In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-15-00179-CR

REBEKAH THONGINH ROSS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 354th District Court

Hunt County, Texas

Trial Court No. 29,269

Before Morriss, C.J., Moseley and Burgess, JJ.

Opinion by Justice Burgess
2

O P I N I O N

As a result of an unlawful search of a home, Rebekah Thonginh Ross, an investigator for 

the Texas Department of Family and Protective Services (the Department or CPS), was indicted 

for official oppression.1 After a bench trial, Ross was found guilty, sentenced to one year in the 

Hunt County Jail, and fined $2,000.00. The sentence was suspended, and Ross was placed on two 

years’ community supervision, conditioned on her serving thirty days in jail. On appeal, Ross 

contends (1) that the trial court erred because there was insufficient evidence to support her 

conviction, (2) that she was denied her constitutional right to a fair trial, and (3) that she was denied 

her constitutional right to effective assistance of counsel. We affirm the trial court’s judgment. 

I. Background

A. The Department Proceedings

1. The Petition and Supporting affidavit

On December 15, 2011, the Department filed a petition for orders in aid of investigation of 

a report of child abuse or neglect2and for a temporary restraining order under cause number 77600

in the 354th Judicial District Court of Hunt County. Respondents in the cause were the parents of 

the child, Leslie Avery Hunt Vargas (Hunt) and Nicholas V. Vargas (Vargas). The petition was 

supported by the affidavit of Ross. In her affidavit, Ross averred that the Department had received 

a referral on December 12, 2011, stating that a child had been born at home and had not had 

 

1See TEX. PENAL CODE ANN. § 39.03(a)(1) (West Supp. 2016). 

2See TEX. FAM. CODE ANN. § 261.303(b) (West Supp. 2016) (authorizing court for good cause shown to order the 

parent or other person “in charge of any place where the child may be to allow entrance for the interview, examination, 

and investigation”).
3

medical attention, that the mother was using drugs during her pregnancy, that the mother had had 

another child removed due to drug use, and that it was believed that the new child had been exposed

to drugs. 

The affidavit also stated that Ross had been assigned to the case on December 13, 2011, 

and detailed her investigation, which revealed that Hunt had two prior CPS cases, including one 

in which a child had been removed for drug use, and that she had been arrested for driving while 

intoxicated (DWI) two days before giving birth. In her affidavit, Ross stated that she had made 

contact with a couple present at the house located at 2321 Highway 69 South, Greenville, Texas, 

who stated that Hunt and Vargas had left moments before she arrived and that the child was 

believed to be with them. The couple confirmed that the child was born at home. The couple also 

said that Hunt and Vargas had a room in the house and that they assumed that the baby stayed in 

the room with them. 

The affidavit further stated that, while talking with the couple, Ross smelled an odor of 

ammonia emanating from the house, which she averred is often found where methamphetamine is

being manufactured. It also stated that several “collaterals”

3

had stated that they suspected the 

family to use and manufacture drugs and had warned her not to go to the residence alone. Finally, 

the affidavit also detailed Hunt’s CPS and criminal histories. 

 

3

In her affidavit, Ross used the terms “collateral” or “collaterals,” apparently to refer to other parties residing in the 

locations where the minor child’s parents lived. It appears to be a shorthand reference to other persons who are 

present, but collateral to the CPS proceeding.
4

2. The Order In Aid of Investigation

The 354th District Court issued its order in aid of investigation of child abuse or neglect 

and temporary restraining order on December 15, 2011. The order provided, in relevant part:

3.1 IT IS ORDERED that a representative of the Department is authorized to 

enter the residence at 2321 Hwy 69 S, Greenville, TX, [and seven other 

addresses] where UNKNOWN CHILD is located, for an interview with 

and/or examination of UNKNOWN CHILD, and observation of the 

premises or immediate surroundings where UNKNOWN CHILD is 

located or where the alleged abuse or neglect occurred in a manner 

consistent with the provisions of § 261.302, Texas Family Code with 

assistance from Law Enforcement if necessary.

3.2 IT IS ORDERED that Law Enformcent [sic] accompany the Department 

to and inside the residence at 2321 Hwy 69 S, Greenville, TX, [and seven 

other residences], where UNKNOWN CHILD may be located by any

means necessary.

B. The Witness Testimony at Trial

1. Jessica Francis

At trial, Jessica Francis, who was also an investigator for the Department, testified that at 

6:00 a.m. on December 16, 2011, she met Ross at the Highway 69 house to search for a newborn 

infant. Ross had been assigned to the investigation, and Francis was assisting her. Francis was 

aware that an order in aid of investigation had been entered, and she reviewed it when they arrived. 

In addition to Francis and Ross, two deputies from the Hunt County Sheriff’s Office were present. 

The deputies broke down the door and went inside the residence to determine who, if anyone, was 

present. When they came back and told Francis and Ross no one was there, Ross went into the 

residence with the deputies. 
5

Francis initially stayed outside, talking with another officer. After a while, Francis entered 

the residence to see why they were still there. Francis walked throughout the house and took 

photographs showing that the house had been evacuated and that the people had moved, apparently 

in a rush. She also spoke with Ross, who was in a bedroom. Ross and an officer were searching 

the bedroom—they had flipped up a mattress and were looking through a journal. Ross had Francis 

take a photograph of a scale and showed her a calendar where the mother had written that the baby 

was born at home. 

According to Francis, the mattress had a big stain of bodily fluid or blood on its underside, 

and they assumed that is where the baby was born. Francis did not recall where the journal had 

been found, but she testified that Ross and the deputies had gone through drawers. Ross showed 

her some of the entries in the journal, but did not recall how extensively she looked at it. Francis 

felt all of the things that were being reviewed in the bedroom were to help them determine where 

the child could be and if it had been there. Based on what they found in the bedroom, Francis

concluded that the baby had been there at some point and that Hunt had recently occupied the 

house. 

Francis also testified that at some point they went into the kitchen, where Ross instructed 

the deputy to get a crock pot or a pot down from either a shelf or the refrigerator to look in it. 

Francis felt that this was beyond what was contemplated in the order in aid of investigation since 

they were no longer looking for the baby. She told Ross that there was not going to be a baby in 

the pot and that they needed to go find the baby, to which Ross responded, “Okay, Kenny.” Francis
6

explained that Kenny Stillwagoner was a special investigator4 with the Department and that Ross 

was implying that Francis was lazy. Francis also testified that the kitchen cabinets and drawers 

were also opened by either Ross or the deputies. It appeared to her that the deputies were working 

at Ross’ direction throughout the house. One of the pots found in the kitchen had some residue 

dried up in it, and Ross commented that it might have been used for making drugs.

Based on the evidence in the bedroom, Francis concluded that the baby was not there, and

Ross agreed with that conclusion. Francis felt like they were wasting time searching the rest of 

the house. A short time later, they went outside and talked with the deputies. They then contacted 

Stillwagoner to go with them to another residence to look for the child. Since she did not believe 

Ross was following the Department’s policies, Francis reported the search of the kitchen to Ross’ 

supervisor, Natalie Reynolds, as soon as they left the first residence, and later she reported the 

search to her own supervisor, Rochell Bryant.

Francis testified that they eventually located Hunt and the baby at the third residence they 

visited. The baby was very small, but there was nothing troubling about it at first glance. However, 

when they changed its diapers, they found that the umbilical cord had been tied with a shoestring. 

Francis began making telephone calls to get the baby seen by a medical professional, but Ross was 

making telephone calls to get a hair-follicle drug test approved for the baby. Ross told her that she 

wanted to make sure the baby was taken for the drug screening before being seen by a doctor. 

 

4A special investigator receives the same Department training as an investigator, but is also either a current or former 

police officer. 
7

On cross-examination, Francis testified that Ross was hired one month before her in 2008. 

She said that the residence where the incident took place was off of a county road. She agreed that 

the situation involving the newborn was an extraordinary case and that there was a sense of urgency 

to find the baby. She confirmed that she did not know who opened the drawers in the kitchen, just 

that she remembered Ross directing the deputies where to look. She testified that she did not have 

a problem with them initially looking around, just when they started looking into everything. She 

also acknowledged that the photographs of the mattress and box springs showed a lot of blood and 

bodily fluids. She denied that she and Ross had discussed that the baby may have died and stated

that they had only discussed that the baby had been born there. 

Francis said it never crossed her mind that the baby may have died there. She also testified 

that Ross discussed that drugs were being made in the house and looking into other areas to find 

evidence that drugs were being made in the house. Francis believed that Ross was concerned with 

gathering information about drug use. She also acknowledged that there was methamphetamine 

in the baby’s system. 

2. Sandra Balderas

Sandra Balderas, the training academy manager for Region 3 of the Department, also 

testified. According to Balderas all new investigators go through seven weeks’ training in the 

Department’s CORE classes, then specialized training comprised of three weeks of classroom 

training and two weeks in the field. The training incorporates instruction on the Fourth 

Amendment, civil rights, and search and seizure in several different ways. All new hires take a 

computer-based training course entitled “Fourth Amendment Training.” In addition, one of the 
8

CORE classes is focused solely on the Fourth Amendment and is taught by a Department attorney.

The legal aspects of the job are incorporated into every part of the training. 

Balderas also testified that, according to her transcript, Ross had completed (1) the Basic

Skills Development for CORE, which includes Fourth Amendment training, (2) the computerbased training “CPS and the Fourth Amendment, Respecting the Rights of Families,” and (3) the 

“Basic Skills Development for CPS Investigators,” which includes Fourth Amendment topics. She 

also testified that Ross took the course “CPS and the Fourth Amendment, Respecting the Rights 

of Families” a second time on November 4, 2008. Some of the Department attorney’s course 

materials used at the time Ross went through training were also admitted into evidence. Balderas 

testified that the attorney-led presentation was standardized throughout the state. 

