Shanell Monique Mosley v. State

Opinion issued December 30, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NOS. 01-08-00937-CR

01-08-00938-CR

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Shanell Monique Mosley , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case Nos. 1182323 & 1182322

OPINION ON PETITION FOR

DISCRETIONARY REVIEW

In light of the petition for discretionary review

filed by appellant, we withdraw our previous opinion of August 31, 2010. Our judgment of the same date remains

unchanged. See Tex. R. App. P.

50. We substitute the following opinion

in its stead.

Appellant Shanell Monique Mosley was convicted of

abandoning two children. See Tex.

Penal Code Ann. § 22.041(a),

(b), (d)(1) (Vernon Supp. 2009).

The trial court assessed punishment in each of the two cases at two

years in state jail, suspended, and placed Mosley on community supervision for

five years. [1] See Tex. Penal Code Ann. § 12.35(a) (Vernon Supp. 2009) (state‑jail

felony); Tex. Code Crim. Proc. Ann. art. 42.12, § 15 (Vernon Supp. 2009) (community

supervision).

Mosley brings five points of error, claiming the

evidence is legally and factually insufficient to prove Mosley intended to

abandon the children, the evidence is legally and factually insufficient to

prove Mosley left the children under circumstances that exposed them to an

unreasonable risk of harm, and the trial court erred in the admission of

evidence. We affirm.

Background

We begin

our analysis by summarizing testimony and evidence adduced at trial relevant to the issue of whether Shanell

Mosley abandoned her children under

circumstances that exposed them to an unreasonable risk of harm . [2]

A. Mosley’s family and marriage plans

Mosley and her extended family are originally from

Louisiana. While living there, Mosley

met her future husband, George Anichukwu, who was from the Republic of Benin, a

country in western Africa. They

established a long‑distance relationship, communicating by telephone

after Anichukwu returned to Benin.

After Hurricane Katrina, Mosely and her children

moved to Texas. Anichukwu subsequently

asked Mosley to marry him. Because

Anichukwu was not a United States citizen, an immigration lawyer advised the

couple to marry in Africa so he could obtain a spousal visa. Mosley planned to leave Houston on December

31, 2007 to visit Africa for six weeks, get married in Nigeria, and help

Anichukwu open a nonprofit organization for children.

B. Mosley’s child-care plans during her trip to

Africa

At the time of Mosley’s trip to Africa, she had six

children, whose ages were as follows: J.R., a one‑year‑old male;

Z.M., a seven‑year‑old male; AA.M., an eight‑year‑old

female; AN.M., a nine‑year‑old male; E.M., a fifteen‑year‑old

female; and T.M., a sixteen‑year‑old female. Mosley did not want to take one‑year‑old

J.R. to Africa because she was planned to stay in a house with no electricity

or running water, and she was concerned he might get sick. She also said she could not afford to bring

any of her other children with her on the trip.

Mosley testified that her close family members were

involved in preparing for the wedding and the planning to take care of her

children. Her primary child care plan

was for the children to be supervised during the entirety of her six-week

absence by her sister Shaqual Mosley, who was to come to Houston from

Louisiana. Shaqual testified that Mosley

asked her about six months in advance to look after the children during the

anticipated trip to Africa. Mosley’s

backup plan was for the children to be cared for by her friend Shawn Harrison,

for whom she was a regular babysitter.

Mosley said she left $2,000 for Shaqual to take care

of the children, as well as medicine and medical records. She also left emergency telephone numbers,

both written and stored in the home phone and in her mobile phone. She testified that she left food in the house

and that before she left, she cooked food for Shaqual to feed the

children. She also gave the keys to her

van to her fifteen-year-old daughter E.M., along with between $100 and $200 for

food and some credit or debit cards. [3]

Mosley originally expected Shaqual to arrive in Houston

on December 29 by getting a ride with a friend.

Shaqual testified that she was planning to travel by bus on that day,

but did not because bus fares were higher than she expected during the holiday

season. Mosley offered to send money to

Shaqual, but she declined, saying she was going to get the money from a

brother. Although she knew Shaqual could

not come to Houston on December 29, Mosley said she did not change her plans at

that time because her $1,600 plane ticket was nonrefundable.

Mosley thought that Shaqual would be arriving on the

bus on December 30, and she asked Harrison to meet her at the bus

station. But Shaqual did not arrive that

day either.

The next plan was for Shaqual to arrive in Houston

on December 31—the same day as Mosley’s scheduled trip to Africa on a flight

departing at 4:40 p.m. Shaqual

called Mosley at 6:03 a.m. to say that she was catching an 8:00 a.m. bus that

would arrive in Houston at 2:00 p.m. But

that was not true. Shaqual had been

unable to get bus money from her brother, and instead of so informing Mosley,

she told her to go ahead with her travel plans because she had promised to not

let her down.

