                                 NO. 07-01-0390-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL E

                                    MAY 21, 2003

                        ______________________________


                        DEANNA KAY PORTER, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

           FROM THE COUNTY COURT AT LAW OF RANDALL COUNTY;

          NO. 2001-60380-L; HONORABLE JAMES W. ANDERSON, JUDGE

                       _______________________________

Before JOHNSON, C.J., and REAVIS, J., and BOYD, S.J.1


                                      OPINION


      Appellant Deanna Kay Porter appeals from her conviction for failing to report that

she had cause to believe a child’s welfare had been adversely affected by abuse or

neglect. We affirm.



      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
       During the relevant time period, appellant operated New Children’s Learning

Center, a licensed daycare facility in Canyon, Texas. On March 14, 2001, employees of

the center took groups of children in care to a local park for outings. One of the groups

included three-year old Nadina Hinojosa. Due to a late addition to the group, some

confusion occurred in counting the children in Nadina’s group. When the children were

removed from the van in which her group traveled to the park, Nadina was inadvertently

left in the van. The van was parked under a tree with its windows slightly opened. The

group of children and supervisors returned to the van after approximately one and one-half

hours. Nadina appeared to have been crying, had “clammy-feeling” skin and was possibly

dehydrated.


       When the van and children returned to the center, the incident was reported to

appellant in accordance with established center policy. Nadina was monitored by the

center staff during the remainder of the day. Testimony from the center’s staff was to the

effect that Nadina told jokes, laughed, ate a snack and drank water. Testimony did not

indicate that the staff noticed adverse effects from the incident.


       When Nadina’s mother, Adelmira Hinojosa, picked up the child that afternoon,

appellant reported the incident to Adelmira. Adelmira later reported the incident to the

Department of Protective and Regulatory Services (DPRS).


       Appellant was charged with knowingly failing to report the incident when she had

cause to believe that Nadina’s physical or mental health or welfare had been or may be



                                             2
adversely affected by abuse or neglect. See TEX . FAM . CODE ANN . § 261.109 (Vernon

2002).2 A jury found her guilty and the trial court assessed punishment at a fine of $500.


       Via one issue, appellant challenges the factual sufficiency3 of the evidence to

support her conviction.     She asserts that the elements of the offense are: (1) the

defendant; (2) had cause to believe; (3) that a child’s physical or mental health or welfare

has been or may be adversely affected; (4) by abuse or neglect; and (5) knowingly failed

to report the suspected abuse or neglect. She posits that the State was required to

independently prove each separate element, and that the State’s proof was factually

insufficient to prove elements (3), (4) and (5) of the offense; that is, that Nadina’s physical

or mental health or welfare has been or may be adversely affected; that Nadina was

actually abused or neglected; and that appellant failed to report as required by Family

Code chapter 261.


       The State’s response is that the statutory language does not require proof that

Nadina was actually abused or neglected, only that appellant had cause to believe that

Nadina’s physical or mental health or welfare was or may be adversely affected by abuse

or neglect. The State urges that the evidence is factually sufficient.


       2
       Reference to a provision of the Family Code hereafter will be by reference to
“Family Code § _”, or by reference merely to “§ _.”
       3
       Appellant’s sole issue asserts error by the trial court in failing to direct a verdict in
her favor “when the evidence was factually insufficient to sustain” her conviction. The
issue seems to mingle legal insufficiency and factual insufficiency challenges. However,
appellant briefs only the appellate standard of review for factual insufficiency challenges,
and at oral submission she asserted factual insufficiency as the basis for her appeal.


                                               3
       We first consider whether the State’s burden was to prove actual abuse or neglect

as a separate element of the offense. Appellant cites, in part, White v. State, 50 S.W.3d

31, 39 (Tex.App.--Waco 2001, pet. ref’d), as support for her contention that the State has

the burden to prove that the child actually was abused or neglected as a separate element

of a § 261.109 offense. White, however, specified that “. . . the elements for this offense

are that: (1) the defendant; (2) had cause to believe that a child had been or may be

abused or neglected; and (3) knowingly failed to report this abuse or neglect.” Id. at 40-

41. The White court construed appellant White’s appeal as challenging only the State’s

evidence as to the element of the offense “. . . that she had cause to believe that C.W. [the

child] had been abused on the five occasions in question.” Id. at 41(emphasis added). We

do not read White as supporting appellant’s contention.


