Hammack, Michael Anthony

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0636-19

MICHAEL ANTHONY HAMMACK, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
HUNT COUNTY

NEWELL, J., delivered an opinion in which HERVEY,
RICHARDSON, YEARY, WALKER, SLAUGHTER and MCCLURE, JJ., joined.
KELLER, P.J., filed a dissenting opinion in which KEEL, J., joined.

Does the State have to prove that a defendant was served with a

copy of an emergency protection order that removes a child from custody

to establish that a person commits the offense of “Interference with Child

Custody”? No. The plain terms of the statute only require proof that the

person who takes or retains a child in violation of a judgment or order,
 Hammack — 2

including a temporary one, knows that he or she is doing so in violation

of such an order. Proof that the person has been served with a

temporary order may satisfy the State’s burden to prove such knowledge,

but it is not required if knowledge can be proven through other means.

In this case, the State presented sufficient evidence that Appellant knew

about the existence and relevant terms of the emergency protection order

even though the evidence showed he had successfully avoided service.

Consequently, we affirm the court of appeals.

Background

On February 23, 2018, a school counselor contacted the Texas

Department of Family and Protective Services (“the Department” or

“TDFPS”)1 regarding her concerns about potential child abuse involving

Appellant’s sixteen-year-old daughter.2 Department Investigator Amber

Davidson opened a case and called Appellant, telling him about the

investigation. Later that day, Davidson went to Appellant’s home to

investigate, but Appellant told her to get off his property and to come

1
TDFPS is also interchangeably referred to as “Child Protective Services” and “CPS”
throughout the record.
2
During a pre-trial hearing it was revealed that Appellant was accused of sexually
abusing his daughter and that this abuse was one of the findings that supported the
issuance of the emergency protective order at issue in this case. However, at the end of the
pretrial hearing, the trial court issued a limiting instruction restricting the introduction of
evidence of the specific allegation.
 Hammack — 3

back with a court order.

She did. On February 27, 2018, Davidson obtained (1) an Order of

Protection of a Child in an Emergency (“the Order”) that awarded custody

of Appellant’s child to the Department; and (2) a Writ of Attachment that

commanded any sheriff or constable in Texas to take the child and deliver

her into the Department’s possession.3 This order granted sole managing

conservatorship of the child to TDFPS as well as sole right of possession

and custody of the child.4

That same day, Davidson returned to Appellant’s residence,

accompanied by Department Investigator Rhonda West, to serve

Appellant the Order. Davidson and West identified themselves and

explained to Appellant that, pursuant to the Order, they were there to

take custody of the child. Appellant immediately became aggressive and

ordered them off his property. According to West, Appellant knew who

3
Emergency protection orders under Chapter 262 do not use terms such as “joint” or
“shared” custody, they only contemplate two scenarios: 1) removal of a child, granting
TDPRS “temporary managing conservatorship; and 2) removal of the perpetrator of the
abuse from the home if another parent or guardian is in the home. See TEX. FAM. CODE §§
262.101, 262.1015.

4
At trial, Appellant agreed to a stipulation of evidence that the order granted sole
custody and possession of his child to TDFPS. This stipulation and the emergency protective
order were admitted into evidence as exhibits.
 Hammack — 4

she was and was not surprised that she was there.5 Based on her

interactions with Appellant, she had “no doubt” that at that time

Appellant understood that a court order had been issued to retain the

child and knew that TDFPS had custody of the child.

Davidson and West left Appellant’s residence but went to the child’s

school, where they took custody of the child with the assistance of the

school’s resource officer. After bringing the child back to the

Department’s office, Davidson telephoned Appellant to tell him that the

Department had obtained custody of the child as a result of the Order and

had thus picked her up at school. Davidson asked Appellant to come to

the office so she could give Appellant the paperwork and talk to him

about the situation. Appellant asked how Davidson had obtained the

Order. When Davidson replied with the name of the judge who signed the

Order, Appellant said, “[T]hat can’t be possible because I only work with

a different judge.” Appellant did not comply with Davidson’s request to

come to the office.

Based upon the phone conversation, Davidson testified that

Appellant was “fully aware” that TDFPS had custody at that point.

5
West testified that Appellant already knew who she was because of past interactions
with her.
 Hammack — 5

Davidson had “no doubt” that Appellant understood that TDFPS had taken

custody of the child pursuant to a Court Order and Writ of Attachment

when she telephoned him.

