                                   NO. 07-01-0441-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                      JULY 3, 2003

                          ______________________________


                             JUAN MORENO, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B14036-0104; HONORABLE ED SELF, JUDGE

                         _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.


                               MEMORANDUM OPINION


       Upon a plea of not guilty, appellant Juan Moreno was convicted by a jury of

endangering a child and punishment was assessed at 270 days confinement in a state jail

facility. Presenting a sole issue, appellant asserts the evidence is legally insufficient to
support his conviction. Based upon the rationale expressed herein, we reverse and enter

a judgment of acquittal.


       In the early morning hours of April 7, 2001, a police officer observed appellant, who

was accompanied by his common law wife, Patricia Trujillo, step in front of a vehicle. He

proceeded to check on appellant and detected a strong odor of alcohol on both. After

conducting field sobriety tests, he concluded they were intoxicated. Both were arrested

and upon being placed in the patrol car, appellant expressed concern for his four children,

who were home alone. The oldest child, a 12 year old son, had been left to supervise the

remaining three, ages ten, eight, and ten months old, while appellant and Trujillo went to

a nearby convenience store for food. After the parents were arrested, two other officers

took an uncle of the children to the home to get them. Upon arriving, the children were

found sleeping and unharmed. After getting dressed, they left with their uncle.


       By a sole issue appellant contends the evidence presented by the State is legally

insufficient to support his conviction for endangering a child.        We agree.     It is a

fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown

beyond a reasonable doubt that the defendant committed each element of the alleged

offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp.

2003); Tex. Pen. Code Ann. § 2.01 (Vernon 1994). In conducting a legal sufficiency

review, we must determine whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the


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crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App.

1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App.

2000). As an appellate court, we may not sit as a thirteenth juror, but must uphold the

jury's verdict unless it is irrational or unsupported by more than a mere modicum of

evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


         A person commits the offense of endangering a child if he intentionally, knowingly,

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

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

impairment. Tex. Pen. Code Ann. § 22.041 (Vernon Supp. 2003). 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.Cr.App. 1989); see also Millslagle v.

State, 81 S.W.3d 895, 898) (Tex.App.–Austin 2002, pet. ref’d). It is not sufficient that the

accused placed the child in a potentially dangerous situation. Millslagle, 81 S.W.3d at 898;

see also Broussard v. State, 827 S.W.2d 619, 622 (Tex.App.–Corpus Christi 1992, no pet.)

(holding that the possibility of harm is not imminent risk in an involuntary commitment

case).


         Appellant was indicted for acting with criminal negligence by omission in leaving his

10 month old daughter without adequate supervision.            A person acts with criminal

negligence with respect to circumstances surrounding his conduct or the result of his


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conduct when he ought to be aware of a substantial and unjustifiable risk that the

circumstances exist or the result will occur. Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003);

see also Lewis v. State, 529 S.W.2d 550, 553 (Tex.Cr.App. 1975) (noting that criminal

negligence involves inattentive risk creation).


       The State presented evidence from three police officers and Trujillo. Officer Kernell

testified that at approximately 12:00 a.m., he observed appellant and Trujillo step in front

of a moving vehicle and stopped to check on them. After conducting field sobriety tests,

he concluded they were both intoxicated and arrested them. According to Kernell,

following his arrest, appellant became worried about his four children. Officers Sanchez

and Morris, who had arrived to assist Kernell, proceeded to appellant’s house,

accompanied by an uncle of the children, to check on them.


       Morris testified that when he and Sanchez arrived at appellant’s house, they

knocked on the door and one of the children let them in. He and Sanchez both testified

the children were asleep on wooden floors. Sanchez described the house as being in

“bad” condition, i.e., dirty dishes, cockroaches, and piles of clothes everywhere. He

claimed the ten month old was wearing only a diaper. Morris testified the house was

unclean and there were signs of possible construction.         On cross-examination, he

conceded the children were uninjured.


       Trujillo testified that when she and appellant went to the convenience store, the 12

year old and ten month old were on the couch and her other two children were asleep in

                                             4
their beds. She believed her 12 year old son could adequately supervise her ten month

old daughter while she and appellant went to the store. She also explained that although

she did not believe she had done anything wrong in leaving her 12 year old in charge of

his siblings, she nevertheless plead guilty to child endangerment to avoid a trial.


       The defense presented the testimony of the 12 year old who testified that when his

parents left home at approximately 10:30 p.m., he and his ten month old sister were in the

living room on the couch. He was watching television and she was asleep next to him. His

brother and other sister were asleep in their beds. He testified he could care for his baby

sister and knew what to do in case of an emergency. He further testified he knew “a little

bit about CPR” and had been instructed in school on what to do in case of fire.


       Citing Elder v. State, 993 S.W.2d 229, 230 (Tex.App.–San Antonio 1999, no pet.),

the State recognizes that imminent means ready to take place, near at hand, impending,

hanging threateningly over one’s head, menacingly near. Nevertheless, it contends that

appellant’s conduct in leaving his ten month old daughter at home without adult supervision

placed her in imminent danger. The State concludes the evidence is sufficient to support

appellant’s conviction because the infant was left alone and helpless in a dangerous

environment infested by cockroaches with an “imminent possibility” that she could have

been injured. However, the infant was not left alone, but was under the care of her 12 year

old brother whom the evidence established was responsible. Moreover, the State cites no

authority and we have found none holding that an unclean environment, sleeping on


                                             5
wooden floors, or the presence of cockroaches presents imminent danger. As noted in

Millslagle, placing a child in a potentially dangerous situation is insufficient to support a

conviction for endangering a child. 81 S.W.3d at 898.


       By Trujillo’s testimony, the State attempted to prove that appellant was a party to

her crime of endangering her infant daughter by leaving her under the care of her 12 year

old son. However, neither her testimony nor that of the three officers established that

appellant was guilty of endangering a child with criminal negligence, i.e., creating an

inattentive risk. The State cites no authority holding that a parent commits the offense of

endangerment of a child when a parent allows a 12 year old to be in charge of his younger

siblings absent other evidence of a “substantial and unjustifiable risk” that imminent danger

of death, bodily injury, or physical impairment could result. Viewing the evidence in the

light most favorable to the prosecution, we conclude no rational trier of fact could have

found the essential elements of endangering a child beyond a reasonable doubt.

Appellant’s sole issue is sustained.


       Accordingly, the judgment of the trial court is reversed and judgment of acquittal is

hereby rendered.


                                          Don H. Reavis
                                            Justice

Do not publish.




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