VACATE; and Opinion Filed July 15, 2016.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-15-00901-CR

                            THE STATE OF TEXAS, Appellant
                                        V.
                           ANGELA DAWN CLAMPITT, Appellee

                      On Appeal from the 380th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 380-81729-2014

                             MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Myers
                                    Opinion by Justice Myers
       Angela Dawn Clampitt was charged with two counts of endangering a child involving her

two children, C.C. and B.C. The jury acquitted her in the case involving C.C. but convicted her

in the case involving B.C. The trial court sentenced Clampitt by agreement to two years in state

jail suspended for four years. Clampitt then filed a motion for new trial alleging insufficiency of

the evidence, which the trial court granted. The State subsequently brought this appeal, alleging

the trial court erred by granting a new trial on the grounds of legal insufficiency. For the reasons

that follow, we vacate the trial court’s order and reinstate the judgment of conviction and

sentence.

                                           DISCUSSION

       The State’s sole point of error on appeal is that the trial court erred by granting a new trial

on the basis of insufficient evidence. The indictment alleged that on or about March 1, 2014, in
Collin County, Texas, appellee did:

       then and there intentionally, knowingly, recklessly, or with criminal negligence,
       engage in conduct that placed [B.C.], a child younger than 15 years of age, in
       imminent danger of death, bodily injury, or physical or mental impairment, by
       failing to adequately supervise [B.C.];

       then and there intentionally, knowingly, recklessly, or with criminal negligence,
       engage in conduct that placed [B.C.], a child younger than 15 years of age, in
       imminent danger of death, bodily injury, or physical or mental impairment, by
       being impaired while having sole responsibility for the care of [B.C.];

       then and there intentionally, knowingly, recklessly, or with criminal negligence,
       engage in conduct that placed [B.C.], a child younger than 15 years of age, in
       imminent danger of death, bodily injury, or physical or mental impairment, by
       attempting to operate a motor vehicle occupied by [B.C.] while impaired[.]

The State contends the evidence was sufficient to conclude appellee placed B.C. in imminent

danger of death, bodily injury, or physical or mental impairment . See TEX. PENAL CODE ANN. §

22.041(c). The State claims she was heavily intoxicated when she took four-year-old B.C.

swimming, left B.C. to swim with only her nine-year-old brother to supervise her, and attempted

to drive a car with B.C. inside while falling over her and passing out repeatedly. Furthermore,

the State asserts that although B.C. was not actually injured, the danger was imminent from

appellee’s actions and that her acquittal in the companion case involving C.C. does not affect the

sufficiency of the evidence.

       The Texas Penal Code states that a person commits an offense if he “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.” Id. The word “imminent” is not defined in the penal code, but the Texas

Court of Criminal Appeals has defined the term to mean “ready to take place, near at hand,

impending, hanging threateningly over one’s head, menacingly near.” Garcia v. State, 367

S.W.3d 683, 689 (Tex. Crim. App. 2012) (quoting Devine v. State, 786 S.W.2d 268, 270 (Tex.

Crim. App. 1989) (internal quotation marks omitted)); see also Millslagle v. State, 81 S.W.3d

                                               –2–
895, 898 (Tex. App.––Austin 2002, pet. ref’d) (same). It is insufficient that the accused placed

the child in a situation that is potentially dangerous. Millslagle, 81 S.W.3d at 898. “[T]o be

‘imminent’ for [the purpose] of imposing responsibility pursuant to Penal Code § 22.041(c), the

situation must be immediate and actual, not potential or future, at the moment of the act or

omission by the defendant.” Newsom v. B.B., 306 S.W.3d 910, 918 (Tex. App.––Beaumont

2010, pet. denied). “[T]he danger must be imminent at the moment the defendant engages in the

conduct.” Id.

