Date: 11-30-2022

Case Style:

Candace Bell v. The State of Texas

Case Number: 02-21-00098-CR

Judge: Bonnie Sudderth

Court:

Second Appellate District of Texas at Fort Worth

On appeal from the County Criminal Court No. 1 of Denton County

Plaintiff's Attorney: Rick Daniel

Defendant's Attorney: Fort Worth, Texas - Best Criminal_Defense
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Fort Worth, Texas – Criminal law lawyer represented Appellant with appeals her conviction and 180-day sentence for violation of a protective order charge.

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I. Background
In two points, Appellant Candace Bell appeals her conviction and 180-day
sentence for violation of a protective order. See Tex. Penal Code Ann.
§ 25.07(a)(3)(B) (providing that a person commits an offense if, in violation of an
order issued under Chapter 85 of the Family Code, the person knowingly or
intentionally goes to a child-care facility where a child protected by the order attends).
The facts are quite simple. It is undisputed that on October 4, 2019—in
violation of a protective order that prohibited Bell from “going to or near” and
“within 1000 yards of” Hebron Montessori School, the child-care facility that her son
(Son) attended—Bell went to see Son at Hebron. After Bell left, Hebron’s director
reported Bell’s presence to Son’s father, James Hawkins. Hawkins immediately called
the police and drove to the school. A police officer arrived at Hebron shortly
thereafter, made a report, and obtained a warrant for Bell’s arrest. Bell was later
arrested.
Bell was charged with knowingly violating the protective order. See id. A jury
convicted her and assessed her punishment at 180 days in jail.
In her first point on appeal, Bell complains of the trial court’s refusal to include
an instruction in the court’s charge regarding a clerk’s duty under Texas Family Code
Section 85.042(b) to deliver a copy of a protective order to the affected child-care
3
facility.1
In her second point, Bell argues that there was insufficient evidence to
support a finding of guilt against her. We affirm.
II. Analysis
A. Point One: Refusal of Bell’s Requested Jury Instruction
In her first point, Bell argues that the trial court should have instructed the jury
that “[o]ur law provides that if a protective order made under Chapter 85 of the
Family Code prohibits the Defendant from going to or near a childcare facility or
school, the clerk of the Court shall send a copy of the order to the childcare facility or
school.”
At trial, after Bell’s attorney requested this charge instruction, the trial court
refused the request, stating, “I’m going to deny that request . . . . I do not believe that
that’s an element of the offense.” While Bell’s attorney agreed that the content of the
requested instruction did not represent an element of the offense, he nevertheless
urged the trial court to provide it as “an explanation of the law that is used to obtain a
conviction under Chapter 85 of the Family Code . . . . [i.e.,] an instruction to the jury
explaining the law to them.” The trial court again denied the request and refused to
include the requested instruction in the court’s charge.
1Both sides agree that Hebron did not receive a copy of the protective order
from the clerk of the court. But it is also undisputed that Hawkins had provided a
copy of the protective order to Hebron, that Hebron was aware of the protective
order, and that a copy of the protective order was kept in Son’s file at Hebron.
4
Bell is correct that because this protective order prohibited Bell from going to
or near Hebron, the clerk of the court was required under Family Code Section
85.042(b) to send a copy of the protective order to Hebron. Tex. Fam. Code Ann.
§ 85.042(b) (providing that “[i]f a protective order made under this chapter prohibits a
respondent from going to or near a child-care facility or school, the clerk of the court
shall send a copy of the order to the child-care facility or school”). And it is
undisputed that the clerk failed to carry out its obligation to do so.
Article 36.14 of the Texas Code of Criminal Procedure required the trial court
here to instruct the jury in writing as to “the law applicable to the case” without
“expressing any opinion as to the weight of the evidence, . . . summing up the
testimony, discussing the facts or using any argument in his charge calculated to
arouse the sympathy or excite the passions of the jury.” Tex. Code Crim. Proc. Ann.
art. 36.14.
2 But Bell’s requested instruction regarding the clerk’s duty to send the
protective order to Hebron had no place in this charge; it was not applicable to the
2The trial court was further obligated to include statutory defenses, affirmative
defenses, and justifications in the court’s charge if they were raised by the evidence.
See Walters v. State, 247 S.W.3d 204, 212, 208–09 (Tex. Crim. App. 2007). But the
