By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Absence for less than 24 hours still
"substantial" under definition of running away from home (99-4-32)
On May 10, 1999, the Dallas Court of Appeals upheld a conviction under the
harboring a runaway statute, rejecting a claim that the juvenile-victim could
not be a runaway when absent from home for less than 24 hours.
99-4-32. Urbanski v. State, 993 S.W.2d 789 (Tex.App.—Dallas 5/10/99)[Texas
Juvenile Law 50 (4th Edition 1996)].
Facts: This case involves the crime of harboring a runaway child. In appealing
his conviction, Joseph James Urbanski, Jr., challenges the sufficiency of the
evidence to prove certain elements of the offense. More specifically, appellant
claims the evidence does not show he harbored the child or that the child was,
in fact, a runaway because she was not away from her home for a substantial
length of time. Appellant also challenges the sufficiency of the evidence to
prove venue. We conclude the evidence is sufficient in all respects and affirm
the trial court's judgment. We reach our conclusion after determining the
meaning of "harbor" and "substantial length of time" as used
in the statute defining the offense.
The facts are largely undisputed. Appellant met the child in this case, Emily,
through a computer bulletin board. The two eventually met in person at a
bulletin board get-together. They secretly met each other five or six times
after that. Emily testified she may have had a "crush" on appellant
and thought appellant had feelings for her. Appellant knew Emily was sixteen
years old. Appellant was twenty-six. Some time after she met appellant, Emily
met another bulletin board participant named Desiree. On the night of the
offense, Emily asked her parents if Desiree could take her to a bulletin board
get-together at a bowling alley in Arlington. Emily and her parents lived in
Dallas. Her parents refused to let her go. Emily told Desiree she wanted to run
away from home. Later that evening, Emily and appellant discussed Emily's
running away. They agreed that Emily would sneak out of her house, and appellant
would take her to the get-together in Arlington.
Appellant drove to Emily's house at about 11 p.m. Emily climbed out of her
bedroom window to meet appellant. She brought along a small gym bag containing
her contact lens supplies and a change of clothes. Appellant drove them to the
bowling alley in Arlington.
At the bowling alley, Emily met Desiree. For about an hour and a half, Desiree
tried to convince Emily not to run away. Fearing for Emily's safety, she asked
Emily to come home with her instead of going with appellant. These conversations
were held in appellant's presence, yet appellant encouraged Emily to stay with
him. Desiree was unable to convince Emily otherwise, and at about 1:30 a.m.,
Emily left the bowling alley with appellant.
Appellant drove Emily to a friend's house in Irving, where they stayed the
night. In the morning, Emily said she wanted to go home, but appellant did not
offer to take her home. Instead, appellant drove Emily to his parents' house in
Fort Worth. When they arrived, Emily saw on a table a piece of paper with her
father's name and telephone number on it. She and appellant then knew her
parents were looking for her.
Appellant accessed the bulletin board from the computer in his house. After
communicating with some people through the computer, they confirmed that Emily's
parents were looking for her. Appellant became worried that he would get in
trouble. Emily called Desiree and asked if she could stay at Desiree's
apartment. Desiree testified that, during this call, she heard appellant in the
background telling Emily to hang up, that they had to get out of the house.
Emily hung up the telephone, and they left appellant's house. Eventually, they
called Desiree again from a public telephone in a shopping mall, and Desiree
gave appellant directions to her apartment in Allen. Emily said she and
appellant went to Desiree's apartment because it was "a place to be for the
time being."
Unknown to appellant and Emily, Desiree contacted Emily's parents and disclosed
Emily's whereabouts. As a result, Emily's father was waiting for appellant and
Emily when they arrived at Desiree's apartment at about 4:30 p.m. Emily's
father, who was a Garland police officer, arrested appellant as he walked with
Emily toward Desiree's apartment. Police officers from Allen arrived and
arrested Emily as a runaway.
Emily testified she did not intend to run away "forever." She
explained that it could have been for a week or a year, but that she and
appellant knew it was at least for one night. She stated that appellant was the
one who planned what they would do after leaving the bowling alley. She also
said that, even after they realized Emily's parents were looking for her, she
knew appellant would not "pull out" and take her home, and she did not
want to go home. She said appellant never suggested taking her home or to a
place where her parents could pick her up.
Emily's father testified that Emily did not have permission to be away from
home. An Allen police officer testified that Desiree's apartment was located in
Collin County. Appellant did not testify or call any witness in his defense. The
trial court, sitting without a jury, convicted appellant of harboring a runaway
child. Appellant timely appealed, asserting thirteen points of error.
