## NO. 12
- 12
- 00287
- CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

VANESSA LYNN CLARK, APPELLANT
V. THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 159TH

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEX AS
MEMORANDUM OPINION A jury found Appellant , Vanessa Lynn Clark, guilty of the offense of endangering a child. Appellant pleaded true to the enhancement allegation in the indictment. The trial court assessed her punishment at confinement for 119 months and a fine of $2,500.00. In her first issue, Appellant contends the evidence is insufficient to sustain h er conv iction for endangering her son , Tristan. In her second issue, Appellant con tends the trial court erred in admitting evidence of the previous death of her son Christian. We reverse the judgment of the trial court and render a judgment of acquittal.

B ACKGROUND Appellant put her four month old son, Tristan, in bed with her at 11: 30 p.m. and set her bedside alarm clock for 4:30 a.m. When she awoke at 4:30 a.m. to check on Tristan, he was not breathing. She called 9

- 1

- 1 while her husband performed CPR on Tristan. Nathan Smith, a paramedic from the Lufkin Fire Department, arrived at Appellant’s home at about 4:40 a.m. where he saw Appellant’s husband administer CPR to the child at the foot of the bed. The paramedic noted the child’s heart had stopped, and he appeared to have been without oxygen for some time. The paramedic observ ed no evidence of trauma or injury to the child. The child arrived at the hospital at approximately 4:50 a.m. After he was examined by a doctor, treatment2

was discontinued. Dr. Bogdan A. Chumak reported the cause of death as SIDS (sudden infant death sy ndrome). According to various observers , the parents were distraught, sad, and exhibited the grief normal following the sudden death of their child. Neither parent appeared to be intoxicated. Dr. Jeffrey Barnard, Chief Medical Examiner of Dallas County, testified regarding the autopsy of Tristan. The child appeared developmentally normal. No drugs were identified in the blood that was examined or in spinal fluid cultures. Tristan’s heart was structurally normal. No disease was identifiable either fro m looking at the organs or examining them under a microscope. He found no head injury or evidence of other trauma. “There was nothing in the airway that demonstrated a large aggregate of mucous or anything in the lungs to show an obstruction from that.” There were no congenital anomalies or birth defects reported or allergies known. Dr. Barnard found the cause of death to be undetermined. He said the autopsy report was consistent with SIDS, the stated cause of death in the “Record of Death” made by Dr. Chumak. Dr. Barnard testified that the only things left that he “could not eliminate would be mechanical compression or an asphyxia l type of death

– in some form the child was unable to br eathe

– or some sort of cardiac irregularity.” He also could not nega te some electrical abnormality. Appellant gave a blood sample at Lufkin Memorial Hospital at 1:00 p.m. on July 9, 2010, the date of the baby’s death. Analysis of the sample showed levels of alprazolam (Xanax) of 0.16 milligrams per li ter and hydrocodone (Vicodin) of 0.09 milligrams per liter. Testimony described the level of both drugs as quite high. The level of Xanax (“prescribed for anxiety, panic disorders

. . . sometimes phobias”) was characterized as “quite high

– generally higher than what is cons idered therapeutic

. ” Appellant had prescriptions for both drugs. 1 Dr. Barnard testified that a lprazolam is an anti

- anxiety medication , one of whose common side effects is sedation. Hydrocodone (Vicodin) is a pain medication that can have a side effect o f drowsiness or sluggishness. Tony Jasso of the Department of F amily and Protective Services testified that the Department does not recommend “co

- sleeping” with a child, and provides brochures regarding the dangers of bed sharing. Amanda Mott, formerly a n investigator with Children’s Protective

1 Appellant suffered from bipolar disorder.3

Services (CPS) , testified she visited the Clarks once in May and once in June 2009 and gave Appellant a brochure concerning the risks of co

- sleeping. She said she told Appellant it was dangerous for the child. Li sa Soto, a former supervisor for CPS , testified that she believed that it

was never advisable for an infant to sleep in an adult’s bed.

S UFFICIENCY OF THE E VIDENCE In her first issue, Appellant contends the evidence is insufficient to support her convict ion for child endangerment. Standard of Review In reviewing a claim of insufficiency of the evidence, an appellate court views all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 31 8

- 1 9, 99 S. Ct. 2781, 2788

- 89, 61 L. Ed. 2d 560 (1979) ; Brooks v. S tate , 323 S.W.3d 893, 895 (Tex. Cri m . App. 2010). Applicable Law A person commits an offense if s he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than fifteen years in imminent danger of death, bodily injury, or physical or mental impairment. T EX
. P E NAL C ODE A NN
. § 22.041(c) (West 2011). “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) )

. “ [T]o be imminent for [the purpose] of imposing responsibility pursuant to Penal Code § 22.041(c), the situation must be immediate and actual, not potential or future, at the moment of the act or omissi on by the defendant.” Newsom v. B.B ., 306 S.W.3d 910, 918 (Tex. App.