Balderas acknowledged that among the training materials was one projector slide reading,

“If we are going to perform a search or seizure we need: consent; a court order; or exigent 

circumstance,” followed by additional projector slides applying those concepts. She also testified 

that to make sure the trainees understand that concept, the academy utilizes simulations and roleplaying throughout the training. If someone has a problem understanding the training materials, 

that individual’s supervisor is notified so the issue can be addressed during field training. 

On cross-examination, Balderas explained that exigent circumstances are emergencies 

allowing the Department to take immediate action if a child could be hurt or injured in order to 

prevent further injury. She also testified that the order in aid of investigation in this case allowed

access to the child at the residence, but if no child was present, she would not have done anything 

else. Balderas was unsure of whether the investigator training went into the details of an order in 
9

aid of investigation. She acknowledged that, if an investigator had a court order, she could enter 

a house as long as entry complied with the order. She also acknowledged that, neither consent nor 

a court order is needed if there are exigent circumstances, but in that situation, the decision to enter 

the house would have to be made by the investigator and her supervisor. 

After reading the petition and Ross’ affidavit, Balderas did not agree that it was an 

extraordinary case. She testified that investigators are trained not to go into a house that is a 

possible “meth” house, as the affidavit indicated was the case with this house. She agreed that 

there was quite a bit of blood on the mattress and that that might lead an investigator to think 

something bad could have happened to the baby. Nevertheless, Balderas said that a Department 

investigator who entered the house and saw the blood on the mattress should not have searched

the house since the child was not there. She also acknowledged that there is a difference between 

a search conducted by deputy sheriff and one conducted by a Department investigator and stated 

that it is not a Department investigator’s job to tell a deputy what to do. 

3. Kenny Stillwagoner

Stillwagoner, a former special investigator for the Department, testified that he worked in 

the same office as Ross. Before this incident, he had engaged in discussions with Ross regarding 

his assisting her in searching residences for narcotics. He related one incident involving a mobile 

home in which Ross had information that the people kept drugs in a crock pot above the kitchen 

cabinets. Ross wanted Stillwagoner to search the mobile home and, specifically, the area above 

the kitchen cabinets, but he refused, telling her that was not within the scope of their respective 

jobs. Her response was to tell him to “just do it.” His refusal to do so became a source of tension 
10

between them, and Ross quit asking him because she knew he would not do it. On crossexamination, he testified that these discussions took place within two years of the subject incident 

and that Stillwagoner got the impression on a number of occasions that Ross was all about violating 

people’s civil rights. 

4. Leslie Hunt

Hunt testified that she married Vargas in February 2011 and that she got pregnant shortly 

thereafter. She admitted to ingesting marihuana and alcohol during the pregnancy. She lived with 

Vargas at the Highway 69 house off and on for about a year and a half, and she gave birth in the 

house by herself. At the time, she was concerned that the Department would come looking for her 

and the baby. 

Hunt testified that a few days after the birth, she was at a restaurant with Vargas and the 

baby and that Vargas received a telephone call informing him that the Department was looking for 

her and the baby. Vargas insisted that they try to go to Mexico and said that they could not stay at 

the house. She agreed with him at first, but she did not really want to do that. They returned to 

the house briefly, went to a hotel for two nights, and then went to a rental house. 

Hunt said that she still had belongings at the Highway 69 house, such as a calendar, a 

journal, clothes, furniture, appliances, and food. She thought Vargas’ brother owned the house, 

but she was not certain. She considered the highway 69 house to be the place she lived at the time 

the baby was born, although she left several days later. 

Hunt denied that she gave anybody from the Department permission to search through the 

cabinets and drawers in the kitchen before she left the house. Hunt admitted that she and Vargas 
11

consumed drugs at the Highway 69 house, but denied that methamphetamine was manufactured at 

the house. She stated that she did not know if Vargas dealt drugs. 

On cross-examination, Hunt testified that it was Vargas’ intent that, when they picked up 

their belongings, they would not return to the Highway 69 house. She played along, but confessed 

that she did not like the idea and that she snuck back when he was at work. She did not know what 

her intentions were because she did not want to go to Mexico and did not want to run. She 

acknowledged that she was not living at the house on December 16, 2011, and that she did not 

have a lease on the house. She also acknowledged that when they retrieved their belongings, 

Vargas was adamant about getting in and out of the house quickly because the Department might

be coming. 

Hunt admitted her main concern was that she did not want the Department to find that there 

was a lot of blood on the mattress, and she testified that Vargas turned the mattress over. She also 

agreed that there was blood and bodily fluids that sprayed onto the wall during the birth and that 

it looked like somebody had tried to kill somebody. Hunt had no idea that the Department had 

gone into the house and looked through it until she was subpoenaed for trial. She not only had no 

idea it would be illegal for the Department to do so, actually she thought the Department could 

legally do so. She also stated that, when she was arrested, she said to herself that she hoped she 

never had to return to the house. 

5. Rochell Bryant

Rochell Bryant has been an investigative supervisor with the Department’s Hunt County 

office since 2009. Bryant testified that she was Francis’ supervisor and that Natalie Reynolds 
12

supervised Ross. She was aware that Francis was helping Ross with an investigation involving a 

baby born at home in late 2011. Bryant estimated that the Department obtained orders in aid of 

investigation one or two times a month in Hunt County. She also knew that Ross had an order in 

aid of investigation for the case she was investigating. 

Bryant also confirmed that Francis contacted her to express concern about some of the 

things that happened inside the house. As a result of Francis’ comments, she contacted her 

program director, Laura Ard, but did not talk with Reynolds about it. Bryant explained that each 

new hire receives computer-based training on Fourth Amendment and search and seizure issues 

within thirty days, and again every twenty-four months thereafter. Based on her training, it is 

never proper to search through kitchen cabinets and drawers, but if there are case-specific 

allegations involving child safety, an investigator can ask a client to show them. 

Bryant further testified that she has never heard of any other situation in which an 

investigator entered a home looking for a child when nobody was at home. She said that if nobody 

is at home, an investigator should not enter, but should check back later. She also testified that an 

order in aid of investigation does not allow an investigator to search for drugs and other 

contraband. If part of a referral suggests that there may be drugs in a home, it is not the 

investigator’s responsibility to search for drugs when nobody is at home, even if the residence 

appears to be temporarily abandoned. 

According to Bryant, the Hunt County office received training by a member of the district 

attorney’s office in September 2012 to increase their knowledge of the Fourth Amendment. She 

believed that that training was either necessitated by or intended for Ross and Reynolds. On cross-
13

examination, Bryant testified that, until 2012, there was no Department training for investigators 

dealing with a situation in which a house is empty. She confirmed that she felt that the training by 

the district attorney’s office resulted from some of the incidents that had taken place. 

Bryant went on to say that she had personally entered a residence pursuant to a court order. 

She agreed that, in this case, there was a report of a baby born without medical care, that drugs

were involved, that Hunt had a history with the Department, and that nobody knew if the baby was 

still alive. Yet, based on her training and under those facts, if nobody was home, she would have 

waited until somebody came home because she had no authority to enter the house when nobody 

was home. Bryant concluded that, even if she had the order in aid of investigation that Ross had 

obtained, she would not have entered the house when nobody was home. 

Bryant also testified that she does not know if it was against the law for law enforcement 

to kick in the door and enter the house. She thought that the order’s language—“by any means 

necessary”—empowered law enforcement and the Department to do whatever they thought was 

reasonable under the circumstances to make sure the child was safe. She agreed that the bloody 

mattress and wall could reasonably lead to the belief that the child was dead, but even if she thought 

that, she would not have gone through drawers or a crock pot. Based on the training Ross received, 

Bryant believed Ross would have known exactly what to do in that situation, which was to not go 

in the house and to contact her direct supervisor. Bryant did not know if Ross called her supervisor. 

6. Teri Jones

Teri Jones was an investigator with the Department in Greenville from 2010 to 2013. She 

related an incident in 2010 during her training when she and Ross were conducting an investigation 
14

together and Ross began looking in some kitchen drawers and cabinets when the client temporarily 

left the house. Jones asked Ross if that was what was usually done, and Ross replied, “[I]f we 

have the opportunity and there are drug allegations.” She also testified that Ross had not asked 

for, and the client had not given, permission to perform the search. When she returned to the 

office, Jones asked her supervisor, Bryant, if they were supposed to do that, and Bryant said,

“[A]bsolutely not.” On cross-examination, Jones agreed that there was a rift between Bryant’s 

team and Reynolds’ team and that at times Bryant expressed her displeasure with what Reynolds 

and her team were doing. 

II. The Appeal

On appeal, Ross brings eight points of error. Her first five points assert that the evidence

is legally insufficient to support a finding that she intentionally subjected Hunt to a search that she 

knew was unlawful because (1) the search was lawfully conducted pursuant to a court order, (2) the 

search was lawful because of exigent circumstances, (3) if the search was not lawful, she did not 

know it, nor did she intend to conduct an illegal search, (4) the search was lawful because Hunt’s 

rights were not violated, and (5) the only evidence showing Ross committed an unlawful search 

was uncorroborated accomplice-witness testimony. Ross also asserts that she was denied her 

constitutional right to a fair trial when the trial court quashed the subpoenas of the Department’s 

attorney, Holly Peterson, and Hunt County First Assistant District Attorney Keli Aiken. Finally, 

Ross asserts that she received ineffective assistance of counsel because (1) trial counsel failed to 

request a hearing to determine whether she was the victim of selective prosecution and (2) trial 

counsel failed to object to the State’s stipulation of evidence and failed to make a bill of error 
15

regarding the proposed testimony of Peterson and Aiken. 