Held: Affirmed.
Opinion Text: In his first six points of error, appellant contends the evidence
is legally insufficient to support his conviction for harboring a runaway child.
The standard for reviewing a legal insufficiency claim is well established. See
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);
Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.), cert. denied, 507 U.S.
975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). We examine the evidence in the
light most favorable to the trial court's judgment and determine whether any
rational trier of fact could have found beyond a reasonable doubt those elements
of the offense that appellant challenges on appeal.
The penal code provides, in pertinent part, that a person commits the
misdemeanor offense of harboring a runaway child if he knowingly harbors a child
and is criminally negligent about whether the child is (1) younger than eighteen
years, and (2) voluntarily absent from the child's home without the consent of
the child's parent or guardian for a substantial length of time or without
intent to return. See Tex. Penal Code Ann. s 25.06(a) (Vernon 1994). The
information in this case alleged, in relevant part, that appellant harbored
Emily in three different ways: by providing her shelter, transportation, and his
home.
Appellant initially contends the evidence is insufficient to prove he
"harbored" Emily. In particular, appellant contends that the acts
alleged by the State of providing shelter, transportation, and his residence to
Emily could not by law constitute "harboring." He argues the State had
to prove, but did not, that he "intended" to prevent Emily's discovery
and engaged in "affirmative" physical acts that helped Emily avoid
detection or apprehension.
The word "harbor" is not statutorily defined, and its meaning has not
been addressed by a Texas appellate court. Because it is not statutorily
defined, we give the word its plain meaning. See Heberling v. State, 834 S.W.2d
350, 354 (Tex.Crim.App.1992). Statutory words must be read in context and
construed according to the rules of grammar and common usage. Tex. Gov't.Code
Ann. § 311.011(a) (Vernon Supp.1999).
The word "harbor" has universally accepted meanings. Its most commonly
recognized meanings as a verb are "to give shelter to" and "to
give refuge to" someone. See THE CONCISE OXFORD DICTIONARY 618 (9 th
ed.1995); WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1031 (1993); THE AMERICAN
HERITAGE DICTIONARY 822 (3 rd ed.1992); CAGE CANADIAN DICTIONARY 532 (1983).
Further, the definition of "refuge" includes protection, or a source
of help, relief, or comfort. See THE AMERICAN HERITAGE DICTIONARY 1319 (3 rd
ed.1992). [2] Applying these definitions, the word "harbor," in the
context of penal code section 25.06, necessarily connotes the act of giving
shelter or refuge to a runaway child. We conclude, therefore, that the
definition of "harbor" is broad enough to encompass providing a
runaway child with shelter, transportation, or a home, as alleged by the State.
Accordingly, we reject appellant's argument that the State's allegations cannot
by law constitute "harboring."
We also reject appellant's assertion that the State had to prove he
"intended" to harbor Emily. In proving the harboring element of the
offense, the State was required only to prove that appellant
"knowingly" harbored Emily. See Tex. Penal Code Ann. § 25.06(a)
(Vernon 1994). Consequently, we review the evidence to determine if any rational
fact finder could conclude beyond a reasonable doubt that appellant knowingly
gave shelter or refuge to Emily.
Facts showing that appellant knowingly harbored Emily are plentiful. After he
and Emily discussed her running away from home, appellant arranged to pick her
up in his car when she sneaked out of her bedroom late at night. At the bowling
alley, appellant encouraged Emily not to go home with Desiree, but to stay with
him. Appellant arranged to stay at a friend's house overnight, and he drove
Emily there. The next day, after seeing Emily's father's name on a note in his
home, he used his computer to confirm Emily's parents were looking for her.
Appellant urged Emily to hang up the telephone when she was talking to Desiree
so they could leave his home. Knowing that Emily's father had been in contact
with his parents, and after confirming that fact through the computer, he took
Emily to Desiree's apartment rather than take her home. He was caught and
arrested while escorting Emily to Desiree's apartment. Appellant never suggested
Emily go home but, in fact, took action that he thought would help them evade
her parents by going to Desiree's apartment in Allen. Based on these facts and
the plain meaning of "harbor," we conclude appellant knowingly
harbored Emily as alleged by the State. By providing transportation in his car,
shelter overnight, and the use of his home, appellant gave Emily shelter or
refuge.