– Beaumont 2010, pet. denied). The danger must be imminent at the moment the defendant engages in the conduct. Id . Conduct that places a child in a potentially dangerous situation is no t sufficient for conviction. Millslagle , 81 S.W.3d at 898. Article 21.15 of the code of criminal procedure provide s as follows:

Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the ac cused acted recklessly or with criminal negligence in the commission of an4 offense, the complaint , information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute reckl essness or criminal negligence, and in no event shall it be sufficient to allege that the accused, in committing the offense, acted recklessly or with criminal negligence.

T EX
. C ODE C RIM
. P ROC

. A NN . art. 21.15 (West 2009) . At trial, the s tate is limited to the acts alleged in the charging instrument to prove the recklessness or criminal negligence of the conduct. See Cadenhead v. State , 369 S.W.2d 44 , 45 (Tex. Crim. App. 1963); 42 George E. Dix & John M. Schmolesky , Texas Practice Series: Texas Criminal Practice & Procedure § 25:9 8 ( 3d e d

. 2011). Discussion The dispositive question in this case is whether the culpable conduct alleged, Appellant’s placing the child in bed with her and going to sleep, represented an “imminent” danger of death or bodily in

jury to the child. A measure of the imminence of a danger is the nature of the response the danger should provoke. Once observed by those in a position to act, an imminent danger of death or bodily injury to a child justifies , in fact demands, urgent i ntervention to re move the child from the danger. This is illustrated by our case law in which our courts have consistently affirmed convictions where an immediate effort to remove the child or children from the danger was the only appropriate course. I n Rodriguez v. State , 137 S.W.3d 758, 762

- 63 (Tex. App.

– Houston [1 st Dist.] 2004, no pet.), the court affirmed the child endangerment conviction of an intoxicated driver who failed to slow down when another car turned in front of him and the vehicles colli ded. In Wahlig v. State , No. 03

- 07

- 00695

- CR, 2009 WL 884779 , at * 4

- 5 (Tex. App.

– Austin Mar. 27, 2009, pet. ref’d) (mem. op., not designated for publication), the court affirmed the conviction of the defendant who set fire to a house with children inside. Another child endangerment conviction was affirmed in Teeter v. State , No. 05

- 06

- 00309

- CR, 2007 WL 510 356 , at *6

- 12 (Tex. App.

– Dallas Feb. 20, 2007 , no pet.) ( op., not designated for publication). In that case, t he defendant, an intoxicated school bus dr iver, drove his school bus filled with children at a high rate of speed,

s w er v ed, and nearly turned the bus over while turning without slowing. Id . at *1

- 2. The same result obtained in another intoxicated school bus driver case where the intoxicated driv er appeared to fall asleep, failed to negotiate a turn, and drove the bus with children inside into a ditch. Pittman v. State , No. 14

- 03

- 01296

- CR, 2005 WL 11498 1 9 , at * 1 (Tex. App.

– Houston5

[14 th Dist.] Jan. 20, 2005, no pet.) (mem. op., not designated for publication). I n Head v. State , No. 09

- 06

- 00 028

- CR, 2006 WL 3742800 , at * 2

- 4 (Tex. App.

– Beaumont Dec. 20, 2006, no pet.) (mem. op., not designated for publication), the intoxicated defendant drove at an excessive speed with three children in his car. An d finally, i n Steinecke v. State , No. 01

- 05

- 00813

- CR, 2007 WL 1119890, at *4

- 6 (Tex. App.

– Houston [1 st Dist.] Apr. 12, 2007, no pet.) ( mem. op., not designated for publication), the defendant, probably intoxicated, took no action to remove his children fro m the back seat of his burning car that had run off the road. On the other hand, when the danger was potential, but not immediate or about to happen, the courts have concluded the danger was not imminent. In Millslagle , the defendant left a three year old boy unattended in his pickup while he crawled into the attic of a nearby toilet to use methamphetamine. The culpable conduct alleged was that the appellant left the child alone for forty

- five minutes while using drugs. Millslagle , 81 S.W.3d at 89 6

- 9 7. The court reversed the conviction for endangering a child and rendered judgment convicting the appellant of leaving a child unattended in a vehicle. Id . at 898

- 99. In Elder v. State , 993 S.W.2d 229 , 230

- 31 (Tex. App.

– San Antonio 1999, no pet.), the c ourt held that the defendant did not place her eight year old daughter in imminent danger by permitting a man on probation for indecency with a child to move into their house, although the child was eventually assaulted by the probationer. In Medearis v. State , No. 11

- 04

- 00201

- CR , 2006 WL 1913488 , at *2

- 3 (Tex. App.

– Eastland July 13, 2006, no pet.) (op., not designated for publication) , the defendant slept while a four year old and a two year old child for whom he was responsible played unattended in the

u nfenced front yard. A neighbor noticed the children yelling and crying, trying unsuccessfully to get back in the house. The court found the situation potentially dangerous, but held that it did not rise to the level of imminent danger. The court reached the same conclusion in Salazar v. S tate , No. 10

- 07

- 00335

- CR, 2008 WL 2374941, at *2 (Tex. App.