We affirm the trial court’s judgment because we find (1) that Francis was not an accomplice 

witness, (2) that there is sufficient evidence to support the judgment, and (3) that there has been 

no showing that Ross’ constitutional rights to a fair trial and effective counsel were violated.

III. Francis Was Not an Accomplice Witness

In her fifth point of error, Ross contends that there was insufficient evidence to convict her 

of official oppression because the only evidence was the uncorroborated testimony of an 

accomplice witness, Francis. She points to Francis’ testimony establishing that she entered the 

house of her own volition, that she took photographs in the house, including at Ross’ direction, 

and that she looked through the journal with Ross. Francis also testified that she photographed the 

bloody mattress and wall and that she went into the kitchen area. Ross also points out that Francis 

testified that afterward, she went outside and discussed with Ross what they would do next and 

eventually drove Ross to two other residences until they found the child. Ross argues that that 

evidence shows that Francis assisted Ross before, during, and after the offense, making her an 

accomplice and that there is no other evidence showing Ross was even at the Highway 69 house 

that day. 

A conviction in Texas cannot stand solely on the testimony of an accomplice witness. See 

Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). Rather, Texas law requires that the 

testimony be “corroborated by other evidence tending to connect the defendant with the offense 

committed.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). An accomplice is one who 

participates in the offense before, during, or after its commission with the requisite mental state. 
16

Smith, 332 S.W.3d at 439 (citing Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007)); 

Bulington v. State, 179 S.W.3d 223, 229 (Tex. App.—Texarkana 2005, no pet.). The accomplice 

must have done some affirmative act promoting the commission of the offense. Smith, 332 S.W.3d 

at 439; Bulington, 179 S.W.3d at 229. If the evidence shows a witness could be indicted (or if the 

witness is indicted) for the same offense, or a lesser-included offense, as the accused, then the 

witness is an accomplice as a matter of law. See Smith, 332 S.W.3d at 439. If there is doubt as to 

whether the witness is an accomplice, then the fact-finder makes the determination as a fact issue. 

See id. at 439–40. If the witness knew about the offense, but failed to report it, or helped to conceal 

the offense, she is not an accomplice. Id. (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim.

App. 1987)).

The trial court made no findings of fact regarding whether Francis was an accomplice. 

When the trial court does not file findings of fact, we imply those findings that support its ruling, 

if the implied findings are supported by the record. Flowers v. State, 438 S.W.3d 96, 106 (Tex. 

App.—Texarkana 2014, pet. ref’d) (citing Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim.

App. 2007)). We will uphold its ruling “on appeal if it is correct on any theory of law that finds 

support in the record.” Id. at 107 (quoting Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim.

App. 2006)).

In this case, the record supports an implied finding that Francis was not an accomplice 

because she lacked the required culpable mental state. A person is a party to an offense if “acting 

with intent to promote or assist the commission of the offense, he solicits, encourages, directs, 

aids, or attempts to aid the other person to commit the offense.” TEX. PENAL CODE ANN.
17

§ 7.02(a)(2) (West 2011). This requires a showing that Francis had a “conscious objective or 

desire to engage in the conduct or cause the result.” TEX. PENAL CODE ANN. § 6.03(a) (West 

2011). Therefore, to be an accomplice, Francis must have had a conscious objective or desire to 

promote or assist in the search of the kitchen and its contents. See Meeks v. State, 135 S.W.3d 

104, 110–11 (Tex. App.—Texarkana 2004, pet. ref’d). 

The only evidence in this case shows that, when Ross began her search of the kitchen, 

Francis objected to the search and expressed her objections to Ross. There was no testimony that 

Francis promoted or assisted in the kitchen in any way. In addition, Francis testified that she 

expressed her concerns later that day to both Ross and Ross’ supervisors. Both the State and Ross 

contend that the actions of Ross and Francis taken prior to the search of the kitchen were allowed 

under the order in aid of investigation. Further, the fact that Francis drove Ross to two other 

residences in search of the child in no way shows that Francis promoted or assisted in the search 

of the kitchen and its contents. 

Accordingly, there is no evidence showing that Francis had a conscious objective or desire 

to promote or assist in the search of the kitchen. Therefore, the record supports the trial court’s 

implied finding that Francis was not an accomplice. Since she was not an accomplice, no evidence 

corroborating her testimony was required. We overrule Ross’ fifth point of error.
18

IV. Legally Sufficient Evidence Supports the Trial Court’s Judgment

A. Standard of Review

Legal sufficiency of the evidence5is measured by the elements of the offense as defined 

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997). The hypothetically correct jury 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.” Id. 

Under the indictment and the statute, to convict Ross of official oppression, the State was 

required to prove beyond a reasonable doubt that, on or about December 16, 2011, (1) Ross, 

(2) while acting under color of her employment as an investigator for the Department, (3) 

intentionally (4) subjected Hunt (5) to a search and/or seizure (6) that Ross knew was unlawful. 

See TEX. PENAL CODE ANN. § 39.03(a)(1). As part of its case, the State was also required to show 

that the conduct of Ross was, in fact, unlawful. State v. Edmond, 933 S.W.2d 120, 127 (Tex. Crim. 

App. 1996). Ross challenges the legal sufficiency of the evidence showing that any search was 

unlawful, that she intended to conduct a search she knew was unlawful, and that Hunt had a 

reasonable expectation of privacy that was violated by the search.

B. Definition of “Unlawful”

Section 39.01 of the Penal Code does not include a definition of “unlawful.” See TEX.

PENAL CODE ANN. § 39.01 (West 2011). However, Section 1.07 of the Penal Code defines 

“unlawful” as used in the Code to mean “criminal or tortious or both and includes what would be 
19

criminal or tortious but for a defense not amounting to justification or privilege.” TEX. PENAL 

CODE ANN. § 1.07(a)(48) (West Supp. 2016). The Court of Criminal Appeals and our sister courts 

have consistently applied this general definition of unlawful to Section 39.03 of the Penal Code. 

See Edmond, 933 S.W.2d at 127; Diaz v. State, No. 09-13-00104-CR, 2014 WL 6983626, at *5 

(Tex. App.—Beaumont Dec. 10, 2014, pet. ref’d) (mem. op., not designated for publication);

6

Ryser v. State, 453 S.W.3d 17, 26 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Palacios v. 

State, No. 13-11-00254-CR, 2014 WL 3778170, at *1 (Tex. App.—Corpus Christi July 31, 2014, 

 

5

In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to 

determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. 

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 

319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal 

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., 

concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving 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) (citing 

Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Further, in a bench 

trial, the trial court “is the exclusive judge of the credibility of the witnesses and the weight to be given to their 

testimony.” Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). We give “almost complete deference to 

[the fact-finder’s] decision when that decision is based on an evaluation of credibility.” Thomas, 444 S.W.3d 4, 11

(Tex. Crim. App. 2014) (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)). 

In our review, we consider “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.” Hooper, 

214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). It is not required that 

each fact “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.” Id. Circumstantial evidence and direct evidence 

are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence 

alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. 

State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).

6Although unpublished cases have no precedential value, we may take guidance from them “as an aid in developing 

reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
20

no pet.); Murrah v. State, No. 02-10-00052-CR, 2011 WL 856960, at *4 (Tex. App.—Fort Worth 

Mar. 10, 2011, no pet.) (mem. op., not designated for publication).

Nevertheless, the State asserts that we should ignore the definition found in the Penal Code, 

and instead define “unlawful” as “not authorized by law.” The State cites no cases that have used 

its proposed definition. Rather, it argues that certain statements included in the State Bar 

Committee comments to its proposed 1970 draft of the Penal Code indicate that the drafters did 

not intend to require a public servant to commit a separate crime or tort. 

The State points to other evidence that it says shows that the Legislature did not intend for 

the general definition of unlawful contained in Section 1.07(a)(48) to apply to official oppression. 

This evidence includes the lack of a cross-reference to the definition in Section 1.07 in the original 

draft of Section 39.03, comments in the Model Penal Code relating to official oppression, and 

some ambiguous comments contained in the committee minutes from 1968. The State argues that 

there would be practical problems in a jury trial if the Code’s definition were used, i.e., having to 

prove up a separate crime or tort. Although the State recognizes that the courts of appeals in 

Palacios and Ryser used the statutory definition, it argues that the issue may not have been briefed. 

“When we interpret statutes[,] . . . we seek to effectuate the ‘collective’ intent or purpose 

of the legislators who enacted the legislation.” Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. 

Crim. App. 2010) (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). In 

determining legislative intent, “we necessarily focus our attention on the literal text of the statute 

in question and attempt to discern the fair, objective meaning of that text at the time of its 

enactment.” Id. (quoting Boykin, 818 S.W.2d at 785). “If the meaning of the statutory text . . . 
21

should have been plain to the legislators who voted on it, we ordinarily give effect to that plain 

meaning.” Id. at 638 (quoting Boykin, 818 S.W.2d at 785). 

Also, if a statute specifically defines a term, “we are bound by the statutory usage.” TGSNOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (citing Tex. Dep’t of Transp. 

v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)); see also TEX. GOV’T. CODE ANN. § 311.011(b) 

(West 2013); Mahaffey, 316 S.W.3d at 638–39. Therefore, we follow the plain meaning of the 

text of the statute, unless following the plain language would lead to absurd results or the language 

of the statute is ambiguous. Mahaffey, 316 S.W.3d at 638. In those instances, we may consider 

extra-textual factors such as legislative history. Id.