Appellant next challenges Emily's status as a runaway. Specifically, he contends
the evidence is insufficient to show Emily was absent from her home for a
"substantial length of time." See Tex. Penal Code Ann. § 25.06(a)(2)
(Vernon 1994). Appellant argues that any amount of time less than twenty-four
hours can never be a substantial length of time by law. His argument is based on
the fact that it is a defense to harboring a runaway child if the actor notifies
a law enforcement agency or person at the child's home of the child's presence
within twenty-four hours after discovering the child is a runaway. See id. §
25.06(c)(2).
Appellant argues that, by providing this defense, the legislature showed its
intent that a "substantial length of time" necessarily means some
length of time more than twenty-four hours. We disagree.
First, we note that appellant's argument is logically flawed. To hold, as
appellant urges us to hold, that an offense does not occur until a person has
knowingly harbored a runaway child for at least twenty-four hours would vitiate
the defense. By definition, the defense is only available within the first
twenty-four hours occurring after discovery of the child's runaway status,
regardless of how long the child has been a runaway. Yet, under appellant's
interpretation of the statute, the offense would not arise until the end of that
twenty-four hour period. In effect, the statutory defense would never exist
under appellant's interpretation. In addition, such a contorted interpretation
would have the unwanted effect of encouraging people to harbor runaways knowing
they would not be subject to prosecution for a twenty-four- hour period after
they learned about the child's runaway status. Clearly, that is not the purpose
of the defense.
In applying a statute, we presume every word in the statute has been used for a
purpose, and each word, phrase, clause, and sentence should be given effect if
reasonably possible. See State v. Hardy, 963 S.W.2d 516, 520
(Tex.Crim.App.1997). Thus, if the legislature intended "a substantial
length of time" in every case to mean more than twenty-four hours, it would
have used the words "more than twenty-four hours" rather than "a
substantial length of time." Because it did not, we conclude the
legislature intended "a substantial length of time" to mean something
different than "more than twenty-four hours."
Rather than assign a fixed number to the meaning of the term, the legislature
left the issue to the fact finder to determine on a case by case basis. Whether
a child's period of absence is "substantial" depends upon many
factors, including the duration of the child's absence, the time of day, the
intent of the child in returning, and the authorization, if any, for the child's
absence. See Barrow v. State, 973 S.W.2d 764, 768 (Tex.App.- Amarillo 1998, no
pet.). To this non-inclusive list, we would also add the child's age, the
child's motive for running away, the child's activity during the absence, the
child's distance from home, and the number, age, maturity, and experience of the
persons, if any, accompanying or assisting the child during the absence. We
believe these factors may impact the determination of whether the length of a
particular child's absence from home is "substantial." This flexible
interpretation of the statute is reasonable. Moreover, unlike appellant's
proposed interpretation, our interpretation does not conflict with or vitiate
the defense set out in subparagraph (c)(2) of section 25.06.
Using the criteria set out above, we conclude Emily was absent from her home for
a substantial period of time. The evidence reflects that Emily, a child of
sixteen, (1) left home late at night when she was supposed to be sleeping, (2)
left home after being denied permission to attend a late night party in another
city, (3) was accompanied and transported to that party by appellant, a man ten
years older than she, (4) admittedly had a "crush" on appellant and
thought he had feelings for her, (5) was taken to three different counties
during the course of her absence, (6) remained absent overnight for
approximately seventeen hours, and (6) knowingly evaded her parents' efforts to
locate her. Considering the circumstances under which Emily left home and
remained absent, the evidence sufficiently supports the conclusion that the
duration of her absence was "substantial." See id. (holding that
five-hour absence was substantial length of time under the circumstances).
Appellant does not challenge the sufficiency of the evidence to support any of
the other elements that constitute harboring a runaway child. We must affirm
appellant's conviction based on the evidence discussed above if it sufficiently
proves any one of the alternative theories alleged by the State in the
information. See Rogers v. State, 774 S.W.2d 247, 251 (Tex.Crim.App.), cert.
denied, 493 U.S. 984, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989). Accordingly, in
light of the foregoing discussion and all the facts in the record, we conclude
the evidence is legally sufficient to show appellant knowingly harbored Emily, a
sixteen year-old child, by providing her shelter, transportation, and use of his
home, and was criminally negligent about whether Emily was voluntarily absent
from home without her parents' consent for a substantial length of time. We need
not discuss the sufficiency of the evidence to support the State's alternative
allegation that Emily had no intent to return home. We overrule appellant's
first, second, third, fourth, fifth, and sixth points of error.