– Waco June 11, 2008 , pet. ref’d) (mem. op., not designated for publication). In that case, t he defendant’s two and three year old children climbed out of a wind ow and ran into a busy street while the defendant talked on the telephone. In Moody v. Stat e , No. 01

- 03

- 00685

- CR, 2004 WL 1472216, at * 2

- 3 (Tex. App.

– Houston [1 st Dist.] July 1, 2004, no pet.) (mem. op., not designated for publication), the defendant’s th ree year old son and two year old daughter were routinely allowed to play without apparent supervision in an unfenced front yar d near a busy road. They were often seen in cold weather wearing only diapers. Their residence was dirty, nasty, smelly, and un sanitary. The6

court held that the situation of the children was potentially dangerous, but that the danger was not “imminent” as required by the statute. In Moreno v. State , No. 07

- 01

- 0 0441

- CR, 2003 WL 21516575, at *2

- 3 (Tex. App.

– Amarillo July 3, 2003 , no pet.) (mem. op., not designated for publication), the defendant, arrested for DWI, left a ten month old baby, an eight year old child , and a ten year old child home alone in the care of a twelve year old in an unsanitary house infested with cockroache s where the children slept on the wood floors. The court rendered a judgment of acquittal stating that “placing a child in a potentially dangerous situation is insufficient to support a conviction for endangering a child. ” The court reached the same resu lt in Bordelon v. S tate , No. 09

- 96

- 00305

- CR, 1998 WL 770449 , at *2 (Tex. App.

– Beaumont Nov. 4, 1998, no pet.) (not designated for publication). The defendant and a co

- worker moved a heavy object through part of a day care center. The defendant left to an swer the phone and instructed the co

- worker to wait for her return. Instead, the co

- worker attempted to move the object unassisted , which fell on the child and killed her. To sustain a conviction for endangering a child, t he danger must have been imminen t at the moment the defendant engage d in the culpable conduct alleged. Newsom , 306 S.W.3d at 918. The endangering conduct alleged in this case is Appellant’s sleeping with her child. Had it been possible to apprehend Appellant immediately upon her takin g Tristan from his crib, placing him in bed with her , and falling asleep, no sense of urgency would have attended the discovery. Her conduct might have reasonably provoked a warning or a rebuke, but prosecution for child endangerment would not have been c onsidered. Common experience confirms that Appellant’s conduct is not an uncommon parental response to a crying infant in the middle of the night. Bed sharing with an infant has not been proscribed by our legislature, prohibited by agency rule, or served as a basis for criminal prosecution in our courts. There can be little question that Appellant’s prosecution was impelled, not by the nature of Appellant’s conduct, but by Tristan’s tragic subsequent death. But the record does not show that Tristan’s de ath was a result or consequence of Appellant’s sleeping with him. The evidence does not show that Tristan died because he was in bed with his mother; it shows only that he died while in bed with her. Dr. Barnard , the Chief Medical Examiner of Dallas Coun ty who testified to the autopsy results, acknowledged that bed sharing with the infant was an attendant circumstance. But he could not conclude that Tristan’s death was a consequence of his sleeping7

with his mot her. The autopsy showed a well

- formed, well

- nourished child with no evidence of disease, abnormality, trauma , or other indication of abuse. No lint or other obstruction was found in his air passages that would indicate he died of suffocation. Dr. Barnard testified that although suffocation could not be excluded as the cause of death, neither could a variety of other possible causes. Dr. Barnard found the cause of death to be “undetermined.” Dr. Chumak, who signed the death certificate, determined sudden infant death syndrome was the cause, which is essentially the same conclusion reached by Dr. Barnard

. The record reflects that the majority of informed opinion on the subject consider s bed sharing with an infant to be unwise. We are convinced that when Appellant took the crying child from its cr ib, placed him in bed with her, and fell asleep, she was placing him in a potentially dangerous situation. But we are unpersuaded that, at that moment, the danger was so immediate or menacingly near as to cons titute imminent danger of death, bodily injury , or physical or mental impairment . Viewing the evidence in the light most favorable to the verdict, we conclude that there is insufficient evidence to support a finding that the conduct alleged placed the child in imminent danger. Appellant’s first issu e is sustained. Because the evidence is legally insufficient to support Appellant’s conviction, we need not address her second issue.

D ISPOSITION Having sustained Appellant’s first issue, w e reverse the judgment of the trial court and render a judgm ent of acquittal

.



### B ILL 

### B ASS Justice Opinion delivered November 6 , 2013

. Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

( DO NOT PUBLISH )

## COURT OF APPEAL S

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS



## JUDGMENT

NOVEMBER 6 , 2013



### NO. 12
- 12
- 00287
- CR

VANESSA LYNN CLARK, Appellant V. THE STATE OF TEXAS, Appellee

_____________________________________________________________________________ Appeal from the 159t h Judicial District Court of Angelina County, Texas. (Tr.Ct.No. 2011

- 0267)

_____________________________________________________________________________

THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same bei ng considered, because it is the opinion of this court that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that the judgment of the trial court be reversed and a judgment of acquittal be rendered , and the same is, hereby entered herein in accordance with the opinion of this court; and that this decision be certified to the court below for observance.

Bill Bass, Justice. Panel consisted of Griffith, J., Hoyle, and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.