Shaqual also called their cousin, Diana Jackson, who

lived in the Houston area. Shaqual

testified that she asked Jackson to take care of Mosley’s children, but that

Jackson was uncomfortable with taking that responsibility. Shaqual then talked to E.M. and told her to

stay inside the house with the other children.

Shaqual told E.M. that if Mosley called the house, “Don’t tell her I’m

not there because I didn’t want her to freak out or panic.”

Meanwhile, Mosley did not realize until that day

that she needed to be at the airport before Shaqual’s 2:00 p.m.

arrival. When she realized the problem,

she again asked Harrison to pick up Shaqual.

He took Mosley to the airport and left his own two young children to be

watched by Mosley’s older children.

Shaqual said that she and Mosley spoke with each

other more than twenty times on December 31 and that Mosley told her that she

needed to be on the bus before Mosley boarded her plane. Mosley testified that she talked to Shaqual

on the phone before she left for the airport, and she was confident that

Shaqual was on her way to Houston.

Shaqual testified that in their last conversation that day, when Mosley

was at the airport, she told her that she was on the bus and three hours away

from Houston. E.M. testified that she

also spoke with Mosley on the phone before her plane left, and told her that “Shaqual

was almost here.” This was not true,

however, as Shaqual never left her house.

Shaqual said that she told Mosley she was on her way because she did not

want her to worry.

Mosley admitted that she left on her flight to

Africa without knowing whether Shaqual had in fact arrived to take care of the

children. She planned to call and check

on Shaqual once she landed in Africa on January 1.

C. Events following Mosley’s departure

a. December 31

In Shaqual’s absence, fifteen-year-old E.M. was

looking after her four younger siblings, as well as Harrison’s two young

children, while her mother was being taken to the airport. E.M. had the credit or debit cards that had

been left by her mother, but she was unable to use them to withdraw money

because she did not know how to use them.

E.M. testified that she felt very overwhelmed by having to be

responsible for all the children. Turner

stated that she saw E.M. unsuccessfully attempt to withdraw money using a debit

card so she could buy groceries.

At this time E.M. was on probation for assault, and

her juvenile‑court advocate was S. Turner. [4] Sometime around noon that day, E.M. had

called Turner and told her that Shaqual had not yet arrived. Turner went to the house around 3:45 p.m. and

found E.M. outside in the van, holding the car keys. E.M. told Turner that she was only charging

her phone and promised she would not drive the van.

Nevertheless, later that evening E.M. drove the van

around the block with a friend, and upon their return drove the van into the family’s

garage. E.M. called Harrison and told

him that “somebody pushed the car into the garage.” Harrison then came over to the house for

about two hours to look at the garage.

An ambulance came, which E.M. said was requested by her friend. The ambulance personnel examined E.M. and

found that she was not hurt.

E.M. called Turner around 7:00 p.m. and in a

hysterical voice and said that she had run the van into the garage. Turner came to the house around 8:30 p.m. and

found E.M. screaming, “I’m going to run away.

My mom is going to kill me.”

Turner told E.M. to call her grandmother in New Orleans and her aunt

Diana Jackson in Houston. E.M. called

Shaqual and Jackson and told each of them about the accident. Shaqual called Jackson again and encouraged

her to hurry up in getting to Mosley’s house. [5]

That night Mosley’s oldest daughter, sixteen-year-old

T.M., came to the house with her friend Joyce and Joyce’s sister. During this time period, T.M. had not been

living in the house, but she came to the house after Mosley’s departure. She had been told by E.M. that Shaqual was at

the house. T.M. saw the damage to the

garage door and found that Shaqual was not at the house. At trial, T.M. did not explain why she did

not stay at the house that night after finding out that Shaqual was not

there. After Harrison left the house,

Jackson and her children came over and spent the night.

b.

January 1

In the morning, Jackson left, T.M. returned, and

E.M. called Shaqual in surprise that she had not arrived. E.M. testified that a friend of hers came

over to the house and burned some food in a pot. She said there was plenty of food in the

house, except there was no milk for the children’s breakfast.

E.M. called Harrison, who came over and took her to

the store to shop, along with three of the other children. They left one-year-old J.R. at home with

T.M.’s friend Joyce. E.M. bought food

with the money given to her by Mosley.

Harrison never came in the house, and E.M. told him that Shaqual was

there.

At some point during the day, E.M. drove everyone in

Mosley’s van to McDonald’s to eat. T.M.

testified that she knew that E.M. was not supposed to drive Mosley’s van and

that the children looked like they were in good health.

Turner spoke to E.M. around 10:00 a.m. and found out

that neither Jackson nor Shaqual was at the house. Later that morning, E.M. drove the van again

to take Joyce to work. She later drove

AA.M. and AN.M. to a party in the neighborhood.

That afternoon, between five to ten of E.M.’s friends came over to the

house. The age of her friends ranged

from sixteen to nineteen, and E.M. admitted that Mosley would not have allowed

that many children to be in the house.

When Shaqual did not show up at the house by the

evening of January 1, E.M. was upset and called her. She again drove the van to pick up Joyce, and

T.M. and Joyce spent the night at the house.

