JULI ANN VREELAND v. THE STATE OF TEXAS--Appeal from 107th District Court of Cameron County

NUMBER 13-04-368-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JULI ANN VREELAND, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

 

On appeal from the 107th District Court of Cameron County, Texas.

 

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Ya ez and Castillo
Memorandum Opinion by Chief Justice Valdez

Following a jury trial, appellant, Juli Ann Vreeland, was found guilty of endangering a child. Tex. Pen. Code Ann. 22.041(c) (Vernon Supp. 2006). The trial court assessed appellant's punishment at two years incarceration in the Texas Department of Criminal Justice-State Jail Facility. By two issues, appellant argues that the evidence is legally and factually insufficient to support her conviction. We affirm the judgment of the trial court.

Standard of Review

In a legal sufficiency review, we consider all of the properly or improperly admitted evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (en banc). We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.

In conducting a factual sufficiency review, we view all of the evidence in a neutral light, without favoring either party. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000) (en banc). We must determine whether, considering all of the evidence, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support a finding of guilt beyond a reasonable doubt. Id. Second, weighing the evidence contrary to the verdict against the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 485. When reversing for factual insufficiency, we must detail all the evidence relevant to the issue and clearly state why the jury's finding is either factually insufficient or is so against the great weight and preponderance of the evidence that it is manifestly unjust. Johnson, 23 S.W.3d at 9.

Under both legal and factual sufficiency standards, "the jury is the exclusive judge of the credibility of witnesses and of the weight to be given to testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc); see Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979).

Background

On July 30, 2003, at approximately 6:15 a.m., appellant placed her two-month-old daughter in her car seat carrier in her apartment, then took the carrier to her car, a small four-door Mitsubishi Lancer, and installed the car seat in its base in the middle position of the back seat. The car seat faced the rear of the car. Appellant drove her mother to a convenience store where her mother was going to be picked up for transportation to her job. Appellant dropped her mother off without getting out of the car. Appellant then drove back to her home and went into the house at approximately 6:50 a.m. Appellant failed to remove her daughter from the car.

Appellant took a nap, waking at around 10:00 a.m. She ate, showered, and spoke on the telephone to two of her friends. At around 12:30 p.m., appellant returned to the Lancer and used it to run a number of errands. She drove to the post office, where she picked up her mail and purchased a money order, to the Texas Workforce Center, where she obtained copies of her resume, to a grocery store training center, where she attempted to apply for a job, and finally, to Target, where she spent approximately forty-five minutes completing and submitting a job application. At each of these stops, she entered and exited the car utilizing her car keys to lock and unlock the car. She placed her mail and resumes on the front passenger car seat.

At Target, when she returned to the Lancer at approximately 1:30 to 2:00 p.m., she discovered her daughter, still in the car seat, in the car. When found, the child was deceased. The medical examiner estimated that the child died at approximately noon with a one-hour margin of error. It was a very hot summer day; the temperature was in the high 90s, and an autopsy showed that the cause of death was heat stroke. Immediately following the discovery of the child, a crime scene investigator measured the temperature of the interior of the car, while parked, not running, with the windows and doors shut. The temperature was measured at 103.3 degrees at approximately 2:45 or 3:00. The temperature in the car rose to more than 120 degrees within approximately twenty minutes once the car doors were closed. A police investigator testified that it was not reasonable to leave an infant in the car, particularly during the heat of summer.

Appellant testified that when she first saw her daughter's body, she thought she was hallucinating because she thought she had dropped her daughter off at day care when she took her mother to the convenience store. Appellant had taken the child to day care daily, Monday through Friday, for almost a month prior to the incident. Each day, she left the infant and the carrier at the day care. She never left the infant without also leaving the carrier.

Upon seeing her daughter, appellant began yelling for help. Target customers approached her, including a paramedic, who immediately recognized that the infant was deceased. The infant was pale; had blood and froth coming from her nose and mouth; showed signs of liver mortis, that is, blood pooling on the backs of her legs and arms; rigor mortis, or stiffness; and skin slippage, a facet of decomposition which presented in appearance as burns or scrapes on the infant's legs.

Some witnesses questioned appellant's reaction to the death. Appellant was yelling for help and seemed angry and was cursing. She did not immediately cry, and her demeanor was calm.

Appellant explained that she was preoccupied and had forgotten that her daughter was still in the backseat of the vehicle. She was concerned about her finances and about obtaining a job and she was suffering from a toothache. Appellant was under some financial duress and needed a job, and was trying to prepare for the loss of some of her financial benefits relating to the baby. She was fatigued from having stayed up late the previous evening and having to wake in the middle of the night to feed her daughter. She was also taking a prescription antihistamine which caused drowsiness. Other witnesses testified that appellant wanted the baby, was delighted with her, and was a good mother. The child showed no previous signs of abuse and always seemed to be clean and well-fed.

At trial, several witnesses testified that the car seat was easily visible from outside of the car, that it was "immediately obvious," and that "anybody could have clearly seen [the infant]." An investigating police officer sat in the driver's seat of the vehicle and could see the car seat in his rear-view mirror. Photographs of the car's interior show the car seat was immediately adjacent to the two front bucket seats of the car and, in fact, extruded into the front seat in the space between the two front bucket seats of the car. An investigator testified that he found the incident "highly" suspicious, given that the child had been in the car for approximately eight hours. The Lancer is a small vehicle, without tinted windows, and the car seat was bulky and obvious. Further, appellant entered and exited the vehicle a total of nine times without apparently seeing the child in the carrier.

