dissenting.
My erudite and eloquent brothers paint the piqued prosecutrix proud! It seems to me the harried complainant, roared down her midnight staircase in a rage. She lit into the meek mannered appellant’s wife with a vengeance, aggravated by the sight and smell of fresh animal stuff. Based on the circumstantial evidence1 here adduced, I think we should call this the case of the yellow mail box.
Both the Government and the majority seemed obsessed with the plight of this worthy young mother whose unabashed anger and detest for the natural instincts of the homely kitty cat and the noble dog appear unparalleled in the law. So extreme was her angst, that she turned her sights of the good offices of the District Attorney, knocking and knocking on the door, ad nauseam. Repeatedly, she insisted her neighbor at the other end of the block be charged with criminal conduct, wanting not only blood but jail time. It reminds me of the fabled wolf, who persistently huffed and puffed ‘til he blew the first two houses down.2 The aggrieved agency, CPS, saw no need to prosecute. Indeed, this type of case had never been brought (nor should it have been.) This unique case arose only when one enraged neighbor insisted her neighbor be charged, prosecuted, convicted, sentenced to jail time, and now forced to appeal this astonishing debacle.
Lawsuit abuse does not begin to describe the abomination of allowing one citizen to wreak public retribution, one upon another, neighbor upon neighbor. Now not only must physicians and any citizen fear a civil lawsuit, they must not report a *632child in the street for fear of criminal reprisals.3 What happened? Or more material, what proof have we of that fretful, fateful night of the yellow mailbox?
Appellant, Scot J. Frost, pled not guilty before a jury to the misdemeanor offense of making a false report. See Tex. Pen. Code Ann. § 42.06 (Vernon 1994). After conviction, the jury assessed punishment at ninety days confinement in the Harris County Jail probated for one year and a $350 fine. Appellant asserts two points of error. First, he challenges the legal and factual sufficiency of the evidence to support his conviction. Secondly, he asserts the doctrine of in pari materia required that he be charged under the Texas Family Code and not the Texas Penal Code. While appellant’s second challenge may be correct, it seems to have been waived, probably because the prosecution filed, dismissed, then refiled under the different statutes, hardly giving appellant a chance to complain. As to the cardinal and primal point, I would sustain, and accordingly reverse and render the judgment below.
Background
Around 10 a.m. on April 18, 1995, appellant, according to the testimony, called Child Protective Services (CPS) and reported that a three-year old girl and an eighteen-month old boy in his neighborhood played in the street unsupervised. Not only does the majority ignore this undisputed fact, but also seek to rewrite not only the report summary which is the basis of the charge but also opines that appellant’s testimony can somehow (circumstantially?) alter the information charging appellant. In other words, the majority changes not only the prosecution’s theory but also changes the charges against appellant to meet the circumstances in trial. Appellant stated that the most recent occasion of street play occurred on April 15, 1998. Appellant did not know the names of the parents or the children, but did identify the house at the end of his cul de sac, on Almahurst.
CPS, in its sole discretion, assigned a priority one to appellant’s report indicating that a CPS worker should investigate it within twenty-four hours. CPS’s investigation revealed no finding of neglect or negligent supervision at the address. Nor, however, did they conclude the report itself was false.
Analysis
The majority correctly states appellant’s issue in which he contends the State’s evidence was legally and factually insufficient to establish the allegations of the information. The information charged Appellant with making a false report in the following language:
... Defendant, on or about April 18, 1995, did then and there unlawfully knowingly initiate a report of a past emergency, namely two children playing in the street unsupervised to Erin Hollis, Children Protective Service[,] that he knows is false and that would ordinarily cause action by a official agency organized to deal with emergencies, to wit: go out and investigate this report of negligent supervision.
(emphasis added). Appellant correctly challenges the State’s case concerning the italicized portion of the information. He argues that the State was required to prove that allegation beyond a reasonable doubt because it amounted to the description, stating what part of his report purportedly and specifically was false.
*633If the State’s proof falls short of the allegations, reversal of a conviction due to insufficient evidence may result. See Wray v. State, 711 S.W.2d 631, 683 (Tex.Crim.App.1986) (en banc); Rogers v. State, 756 S.W.2d 332, 335 (Tex.App.—Houston [14 th Dist.] 1988, pet. ref'd). However, proof is not requisite for superfluities, “Unnecessary words or allegations in an indictment [or information] may be rejected as surplusage if they are not descriptive of that which is legally essential to the validity of the indictment.” Wray, 711 S.W.2d at 633. If the additional language describes an essential element of the offense charged, then the State must prove that language in addition to the statutory elements of the offense, beyond a reasonable doubt. Id.