       A trial court’s ruling on a motion for new trial is reviewed under an abuse of discretion

standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). The evidence must be

viewed in the light most favorable to the ruling, and the reviewing court will presume the trial

court made all reasonable factual findings against the losing party that are supported by the

record. Id. When deciding a motion for new trial on the grounds of legal sufficiency, the trial

court applies the appellate legal sufficiency standard. State v. Chavera, 386 S.W.3d 334, 336–37

(Tex. App.—San Antonio 2012, no pet.); State v. Provost, 205 S.W.3d 561, 567 (Tex. App.—

Houston [14th Dist.] 2006, no pet.). The trial court must view 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. Chavera, 386 S.W.3d at 336–37;

see also Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). If the evidence meets

this standard, it is an abuse of discretion for the trial court to grant the motion for new trial.

Chavera, 386 S.W.3d at 336–37. The court may not act as a thirteenth juror or substitute its

beliefs for those of the jury, and it is required to defer to the jury’s determinations of the

credibility and weight to be given to the witnesses’ testimony. Brooks, 323 S.W.3d at 899;

Chavera, 386 S.W.3d at 337.

       The record shows that on the morning of Saturday, March 1, 2014, Mark Clampitt

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dropped off for the weekend his two children, nine-year-old C.C. and four-year-old B.C., with

their mother, appellee, Clampitt’s ex-wife. Appellee took the children to a nearby hotel where a

friend, Ben Mitchell, was staying so the children could swim in the hotel pool. Mitchell testified

that they went to his room first, where the children ate snacks and Mitchell and appellee drank

vodka mixed with cranberry juice. Earlier that morning, before picking up her children, appellee

had taken a Xanax, according to Mitchell. Mitchell also recalled that before they went down to

the pool area with the children he refilled the cranberry juice bottle from which he and appellee

had been drinking, but refilled it “[w]ith more vodka.” He estimated that when they took the

bottle with them down to the pool area, its contents were more vodka than cranberry juice.

Mitchell testified that he later received a text message from appellee stating that, referring to the

cranberry juice bottle, “I chugged it.”

       Mitchell admitted on cross-examination, however, that a handwritten statement he gave

to the Allen Police on April 23, 2014, at 12.45 p.m., said nothing about appellee having taken a

Xanax before picking up her children. In the written statement, Mitchell also said he had “some

Advil/Advil PM” and that he told appellee to take two or four because she had complained of a

headache, but Mitchell was not sure which bottle she took the pills from. In his trial testimony,

Mitchell denied he had given appellee any Advil PM.

       C.C. testified that Mitchell stayed with them at the pool area only a few minutes. When

he left, appellee, the two children, and some strangers C.C. did not know were the only people

there. The two children swam on their own while appellee sat at a nearby table smoking an e-

Cigar. C.C. testified that while he and his sister swam on their own appellee left the pool area

entirely, and left nine-year-old C.C. to supervise his four-year-old sister. C.C. also testified that

appellee left and returned to the pool area several times while the children swam, leaving for up

to twenty minutes at a time. No testimony was elicited as to the presence or absence of a

                                                –4–
lifeguard. C.C. estimated he and his sister swam for approximately an hour and a-half, after

which appellee told the children it was time to leave and took them back to her car. C.C.

testified that his mother seemed “kind of woozy” and fell twice while walking to the car.

       When they reached the car, appellee put B.C. in her car-seat and tried to buckle her in,

but appellee was pressing the seatbelt into B.C.’s side and B.C. was “screaming and kicking”

while she did so. Appellee passed out on top of B.C. C.C. testified that he started hitting her,

telling his mother she was hurting B.C. Appellee awoke briefly and then passed out again on top

of B.C. C.C. hit her again and appellee woke up, got up off of B.C., and “basically walked

backwards like she couldn’t control it, and then she fell down and didn’t get up for a minute.”

C.C. texted his father a picture of appellee passed out on top of B.C., saying, “Something is

wrong with my mom. Help. She hurting [B.C.].” That text message, a copy of which was

admitted into evidence, shows it was sent at 2:39 p.m. Clampitt called C.C. to find out what was

going on and, according to Clampitt’s testimony, C.C. was hysterical and he could hear B.C.

