* John T. Boyd, Chi ef Justice (Ret.), Sevent h Court of Appeals , sitting by assig nment. NO. 07-01-0441-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E DECEMBER 31 , 2002

______________________________ JUAN MORENO, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 2 42ND DIST RICT COURT OF HALE COU NTY; NO. B14036-0104; H ONORABLE ED SELF, JUDGE

_______________________________ Before QUINN and REAVIS, JJ. an d BOYD, S.J. *
ABA TEMENT AND REMAND Upon a plea of not gui lty, appel lant Juan Moreno was co nvicted by a jury of endangering a child and puni shment was as sessed at 270 days confinement in a state jail1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 2 fac ility. In presenting this appeal, counsel has filed a n Anders 1 brief in support of a motion to withdraw . Based upon therationale ex pressed herei n, the motion to withdr aw is g ranted and the appeal is abated and the cause r emanded to the trial court for further proceedin gs.
In support of his moti on to withdraw, counsel has certified that he has d iligently reviewed the record and, in his opinion, the reco rd reflects no r eversibl e error

or grounds upon which an appeal can be predicated. An ders v. Cali fornia, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( 1967). Thus, he concludes the a ppeal is friv olous and wi thout merit. In compliance w ith High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has discussed w hy, under the control ling authorities, there is no error in the court's ju dgment. Counsel has also shown that he sent a co py of the brief to appellant, and informed appellant that, in counsel'sview , the appeal is wi thout merit. In addition, couns el has demonstrated that h e notified appellant of his rig ht to revi ew the record and file a pro se brief if he desired to do so. Appellant did not file a pro se brief and the State di d not favor us w ith a brief.
In the early

morning hour

s of April 7, 20 01, a police officer obs erved appell ant and his common law w ife step in front of a vehicle and proceeded to c heck on them. The officer noticed a str

ong odor of alcoh ol and, after conduc ting field s obriety tests, conclude d they were in toxicated. Both were arrested and upon being place d in the patrol car, appellant

expressed concern for hisfour children w ho were home al one. The oldest chil d,3

a 12 year old son, ha d been left in charge of the remaining three, ages ten, eight, and ten months old, whi le the parents went to a nearby con venience store for food. After the parents were arrested, two other officers took an uncle of thechildren to the home to get them. Upon arri ving thechildren w ere found sleeping and unharmed. After getting dressed they

left with t heir uncle.
Counsel advances onearguable g round, to-w it: the leg al and factual sufficiency of the evidence to support appellant’s con viction, then concludes t hat t he overw helming weight of the evidence does not req uire reversal. We are requir ed to make an independent examination of the entire reco rd to determine whether ther e are any ar

guable gr

ounds that might support theappeal. Penson v . Ohio, 488 U.S . 75, 109 S.Ct. 3 46, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). A l egal and factual sufficiency challenge fir st requir es a determinati on of whethe r the evidence is legally sufficient to support the verdi ct. Clew is v. Sta te, 922 S.W.2d 126, 133 (Tex.Cr. App. 1996). Itis a fundamental ru le of criminal law that one cannot be convicted of a crime unless it is shown beyond a reas onable doubt that the defenda nt committe d each element of the alleged offense. U.S. Const

. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2003); Tex. Pe n. Code Ann. § 2.01 (Vernon 1994). A l egal sufficiency review requiresthe evidence to be view ed in the lig ht most favorabl e to the pros ecu tion to determine whether any rational trier of fact could hav e found the essential elements of the crimebeyond a reas onable doubt. Jac kson v. Vi rginia, 4 43 U.S. 307, 319, 9 9 S.Ct. 2781, 278 9, 61 L.Ed.2d 560, 573 ( 1979); Geesa v . State, 820 S.W.2d 154, 157 (Tex.C r.App

.4

1991), overruled on o ther grounds , Paulson v . State, 28 S.W.3d 570, 573 (Tex.C r.App. 2000).
After

a legal sufficiency review under Jackson , a factual sufficienc y rev iew req uires
a deter mi nation of whether a neutral rev iew of all the evidence, both for and agai nst th e findin g, demon strates that t he proof of guilt i s so obvio usly weak as to undermi ne confidence in the fact finder’ s determination, or the proof of gui lt, al though adequate if taken alone, is greatly

outweig hed by contr

ary proof. Clewis , 922 S.W.2d at 133; see also Johnson v . Sta te, 23 S.W.3d 1, 11 (Tex.Cr.A pp. 2000) (adopti ng complete ci vil factual sufficiency formul ation), and Ki ng v. Sta te, 29 S.W.3d 556, 563 (Tex.Cr. App. 2000).
Before determining whet her the evidence i s legall y sufficient to sustain the convicti on, we must r