In his seventh, eighth, ninth, and tenth points of error, appellant challenges
the factual sufficiency of the evidence for essentially the same reasons set
forth in his first six points of error. The standard of review in analyzing a
claim of factual insufficiency is clearly established. See Scott v. State, 934
S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). We simply review the evidence
in support of and contrary to the trial judge's finding to determine whether the
judgment is so contrary to the great weight of the evidence as to be clearly
wrong and unjust. See id.
Appellant contends the evidence is factually insufficient because there is a
reasonable alternative hypothesis to guilt in this case, namely, that Emily was
rebelling against her parents by sneaking out of the house to attend a social
function and that Emily's father, being a police officer, overreacted to the
situation. We note initially that we may not set aside a conviction for factual
insufficiency simply because a different result might be more reasonable. See
Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Thus, the mere existence
of an alternative reasonable hypothesis of innocence does not render the
evidence factually insufficient. See Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.-Dallas
1998, no pet.).
Appellant did not present any evidence at trial. His argument reasserts the same
arguments made in his challenge to the legal sufficiency of the evidence,
focusing in particular on the evidence that Emily did not intend to leave home
forever but did intend to return at some point. As discussed above, the State
did not have to prove its alternative allegation that Emily had no intent to
return home, because it adequately proved that she was absent for a substantial
length of time. Having reviewed all the evidence in the record under the
applicable standard of review, we cannot conclude the evidence produced by the
State is so uncertain, inconsistent, improbable, or unbelievable that it would
be clearly unjust to allow the conviction to stand. We also cannot conclude the
trial court's findings are against the great weight of the evidence. Because we
conclude the judgment is supported by factually sufficient evidence, it is
unnecessary for us to detail further the evidence relevant to this issue. See
Scott, 934 S.W.2d at 402. We overrule appellant's seventh, eighth, ninth, and
tenth points of error.
In his eleventh, twelfth, and thirteenth points of error, appellant challenges
the legal and factual sufficiency of the evidence to prove venue. Venue is a
noncriminative fact that the State must prove by a preponderance of the
evidence. See Tex.Code Crim. Proc. Ann. art. 13.17 (Vernon 1977); Lozano v.
State, 958 S.W.2d 925, 929 (Tex.App.-El Paso 1997, no pet.). The proper county
for the prosecution of this offense is the county in which it was committed. See
Tex.Code Crim. Proc. Ann. art. 13.18 (Vernon 1977). In this case, the State
alleged and, thus, had to prove that venue was proper in Collin County. We
assume, without deciding, that appellant is entitled to a factual as well as
legal sufficiency review, and our conclusion that the evidence is sufficient to
prove venue is based upon the application of both standards of review.
Appellant asserts that the only act committed by him in Collin County was the
act of transporting Emily to Desiree's apartment in Allen. He further asserts
that no criminal act was committed in Collin County because appellant
transported Emily to Desiree's apartment for the sole purpose of returning Emily
to her home. Appellant misrepresents the facts in the record.
Desiree testified that appellant intended to drop Emily off at Desiree's
apartment and leave. This does not support appellant's assertion that, in doing
so, appellant intended to return Emily home. To the contrary, the record
indicates that Emily and appellant fled appellant's parents' home because they
knew Emily's father had been in contact with appellant's parents. They called
Desiree from a shopping mall to get directions to Desiree's apartment. Appellant
and Emily did not know Desiree had been in contact with Emily's father.
Appellant did not know that Emily's father would be at Desiree's apartment.
Emily specifically testified that it was never appellant's idea to take her home
or to any place where her parents could pick her up. She specifically denied
going to Desiree's apartment so that her parents could pick her up. Indeed,
Emily left her overnight bag in appellant's car when the two of them walked up
to Desiree's apartment door. This evidence shows appellant did not drive Emily
to Desiree's apartment with the intent that Emily return home. At best it
shows-as Desiree testified-that appellant simply wanted to wash his hands of the
situation because he realized he was in over his head.
The record shows the offense in this case was committed in three different
counties. Venue is proper in any county where the offense was committed.
Appellant provided Emily transportation to Desiree's apartment for the purpose
of concealing her or getting her shelter there. Desiree's apartment was located
in Collin County. Consequently, the State properly proved venue in Collin
County. We overrule appellant's eleventh, twelfth, and thirteenth points of
error. We affirm the trial court's judgment.