In this case the State must prove beyond a reasonable doubt that:(l) appellant; (2) knowingly; (3) initiated a false report; (4) of a past emergency; (5) that he knew was false; and (6) that would ordinarily cause an action by an official or agency organized to deal with emergencies. See Tex. Pen.Code Ann. § 42.06 (Vernon 1994).
Reporting a statement that one knows is false or baseless is an essential element of the offense of a false report. Id.; see Watts v. State, 706 S.W.2d 707, 707 (Tex.App.—Corpus Christi 1986, pet. ref'd). Here, the State did not specify, by name or address, the alleged false statement, limiting it to only include the complainant’s children. Rather the State used a general allegation to describe the alleged false statement. The State alleged that Appellant’s false statement was that “two children [were] playing in the street unsupervised.” Because the allegation described the false statement, an essential element of the offense, the State must carry the burden to prove that allegation beyond a reasonable doubt. See Wray, 711 S.W.2d at 633; Rogers, 756 S.W.2d at 335. The majority tries to avoid this necessary proof by erroneously attempting to change, by judicial fiat, both the information and the alleged false statement. This court is charged by the law to determine whether the State met its burden of proof. See Horne v. State, 749 S.W.2d 74, 76 (Tex.Crim.App.1988) (en banc). This the majority avoids by trying to change the information and alleged false report.
When reviewing the legal sufficiency of the evidence, we look at 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 crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App.1995). The trier of fact is the exclusive judge of the credibility of witnesses and of the weight to be given them testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. Id. This standard of review is the same for both direct and circumstantial evidence cases. See Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App.1986). In addition, this standard applies to the review of evidence when challenging descriptive allegations in the indictment or information. See Horne, 749 S.W.2d at 76.
The State was required to prove beyond a reasonable doubt that Appellant’s statement was false or, in other words, that there were not two children playing in the street unsupervised. The State established that Appellant and his wife were walking their dogs a little after midnight on the morning of April 18, 1996. Peering through the window of her house, complainant spied appellant and his dog. While in front of her house, appellant’s dog, apparently struck by a call of nature, stopped and watered complainant’s very own mailbox.4 Complainant, *634by appellant’s failure to forbid, intervene, or prevent such despicable conduct, instanter stopped breast feeding her six-month old, and marched onto the early morning, (about 12:30 a. m.) dark, battleground scene. By the time complainant made it to her front yard, appellant had safely returned to his home. Unfortunately his wife and her dog were now in front of complainant’s house. Upon this critical point, the majorities’ entire house of cards rest. The complainant, admittedly rude, told appellant’s wife what she thought of appellant’s and his dog’s conduct ahd informed appellant’s wife she would be reported to the neighborhood association if it happened again. The State also entered evidence that appellant’s wife called another neighbor and stated she wished she could report complainant’s conduct. No such evidence is attributable to appellant, not even circumstantially.
Neither we, nor the jury had the benefit of what appellant actually reported to CPS.5 CPS destroyed the actual report, the verbatim tape recording of this supposedly confidential complaint. The CPS’s abbreviated summary sketched the fifteen minute conversation into a few sentences indicating that two children were playing in the street unsupervised. Internally inconsistent, the summary of the actual report both stated that this inappropriate child’s play occurred daily and at the same time reported only one or two actual incidences because appellant went to work early and returned late, rarely seeing the children. The last time appellant observed the unsupervised street play was on April 15. He described the two children as a three-year old girl and an eighteen-month old boy and reported the house on Almahurst. At trial, complainant testified contrary to this description of the children indicating that her son was two-and-a-half years old and her daughter was six months old in April of 1996. All agreed the infant, en fans, did not play in the street. Complainant as well as two neighbors testified that her children were never allowed to play in the street, especially unsupervised. The evidence also established that the neighborhood had an Easter egg hunt on April 15, the same day Appellant reported he had observed the unsupervised street play, and that numerous neighborhood children (including the older Cecil child) undisputedly played in the street that day. One State’s witness testified to as many as thirty-five children were at play in the street. And at least some of the parents were not present to supervise their own children. These facts, the majority also chooses to ignore. The majorities proof instead, is inference upon inference.
