Opinion filed May 16, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-17-00145-CR
                                  __________

                 IDRINA LASHAY PRESTON, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                            Midland County, Texas
                        Trial Court Cause No. CR47798


                     MEMORANDUM OPINION
       After a bench trial, the trial court convicted Idrina Lashay Preston of two
counts of abandoning a child. See TEX. PENAL CODE ANN. § 22.041 (West 2019).
The trial court assessed her punishment at confinement for a term of two years in the
State Jail Division of the Texas Department of Criminal Justice. See id.
§ 22.041(d)(1) (offense is a state jail felony if the actor abandons the child with the
intent to return for the child). However, the trial court suspended the imposition of
the sentence and placed Appellant on community supervision for a period of two
years.
         Appellant brings three issues on appeal. She contends that (1) the evidence
was insufficient to support her convictions, (2) her right to due process was violated
because her convictions were based upon a lack of evidence, and (3) the trial court
abused its discretion when it admitted evidence regarding the condition of
Appellant’s residence. We affirm.
                                  Background Facts
         The State charged Appellant with abandoning her two children, D.L. and
M.S., with the intent to return. The State alleged that she endangered D.L. and M.S.
by not leaving them with adequate adult supervision. Appellant entered a plea of
“not guilty” to both counts and waived the right to a jury trial.
         Midland Firefighter Preston Wright testified that he received an emergency
call about a fire at Appellant’s residence. When he arrived at the residence, he
observed smoke coming from the backyard. Wright knocked on the front door and
D.L. answered. D.L. took Wright through the residence to the backyard. Wright
testified that there was a small debris fire in the backyard but that there was “great
potential” for the fire to spread. Wright extinguished the fire but was not able to
determine how the fire started. Wright called the police based on the condition of
the residence. He left the scene after the police arrived. Wright was on scene for
about thirty minutes.
         Wright testified that he did not make contact with a parent, guardian, or
anyone over the age of fifteen at the scene. He described the home as being in
disrepair: there was a hole in the corner of an outside wall at the front of the house,
there was a trash can or barrel full of water and mosquito larvae in the living room,
there was no sink in the kitchen, and portions of the interior had missing sheetrock


                                           2
going up into the attic. Wright testified that, based on his experience as a firefighter
and as an EMT, the residence was an unsafe place to leave children without
supervision. Appellant did not object when Wright testified about the condition of
the interior of the residence. However, when the State presented photographs of the
exterior of the residence during Wright’s direct examination, Appellant objected that
the evidence was irrelevant. The trial court overruled Appellant’s objection.
      Midland Police Officer Cassandra Carrasco testified that she responded to an
emergency call for a fire at Appellant’s residence. When she arrived at the scene,
Officer Carrasco made contact with D.L., an eleven-year-old boy, and M.S., a nine-
year-old girl. During the two hours that Officer Carrasco was at the scene, she did
not locate or speak with a parent, guardian, or anyone over the age of fifteen.
      Officer Carrasco testified that the roof in the back bedroom was caved in and
that there was water and mold throughout the residence. The State presented
photographs of two Aleve pills and a green leafy substance in a baggie found inside
the residence. Officer Carrasco identified the green leafy substance as marihuana.
Appellant objected to Officer Carrasco’s identification of the substance as
marihuana on the grounds that it called for speculation and was “overtly prejudicial”;
Appellant also requested a mistrial. The trial court sustained the objection as to the
description of the green leafy substance but denied the request for a mistrial.
Appellant then objected to these photographs on relevance grounds. The trial court
overruled Appellant’s objection. Other than the testimony that the green leafy
substance was marihuana, Appellant did not object to Officer Carrasco’s testimony
about the condition of the interior of the residence. Officer Carrasco testified that
the residence was an unsafe place to leave children without supervision.
Officer Carrasco testified that the living conditions and the fire posed an immediate
risk to the welfare and safety of D.L. and M.S.