“screaming and crying” in the background. C.C. testified that appellee eventually stood up and

got in the driver’s seat of the car, put the keys in the ignition, and “kind of twisted” them. C.C.

was unsure if she turned on the engine, but he recalled that he “could hear music.” Appellee fell

asleep on the steering wheel.

       With C.C. still on the phone, Clampitt called the police. Officer Rich Adams of the Allen

Police Department was the first officer on the scene. Appellee’s car, a white Mercedes, was

parked on the first level of a multilevel parking garage in the northwest portion of the Villages, a

shopping center near the Marriott Hotel. The traffic outside was, Officer Adams recalled, “pretty

heavy” that day. He found appellee passed out behind the steering wheel with her chin resting

on her chest; her eyes were shut. The officer yelled at appellee and shook her arm but she did

not wake up. He had to administer a sternum rub “just to inflict some sort of stimulus to wake

                                                –5–
her,” and when he pulled her head back “she came to and her eyes opened a little bit.” But

appellee then closed her eyes and passed out again, resting her chin on her chest. The officer

continued yelling at appellee to wake up; she was unresponsive. When she eventually opened

her eyes and looked up at the officer, he observed vertical nystagmus, an involuntary jerking of

the eyes, and he could smell a mild odor of an alcoholic beverage on appellee’s breath when she

spoke.

         Another Allen police officer, Alex Jones, testified that when the officers helped appellee

out of her car she was very unsteady on her feet, swayed back and forth as she spoke to an

officer, and had slurred, unintelligible speech. Officer Jones testified that when one of the

officers asked appellee if she realized the gravity of her situation, she laughed. According to the

officers’ testimony, appellee never claimed to have a concussion or a head injury. They also

noted that she refused medical treatment. Appellee was arrested for public intoxication. Officer

Jones recalled that appellee had to be helped to the police car because she could not walk on her

own.

         Officer Adams testified that he found a sixty-four ounce bottle of Ocean Spray diet

cranberry juice in appellee’s car. The bottle had only a small amount of liquid in it, roughly two

ounces according to Officer Jones’s testimony. Officer Adams testified that he opened the bottle

and smelled alcohol. Officer Jones said that when he smelled the liquid “it was consistent with

the smell of vodka.” He asked appellee if she would submit to a portable breath test, which

would measure her blood alcohol content, and she refused. Officer Adams recalled that when

appellee’s mother arrived to take custody of the children––the police would not allow Mitchell to

take custody because he was not a family member––she said that appellee may have taken Xanax

and that she knew not to mix it with alcohol.

         Officer Adams believed appellee was impaired and intoxicated and that she was

                                                –6–
“absolutely not” in a position to drive a vehicle or supervise children. He also believed that,

based on the condition he found appellee in, the children were in imminent danger. Officer

Jones agreed appellee was impaired and testified that she was not capable of adequately

supervising her children and that she had placed them in imminent danger of bodily injury by

leaving them unattended at the swimming pool. Detective Joe Anders of the Allen Police

Department, assigned to the Collin County Child Abuse Task Force, likewise testified that after

reviewing the case and putting it together, he believed B.C. and C.C. were in imminent danger of

death or bodily injury, or physical or mental impairment.

       Appellee testified that she drank only half of a “hotel room glass” of “diluted cranberry

juice with vodka” because she was “not a fan of liquor,” and she denied taking Xanax before

leaving the hotel and going down to the pool. Appellee testified she had a “pounding headache”

that day and had been having severe headaches for much of the previous week, so she asked

Mitchell––who had been in a motorcycle accident and, appellee believed, would have access to

prescription pain medication––for some prescription strength Advil and took the pills he gave

her. She trusted Mitchell and did not check to see what he gave her, but she believed it was the

pills, not alcohol, that caused her condition. Appellee testified that she never left B.C. alone at

the pool and that C.C. was alone for only a few minutes while she took B.C. to the bathroom.

