I did not tell them that though.


On April 5, 2006, Appellants were charged with enticing, persuading, or taking Abigail from

the custody of her mother without her mother’s consent.


                          State’s Failure to File Appellate Brief


       Appellants’ briefs were filed April 18, 2007.7 The State’s brief was due on or before

May 18, 2007. Tex. R. App. P. 38.6(b). The State did not file a brief nor request additional

time in which to do so. Rule 38.8(b) of the Texas Rules of Appellate Procedure expressly

guides this Court as to what to do if an appellant fails to file a brief; however, there is no

corresponding rule to guide us when the State fails to file a brief in response to an

appellant’s brief. Several intermediate appellate courts, including this Court, have held that

whenever the State fails to file a brief, an appellate court should conduct an independent

analysis of the merits of the appellant’s claim of error, limited to the arguments raised at

trial by the State, to determine if there was error. See Siverand v. State, 89 S.W.3d 216,

220 (Tex.App.–Corpus Christi 2002, no pet.); Haley v. State, No. 13-02-0033-CR, 2006 WL

3374971 (Tex.App.–Corpus Christi Nov. 22, 2006, pet. ref’d) (not designated for


       7
       Appellants’ briefs were due on April 17, 2007; however, Appellants’ Motions to
Extend Time were granted, and the briefs were timely filed.

                                             11
publication); Mosley v. State, Nos. 07-02-0178-CR, 07-02-0179-CR, 2003 WL 21919261

(Tex.App.–Amarillo Aug. 12, 2003, pet. ref’d) (not designated for publication); cf. In re

Bowman, No. 03-07-0418-CR, 2007 WL 4269842 (Tex.App.–Austin Dec. 5, 2007, no pet.)

(not designated for publication); Burns v. Rochon, 190 S.W.3d 263 (Tex.App.–Houston [1st

Dist.] 2006, no pet.). The decision to independently review the merits of Appellants’ issues

should not be construed as approval of the State’s dereliction of its responsibility to file a

brief. The State’s failure to file a brief, in this or any other action, makes the job of this

Court considerably more time consuming and difficult.


                                        Discussion


       Appellants raise the following three issues: (1) the evidence was legally insufficient

because Abigail testified that Appellants did not persuade her to leave her home, i.e., she

left voluntarily; (2) the evidence is factually insufficient to show that caring for a runaway

child for nineteen hours is not a sufficient amount of time to constitute an interference with

the child’s custody; and (3) the testimony of their character witness, Nicole Gonzales, was

improperly excluded by the trial court as irrelevant.


       I.     First Issue – Legal Sufficiency of the Evidence


       When conducting a review of the legal sufficiency of the evidence to support a

criminal conviction, we view the evidence in the light most favorable to the verdict and

determine whether any rational trier of fact could have found the essential elements of the


                                             12
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct.

2781, 2789, 61 L.Ed.2d 560, 573 (1979); McKinney v. State, 207 S.W .3d 366, 374

(Tex.Crim.App. 2006); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). For

purposes of appellate review of the legal sufficiency of the evidence to support a

conviction, this Court must give deference to the responsibility of the fact finder to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.

2007). We do not resolve any conflict of fact, weigh any evidence, or evaluate the

credibility of any witnesses, as this is the function of the trier of fact. See Dewberry v.

State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Instead, we determine whether both the

explicit and implicit findings of the trier of fact are rational by viewing all the evidence

admitted at trial in the light most favorable to the adjudication. Adelman v. State, 828

S.W.2d 418, 422 (Tex.Crim.App. 1992).


       A person commits the offense of enticing a child if, with the intent to interfere with

the lawful custody of a child younger than eighteen years, he knowingly entices,

persuades, or takes the child from the custody of a parent or guardian. Tex. Penal Code

Ann. § 25.04(a) (Vernon 2003).8 Enticement of a child is a crime against the parents

rather than the child because the parent loses the privilege of society and custody, care,

control, and services of the child. 19 Tex. Jur. 3d Criminal Law § 526 (2000). To “entice”


       8
        Appellants do not dispute Matilde is Abigail’s mother entitled to legal custody of her
child or, at the time of the offense, Abigail was under eighteen years of age.

                                             13
means to “draw on; to instigate by inciting hope or desire; to allure, especially in a bad

sense; to lead astray; to tempt; to incite.” Escobar v. State, 138 Tex.Crim. 71, 133 S.W.2d

781, 783-84 (1939).