clerk’s failure to send a copy of the protective order to Hebron is neither a statutory
defense nor an affirmative defense as those terms are statutorily defined. See Tex.
Penal Code Ann. § 2.03 (providing that “[a] defense to prosecution for an offense in
[the Penal Code] is so labeled by the phrase: ‘It is a defense to prosecution . . . .’”),
§ 2.04 (similarly providing that “[a]n affirmative defense in [the Penal Code] is so
labeled by the phrase: ‘It is an affirmative defense to prosecution . . . .’”). Nor is such
failure a justification for violation of a protective order, and Bell makes no claim that
it is.
5
case here because it would not have assisted the jury in identifying the elements of the
offense that the State was required to prove, nor would it have identified a defense, an
affirmative defense, or a justification for the jury to consider. See Tex. Penal Code
Ann. § 25.07. Indeed, had the trial court included the requested instruction in the
charge, the court would have run the risk of commenting on the weight of the
evidence, see Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008) (“Even a
seemingly neutral instruction may constitute an impermissible comment on the weight
of the evidence because such an instruction singles out that particular piece of
evidence for special attention.”), which it is expressly forbidden to do.
The trial court did not err by refusing Bell’s requested instruction. We overrule
Bell’s first point.
B. Point Two: Sufficiency of the Evidence
In her second point, Bell complains that there was insufficient evidence to
support a finding of guilt against her. The record demonstrates otherwise.
In an evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017).
To determine whether the State has met its burden to prove a defendant’s guilt
beyond a reasonable doubt, we compare the crime’s elements as defined by a
6
hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State,
622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see Febus v. State, 542 S.W.3d 568, 572
(Tex. Crim. App. 2018) (“The essential elements of an offense are determined by state
law.”). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or restrict the
State’s theories of liability, and adequately describes the particular offense for which
the defendant was tried. Hammack, 622 S.W.3d at 914.
The law as authorized by the indictment means the statutory elements of the
offense as modified by the charging instrument’s allegations. Curlee v. State, 620
S.W.3d 767, 778 (Tex. Crim. App. 2021); see Rabb v. State, 434 S.W.3d 613, 616 (Tex.
Crim. App. 2014) (“When the State pleads a specific element of a penal offense that
has statutory alternatives for that element, the sufficiency of the evidence will be
measured by the element that was actually pleaded, and not any alternative statutory
elements.”). “Under this standard, evidence may be legally insufficient when the
record contains either no evidence of an essential element, merely a modicum of
evidence of one element, or if it conclusively establishes a reasonable doubt.”
Queeman, 520 S.W.3d at 622 (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim.
App. 2013)).
When a sufficiency issue turns on the meaning of the statute under which the
defendant was prosecuted, we review the statutory construction issue de novo. Flores
v. State, 620 S.W.3d 154, 158 (Tex. Crim. App. 2021); Liverman v. State, 470 S.W.3d
7
831, 836 (Tex. Crim. App. 2015); see Prichard v. State, 533 S.W.3d 315, 319–20 (Tex.
Crim. App. 2017) (reciting principles of statutory construction). “In those situations,
after viewing the evidence in the light most favorable to the verdict, we ask if certain
conduct actually constitutes an offense under the statute” as construed. Flores, 620
S.W.3d at 158; see Timmins v. State, 601 S.W.3d 345, 347–48 (Tex. Crim. App. 2020).
“[W]ords not specially defined by the Legislature are to be understood as
ordinary usage allows, and jurors may thus freely read statutory language to have any
meaning which is acceptable in common parlance.” Vernon v. State, 841 S.W.2d 407,
409 (Tex. Crim. App. 1992); see Green v. State, 476 S.W.3d 440, 445–47 (Tex. Crim.
App. 2015) (quoting Vernon). “Accordingly, when determining the sufficiency of
evidence to support a jury verdict, reviewing courts must not employ definitions of
relevant statutory words which are different or more restrictive than the jurors
themselves were legally entitled to use.” Vernon, 841 S.W.2d at 409.
Section 25.07 of the Texas Penal Code provides that a person commits an
offense if, in violation of an order issued under Chapter 85 of the Texas Family
Code,3
she knowingly or intentionally goes to or near a child-care facility, as
specifically described in the order, where a child protected by the order attends. Tex.
Penal Code Ann. § 25.07(a)(3)(B). Thus, applying this statute, a hypothetically correct
