                                              OPINION
                                        No. 04-10-00274-CR

                                        Gail MAYBERRY,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 81st Judicial District Court, Wilson County, Texas
                                  Trial Court No. 09-05-041-CRW
                            Honorable Donna S. Rayes, Judge Presiding

Opinion by: Marialyn Barnard, Justice
Dissenting opinion by: Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 10, 2011

AFFIRMED

           A jury convicted appellant Gail Mayberry of several counts of child endangerment. In

her sole point of error, Mayberry contends the evidence is insufficient to support her conviction.

We affirm the trial court’s judgment.

                                              BACKGROUND

           On December 21, 2008, Mayberry came home from work and found numerous children

in her home. The children were out of school on Christmas break. The children included her
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fifteen-year-old son, her two other children, and several of their friends. According to certain

testimony, when Mayberry arrived, her fifteen-year-old son asked if he could have the car keys

so he and some of the other children could “go driving around” in the family station wagon.

Mayberry contends her son was driving only to take the children home. Despite the fact that her

son was fifteen and unlicensed, Mayberry handed him the keys. Mayberry did not accompany

the children.

       Mayberry’s son drove the group around for a while, ultimately heading to a place known

as the “third bridge,” a bridge over water where children would fish and swim. When they got to

the bridge it was dark and Mayberry’s son turned the car lights off in an attempt to scare the

other children. There is apparently a legend about a ghost woman or some other entity haunting

the bridge. At least one of the girls was scared and wanted to go home. The group then returned

to Mayberry’s house. When the group arrived back at the house, Mayberry’s son honked the

horn and the only two children that stayed behind during the first “ride around,” decided to go

along on the second tripBall of those along on the first trip stayed in the car. There was evidence

that before they left, Mayberry stepped outside and saw the children in the car. With the two

additional passengers, there was insufficient space in the car seats for all of the children,

requiring that at least some of them remain without a seatbelt. Including the fifteen-year-old

driver, there were nine children in the car. One of the children testified that Mayberry told them

some of them could sit in the storage compartment in the back. The group drove off with

Mayberry’s son still at the wheel.

       On this second trip, the group decided to go back to the third bridge. Again, the lights

were turned off in an attempt to scare the younger children. As before, one of the children

wanted to go home so they left and went back to Mayberry’s house. Two of the children got out



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of the car, but Mayberry’s son left a third time with six of the children still in the car. Their

destination was once again the third bridge.            This time, however, the evidence showed

Mayberry’s son drove very fast toward the bridge, causing the car to become airborne. When the

car landed, the driver lost control, crashed through a fence, and landed in an empty pond. As a

result of the crash, some of the children were seriously injured and two of them died. It was

ultimately determined that Mayberry’s son had been traveling over 100 miles per hour; he was

the only child in the car wearing a seatbelt.

       Mayberry was indicted on seven counts of child endangerment. After a jury trial, she

was found guilty and the trial court sentenced her to two years in a state jail facility, but

suspended the sentenced and placed Mayberry on two years community supervision. She was

also ordered to pay a $1,500.00 fine and court costs. Mayberry then perfected this appeal.

                                                ANALYSIS

                                        Standard of Review

       We begin by noting that although Mayberry raises both legal and factual sufficiency

challenges to the evidence, the Texas Court of Criminal Appeals has abolished factual

sufficiency review. See Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011) (citing

Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality opinion)). Now, the

legal sufficiency standard established in Jackson v. Virginia is the only standard a reviewing

court uses in determining whether the evidence is sufficient to support each element of the

charged offense. Brooks, 323 S.W.3d at 895 (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

Accordingly, we will review Mayberry’s issue as a challenge to the legal sufficiency of the

evidence.

       In reviewing a claim that the evidence is legally insufficient, the relevant question is



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whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson,

443 U.S. at 319. This standard accounts for the fact finder’s duty “to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Id. Accordingly, in analyzing legal sufficiency, we will determine whether the necessary

inferences are reasonable based on the combined force of the evidence, direct and circumstantial,

when viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007).

                                            Application

       Mayberry argues the State failed to produce sufficient evidence that she knew the danger

to the children was “imminent” or that she acted “intentionally, knowingly, recklessly, or with

criminal negligence.” A person commits the offense of endangering a child if she “intentionally,

knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that

places a child younger than 15 years in imminent danger of death, bodily injury, or physical, or

mental impairment.” TEX. PENAL CODE ANN. § 22.041(c) (West 2011). The Texas Court of

Criminal Appeals has held “imminent” means “ready to take place, near at hand, impending,

hanging threateningly over one’s head, menacingly near.” Devine v. State, 786 S.W.2d 268, 270

(Tex. Crim. App. 1989); see also Rodriguez v. State, 137 S.W.3d 758 (Tex. App.—Houston [1st

Dist.] 2004, no pet.) (holding danger was “imminent” in child endangerment case where

defendant drove under the influence with children as passengers).