The State failed to enter and the majority does not point to any evidence establishing that there were not two children in the street playing unsupervised. The evidence merely establishes that complainant’s children were not in the street. Further, the evidence demonstrates appellant’s description, by age and sex, of the two children was not a description of complainant’s children. The State’s allegation was not that appellant falsely reported complainant’s children were in the street but that two children were in the street.6
*635The State and majority argue that the confrontation between complainant and appellant’s wife establishes a motive. I recognize that in certain cases circumstantial evidence is sufficient to prove intent. See, e.g., Moss v. State, 850 S.W.2d 788, 796-97 (Tex.App.—Houston [14 th Dist.] 1993, pet. ref'd) (proving intent to deliver a controlled substance with circumstantial evidence). However, in Wood v. State, the Texas Court of Criminal Appeals examined whether motive was sufficient to establish a false report. The State charged Wood with making a false report to a police officer by stating that the officer was intoxicated when he issued her a citation. 577 S.W.2d 477, 478 (Tex.Crim.App.1978).7 The evidence revealed a slight confrontation between Wood and the officer in which Wood called the officer a “bastard” and stated she would not pay the ticket. Id. Later that day, Wood contacted the police department and reported that the officer was intoxicated. Id. Viewing the evidence in the light most favorable to the conviction, the court recognized that the evidence established that the officer was not intoxicated and that Wood had ample opportunity to perceive this. Id. at 480. Despite this and the possible motive for Wood to fabricate a false report against this particular officer, the court held that the State’s evidence was insufficient to establish that Wood actually knew that the officer was not intoxicated. Id.
At least in Wood, there was a direct confrontation. Significantly, because appellant had no direct involvement with complainant, the majority’s motive argument is tenuously based on the inference that appellant’s wife took umbrage from the complainant’s verbal assault. Then, concluding that because the wife had a potential spite motive, therefore, the majority divines8 this defendant Orthopedic Surgeon also had a spite motive. On the infamous 18 th of April, appellant first learned a young boy’s leg had to be amputated, the result of an auto/child accident. Appellant’s several years of care in an attempt to save this young fellow’s leg went for naught. The doctor claimed this amputation incident prompted his call to CPS. While the State certainly need not disprove this assertion by the defense, the State’s stacking of inference upon inference hardly satisfies its burden to prove appellant actually knew his statement was false. See Wood, 557 S.W.2d at 480; Cf. $9,050.00 in United States Currency v. *636State, 874 S.W.2d 158, 162 (Tex.App.—Houston [14 th Dist.] 1994, writ denied) (“... it is well established that an inference of fact cannot be based upon another inference of fact.”)
Taking all the evidence in the light most favorable to the verdict, the State perhaps proved that complaint’s children were not playing unsupervised in the street. Sadly, that is not what appellant was charged with. The State’s evidence however, was insufficient to demonstrate that there were not two children playing in the street who appellant, not anyone else, perceived to be unsupervised. Accordingly, I would sustain appellant’s first issue.9
As cavalier as the majority presents on the matter of appellant’s knowingly initiating a false report, by their silence they would seduce us to believe the neighborhood picnic presented “a past emergency.” Recall the bucolic description of this peaceful scene as depicted by the majority, barricaded streets, lawn chairs and festivities. So assuming the worst, let us strain to imagine some children, somewhere, sometime, played alone on a cul de sac street unsupervised. This, standing alone, is not the type of yelhng-fire-in-the-crowded-the-ater that amounts to a past emergency as contemplated by the Penal Code. Surely CPS treated the matter seriously, as they should. But any analysis will demonstrate that “playing” is not an emergency, “alone” is not an emergency and “unsupervised” is not an emergency. While the statute does not define emergency, it specifically proscribes “bombing,” “fire,” and “offense” reports. See TEX. PEN. CODE ANN. § 42.06 (Vernon 1994). A closely allied statute defines “emergency” under “Interference With Public Duties” as “a condition or circumstance in which an individual is or is reasonable believed by the person transmitting the communication to be in imminent danger of serious bodily injury.” See TEX. PEN CODE. ANN. § 38.15(e) (emphasis added.) If we view this element in the context of the cul de sac neighborhood, “playing alone in the street unsupervised” is hardly a past emergency.10
For the reasons stated above, I would reverse and render.