After the phone call, the child escaped from TDFPS custody and the

Greenville and Commerce Police Departments were alerted. Commerce

Police Officer Kelvin Rhodes traveled to Appellant’s home, joined

separately by TDFPS investigators. Officer Rhodes asked Appellant if his

daughter was home or if he had heard from her, but Appellant said that

she was not there and that he had not. Rhodes informed Appellant

“[t]hat we were in search of [the child] due to her being missing from the

custody of Child Protective Services.” Appellant did not appear to be

surprised by this information. It appeared that he knew the child was

supposed to be with the Department. Rhodes’ search of the home

revealed that the child was not there.

Shortly after Officer Rhodes confronted Appellant, the TDFPS

investigators drove to other residences to look for the child, including the

child’s mother’s house, Appellant’s mother’s house, the house where the

child’s sister was staying, and the child’s boyfriend’s house. When their

attempts were unsuccessful, they returned to Appellant’s mother’s house

for a second time. As they approached the house, TDFPS Investigator
 Hammack — 6

Torres noticed a car that was not there previously and called the

Commerce police to inquire about the car.

While waiting for the police, Torres saw the child and the child’s

then-boyfriend walk into the house. Commerce Police Officer Marcus

Cantera arrived and spoke with Appellant’s mother, Linda Hammack. He

told Linda that the child had escaped from the Department after the writ

of attachment was executed and that he was looking for her. Linda

testified that she was never told why the police were looking for her

granddaughter. Linda allowed Cantera to enter the house and look for

the child. While searching, Cantera heard people talking in the attic and

found Appellant on a ladder leading to the attic. Appellant began yelling

and accusing Cantera of violating his constitutional rights. On witnessing

the confrontation, Linda recanted her prior consent to Cantera’s search

of the house.

As Cantera was leaving, Appellant followed him outside. Cantera

pointed out the TDFPS vehicle parked three or four feet away, which

contained two TDFPS investigators who were waiting to transport the

child if found. According to Cantera, Appellant “was told about the order

before [he] got there” and knew that the Department had temporary

custody of the child.
 Hammack — 7

Less than a week later, Appellant brought the child, who was

pregnant, to Oklahoma and consented to her marriage to her eighteen-

year-old boyfriend. The following day, Investigator Davidson received a

phone call telling her that someone had seen the child at Appellant’s

residence. Davidson and a Commerce police officer retrieved the child

from Appellant’s home.

The State charged Appellant with interference with child custody.

A jury convicted him and sentenced him to two years’ confinement in

state jail. The trial court placed Appellant on community supervision for

a term of five years. The terms and conditions of his probation specified

that Appellant could not live with the child (or any of his children) or have

unsupervised access to any child under eighteen years of age.

Appeal

In his sole point of error on appeal, Appellant claimed that the

evidence was legally insufficient to prove he knew he was violating the

terms of a judgment or order when he secreted the child. Appellant did

not contest the fact that he retained the child in violation of the terms of

a temporary order. Instead, he challenged the jury’s finding that he had

knowledge of the Order.

The court of appeals concluded that the evidence was legally
 Hammack — 8

sufficient to support the jury’s verdict of guilt and affirmed the trial

court’s judgment.6 The court reasoned that although Appellant was not

formally served with the Order, Investigator West, Investigator Davidson,

Officer Rhodes, and Officer Cantera all testified that Appellant had been

repeatedly notified about the Order and that he knew TDFPS had obtained

custody of the child pursuant to that order.7 From this testimony and

Appellant’s participation in secreting the child, the court of appeals held

that a jury could infer that Appellant knew he was violating the terms of

a child-custody order by retaining the child.8

Standard of Review

In assessing the legal sufficiency of the evidence to support a

criminal conviction, we consider all the evidence in the light most

favorable to the verdict and determine whether, based on that evidence

and reasonable inferences therefrom, a rational juror could have found

the essential elements of the crime beyond a reasonable doubt.9 We

6
Hammack v. State, 06-18-00212-CR, 2019 WL 2292334, at *3 (Tex. App.—Texarkana
May 30, 2019) (not designated for publication).
7
Id.
8
Id.
9
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia,
443 U.S. 307, 318–19 (1979)).
 Hammack — 9

measure legal sufficiency by the elements of the offense as defined by a

hypothetically correct jury charge.10 “Such a charge [is] one that

accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the

particular offense for which the defendant was tried.”11

A reviewing court must defer to the jury’s credibility and weight

determinations because the jury is the “sole judge” of witnesses’

credibility and the weight to be given testimony.12 In reviewing the

sufficiency of the evidence, we should look at “‘events occurring before,

during and after the commission of the offense and may rely on actions

of the defendant which show an understanding and common design to do

the prohibited act.’”13 Each fact need not point directly and independently

to the guilt of the appellant, as long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction.14

