Opinion filed August 31, 2011




                                             In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-10-00175-CR
                                         __________

                         AIMA LORENA GARCIA, Appellant
                                      V.
                            STATE OF TEXAS, Appellee


                            On Appeal from the 441st District Court
                                   Midland County, Texas
                               Trial Court Cause No. CR36897


                                          OPINION
       Aima Lorena Garcia appeals her conviction by a jury of the offense of endangering a
child. The trial court assessed her punishment at two years in the Texas Department of Criminal
Justice, State Jail Division, suspended for a period of five years on community supervision. She
asserts in two issues that the evidence was insufficient to support her conviction and that the trial
court abused its discretion in denying her motion for new trial without a hearing where the
motion raised a matter not determinable from the record and necessary for appeal. We reverse
and acquit.
       We must determine whether, after viewing all the evidence in a light most favorable to
the verdict, any rational trier of fact could have found the existence of the elements of the
offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893 (Tex.
Crim. App. 2010); Gibbs v. State, 819 S.W.2d 821, 834 (Tex. Crim. App. 1991). The indictment
alleged that the defendant, on or about October 27, 2009, intentionally, knowingly, recklessly,
and with criminal negligence placed L.G., a child younger than fifteen years of age, in imminent
danger of death, bodily injury, and physical and mental impairment by failing to properly clothe
her in a manner necessary for the weather and surroundings.
       Elyse Haynes, a resident of the Dakota Apartments, testified that on October 28, 2009, a
girl knocked on her door. She said the girl, whom she identified as Garcia, was carrying a baby
wearing nothing but a diaper. Haynes recalled that it was really cold. Haynes stated that she did
not let Garcia in, but called 911. Haynes described the baby as shivering, with blue lips and a lot
of snot. She estimated the age of the child as “[m]aybe two.” She related that, while she was
waiting for the police to arrive, she saw Garcia sitting in a vehicle that belonged to Haynes.
       Haynes testified that, at some point after the police arrived, she was holding the child and
it was shivering, “very, very bad.” She indicated that, after she got into her the vehicle with the
heater running, it took the child thirty minutes to stop shivering. She said she was concerned
about the child that night because she was cold.
       Zachary Chesworth testified that he is a patrol officer for the City of Midland. He said
that, after being dispatched to the scene in question, he observed Garcia holding a child about
one or two years of age. He described the child as wearing only a diaper. He indicated that the
child appeared cold to him and that it was cold to the touch.
       Kevin Bullard testified that he is a patrol officer for the Midland Police Department. He
said that, when he arrived on the scene, he found Garcia holding the child, who was wearing only
a Pamper. He indicated that Garcia was holding the child while sitting in a Tahoe with the doors
closed and windows shut. He described the baby as shivering, with “snot and stuff on its face,”
and the diaper as “huge, wet, and . . . very cold to the touch.” He said the baby appeared to be
cold. He described Garcia as being intoxicated.
       On cross-examination, Officer Bullard acknowledged that no one called paramedics or
the hospital with respect to the child. On redirect examination, he indicated that he knew that, if
something was not done about the child, it could turn for the worse and the infant would need
medical attention. He said he observed that the baby was shivering and had blue lips from the
cold. He also noted that the child was cold to the touch.


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       The State and Garcia stipulated that the child in question was Garcia’s child and that the
child was younger than fifteen years of age. Police department records were introduced showing
that the weather at the time in question was fifty-eight degrees, with south winds at fourteen to
twenty-one miles per hour.
       Garcia contends that the evidence is insufficient because there is no evidence that the
child was in imminent danger of bodily injury or physical or mental impairment. One of the
elements of the offense of endangering a child is that the defendant’s conduct placed the child in
imminent danger of bodily injury or physical or mental impairment. TEX. PENAL CODE ANN.
§ 22.04 (Vernon 2011). While the evidence presented in this case showed that the child was
quite cold and one could infer that, if the child had remained outside with the same clothing the
child might have been in imminent danger of bodily injury or physical or mental impairment, we
conclude that one could not reasonably determine from the evidence that Garcia’s conduct
placed the child in imminent danger of bodily injury or physical or mental impairment.
       The State has presented Texas authorities in which the evidence was sufficient to show
imminent danger and some in which the evidence was insufficient to show imminent danger, but
because none involved exposing a child to the cold, none is shown to be inconsistent with our
holding. We have found two out-of-state cases involving conduct causing a child to be too cold
in which the evidence was found to be sufficient: Ellis v. State, 642 S.E.2d 869, 870 (Ga. App.
2007), and Ohio v. Mabrey, No. 96048, 2011 WL 3425645 (Ohio App. Aug. 4, 2011). We find
both of those cases to be distinguishable.
       In Ellis, the child was unattended, crying, and shivering outside a home, clothed only in
jeans and a tee shirt. Ellis, 642 S.E.2d at 870. The temperature at the time was between thirty-
one and thirty-four degrees. Id. The child’s jeans were damp, and his feet were wet. Id. There
was evidence that the child displayed signs of mild hypothermia in that he was shivering, his lips
were blue, and his body was cold to the touch. Id. The defendant was convicted of the offense
of contributing to the deprivation of a minor. Id. at 871. This merely required a showing that a
defendant willfully committed an act or willfully failed to act “when such act or omission would
cause [the child] to be found to be a deprived child,” which is a child without proper parental
care or control necessary for the child’s physical, mental, or emotional health or morals. Id.
There was no requirement to prove any imminent danger of death, bodily injury, physical
                                                3
impairment, or mental impairment. The court found the evidence to be sufficient to support the
conviction. Id. We find this case to be distinguishable because, in Ellis, the State was not
required to prove that the defendant’s conduct caused imminent danger of bodily injury, physical
impairment, or mental impairment.
       In Mabrey, the defendant, a licensed practical nurse, left a disabled child in cold water for
too long. Mabrey, 2011 WL 3425645, at *2-3. The State was required to show that the child
suffered physical or mental injury that harmed or threatened the child’s health or welfare. Id. at
*2. It was not required to prove that there was an imminent danger of bodily injury or physical
or mental impairment. A paramedic called to the house said the child was cold to the touch and
his lips were very blue. Id. at *3. A treating nurse at the hospital testified that the child had a
temperature of eighty-four degrees Fahrenheit and indicated that, at that temperature, multiple
systems within the body would be shutting down. Id. A physician testified that what was
remarkable was the profound, life-threatening hypothermia that was present on arrival at the
local emergency department. Id. at *5. The court found that the evidence was sufficient to
support the conviction. Id. at *7. We find this case to be distinguishable, both because the State
was not required to prove that there was an imminent danger of bodily injury or physical
impairment or mental impairment and because, in Mabrey, the State presented evidence showing
that the child’s injuries were life-threatening.
       Because we have found the evidence insufficient to sustain the conviction, we sustain
Issue One. In view of our determination of this issue, we need not determine Issue Two.
       We reverse the judgment and render a judgment of acquittal.




                                                                                JOHN G. HILL
August 31, 2011                                                                 JUSTICE
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1



       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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