1 John T. Boyd, Chi ef Justice (Ret.), Sev enth Court of Ap peals, sitting by

assignment

. NO. 07-01-0390 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E MAY 21, 2003

______________________________ DEANNA KA

Y PORTER, APPE LLANT V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE COUNT Y COURT AT LAW OF RANDALL CO UNTY; NO. 2001-60380-L; HON ORABLE JAME S W. ANDERSON, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS, J., and BOYD, S.J. 1
OPINION Appellant Deanna Kay P orter appeals from her conviction for failing to report that she had cause to bel ieve a c hil d’s welfare had been adversely affected by abuse or
ne gl ec t. W e a ff i rm.2

During the relev ant tim e period, a ppellant ope ra t ed New Children’s Learning Center, a lic ens ed d aycare fac ility in Canyon, Texas. On March 14, 2001, em ployees of the center took

groups of chi ldren i n care to a loca l park for ou tings. One of the groups includ ed th re e- ye ar ol d N ad i na Hi no jo sa . D ue to a l at e a dd i ti on to th e g ro up , s ome con fus ion o ccu rre d in counting the children in Nadina’s group. When the ch ildren we re remov ed from the van in which her group tra vele d tothepar k, N adin a was in adv ert ent ly left in the van. The van was parked under a tree w ith its windows slightly opened. The group of children and supervisors returned to the van after a ppr ox im ate ly on e an d on e-h alf hours. Nadina appeared to have been crying, had “clammy-feeling” skin and w as p oss ibly dehydrated.
W hen the van an d ch il dren returned to the center, t he incident was reported to appellant in accor

dan ce w ith e sta blish ed c ent er p olicy . N adin a was m onitored by the center staff during the remainder of t he day. Testim ony from the center’s staff was to the effect that Nadina told jokes, laughed, ate a snack and drank wate r. Test imony did not indicate that the staff noticed adverse effects fromthe incident.
W hen Na di na ’s mot he r, Ad el mi ra H in ojosa, p icked up the child that afternoon, appellant reported the incident to Adelm ira. Adelmira later reported the incide nt to the Departm ent of Protective and Regulatory Services (DPR S). Appellant wascharged with knowingly failing to report the incident when sh e had
cause to beli eve that Nadina’s physical or m ental health or welfare had been or m ay be2 Reference to a provision of the Fam ily Code hereafter will be by reference to

“Fam ily Code § _

”, or by reference m erely to “§_.”
3 Appella nt’s sole issue asserts error bythetria l cou rt in faili ng to dir ect a v erd ict in her favor “when the evidence was factual ly i nsufficient to sustain” her conviction. The issue seem s to m ingle legal insufficiency and factual insufficienc y challenge s. Howev er, appellant briefs only the appellate standard of review for factual i nsuffici ency chall enges, and at oral subm ission she asserted fac tua l ins uff

icien cy as t he b asisfor her appeal.
3 adv ers ely

affected by abuseor neglect. See T EX . F AM . C ODE A NN . § 261.109 (Ve rnon 2002). 2 A j uryfound her guilty and the trial court assessed punishm ent at a fine of $500.
Via one issue, appel lant chal lenges the fa ctual suffi ciency 3 of the eviden ce t o support her con viction. S he asse rts tha t the elem ents of the off ense are : (1 ) the defendant; (2) had cause to bel ieve; (3) that a chil d’s physical or mental health or welfa re has been or m ay be adversely affected; (4) by abuse or neglect; and (5) know ingly failed to re po rt th e su sp ec te d a bu se or ne gl ec t. She po si ts th at th e St at e wa s required to inde pen den tly

pr ov e e ac h s ep ar at e e l eme n t, a nd t hat theSt ate ’s pro of w

as f act ually insufficient to prove element s (3), (4) and (5) of the offens e; that is, that Nadina’s ph ysical
or me ntal health or welfare has been or m ay be ad versely affected; that N adina was act ually abused or neglected; and that appellant failed to r epor t asreq uire d by Fam ily Code chapter 261.
The State’s res ponse is that the statutory langua ge does n ot require proof that Nadina was ac

tually abused or neglected, only that appellant had cau se to believe that Nadina’s physical or mental health or welfare was or m ay be adversely aff ected by abuse or neglect. The State urges that the evidence is factually sufficient.4