10
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
11
Id.
12
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).
13
Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex.
Crim. App. 1985)).
14
Hooper, 214 S.W.3d at 13.
 Hammack — 10

Circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient

to establish guilt.15 On appeal, the same standard of review is used for

both circumstantial and direct evidence cases.16

In some cases, sufficiency of the evidence also turns on the

meaning of the statute under which the defendant has been prosecuted.17

In other words, a reviewing court must perform a statutory analysis to

determine the elements of the offense before reviewing the evidence

presented.18 That question, like all statutory construction questions, is a

question of law, which we review de novo.19

Analysis

Penal Code § 25.03(a)(1) sets out the elements of the offense of

“Interference With Child Custody” as follow:

(a) A person commits an offense if the person takes or
retains a child younger than 18 years of age:

(1) when the person knows that the person’s taking or

15
Id.; Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
16
Id.
17
Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex. Crim. App. 2019).
18
See id.
19
Id.
 Hammack — 11

retention violates the express terms of a judgment or
order, including a temporary order, of a court disposing
of the child’s custody.20

Under the terms of the statute, the State must show that Appellant knew

that his retaining of the child violated “the express terms of a judgment

or order, including a temporary order, of a court disposing of the child’s

custody.”21 This necessarily means that there must be evidence showing

that the person both knew of the child custody order as well as the

express terms of that order. Knowledge may be proven with

circumstantial evidence and inferred from the acts, words, and conduct

of the accused.22

Appellant does not argue that the State failed to prove the existence

of a valid child-custody order; he argues instead that a rational juror could

not have found that he knew about the express terms of the Order

because there was no evidence presented that he had been actually

served with the Order or told the contents of the Order. First, we

disagree with Appellant that he “was never informed in any manner of the

20
TEX. PENAL CODE § 25.03(a)(1).
21
Id.; Ex parte Rhodes, 974 S.W.2d 735, 741 (Tex. Crim. App. 1998).
22
Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018) (citing Hernandez v.
State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991)).
 Hammack — 12

express terms of the order.”23 As explained in more detail below,

Appellant was told that TDFPS was awarded temporary custody of his

daughter—an express term of the protective order. Second, contrary to

Appellant’s assertion, the statute does not require proof of service, only

knowledge of a violation of the express terms of the Order. Though proof

of services may, in a given case, help establish the element of knowledge,

it is not statutorily required.

In Harvey v. State, we interpreted Penal Code § 25.07—the statute

making it an offense to violate a protective order.24 In that case, we

explained that the statutory language “in violation of an order” was not

modified by a culpable mental state.25 However, we also observed that

the statute listed specific types of statutorily defined orders, each one

having specific notice requirements, among them actual service,

necessary to make each respective order “binding.”26 Consequently, we

held that there was “in effect” a requirement of knowledge due to the

23
Appellant’s Br. 9.
24
Harvey v. State, 78 S.W.3d 368, 371 (Tex. Crim. App. 2002).
25
Id.
26
Id.
 Hammack — 13

statutory notice requirements attendant to those listed protective orders.27

But this does not translate to a requirement for proof of service to satisfy

the knowledge element attendant to the statute at issue in this case. In

Harvey, we pointed to statutory notice requirements to suggest that the

State was required to show knowledge because knowledge was not an

obvious element of the offense.28 We used the statutory requirements for

the orders themselves to explain why a showing of knowledge was

required, not to proscribe a particular way in which the State must prove

that knowledge.29

In contrast, § 25.03(a), the statute at issue in this case, does not list

specific statutory sections governing child custody orders; it only refers

generically to a “judgment or order, including a temporary order, of a

court disposing of the child’s custody.”30 There is no indication that the

statutory service requirements of a particular child custody order must be

incorporated into the terms of the offense. And there is already a

27
Id. at 372–73.
28
Id. at 371 (“We read Section 25.07(a) to prescribe a culpable mental state for the
element ‘in violation of an order,’ because the meaning of that term necessarily includes certain
knowledge that amounts to a mental state.”).
29
Id. at 371–73. Notably, we left open the possibility in Harvey that, even if an out-of-
state order was issued without notice, a defendant’s “actual notice” of such an order may be
sufficient to prove violation-of-protective-order offense. Id. at 373.
30
See TEX. PENAL CODE § 25.03(a)(1).
 Hammack — 14