She also testified that she asked another woman who she had been talking to at the pool if she

would watch C.C. for her and the woman replied, “Of course.” After B.C. went to the bathroom,

they returned to the pool and appellee got in the hot tub. Appellee recalled that she felt okay for

the next thirty to forty-five minutes, but then she “started feeling weird” and told the children it

was time to go. They started walking to the car. She testified that she wanted to get her children

out of the pool area because B.C. “was not a strong swimmer” and appellee did not want to leave

her children unsupervised “if something were to happen to me.” Appellee remembered telling

                                                –7–
C.C. to call appellee’s mother, intending to wait in the car until she arrived. But appellee

testified that she “blacked out” after that, and the next thing she remembered was being “yelled

at” by a police officer.

        Appellee attributed her behavior that day to the medication given to her by Mitchell––she

claimed he lied about what he gave her at the hotel because he had wanted her to be his girlfriend

and she preferred a platonic relationship––and the effects of a concussion. She testified that she

had been assaulted in Oklahoma the week prior to this incident by a man she identified as Joe, an

ex-boyfriend. Appellee’s mother, Marilyn Brown, testified that she had been trying to get her to

go to the hospital because she was concerned her daughter might have suffered a head injury

because of the assault, but appellee delayed getting medical treatment. After appellee was

released from jail, she went to the hospital, at her mother’s insistence, and was diagnosed with

post-concussion syndrome and a fractured vertebrae in her neck. However, Brown and appellee

also acknowledged that appellee had a congenital defect in her neck that made it more vulnerable

to injury. Appellee’s medical records, introduced at trial, state that the neck injury was probably

attributable to an older, unhealed fracture that predated the assault. The medical records include

a progress report from appellee’s physician dated March 14, 2014, less than two weeks after

appellee’s arrest, which states in part:

        We had a discussion about her injuries. She has no clear-cut history of a major
        trauma that could have caused a cervical fracture in the past. She does say that
        she has had abuse for the last year but does not have a specific neck injury that
        she can recall. She denies any weakness or numbness.

An April 8, 2014 progress report from appellee’s physician contains the following statement: “I

don’t think that the fracture was caused by this most recent assault. This is likely an old,

unhealed fracture that is older than the assault or it could be an os odontoideum. However, it

was unstable based on the flexion and extension images that were reviewed with radiology

preoperatively.” Another progress report dated April 15, 2014, includes the following:
                                               –8–
       She brought with her some films from 2012. This fracture or abnormality was
       noted on studies at that time. I actually reviewed flexion and extension films. I
       can not [sic] measure exactly but it does appear on the studies to be unstable as
       well. Obviously, this is something that preexisted her most recent trauma. I still
       feel that this was likely an os odontoideum that had more than 7 mm of movement
       on flexion and extension.

       Appellant cites the court of criminal appeals’ definition of “imminent” in Garcia v. State,

367 S.W.3d at 689, as “ready to take place, near at hand, impending, hanging threateningly over

one’s head, menacingly near.” She argues the evidence was insufficient to conclude she placed

B.C. in imminent danger of death, bodily injury, or physical or mental impairment because no

testimony was elicited as to what imminent danger, if any, was present at the pool; and no

testimony was offered as to what imminent danger, if any, was present in the parking garage.

       The determination of whether a child is in imminent danger has always been a fact-

intensive inquiry. See Mayberry v. State, 351 S.W.3d 507, 510 (Tex. App.––San Antonio 2011,

pet. ref’d). In Garcia, a mother was holding her two-year-old child outside in a parked, unlocked

car, with no heat, in 58-degree October weather. Garcia, 367 S.W.3d at 685–66. The evidence

showed the child was wearing only a very wet diaper, her skin was cold to the touch, her lips

were blue, she was shivering and had a runny nose, and she did not stop shivering until she sat in

front of a car heater for almost thirty minutes. Id. The court of criminal appeals determined

there was no proof of bodily injury or physical impairment and no evidence the child was in

imminent danger of bodily injury or physical or mental impairment. Id. at 689. The court

specifically noted that the police officer testified that he did not believe the child needed medical

attention, but he “knew if something wasn’t done at the point that we were at, that it could turn

for the worse and the infant would need to seek medical attention.” Id. He never testified,

however, that he believed the child was in imminent danger of physical pain or impairment. Id.