Mosley called home upon her arrival in Africa and

quickly spoke to one of her children.

She assumed that Shaqual was in Houston, but Mosley testified that she

did not ask to speak to her. Shaqual,

however, testified that she told Mosley on January 1 that she had never arrived

at the house. Shaqual said that Mosley

was “mad” during that call. She told

Mosley not to worry and that she had called a cousin of theirs who was with the

children. Shaqual later admitted that

her telephone records did not show any calls between Mosley and her on January

1, 2008. There was one international

call to Africa on January 2 when Shaqual spoke to Mosley.

c.

January 2

T.M. left the house around 3:00 a.m. on January

2. She expected Shaqual to arrive on the

bus later that day. In the morning, E.M.

drove Joyce to work before the other children woke up. She then drove the children to McDonald’s

after picking up Joyce, who was on a break.

Sometime during the day, Harrison dropped his children off at the house

before he went to work. That afternoon,

E.M. called Mosley using a calling card and told her, falsely, that Shaqual was

at the house. Mosley asked to speak with

the other children, and E.M. told her that they were at the store with Shaqual.

Late that afternoon, E.M. drove the van to give

Joyce a ride from work, while the other children were at home with T.M. E.M. hit a car while she was driving to get

Joyce. E.M. called Shaqual, Jackson, and

Harrison about this incident. After E.M.

dropped Joyce off, she drove home to find that law‑enforcement officers

were there. She initially testified that

she called Mosley in Africa to tell her what had happened, but later denied this

and said that she lied about it.

D. The January 2 “welfare check”

Deputy A. Ortiz of the Harris County

Sheriff’s Department testified that she was sent to Mosley’s house on January 2

at 7:30 p.m. for a “welfare check,” which is an inquiry by law‑enforcement

personnel regarding a person’s well being, such as an elderly or suicidal

person. In this instance, the sheriff’s

department received a call from someone who believed that Mosley’s children had

been left alone. When she was

dispatched, she was told the children were alone in the house and the mother

had gone to Africa to get married.

Ortiz knocked on the front door and identified

herself as a sheriff’s deputy, but no one answered. She saw a silhouette of a child’s head in an

upstairs window, and she contacted Sergeant G. Rogers of the Harris County

Sheriff’s Department and continued to knock on the door and identify

herself. After some time passed, T.M.

opened the door, talking on a cell phone and apparently upset at Ortiz’s

presence. [6] Without stopping her phone conversation, T.M.

allowed Ortiz to enter the house.

Ortiz gathered together all of the children as

Rogers arrived. There were seven

children in the house: all of Mosley’s children except E.M., plus Harrison’s

two children. Rogers testified that the

children’s demeanor was fine, but they were all hungry.

Ortiz talked to the children and became concerned

about one-year-old J.R., who she was not able to wake. Rogers was also concerned about J.R., who he

described as listless and apparently dehydrated. Ortiz believed J.R. was not merely sleepy, so

she asked that Emergency Medical Services come to the scene and examine him. She also asked another deputy to go buy food

for the children, because it appeared to her they had not eaten since that

morning. Rogers testified, “All the children were hungry. Every one of them were starving.” When

EMS personnel arrived, they gave Pedialyte to J.R., but he did not need

intravenous fluids or hospitalization.

EMS personnel examined all of the children, but did not take them to the

hospital.

Rogers saw soot in the kitchen,

indicating to him there had been a stovetop fire. He saw flour or baking soda on the stove,

which he believed the children used to put out the fire. Based on his prior experience as a

firefighter, Rogers estimated that the fire occurred from three days to a week

before. He later admitted it was

possible that Mosley had caused the fire before she left. [7]

While the other children were eating,

E.M. arrived. E.M. appeared very upset

and bothered that the deputies were at the house. Ortiz was eventually able to find out from

E.M. that Mosley was in Africa. Ortiz asked

both E.M. and T.M. if there were any adults that could be called to come over

and stay with the children, but were told there was no one who lived

locally. Most of the children’s

relatives lived in Louisiana. None of

the children mentioned Diana Jackson or Sandra Turner as an adult who could be

contacted.

Ortiz admitted that he did not check

the children for injuries or bruises.

Other than J.R.’s condition, Ortiz did not see anything that alarmed her

about the children’s physical condition.

She determined that T.M. was speaking on the phone to her aunt, Diana

Jackson, but she did not ask to speak to Jackson. She also did not ask E.M. if there were any

adults who were supposed to be with the children while Mosley was gone. Ortiz made no attempt to contact either

Mosley or Jackson, and she was the officer who contacted the district

attorney’s office to ask for charges to be brought against Mosley.

T.M. told Ortiz that she was staying with a friend

because Mosley had kicked her out of the house three or four weeks earlier — something that Mosley denied at trial. E.M. told Ortiz that she was the person

taking care of the younger children.