       In support of her argument, Mayberry points out her son “did much driving under her

tutelage.” She also allowed him to drive across the street to the grocery store, to basketball

practice, to take friends home, “and many other places.” Mayberry also apparently allowed him,



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on previous occasions, to drive with other children in the car. She allowed him to drive the car

to San Marcos with her supervision. Mayberry even allowed her son to drive at night. Mayberry

contends that in all the times she allowed him to drive, with or without her, he never received a

ticket, never damaged the car, and she never received any complaints about his driving.

Accordingly, Mayberry asserts that her offense, at most, was allowing her son to drive without a

license. Mayberry seems to contend that without evidence she knew her son would drive

recklessly or negligently, she was not subject to a conviction for child endangerment. We

disagree.

       The evidence, when viewed in the light most favorable to the verdict, established that

Mayberry allowed a fifteen-year-old, unlicensed driver to drive a station wagon, at night, without

adult supervision. She allowed that fifteen-year-old, unlicensed driver to drive around, at night,

unsupervised with first six, and then eight, children. Moreover, she allowed this knowing that

not all of these children would be able to sit safely in the vehicle, requiring that at least some of

them travel without seatbelts. There was evidence that on the second trip, she saw all of the

children in the vehicle, saw they could not all sit safely on the vehicle seats given their numbers,

and advised that some of them could sit in the open cargo compartment in the back. Mayberry

allowed her son to leave her house and drive with these children as passengers not once, not

twice, but three times. Clearly, Mayberry had no idea where her son was or where he was taking

the children, as the officer testified she stated her son “should have been driving around town but

he shouldn’t have been out there.” According to her own testimony, she did not know where all

of her children wereBin the house or with her fifteen-year-old son.

       It is irrelevant that her son had no previous accidents. His previous driving experience is

likewise irrelevant. At the moment Mayberry allowed an underage, unlicensed driver to operate



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the vehicle at night with more passengers than there were available seats, the danger to the

children was imminent. See Rodriguez, 137 S.W.3d at 761 (holding rational fact finder could

have found appellant placed children in imminent danger where officer testified he could not rule

out alcohol consumption as contributing factor to car accident, even though other driver failed to

yield right of way; alcohol impairment could have caused appellant to react more slowly).

Moreover, the evidence shows Mayberry’s actions in giving her son the car keys and allowing

him to drive with improperly seated children was intentional, or at least reckless. Mayberry

herself saw there was insufficient room in the car for all of the children, and specifically told

them to sit in the open cargo space.

       Considering this evidence within the Jackson v. Virginia standard, we hold the jury could

have found Mayberry intentionally, knowingly, recklessly, or with criminal intent placed the

children in imminent danger of death, bodily injury, or physical impairment. See 443 U.S. at

319; TEX. PENAL CODE ANN. § 22.041(c). There was conflicting evidence, but it was within the

province of the jury to resolve the conflicts, weigh the evidence, and draw reasonable inferences.

Jackson, 443 U.S. at 319. We hold the jury’s inferences were reasonable based on the combined

force of the evidence, direct and circumstantial, when viewed in the light most favorable to the

verdict. See Clayton, 235 S.W.3d at 778.

       The dissent points out that “[t]he determination of whether a child is in imminent danger

is always a fact-intensive exercise.” Dissenting opinion at *3. We wholly agree with this

assertion. However, the dissent then ignores the applicable standard, which places fact finding

within the province of the jury, allowing it to draw reasonable inferences from the basic facts and

make an ultimate determination with regard to whether the danger to the children was imminent.

See Jackson, 443 U.S. at 319. Our duty is not to act as a thirteenth juror, but merely to determine



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whether the jury’s inferences are reasonable based on the combined force of the evidence–both

direct and circumstantial–when viewed in the light most favorable to the jury’s verdict. Id.

Given the combined force of the evidence in this case, any rational fact finder could have found

Mayberry placed the children in imminent danger of bodily injury beyond a reasonable doubt.

See Rodriguez, 137 S.W.3d at 761 (holding rational fact finder could have found appellant

placed children in imminent danger where officer testified he could not rule out alcohol

consumption as contributing factor to car accident, even though other driver failed to yield right

of way; alcohol impairment could have caused appellant to react more slowly). Certainly, the

evidence establishing the driver’s lack of experience given his age, his unlicensed status, and

Mayberry’s decision to allow unbelted children to travel with such a driver was evidence from

which the jury could have inferred imminent danger–especially when combined with the

testimony that Mayberry’s son was driving one hundred miles an hour at the time of the accident,

suggesting he was not the safe driver Mayberry claimed he was and that she was aware of this.

Given the standard of review, we cannot say such an inference by the jury was unreasonable.

                                          CONCLUSION

       Based on the foregoing, we overrule Mayberry’s issue and affirm the trial court’s

judgment.

                                                 Marialyn Barnard, Justice


Publish




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