                                   NO. 07-07-0141-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                SEPTEMBER 30, 2009
                          ______________________________

                                      DANIEL REY,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                    NO. B16837-0606; HON. ED SELF, PRESIDING
                        _______________________________

                                     Opinion
                        _________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       This case is before us on remand from the Court of Criminal Appeals to determine

whether the evidence was legally and factually sufficient to support Daniel Rey’s conviction

for abandoning or endangering a child. In our original opinion, we reversed the judgment

because the State failed to present any evidence from which a rational jury could

reasonably conclude that appellant had care, custody or control over his stepchild. The

State petitioned the Court of Criminal Appeals for review, contending that we applied the
wrong test in analyzing the matter. The Court of Criminal Appeals agreed with the State

and held that the applicable definition of care, custody and control was that found in §

22.04(d) of the Texas Penal Code. Upon applying that definition to the issues before us,

we again reverse the judgment.

      Background

      Appellant was married to Michelle Morales with whom he fathered a one-year-old

daughter. Morales also had a three-year-old son from a prior relationship. At the time of

the incident in question, appellant had been separated from Morales for about three

months. Furthermore, while she lived in Plainview with the two children, he lived in

Muleshoe.

      On February 23, 2006, appellant phoned Morales and told her he was going to visit.

He arrived at her apartment around 12:30 a.m. and heard his daughter crying. Through

the window, he could also see his stepson, but, when he knocked on the door, no one

answered. At that point, the three-year-old boy informed appellant that his mother was not

there. In response, appellant broke the front window to obtain access to the abode, took

his daughter from the apartment, and drove her to Muleshoe. He claimed he left the boy

with a neighbor. However, the neighbor in question, Ramira Gamboa, testified that he

found the boy standing outside the second floor apartment near the broken glass dressed

only in jeans and a shirt (no shoes or socks) on the cold night screaming for his “father.”

Gamboa brought the child into his apartment. A subsequent investigation of Morales’

apartment uncovered no one else present. She had indeed left the children alone.




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         Applicable Law

         A person commits the offense for which appellant was convicted 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 harm. TEX .

PEN . CODE ANN . §22.041(b) (Vernon Supp. 2008). To abandon means to leave a child in

any place without providing the youth reasonable and necessary care, under

circumstances which no reasonable, similarly situated adult would leave a child of that age

and ability. Id. §22.041(a). The issue before us involves the element of custody, care, or

control. Appellant asserts that there is no evidence he had such over his stepson. We

agree.

         As previously mentioned, the definition of “custody, care, or control” applicable here

is that found in §22.04(d) of the Texas Penal Code. Rey v. State, 280 S.W.3d 265, 268

(Tex. Crim. App. 2009). According to the provision, one assumes care, custody, or control

over another “if he has by act, words, or course of conduct acted so as to cause a

reasonable person to conclude that he has accepted responsibility for protection, food,

shelter, and medical care for a child . . . .” Id. §22.04(d); Rey v. State, 280 S.W.3d at 268;

Hawkins v. State, 891 S.W.2d 257, 258-59 (Tex. Crim. App. 1994). Thus, the duty does

not have to be one imposed under the Family Code to fall within the penal provision as

appellant argues. Rey v. State, 280 S.W.3d at 268; Hawkins v. State, 891 S.W.2d at 258-

59.




                                               3
        Application of Law to Facts

        The record before us reveals that appellant was still married to the child’s mother

at the time of the incident and that he had cared for the child in the past. So too had he

acknowledged to a worker for Child Protective Services (CPS) that he had been a part of

the child’s life.1 Thus, evidence existed contradicting appellant’s representation that he had

not “fostered [a] familial relationship with the child” in the past. Yet, we cannot ignore the

evidence that appellant and his wife had been separated for three months and he lived in

another town when he found the children alone.

        Similarly noteworthy was and is the fact that appellant was simply the boy’s

stepfather, not biological father. This is of import because becoming a stepparent does

not automatically impose upon one the duty to exercise care, custody or control over a

stepchild. See McGee v. McGee, 936 S.W.2d 360, 369 (Tex. App.–Waco 1996, writ

denied) (recognizing that the stepparent must “receive” the child into the family or accept

the child as a family member before such an obligation arises); Youngblood v. Hoeffle, 201

S.W. 1057, 1058 (Tex. Civ. App.–Fort Worth 1918, no writ) (holding the same). And, the

record is bereft of any evidence indicating that appellant provided financial, emotional, or

psychological support to the stepchild after the separation. Moreover, neither party cited

us to any authority suggesting, much less requiring, that simply because a stepparent once

had care, custody or control of his stepchildren he continued to have it after separating

from their mother and living elsewhere. Indeed, most children grow, leave home, and

marry. When such happens, it seems rather unreasonable to believe that because the


        1
         The reason given by appellant for not taking his stepson with him was that he was not the boy’s
father and he was afraid his wife would file charges on him .