charge would have required the State to prove beyond a reasonable doubt that Son
3Both sides agree that the protective order in this case was issued under
Chapter 85 of the Family Code.
8
was “a child protected by the order.”
4
Id. Bell argues that because the protective
order named only James as the protected person,5
there is no evidence that Son was a
person protected by the order.
Without question, Bell violated the terms of the protective order. The order
prohibited Bell from
going to or near the residences, child-care facilities, or schools [Son]
normally attends or in which [Son] normally resides. Specifically, [Bell]
is prohibited from going within 1000 yards of the following locations:
• Hebron Montessori School : 1938 E. Hebron Pkwy
Carrollton, TX 75007.6
4The complaint filed against Bell charged her with “intentionally or knowingly
going to or near the school/daycare of [Son], a member of the family or household or
protected individual described in the protective order, namely: within 1000 yards of
HEBRON MONTESSORI SCHOOL.” [Emphasis added.] A hypothetically correct
charge would not have included the phrase “a member of the family or household”
because that language does not appear in the statute and therefore does not accurately
set out the law. See Tex. Penal Code Ann. § 25.07(3)(B) (prohibiting going to or near
“any child care facility, residence, or school where a child protected by the order or
condition of bond normally resides or attends”); see also Tex. Fam. Code Ann.
§ 85.022(b)(4) (likewise not including the phrase “a member of the family or
household” in permitting a court, in a protective order, to prohibit a person found to
have committed family violence from “going to or near the residence, child-care
facility, or school a child protected under the order normally attends or in which the
child normally resides”). Bell did not challenge the complaint in the trial court or on
appeal.
5The protective order provides that “[i]n this order, ‘Protected Person’ means
Applicant.” “Applicant” was identified as James Hawkins.
6Specifically naming the prohibited child-care facility or school and providing
for a minimum distance from that facility or school is mandated by Family Code
Section 85.022(c) for protective orders that “prohibit the person found to have
committed family violence from . . . going to or near the residence, child-care facility,
9
And it is undisputed that she went there.
Bell’s violation of the protective order was certainly punishable by contempt.
See Tex. Fam. Code Ann. § 85.026(a) (requiring a Chapter 85 protective order to
contain a “prominently displayed statement[] in boldfaced type, capital letters, or
underlined: ‘A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED
FOR CONTEMPT OF COURT’”). But the question here is whether Bell’s violation
of the protective order also rose to the level of a criminal act. And the answer to that
question hinges upon whether Son was, as the Penal Code requires to criminalize
Bell’s act of contempt, “a child protected by the order.” Tex. Penal Code Ann.
§ 25.07(a)(3)(B).
On appeal, the State points out that “within different subsections” of Section
25.07, the statute “uses language to refer to both a ‘protected individual’ and a
‘member of the family or household’” in criminalizing the violation of a protective
order. Indeed, not only does the Penal Code use these two phrases, but the Family
Code also uses other phrases, including “child protected by the order,” in setting forth
the rules and restrictions related to Chapter 85 protective orders. In examining both
Codes, we note that
or school a child protected under the order normally attends.” Tex. Fam. Code Ann.
§ 85.022(b)(4).
10
• Section 85.001 employs both the phrases “the person protected by the order”
and “member of the family or household of the person protected by the
order,”
7 Tex. Fam. Code Ann. § 85.001(b)(2);
• Section 85.007(a) identifies not only “a person protected by an order” and
“member of the family or household of a person protected by an order,” id.
§ 85.007(a), but also “a child protected by the order,”
8
id. § 85.007(a)(3);
• Likewise, Section 85.022(b) refers to “a person protected by an order,” “a
member of the family or household of a person protected by an order,” and “a
child protected under the order,”
9
id. § 85.022(b)(2)–(7); and
7Family Code Section 85.001(b)(2) authorizes a court to issue a protective order
applicable to both parties that is “in the best interest of the person protected by the
order or [a] member of the family or household of the person protected by the
order.” Id. § 85.001(b)(2).
8Family Code Section 85.007(a) permits the court to exclude from the
protective order the address and telephone number of certain individuals. Id.
§ 85.007(a)(1)–(2) (referring to “a person protected by the order”), § 85.007(a)(3)
