

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
 

 
                                                                  O
P I N I O N
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.
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 anye He HHTT
imminent danger of death, bodily injury, physical 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.