                                                   4
parents once had care, custody or control over the grown children, they still do. So, if such

duty and authority over one’s biological children can eventually end, the same must be true

viz one’s stepchildren. And, it is for this reason we hold that simply because a stepparent

and stepchild may have had a past relationship sufficient to satisfy the requirements of

§22.04(d), that relationship and its legal ramifications do not continue once the stepparent

separates from the child’s mother and leaves the abode. Again, to be true to the dictate

of §22.04(d) and the words of Rey v. State, there must be some evidence that the requisite

relationship between stepparent and stepchild continued; it cannot be assumed. More

importantly, there is no evidence of record that appellant provided the stepchild with

financial assistance, medical care, food, emotional support, guidance, clothing, or the like.

Indeed, the record is even bereft of evidence suggesting that appellant provided any

assistance to the child’s mother after the separation, which assistance could be used

indirectly to benefit his stepchild.

       Next, and to the extent that one may suggest the evidence of the stepchild

purportedly calling for his “father” when appellant left evinced the requisite relationship,

they would be wrong. For us to assign any pertinent evidentiary weight to the act would

require us to assume that the child was referring to appellant, as opposed to the child’s real

father (if any). So too would it obligate us to assume that the three-year-old boy called

appellant “father” because appellant undertook acts characteristic of a father, i.e. acts

showing responsibility for the protection and welfare of the child. Neither of those can we

do since a conviction must be founded upon evidence, not assumptions.

       Similarly empty is the evidence that appellant may have viewed himself as being

part of the child’s “life.” Whether that meant he provided for or protected the youth or

                                              5
merely was present from time to time goes unmentioned. Without such explanatory

information, the phrase is too innocuous to have any evidentiary value.

        That appellant may have broken into the apartment to rescue his own child also falls

short of filling the void.2 Simply put, that act evinces the opposite of what is required by

§22.04(d). That is, rather than illustrating effort to protect and provide for the stepchild, it

indicates an avoidance of such effort. And, one can hardly infer that by foregoing

opportunity to protect, shelter, or care for the stepchild, appellant accepted responsibility

for the child’s protection, medical care, or welfare.3

        Leaving a three-year-old alone in the dark of night is reprehensible; there is no

doubt of that. But, if anything, it evinced acts indicative of a complete disregard for the

stepchild, not acts upon which a reasonable person could conclude that appellant accepted

responsibility for the child. Again, he saw the two children alone in the house but entered

only to secure his own child. The other simply was left behind to fend for himself,

according to the evidence accepted by the jury. While such conduct may arguably evince

activity potentially criminal under §22.041(c) of the Texas Penal Code (criminalizing an

action or omission that exposes a child under 15 to imminent danger of death, bodily injury

or physical or mental impairment), that is not the provision under which the State opted to



        2
          Interestingly, we note the sim ilarity between the test used in §22.041(b) and that applied in cases
involving the possession of drugs. Like the form er, the latter also requires proof that the drugs were in the
care, custody, or control of the accused as a prerequisite to conviction. Poindexter v. State, 153 S.W .3d 402,
405 (Tex. Crim . App. 2005). If one was to substitute drugs for the three-year-old, a rational jury would be
hard-pressed to conclude that appellant possessed the contraband sim ply because he entered the hom e to
rem ove the child from its presence.

        3
          To the extent appellant represented that he placed the boy with a neighbor to await his m other’s
return, that evidence is of little benefit to the State. That evidence would negate the elem ent requiring proof
that the accused left the child in a place that exposed him to an unreasonable risk of harm .

                                                       6
prosecute appellant. Instead, it chose a penal statute that obligated it to prove first the

youth was in his care, custody, or control.

       Simply put, there is no evidence of record upon which a rational jury could

conclude, beyond reasonable doubt, that appellant accepted the responsibility to protect,

shelter, feed and provide medical care to the three-year-old boy. See Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (discussing the applicable standard of review). Given

that, we have no choice but to reverse the judgment of the trial court and render judgment

acquitting appellant of that offense for which he was tried.



                                                  Brian Quinn
                                                  Chief Justice

Publish.




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