Texas Stamp

New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012

Texas Rules of Appellate Procedure Rules 80-80.1, effective December 1, 2019
The State Prosecuting Attorney must be served on every petition for discretionary review or brief filed by any party or amicus curiae in the Court of Criminal Appeals, including replies, responses, amendments, and supplements.

HAMMACK, MICHAEL ANTHONY

PD-0636-19 11/06/2019

“The Court of Appeals erred by finding that the evidence was legally sufficient to find Appellant guilty of interfering with child custody because the State failed to prove beyond a reasonable doubt that Appellant knowingly violated the express terms of a judgment or order when Appellant was never served the order, never saw the order, and never had the terms of the order explained to him in either open court or in any other manner.”

A Department of Family and Protective Services (DFPS) investigator went to Hammock’s house to serve him with an emergency Order for Protection of a Child and to take custody of his pregnant daughter pursuant to the order. The investigator relayed this information to Hammock, but he became angry and ordered her off his property. After taking custody of the daughter at school, the investigator called Hammack and told him she acted in accordance with the order. The child escaped state custody, and Hammack secreted her. As a result, he was convicted of interfering with child custody.

On appeal, Hammack claimed that the evidence was insufficient to prove that he knowingly violated the order because he was never served with it or informed about its terms. The court of appeals rejected his claim, citing other evidence of Hammack’s knowledge. First, DFPS attempted to serve him with the order and take custody of his daughter. And shortly thereafter an investigator called Hammack to inform him that she had taken custody of the child as authorized by the order. Hammack then failed to meet the investigator to discuss the situation after she requested that they meet. Hammack appeared not to be surprised when a police officer told Hammack that his daughter was missing. Further, another officer saw the child enter Hammack’s mother’s house with him and, when he searched the house, he heard people in the attic. Hammack, who was positioned on the attic ladder, yelled at the officer about the violation of his rights. Hammack had also taken his daughter to Oklahoma and consented to her marriage to an older boyfriend. Finally, the child was found in Hammack’s house. The court concluded that Hammack knew the order existed and that his custody of his daughter violated the order.

Hammack contends that the State failed to meet its burden because he was convicted of knowingly violating an order that he was never served with or given a copy of, and he was never otherwise informed of its specific terms. Therefore, Hammack argues, there is no evidence that he knew what custodial or possessory rights the order contained.

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