Kim Wade Gatewood v. State , 2005 Tex. App. LEXIS 1213 ( 2005 )

NO. 07-04-0247-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 14, 2005 ______________________________

KIM W. GATEWOOD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

NO. 2003-485,577; HON. DRUE FARMER, PRESIDING _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

Appellant, Kim W. Gatewood, appeals his conviction for falsely identifying himself as a police officer in violation of §37.12 of the Texas Penal Code. His two issues involve the legal and factual sufficiency of the evidence supporting his conviction. He contends that the evidence was insufficient because the prosecutor failed to establish that the Republic of Texas was an official law enforcement agency. We affirm.

Background

Appellant, a member of an organization known as the Republic of Texas, was arrested by a Lubbock police officer after observing appellant wearing a badge. The latter was circular with an inset of a large five-pointed star. On the top of the badge appeared the words "Republic of Texas," while on the bottom appeared the word "Sheriff". Imprinted on the star was the word "Texas." So too was appellant found in possession of an identification card and an oath of office. The former, entitled "International Certificate of Competency," purported to certify him as competent to operate "cars, trucks, vans, and cycles." The latter contained an oath depicting that appellant swore to "faithfully execute the duties of the office of deputy sheriff, of the Republic of Texas . . . ."

Prior to his arrest, appellant was in a local restaurant with a group of others belonging to the Republic of Texas. Furthermore, the police were summoned to the establishment when a restaurant employee saw one of the group with a firearm.

Law

The standards by which we review the legal and factual sufficiency of the evidence are found in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000). We refer the parties to them for an explanation of those standards.

Next, to be convicted of falsely identifying oneself as a peace officer, the person must make, provide to another person, or possess "a card, document, badge, insignia, shoulder emblem, or other item bearing an insignia of a law enforcement agency that identifies a person as a peace officer . . ." and "the person who makes, provides, or possesses the item bearing the insignia [must know] that the person so identified by the item is not commissioned as a peace officer . . . as indicated on the item." Tex. Pen. Code Ann. §37.12(a) (Vernon 2003). According to appellant, the State failed to satisfy the first element because the badge he wore was not an insignia of an "official" law enforcement agency since the Republic of Texas was non-existent.

To the extent appellant argues that the phrase "law enforcement agency" connotes an "official" agency recognized by law, we find authority for the position. Fallin v. State, 93 S.W.3d 394, 396 (Tex. App.-Houston [14^th Dist.] 2002, pet. ref'd). So, it could be said that the entity which the defendant purports to represent must be an "official" law enforcement agency. And, while it may be that the Republic of Texas is not such an agency, as appellant concedes on appeal, the same is not true of the office of "Sheriff." Indeed, state law recognizes that a sheriff is a peace officer in Texas. Tex. Code Crim. Proc. Ann. art. 2.12(1) (Vernon Supp. 2004-05). Furthermore, we take judicial notice that the office of sheriff involves both administrative and law enforcement duties. ⁽¹⁾

Next, "a law enforcement agency" has been defined as "an agency of the state or an agency of a political subdivision of the state authorized by law to employ peace officers." Tex. Code Crim. Proc. Ann. art. 59.01(5) (Vernon Supp. 2004-05); see also Tex. Pen. Code Ann. §37.08 (Vernon 2003) (False Report to Peace Officer or Law Enforcement Employee) (defining "law enforcement agency" by the definition found in article 59.01 of the Code of Criminal Procedure). And, not only are sheriffs and their deputies peace officers, Tex. Code Crim. Proc. Ann. art. 2.12 (1) (Vernon Supp. 2004-05), but also the former is authorized to hire the latter. Therefore, we cannot but conclude that the office of "sheriff" in Texas constitutes an "official" law enforcement agency. This, coupled with the evidence that the word "sheriff" appeared on the badge appellant wore, the badge likened to others utilized by official law enforcement agencies in Texas, the badge contained a lone star (our state's emblem), and the word "Texas" appeared in the star, constitutes sufficient evidence upon which a fact finder could rationally conclude, beyond reasonable doubt, that appellant possessed an insignia of an official law enforcement agency identifying him as a commissioned peace officer. And, that the badge may have also contained language of an entity falling outside the scope of such an agency does not require us to hold otherwise. See Davis v. State, No. 05-95-01499-CR, 1997 Lexis 3282 at 7-9 (Tex. App.-Dallas June 25, 1997, no writ) (not designated for publication) (wherein the court found the evidence sufficient to support conviction because the identifying card possessed by Davis contained the words "Department of Public Safety" even though it also indicated that he held the post as an employee of a private railroad holding company). Finally, no other evidence of record, when considered alone or en masse would render the factual finding to which we allude manifestly wrong or unjust.