knowledge requirement listed in the statute (“a person commits an offense

. . . when the person knows that the . . . taking . . . violates the express

terms of a judgment or order”),31 so there is no need to resort to the

statutory requisites for child custody orders to justify a knowledge

requirement in the statute.

While proof of service may provide direct evidence of knowledge of

the order’s terms, the statute does not preclude circumstantial evidence

establishing that knowledge. Indeed, such is the case here. Although

Appellant was not formally served with the Order, the jury was presented

with other evidence from which it could reasonably infer that Appellant

knew there was a child-custody order and that retaining his child violated

the express terms of that order.

The State presented evidence that Appellant was familiar with TDFPS

and the investigators who attempted to take custody of the child due to

previous interactions. He was told more than once that TDFPS had a child

custody order authorizing it to take custody of the child at issue. At trial,

Investigator Davidson testified that she told Appellant that CPS had

custody of the child:

31
Id.
 Hammack — 15

A. [Davidson] . . . And I had asked him to come
meet me at the office so we could get him the
paperwork and to speak with me about the
situation.

Q. [Prosecutor] Okay. And so, based on what you
told him, he’s fully aware CPS has custody at this
point?

A. Yes.

Q. And that she was in your custody?

A. Yes.

Further, Investigator West testified that, while attempting to serve the

Order and Writ of Attachment, Appellant was again informed of CPS’s

custody over the child:

Q. [Prosecutor] Okay. And did he– did you explain
to him why you were there?

A. [West] Yes, sir.

Q. Okay. And is there any doubt in your mind that
he understood that an order had been issued by the
Court to retain [the child] in your custody?

A. Yes, sir.

Q. And there is a doubt or no doubt?

A. No doubt.

Investigator West would reiterate that Appellant knew CPS had custody of

the child:
 Hammack — 16

Q. [Prosecutor] Based on your interactions with the
accused, is there any doubt in your mind, in your
opinion, that the [Appellant] knew that CPS had
custody of [the child] at that point?

A. [West] There is no doubt.

Finally, Officer Rhodes testified that he informed Appellant that the child

was in the custody of CPS and that Appellant was not surprised by this

fact:

Q. [Prosecutor] What – what did you inform Michael
Hammack that your purpose was when you first
approached the house?

A. [Kevin Rhodes] That we were in search of [the
child] due to her being missing from the custody of
Child Protective Services.

Q. Okay. So you had explained as part of that, that
he – she was in the custody of Child Protective
Services?

A. Yes, sir.

Q. Let me ask you this. Did he seem surprised by
that at the time?

A. No, sir, he didn’t.

Q. Okay. In fact, he – he knew that she was
supposed to be with Child Protective Services, in
your opinion; is that right?

A. Yes, sir.

Shortly after the child was seen walking into Appellant’s mother’s house,
 Hammack — 17

a police officer entered the home with the owner’s consent. The officer

heard people talking in the attic and almost immediately found Appellant

on the attic ladder. Then, days after this incident, Appellant brought his

child to Oklahoma for a “shotgun wedding” to her boyfriend.

A rational juror could have reasonably inferred from this evidence

combined with Appellant’s stipulation of evidence and the terms of the

emergency order itself that Appellant knew that TDFPS had sole custody

and possession of the child pursuant to the emergency order.32 The terms

of the emergency order established that TDFPS was named sole managing

conservator of the child and was awarded sole custody and possession of

the child. Several witnesses testified that they informed Appellant of the

existence of the Order and that it awarded TDFPS custody of the child. A

rational juror could have inferred from the testimony that these witnesses

explained to Appellant that TDFPS had been awarded sole custody of the

child, particularly in light of the testimony that Appellant insisted that

TDFPS obtain such an order before he would comply with their demands.