Rogers did not see a list of emergency-contact

numbers left anywhere in the house, and he found only one working telephone. Rogers admitted that he did not check to see

if emergency-contact numbers were stored on the telephone. He did not find any money, debit cards, or

any checks, but admitted that he did not ask the children if Mosley had left

any money.

Harrison arrived at the house while the deputies

were there. He told Rogers that he

believed that Mosley had gone to Africa, but was not sure.

Around 11:30 p.m. an investigator for the Department

of Family and Protective Services was called to go to Mosley’s house and assist

in transporting the children to the Child Protective Services office. Investigator P. Smith testified that the

primary reason for taking the children into custody was because no adult was

present. Smith took both the Mosley

children and the Harrison children into CPS custody. She acknowledged that Harrison was present

when she arrived.

Smith said that when she saw the children on January

2, they were dressed appropriately. She

saw food in the house that the children could eat, such as canned goods, peanut

butter, and food in the refrigerator.

The only thing she did not see was milk in the refrigerator for

J.R. She did not remember whether there

was any canned milk in the pantry. Smith

did not have a negative opinion about J.R.’s appearance or general health. She worked at the CPS office until

approximately 4:00 or 5:00 a.m. to prepare required reports. During that time, no one came to pick up

Mosley’s children.

Sixteen-year-old T.M. later ran away from the CPS

facility and called Mosley. She

explained to her mother that Shaqual had never arrived, “everybody thought she

had abandoned us,” the children were in CPS custody, and Mosley “was in

trouble” and needed to “get here as fast as you can.” [8]

E. Mosley’s response to learning about the CPS intervention

Shaqual testified that she told Mosley

on January 3 that law enforcement had come out to her house and her children

had been placed in CPS custody. Mosley,

however, testified that she first learned her children were in CPS custody on

January 6, when she received a call from T.M. after she had run away from

CPS.

Mosley and her husband collected money from

villagers to raise the approximately $200 needed to change the date of her

February 16 return flight and return early to Houston. It took her approximately twelve days to find

the money. She called family members in

the United States and asked them to send her money, but no one would. Due to a late bus, Mosley missed the first

flight home she rescheduled for January 17.

The next flight she was able to schedule was on January 27. No one from law enforcement or CPS contacted

her while she was in Africa, but Mosley called CPS and was told she would be

arrested when she returned. Mosley

testified that she was surprised Shaqual never arrived to take care of the

children and that she would not have left for Africa if she had known that

Shaqual was not coming.

F. Harrison’s January 4 telephone call

A. Samuy, a CPS investigator employed by the

Department of Family and Protective Services, was assigned to investigate the

Harrison children. While she was at

Harrison’s house on January 4, she observed him receiving an international

phone call. She testified that she saw the

caller’s thirteen-digit phone number, which began with “234.”

Harrison put the call on speakerphone, and Samuy heard the caller say

she was “Monique,” who Samuy said she recognized as Mosley. Samuy heard Mosley tell Harrison, “Do not

talk to CPS,” and “you know Shaqual was supposed to watch them children

[because] you was supposed to pick her up from the bus station.” Samuy also heard Mosley tell Harrison that

she had left money for Shaqual’s bus fare and to take care of the children

while she was gone. The conversation

lasted about five minutes, then the connection was lost.

Samuy testified that Harrison then told her he was

calling Shaqual, and Harrison dialed a number and put the phone on

speaker. Samuy heard a voice say, “This

is Shaqual.” Samuy testified that

Shaqual went on to say the following:

Monique knew I wasn’t coming

to Houston before she got on the plane because she didn’t send me any

money. She didn’t send the bus money for

me and my kids to come. She knew before

she got on that plane that I wasn’t going to be—I couldn’t come to

Houston. I don’t know why she got on

that plane.

Samuy

admitted she did not know if Shaqual was being truthful, or if she was lying to

cover up for lying to Mosley. Samuy

believed that Harrison let her listen to the calls to demonstrate that he acted

reasonably when he left Mosley’s house on December 31, assuming that his

children were being adequately supervised by Shaqual. Finally, Samuy admitted on cross‑examination

that both calls referred to a “Monique” and that she did not have any

independent knowledge that Mosley went by the name “Monique.”

The State asked Shaqual if she told Harrison on

January 4 that “my sister knew I couldn’t come because she did not send

money. She knew I had not left. She was supposed to wire me money and she

didn’t.” Shaqual responded, “I don’t

remember ever saying that.”

G. Shaqual’s statement to Cara Bates

Cara Bates, a court appointed special

advocate with Child Advocates, testified that she spoke with Shaqual in New

Orleans on May 25, 2008 as part of the process of assessing relatives for

placement of Mosley’s children. Bates

asked Shaqual what happened on December 31, and Shaqual told her she had been

sent money for a bus ticket, but because the fares had increased for the

holidays, the ticket was too expensive.