“At most, he said it ‘could’ have turned for the worse, suggesting a possibility of an occurrence

rather than an imminent danger of it.” Id.
                                                –9–
       In Millslagle, a father left a young boy alone in a car while the father went into a

sandwich shop. Millslagle, 81 S.W.3d at 896–97. Inside the shop, the father went in the

bathroom and crawled into the ceiling of the shop, where he ingested methamphetamine. Id. A

worker notified the police after she noticed an unattended child “jumping around” in a vehicle.

Id. at 898. Police officers came to the aid of the boy and located his father thirty minutes later.

Id. The father told officers he had used methamphetamine. Id. at 897. The Austin Court of

Appeals held the evidence was legally insufficient to support a finding that the child was placed

in imminent danger by being left alone in the vehicle. Id. at 898. The court stated:

       Although appellant’s drug use may have carried with it the potential for danger
       should he return to the truck and drive away in an intoxicated state, appellant’s
       drug use did not expose his child to imminent danger so long as appellant
       remained in the restroom and did not return to his truck.

Id. But, the court’s decision turned on the fact the father did not use drugs in front of the child

and that he did not attempt to drive the vehicle after using the drugs. See id.

       In other cases, courts have found imminent danger. In Mayberry, the court of appeals

concluded that the evidence was sufficient to show imminent danger because the defendant

allowed her fifteen-year-old, unlicensed son to drive alone at night in a vehicle without enough

safety belts for all of the children inside. Mayberry, 351 S.W.3d at 510. The evidence showed

the vehicle was traveling over 100 miles per hour when it crashed through a fence and landed in

an empty pond, and that Mayberry’s son was the only child in the car wearing a safety belt. Id.

In Franklin v. State, No. 11–13–00013–CR, 2015 WL 730075, at *2 (Tex. App.—Eastland Feb.

19, 2015, no pet.) (not designated for publication), the court found the evidence sufficient where

the defendant dangled his infant son over a third-story balcony even though the child did not fall.

The court specifically noted that the testimony was conflicting regarding appellant’s conduct in

holding the child over the balcony and it was within the factfinder’s province to resolve the

conflicts in the evidence. Id. In Teeter v. State, No. 05–06–00309–CR, 2007 WL 510356, at *6–
                                               –10–
12 (Tex. App.––Dallas Feb. 20, 2007, no pet.) (not designated for publication), an intoxicated

school bus driver drove at a high rate of speed, went off the road, crossed the center line,

swerved from side-to-side, and nearly “flipped” the bus while turning without slowing. In

Suarez v. State, No. 05–03–00096–CR, 2003 WL 23025024, at *3–5 (Tex. App.––Dallas Dec.

30, 2003, pet ref’d.) (mem. op., not designated for publication), the defendant allowed his three-

year-old child to remain unrestrained in a moving vehicle, and the child fell out of the front

passenger window. In Perez v. State, No. 05–99–00830–CR, 2000 WL 1716517, at *2 (Tex.

App.––Dallas Nov. 17, 2000, no pet.) (not designated for publication), the defendant was found

unconscious in a parking lot next to a vehicle with the door open, a four-month-old baby was

found inside the vehicle, and upon awakening the defendant appeared intoxicated and incoherent,

and did not know his identity.

       Other courts have found imminent danger where the defendant left dangerous items such

as handguns, knives, syringes, and drugs within access of an unsupervised child. See Flores v.