       Appellant also references Morris v. State, 833 S.W.2d 624, 627 (Tex.App.--Houston

[14th Dist.] 1992, pet. ref’d), in support of her position. She refers to the Morris court’s

statement that appellant Morris “most certainly had ‘cause to believe’ that the child was

being subjected to abuse,” see id. at 627, as supporting her position. We, however,

consider the quote referred to as measuring evidentiary sufficiency in the case, not as a

holding that the State must prove abuse or neglect as a separate element of the offense.

To the contrary, we read Morris to be supportive of the State’s position in the instant

appeal. The statutory language in question in Morris required “a person having cause to

believe that a child’s physical or mental health or welfare has been or may be adversely

affected by abuse or neglect by any person” to report in accordance with specified



                                             4
provisions of the Family Code. In considering whether the statutory language was

unconstitutionally vague, the Morris court held that the language gave fair notice to a

person of ordinary intelligence that a report must be filed with appropriate agencies “when

[the person] has cause to believe that a child is being abused.” Id. at 627.


       We are in agreement with White and Morris as we read them to hold that actual

abuse or neglect is not a separate element of the offense. The language “cause to

believe” applies to the entire phrase “that a child’s physical or mental health or welfare has

been or may be adversely affected by abuse or neglect.” See TEX . GOV ’T CODE ANN . §

311.011(a) (Vernon, 1998) (words and phrases shall be read in context and construed

according to rules of grammar and common usage); Morris, 833 S.W.2d at 627. The State

is not required to prove, as an element of the offense, that abuse or neglect actually

occurred; only that appellant had cause to believe that abuse or neglect occurred. See

Family Code § 261.109; White, 50 S.W.3d at 41; Morris, 833 S.W.2d at 627.


       Having determined that the State was not required to prove abuse or neglect as a

separate element of the offense, we turn to appellant’s evidentiary challenge.


       Review of the evidence for factual sufficiency to support a conviction entails a

neutral review of all the evidence, both for and against the finding. The evidence is

factually insufficient if such a review demonstrates that (1) the proof of guilt, standing

alone, is too weak to support a finding of guilt, or (2) the proof of guilt, although adequate

if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d



                                              5
1, 11 (Tex.Crim.App. 2000). Unless the record clearly reveals that a different result is

appropriate, an appellate court must defer to the factfinder’s determination concerning

what weight to give contradictory testimonial evidence because resolution often turns on

an evaluation of credibility and demeanor, which is primarily a determination to be made

by observation of the witnesses giving the testimony. Id. at 8.


       Appellant questions the factual sufficiency of proof that Nadina’s physical or mental

health or welfare has been or may have been adversely affected; that Nadina was actually

abused or neglected; and that appellant failed to report as required by Family Code

chapter 261. Because we have previously determined that the State did not have to prove

actual abuse or neglect, we need not address the sufficiency challenge as to proof of

actual abuse or neglect. Thus, we begin by addressing sufficiency of the proof that

appellant had cause to believe that the child’s physical or mental health or welfare has

been or may be adversely affected by abuse or neglect.


       As part of the charge, the jury was instructed that “neglect” includes placing a child

in or failing to remove a child from a situation that a reasonable person would realize

requires judgment or actions beyond the child’s level of maturity, physical condition, or

mental abilities and that results in bodily injury or a substantial risk of immediate harm to

the child. See Family Code § 261.001(4)(B)(i).


       Adelmira testified that appellant told her Nadina had been left in the van at the park.

She also testified that appellant told her steps had been taken to hydrate Nadina. Chris



                                              6
Clark testified that he and Anna Tucek were two of the workers in charge of the children

that day at the park and that on discovering Nadina, he made attempts to hydrate the child.

He also testified that he and Anna immediately reported the event to appellant. Anna

testified that when she found Nadina in the van she saw evidence that Nadina had been

upset and crying. Anna was also concerned about Nadina being dehydrated and took

immediate steps to hydrate her upon finding her in the van. Anna reported all of this to

appellant once she got to the daycare center. Both Chris and Anna testified that they

knew to report the incident to appellant because appellant had trained them to report such

incidents to her so she could decide if a report should be made.


       Michelle Bohannon, of the DPRS and the primary investigator for the licensing

division, testified that any child left alone in a van is at risk, regardless of the weather or

other external factors. The trial court took judicial notice, and so instructed the jury, that

there is a potential for harm any time a child is left alone in a vehicle for an extended

period of time.


       The evidence shows that appellant was aware that three-year old Nadina had been

left in the van alone for over an hour. Appellant knew that her employees were worried

about the hydration of the child and that there was evidence the child had been upset and

crying. The trial court judicially noticed a potential for harm any time a child is left alone

in a vehicle for an extended period of time.