We first consi der whether the State’s burde n was to prove actual abuse or neglect
as a separate elem ent of the offense. Appellant cites, in part, W hite v. State , 50 S.W.3d 31, 39 (Tex.A pp.--W aco 2001, pet. ref’d), as support for her contention that the State has the burden to prove that the child actually was abused or neglected as a separate elem ent of a § 261.109 offense. W hite , howeve r, specified that “. . . the elem ents for this offen se are that: (1) the d efendan t; (2) had cause to believe that a child had been or m ay be abused or neglected; and (3) know ingly failed to report this abuse or neglect.” Id . at40- 41. The W hite court construed app ellan t White’ s ap pea l as cha lleng ing o nly the State’s evidence as to the elem ent of the offense “. . . t hatshe had cause to believ e that C.W. [the child] had been abused on the fi

ve occasi

ons in question. ” Id . at 41( em phasis ad ded). We do not read W hite as supporting appellant’s contention. Appellant also refer ences Morris v. State , 833 S.W.2d 624, 62 7 (T ex.Ap p.--Houston [14 th Dist.] 1992, pet. ref’ d), in support of her position. She refers to th e Mo rris court’ s statem entthat a ppe llant Morris “most certainly had ‘cause to believe’ that the child was being s u bje cted toabuse, ” see id . at 627 , as su pporting h er position. We, howeve r, consider the quote referred to as m easuring evidentiary sufficiency in the case, not as a holding that the State must prove abuse or neglect as a s eparate element of the offense. To the contrary, we re ad Mo rristo be supportive of the S tate’s position in the instant app eal. The sta tutory

language in question in Mo rrisrequired “aperson having cause to belie ve t hat

a c hild’ s ph ysi cal o r m ent al he alth or w elfa re h as b een or m ay b e ad ver sely affected by abuse or negl ect by a ny per son” to report in accordance w ith specified5

pr ovisions of the Fam ily Code. In considering whether the statutory language was unc ons titu tion ally

vague, the Mo rriscourt held th at the langu age gave fair not ic e to a person of ordinary intelli gence that a report m ust be filed with appropriate agencies “when [the pe rson] h as caus e to believethat a child is being ab used.” Id . at 627.
We are in agreement

with W hite and Mo rrisas we read them to hold that actual abuse or neglect is not a separate elem ent of the offense. The lan gu age “cause to believe” appli es to the entir e phrase “that a child’s physical or m ental health or welfare has been or m ay be adversely affected by ab use or neglec t.” See T EX . G OV ’ T C ODE A NN . § 311 .011(a) (Vernon, 1998) (w ords and phrases shall be read in contex t and construe d according to rules of gram mar an d com mon usage); Mo rris , 833 S.W.2d at 627. The State is not requir ed to prove, as an el ement of the offense, that abuse or ne glect act uall y occurred; only

that appellant had cause to believe that abuse o r neglect occurred. See Family Code § 261.10 9; W hite , 50 S.W.3d at 41; Mo rris , 833 S.W.2d at 627. Having determ ined that the State was not required to pr ove abuse or negl ect as a separate eleme nt of the offense, we turn to appellant’s evidentiary challenge.
Review of the evidence for factual su fficie ncy to support a convi ction entai ls a neutral review of all the evidence, both for an d agai nst thefind ing. The evid enc e is fac tua llyin su ff ic ie nt ifsuc h a re vi ew d emons trate s that (1) the proof of g uilt, standing alone, is too weak to support a finding of guilt, or (2) the proof of guilt, although adequate if taken alone, is greatly outweighed by contra ryproof. See Johnson v. State , 23 S.W.3d6