Shaqual said that she called Mosley before she boarded her plane and

told her that “she could not afford the bus ticket but would find some way over

to Houston. But wasn’t on her way

yet.” The conversation continued with

Shaqual telling Mosley she tried to get a friend to drive her to Houston, but

it did not work out and “she had no way to get to Houston.”

Bates admitted that she relied solely

on Shaqual’s statements to her and that she had not seen any phone

records. She said that Shaqual appeared

to feel guilty that she was unable to get to Houston. Shaqual told her that Mosley never offered

her any additional money for the bus.

Analysis

I.

Admission

of evidence

In her

fifth point of error, Mosley contends the trial court erred in overruling her

authentication objection to Samuy’s

testimony about a telephone conversation she heard on a speakerphone while she

was at Harrison’s house. This testimony

was offered by the State to rebut Shaqual’s prior testimony that she did not

remember telling Harrison that Mosley knew Shaqual was not coming to Houston on

December 31.

Samuy testified that Harrison dialed a number, put

the call on speakerphone, and a person answered saying, “This is Shaqual.” Mosley then specifically objected as follows,

“Objection, Your Honor, unless she [Samuy] can authenticate Shaqual’s voice I

would object to her testifying to someone she doesn’t know.” The trial court immediately overruled the

objection. Samuy then testified that the

person on the phone said the following:

Monique knew I wasn’t coming

to Houston before she got on the plane because she didn’t send me any

money. She didn’t send the bus money for

me and my kids to come. She knew before

she got on that plane that I wasn’t going to be – I couldn’t come to

Houston. I don’t know why she got on

that plane.

Texas Rule of Evidence 901 provides for the

authentication of telephone calls as follows:

(a) General

Provision. The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what

its proponent claims.

(b)

Illustrations. By way of illustration only, and

not by way of limitation, the following are examples of authentication or

identification conforming with the requirements of this rule:

. . . .

(6) Telephone

conversations . Telephone

conversations, by evidence that a call was made to the number assigned at the

time by the telephone company to a particular person or business, if:

(A) in the case of a person, circumstances,

including self-identification, show the person answering to be the one called;

or

(B) in the case of a business, the call was made

to a place of business and the conversation related to business reasonably

transacted over the telephone.

. . . .

Here, the State offered testimony (1) of the number called

and (2) that the person who answered identified herself as Shaqual. At trial, Mosley did not make a specific Rule

901 objection on the basis that the phone number offered by the State was not

assigned to Shaqual. Instead, Mosley

made an objection that Samuy was not

able to authenticate Shaqual’s voice.

While the State did not match all

the elements of the illustration in Rule 901(b)(6)(A), Rule 901(b)

specifically provides that the illustrations do not limit the general provision

in Rule 901(a): “The requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims.” Although the State did not show that the call

“was made to the number assigned at the time by the telephone company to a

particular person,” that alone does not foreclose authentication on other

grounds.

Alternate grounds to authenticate

the identity of a telephone caller include self-identification of the caller

coupled with additional evidence such as the context and timing of the

telephone call, the contents of the statement challenged, internal patterns and

other distinctive characteristics, and disclosure of knowledge and facts known

peculiarly to the caller. See, e.g. , Manemann v. State , 878 S.W.2d 334, 338 (Tex. App.—Austin 1994, pet.

ref’d) (citing United States v. Orozco‑Santillan ,

903 F.2d 1262, 1266 (9th Cir. 1990); United

States v. Miller , 771 F.2d 1219, 1234 (9th Cir. 1985); and Tex. R. Crim.

Evid. 901(b)(4), (5), (6), 11 Tex. Reg. 565 (Tex. Crim. App. 1985) (former

Texas Rule of Criminal Evidence 901, since repealed by current Texas Rules of

Evidence)). Here, Samuy testified that

the person on the phone identified herself as Shaqual and continued to disclose

information that was very specific to circumstances previously described by

Shaqual and Mosley.

We hold that the trial court did not abuse its

discretion in admitting Samuy’s testimony because there was sufficient evidence

before the trial court to support a finding that person on the telephone was

Shaqual. See Tex. R. Evid.

901(a); see also Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)

(discussing abuse-of-discretion standard in review of evidentiary rulings); Montgomery v. State , 810 S.W.2d 372 , 378–80

(Tex. Crim. App. 1990) (same). The trial

court’s ruling that the evidence was admissible, of course, did not preclude

Mosley from challenging its weight and credibility.

We

overrule the fifth point of error.

II.

Sufficiency

of the evidence

In her first four points of error,

Mosley contends the evidence is legally and factually insufficient to establish

that she intended to abandon the children

and that she left the children under circumstances that exposed them to an

unreasonable risk of harm. Mosley

grouped these arguments together and did not make separate arguments for her legal

and factual sufficiency points.

Penal Code section 22.041 provides in part:

(a) In this section, “abandon”

means to leave a child in any place without providing reasonable and necessary

care for the child, under circumstances under which no reasonable, similarly

situated adult would leave a child of that age and ability.