Accordingly, we overrule the two issues and affirm the judgment of the trial court.

Brian Quinn

Justice

Publish.

1. A sheriff is a conservator of the peace in his county and shall arrest all offenders against the laws of the State in his view or hearing and take them before the proper court for examination or trial. Tex. Code Crim. Proc. Ann. art 2.17 (Vernon 1977). Thus, he is charged with investigating and enforcing the laws of the state. Robertson County v. Wymola, 17 S.W.3d 334, 341 (Tex. App.-Austin 2000, pet. denied). Unquestionably, then, a sheriff is a law enforcement official. See City of Waco v. St. Paul Fire and Marine Ins. Co., 16 S.W.3d 101, 103 (Tex. App.-Houston [1^st Dist.] 2000, no pet.).

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NO. 07-10-0110-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 29, 2011

_____________________________

In the Interest of C. M. G., A Child

_____________________________

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY;

NO. D-1-FM-02-005140; HONORABLE RHONDA HURLEY, PRESIDING

_____________________________

Opinion

_____________________________

Before QUINN, C.J., and HANCOCK  and PIRTLE, JJ.

            Kristen Walsh Pfeiffer appeals from an order of the trial court denying her request to modify the parent/child relationship with her daughter C.M.G.  She sought to modify  the geographic restriction requiring the child to live within Travis County or counties contiguous to it and permit her to move the child to Massachusetts to accommodate her current husband’s employment. The trial court denied both her request and motion for new trial founded upon newly discovered evidence.  Kristen considered those decisions to be instances of abused discretion and so argues via four issues.  We disagree. 

            Background

            Kristen and Francis (Frank) Gavin were divorced in 2003 and had only one child, C.M.G., during the marriage.  The youth was almost two years old at the time of the divorce.  Both Kristen and Frank remarried and had children with their new spouses.  It is unquestioned that both parents love C.M.G. and, though Kristen was granted primary custody in the divorce decree and the right to designate the child’s primary residence, the parties cooperated in caring for the child until 2009. During that year, Kristen’s husband, Ken Pfeiffer, lost his job in Austin, searched for employment for three months, and eventually accepted a postion in Massachusetts.  There he now resides and returns periodically to Austin to visit his family.

            Applicable Authority

            We review the trial court’s order under the standard of abused discretion. In re C.R.O., 96 S.W.3d 442, 446 (Tex. App.–Amarillo 2002, pet. denied).  Per that standard, we cannot interfere with the decision so long as some evidence of a substantive and probative character supports it and the ruling comports with the law.  Id. at 447.  Given this standard of review, it is of little import, in the first instance, that evidence appeared of record supporting a different decision.  Nor can we simply accept the evidence iterated by appellant and use it as basis for changing the trial court’s ruling. Rather, the onus lies with the party attacking the decision to establish that the decision was arbitrary, unreasonable, or a deviation from guiding rules and principles.  Only then can it be said that discretion was abused.

            Moreover, when, as here, the dispute actually concerns the tenor of the evidence presented to the trial court, appellant’s interests are best served by explaining to us why no evidence supported the decision or why any evidence that could be said to support it lacks credence or probative value.  Doing that not only assists the reviewing court in addressing the task before it but also evinces true recognition of and compliance with the standard of review.

            Next, one attempting to modify an order establishing conservatorship, possession, and access to a child must show that 1) there has been a material and substantial change in the circumstances, and 2) the modification would be in the best interest of the child.  Tex. Fam. Code Ann. §156.101(a) (Vernon  Supp. 2010).  Here, the child’s father did not dispute that a material and substantial change of circumstances occurred.  Rather, the dispute concerned the child’s best interest. 