Analysis

Appellant contends that the evidence is legally and factually insufficient to show that she intentionally, knowingly, recklessly, or with criminal negligence, engaged in conduct that placed the child in imminent danger. According to appellant, none of the State's witnesses had personal knowledge or presented direct evidence of the alleged offense because the witnesses all testified as to their observations after the child was found dead in appellant's vehicle.

The indictment alleges that appellant did:

intentionally, knowingly, recklessly, or with criminal negligence, engage in conduct that placed Catherine Jade Ann Vreeland, a child younger than 15 years of age, in imminent danger of death, bodily injury, or physical or mental impairment, by leaving said Catherine Jade Ann Vreeland, a child younger than six months of age, alone in an automobile without adequate cooling or ventilation in a place which caused the temperature in said vehicle to rise to a level dangerous to human life, and the defendant did not voluntarily deliver the child to a designated emergency infant care provided under Section 262.302, Family Code.

 

The Texas Penal Code provides that a person commits the offense of endangering a child if she "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." Tex. Pen. Code Ann. 22.041(c) (Vernon Supp. 2006). (1)

"Imminent" means "ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near." See Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). It is not sufficient that an accused place a child in a situation that is potentially dangerous. Millslagle v. State, 81 S.W.3d 895, 898 (Tex. App.-Austin 2002, pet. ref'd) (holding that defendant did not place child in danger by leaving child in locked car unattended while defendant was ingesting narcotics in nearby bathroom). The accused's conduct must threaten the child with immediate, impending death, bodily injury, or impairment. See Elder v. State, 993 S.W.2d 229, 230 (Tex. App.-San Antonio 1999, no pet.) (holding that defendant did not place her eight-year-old daughter in imminent danger by permitting man on probation for indecency with a child to move into their home). The statute does not require proof that the person intend or know that his conduct places the child in such imminent danger. Contreras v. State, 54 S.W.3d 898, 905-06 (Tex. App.-Corpus Christi 2001, no pet.); see Walker v. State, 95 S.W.3d 516, 521 n.1 (Tex. App.-Fort Worth 2002, pet. ref'd); but see Millslagle, 81 S.W.3d at 896 n.1 ("Notwithstanding the phrase 'engages in conduct that,' section 22.041(c) appears to be a 'result of conduct' offense.").

Appellant's legal and factual sufficiency challenges appear to attack the lack of direct evidence supporting appellant's conviction. However, circumstantial evidence, by itself, may be enough to support the jury's verdict. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999); see Smith v. State, 965 S.W.2d 509, 515 (Tex. Crim. App. 1998). It is not necessary that every fact point directly and independently to the defendant's guilt; rather, it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Further, it is axiomatic that a conviction may be based on circumstantial evidence. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (stating a conviction may rest on the cumulative strength of all incriminating circumstances).

With the exception of some slight discrepancies in estimates regarding the timing of appellant's actions and some differing accounts regarding appellant's reaction to her daughter's death, the evidence in this case was largely undisputed. It is clear that appellant's infant daughter remained in the vehicle for approximately eight hours on a hot summer day in which temperatures outside the vehicle climbed into the high 90s, and temperatures inside the closed vehicle rapidly rose to more than 120 degrees after closing the car doors. The infant suffered heat stroke and died. Appellant admitted that she forgot to take the child to day care and instead left the infant in the vehicle. When viewed in the light most favorable to the verdict, a rational jury may have concluded that appellant recklessly or with criminal negligence, by act or omission, engaged in conduct that placed the infant in imminent danger of death, bodily injury, or physical or mental impairment. Tex. Pen. Code Ann. 22.041. Accordingly, the evidence is legally sufficient to support the judgment. Appellant's first issue is overruled.

Viewing all of the evidence in a neutral light, without favoring either party, we also conclude that the evidence is factually sufficient to support the verdict. Appellant and her mother testified that appellant wanted the infant and was pleased with her birth. Workers from the infant's day care testified that appellant appeared to be a loving mother and that the child was clean and well-fed when delivered to the day care. Appellant testified to physical discomfort, distraction, fatigue, and drowsiness on the day of the incident. Appellant further testified to her grief and shock at the discovery of her daughter's body. However, the circumstances surrounding the infant's demise were suspicious insofar as the vehicle was small, the car seat abutted the driver's seat, and was visible from the driver's perspective in the rear-view mirror. The car seat and infant were "immediately obvious" and "clearly" visible to viewers outside of the vehicle. Despite all of this, appellant failed to discover the infant in the car although she ran several errands in the car, and entered and exited the car nine times before discovering the infant on the tenth entry to the car. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook, 29 S.W.3d at 111; see Tex. Code Crim. Proc. Ann. art. 38.04. Given the evidence previously detailed, we will not disturb the jury's verdict. Accordingly, we overrule appellant's second issue.

Conclusion

Considering all of the evidence and reasonable inferences therefrom in the light most favorable to the verdict, we conclude that a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 97. Further, viewing all of the evidence in a neutral light, without favoring either party, Johnson, 23 S.W.3d at 6-7, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484.

The judgment of the trial court is AFFIRMED.

 

ROGELIO VALDEZ

Chief Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and

filed this the 26th day of October, 2006.

 

1. The statute allows conviction if an individual is criminally negligent or reckless. Under the penal code:

 

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

 

Tex. Pen. Code Ann. 6.03(d) (Vernon 2003).

 

A person acts recklessly with respect to the result of her conduct when she is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

 

Id. 6.03(c) (Vernon 2003).