(b)

A person commits an offense if, having custody, care, or control of a

child younger than 15 years, he intentionally abandons the child in any place

under circumstances that expose the child to an unreasonable risk of harm.

Tex. Penal Code Ann. § 22.041(a), (b) (Vernon

Supp. 2009). When an appellate

court decides a case without issuing a majority opinion providing a single

rationale explaining the result, the majority holding is the position taken by

those members who concurred in the judgment on the narrowest grounds. Haynes

v. State , 273 S.W.3d 183, 186 (Tex. Crim. App. 2008). A majority of the Court of Criminal Appeals

has interpreted section 22.041 to mean that the prescribed mental state — intentional — is connected with the act of abandonment.

See Schultz v. State , 923 S.W.2d 1 , 2–4 (Tex. Crim. App. 1996)

(plurality op.); id . at 4–5 (Maloney

& Mansfield, JJ., concurring). To

meet this culpable mental state, the defendant must intentionally leave a child

in any place without providing reasonable and necessary care for the

child. Tex.

Penal Code Ann. § 22.041(a); Schultz , 923 S.W.2d at 2–4 (plurality

op.); id . at 4–5 (Maloney &

Mansfield, JJ., concurring). Additionally,

the defendant must know that the circumstances are such that no reasonable,

similarly situated adult would leave a child of that age and ability. Tex.

Penal Code Ann. § 22.041(a); Schultz , 923 S.W.2d at 2–4 (plurality

op.), 4–5 (Maloney & Mansfield, JJ., concurring). However, the evidence need not show that the

defendant actually knew that the circumstances would expose the child to an

unreasonable risk of harm. See Schultz ,

923 S.W.2d at 2–4 & n.6 (plurality op.), 4–5 (Maloney & Mansfield, JJ.,

concurring). As noted by the Schultz plurality, “[t]his construction appears designed to

punish actors who are aware of the dangerous circumstances even though, due to

shortsightedness, lack of common sense, apathy, or just plain stupidity, they

may not be aware that the circumstances are dangerous.” Schultz , 923 S.W.2d at 4 n.6 (plurality op.).

The standard of review for sufficiency of the evidence is

whether, viewing the evidence in the light most favorable to the verdict, any

rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v.

Virginia , 443 U.S. 307 , 318–19, 99 S. Ct. 2781 , 2788–89 (1979); Brooks v. State , 323 S.W.3d 893, 902

(plurality op.), 926 (Cochran, J., concurring) (Tex. Crim. App. 2010). [9] The jury is the exclusive judge of the facts. Tex.

Crim. Proc. Code Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979);

Brooks , 323 S.W.3d at 893, 908 . Accordingly, “[a]ppellate courts should

afford almost complete deference to a jury’s decision when that decision is

based upon an evaluation of credibility.”

Lancon v. State , 253 S.W.3d

699, 705 (Tex. Crim. App. 2008). “The

jury is in the best position to judge the credibility of a witness because it

is present to hear the testimony, as opposed to an appellate court who relies

on the cold record.” Id .

a.

Intent to

abandon

Mosley contends that the evidence

is insufficient to prove that she intended to abandon her

children. As noted above, to “abandon” in this context means “to leave a child

in any place without providing reasonable and necessary care for the child,

under circumstances under which no reasonable, similarly situated adult would

leave a child of that age and ability.” Tex. Penal Code Ann. § 22.041(a) (Vernon Supp. 2009).

In this regard, Mosley suggests that reasonable adults routinely leave

their children supervised by a teenager.

That common-sense notion cannot immunize Mosley’s conduct as a matter of

law. L eaving four children under the age of ten for six weeks

without adult supervision and under the supervision of a fifteen‑year‑old

child who is on juvenile probation is an entirely different proposition than

hiring a babysitter for the evening.

Many appellate cases have discussed the offense of abandoning a child,

and we consider three with analogous circumstances. See Schultz v. State , 879 S.W.2d 377 (Tex. App.—Amarillo 1994), aff’d , 923 S.W.2d 1 (Tex. Crim. App. 1996); Castillo v. State , No. 08‑04‑00377‑CR, 2006

WL 1710062 (Tex. App.—El Paso June 22, 2006, no pet.) (not designated for

publication); Cochener v. State , No.

14‑91‑00153‑CR, 1992 WL 105768 (Tex. App.—Houston [14th Dist.]

May 21, 1992, no pet.) (not designated for publication).

In Cochener

v. State , the defendant was convicted of abandoning her four‑year‑old

daughter when the defendant left the child unattended in a car while she went

shopping. The defendant brought a legal‑sufficiency

challenge, claiming that the State “failed to refute her allegation that the

child was competent to supervise herself.”

1992 WL 105768 , at *2. She also

contended that she did not abandon her four‑year‑old child because

she left the child in the care of her “capable twelve‑year‑old

son.” Id. The Fourteenth Court

rejected both of these arguments, stating, “The jury was entitled to believe

that a reasonable, similarly situated adult would not permit a twelve‑year‑old

to be solely responsible for the care of a younger sibling for any period of time without some parental

supervision.” Id.