                                           3
         After Officer Carrasco cleared the residence, she asked the children to contact
a parent. The children attempted to call Appellant, but to Officer Carrasco’s
knowledge, Appellant did not answer the phone. Officer Carrasco then asked the
children to contact another adult to come supervise them. The children contacted
their aunt, and their aunt arrived at the scene about thirty minutes later and took
custody of the children.
         Appellant testified on her own behalf during the guilt/innocence phase. She
testified that she was at work from nine in the morning until two in the afternoon on
the date of the alleged offense. Appellant testified that, when she went to work, the
children were in the living room of the residence with Appellant’s aunt, Rita Hunter,
who had agreed to stay with the children while Appellant was at work.1 Hunter had
watched the children in the past, and according to Appellant, Hunter cared for the
children properly and had never before left the children alone. After Appellant
returned from work, she learned that Hunter had left for a little while. Appellant
testified that she expected the children to be supervised the entire time she was at
work and that she did not intend to leave the children unsupervised.
         Appellant testified that the residence belonged to her great-grandmother but
that Appellant was living there and repairing the residence to live in permanently
with her children. According to Appellant, the children were in that home only
because D.L. had recently gotten into trouble for breaking into someone’s house.
Before D.L. got into trouble, D.L. lived with his father, and M.S. lived with
Appellant’s sister.




         1
          Hunter did not testify at trial. In this regard, Appellant testified that Hunter passed away prior to
trial.


                                                       4
                    Sufficiency of the Evidence and Due Process
      In her first issue, Appellant contends that the evidence was insufficient to
support her convictions. Appellant contends that there was no evidence that she
abandoned her children because she left her children with a caretaker. We disagree.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
      A person commits the offense of abandoning a child if, “having custody, care,
or control of a child younger than 15 years, he intentionally abandons the child in
any place under circumstances that expose the child to an unreasonable risk of


                                          5
harm.” PENAL § 22.041(b). Abandon means to “leave a child in any place without
providing reasonable and necessary care for the child, under circumstances which
no reasonable, similarly situated adult would leave a child of that age and ability.”
Id. § 22.041(a).
      The El Paso Court of Appeals dealt with a similar situation in Castillo v. State,
2006 WL 1710062, at *4 (Tex. App.—El Paso 2006, no pet.) (not designated for
publication). The defendant in Castillo asserted that she left her three children at
home with an adult roommate. Id. at *1–2. The next morning, the children were
found at home alone. Id. The defendant asserted that the evidence was insufficient
to support her convictions because there was no evidence that she left her children
at home alone. Id. at *4. The court of appeals rejected her argument that, in order
to obtain a conviction for child abandonment, the State is required to prove that she
left her children alone. Id. Furthermore, the court determined that a rational trier of
fact could have concluded that the defendant’s act of leaving the children with a
roommate who would later leave the children alone “did not constitute reasonable
and necessary care and a reasonable and similarly situated adult would not have left
the children in [the roommate’s] care. Id.
      There is no dispute that the children in this case were under the age of fifteen.
When firefighters and police officers arrived on the scene, there was no adult present
to supervise the children. Furthermore, the children were not able to immediately
contact Appellant. Officer Carrasco testified that, during the two hours that she was
at the scene, she did not locate or speak with a parent, guardian, or anyone over the
age of fifteen. Because the children were alone for at least two hours at the
residence, the trial court could have inferred that Appellant did not arrange for
anyone to watch the children while Appellant was at work.             In this regard,
Appellant’s testimony that Hunter was watching the children when Appellant went