       That Abigail may have left home voluntarily is no defense to the offense of enticing

a child. See Sanchez v. State, 712 S.W.2d 170, 171 (Tex.App.–Austin 1986, no pet.)

(“Under this statute, the consent of the minor is irrelevant and it is of no legal effect that her

actions in leaving are in fact voluntary.”); Truelove v. State, 96 Tex.Crim. 537, 258 S.W.

826, 827 (1924). Refusing to recognize a defendant’s asserted defense that the minor left

home voluntarily, the Texas Court of Criminal Appeals stated:


       [w]e are not impressed with the soundness of such doctrine. In this instance
       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. It is the parent’s duty, and should be his pleasure,
       to train and care for the child, and attempt to bring it up in such a manner
       that it may become a useful member of society. This is a valuable right, and
       by proper thinking parents treasured most highly. That such a right can be
       wished away at will by a wayward child is not based upon sound reason,
       and, in our judgment, the voluntary leaving home with another,–who might
       have held out enticing and alluring ideas and promises to such child,–should
       not be a proper defense to a charge such as this.


Escobar, 133 S.W.2d at 782-83.


       Appellants rely upon Cockrell v. State, 71 Tex.Crim. 543, 160 S.W. 343 (1913) for

the proposition that it is the child’s state of mind that determines if the child was enticed to

run away. Cockrell is of no assistance to Appellants. The facts of Cockrell are markedly


                                               14
different from this case. In Cockrell, the accused was a nineteen year old girl and the child

allegedly enticed was her eighteen year old cousin.         The child had been severely

disciplined by her father, and the accused told her that she would leave home before she

would stand such treatment. Subsequently, the child left her house and traveled, in part

with the accused, to Oklahoma to escape from her enraged father, who had been

searching for her with a gun. The court determined that no one enticed the child to leave

her home. Rather, she was forced to abandon her home because of extreme measures

taken by her father. That the accused expressed her sentiments and accompanied the

child on her flight from her father did not amount to enticement. Id. at 345. The Cockrell

court stated, “it must be shown the minor left the home of its parents at the instance,

suggestion, and by the persuasion of the person accused.” Id.


       Here, the record is replete with evidence that, prior to Abigail leaving her mother’s

home, Appellants not only suggested, but encouraged, persuaded, and enticed Abigail to

leave the Medina home in a variety of ways. Appellants criticized her mother’s lifestyle

from a moral and religious perspective while encouraging Abigail to leave her family and

come live with them. They estranged Abigail from her home and family by teaching her

that her mother and live-in fiancé were living in sin and that demons possessed her house.

They played upon Abigail’s religious convictions by telling her Walter was her God-given

father; they were her God-given family; and God preordained that she should come live

with them. Walter encouraged Abigail to disobey and lie to her mother in order to conduct

clandestine communications contrary to her mother’s wishes. He bought her a tape

                                             15
recorder to swap messages; sent her letters and candy through his son; established a

telephone voice mail account for them to swap messages; and pre-arranged secret

meetings each school day when he dropped his son off at school. Even after his arrest,

he continued this behavior. Appellants also gave Abigail gifts and assured her she would

be well taken care of if she came to live with them. And, when Abigail agreed to run away

from her mother’s home, Appellants immediately decided to, and did, supply the manner,

means, and opportunity for her to leave her home and remain secreted from her mother

for a period of nineteen hours. Unlike the accused in Cockrell who merely expressed her

sentiments and accompanied the runaway for part of her journey, 160 S.W. at 345,

Appellants did much, much more.


       We find, based upon the record, the State’s evidence was legally sufficient to satisfy

all elements for proving the offense of enticing a child. Appellants’ first issue is overruled.


       II.    Second Issue – Factual Sufficiency of the Evidence


       When conducting a factual sufficiency review, we examine all the evidence in a

neutral light and determine whether the trier of fact was rationally justified in finding guilt

beyond a reasonable doubt. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert.

denied, 128 S.Ct. 282, 76 U.S.L.W. 3165 (2007); Watson v. State, 204 S.W. 3d 404, 415

(Tex.Crim.App. 2006). We are to give deference to the factfinder’s determination if

supported by the record, and cannot reverse a conviction unless we find some objective

basis in the record that demonstrates that the great weight and preponderance of the

                                              16
evidence contradicts the verdict. Id. at 417. The criminal verdict will be set aside “only if

the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the

contrary evidence so strong that the standard of proof beyond a reasonable doubt could

not have been met.” Garza v. State, 213 S.W.3d 338, 343 (Tex.Crim.App. 2007). In

addition, we must include a discussion of the most important evidence that the appellant

claims undermines the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).