As noted earlier, the Legislature has provided a specific definition of “unlawful” in the 

Penal Code. See TEX. PENAL CODE ANN. § 1.07(a)(48). Section 1.07 provides that its definitions 

apply throughout the Penal Code. TEX. PENAL CODE ANN. § 1.07(a) (West Supp. 2016). Further, 

although Chapter 39 contains certain definitions specifically applicable to that chapter, it does not 

include a definition of unlawful. TEX. PENAL CODE ANN. § 39.01. When the Legislature omits 

words from a statute, we presume it did so purposefully. See Jones v. State, 979 S.W.2d 652, 657 

(Tex. Crim. App. 1998); Fahrni v. State, 473 S.W.3d 486, 493 (Tex. App.—Texarkana 2015, pet. 

ref’d). Thus, under the plain, unambiguous language of the Penal Code, the definition of unlawful 

in Section 1.07(a)(48) is applicable to Section 39.03(a).7 Further, applying the definition of 

 

7This conclusion is confirmed when the original enactment of Chapter 39 and its subsequent amendment are examined. 

Both the definition of “unlawful” in Section 1.07 and Section 39.03 (formerly Section 39.02) were enacted in the same 

legislative session in 1973. See Act of June 14, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 888, 

953 (amended 1975, 1977, 1979, 1987, 1989, 1991, 1993, 2003, 2009, 2013) (current version at TEX. PENAL CODE §§

1.07(a)(48), 39.03(a)(1)). There was nothing in Chapter 39 or Section 39.03 (formerly Section 39.02) when originally 

enacted to indicate the Legislature intended a different meaning of “unlawful” for the purposes of Chapter 39 generally 
22

unlawful found in Section 1.07(a)(48) will not lead to an absurd result in this case, nor has it lead 

to absurd results in other cases where it has been applied. See Edmond, 933 S.W.2d at 127; Diaz,

2014 WL 6983626, at *5; Ryser, 453 S.W.3d at 26; Palacios, 2014 WL 3778170, at *1; Murrah, 

2011 WL 856960, at *4. Therefore, we find that the statutory definition of unlawful found in 

Section 1.07(a)(48) is applicable in this case.

As previously noted, the Penal Code defines “unlawful” to mean “criminal or tortious or 

both and includes what would be criminal or tortious but for a defense not amounting to 

justification or privilege.” TEX. PENAL CODE ANN. § 1.07(a)(48). Therefore, there must be 

sufficient evidence that the search and/or seizure of Hunt’s property was criminal or tortious, that 

Ross knew it was criminal or tortious, and that her defense was inadequate to establish a 

justification or privilege. See Ryser, 453 S.W.3d at 26 (citing Norris v. Branham, 557 S.W.2d 816, 

818 (Tex. App.—El Paso 1977, writ ref’d n.r.e.)); Palacios, 2014 WL 3778170 at *3. The Corpus 

Christi Court of Appeals has concluded that under this definition a defendant “is not guilty [of 

official oppression] . . . . if a justification or privilege existed for her acts.” Palacios, 2014 WL 

3778170, at *3 (citing TEX. PENAL CODE ANN. § 1.07(a)(48)). A party is justified when she 

“reasonably believes the conduct is required or authorized by law [or] by the judgment or order of 

a competent court.” TEX. PENAL CODE ANN. § 9.21(a) (West 2011); Palacios, 2014 WL 3778170,

 

or of Section 39.03 specifically. This indicates that the Legislature intended to apply the general definition of 

“unlawful” found in Section 1.07(a)(48) to Section 39.03. Further, even though at least one court of appeals had 

applied the definition of unlawful in Section 1.07(a)(48) to the official oppression statute as early as 1983, see Zuniga 

v. State, 664 S.W.2d 366, 371 (Tex. App.—Corpus Christi 1983, no pet.), when Chapter 39 was amended in 1993 to 

add definitions specifically applicable to that chapter, the Legislature did not include a definition of “unlawful,” see 

Act of June 19, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3673 (current version at TEX. PENAL 

CODE § 39.01).
23

at *3. A “reasonable belief” is defined as “a belief that would be held by an ordinary and prudent 

man in the same circumstances as the actor.”

C. Sufficient Evidence Shows the Search was Unlawful

In her first and second points of error, Ross argues that there is insufficient evidence to 

support a finding that the search was unlawful because (1) she was acting under the authority of a 

lawful court order and (2) exigent circumstances justified her search of the kitchen and its contents. 

Ross concedes that the Fourth Amendment’s guarantee of a person’s right to be free from 

warrantless searches by the government applies to a social worker’s investigations.8 She also does 

not contest that there was no search warrant issued in this case, but argues that the order in aid of 

investigation is the functional equivalent of a search warrant, citing Pederson v. Klamath Cty., No. 

1:12-CV-725-CL, 2014 WL 5018799, at *4 (D. Or. Oct. 1, 2014, order); Wernecke v. Garcia, 591 

F.3d 386, 395 (5th Cir. 2009); Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000); Tenenbaum 

v. Williams, 193 F.3d 581, 603 (2d Cir. 1999); J.B. v. Washington Cty., 127 F.3d 919, 930 (10th 

Cir. 1997).9 

 

8See Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 419–20 (5th Cir. 2008) (citing Roe v. Tex. 

Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 401 (5th Cir. 2002)).

9Pederson and Wernecke involved emergency orders granting temporary custody to a child protective agency. 

Pederson, 2014 WL 5018799, at *1; Wernecke, 591 F.3d 386 at 388. McIntyre involved a temporary withholding of 

a newborn by a private hospital. McIntyre, 235 F.3d at 751. J.B. involved an order allowing the child protective 

agency to temporarily remove the child from its home to conduct an interview. J.B., 127 F.3d at 922. Tenenbaum

stated in dicta that in the context of a child seizure during an abuse investigation, a court order is the equivalent of a 

warrant. Tenenbaum, 193 F.3d at 603.
24

Ross argues that the scope of the order in aid of investigation allowed her to enter and 

search all of the premises at the Highway 69 house to search for the newborn child. This included 

closets, drawers, cabinets, and the crock pot, where the newborn could be hidden. She also argues 

that, since the order in aid of investigation authorized her to locate and examine the child and the 

premises where the child was found or the abuse or neglect took place, she was authorized to 

search where the child might be hidden, and after discovering the bloody mattress, to search the 

premises where probable cause existed to believe abuse had taken place. 

Alternatively, Ross argues that the search was lawful because of exigent circumstances.10

She recognizes that probable cause must exist to enter the home and that the reasonableness of the 

emergency entry into the home is judged by the circumstances as they existed at the time the 

decision was made to enter.11 Ross argues that when she saw the bloody mattress and the blood 

on the walls, together with her knowledge that a drug-addicted mother had given birth without 

medical assistance, and the allegations that the parents were manufacturing drugs, she reasonably 

believed that the child was in imminent danger, which justified the search of the home. 

The State argues that an order in aid of investigation is not the functional equivalent of a 

search warrant, pointing out that an order in aid of investigation may be obtained on “good 

cause,”

12 whereas a search warrant requires probable cause. It also argues that an order in aid of 

 

10See Gates, 537 F.3d at 420 (“Warrantless searches of a person’s home are presumptively unreasonable unless the 

person consents, or unless probable cause and exigent circumstances justify the search.” (quoting United States v. 

Gomez–Moreno, 479 F.3d 350, 354 (5th Cir. 2007))).

11See id.; Spears v. State, 801 S.W.2d 571, 574 (Tex. App.—Fort Worth 1990, pet. ref’d); Winslow v. State, 742 

S.W.2d 801, 804 (Tex. App.—Corpus Christi 1987, writ ref’d).

12See TEX. FAM. CODE ANN. § 261.303(b).
25

investigation lacks the technical and substantive requirements for obtaining, issuing, and executing 

a search warrant found in the Code of Criminal Procedure.13 In addition, the State points out that 

no case has directly held that an order in aid of investigation is the functional equivalent of a search 

warrant. 

However, the State concedes that the order authorized Ross and Francis to enter the house 

and the bedroom, contending that the only violation of the order was when Ross searched the 

kitchen cabinets, drawers, and pots after determining the baby was not in the residence. The State 

points out that the order did not authorize a search, but only “observation of the premises . . . where 

the [child] was located or the alleged abuse or neglect occurred.” At oral argument, the State 

argued that “observation” should be construed to be the equivalent of “plain view.” 

The State also argues that there were no emergency circumstances that justified a search. 

It argues that any further search after discovering the conditions in the bedroom was not reasonable 

since the only testimony was that Ross and Francis interpreted the blood on the mattress and walls 

as evidence that the baby had been born there, and Ross never expressed an opinion or concern 

that the blood was evidence that the baby may have been killed. 

1. The Order in Aid of Investigation Did Not Authorize Search of the 

Kitchen

Since the State only asserts that the search of the kitchen and its contents was unlawful, we 

need not decide whether the order in aid of investigation satisfied the Fourth Amendment’s 

 

13See, e.g. ̧ TEX. CODE CRIM. PROC. ANN. arts. 18.01, 18.011, 18.02, 18.06, and 18.07 (West 2015 & West Supp. 

2016).
26

requirement for a search warrant. Rather, an examination of the Family Code provisions 

authorizing the issuance of an order in aid of investigation shows that the search of the kitchen 

under the facts of this case was unlawful. 

An order in aid of investigation may be issued to aid the Department in fulfilling its duty 

to investigate reports of child abuse or neglect. See TEX. FAM. CODE ANN. § 261.301–.316 (West 

2014 & West Supp. 2016). This investigation may include a visit to the child’s home and an 

interview and examination of the child. TEX. FAM. CODE ANN. § 261.302(a)(1), (2). The interview 

and examination of the child may “be conducted at any reasonable time and place, including the 

child’s home or the child’s school.” TEX. FAM. CODE ANN. § 261.302(b)(1). If the investigator 

cannot gain access to the child, it may obtain an order in aid of investigation. Section 261.302 

provides:

(b) If admission to the home, school, or any place where the child may be

cannot be obtained, then for good cause shown a court having family law 

jurisdiction shall order the parent, the person responsible for the care of the 

children, or the person in charge of any place where the child may be to allow 

entrance for the interview, examination, and investigation. 