                                          6
to work turned on Appellant’s credibility. We presume that the trial court resolved
this conflict in favor of the State. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at
778; see Harris v. State, No. 05-10-00480-CR, 2012 WL 833595, at *4 (Tex. App.—
Dallas Mar. 13, 2012, no pet.) (not designated for publication).
      Furthermore, there is evidence supporting a conclusion that Appellant left the
children without adequate adult supervision. As noted previously, the children were
left unattended in circumstances wherein a fire started while the children were
unsupervised. Additionally, they remained unsupervised for at least two hours while
police officers waited for an adult to return to the home. Viewing the evidence in
the light most favorable to the jury’s verdict, we conclude that a rational trier of fact
could have found beyond a reasonable doubt the elements of abandoning a child.
We overrule Appellant’s first issue.
      In her second issue, Appellant contends that her right to due process was
violated because her convictions were based upon insufficient evidence. Appellant
contends that no evidence shows that Appellant abandoned her children or left her
children without adequate adult supervision. Pursuant to the Due Process Clause of
the Fifth and Fourteenth Amendments, no person may be convicted of a criminal
offense and denied his liberty unless his criminal responsibility for the offense is
proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970);
Alvarado v. State, 912 S.W.2d 199, 206–07 (Tex. Crim. App. 1995); see U.S. CONST.
amends. V, XIV. In addressing Appellant’s first issue, we have determined that the
evidence was sufficient to support Appellant’s convictions. Therefore, Appellant
was not denied due process of law as alleged in her second issue. We overrule
Appellant’s second issue.




                                           7
                               Admission of Evidence
      In her third issue, Appellant contends that the trial court abused its discretion
when it admitted extraneous evidence regarding the condition of the residence. She
contends on appeal that the admission of this evidence violated Texas Rules of
Evidence 403 and 404 and “tempts” a guilty verdict. Whether to admit evidence at
trial is a preliminary question to be decided by the trial court. TEX. R. EVID. 104(a);
Tienda v. State, 358 S.W.3d 633, 637–38 (Tex. Crim. App. 2012). We review a trial
court’s ruling on the admissibility of evidence for an abuse of discretion.
Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We will uphold the
trial court’s decision unless it lies outside the zone of reasonable disagreement. Id.
(citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)).
      Under Rule 403, a trial court “may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” TEX. R. EVID. 403. Rule 404(b) prohibits the
admission of extraneous-offense evidence at the guilt phase of a trial to prove that a
defendant committed the charged offense in conformity with bad character.
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim App. 2011) (citing TEX. R. EVID.
404(b)). However, extraneous-offense evidence may be admissible when it has
relevance apart from character conformity. Id. (citing Moses v. State, 105 S.W.3d
622, 626 (Tex. Crim. App. 2003)). Such evidence “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). Evidence
is relevant if it has “any tendency to make a fact more or less probable than it would
be without the evidence.” TEX. R. EVID. 401.




                                          8
      We first note that Appellant did not make objections under Rule 403 and
Rule 404 to most of the evidence offered at trial concerning the condition of the
home. When the prosecutor sought to offer four photographs of the exterior of the
home through Wright, Appellant made a general relevancy objection that the trial
court overruled.    Wright subsequently testified, without objection, about the
condition of the interior of the home. The prosecutor then offered four photographs
of the interior of the home through Wright. Appellant only objected to these
photographs on the basis that Wright was unable to authenticate them. The trial
court overruled this objection.
      Officer Carrasco subsequently testified, without objection from Appellant,
about the condition of the home. The prosecutor subsequently discussed two
photographs of the interior of the home with Officer Carrasco. Officer Carrasco
testified that one photograph depicted two Aleve pills and that the other photograph
depicted a dirty plate and a plastic baggie containing a green leafy substance.
Appellant objected that Officer Carrasco was not qualified to identify the leafy
substance as marihuana, and the trial court sustained Appellant’s objection.
Appellant also moved for a mistrial on the basis that the officer’s description of the
substance was “overtly prejudicial,” which the trial court denied.         When the
prosecutor subsequently offered the two photographs into evidence, Appellant
lodged only a general relevancy objection, which the trial court overruled.
      A Rule 403 objection is not implicitly contained in relevancy or Rule 404(b)
objections; rather, a specific Rule 403 objection must be raised to preserve error.
Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d) (citing Montgomery, 810 S.W.2d at 388). However, a general relevancy
objection will permit review under Rule 404(b) if the trial court is apprised of the
nature of the complaint. Id. (citing Montgomery, 810 S.W.2d at 387). Appellant


