Opinion filed August 31, 2011

In The

Eleventh Court of Appeals 

__________

No. 11-10-00175-CR

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AIMA LORENA GARCIA, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR36897

O P I N I O N

Aima Lorena Garcia appeals her conviction by a jury of the offense of endangering a 

child. The trial court assessed her punishment at two years in the Texas Department of Criminal 

Justice, State Jail Division, suspended for a period of five years on community supervision. She 

asserts in two issues that the evidence was insufficient to support her conviction and that the trial 

court abused its discretion in denying her motion for new trial without a hearing where the 

motion raised a matter not determinable from the record and necessary for appeal. We reverse 

and acquit.

We must determine whether, after viewing all the evidence in a light most favorable to 

the verdict, any rational trier of fact could have found the existence of the elements of the 

offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893 (Tex. 

Crim. App. 2010); Gibbs v. State, 819 S.W.2d 821, 834 (Tex. Crim. App. 1991). The indictment 
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alleged that the defendant, on or about October 27, 2009, intentionally, knowingly, recklessly, 

and with criminal negligence placed L.G., a child younger than fifteen years of age, in imminent 

danger of death, bodily injury, and physical and mental impairment by failing to properly clothe 

her in a manner necessary for the weather and surroundings.

Elyse Haynes, a resident of the Dakota Apartments, testified that on October 28, 2009, a 

girl knocked on her door. She said the girl, whom she identified as Garcia, was carrying a baby 

wearing nothing but a diaper. Haynes recalled that it was really cold. Haynes stated that she did 

not let Garcia in, but called 911. Haynes described the baby as shivering, with blue lips and a lot 

of snot. She estimated the age of the child as “[m]aybe two.” She related that, while she was 

waiting for the police to arrive, she saw Garcia sitting in a vehicle that belonged to Haynes.

Haynes testified that, at some point after the police arrived, she was holding the child and 

it was shivering, “very, very bad.” She indicated that, after she got into her the vehicle with the 

heater running, it took the child thirty minutes to stop shivering. She said she was concerned 

about the child that night because she was cold.

Zachary Chesworth testified that he is a patrol officer for the City of Midland. He said 

that, after being dispatched to the scene in question, he observed Garcia holding a child about 

one or two years of age. He described the child as wearing only a diaper. He indicated that the 

child appeared cold to him and that it was cold to the touch.

Kevin Bullard testified that he is a patrol officer for the Midland Police Department. He 

said that, when he arrived on the scene, he found Garcia holding the child, who was wearing only 

a Pamper. He indicated that Garcia was holding the child while sitting in a Tahoe with the doors 

closed and windows shut. He described the baby as shivering, with “snot and stuff on its face,” 

and the diaper as “huge, wet, and . . . very cold to the touch.” He said the baby appeared to be 

cold. He described Garcia as being intoxicated.

On cross-examination, Officer Bullard acknowledged that no one called paramedics or 

the hospital with respect to the child. On redirect examination, he indicated that he knew that, if 

something was not done about the child, it could turn for the worse and the infant would need 

medical attention. He said he observed that the baby was shivering and had blue lips from the 

cold. He also noted that the child was cold to the touch.
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The State and Garcia stipulated that the child in question was Garcia’s child and that the 

child was younger than fifteen years of age. Police department records were introduced showing 

that the weather at the time in question was fifty-eight degrees, with south winds at fourteen to 

twenty-one miles per hour.

Garcia contends that the evidence is insufficient because there is no evidence that the 

child was in imminent danger of bodily injury or physical or mental impairment. One of the 

elements of the offense of endangering a child is that the defendant’s conduct placed the child in 

imminent danger of bodily injury or physical or mental impairment. TEX. PENAL CODE ANN.

§ 22.04 (Vernon 2011). While the evidence presented in this case showed that the child was 

quite cold and one could infer that, if the child had remained outside with the same clothing the 

child might have been in imminent danger of bodily injury or physical or mental impairment, we 

conclude that one could not reasonably determine from the evidence that Garcia’s conduct 

placed the child in imminent danger of bodily injury or physical or mental impairment. 

The State has presented Texas authorities in which the evidence was sufficient to show 

imminent danger and some in which the evidence was insufficient to show imminent danger, but 

because none involved exposing a child to the cold, none is shown to be inconsistent with our 

holding. We have found two out-of-state cases involving conduct causing a child to be too cold 

in which the evidence was found to be sufficient: Ellis v. State, 642 S.E.2d 869, 870 (Ga. App. 

2007), and Ohio v. Mabrey, No. 96048, 2011 WL 3425645 (Ohio App. Aug. 4, 2011). We find 

both of those cases to be distinguishable.

In Ellis, the child was unattended, crying, and shivering outside a home, clothed only in 

jeans and a tee shirt. Ellis, 642 S.E.2d at 870. The temperature at the time was between thirtyone and thirty-four degrees. Id. The child’s jeans were damp, and his feet were wet. Id. There 

was evidence that the child displayed signs of mild hypothermia in that he was shivering, his lips 

were blue, and his body was cold to the touch. Id. The defendant was convicted of the offense 

of contributing to the deprivation of a minor. Id. at 871. This merely required a showing that a 

defendant willfully committed an act or willfully failed to act “when such act or omission would 

cause [the child] to be found to be a deprived child,” which is a child without proper parental 

care or control necessary for the child’s physical, mental, or emotional health or morals. Id. 

There was no requirement to prove any imminent danger of death, bodily injury, physical 
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impairment, or mental impairment. The court found the evidence to be sufficient to support the 

conviction. Id. We find this case to be distinguishable because, in Ellis, the State was not 

required to prove that the defendant’s conduct caused imminent danger of bodily injury, physical 

impairment, or mental impairment.

In Mabrey, the defendant, a licensed practical nurse, left a disabled child in cold water for 

too long. Mabrey, 2011 WL 3425645, at *2-3. The State was required to show that the child 

suffered physical or mental injury that harmed or threatened the child’s health or welfare. Id. at 

*2. It was not required to prove that there was an imminent danger of bodily injury or physical 

or mental impairment. A paramedic called to the house said the child was cold to the touch and 

his lips were very blue. Id. at *3. A treating nurse at the hospital testified that the child had a 

temperature of eighty-four degrees Fahrenheit and indicated that, at that temperature, multiple 

systems within the body would be shutting down. Id. A physician testified that what was 

remarkable was the profound, life-threatening hypothermia that was present on arrival at the 

local emergency department. Id. at *5. The court found that the evidence was sufficient to 

support the conviction. Id. at *7. We find this case to be distinguishable, both because the State 

was not required to prove that there was an imminent danger of bodily injury or physical 

impairment or mental impairment and because, in Mabrey, the State presented evidence showing 

that the child’s injuries were life-threatening.

Because we have found the evidence insufficient to sustain the conviction, we sustain 

Issue One. In view of our determination of this issue, we need not determine Issue Two.

We reverse the judgment and render a judgment of acquittal.

JOHN G. HILL

August 31, 2011 JUSTICE

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.1

 

1

John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.