TEX. FAM. CODE ANN. § 261.303(b) (emphasis added). 

The purpose of the order in aid of investigation is to enable the Department’s investigator 

to gain access to the child so it can interview and examine the child in furtherance of its duties to 

verify whether abuse or neglect has occurred.14 Section 261.303(b) seeks to accomplish this 

 

14Thus an order in aid of investigation comes at a different stage and furthers a different purpose than the order for 

temporary conservatorship of a child considered in Wernecke. See Wernecke, 591 F.3d 386 at 393–94 (construing an 

order for temporary conservatorship of a child issued pursuant to TEX. FAM.CODE ANN. § 262.102 (West Supp. 2016)). 

A temporary conservatorship order is issued only after the Department’s investigation has progressed to the point that 

the evidence shows that the child, or another child, has, in fact, been a victim of child abuse or neglect by a person in 

the child’s household and immediate intervention by the Department is necessary for the protection of the child. See
27

purpose by authorizing the court to order the parent or any other person in charge of the place 

where the child is located to allow the investigator to enter and examine the child. At the same 

time, Section 261.303(b) contemplates that the order only authorizes entry into a place where the 

child “may be,” i.e., where the child is located.

The order of investigation in this case provided that the Department was 

authorized to enter the residence at 2321 Hwy 69 S, Greenville, TX, [and seven 

other addresses] where UNKNOWN CHILD is located, for an interview with 

and/or examination of UNKNOWN CHILD, and observation of the premises or 

immediate surroundings where UNKNOWN CHILD is located or where the 

alleged abuse or neglect occurred in a manner consistent with the provisions of § 

261.302, Texas Family Code.

(Emphasis added). Although the order listed eight separate addresses where the child might be 

located, it only authorized entry into the residence where the unknown child was located. Thus, 

the entry into the residence authorized under the order is consistent with Section 261.303(b). After 

the child is located in the residence, the order states what the Department may do: it may interview 

and examine the child, and it may “observ[e] . . . the premises or immediate surroundings where 

the [child] is located or where the alleged abuse or neglect occurred.”15 These actions, like the 

entry authorized under the order, are dependent on the child being located in the residence.

In this case, both Ross and the State maintain that the initial entry into the residence and 

the actions taken in the bedroom were necessary to verify that the child was not located in the 

 

TEX. FAM. CODE ANN. § 262.102(a)–(c) (West Supp. 2016). Further, a temporary conservatorship order may only be 

issued after the issuing court hears evidence and finds that child abuse or neglect has occurred and the child is in need 

of protection from a family member or a member of her household. TEX. FAM. CODE ANN. § 262.102(c). 

15These actions are also consistent with Section 261.303(b), which allows “entrance for the interview, examination 

and investigation.” TEX. FAM. CODE ANN. § 261.303(b). One of the investigatory duties of the Department is to 

determine “the adequacy of the home environment.” TEX. FAM. CODE ANN. § 261.301(e)(5) (West Supp. 2016).
28

residence. Assuming, without deciding, that those actions were authorized under Section 

261.303(b) and the order,16 we find that the subsequent search of the kitchen and its contents was 

not authorized under the order or the statute. Francis testified that, based on what they saw in the 

bedroom, she and Ross concluded that the child had been there at one time, but that she was no 

longer there. 

Further, Francis testified that she questioned the search of the kitchen, stating that the child 

was not there. She also testified that Ross told her she wanted to search other areas for evidence 

that the parents had been making drugs. That testimony was not contradicted. Therefore, we find 

that there was sufficient evidence for the trial court to find that the search of the kitchen and its 

contents occurred after Ross determined that the child was not located in the residence. Since that

search occurred after it was determined that the child was not present in the residence, it was not 

authorized under the order or the statute and was, therefore, unlawful, unless an emergency 

justified the search.

 

16The Department’s Petition for Orders in Aid of Investigation alleged, “The child . . . is believed to be residing with

the mother and father. . . .” In her supporting affidavit, Ross testified that, after receiving the initial report of abuse 

and neglect, she went to the residence named in the report. She further testified that she spoke to a Hispanic female 

and a white male at the residence, that those individuals told her the parents had left the residence shortly before her 

arrival, and that “they believed the child was with them.” Thus, all of the information provided to the court issuing 

the order in aid of investigation indicated that the child was with the parents.

The purpose for an order in aid of investigation is to examine and/or interview a child alleged to be at risk of 

abuse or neglect. In the absence of any information indicating that the child was present at the residence 

notwithstanding the absence of the parents, it is questionable whether any entry of the home by Ross was permitted 

once the deputies determined the parents were not present. Nevertheless, the State does not challenge Ross’ initial 

entry or any search of the residence prior to the search of the kitchen. Since the question is not before us, we need not 

consider whether an order issued pursuant to Section 261.303(b) would have authorized Ross to enter the dwelling in 

the absence of information indicating that the child was, in fact, present.
29

2. No Emergency Justified the Search of the Kitchen

Under the Fourth Amendment, “[w]arrantless searches of a person’s home are 

presumptively unreasonable unless the person consents, or unless probable cause and exigent 

circumstances justify the search.” Gates, 537 F.3d at 420 (quoting United States v. Gomez–

Moreno, 479 F.3d 350, 354 (5th Cir. 2007)). While the exigent circumstances doctrine applies to 

the police in their crime-fighting role, the emergency doctrine applies when a state actor is acting 

to “protect or preserve life or avoid serious injury.” Laney v. State, 117 S.W.3d 854, 861 (Tex. 

Crim. App. 2003) (citing Mincey v. Arizona, 437 U.S. 385, 392 (1978)). Under the emergency 

doctrine, “[a] warrantless search may be justified by a need to act immediately to protect or 

preserve life or to prevent serious injury.” Bray v. State, 597 S.W.2d 763, 764 (Tex. Crim. App. 

1980). 

Courts use an objective standard to assess whether a search is justified under the emergency 

doctrine. Laney, 117 S.W.3d at 862. This standard looks at the state actor’s conduct, taking into 

account the facts and circumstances known at the time of the search. Id. We also “look to ensure 

that the warrantless search is ‘strictly circumscribed by the exigencies which justify its initiation.” 

Id. (quoting Mincey, 437 U.S. at 393)). We recognize that “emergencies are inherently 

temporary,” and when they come to an end, a further search is unjustified. Bray, 597 S.W.2d at 

764.

The information available to Ross prior to entry, based on the affidavit attached to the 

petition, was that the child had been born at home several days earlier without medical attention, 

that the mother of the child had reportedly used drugs and alcohol during the pregnancy, and that 
30

the mother previously had another child removed because of drug use. The affidavit also shows 

that the parents were suspected of manufacturing drugs in the house and that, two days before, a 

couple had confirmed that the parents and the child were staying at the house. Although Ross 

argues that she knew that the child was in imminent danger, she took the time to investigate, draft 

the affidavit, and wait for the order in aid of investigation before proceeding. Therefore, it appears 

that Ross did not have a reasonable belief before entering the residence that she needed to act 

immediately in order to protect or preserve the life of the child or to prevent injury. 

The only additional factors that Ross cites to justify the search of the kitchen are the 

photographs of the bed with the blood and bodily fluid stains and Hunt’s testimony that there was 

so much blood that it looked like someone had been killed. However, Francis testified that Ross 

found a calendar that indicated that the baby had been born at the home and that, based on what 

they found in the bedroom, they concluded that the baby had been born there and that it was 

probably someplace else. Also, Francis testified that they never discussed the possibility that the 

baby had died, but only discussed its birth. There is no evidence contradicting Francis’ testimony.

All of this evidence would reasonably tend to confirm the information Ross set forth in her 

affidavit that the baby was born at home. Considering all of the circumstances and the facts known 

to the investigators at the time of the search of the kitchen, it would not be objectively reasonable 

to conclude that the blood and bodily fluid stains on the mattress were evidence that the baby had 

been killed or injured, as Ross contends.17 Therefore, the evidence does not show that a 

 

17Although Ross contends on appeal that she believed the baby may have been injured or killed based on the stains 

on the mattress, there was no testimony at trial supporting that contention.
31

warrantless search was justified by a need to protect or preserve life or to avoid serious injury. 

Since the search occurred after it was determined that the child was not in the residence, it

was not authorized under the order in aid of investigation, and since the evidence shows that the 

search was not justified under the emergency doctrine, we find that there was sufficient evidence 

to support the trial court’s finding that the search was unlawful. We overrule Ross’ first and second 

points of error.

D. Sufficient Evidence Shows Ross Intended to Conduct a Search She Knew was 

Unlawful

In her third point of error, Ross contends that there is insufficient evidence that she intended 

to conduct a search she knew was unlawful. She points out that part of the State’s burden is to 

establish beyond a reasonable doubt that she knew that the search was unlawful, i.e., that it was 

criminal, tortious, or both. In addition, she contends that she cannot be guilty of official oppression 

if a justification or privilege exists for her conduct. She argues that, based on her training, she 

reasonably believed that the order in aid of investigation authorized her entry into the home and 

that the blood on the mattress and walls constituted exigent circumstances that justified

continuation of her search. This, she reasons, shows she only intended to conduct a lawful search.

She further contends that the evidence of the training she received on the Fourth 

Amendment shows that she was taught that she could conduct a search if she had consent, a court 

order, or exigent circumstances, but without further elucidation of what those entailed. She argues 

that subjective testimony of what others would have done based on the same training revealed 

contradictory answers, so that there was no clear answer for what she should have done under the 

circumstances. Thus, she concludes, the evidence shows that she could not have known, based on 
32

her training, what course of action would be considered lawful and, therefore, she did not have a 

“fair and clear warning” that her conduct was unlawful. 

