Gary Lynn Crouch v. The State of Texas--Appeal from 102nd District Court of Bowie County (Majority)

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State: Texas

Court: Texas Northern District Court

Docket No: 06-12-00061-CR

Case Date: 10/17/2012

Plaintiff: Gary Lynn Crouch

Defendant: The State of Texas--Appeal from 102nd District Court of Bowie County (Majority)

Preview:In The Court of Appeals Sixth Appellate District of Texas at Texarkana _________________________
No. 06-12-00061-CR ______________________________

GARY LYNN CROUCH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 102nd Judicial District Court Bowie County, Texas Trial Court No. 11F0571-102

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION Gary Lynn Crouch, his wife, Jennifer Crouch,1 and their three children were in Florida when he was arrested on a Bowie County, Texas, felony warrant for the charge of prohibited sexual conduct. Jennifer was also arrested on the same charge. The couple was taken to Bowie County, Texas, and a Florida court entered a temporary order awarding custody of the children to their maternal grandmother, Esther Joyce Stockelman. The temporary order prohibited anyone from removing the children from the state of Florida without the court's permission. The couple pled guilty to the charges and received a ten-year sentence, probated for ten years. In December 2011, without court permission, the grandmother removed the children from Florida and drove to a rest stop in Alabama, where she met Gary and Jennifer and delivered the children to them. The couple then drove the children from Alabama to Texas. On January 11, 2012, the State moved to revoke Gary's community supervision based on the allegation that he had committed the offense of removing minors from the state of Florida, contrary to a Florida court order. After a hearing on March 30, 2012, the trial court revoked Gary's community supervision and sentenced him to ten years' imprisonment. Gary contends the evidence was insufficient to conclude that he committed a new offense in violation of the terms and conditions of his community supervision. We affirm the judgment. I. Factual and Procedural Background Gary and Jennifer, along with their three children, were in St. Cloud, Florida, "going through [Jennifer's] grandparents' estate because they had just both passed away when Gary and "
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To avoid confusion, we will refer to the appellant and his wife by their first names throughout this opinion.

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Jennifer were arrested on a Bowie County, Texas, felony warrant for the charge of prohibited sexual conduct. The children remained in Florida with their maternal grandmother who lived in St. Cloud. The record is unclear as to exactly when this happened. On July 7, 2011, while Gary and Jennifer were incarcerated in Texas, the Circuit Court of the Ninth District in and for Osceola County, Florida, Juvenile Division: 41 (the Florida court), entered a Dependency Shelter Order awarding temporary custody to the grandmother. The order noted that Gary and Jennifer were incarcerated in Texas, that they had been charged with sexual abuse of another child, and that the children were at risk of prospective abuse. The order stated that"no person shall remove the children from the State of Florida without a Court Order. " On June 28, 2011, the Texas Department of Family and Protective Services ruled out any alleged child abuse or neglect by Gary or Jennifer, and, "Pursuant to the probation order issued in Texas, the parents have no limitation on contact with their minor children." On August 5, 2011, both Gary and Jennifer pled guilty to prohibited sexual conduct and were sentenced to ten years' imprisonment, with the sentences probated for ten years. The terms and conditions of their community supervision prohibited them from residing with minors including their own children, unless they had court permission to do so. A few weeks later, on August 31, 2011, Gary filed a motion to dismiss the Florida action for lack of subject-matter jurisdiction, alleging that Texas, as the children's home state, had jurisdiction over any matters relating to the relationship between Gary and his children. On the same day, Gary and Jennifer appeared in the Florida court and denied the allegations that their children were in danger of abuse. The Florida court ruled that the couple was to have no contact 3

with their children, and the matter was reset for a pretrial conference in Florida on October 11, 2011. The record is unclear as to whether the Florida court considered and ruled on Gary's motion to dismiss at that time or at any subsequent time. On October 18, 2011, the Bowie County District Court changed the terms of Gary's community supervision, so that he "may live and have contact with his biological children except as may be restricted by other court orders. " In December 2011, prior to December 16, Gary and Jennifer were driving " [their] way on out of town when, according to Gary's testimony, he received a cell phone call from the " grandmother telling him to "pick up your kids. Gary testified that when he received the call, he " and Jennifer stopped where they were, "at a roadside rest area in Alabama; the grandmother " arrived and "dropped off the children, and he drove them back to Texas. He took the children " because he "thought they were in danger. The record is unclear regarding both what town Gary " and Jennifer were leaving at the time they received the grandmother's call or why they were in Alabama. " One of the first places Gary went with the children was to the County Judge of Bowie " County, Sterling Lacy, and justice of the peace, Gerald Rankin, and spoke to them about having his children in Texas. Shawne Walraven, the chief of police in DeKalb, Texas, testified that on December 14, 2011, Gary spoke with him about whether he could enforce warrants or custody paperwork from Florida. At the time, Walraven noticed that Gary had some children in his car. Walraven testified that when Gary spoke with him, Gary "made remarks that he didn't take [the children] out of the state, that he couldn't get in trouble for taking them out of the state, and that 4