            With regard to the child’s interest, we note that the public policy of this state is 1) to assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, 2) provide a safe, stable, and nonviolent environment for the child, and 3) encourage parents to share in the rights and duties of raising their child after the marriage has been dissolved.  Id. §153.001(a) (Vernon 2008).  Such policy concerns weigh heavily in assessing whether to modify geographic restrictions placed on the child’s residence.  And, in assuring that those concerns are appropriately addressed, the trial court may consider numerous indicia such as 1) the child’s relationship with extended family, 2) the presence of friends, 3) the presence of a stable and supportive environment for the child, 4) the custodial parent’s improved financial situation, 5) the positive impact on the custodial parent’s emotional and mental state and its beneficial impact, if any, on the child, 6) the noncustodial parent’s right to have regular and meaningful contact with the child, 7) the ability of the noncustodial parent to relocate, 8) the ability of the noncustodial parent to adapt his work schedule to the child, and 9) the health, education, and leisure opportunities available to the child.  Lenz v. Lenz, 79 S.W.3d 10, 15-16 (Tex. 2002); In re Z.N.H., 280 S.W.3d 481, 486-87 (Tex. App.–Eastland 2009, no pet.).  

            Application of Authority

            We readily acknowledge the presence of evidence indicating that Kristen’s lot would improve if she was allowed to be with her husband in Massachussetts. And, it can be said that by enhancing Kristen’s interests, those of her children could be enhanced as well.[1] See Echols v. Olivarez, 85 S.W.3d 475, 481 (Tex. App.–Austin 2002, no pet.) (recognizing that the child’s interests can be intertwined with those of the custodial parent).[2]  Also of record is evidence tending to suggest that a move would not be detrimental to C.M.G.’s interest for she will be with the family unit, be by good schools, and have access to other relatives and the like.  Yet, that was not the only evidence before the trial court. 

            The record before us also shows that 1) Ken’s education and training (mechanical engineering) qualified him for multiple jobs, not simply those in the particular field of interest he opted to pursue; 2) he accepted a job in Massachusetts with a “start-up” company experiencing financial losses after a three-month search even though he was capable of and actually earning money as a consultant at the time; 3) the jobs within the field of interest selected by Ken (solar energy) are “government subsidized,” unstable, and could require “moving around”; 4) C.M.G.’s father (Frank) often ate lunch with her at school, attended school functions, took her on trips, regularly exercised his visitation, and rarely allowed more than a couple of days to pass without seeing her; 5) the child attended an excellent school in Austin; 6) only one airline provided non-stop service between Boston and Austin and the return flight did not arrive in Boston until 9:00 p.m.; 7) Frank held a tenured position at the University of Texas and it would be extremely difficult for him to find a like post on the East coast; 8) though Kristen offered to make the child available to Frank through video conferencing and proposed a visitation schedule allegedly affording him substantially the same amount of visitation time, visitation nonetheless was dependent on the child’s school schedule;^[3] 9) moving would reduce the quantum of daily contact between father and child; 10) C.M.G. loves and has a good relationship with her father, stepmother, and half sister; 11) the child also has a good friend living near her father; and 12) C.M.G. is close to Frank’s sister who also lives in Austin.  The foregoing evidence is not of little merit.  It connotes differing home/economic environments to which C.M.G. would be exposed - one potentially unstable, nomadic, and dependent upon where jobs could be found in a unique field of interest versus another shown to be stable and secure.  Needless to say, stability is important to a child’s well-being.  To that, we add the evidence of Ken’s current financial ability to travel back and forth to Texas to be with his family while pursuing his own interests. We further note Kristen’s failure to cite us to any evidence illustrating that 1) her well-being and disposition will be so affected by having to remain in or around Austin that C.M.G. would suffer, or 2) employment opportunities (outside the field of solar energy) for which Ken was trained and qualified were unavailable in or around Austin. When considered in toto, the foregoing data and circumstances are enough to insulate the trial court’s decision from claims of unreasonableness.