It was not sufficient for the State to merely show that the search was unlawful. In addition, 

the State had the burden of proving beyond a reasonable doubt that Ross knew her acts were 

criminal, tortious, or both. Palacios, 2014 WL 3778170, at *3–4. It also had the burden of 

persuasion to show that Ross’ conduct was not justified or privileged. See Zuliani v. State, 97 

S.W.3d 589, 595 (Tex. Crim. App. 2003); Lee v. State, 415 S.W.3d 915, 919 (Tex. App.—

Texarkana 2013, pet. ref’d). If Ross reasonably believed that her conduct was required or 

authorized by law, or by a judgment or order of a competent court, her actions were justified. See 

Palacios, 2014 WL 3778170, at *4; TEX. PENAL CODE ANN. § 9.21(a). A reasonable belief is one 

“that would be held by an ordinary and prudent man in the same circumstances as the actor.” TEX.

PENAL CODE ANN. § 1.07(a)(42).18 

Circumstantial evidence and direct evidence are equally probative in establishing the guilt 

of a defendant, and guilt can be established by circumstantial evidence alone. Ramsey, 473 S.W.3d 

at 809; Hooper, 214 S.W.3d at 13 (citing Guevara, 152 S.W.3d at 49). Therefore, both intent and 

knowledge may be inferred “from any facts which tend to prove [their] existence, including the

acts, words, and conduct of the accused.” Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 

2002) (quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)).

 

18Ross did not testify or call any witnesses. We assume that her cross-examination of the State’s witnesses in this 

case was sufficient to raise the justification defense without deciding that issue.
33

Initially, we determine whether there is sufficient evidence to support a finding that Ross 

knew that the order in aid of investigation did not authorize the search of the kitchen and its 

contents, or that she could not have reasonably believed that the order authorized that search. The

State points to the training Ross received to show that she knew the search of the kitchen was 

unlawful. The only evidence of that training was the testimony of Balderas and the training 

materials from the presentation on the Fourth Amendment by the Department’s attorney. 

Twenty-one training slides were entered into evidence at trial dealing with a search of a 

home as it relates to the Fourth Amendment. The slides warn that, “[i]f a CPS worker violates the 

4th amendment, qualified immunity may not apply, and a caseworker can be exposed to personal 

liability.” The text of the Fourth Amendment is set forth, then the slides state that the Fourth 

Amendment comes into play “[w]hen CPS performs a search (entering a home or inspecting 

another place where a person has a reasonable expectation of privacy).” 

The presentation gave two examples of a search: entering and remaining in a family’s 

home, and visually examining a child. The slides then set forth the standard and the one message 

to take away from the training: 

If we are going to perform a search . . . ., we need:

• Consent

• A court order, or

• Exigent circumstances . . . .

In addressing specific applications, the slides advised that to enter a family’s home, the Fourth 

Amendment requires either consent (agreement) for entry, a court order, or exigent (emergency) 
34

circumstances. The presentation included five slides dealing with issues surrounding consent. The 

last slide on consent advised the trainee that if there is a question about consent, she should not 

rely on consent to enter the home. It goes on to admonish the trainee, 

But you should still protect the children so

 Seek a court order specifically allowing entry, or

 Determine whether exigent circumstances exist

The slides further advised the trainee that, if the parent denies entry to the home or an 

interview with the children, then she is to determine if she needs a court order allowing entry and 

an interview of the children or whether there are exigent circumstances. The slides also stated

that, if CPS can show good cause, a court can issue an order in aid of investigation to enter the 

home and/or interview the child. The slides informed the trainee that exigent circumstances exist 

to enter the home if, based on the totality of the circumstances, there is reasonable cause to believe 

that there is an immediate danger to a child in the home, and the purpose of the entry is to protect 

the child. 

No one testified regarding any additional specifics which may have been addressed by the 

attorney making the presentation. However, the training slides did inform the trainee that a search 

includes entering the home and inspecting any place where a person has a reasonable expectation 

of privacy. They also warn the trainee that she can be subjected to personal liability if she violates 

a person’s Fourth Amendment rights. The slides also addressed two aspects of a search under the 

Fourth Amendment: (1) entering and remaining in a family’s home and (2) examining or 

interviewing a child. If the investigator is denied access to either the home or the child, the slides 
35

advised her to obtain a court order allowing entry into the home and an interview of the child. 

However, nowhere did the slides suggest that an order may be obtained that allows a search of the 

home.

Balderas testified that the order allowed Ross to enter the residence to locate the child. 

However, Bryant testified that an order in aid of investigation does not authorize entry into a 

residence when nobody is home. Although Ross emphasizes what she sees as the inconsistency 

between Balderas’ and Bryant’s testimony regarding entry into the home, neither they nor Francis 

testified that the search of the kitchen and its contents was authorized by the order. To the contrary, 

all of them testified, based on having received the same training as Ross, that the search of the 

kitchen and its contents was not authorized by the order. We have previously discussed the fact 

that any observation of the premises authorized by the order was dependent on the child being 

located at the residence. The testimony of Balderas, Bryant, and Francis exhibits a similar 

understanding of the order. 

Further, Francis testified that Ross discussed with her that the purpose of the search was to 

find evidence that drugs were being manufactured in the house. When Francis objected that they 

should be looking for the child, Ross compared her to Stillwagoner, who had previously refused 

to search for drugs at Ross’ request, and had told Ross that searching for drugs was not part of 

their job duties. 

We have previously addressed the issue of whether Ross could have reasonably believed 

that emergency circumstances existed justifying the search and concluded that she could not. 

However, Ross also contends that the inadequacy of her training and the inability of Balderas to 
36

define exigent circumstances shows that she could not have known that the search of the kitchen 

was unlawful. First, we note that although Balderas could not offer a definition of exigent 

circumstances, she gave two examples of situations in which a child’s life or safety were in 

imminent peril that would justify immediate action by an investigator. Those examples 

demonstrated that she understood, based on her training, the emergency doctrine. 

In addition, the training slides clearly set forth the parameters of exigent circumstances that 

would justify immediate action by an investigator, namely, when, based on the totality of the 

circumstances, there is reasonable cause to believe that there is an immediate danger to a child in 

the home and the purpose of the entry is to protect the child. As we have seen, based on the totality 

of the circumstances and facts known to Ross at the time, no reasonable cause existed to believe 

either that the child was in immediate danger, or that the baby was in the home. Further, the only 

testimony was that the purpose of Ross’ search of the kitchen and its contents was to search for 

evidence of drugs, not to protect the baby.19

 

19Ross also argues that the evidence shows that she did not have a “clear and fair warning” that her conduct was 

unlawful, citing United States v. Lanier, 520 U.S. 259 (1997). The concept of a defendant having a fair warning that 

her conduct is unlawful is based on due process and founded on the principle that no person should “be held criminally 

liable for conduct which he could not reasonably understand to be proscribed.” Id. at 265 (quoting Bouie v. City of 

Columbia, 378 U.S. 347, 351 (1964)). Under a federal statute analogous to Section 39.03, the United States Supreme 

Court has held that criminal liability may be imposed under the statute “for deprivation of a constitutional right if, but 

only if, ‘in the light of pre-existing law the unlawfulness [under the Constitution is] apparent.’” Id. at 271–72 (quoting 

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In this case, the unlawfulness of a warrantless search by a 

Department investigator, absent consent or exigent circumstances with probable cause was apparent under existing 

law. See Gates, 537 F.3d at 420 (“Warrantless searches of a person’s home are presumptively unreasonable unless 

the person consents, or unless probable cause and exigent circumstances justify the search.” (quoting United States v. 

Gomez–Moreno, 479 F.3d 350, 354 (5th Cir. 2007))). Also, as we have seen, the parameters of a search justified by 

the emergency doctrine have been established under pre-existing law. See, e.g., Laney, 117 S.W.3d at 861–62. 

Further, as previously discussed, the statute authorizing the issuance of an order in aid of investigation clearly only 

allows the Department to enter a place where the child may be. See TEX. FAM. CODE ANN. § 261.303(b). The 

testimony of Balderas, Bryant, and Francis shows that they clearly understood that, under the order, the investigator 

must leave once it was determined that the baby was not in the residence. Therefore, we find that Ross had a clear 

and fair warning that her search of the kitchen was unlawful.
37

Viewed in the light most favorable to the trial court’s judgment, the trial court could 

reasonably infer from this evidence that Ross knew that the order did not authorize the search of 

the kitchen and its contents, and that she could not have reasonably believed the order authorized 

her to search the kitchen and its contents. Further, the trial court could reasonably infer that Ross 

knew the search was tortious since her training informed her both that a search included inspecting 

a place where a person had a reasonable expectation of privacy and that, if she violated a person’s 

Fourth Amendment rights, she could be personally liable. Therefore, we find there is sufficient 

evidence to support the trial court’s finding that Ross intended to conduct a search that she knew 

was unlawful. We overrule Ross’ third point of error.20

E. Sufficient Evidence Shows that Hunt Had a Privacy Interest in the House

In her fourth point of error, Ross challenges the sufficiency of the evidence to support the 

trial court’s finding that Hunt had a justifiable, reasonable, or legitimate expectation of privacy. 

Ross argues (1) that Hunt abandoned the Highway 69 house, (2) that she had no reasonable 

expectation of privacy in the residence at the time of the search, and (3) that the State was 

improperly attempting to assert Hunt’s Fourth Amendment rights, since Hunt was not even aware 

of the search until shortly before trial. 

