Gina Carol Salazar v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00335-CR

Gina Carol Salazar,

Appellant

v.

The State of Texas,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 31,927

MEMORANDUM Opinion

Gina Carol Salazar was convicted of two counts of endangering a child, a state jail felony. See Tex. Penal Code Ann. 22.041(c) (Vernon Supp. 2007). She was sentenced to 180 days in state jail with no fine. The sentence was suspended, and Salazar was placed on community supervision. Salazar raises several issues on appeal; but because the evidence is legally insufficient to prove imminent danger, we reverse the trial court s judgment.

Background

On the morning of March 24, 2004, Salazar gave her children, then ages 3 and 2, oatmeal at the dining table. The children could also see the television in the living room from the table and were watching cartoons while they ate. Salazar went back to the bedroom to call her aunt, who had nursing experience, about a medical condition for which Salazar had a doctor s appointment the next day.

Meanwhile, the maintenance man for the rental subdivision in which Salazar lived testified that while eating lunch, his doorbell rang. When he answered the door, he saw two young children, unsupervised, running away. The children ran into Lexington Drive. He went next door to the office manager who offered the children candy and balloons to coax them in off of the street. Lexington Drive intersected with a busy road, Parks School House Road. Prior to being brought inside, the children where headed toward the busy road. Being unable to get any information from the children, the police were called. When the police arrived, the office manager heard a name from the children which she recognized and could then determine to whom the children belonged.

According to Salazar, twenty minutes after she started talking on the phone, the police knocked on her door. They had her children. Salazar discovered that a window in the living room was open and surmised that, despite some safety measures, the children had moved a bench over to the window, unlocked it, opened it, and climbed out. Salazar stated that nothing like this had happened before and nothing like this has happened since. She also stated that she had locks on the doors and windows and other child safety devices throughout the house. The children were given back to Salazar.

Legal Sufficiency

In her first issue, Salazar asserts that the evidence was legally insufficient to support her conviction. Specifically, she contends there was no evidence to prove any culpable mental state or to prove that the children were placed in imminent danger. Because the sufficiency of the evidence regarding imminent danger is dispositive of this appeal, we need not discuss the remainder of this first issue or any other issue presented by Salazar.

In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Courts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review. Evans v. State, 202 S.W.3d 158, 165 n.27 (Tex. Crim. App. 2006). The sufficiency of the evidence is measured by reference to the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

To be guilty of endangering a child, a person must place the child in imminent danger of death, bodily injury, or impairment. See Tex. Penal Code Ann. 22.041(c) (Vernon Supp. 2007). "Imminent" means "ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near." Millslagle v. State, 81 S.W.3d 895, 898 (Tex. App. Austin 2002, pet. ref d) (quoting Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)).[1] It is not sufficient that the accused placed the child in a situation that is potentially dangerous. Id. The accused's conduct must threaten the child with immediate, impending death, bodily injury, or impairment. Id.

In our review of the record, we have not found that there was any evidence that the children were in imminent danger. There was no testimony to suggest there was a danger that was ready to take place or hanging threateningly over the heads of the children. Although the children were seen on a street where cars often speed, there was no evidence that there were any cars on the street at that time or that the children were then in danger of being hit by any cars on the street. One of the police officers stated that the children could have been struck by a car and killed. But neither the maintenance man nor the office manager saw that the children were in danger of being hit by a car that day. Further, although the children were seen going toward a busy road, there was no evidence as to how close they were to that busy road or whether there was any traffic on that road at the time.

Conclusion

Accordingly, reviewing the evidence under the appropriate standard, because there was no evidence of imminent danger, the evidence is legally insufficient to support Salazar s conviction for endangering a child. The trial court s judgment is reversed and a judgment of an acquittal is rendered.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reversed and rendered

Opinion delivered and filed June 11, 2008

Do not publish

[CR25]

[1] This definition of imminent by the Court of Criminal Appeals is consistent with definitions found in The American Heritage College Dictionary and Merriam Webster s Collegiate Dictionary.