In Schultz

v. State , the defendant was convicted of abandoning her nine‑year‑old

daughter when the defendant left her and an eleven‑year‑old nephew

at home from noon until 3:30 a.m. the next day.

879 S.W.2d at 378 . The defendant

did call the children periodically on the phone, but tragically both the

daughter and nephew were killed in a fire while the defendant was gone. See

id. at 378 , 380–81. The defendant argued on appeal that because

of her phone calls, the evidence was legally insufficient to show that she was

aware of, but consciously disregarded, a substantial, unjustifiable,

unreasonable risk of the children’s death by fire. Id.

at 380 . The Court of Criminal Appeals explained that “abandoning” a child is not

the same as “leaving” a child:

Appellant mistakenly believes that this

interpretation of the statute punishes her actions without regard to the

surrounding circumstances. On the

contrary, by intentionally “abandoning” a child, the actor does more than

merely intentionally “leave” the child.

The actor intentionally leaves the child under a certain set of objectively unreasonable circumstances

outlined in the definition of “abandons.”

This construction appears designed to punish actors who are aware of the

dangerous circumstances even though, due to shortsightedness, lack of common

sense, apathy, or just plain stupidity, they may not be aware that the

circumstances are dangerous.

Schultz , 923

S.W.2d at 4 n.6.

Finally, in Castillo v. State , the defendant left her six‑year‑old son, eight‑year‑old

son, and eleven‑year‑old daughter alone at home overnight beginning

at approximately 7:00 p.m. 2006 WL

1710062 , at *2–3. The defendant had an

adult friend who was staying at the house, but she was not able to talk to him

and tell him that she would not be coming home.

Id. at *2 . There was conflicting evidence whether the

defendant left the children alone that night or with the roommate. Id.

at *4 . The El Paso court held the

evidence of the defendant’s fourteen‑hour absence was legally and

factually sufficient to prove the

defendant left the three children without providing reasonable and necessary

care and that a reasonable and similarly situated adult would not have left the

children there overnight. Id. at *4 .

Viewed in the light most favorable to the verdicts, the

evidence shows that Mosley planned to be out of the country from December 31,

2007 to February 16, 2008. Mosley’s plan for taking care of her children

while she was gone was for her sister Shaqual to come to Houston and stay with

the children. The only evidence of a

backup plan if Shaqual did not arrive was Mosley’s statement that Harrison

would take care of the children “while [Shaqual] wasn’t there,” which the jury

was entitled to disbelieve. See Margraves , 34 S.W.3d

at 919. The record shows that Jackson did spend one

night at the house and that sixteen-year-old T.M. was present at times to

assist E.M. The record, however, fails

to show that other than this intermittent assistance to E.M., there was any

plan for Jackson or T.M. to commit to caring for the four young children. Mosley boarded her plane knowing that her

sister Shaqual had not arrived at the house to care for her children, and there

is evidence in the record that Shaqual told Mosley that she had no way to get

to Houston. This left E.M., a teenager

on juvenile probation, with no adult supervision and in charge of the

complainants, one‑year‑old J.R. and eight‑year‑old

AA.M., as well as seven‑year‑old Z.M. and nine‑year‑old

AN.M. On this record we conclude that a

rational trier of fact could have found beyond a reasonable doubt that Mosley intentionally

abandoned her children by leaving

them at home without providing for their reasonable and necessary care. Additionally, the evidence is sufficient to

show that Mosley knew that the circumstances were such that no reasonable

similarly situated adult would leave children of the same age and ability. See

Cochener , 1992 WL 105768 , at *2.

b.

Circumstances

of exposure to unreasonable risk of harm

Mosely also contends that the

evidence is insufficient to prove that she exposed her children to an

unreasonable risk of harm. In Castillo , a

mother had left three children at home overnight, and the court held the evidence was legally and factually sufficient to prove the defendant abandoned the children under

circumstances that exposed them to an unreasonable risk of harm. 2006 WL 1710062 , at *5. Although nothing bad

happened, the court pointed out that any of the children could have been

injured or fallen ill during the defendant’s fourteen‑hour absence and

there was evidence that the children did not have adequate food available to

them. Id. at *5 .

In this case, Mosley argues that she arranged for Shaqual to

take care of the children and that she did not know Shaqual was not on her way

to Houston at the time Mosley boarded her plane. Mosley points out that Jackson did come over

to stay with the children one night and Harrison was at the house when law‑enforcement

officers came to the house. There is conflicting evidence in the record

concerning whether Mosley thought her sister Shaqual was on her way to Houston

to take care of the children. There is

also conflicting evidence in the record as to whether Mosley left sufficient

money and food in the house to provide for the children while she was gone for

six weeks. Mosley does not argue,

however, that Jackson, Harrison, or some other adult had committed to

supervising the children if Shaqual was not able to take care of them.