                                               7
       The proof, standing alone, is not too weak to support a finding that appellant had

cause to believe that Nadina’s physical or mental health or welfare had been or may be

adversely affected by having been left in the van and that leaving her in the van was

neglect as defined in the statute and jury charge. See Johnson, 23 S.W.3d at 11.


       When the State rested and closed, so did appellant. Proof contrary to the State’s

proof was only developed on cross-examination of the State’s witnesses. Appellant directs

our attention to evidence and testimony that Nadina was laughing, joking, eating a snack

and drinking water, and that Nadina’s mother testified that Nadina shows no emotion about

the incident. Differing inferences could be drawn from the evidence as a whole. The duty

of drawing inferences from the evidence and judging the credibility and weight of such

inferences and all the evidence presented, however, is lodged in the factfinder. Deferring

to the jury’s resolution of witness credibility and conflicts in the evidence, as we must in

such matters, we conclude that the proof of guilt is not greatly outweighed by contrary

proof. See id. at 11.


       We next address sufficiency of the proof that appellant failed to report in

accordance with Family Code chapter 261. Appellant contends that the State introduced

no proof that she failed to verbally report the incident to some local or state law

enforcement agency, the DPRS, or the licensing agency. See § 261.103(a)(1),(2),(3).4




       4
       She does not contend that the State was required to prove that she did not report
to another agency. See § 261.103(a)(4),(b).

                                             8
Her assertion is based on testimony by DPRS representative Bohannon and Canyon

Police Department detective Chris Tinsley.


       Bohannon testified that the DPRS records, which contained a report of the incident,

contained no record of the incident having been reported by appellant or the learning

center, and she was not aware of such a report. On cross-examination she admitted that

she could not testify that, beyond a reasonable doubt, appellant had not made a verbal

report of the incident to one of the thousands of employees of the DPRS.


       Detective Tinsley testified that he had worked at the Canyon PD for over 20 years;

that he had not encountered a situation in which child abuse had been reported but a

record had not been made by the receiving officer; and that the Canyon PD did not have

any record of appellant having reported the incident involving Nadina. Tinsley also

testified that he checked the statewide police agencies for such a record and none existed.

Just as Ms. Bohannon did, Tinsley testified on cross-examination that he had not talked

to each officer of the Canyon PD about the case and therefore could not testify beyond a

reasonable doubt that appellant had not made a verbal report to one of the officers.


       We perceive appellant’s argument to be a shade of the “alternative reasonable

hypothesis” construct which was rejected in Geesa v. State, 820 S.W.2d 154, 160-61

(Tex.Crim.App. 1991). Under that construct, legal sufficiency of circumstantial evidence

proof was tested by whether the State had disproved every reasonable hypothesis raised

by the evidence in the record except the defendant’s guilt. See id. at 156-59. That is, the



                                             9
evidence was tested not by what the State proved, but by what the State failed to disprove.

Id. As noted, such standard has been rejected in legal sufficiency reviews. In a factual

sufficiency analysis the existence of alternative reasonable hypotheses raised by the

record may still be considered, but the existence of such hypotheses is not determinative.

See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999).5


       The record before us reveals that appellant was the proprietor of a licensed daycare

center. The Minimum Standards and Guidelines for Daycare Centers was introduced into

evidence. In addition to reporting requirements of the Family Code which apply to all

persons, the Minimum Standards required daycare centers to report incidents such as the

one involving Nadina. The only evidence that a report was made came from Nadina’s

mother who testified that she reported the incident and from Bohannon who testified that

to her knowledge and according to DPRS records one report was made. Neither the

DPRS records nor the police records contained a record of a report from appellant or her

daycare center. No evidence appears creating an inference that appellant or anyone

acting on her behalf reported the incident verbally. The hypothesis that appellant reported

the incident is not supported by record evidence. On the other hand, the State presented

evidence from which the jury could have found that she did not. The record evidence,

viewed in a neutral light and standing alone, is not too weak to support a finding that

appellant did not report, and the proof of guilt is not greatly outweighed by contrary proof.


       5
        See also Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App. 1986) (Either
evidence permits a rational trier of fact to find the essential elements of the offense beyond
a reasonable doubt or it does not. What is not in evidence is irrelevant to a determination
of the sufficiency of the evidence).

                                             10
Accordingly, the evidence is factually sufficient to support the jury’s finding that appellant

did not report as required by the Family Code.


       The evidence is factually sufficient to support the jury’s finding of guilt. See

Johnson, 23 S.W.3d at 11. The conviction is affirmed.


                                                         Phil Johnson
                                                         Chief Justice
Publish.




                                             11
