Opinion
No. 11-04-00201-CR
Opinion filed July 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 385th District Court, Midland County, Texas, Trial Court Cause No. CR29220.
Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
OPINION
The jury convicted Giles Samuel Medearis of two counts of endangering a child. The trial court assessed punishment for each count at confinement in a state jail facility for 180 days, but it suspended the imposition of the sentence and placed appellant on community supervision for one year. We reverse and acquit. Appellant presents three issues for review. In the first, he contends that the trial court erred by denying his motion for instructed verdict. In the second and third issues, appellant challenges the legal and factual sufficiency of the evidence. The standard for reviewing a challenge to the denial of a motion for instructed verdict is the same as that for a legal sufficiency challenge. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). In order to determine if the evidence is legally sufficient, we must 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004); Ross v. State, 133 S.W.3d 618 (Tex.Crim.App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Cain v. State, 958 S.W.2d 404 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). Appellant's arguments in all three issues center around the lack of evidence of imminent danger. Tex. Pen. Code Ann. § 22.041(c) (Vernon Supp. 2005) provides that 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 in imminent danger of death, bodily injury, or physical or mental impairment." "Imminent" has been defined as "ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near . . . near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous." See Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989) (citing various authorities including BLACK'S LAW DICTIONARY 676 (5th ed. 1979)). Black's Law Dictionary no longer provides a definition for imminent, but it defines "imminent danger" as follows: "1. An immediate, real threat to one's safety that justifies the use of force in self-defense. 2. Criminal law. The danger resulting from an immediate threatened injury sufficient to cause a reasonable and prudent person to defend himself or herself." BLACK'S LAW DICTIONARY (8th ed. 2004). The record in this case shows that appellant's two young children, ages two and four were in the front yard of appellant's residence. The residence is located in a residential area, and the front yard is adjacent to the street. The front yard had no fence. A neighbor noticed that the children were unsupervised and were trying unsuccessfully to get back into the house. The children were yelling and crying, but they were not hurt. According to the neighbor, the children had been outside that evening for more than an hour. The neighbor went to check on the children and found the screen door locked. The neighbor knocked on the door, but nobody answered. She then called the police. Officer Anthony Wayne Shupp arrived shortly thereafter. After speaking to the children and their neighbor, Officer Shupp knocked loudly on the front door with his metal flashlight. Appellant finally answered the door. He had been asleep and did not realize that the children were outside. Appellant was the only adult home and admitted that he was responsible for his children. Officer Shupp testified that circumstances surrounding the situation were dangerous because, if the children had wandered into the street, they could have been hit by a passing car. The officer explained that the lighting was poor, that there was some traffic on the street even though it was a residential street, and that the road curved near appellant's residence. We hold that, although the evidence may show that appellant was not adequately tending to his children and that the situation was potentially dangerous, the evidence is legally insufficient to show that the children were in imminent danger. The weather was not extreme; it was seventy-four degrees outside. The children were not in the street. The testimony did not even show that the children were near the street. Nothing in the record shows any impending danger to the children. See Millslagle v. State, 81 S.W.3d 895 (Tex.App.-Austin 2002, pet. ref'd) (reversing conviction for lack of evidence of imminent danger); see also Moody v. State, No. 01-03-00685-CR, 2004 WL 1472216 (Tex.App.-Houston [1st Dist.] July 1, 2004, no pet.) (not designated for publication) (where court held under facts similar to those in this case that there was no evidence of imminent danger). But see Harrist v. State, No. 11-01-00093-CR, 2002 WL 32344342 (Tex.App.-Eastland March 28, 2002, pet. struck) (not designated for publication) (where we held that the evidence was sufficient to show imminent danger when a six-year-old child with Down's syndrome (1) crossed a busy street twice while appellant slept and (2) was exposed to open knives, syringes, and pill bottles). While we do not approve of appellant's conduct, the evidence in the present case showed a potentially dangerous situation, but it did not reach to the level of imminent danger. See Millslagle, 81 S.W.3d at 898. Consequently, we sustain appellant's first and second issues and need not address the third issue. The judgments of the trial court are reversed, and we render a judgment of acquittal in each count.