1, 11 (Tex.Crim .App. 2000 ). Un lesstherecord clea rly r eve als t hat

a dif fer ent res ult is appropriate, an ap pe l l at e c ou rt mus t d ef er to th e f ac tf i nd er ’s de te rmi nation concerning what weight to give contradictory testimonial evidence because res olution often turns on an evaluation of credibi lity an d demeanor, which is pri marily a determ ination to be made by observation of the w itnesses giving the testimo ny. Id . at 8. Appellant questions the factual sufficiency of proof that Nadina’s physical or me ntal health or w

elfa re h as b een or m ay h avebee n ad ver sely aff ected; tha t N adin a was a ctu ally abused or neglected; and that appellantfai led to report as required by Fam ily Code chapter 261. Because w

e have previously determ ined that the State did not hav e to prove actual abuse or neglect, we need not address the sufficiency challeng e as to proof of actual abuse or neglect. Thus, w e begi n by addressing sufficiency of the proof t hat appellant had cause to believe that the c hild’s physical or mental health or welfare has been or m ay be adversely affected by abuse or neglect.
As part of the charge, thej ury

w as in str ucted t hat

“ne glec t” in clud es p lacin g a c hild in or failing to remove a child from a situation that a reasonable pe rs on wo uld real ize requires j udg m ent

or a ctio ns b eyo nd t he c hil d’s le vel of ma turity, physical condition, or mental abili ties and that results i n bodil y injury or a substanti al ri skof im m ediate har m to the child. SeeFamily Code § 261. 001(4)(B)(i).
Adelm ira testified that appellant told her Nadina had been leftin the van at the p ark. She also testified that appellant told her steps had been taken to h ydr ate Nad ina. Ch ris7

Cl ar k te st if ie d t ha t h e a nd Ann a T uc ek wer e t wo of the workers in charge of the children thatday at the park and that on discovering Nadina, he m ade attem pts to hydrate the child. He also testified that he and Anna im m edia tely reported the event to app ellant. Anna testified that wh en she found Nadina in the van she saw evidence that

Nadina had been upsetand crying. Anna was also concerned about Nadina bei ng dehyd rated and to ok imm ediate steps to hydrate h er upon finding her in the van. Anna reported all of t his to appellant once she got to t he daycare center. B oth Chris and Anna testifi ed that they knew to repor tthe incident to appell ant because appel lant had tr ained them to report such incidents to her so she could decide if a report should be m ade.
Mich elle Bohannon, of the DPRS and the pri mary investigator for the li censi n g division, testified that any child left alone in a van is at risk, regardless of the weather or other external factors . The trial court took jud icial notice, and so instructed the jury, that ther e is a potential for harm any time a c hild is left alone i n a vehicle fo r an extende d period of time.
The evidenceshow

s that appellant w

as aw are that three-year

old Nadina had been left in the van alone for over an hour. A ppellant knew that her em ployees were w orried aboutthehyd rat ion o f th e ch ild an d th at t her e was e vide ncethechil d had been upset and crying. The trial cou rtjudicially noticed a potential for harm any time a ch ild is left al one in a vehicle for an extended period of tim e.4 She does not contend that th e State w as required to prov e that s he did not report to another agency. See § 261.103(a)(4),(b). 8 The proof, standing alone, is not too weak to support a finding that appellant had cause to believe that Nadina’s physical or m ental health or welfare had been or m ay be adv ers ely

affected by having been left in the v an and that leaving her in the van was neglect as defined in the statute and j ury charge. See Johnson , 23 S.W.3d at 11.
W hen the State rested and closed, so did appellant. Proof contrary to the State’s proof wasonly developed on cross-examination of the S tate’s w itnesses. Appellant directs
our attention to evidence and testim ony that Nadina was laughing, j oking, eating a snack and drinking water, and that Nadina’s m other testified that Nadina show s no em otion about the incident. Differing inferences could be drawn from the evidence as a w hole. The duty of drawing inferences fromthe evidence and j udgi n g the credib ili ty and weight of such inferences and all the ev idence pre sented , however, is lodged in the factfinder. Deferring to thej ury ’s res olut ion o f w itne ss cre dibilit y an d co nflic

ts i n the evid enc e, a s we m ust in such ma tters, we conclude that the proof of guilt is no t greatly

outweighed by contrar y proof. See id. at 11.
We nex t ad dre ss suf

fici enc y of thepro of t hat

app ellan t fa iled to re por t in accordance with Fam ily Code chapter 261. Appellant contends that the State introduced
no proof t hat she failed to verbally report the incident to som e local or state l a w enforcem entagency, the DP RS, or the licensing agency. See § 261.1 03(a)(1), (2),(3). 49

