Cabrera v. State , 1983 Tex. Crim. App. LEXIS 959 ( 1983 )

647 S.W.2d 654 (1983)

Maria Elena CABRERA, Appellant,
v.
The STATE of Texas, Appellee.

No. 68207.

Court of Criminal Appeals of Texas, En Banc.

March 16, 1983.

Rita Rodriguez, on appeal only, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Leo B. Garcia, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of interference with child custody; V.T.C.A. Penal Code, Section 25.03. The punishment is imprisonment for 4 years.

It is alleged that the appellant intentionally and knowingly took Armando Quinones, a child younger than 18 years, out of this State when she knew this violated a temporary order disposing of the child's custody. The appellant in one ground of error urges that the evidence is insufficient to show that she knew the taking of her child violated a temporary order of the court providing for the child's custody.

The court's order was served on the appellant in the sheriff's office by a deputy at 3:10 p.m. on July 14, 1980. Armando Quinones, who was less than 2 years old, was in the hospital at that time. The appellant "snuck" him from his hospital room at approximately 11:00 p.m. and took him to Mexico.

The officer who served the appellant with the order did not explain it to her. She went immediately to the legal aid office where a secretary told her no lawyers were then available. The secretary looked at the papers and, without any further explanation, told appellant she was to appear in court on July 17 and to bring her daughter with her. The appellant testified she could not read English and that no one explained the order to her; she didn't remember whether or not the secretary kept the order or what happened to it.

Although appellant testified through an interpreter, she said she understood some English. While she was at the sheriff's office where the order was served, she heard an officer, other than the one who served her, ask if she had brought her daughter with her. He was told she had not. That officer then said they had her son and she would never get him back. This conversation which she heard at the sheriff's office, she testified, prompted her to take her son Armando Quinones from the hospital and take him to Mexico.

The issue may be narrowed and decided on a basis other than whether the appellant could read the order or whether the order had been explained to her. The order is not sufficient to give her notice that her son's custody had been taken from her. The order, which is appended to this opinion, does not name or mention Armando Quinones except in the caption.

The caption which names the parties is not a part of the order. Chief Justice Marshall, writing for the Supreme Court in Jackson v. Ashton, 33 U.S. (8 Pet.) 148, 8 L. Ed. 898 (1834), held that the caption of a pleading was not a part of the pleading, and where the only allegation of jurisdiction was in the caption the lower courts did not have jurisdiction of the case.

Since the caption of the order in this case is not a part of the order, the body of the order is not, as a matter of law, specific enough to give the appellant notice that the custody of her son had been taken from her, and that if she did what she did she could be convicted of a felony. The evidence is insufficient to support the conviction.

The judgment is reversed and the judgment is reformed to show an acquittal. Burks v. U.S., 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978).

Opinion approved by the court.

W.C. DAVIS, J., dissents.

ONION, P.J., not participating.

APPENDIX TEMPORARY ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP FOR TERMINATION AND/OR MANAGING CONSERVATORSHIP AND ORDER TO SHOW CAUSE On the day of , 1980, the application of Petitioner for temporary orders was presented to the Court. The Court, having examined the pleadings and affidavits of Petitioner, finds that Petitioner's sworn statements show that immediate and irreparable injury, loss, or damage, as alleged, will result to the safety and welfare of the children unless the Petitioner is appointed temporary managing conservator. Petitioner has not adequate remedy at law. The Court deems the following orders necessary for the safety and welfare of the children: IT IS ORDERED that Petitioner, Texas Department of Human Resources, be appointed temporary managing conservator until further order of this Court. The Court appoints , a licensed attorney, as attorney ad litem for the children in IT IS FURTHER ORDERED that the District Clerk shall issue notice ordering Respondent(s) to appear; and Respondent(s) is/ are hereby ordered to appear before this Court in the City-County Building at 500 E. San Antonio, El Paso, Texas, on the day of , 1980, at o'clock .m., to show cause why, during the pendency of this cause: (1) Petitioner should not be appointed temporary managing conservator of the Children. (2) Respondent should not pay temporary support for the children. (3) The Court should not make such other and further orders as may be deemed necessary for the safety and welfare of the children. IT IS FURTHER ORDERED that the Clerk of the Court issue a Writ of Attachment to the Sheriff or any constable commanding him to attach to the child Rubi Cabrera, and if necessary forcibly enter the home at 2215 Olive #114 or 5353 Ridge #145, El Paso, Texas, to deliver Rubi Cabrera safely to the Texas Department of Human Resources, represented by Harvey Edgar Wilson, Petitioner, named Temporary Managing Conservator, and to make return of this writ instanter. IT IS FURTHER ORDERED that Maria Elena Cabrera, mother of the children the subject of this suit, be and is hereby, temporarily enjoined from: (1) contacting Petitioner in any manner except by telephone or mail; (2) coming on or about the premises where the Children and/or the parent, and/or the Petitioner may be whether the foster home, family home, school, church, or place of employment; (3) interfering in any manner with Petitioner's possession of the Children; (4) doing any act calculated to embarrass, humiliate, or otherwise molest or injure the Petitioner, and/or the Children, and/or the parent; (5) removing the Children from the jurisdiction of this Court.