Moreover, a rational juror could have also drawn the inference that

32
Jackson, 443 U.S. at 318–19 (the fact-finder is permitted to draw reasonable
inferences from facts when supported by the evidence); Hooper, 214 S.W.3d at 16 (under
the Jackson test, juries are permitted to draw multiple reasonable inferences from the
evidence—direct or circumstantial—as long as each inference is supported by the evidence
presented at trial).
 Hammack — 18

Appellant tried to hide the child and that he married her off to avoid

compliance with the TDFPS order, rather than, as he argued, to prevent

an out-of-wedlock birth.33

The facts in this case are similar to facts before the First Court of

Appeals in Briggs v. State.34 In Briggs, multiple witnesses testified that

they had informed the appellants that CPS had custody of their child, but

no order was formally served.35 On appeal, appellants challenged the trial

court’s denial of their motion for an instructed verdict by arguing that they

were unaware of the existence of an order36. The court of appeals affirmed

and noted that a jury was free to believe the testimony of multiple

witnesses that they had personally informed appellants that the child was

in the custody of CPS under authority of a court order.37 The same

reasoning applies in this case. In light of the evidence before us, a

33
We have noted that certain conduct by a defendant can be construed as circumstantial
evidence of consciousness of guilt. See e.g. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim.
App. 1994) (“evidence of flight or escape can support an inference of guilt”); Guevara, 152
S.W.3d at 50 (attempts to hide or conceal evidence can proves consciousness of guilt); Felder
v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) (fact that appellant presented false
identification to a police officer when he was pulled over indicates a “consciousness of guilt”);
Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994) (defendant’s secretive actions after the
offense used as a corroborating circumstance).
34
Briggs v. State, 807 S.W.2d 648 (Tex. App.—Houston[1st Dist.] 1991, pet. ref’d.)
35
Id. at 649-50.
36
Id. at 651.
37
Id.
 Hammack — 19

rational fact-finder could have inferred that Appellant knew there was a

temporary emergency protective order depriving him of custody of the

child and that retaining the child in his custody violated the express terms

of that order.

Appellant argues that his conduct merely displays a distrust of TDFPS

and not knowledge of the Order or its express terms.38 We disagree. A

rational juror, hearing the evidence, could have determined that Appellant

had no reason to question Davidson’s veracity.39 Appellant knew she

worked for TDFPS and had been investigating him for abusing his

daughter. After Appellant refused to help her with her investigation,

Davidson did exactly what Appellant suggested—she returned with a court

order. Then, when she was unable to obtain custody of the child at

Appellant’s house, Davidson retrieved the child from school and promptly

notified him that TDFPS had obtained custody of his daughter.

Furthermore, the truthfulness of Davidson’s custody-related statement

was confirmed by law enforcement when police showed up at Appellant’s

house and told Appellant that they were searching for the child who had

38
See Harvey, 78 S.W.3d at 374 (“[Appellant’s] defense had nothing to do with a lack
of knowledge about the protective order. It was to question the credibility of the witnesses to
an act of family violence.”).
39
See State’s Br. 16.
 Hammack — 20

escaped TDFPS custody. Rather than negate Appellant’s culpable mental

state, this evidence also helped establish it.40

Conclusion

The offense of “Interference With Child Custody” requires proof that

a person knows he is violating the express terms of a “judgment or order,

including a temporary order, of a court disposing of the child’s custody”

by retaining a child subject to that order. Proof of service of such an order

may provide sufficient evidence of knowledge in a given case, but if there

is sufficient circumstantial evidence to prove that the person has

knowledge of the temporary emergency protective order and the terms he

or she is violating, evidence of service is not required. In this case, a

rational trier-of-fact could have inferred Appellant knew of the order at

issue and that retaining his child violated that order. We affirm.

Delivered: May 19, 2021

Publish

40
Appellant does not argue that the Order at issue in this case did anything other
than grant TDPRS “temporary managing conservatorship” and sole custody and possession
of the child. As mentioned above, he stipulated to this understanding of the Order at trial.
But even if Appellant were to argue that he understood the order to grant “joint” or “shared”
custody, Appellant’s actions of secreting the child away from TDFPS and depriving TDFPS
access to the child when he knew TDFPS was looking for her would have violated such an
order. See Briggs, 807 S.W.2d at 651.