(referring to “a child protected by the order”).
9Family Code Section 85.022(b) empowers the court to prohibit certain
communications and conduct that are harassing or threatening; that are reasonably
likely to harass, annoy, alarm, abuse, torment, or embarrass or harm; or that harms,
threatens, or interferes with a pet or a companion or assistance animal. Id.
§ 85.022(b)(2)(A)–(C) (referring to “a person protected by an order or a member of
the family or household of a person protected by an order”), § 85.022(b)(3) (also
referring to “a person protected by an order or a member of the family or household
of a person protected by an order”), § 85.022(b)(4) (referring to “a child protected
under the order”), § 85.022(b)(5), (7) (again referring to “a person protected by an
order” and “a member of the family or household of a person protected by an
order”).
11
• Penal Code 25.07(a) not only uses the phrases “member of the family or
household” and “a child protected by the order,” but also introduces another
descriptive phrase—“a protected individual,”
10 Tex. Penal Code Ann.
§ 25.07(a)(2).
So, throughout the Family Code and the Penal Code, in various contexts, the
Legislature has differentiated between (1) the person protected by the order,
(2) members of the family or household of a person protected by the order, (3) a child
protected by the order, and (4) a protected individual.
We start with the presumption that the Legislature made deliberate use of these
four phrases and that they have distinct meanings. See O’Brien v. State, 544 S.W.3d
376, 384 (Tex. Crim. App. 2018) (“We presume that every word has been used for a
purpose and that each word, phrase, clause, and sentence should be given effect if
reasonably possible.”); Wagner v. State, 539 S.W.3d 298, 306 (Tex. Crim. App. 2018)
(similar). As these phrases apply to the protective order here, the order clearly
identified James as the person protected by the order by stating, “In this order,
‘Protected Person’ means Applicant.”
10Penal Code Section 25.07(a) criminalizes certain violations of protective
orders issued under Chapter 85 of the Family Code. Tex. Penal Code Ann.
§ 25.07(a)(2)(A)–(C) (referring to “a protected individual or a member of the family or
household”), § 25.07(a)(3)(A) (also referring to “a protected individual or a member of
the family or household”), § 25.07(a)(3)(B) (referring to “a child protected by the
order”), § 25.07(a)(5) (referring to “a person protected by the order”).
12
Bell argues that because Son was not specifically named as a “protected
person,” Son was not a “child protected by the order.” However, Bell’s construction
ignores the trial court’s finding in the protective order that the order was “for the
safety and welfare and in the best interest of [James] and other members of the family.”
[Emphasis added.] Because indisputably Son is a member of the family of both James
and Bell, the order purports to protect the safety and welfare of not only James but
also of Son as well.
11
Bell asks us to define “a child protected by the order” more restrictively than
ordinary usage allows. This we cannot do. See Green, 476 S.W.3d at 445; Vernon, 841
S.W.2d at 409. Under a plain reading of Penal Code Section 25.07(a)(3)(B), Son is “a
child protected by the order.”
12
Tex. Penal Code Ann. § 25.07(a)(3)(B).
This statutory construction makes sense because even though James was
identified as the “protected person” in the protective order, the order also worked to
protect Son from witnessing or being caught in the crossfire of an altercation between
his parents. Indeed, James testified that while he was not concerned about Bell’s
engaging in violent behavior toward Son, James sought the protective order because
11It is undisputed that Son is a child.
12We employ a plain reading of the statute because the term “child protected” is
not defined within Penal Code Section 25 or Family Code Chapter 71, which defines
“member of a household.” See generally id. § 25.07(b)(1) (stating that “member of a
household” has the meanings assigned by Family Code Chapter 71).
13
Bell had harassed and assaulted James on numerous occasions in the past and because
he was concerned that she might do so again in front of Son.
And while Son was not specifically named as a “child protected by the order,”
because the order stated that the court had found that “the following protective
orders [were] for the safety and welfare and the best interest of [James] and other
members of the family,” on its face, the order sought to protect the safety and welfare
of Son. Son was a child protected by the order, and the evidence is sufficient to
support Bell’s conviction for violating the protective order. We overrule Bell’s second
point.
13

Outcome: Having overruled both of Bell’s points, we affirm the trial court’s judgment.

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