eview the essential elements the S tate wa s requir ed to prove. A person comm its th e offen se ofenda ngeri ng a ch ild ifhe in tent iona lly, kn owingl y, reck less ly,
or with criminal negl igence, by act or omiss ion, engages in condu c t that places a child younger than 15 years of age in immine nt danger of death, bodily i njury, or physical impairment. Tex. Pen. Code Ann. § 22.041 ( Vernon Supp. 2003). Imminent means “ready to take pla ce, nea r at hand , impen ding, hanging t hreateningl y over one’s head, menacingly near.” Devine v . State, 786 S.W.2d 268, 270 (Tex.Cr.App. 1989 ); see also Millsl agle v. State, 81 S.W.3d 895, 898 (Tex.App.–Austi n 2002, pet. ref’d) . It is not sufficient that t he accused placed the child i n a potentially dangeroussituation. Millslagle , 81 S.W.3d at 898;
see also Broussard v. State, 82 7 S.W.2d 619, 622 (Tex.App.–C orpus Chri sti 1992, no pet.)5

(holding that the possibili ty of h arm i s not imminent r isk in an i nvoluntary commitment case).
In Millslagle , the defendant father was charged w ith leavi ng his three-y ear old son unattended in a truck in a parking lot for 45 minutes while he wasin t he r estr oom o f a sandwich shop i ngest ing n arcot ics. 81 S.W.3d at 8 96. Th e evid ence showed t hat the child, although upset

and crying, did not suffer harm from t he experience. Id. at 898. The truck’s engine was not running, it was not dark , the window s of the truck w

ere open and the child was not overheated, and there was no ev idence that he was le ft in a dangerous
area. Id. The Austin Cou rt conclu ded that although the evidence showed a potentially dangerous situation, it did notsupport a finding beyond a reason able doubt that the ch ild was in i mminent danger of death , bodily i njury, or physical or mental impai rment. Id. Appellant

was indi cted for leav ing his te n month old daughte r without ad equ ate supervis ion. The police officers testified that when they arrived at appellant’ s home they found all four chil dren asleep, the ten month old and another s ibling on the bedroom floor and th e two rem aining siblings on the living room floor. The evidence is contradictory regarding whether the children were sleeping on the floor or i n their bed s. One of the officers testified t hat the childr en were not injured.
The children’s

mother testified that she and appell antleft the children under the care of their 12 yea r old son w hile they went to a convenience store to get food. The 12 y ear old also testified that he cou ld adequately care for his baby sister and knew what to do in6

case of an emergency. Although cro ss-e xamined by the State regarding how he would have reacted had ther

e bee n a fi re, he expl ained that he had an exit plan. He further testified that he had lear ned CPR in sc hool. The uncle w ho picked up the c hildr en the night they were found alone did not testify. Ba sed on the foregoi ng evidence, we cannot conclude that thi s appeal is fri volous. Having found an arguable ground f or appeal, this C ourt m ust ensure appellant’s right to counsel by permitting appellant’s pr esent counsel towithdraw and requiring the appointment

of new counsel to rebrief whether the evidence is legally and factually sufficient to establish that appellant acted with criminal negligence by engaging in conduct thatplaced his te n month old daughte r in immin ent

danger of death, bod ily inj ury, or physical or mental impairment. (Emp hasis added). Counsel is also direc

ted to raise an y other grounds hebelieves might support the appeal. Stafford v . State, 813 S.W.2d 503, 510 (Tex.Cr.App. 1991).
To secure the appoi ntment of new counsel, we now abate the appeal and remand the cause to the trial court. Dunc an v. Evans, 653 S.W .2d 38, 40 (Tex.Cr.App. 1983 ). Upon remand, the tri al cour t s hall appoint new

counsel to br ief the ground w e deem arguable, as well as

any other grounds that might support the appeal. The trial court shall directcounsel to file

appellant’s b rief withi n 30 days after his appointment and shall furnish the name, address, tel ephone number, and state bar number of new counsel to the Clerk of this Court immediately after the a ppointment is ordered. Finally, the trial court shall7

execute findings of fa ct, conclusions of law, and such orders as it deems necessary and
cause its finding s to be includ ed in a supplemental clerk’s record. A s upplemental reporter’s record of the hearing shall also be include d in the appellate r ecord. Finally , the trial court shall fil e the supp leme ntal reco rds wit h the Clerk of t his Co urt b y Frida y, February 14, 2003.
Acco rdin gly, counsel's motion to withdraw is hereby granted and the appea l is abated and the cau se remanded to the trial court f or further proceedings.

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