## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S

NO. PD-0636-19

MICHAEL ANTHONY HAMMACK, Appellant

v. THE STATE OF TEX AS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIX TH COURT OF APPEALS

HUNT COUNTY
K E L L E R 

### , P.J., filed a dissenting opinion in w hich K E E L 

### , J., joined . The offense charg ed here r equires Appellant to “know” that taking or retaining his daug hter violated the “ex press terms” of the temporary custody o rder. The custody ord e r gr a n t ed “sole” custody of his daug hter to a state ag ency . A ppellant was told that the ag ency was g ranted “custody ” but was not told that it was “sole custody ,” and he was n ever served with the order. The only other evidence sug g esting that Appellant w as aware of the ag e ncy having sole custody w as the testimony of g o vernment employ ees surmisi n g t h a t h e must have k nown that. All of this evidence is insufficient to show that Appellant knew that taking or retain i n g h is daug h ter v iolated a “soleHAMMACK DISSENT — 2 custody ” provision in the order.
B o th the statute defining the offense and the indictment charg ing the offense make it clear that Appellant had to “know” that his conduct violated the “ex press terms” of the order. The statute provides in relevant part: A person c o mmits an offense if the person takes or retains a child y oung er than 18 y ears of ag e . . . when the person knows that the p erson’s taking or r etention violates t h e express terms of a judg ment or order, including a temporary order, of a co u r t disposing of the child’s custody

. 1
I n accordance with the statute, Appellant’s indictment alleg ed that he: did then and there intention a l l y o r k n o wing ly take or retain Daphney Hammack, a child y oung er than 1 8 y ears o f ag e , when the said d efendant knew that said taking or retention violated the express terms of a judg ment or o rder of a court d isposing of the c h ild’s custody , to-wit: O rder for Protection of a Child in an Emerg e ncy sig ned by the judg e of the 354th Dis trict Court of H unt County T ex as on o r a bout F ebruary 27th, 2018. 2
Part 3 .1 of th e t emporary order sets out the “ex press terms” that are relevant here: “I T I S ORDERED that the Department is named temporary sole manag ing conservator of the child, with all of the rig h ts and duties listed in § 153.371, T ex as F amily Code, including the rig ht of phy sical possession until a full adversary hearing is held.” 3 To show that A ppellant knowing ly violated the

ex p ress t e r m s o f this order, it is not enoug h to show that Appellant knew that the order g ave the Department

4 “custody .” The State had to show that h e k new that the o rder d eprived him of all of his rig hts reg arding his daug hter.

1 T E X

. P E

N A L C O D E § 25.03(a)(1) (emphasis added).

2 Emphasis added.

3 Emphasis added.

4 Tex as Department of F amily and Protective Services.HAMMACK DISSENT — 3 There is simply no evidence o f that. On F ebruary 23, A mber D avidson went to Appellant' s hom e t o d i s c u s s concerns a b out Appellant’s six teen-y ear-old d aug hter. He told her to g et off his property

. She said that she was g oing to have to g e t a court order, and he said that that would be her best bet. On F ebruary

27, she obtained the court order, and the authorities picked the daug hter up
at school. Davidson made a phone call to Appellant to let him know that they had “a W rit of Attachment, Order of Protection, to pick up [ h is daug hter] from school. W e picked her up f ro m school and that we had her back at the office.” I n her opinion, Appellant was “fully aware” that the Department “has custody at this point.” According to D avidson, Appellant “understood that [ she] had the Court Order a t that point.” B ut all she h ad told Appellant at this point was that they had an order and that the order g ave the Department the authority to pick u p h is daug hter. She did not tell him that the order awarded the Department “sole custody .” Her o pinion that he was aware that the Department had “custody ” and that there was a “court order” mig ht be c orrect, b ut neither of these conclusions indicate that Appellant knew that the Department h ad “so l e c u s tody .” And if by “custody ,” Davidson meant “sole custody ,” her surmise that he was aware of the Department having sole custody

lacked any

support. Some time after the phone call, the daug h ter escaped from the Department. Davidson and Rhonda W est w ent to Appellant’s house to try to serve the order. B ut they never served the order. A p p e l l a n t told them to g et off h is p roperty , and no one tried to leave a copy of the order on h i s doorstep. According to Davidson, she waited a t her car while the police talked to A ppellant, but no

one g ave a copy of the order to a police officer to serve A p pellant or at least to try to serve him, and failing that, to leave the order on his doorstep. A ccording to W e st, she and Davidson “proceeded
to knock o n the residence door to serve Mr. Hammack with a court order, letting him be aware thatHAMMACK DISSENT — 4

we h ad taken custody of” his d aug hter. W es t t e s t i fied that she identified h erself and Davidson as being with the D epartment and “ex plain[ e d] to him why [ they ] were there.” B ut she admitted in her testimony that she did not “detail” the order or lay out all of the provisions of the order. W est said that there was no doubt in her mind that Appellant “ understood that an order had b e en issued by the Court to retain [ his daug hter] in [the Department’s] custody .” W est ag reed, thoug h, that “custody ” does not mean every

thing in an order with reg ard to what the rig h ts of a party are, a nd that “unless
y o u a ctually read the order, y ou won’t know.” Ag ain, being aware that the Depart m e n t h a d “custody ” and that there was a “court o r d e r ” d o e s not mean that A ppellant was aware that the Department had b een awarded “ sole custody

. ” A nd if by “custody ,” West meant “sole custod y , ” nothing in the record supports her surmise. W e st also testified that she did not send a c opy of the order to Appellant by mail, F edEx , or certified mail. She initially testified that Davidson mailed him a copy , but she then acknowledg ed that she mig h t b e mistake n i f D a v i d s o n had n ot testified to mailing the order to Appellant. And Davidson had not testified to mailing the order. No one handed Appellant a copy of the o rder. N o one mailed him a copy of the order. No

one left a copy of the order at h is home. No one r e ad t h e o r d e r to him. No one told h im that the order awarded “sole” custody to the Department. The statute req u i r e s k n o w l e dg e of the “ex press terms” of an order. “ Custody ” is not t h e s ame as “sole custody

. ” An order could have g iven Appellant and the Department shared custody

. I n that case, his actions in ta k i n g o r retaining his daug hter would not have violated the order. The State had to prove that Appellant w as a ware n ot o nly that the order awarded custody toHAMMACK DISSENT — 5 the Department, but that it also deprived him of any kind o f custody

. 5 The record in th is case contains no evidence that Appellant was aware o f that. And to the e x tent family protective workers surmised that he must have known that, their surmises w e r e u nsupported and do not constitute sufficient evidence. 6
I respectfully

dissent.
F iled: May

19, 2021 Publish

5 See Id. § 6.03(b) (definition of “knowing ” culpable mental state).

6 S ee Curlee v. State , No. PD-0624-20, 2021 Tex

. Crim. App. L E X I S 3 71, (Tex

. Crim. App. April 1 4, 2021) (“A play g round is not necessarily ‘open to the public’ due to the lack of a fence, and, absent other e vidence, a fence, even an unlocked one, tends to show that a play g round is closed to the p ublic. Sm e

j k a l’s factually u nsupported opinion that the play g round w as ‘open to the public’ does not c hang e t h at.”); McAllen Hosps., L.P. v. Lopez , 576 S.W .3d 3 8 9, 394 (Tex

. 2019) (“the naked a nd u nsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection”).