Her assertion is based o n t estimony by DPRSrepresentative Bohannon and C anyon Police Departm ent detective Chris Tinsley.
Bohannon testif ied that the DPRS records, which containe d a repor tof the incident, contained no r

eco rd o f th e inc iden t ha vin g been reported by appellant or the learning center, and shewas

not aw are of such a report. On cross-ex amination she adm itted that she cou ld no t testify that, beyond a reasonable doubt, appellant had not m ade a verbal report of the incident to one of the tho usands of em ployees of the DPR S.
Detective Tin sley testi fied that he had worked at the Ca nyon PD for over 20 years; thathe had not encountered a situ atio n in which child abuse had been reported but a record had not been m ade by the receivi ng officer ; and that the Canyon PD di d not have anyrecord of app ell ant having r eported the i ncident i nvolvi ng Nadina. T insle y also testified that he checked t he statew ide police agencies for such a record and none ex isted. Just as Ms. Bohannon did, Tinsley testified on cross-examination that he had not talked to each off

icer of t he C anyon P D ab out thecas e an d th ere for

e co uld not testify beyond a reasonabl e doubt that appel lant had no t made a verbal report to o ne of the office rs.
We perceive appellant’s argum ent to be a shade of the “alt ern ativ e re aso nab le hypothe si s” construct w hich was rej ected in Geesa v. State , 820 S.W.2d 154, 160-61 (Tex. Crim .App. 1991). Under that const ruct, legal sufficie ncy of circumstantial evidence proof was tested by w hether the S tate ha d disprov ed every reasonable hypothesis raised bythe evidence in the record except the defendant’s guilt. See id . at 156-59. That is, the5 See also Cham bers v. State , 711 S.W.2d 240, 245 (Tex.Crim .App. 1986) (Either

evidence permits a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt or it does not. What is not in evidence is irrelevant to a determination of the sufficiency of the ev idence). 10 evidence was tested not by w hat the State proved, but by w hat the State failed to disprove. Id

. As noted, s uch standard has been rej ected in legal sufficiency reviews. In a factual suffici ency analysi s the existence of a lternative reasonable hypotheses raised by the record ma ysti ll be considered, but the ex istence of such hypothes es is not determ inative. See W ilson v. State , 7 S. W .3d 136, 141 (Tex .Crim .App. 1999). 5
The record before us reveals that appellant was theproprietor of a licensed daycare center. The Minimum

Standards and Guidelines for Daycare Centers w as introduced into evidence. In addition to reporting requirements of the Fam ily Code whi ch a pply to a ll persons, the Minim um Standards required daycare centers to report incidents such as the
one involving Nadina. The only evidence that a r eport was made cam e from Nadina’s mot her who tes tified that she reported the incident and from Bohannon w ho testified that to he r k nowledge and according to D PRS records one report wa s m ade. Neither the DPRS records nor the police reco rds con tained a re cord of a report from appellant or her daycare c enter. No evidence appears c reating an inference that appellant or anyone acting on h er b eha lf

reported the incidentverbally. The hypothesis that appellant reported the inci den t is not supported by record evidence. On the other hand, the S tate presented evidence from which the j ury could have found that she di d not. The record evidence, viewed in a neut ral light a nd standing alone, is not too weak to support a finding that appellant did not

rep ort , an d th e pr

oof of g uilt i s no t gr

eat lyoutweighed by contrary proof.11

Accordingl y, the evidence is factually sufficient to support the j ury’s finding that appellant did not report as required by the Fam ily Code.
The evidence is factually sufficient to support the jury ’s finding of guilt. See Johnson , 23 S.W.3d at 11. The conviction is affirmed.
Phil Johnson Chief Justi ce Publish.