            As suggested by Kristen in her brief, one must acknowledge that divorce brings change and the obligation to recognize that.  Yet, the decision to divorce is seldom made by the children of the marriage.  It is more likely foisted upon them by their parents.  And, while some commentators caution against the “slavish adherence” to public policies favoring the maintenance of continuous and frequent contact between children and both of their parents, Echols v. Olivarez, 85 S.W.3d at 480, parents lack the same decision-making freedom, such as the best interest of their children that they may have enjoyed viz-a-viz their decision to divorce.  In sum, the trial court had sufficient basis upon which to conclude that retaining the geographical restriction at issue was warranted.  Its decision does and did not constitute an instance of abused discretion.

            Motion for New Trial

            As for the motion for new trial, Kristen thought it should have been granted on the basis of newly discovered evidence.  The latter purportedly consisted of statements made by Frank regarding his wife’s medical condition and how it prevented him from being C.M.G.’s full-time caretaker.  We overrule the issues.

            Whether a trial court erred in denying a motion for new trial again depends upon whether it abused its discretion.  Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Furthermore, one seeking a new trial due to newly discovered evidence must show that 1) the evidence has come to his knowledge since trial, 2) the failure to discover the evidence is not due to a lack of diligence, 3) the evidence is not cumulative, and 4) the evidence is so material it would probably produce a different result.  Id.           

            That Frank’s wife suffered from the particular medical condition was known to Kristen before the trial ended.  Thus, it was not newly discovered evidence but could be deemed cumulative of other information presented at trial.  And, that C.M.G. had stayed with her father and stepmother indicated that they had the ability to care for the child despite the medical condition; so, one could reasonably debate about whether the new evidence was so material as to probably produce a different result.  Finally, a reasonable jurist could have deemed the evidence as further support for maintaining the status quo since the medical condition could be viewed as interfering with the ability of both Frank and his wife to regularly travel far distances if the child was to move.  That, in turn, could reasonably be viewed as detrimental to the child’s interest in maintaining substantive interaction with her entire family.  Thus, denying a new trial was not an abuse of discretion. 

            In closing, we comment upon the tenor of appellant’s argument and do so not as  criticism but rather as guidance for others who may journey down the same road. Kristen focused most, if not all, of her attention upon the presence of evidence that would purportedly warrant modification of the previous order.  Little was said about the lack of evidence supporting the trial court’s ruling or why the evidence which supported it was either deficient or unworthy of credence.  Litigants and their counsel must be mindful of the standard of review when drafting their briefs and argument if they wish to effectively help or influence the reviewing court.  

            The orders are affirmed since all issues are overruled.

                                                                                    Brian Quinn

                                                                                    Chief Justice

---

[1]While Kristen notes other beneficial factors such as her husband’s increased salary, due to the higher cost of living and higher taxes in Massachusetts, Ken’s employment with a startup company whose financial future is not certain, and the placement of their home on the market even before Ken lost his job and its failure to sell, there is room for disagreement as to whether that it falls in Kristen’s favor.  The increased salary will supposedly allow her to remain a stay-at-home mother but she has been a stay-at-home mother since her second child was born and she had no plans to obtain a job in the foreseeable future, even if Ken’s current job does not last.  There is also mention of the good schools in the area where they plan to live, but the child currently attends a “blue-ribbon” school in Austin.  

[2]Kristen argues that we are bound by a statement in the Echols opinion to the effect that “we must primarily concentrate on the general quality of life for both the child and the custodial parent in assessing whether a change is positive and in the child’s best interest.”  Echols v. Olivarez, 85 S.W.3d 475, 482 (Tex. App.–Austin 2002, no pet.).  In that case, the trial court found there to be no abuse of discretion in lifting a geographical limitation because there was evidence that the child would be a direct beneficiary of her mother’s promotion which would allow the mother to be better able to care for the child.  Id. However, that opinion was based on the specific facts of that case. 

^[3]It can also be said that seeing someone over the internet is far different than being in the actual presence of someone. Though a phone call may have its beneficial effects, it hardly substitutes for a hug, kiss, or touch.