       Appellants contend that, because Abigail was gone from home no longer than

nineteen hours, Appellants did not interfere with, or take Abigail from, the “custody” of her

mother. The Texas Penal Code does not define the term “custody.” Thus, we must

construe the language in context according to the rules of grammar and usage; Tex. Gov’t

Code Ann. § 311.011(a) (Vernon 2005); Dowthitt v. State, 931 S.W.2d 244, 258

(Tex.Crim.App. 1996), while keeping in mind that words undefined by statute that have not

acquired a technical meaning should be given their ordinary meaning. Garcia v. State, 887

S.W.2d 846, 859 (Tex.Crim.App. 1994). The term “custody” appears twice in the Texas

Penal Code. § 25.04(a). The first reference is to the “lawful custody of a child,” and the

second reference is to the “custody of the parent or guardian or person standing in the

stead of the parent or guardian of such child.” Id. (emphasis added).


       In Cunyus v. State, 727 S.W.2d 561 (Tex.Crim.App. 1987), the Court considered

the family law concept of custody in its determination of whether the defendant intended

to interfere with the custody of the childrens’ parents.       Id. at 564.    In making its


                                             17
determination, the Cunyus Court found it unnecessary to consult the Texas Family Code

which establishes the principle of custody of a child through a detailed, statutory scheme

in lieu of the Texas Supreme Court’s pronouncement in Leithold v. Plass, 413 S.W.2d 698

(Tex. 1967).9 Cunyus, 727 S.W.2d at 564. In Leithold, the Supreme Court described the

term “custody” as follows:


       ‘[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.


413 S.W.2d at 700.


       The definition of “custody” cited in Cunyus comports with the term’s technical and

common usage. Although the Texas Family Code does not specifically define the term

“custody,” the Family Code does define “legal custody” and “physical custody.” Tex. Family

Code Ann. § 152.102 (11), (14) (Vernon 2002).                “Legal custody” is “managing

conservatorship of a child,” and “physical custody” is “the physical care and supervision of

a child.” Id.10 These definitions are compatible with the rights and duties of parents to

have physical possession of their child, direct their moral and religious training, establish


       9
          In Leithold, the Supreme Court was asked to determine whether the judgment of
the trial court modifying an out-of-state divorce decree affected not only visitation rights but
also custody of the child. Id. at 700-01.
       10
         “Legal custody” is also defined as “the authority to make significant decisions on
a child’s behalf, including decisions about education, religious training and healthcare.”
Black’s Law Dictionary 413 (8th ed. 2004). “Physical custody” is defined as “caregiving
authority.” Id.

                                              18
their residence, and provide care, control, protection, and reasonably discipline their child.

See generally Tex. Fam. Code Ann. § 151.001 (Vernon 2002).11


       In determining whether the evidence established that the defendant intended to

interfere with the custody of the children, the Cunyus Court asked whether the defendant’s

actions “interfere[d] with the parents’ rights to establish the child’s domicile, [citation

omitted], or intrude[d] upon the parents’ exercising their right to care for and control the

child.” 727 S.W.2d at 564. The Court determined that the parents’ ability to control or

raise their child was unaffected or diminished where the defendant suggested one child call

its parents to ask permission to accept defendant’s offer to go to the movies, and the

defendant ultimately offered and took the children home. Id. at 564-65. (emphasis added).

Clearly, Cunyus does not apply here.


       Appellants suggest that § 25.06 of the Penal Code, pertaining to the offense of

Harboring a Runaway Child, supports their contention that the period of time involved in

this case is factually insufficient to support a conviction. That one may defend against a

charge of harboring a runaway child if that person notified “a law enforcement agency or

a person at the child’s home of the presence of the child within 24 hours of discovering that

the child was voluntarily absent from home” without parental consent is irrelevant here.12


       11
        Parental rights and duties set forth in the Texas Family Law Code are compatible
with the common usage of the term “custody.” See Merriam-Webster’s Collegiate
Dictionary 308 (11th ed. 2003) (Custody is defined as “immediate charge and control.”).
       12
            Tex. Penal Code Ann. § 25.03(c)(2) (Vernon 2003).

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The Legislature did not establish such a defense or time limitation in § 25.04(a), and we

will not imply one. That the Legislature established such a defense under § 25.06

indicates they are capable of amending § 25.04(a) if they so desire.