 

20Although the State was required to prove that Ross subjectively knew that the search was unlawful, the judge, as 

fact-finder, could make that finding on this record based on the training and information provided to Ross, her coworkers’ and supervisors’ understanding of that information, and her co-workers’ refusal to assist in her previous 

searches. This constitutes circumstantial evidence that Ross had the same knowledge her co-workers did, and 

therefore, had subjective knowledge that her search was unlawful.
38

1. Sufficient Evidence Shows Ross Did Not Abandon the House

A person who voluntarily abandons property may not contest the search of the property 

since she no longer has a reasonable expectation of privacy in it. See Swearingen v. State, 101 

S.W.3d 89, 101 (Tex. Crim. App. 2003). “Abandonment of property occurs if the defendant 

intended to abandon the property and his decision to abandon it was not due to police misconduct.” 

McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1996) (citing Brimage v. State, 918 S.W.2d 

466, 507 (Tex. Crim. App. 1996) (op. on reh’g)). “The proper inquiry is whether the defendant 

‘voluntarily discarded, left behind, or otherwise relinquished his interest in the property’ such that 

he no longer possesses a ‘reasonable expectation of privacy’ in the property ‘at the time of the 

search.’” Holden v. State, 205 S.W.3d 587, 589 (Tex. App.—Waco 2006, no pet.) (quoting 

McDuff, 939 S.W.2d at 616). “All relevant circumstances existing at the time of the alleged 

abandonment should be considered.” United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973) 

(citing United States v. Manning, 440 F.2d 1105, 1111 (5th Cir. 1971)). 

In this case, the testimony was conflicting regarding whether Hunt abandoned the Highway 

69 house and its contents. Francis testified that she walked throughout the Highway 69 house and 

took photographs showing that the house had been evacuated and that the people had hurriedly 

left. Hunt testified that she and her husband lived at the house off and on for about one and onehalf years. She also testified that they lived there when the baby was born, but moved from it 

several days later after finding out that the Department was looking for them.21 Her husband 

 

21Ross does not contend that there was insufficient evidence to support an implied finding that shortly before the 

search by Ross, Hunt had a reasonable expectation of privacy in the residence.
39

wanted to flee to Mexico, and she testified that they returned briefly to the house to quickly gather 

some of their belongings. After that, they stayed in a motel for several days, then stayed at another 

house, where they were located by the Department. 

Yet, Hunt also testified that she still had belongings at the Highway 69 house, such as a 

calendar, a journal, clothes, furniture, appliances, and food. Although it was her husband’s intent 

that when they picked up their belongings, they would not return to the Highway 69 house. Hunt 

did not like the idea and snuck back to the house when he was at work. Hunt acknowledged that 

she did not know what her intentions were, but she also testified that she did not want to go to 

Mexico and did not want to run. Hunt also acknowledged that she was not living at the house on 

December 16, 2011, and that she did not have a lease on the house.

In a bench trial, it is the trial court’s role, as 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, 214 S.W.3d at 13 (citing Jackson, 443 U.S. at 318–19). Although Hunt left the 

house, she also testified that she returned at least once, and that she still had personal property at 

the house. Further, Hunt was unclear regarding whether she intended to leave the house 

permanently. This is some evidence that she did not intend to relinquish her interest in the 

property. Therefore, the trial court could reasonably infer that her conduct indicated that she did 

not intend to abandon the house and her personal property. When viewed in the light most 

favorable to the trial court’s implied finding that Hunt did not abandon the residence and its 

contents, we find there is legally sufficient evidence to support that finding. 
40

2. Hunt Retained a Reasonable Expectation of Privacy

In her second argument, Ross argues that, even if Hunt did not abandon the house, she had 

no expectation of privacy in the residence. She points out that Hunt testified that she knew the 

Department was looking for her and the child and that that is why she cleaned the bathroom and 

why Vargas flipped the mattress. This, she argues, shows that Hunt had no expectation of privacy 

in the residence and that, therefore, there was no Fourth Amendment violation. 

Ross cites no caselaw or other authority supporting her argument, which essentially posits 

that a person loses her expectation of privacy in her residence if she temporarily absents herself 

from her residence to avoid being interviewed by a government employee. We have found no 

authority that supports this proposition. Rather, the United States Supreme Court has noted that 

“physical entry of the home is the chief evil against which the . . . Fourth Amendment is directed.” 

United States v. United States Dist. Court, 407 U.S. 297, 313 (1972). The Court of Criminal 

Appeals, also, has stressed that “‘[a]t the very core’ of the Fourth Amendment ‘stands the right of 

a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” 

Long v. State, 132 S.W.3d 443, 450 (Tex. Crim. App. 2004) (quoting Kyllo v. United States, 533 

U.S. 27, 31 (2001)). Since the trial court impliedly found that she had not abandoned her residence 

and its contents, Hunt retained her reasonable expectation of privacy in the house and its contents.

3. Assertion of Hunt’s Fourth Amendment Rights by the State

In her third argument, Ross argues that, since Fourth Amendment rights may only be 

enforced by the person whose rights were violated, the State could not assert a violation of Hunt’s 

rights when Hunt did not complain and was not aware that they had been violated. She points to 
41

Hunt’s testimony that she was not aware of the search or that it may have been illegal until shortly 

before trial. Since Hunt was not complaining, Ross argues, the State could not unilaterally enforce 

her rights for her. 

Again, Ross cites no direct authority in support of this argument. Rather, she relies on 

cases in which a defendant is implicated in a crime as a result of the search of a third party’s 

property, and the defendant seeks to suppress the evidence. See, e.g., Rakas v. Illinois, 439 U.S. 

128, 133–34 (1978) (non-owner passengers in automobile held not to have standing to contest 

legality of search of the automobile); Alderman v. United States, 394 U.S. 165, 171–72 (1969) 

(reaffirming that “the product of a Fourth Amendment violation can be successfully urged only by 

those whose rights were violated by the search itself”). However, one of the primary reasons the 

Supreme Court has refused to grant standing to those defendants whose personal rights were not 

violated is that it would have a deleterious effect on law enforcement by expanding the exclusion 

of evidence obtained in the search. See Rakas, 439 U.S. at 137–38; Alderman, 394 U.S. at 174–

75.

There is no such consideration in a case prosecuted under Section 39.03(a)(1) of the Penal 

Code. Further, Section 39.03(a)(1) criminalizes the conduct of the public servant who 

“intentionally subjects another to mistreatment or arrest, detention, search [or] seizure . . . that he 

knows is unlawful.” TEX. PENAL CODE ANN. § 39.03(a)(1). There is nothing in that section that 

requires the person subjected to the unlawful search to complain or to be aware that the conduct 

was unlawful. Further, this offense, as all offenses under the Penal Code, is an offense against the 
42

State of Texas. See TEX. CODE CRIM. PROC. ANN. art. 21.02 (West 2009). Therefore, we find 

Section 39.03(a)(1) of the Penal Code gave the State standing to prosecute this action against Ross.

For these reasons, we find that there was sufficient evidence to support the trial court’s 

implied finding that Hunt had a reasonable expectation of privacy in the residence and its contents. 

We overrule Ross’ fourth point of error.

V. The Trial Court Did Not Deny Ross a Fair Trial

In her seventh point of error, Ross contends she was denied her constitutional right to a fair 

trial when the trial court quashed her subpoenas for the Department’s attorney, Holly Peterson, 

and Hunt County First Assistant District Attorney Keli Aiken. Ross argues that she had 

subpoenaed both of these witnesses for trial that was originally scheduled for February 23, 2015, 

and that at a hearing to suppress those subpoenas, the trial court made it clear that it was going to 

sign an order quashing the depositions if the State submitted a stipulation of testimony. She argues 

that any further complaint would have been futile and that, as a result, she was denied the right to 

bring witnesses on her own behalf and the right to cross-examine witnesses.

A. Background

Jury selection in this case was originally set for February 23, 2015. Around February 3, 

2015, Ross served Peterson and Aiken with subpoenas to appear and provide testimony at trial. 

The State filed a motion to quash the subpoenas, asserting that any testimony by these witnesses 

was protected by the attorney-client privilege or by attorney work product. A hearing was held on 

the motion to quash on February 9, 2015. 
43

At the hearing, Ross argued that she needed testimony from Peterson that she drafted the 

petition for the order in aid of investigation, as well as the order, and presented them to the trial 

court. She argued that she needed testimony from Aiken that the Fourth Amendment training she 

gave to the Department’s Hunt County office occurred eleven months after the incident alleged in 

the indictment. After argument by the State, the following exchange took place:

THE COURT: Now, I want to think about it but my inclination is to grant 

the motions to quash if the State is willing to stipulate the fact of the training as to 

Ms. Aiken, the training -- and when the training was, obviously the time frame, and 

that Ms. Peterson prepared the motion, the -- as a basis of that motion, the order 

was signed and the Defendant and others went to the house where the alleged 

unlawful search and seizure occurred. Those are all facts, I think, can be stipulated 

to without the necessity of having those people testify. . . . Mr. Schulte, with that 

kind of stipulations then the Court would grant the motion to quash.

. . . .

[Defense Counsel]: Judge, just for the record so in that regard we can’t 

reach an agreement, obviously, before then, and can we still state that those 

subpoenas are still active. If we have to deal with it Monday morning, the 23rd, we 

will but I just -- I don’t want them making other plans except to be in court --

THE COURT: No, until I -- until I sign an order quashing -- they’re still 

active.

[State’s Counsel]: So an order to quash would have to be accompanied by 

a stipulation that we draft. Is that what the Court’s saying?

THE COURT: (Nods head).

[State’s Counsel]: Okay. I will do that and we’ll have something --

[Defense Counsel]: That we agree upon.

[State’s Counsel]: Well (ha-ha) I think the Judge is going to order it.