he was going to do what he had to do to have his kids with him." After that meeting, Walraven conducted an investigation, contacted various agencies in Florida, and discovered that "they " (presumably the Florida court and law enforcement agencies) did not know that the children were in Texas. On December 16, 2011, pursuant to a Florida court order, Walraven removed the children from the Gary and Jennifer's DeKalb home and they were returned to Florida. Jennifer testified that she heard and "pretty much agreed with Gary's testimony. While " they were driving, she remembered Gary getting a phone call from Stockelman, her mother. They stopped at a roadside park or rest stop in Alabama and received the children from Stockelman. Jennifer further testified that she did not drive down to Florida to pick up the children. She also denied removing the children from Florida. On January 11, 2012, the State moved to revoke Gary's community supervision based on the allegation that Crouch had committed a new offense, to-wit: removing minors from the state of Florida contrary to a Florida court order. After a hearing on March 30, 2012, the trial court revoked Crouch's community supervision and sentenced him to ten years' imprisonment. II. Sufficiency of the Evidence In his point of error, Gary argues that there was insufficient evidence that he committed a new offense in violation of the terms and conditions of his community supervision. A trial court's decision to revoke community supervision is reviewed for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The trial court may revoke community supervision if the defendant violates a condition of community supervision imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). Said 5

another way, the State must prove every element of at least one ground for revocation by a preponderance of the evidence. In re T.R.S., 115 S.W.3d 318, 320 (Tex. App. Texarkana 2003, -- no pet.). When the greater weight of the credible evidence creates a reasonable belief the defendant violated a condition of his or her community supervision, the State has carried its burden. Id. at 321. We examine the evidence in a light most favorable to the trial court's order. Id. The State alleged that Gary's community supervision should be revoked because he committed an offense under Section 787.04 of the Florida Statutes by removing the children from the state contrary to a Florida court order. Section 787.04 states, in pertinent part: (1) It is unlawful for any person, in violation of a court order, to lead, take, entice, or remove a minor beyond the limits of this state, or to conceal the location of a minor, with personal knowledge of the order. (2) It is unlawful for any person, with criminal intent, to lead, take, entice, or remove a minor beyond the limits of this state, or to conceal the location of a minor, during the pendency of any action or proceeding affecting custody of the minor, after having received notice as required by law of the pendency of the action or proceeding, without the permission of the court in which the action or proceeding is pending. (3) It is unlawful for any person to knowingly and willfully lead, take, entice, or remove a minor beyond the limits of this state, or to knowingly and willfully conceal the location of a minor, during the pendency of a dependency proceeding affecting such minor or during the pendency of any investigation, action, or proceeding concerning the alleged abuse or neglect of such minor, after having received actual or constructive notice of the pendency of such investigation, action, or proceeding and without the permission of the state agency or court in which the investigation, action, or proceeding is pending. ....

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(6) Any person who violates this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Under Section 777.011 of the Florida Statutes, anyone who "aids, abets, counsels, hires, or otherwise procures the commission of an offense against the state of Florida "is a principal in the " first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense. " Here, the trial court found by a preponderance of the evidence that Section 787.04(3) was violated because the children were taken from Florida during the pendency of a dependency proceeding affecting such minor or during the pendency of any investigation, action, or proceeding concerning the alleged abuse or neglect of such minor, after having received actual or constructive notice of the pendency of such investigation, action, or proceeding and without the permission of the state agency or court in which the investigation, action or proceeding is pending. From the evidence presented, the trial court concluded that Gary was criminally responsible because he "aided and abetted in removing those children from Florida. " The issue is whether there is sufficient evidence from which the trial court could have, by a preponderance of the evidence, reasonably found that Gary aided and abetted the grandmother in removing the children from Florida. Florida caselaw defines " and abet as "help[ing] the person who actually committed the aid " crime by doing or saying something that caused, encouraged, incited, or assisted the criminal. " Gale v. State, 726 So.2d 328, 329 (Fla. Dist. Ct. App. 1999). " `Mere presence at the scene, including driving the perpetrator to and from the scene or a display of questionable behavior after the fact, is not sufficient to establish participation.' Id. (quoting Valdez v. State, 504 So.2d " 7

9, 10 (Fla. Dist. Ct. App. 1986)). The elements of aiding and abetting assisting the actual -- perpetrator in some way and intent to participate" ay be proven by a combination of surrounding -- m circumstances from which a jury can reasonably infer a defendant's guilt. Parker v. State, 795 " So.2d 1096, 1099 (Fla. Dist. Ct. App. 2001). On direct examination of Gary, the following exchange occurred between Gary and his attorney: Q. Now, you went down to pick up your children from your motherin-law, did you not? A. Initially that was my belief, that we were just going to be able to go down there and get them. Q. She was -- she took them out of the state?

A. Yeah. I did not remove them from the state whatsoever. I was not in the State of Florida when I picked up my children. Gary thought that his "children were going to be in danger because [his] mother-in-law was bringing them across state lines. " There is no evidence that Gary, himself, physically removed the children from Florida. Although Gary lives in Bowie County, Texas, his testimony was that he was driving somewhere in Alabama when he received a call from the grandmother, whereupon he stopped at a rest area and the grandmother, who had brought the children from Florida, delivered them to him. He denied that the exchange was preplanned or having any contact or conversation with the grandmother prior to the exchange. Upon obtaining possession of the children at the rest area, Gary then drove them back to Texas. He admitted that at the time the grandmother brought him

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the children, he knew that the Florida court order prohibited him from having contact with the children and also prohibited anyone from removing the children from the state without the court's permission. Shortly after arriving in Texas with the children, he began to inquire of local officials whether a Florida order could be enforced in Texas. The evidence is sufficient for a fact-finder to reasonably infer that Gary's actions in meeting the grandmother in Alabama and taking possession of the children and further removing them to Texas, in knowing violation of the Florida court order, assisted the grandmother in removing the children from Florida. We overrule Gary's point of error. We affirm the judgment of the trial court.

Jack Carter Justice Date Submitted: Date Decided: September 19, 2012 October 17, 2012

Do Not Publish

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