State, No. 13–12–00567–CR, 2013 WL 3378328, at *4 (Tex. App.—Corpus Christi–Edinburg

July 3, 2013, no pet.) (mem. op., not designated for publication) (cocaine left in plain view

throughout apartment); Manning v. State, No. 05–11–00867–CR, 2013 WL 1819982, at *2 (Tex.

App.—Dallas Apr. 30, 2013, no pet.) (mem. op., not designated for publication) (loaded,

unsecured handguns and cocaine and marijuana); Butler v. State, No. 14–09–00067–CR, 2010

WL 547055, at *4 (Tex. App.—Houston [14th Dist.] Feb. 18, 2010, no pet.) (mem. op., not

designated for publication) (bag of cocaine and bag of marijuana were in vehicle with

unrestrained children when defendant stepped out to talk with officer); Anguiano v. State, No.

08–02–00443–CR, 2004 WL 178601, at *4 (Tex. App.—El Paso Jan. 29, 2004, pet. ref’d) (mem.

op., not designated for publication) (loaded syringe left within reach of child strapped in car-seat

while defendant passed out in driver’s seat); Harrist v. State, Nos. 11–01–0009394–CR, 2002

                                               –11–
WL 32344342, at *2 (Tex. App.—Eastland Mar. 28, 2002, no pet.) (not designated for

publication) (six-year-old child with Down syndrome twice crossed busy street while defendant

slept in motel room; knives, syringes and pill bottles strewn about table and floor of motel room).

       The evidence in this case is sufficient for the jury to have concluded appellee placed B.C.

in imminent danger of death, bodily injury, or physical or mental impairment. There is evidence

from which a jury could have found that appellee left the pool area several times for up to twenty

minutes at a time, leaving four-year-old B.C. with only her nine-year-old brother to supervise

her. Appellee denied she left B.C. unattended at the pool and that when she briefly left the pool

area she asked another adult to look after C.C., but the jury, in its role as the sole judge of the

weight and credibility of the evidence, could have chosen not to believe that testimony. The

fact-finder may choose to believe all, some, or none of the testimony presented. Chambers v.

State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury could have found that leaving

B.C., a four-year-old child who, as appellant testified, “was not a strong swimmer,” at a

swimming pool without adult supervision placed the child in imminent danger. She could have

drowned or been otherwise injured. In Manning and other cases, this Court and others concluded

that leaving dangerous items such as weapons or drugs within access of an unsupervised child

places the child in imminent danger. See, e.g., Manning, 2013 WL 1819982, at *2. The jury

could have reasonably concluded that leaving a four-year-old child within access of a swimming

pool, and in the water itself, without adult supervision placed the child in imminent danger.

       The evidence also showed that, after leaving the pool, appellee fell twice while taking her

children to the car, passed out on top of B.C. while buckling the child into her car-seat, fell

again, got into the driver’s seat, placed the keys in the ignition, “kind of twisted” them, and then

fell asleep. There was evidence appellee pressed the seatbelt into B.C.’s side while buckling the

child in to such an extent that it caused her to scream and kick. C.C. became so concerned he

                                               –12–
started hitting appellee, telling her she was hurting B.C. C.C. was unsure if appellee turned on

the engine, but he recalled that he could hear music. The jury could have reasonably concluded

that appellee attempted to operate the vehicle while impaired and that it was only C.C.’s call for

assistance and the removal of the keys from the ignition that prevented appellee from operating

the vehicle.