THE COURT: You can each submit, if -- if you don’t like their draft of the 

stipulations, you can submit one.
44

[Defense Counsel]: Okay.

THE COURT: Of course, on a stipulation I can’t force -- both sides to sign 

it and – but if their draft of the stipulation, I think, gives you essentially what you 

need, then I’ll quash the subpoenas anyway.

[Defense Counsel]: Understood. Okay

On February 16, 2015, the State filed its factual stipulations. Then, on September 17, 2015, 

the State re-filed its factual stipulations before trial began. Neither of those documents was signed 

by Ross. Before any testimony was taken at trial, the trial court asked about the factual stipulations 

and requested a copy. However, the factual stipulations were not introduced into evidence, nor 

were they mentioned again. Further, the trial court made no indication that the stipulations 

satisfied what Ross represented she wanted from the witnesses. In addition, no order quashing the 

subpoenas appears in the clerk’s record. Neither Peterson nor Aiken were called as witnesses at 

the trial by either Ross or the State.

B. Analysis

The right of a defendant “to offer the testimony of witnesses, and to compel their 

attendance, if necessary,” is guaranteed by the Sixth Amendment. Washington v. Texas, 388 U.S. 

14, 18–19 (1967). Further, the Sixth Amendment guarantees the right to confront witnesses, 

including the right to cross-examine witnesses. Beham v. State, 476 S.W.3d 724, 733 (Tex. App.—

Texarkana 2015, no pet.) (citing U.S. CONST. amend. VI; Carroll v. State, 916 S.W.2d 494, 497 

(Tex. Crim. App. 1996)). Initially, we determine whether these rights were violated. See 

Washington, 388 U.S. at 19. 
45

A fair reading of the hearing on the motion to quash the subpoenas shows that the trial 

court made it clear to Ross that the subpoenas would remain active until the trial court signed an 

order quashing them. In addition, after the stipulations were filed, the trial court neither indicated 

that it thought the stipulations were satisfactory, nor entered an order quashing the subpoenas. 

Since no order quashing the subpoenas was signed, nothing prevented Ross from compelling the 

attendance of Peterson and Aiken and calling them as witnesses at trial. Thus, Ross has failed to 

show that her right to call these witnesses was denied. Further, since neither of these persons was 

called as a witness by the State, Ross has failed to show her right to confront and cross-examine 

them was denied. We overrule Ross’ seventh point of error.

VI. Ineffective Assistance of Counsel Was Not Shown

In her sixth point of error, Ross contends that she was denied effective assistance of counsel 

because trial counsel failed to request a hearing to determine whether she was the victim of 

selective prosecution. In her eighth point of error, she contends that she was denied effective 

assistance of counsel because trial counsel failed to object to the State’s stipulation of evidence 

and failed to make a bill of error regarding the proposed testimony of Peterson and Aiken. 

Ross bases her sixth point of error on the equal protection clause of the Fourteenth 

Amendment. She argues that there were at least four people who participated in the search, and 

that all of them are identically situated. Nevertheless, she is the only one who was prosecuted for 

official oppression. Therefore, she reasons, she is a victim of selective prosecution. She faults 

trial counsel for failing to raise the issue at trial, and for failing to preserve the issue on appeal. In 

her eighth point of error, Ross faults trial counsel for failing to object to the State’s factual 
46

stipulation and for failing to make a record of the testimony of Peterson and Aiken.

A. Standard of Review

The Sixth Amendment to the United States Constitution guarantees an accused the right to 

effective assistance of counsel for his or her defense. Strickland v. Washington, 466 U.S. 668, 686 

(1984). If a conviction results from ineffective assistance of counsel, it denies the accused this 

valuable constitutional right. See id. at 687–88. The right to effective assistance of counsel does 

not mean, however, “errorless or perfect counsel whose competency of representation is to be 

judged by hindsight.” Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

To prevail on her ineffective-assistance claim, Ross must prove by a preponderance of the 

evidence that (1) her counsel’s performance was deficient, that is, that it fell below an objective 

standard of reasonableness and (2) it is reasonably probable that, except for her counsel’s 

unprofessional errors, the outcome of the proceeding would have been different. See Strickland, 

466 U.S. at 687–88, 694; Ex parte Martinez, 330 S.W.3d 891, 900–01 (Tex. Crim. App. 2011). 

For us to find that Ross’ trial counsel was ineffective, the trial record must affirmatively 

demonstrate his deficiency. Lopez v. State, 343 S.W.3d 137, 142–43 (Tex. Crim. App. 2011). It 

is insufficient to show that her trial counsel’s acts or omissions were merely questionable. Id. We 

presume that trial counsel had a sound trial strategy, and this presumption cannot be overcome 

unless there is evidence in the record of counsel’s reasons for his conduct. Martinez, 330 S.W.3d 

at 901. 

In determining whether the alleged deficiencies prejudiced Ross, we presume that the factfinder acted in accordance with the law. Strickland, 466 U.S. at 694. In assessing prejudice, “we 
47

look to the totality of the circumstances and evidence presented to determine if there is a reasonable 

probability that, but for Counsel’s deficient performance, the result of the proceeding would have 

been different.” Martinez, 330 S.W.3d at 903 (citing Strickland, 466 U.S. at 694). Failure to 

satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 

(Tex. Crim. App. 2006); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Rylander 

v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). Allegations of ineffectiveness “must 

‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) 

(quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). The Strickland test “of 

necessity requires a case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 

382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in 

judgment)).

B. Analysis

In her sixth point of error, Ross asserts that she is a victim of selective prosecution in 

violation of her constitutional right to equal protection. To support a claim of selective 

prosecution, the defendant must make a prima facie showing 

[1] that [s]he has been singled out for prosecution while others similarly situated 

and committing the same acts have not . . . . [and (2)] that the government’s 

discriminatory selection of [her] for prosecution has been invidious or in bad faith 

in that it rests upon such impermissible considerations as race, religion, or the desire 

to prevent [her] exercise of constitutional rights. 

United States v. Greene, 697 F.2d 1229, 1234 (5th Cir. 1983) ; see also United States v. Armstrong,

517 U.S. 456, 464–65 (1996); Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980); 

Galvan v. State, 988 S.W.2d 291, 296 (Tex. App.—Texarkana 1999, pet. ref’d). Prosecutions are 
48

presumed to be proper, and therefore, “[a]n appellant claiming selective prosecution must provide 

‘exceptionally clear evidence’ that the prosecution was initiated for an improper reason.” Galvan, 

988 S.W.2d at 296 (citing County v. State, 812 S.W.2d 303, 308 (Tex. Crim. App. 1989)). 

In this case, there is no evidence in the record that the other three persons involved in the 

search have not been prosecuted, although the State does not dispute that assertion. Even if the 

record had shown that Ross was singled out for prosecution while others similarly situated were 

not, there is no evidence that the prosecution was initiated for impermissible considerations such 

as race, religion, or the desire to prevent Ross from exercising her constitutional rights.22 Thus, 

the record does not show that Ross would have prevailed on a claim of selective prosecution if it 

had been asserted. Therefore, Ross has not shown that the outcome of her trial would have been 

different if trial counsel had asserted a claim of selective prosecution. See Martinez, 330 S.W.3d 

at 903. We overrule Ross’ sixth point of error.

Ross’ eighth point of error is based on her errant contention that the trial court quashed the 

subpoenas of Peterson and Aiken. She complains that trial counsel did not object to the offer of 

the State’s factual stipulations into evidence and that he failed to make a bill of exceptions to the

exclusion of the testimony of Peterson and Aiken. Even assuming that the stipulations were 

admitted into evidence, a review of the stipulations shows that they state essentially the same facts 

 

22Ross cites several Texas and federal civil cases to support her argument that she need only show that she was treated 

differently without a reasonable basis. Those cases involved allegations of equal protection violations in a civil 

context. See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562 (2000); Price v. Tex. Alcoholic Beverage 

Comm’n, No. 01-12-01164-CV, 2014 WL 3408696 (Tex. App.—Houston [1st Dist.] July 10, 2014, pet. denied) (mem. 

op.). However, those cases are not applicable in criminal prosecutions, where there is a presumption that a prosecutor 

has not violated equal protection and a hesitancy by the courts to examine the prosecutor’s decision whether to 

prosecute, which includes a number of considerations that are not readily susceptible to a court’s review. See 

Armstrong, 517 U.S. 456, 464–65.
49

that Ross’ trial counsel represented to the trial court he sought from the testimony of Peterson and 

Aiken. The record does not reflect why trial counsel did not call Peterson and Aiken, but we 

presume he had valid strategic reasons not to call them. These reasons could include not wanting 

to risk that these witnesses might provide testimony more damaging to his client’s case than any 

benefit he might gain from the evidence obtained in the State’s stipulation. There is no evidence 

in the record to overcome this presumption. See Martinez, 330 S.W.3d at 901. Therefore, Ross 

has not shown that her trial counsel’s performance was deficient. We overrule Ross’ eighth point 

of error.

We affirm the judgment of the trial court.23

Ralph K. Burgess

Justice

Date Submitted: September 28, 2016

Date Decided: November 30, 2016

Publish

 

23This opinion involves a limited question, namely, whether there is sufficient evidence by which a reasonable factfinder could find beyond a reasonable doubt that an agent of the Department, who was a state actor but not a peace 

officer, see TEX. CODE CRIM. PROC. ANN. art. 2.12 (West Supp. 2016) (defining “Who Are Peace Officers”), was (1) 

guilty of official oppression for (2) engaging in unlawful actions beyond the authority of the court’s 

order. Accordingly, our opinion goes no further than simply finding sufficient evidence to support a reasonable factfinder’s conclusion, beyond a reasonable doubt, that appellant, who is not a peace officer, was guilty of official 

oppression as alleged in the indictment.