       Custody of a child is comprised of a bundle of common law and statutory rights and

duties belonging to a parent or legal guardian. As such, we find it unnecessary to choose

between the definitions set forth above in reaching our decision. Here, the evidence shows

Appellants intended to interfere with Matilde’s custody of Abigail by actively encouraging

Abigail to leave her home and supplying assistance to her in a pre-planned exit.

Appellants agreed to provide Abigail with the means and opportunity to run away and

picked her up at the Medina home at 2:00 a.m. without informing Matilde or asking her

permission. The evidence shows Appellants then knowingly took Abigail into their charge

and control and secreted her from Matilde for nineteen hours. Moreover, the evidence also

establishes that Appellants’ relentless pursuit of their goal of obtaining custody of Abigail

interfered with Matilde’s custody under any of the above definitions. Accordingly, we find,

based upon the record, the State’s evidence was factually sufficient to satisfy all elements

for proving the offense of enticing a child. Appellants’ second issue is overruled.


       III.   Third Issue - Character Testimony


       Appellants contend the trial court erred by excluding the character evidence

testimony of Nicole Gonzales. During the guilt/innocence phase of the trial, Appellants

called Gonzales as a witness. Prior to Appellants having the opportunity to ask Gonzales

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any questions, the State objected to relevancy of her testimony. In response to the

objection, Appellants’ counsel stated:


      Your honor, this witness will be testifying basically to the extent that Mr. Little
      and Mrs. Little have actually helped other young ladies in the past, and;
      therefore, you know, that’s what’s going on in this case and not that they had
      any intent to do anything with Abigail other than to help her.


      At that time, the State requested to take the witness on voir dire to establish that she

had no personal knowledge as to the relationship between Appellants and Abigail. During

the State’s voir dire of Gonzales, she testified she knew Appellants but did not know

Matilde or Abigail. She further testified that she had never been present when Appellants

were in Abigail’s company. At that point, the trial court sustained the State’s objection

without any further testimony from Gonzales.


      Because the State failed to favor us with a brief, we are limited in our review of this

issue to the arguments raised at trial by the State. Here, the only objection raised by the

State was relevance. Because trial courts are in the best position to decide substantive

admissibility questions, we must review the trial court’s ruling on admissibility under an

abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001).

Under this standard, an appellate court should not reverse a trial court whose ruling was

within the zone of reasonable disagreement.           State v. Mechler, 153 S.W.3d 435

(Tex.Crim.App. 2005). Therefore, the question that we must determine is whether the trial




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court’s decision that Gonzales’s testimony was not relevant is within the zone of

reasonable disagreement.


       Relevant evidence is evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would have been without the evidence. Tex. R. Evid. 401. Relevant

evidence is presumed admissible. Tex. R. Evid. 402; Erazo v. State, 144 S.W.3d 487, 499

(Tex.Crim.App. 2004). Evidence that is not relevant is inadmissible. Tex. R. Evid. 402.

Error may not be predicated upon a ruling which excludes evidence unless a substantial

right of a party is affected, and the substance of the evidence was made known to the court

by offer, or was apparent from the context in which questions were asked. Tex. R. Evid.

103(a)(2). Here, no formal offer of proof in question and answer form was made by

Appellants; however, their counsel did make the substance of the proffered evidence

known to the court. Specifically, Appellants’ counsel informed the court that the substance

of Gonzales’s testimony concerned the extent to which Appellants may have helped other

young ladies in the past. Whether Appellants had ever helped other young ladies in the

past is not evidence having any tendency to make the existence of any fact that is of

consequence to the determination of their guilt or innocence more or less probable than

it would have been without the evidence. Therefore, on its face, the proffered testimony

was not relevant.




                                            22
       Appellants argue further that their “counseling character” would have been relevant

to the issue of their intent to commit the charged offense. Evidence of other acts may be

admissible for purposes of proving intent. Tex. R. Evid. 404(b). In this case, the trial court

determined that evidence of Appellants’ counseling character did not make the existence

of an intent to interfere with the lawful custody of Abigail more probable or less probable.

We cannot find that decision to be outside the zone of reasonable disagreement.

Therefore, we conclude the trial court did not abuse its discretion in excluding Gonzales’s

testimony. Appellants’ third issue is overruled.


                                        Conclusion


       Accordingly, the trial court’s judgments are affirmed.




                                                   Patrick A. Pirtle
                                                        Justice

Publish.




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