                                          9
only made an objection about prejudicial evidence with respect to Officer Carrasco’s
testimony that the leafy substance was marihuana.        And as previously noted,
Appellant only objected on relevancy grounds to a portion of the evidence about the
exterior condition of the home. Accordingly, Appellant has not preserved error
regarding her appellate complaints concerning the bulk of the evidence offered at
trial about the condition of the home. See TEX. R. APP. P. 33.1.
      Here, the evidence presented at trial regarding the condition of the residence
was that (1) there was a hole in the corner of an outside wall; (2) there was a trash
can or barrel full of water and mosquito larvae in the living room; (3) there was no
sink in the kitchen; (4) portions of the interior had missing sheetrock going up into
the attic; (5) the roof in the back bedroom was caved in; (6) there was water and
mold everywhere; and (7) there was a baggie containing a green leafy substance and
two Aleve pills on a table. Even if Appellant had preserved error regarding all the
evidence of the condition of the residence, this evidence had relevance apart from
character conformity—to prove that Appellant left the children in a place that would
expose them to an “unreasonable risk of harm.” See PENAL § 22.041(b). The
evidence of the condition of the home makes it more probable that Appellant left
D.L. and M.S. in a residence that exposed the children to an “unreasonable risk of
harm” than without this evidence. See TEX. R. EVID. 401.
      Moreover, Rule 404(b) allows for admission of certain “same-transaction
contextual evidence.” Devoe, 354 S.W.3d at 469; see Wesbrook v. State, 29 S.W.3d
103, 115 (Tex. Crim. App. 2000); Nguyen v. State, 177 S.W.3d 659, 667 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d). This kind of evidence is admissible to
show the context in which the criminal acts occurred. Wesbrook, 29 S.W.3d at 115
(citing Archer v. State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1980)); see also
Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App. 1992). The factfinder “is


                                         10
entitled to know all the relevant surrounding facts and circumstances of the charged
offense; an offense is not tried in a vacuum.” Nguyen, 177 S.W.3d at 666–67 (citing
Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)). Extraneous acts
are admissible when they are “so intertwined with the State’s proof of the charged
offense that avoiding reference to [them] would make the State’s case incomplete or
difficult to understand.” Smith v. State, 316 S.W.3d 688, 699 (Tex. App.—Fort
Worth 2010, pet. ref’d) (citing Prible v. State, 175 S.W.3d 724, 731–32 (Tex. Crim.
App. 2005)). In other words, “evidence of extraneous offenses that are indivisibly
connected to the charged offense and necessary to the State’s case in proving the
charged offense” may be admissible. Lockhart, 847 S.W.2d at 571.
      To the extent that the evidence about the condition of the home constituted
extraneous-offense evidence, it was admissible as same transaction contextual
evidence.   The condition of the residence was so intertwined and indivisibly
connected with the allegation that Appellant abandoned her children that the trial
court was entitled to hear evidence regarding the condition of the home. See
Lockhart, 847 S.W.2d at 571; Smith, 316 S.W.3d at 699; see also PENAL § 22.041(b).
Under these circumstances, we cannot conclude that the trial court abused its
discretion by admitting the evidence.
      Finally, we have previously noted that Appellant lodged only a “speculation”
and a “prejudice” objection to Officer Carrasco’s testimony that the green leafy
substance was marihuana. However, the trial court sustained Appellant’s objection.
Appellant then sought a mistrial based on the same allegation. We review a trial
court’s denial of a motion for mistrial under an abuse of discretion standard.
Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004). We conclude that the trial court did not
abuse its discretion by denying Appellant’s motion for mistrial. The fact that the


                                        11
underlying trial arises from a bench trial rather than a jury trial is significant to our
analysis. See Ex parte Twine, 111 S.W.3d 664, 668 (Tex. App.—Fort Worth 2003,
pet. ref’d) (the danger of unfair prejudice under Rule 403 is greatly reduced when a
judge is sitting as the trier of fact); see also Corley v. State, 987 S.W.2d 615, 621
(Tex. App.—Austin 1999, no pet.) (when a case is tried to a trial court rather than to
a jury, the danger that evidence will be considered for an improper purpose is
diminished). We overrule Appellant’s third issue
                                         This Court’s Ruling
        We affirm the judgments of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


May 16, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


                                                     12