V iewed in the light most favorable to the verdicts, the

evidence in this case shows Mosley did

not leave sufficient money to provide for the children during her planned six‑week

absence. Mosley testified she gave no

more than $2,000 in cash to E.M., and the evidence was inconsistent as to

whether even that much money had been left.

E.M. said she had access to credit or debit cards, but that Mosley had

not left her instructions on how to use them.

The evidence showed that E.M. had unsuccessfully attempted to obtain

cash with a debit card to buy groceries, which the jury could have concluded

was inconsistent with Mosley’s testimony that she had given her $2,000.

Finally, and again v iewed in the light most favorable to

the verdicts, the evidence shows that a lthough

food was in the pantry on January 2, it had not been served to the young

children who, at 7:30 p.m., apparently had not eaten since that morning when

the sheriff’s department found them at the house. The one-year-old baby could not nourish

himself by taking food from the pantry; the food needed to be prepared and

served to him at regular intervals. The

baby appeared listless and dehydrated.

Based on this evidence, the jury could have concluded that the baby had

not been fed.

We

hold there is sufficient evidence from which the jury could find that Mosley abandoned the children under circumstances that

exposed them to an unreasonable risk of harm.

As the Castillo court held in

similar circumstances, we also hold that because Mosley’s children could have

been injured or fallen ill during her absence and there was evidence that the

children did not have adequate food available to them, there is sufficient

evidence from which the

jury could find that Mosley abandoned them under circumstances that exposed them to an unreasonable risk of

harm. See Castillo , 2006 WL 1710062 , at *2–3.

We overrule the first four points of

error.

Conclusion

We affirm the trial court’s judgments.

Michael

Massengale

Justice

Panel

consists of Justices Jennings, Alcala, and Massengale.

Justice

Jennings concurring in the judgments.

Publish. Tex.

R. App. P. 47.2( b).

[1] The complainants were a one‑year‑old male, J.R. (trial court case number 1182323;

appellate case number 01‑08‑00937‑CR), and an eight‑year‑old

female, AA.M. (trial court case number 1182322; appellate case number 01‑08‑00938‑CR).

[2] We note at the outset that a

substantial amount of evidence at trial and arguments in the appellate briefs

was directed to conflicting accounts related to the cleanliness of the Mosley

home. Because this evidence has no

bearing on our resolution of this appeal, we exclude it from this summary.

[3]

Mosley’s

sixteen-year-old daughter T.M. also

testified that Mosley had left $2,000 in cash, along with bank cards, hidden in

a closet and that E.M. knew where the cash and cards were.

[4] Turner testified that she

had been aware for a couple of months that Mosley was going to Africa and that

Mosley had plans to care for her children while she was gone, but she did not

describe to the jury her understanding of Mosley’s plans.

[5]

Although

inconsistent with the timeline of events as set forth above, Shaqual also

testified that she spoke with Mosley on

the phone on December 31 after E.M. crashed the van into the garage.

[6] T.M. testified that the

first thing she did when she saw Ortiz was to call Shaqual and hide the

children in a room. Shaqual testified

that this phone call was the first time she knew that the children were at the

house alone without Jackson. Shaqual

told T.M. not to answer the door.

[7] At trial, Mosley

discussed a cooking fire she had that left dark spots on the ceiling, but she

did not know what caused some other smoke damage in the kitchen.

[8]

On cross‑examination, T.M. said that she first

called Mosley on January 12, ten days after she was taken into CPS

custody. T.M. said that Mosley’s trip to

Africa was supposed to be for two or three weeks, not six weeks. She also denied telling Ortiz that Mosley had

thrown her out of the house.

[9]

Brooks was decided by the Court of

Criminal Appeals after our original opinion in this case issued, but before our

plenary power to revise the opinion expired.

See Tex. R. App. P . 50.

Our conclusion that the evidence was sufficient has not changed, and

Mosley does not suggest in her petition for discretionary review that Brooks should change our analysis. However, in light of our decision to revise this opinion on other grounds, we

find it appropriate to also revise our analysis of the sufficiency of the

evidence to apply the Jackson v. Virginia standard to Mosley’s factual-sufficiency points . See

Brooks , 323 S.W.3d at 902 (plurality op.) (“There is . . . no meaningful

distinction between the Jackson v.

Virginia legal-sufficiency standard and the Clewis [ v. State , 922

S.W.2d 126 (Tex. Crim. App. 1996)] factual-sufficiency standard, and these two

standards have become indistinguishable.”), 915 (“If the evidence suffices to

prove guilt beyond a reasonable doubt, and it supports a rational, reasonable

verdict, as required under Jackson ,

that evidence cannot logically be so lacking in probative value as to make the

jury’s verdict ‘manifestly unjust’ under the vague and subjective civil-law

factual-sufficiency standard.”) (Cochran, J., concurring). See

generally Taylor v. State , 10 S.W.3d 673 , 677–83 (Tex. Crim. App. 2000)

(discussing retroactive application of new rules).