. Both the majority and prosecution rely heavily on circumstantial evidence though there is often direct evidence, as here, that the mail box was soiled. The problem I have is not with modernity's affinity for circumstantial proof, but as later discussed, piling inference on inference. Here there is no dispute about the yellow mail box, only the sequela, and the sequela of the sequela.
. The ending of the three little pigs story is different here. Unfortunately, in the story of the yellow mailbox, even the stone house of the law is, I believe, shaken.
. See also FN 4 and FN 9, infra. I also note Tex Fam.Code Ann. § 261.01(a)(b), § 261.103 (Vernon Supp. 1999). requires both lay individuals and eveiy licensed professional to report any belief that a child has been neglected or abused to the CPS or other law enforcement agency. The identity of the person making a report is confidential and may only be disclosed by court order or to law enforcement. Id § (d). This law was apparently ignored by CPS and the majority opinion effectively emasculates the legislatures’ clear expression of confidentiality under this reporting statute.
. It is thus undisputed that the subject of this case (or object) is the yellow mailbox. Both the majority and prosecution would have the reader color it otherwise. Accordingly the *634principal person with an obvious motive, is the prosecutrix. The majority turns the confidentiality accorded by law of CPS’s work into a nefarious motive of appellant and contemporaneously ignore his stated chief concern, the safety of the children. This confidentiality lawfully afforded appellant was broken by complainant's groundless and frivolous lawsuit against CPS, who paid tribute to her by releasing this confidential informant information thus endangering the liberty and reputation of appellant.
. The majority glibly ignores the lost report. They would argue, I surmise, that an abbreviated summary, like the fruit under a tree, can tell us the size, shape, foliage and crown dimensions, indeed even the criminal intent of the woody plant.
. Again the majority criticizes the dissent because I point out that other children could have been in the street. The majority ignores that the prosecution, not the dissent, theorized that Appellant’s could have been mistaken about the age and sex of the children. It is *635interesting to me how the majority picks and chooses what part the State’s theory they will promote to fact, and what part they choose to ignore. And if we accept the majorities position, then citizens can be prosecuted and convicted of making a false report if one misidentifies the sex or age of an auto accident victim or gives the wrong address of a fire.
. I do not dispute the later collateral authority cited by the majority which perhaps weakens the underpinnings oflVood. Am I wrong not to " move an ancient landmark set up by your fathers.” See Proverbs 22:28. More materially, the majority sites no authority for its position that a decent law abiding citizen of this State can be criminally convicted based solely on one wobbly inference toddling upon another.
. The majority at once heralds the praises of circumstantial evidence (only God can read man’s thoughts) then based on "the sequence of events” conjures appellant’s call to CPS as motivated "solely by a desire to embarrass Mrs. Cecil.” Trouble is, appellant was at the office when his wife complained to the neighbor later that morning. Nor was he there at the fateful confrontation between his wife and the complainant. I suppose the majority assumes (perhaps circumstantially) every spouse knows what the other is thinking, which is equally probable with the majorities’ circumstantial inference that no children every play in any street, any time unsupervised, even, as here, when their parents are off somewhere else cooking! Similarly, if one spouse acts 90 minutes later, one from home and one from the office, these events are, according to the majority, not only causally related, but proof of criminal intent! The majority adopts as law one of the most ancient fallacies of logic: after the fact, therefore because of the fact. I fear we have injected the law unwittingly into a vicious personal and lawsuit dispute and simply taken sides with the louder voice. Even CPS "was really shocked” by the prosecution when in five years they "never heard of it (prosecution)”
. I note CPS had never heard of prosecuting this type of purported false report. This neighborhood squabble has also escalated to a damage lawsuit action by complainant against both appellant and CPS. The latter she dismissed, however, after apparently obtaining the promised confidential identity of the neighbor, appellant. I hesitatingly disapprove (not having been there) of the trial judge’s remarks, from the bench but outside the presence of the jury criticizing the "... God like image of appellant.” Similarly, the judge sustained many of the numerous disruptive, obfuscating, objections by the State but refused to sustain obvious defense hearsay objections because “it was already in evidence.” And still the trial judge in the end exhibited great wisdom, mercy and courage by probating this member of the healing profession’s jail sentence.
. Because of today’s majority holding, the old adage “You can’t make a silk purse out of a sow's ear” is henceforth not recognized in Texas. And the reason is: The case of the yellow mail box.