       The steps appellee took to operate the vehicle distinguish this case from others such as

Millslagle and Garcia where courts found the danger was not imminent. In Millslagle, for

example, the defendant was intoxicated but did not return to the truck and the keys were not in

the ignition––two facts noted by the court in determining there was no imminent danger. See

Millslagle, 81 S.W.3d at 898–99. In this case, however, appellee sat in the driver’s seat of the

car, put the keys in the ignition, and “kind of twisted” the key before falling asleep. Appellee

showed a persistence in attempting to operate the vehicle, falling several times and passing out

twice before getting into the driver’s seat and putting the keys in the ignition. The evidence

reveals an imminence to the danger that was simply not present in Millslagle, where the

defendant remained in the sandwich shop’s restroom and gave no indication of returning to the

truck where his child awaited. See id. Furthermore, unlike in Garcia, there was testimony in

this case that B.C. was in imminent danger. Officer Adams, Officer Jones, and Detective Anders

all testified that appellee’s actions placed B.C. in imminent danger of death, bodily injury, or

physical or mental impairment. The Garcia court specifically stated in finding the evidence

insufficient that the police officer never testified that there was imminent danger, only the

possibility of it. Garcia, 367 S.W.3d at 689. The jury in the present case was free to consider

the testimony of these witnesses in determining whether the danger was imminent.

       The jury could have likewise concluded appellee acted with the requisite mental state.

The State presented evidence appellee took a Xanax and subsequently drank alcohol, despite

                                              –13–
being aware of the danger of mixing Xanax and alcohol. Appellee’s friend, Ben Mitchell,

testified that he warned appellee not to drink alcohol and that the alcohol “was for me really, not

for [appellee] to consume with the kids.” Appellee attributed her conduct to the effects of a

concussion and the medication given to her by Mitchell, but the jury, in its role as the sole judge

of the weight and credibility of the evidence, was free to disbelieve appellee’s explanation. See

Chambers, 805 S.W.2d at 461. Additionally, appellee’s medical records ascribed her neck injury

to an older, unhealed fracture that predated the assault. Looking at the evidence in the light most

favorable to the verdict, a rational jury could reasonably conclude appellee intentionally,

knowingly, recklessly, or with criminal negligence placed B.C. in imminent danger of death,

bodily injury, or physical or mental impairment.

       In its brief, the State refers to a statement made by appellee at the hearing on the motion

for new trial that the evidence is insufficient in this case because the jury found appellee not

guilty of endangering C.C. on the same evidence used to support the conviction for endangering

B.C. Appellee does not address this argument in its brief. We, however, do not find these

verdicts inconsistent. C.C. testified at trial. The evidence showed him to be an intelligent, level-

headed nine-year-old fifth grader who acted maturely during a stressful situation. In contrast,

B.C. was four years old and completely dependent on those around her. The jury was entitled to

view the two crimes independently. We examine the sufficiency of the evidence to support the

verdict rather than speculate on how the jury arrived at its verdict. See United States v. Powell,

469 U.S. 57, 64 (1984); Jackson v. State, 3 S.W.3d 58, 61–62 (Tex. App.––Dallas 1999, no pet.);

Crawford v. State, No. 05–12–01072–CR, 2013 WL 3554307, at *4 (Tex. App.––Dallas July 11,

2013, pet. ref’d) (not designated for publication).

       We therefore conclude the trial court abused its discretion by granting appellee’s motion

for new trial based on insufficient evidence, and we sustain the State’s issue. We vacate the trial

                                                –14–
court’s June 22, 2015 order granting appellee’s motion for new trial and reinstate the judgment

of conviction and sentence.



                                                          /Lana Myers/
                                                          LANA MYERS
                                                          JUSTICE

Do Not Publish
TEX. R. APP. P. 47
150901F.U05




                                             –15–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

THE STATE OF TEXAS, Appellant                          On Appeal from the 380th Judicial District
                                                       Court, Collin County, Texas
No. 05-15-00901-CR         V.                          Trial Court Cause No. 380-81729-2014.
                                                       Opinion delivered by Justice Myers. Justices
ANGELA DAWN CLAMPITT, Appellee                         Francis and Lang-Miers participating.

       Based on the Court’s opinion of this date, we VACATE the trial court’s June 22, 2015

order granting appellee Angela Dawn Clampitt’s motion for new trial. We REINSTATE the

judgment of conviction and sentence.

Judgment entered this 15th day of July, 2016.




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