*1 59 recognize guilty plea jury that a constitution before We is a trial jury. State, plea freely, 315, must be know ally guilty valid See Williams v. 674 S.W.2d 318 voluntarily made. See v. ingly, Brady (Tex.Crim.App.1984). States, 742, 748, 397 90 United U.S. S.Ct. overrule appellant’s We sole point of (1970). 1463, 1469, 25 747 L.Ed.2d Consis error and affirm the trial court’s judgment process, guilty
tent with plea due must of conviction. understanding be made with a clear of the consequences plea. direct of Mitschke State, (Tex.Crim. 130,
v. 129 S.W.3d 132
App.2004). purpose Because the and func compliance
tion of article 26.13 is to ensure process, appel
with due we will construe point arguing
lant’s of error as that his guilty plea jury involuntary to the Monique MOSLEY, Appellant, Shanell range because he was unaware of the of v. punishment.2 During jury panel, Texas, the voir dire of the Appellee. The STATE both the trial court and the State referred 01-08-00937-CR, Nos. 01-08-00938-CR. times, punishment range to the multiple all Texas, Appeals Court of appellant of which occurred before pleaded (1st Dist.). Houston guilty. Nothing in the suggests record that appellant present during was not voir 30, Dec. 2010. dire or could not what understand was said Discretionary Review Refused concerning the punishment range. Addi- 25, May 2011. tionally, appellant’s at no time did counsel complain appellant to the trial court that range
was unaware of the of punishment,
even though appellant present during Tex.R.App. 33.1(a).3
voir dire. See P.
On appeal, appellant argues that pleaded guilty
he to the trial court before beginning trial. While it is true that
appellant informed the trial court that he pleading guilty before voir dire com
menced, appellant did not waive right his by jury.
to trial The trial court informed
appellant that he was choosing plead
guilty jury. to the The law is clear that a 26.13(a) State, 26.13(a)(1). specific 2. We note that the article See Marin v. 851 S.W.2d constitutionally admonishments are not re- (Tex.Crim.App.1993) (discussing 278-80 State, quired. Aguirre-Mata See forfeited, rights rights that can be that can be (Tex.Crim.App.1999). waived, expressly rights that cannot be waived), grounds hy overruled on other Cain v. Appellant argue also does not under &Ma- (Tex.Crim.App. analysis any alleged rin that he cannot forfeit 1997). statutory right he has to admonishments un- der Code of Criminal Procedure article *2 Morrow, Law, Attorney at
Robert The Woodlands, TX, Appellant. Kugler, Attorney Background Eric Assistant District County, of Harris Kenneth Magidson, begin analysis We our by summarizing Houston, County Harris District Attorney, testimony and evidence adduced at trial *3 TX. relevant to the issue of whether Shanell Mosley JENNINGS, abandoned her Panel consists of Justices children under cir- ALCALA, cumstances that exposed and MASSENGALE. them to an un-
reasonable risk of harm.2 OPINION ON PETITION FOR A. Mosley’s family and marriage DISCRETIONARY plans REVIEW family and her extended are MASSENGALE, MICHAEL Justice. originally from Louisiana. living While In light petition discretionary of the there, Mosley husband, met her future by appellant, review filed we our withdraw Anichukwu, George who was from the Re- previous opinion August 2010. Our Benin, public of country a in western Afri- judgment of the same date remains un- They ca. long-distance established a rela- Tex.R.App. changed. See P. 50. We sub- tionship, communicating by telephone after following opinion stitute the in its stead. Anichukwu returned to Benin. Appellant Shanell Monique Mosley was abandoning convicted of two children. See Katrina, After Hurricane and 22.041(a), (b), § Tex. Penal Code Ann. her children moved to Texas. Anichukwu (d)(1) (Vernon 2009). Supp. The trial subsequently asked marry to him. punishment court assessed in each of the Because Anichukwu was not a United years two cases at two in jail, state sus- citizen, States an immigration lawyer ad- pended, and placed Mosley community couple marry vised the in Africa so he supervision years.1 for five See Tex. Pe- spousal could obtain a visa. 12.35(a) (Vernon § Supp. nal Code Ann. planned to leave Houston on December 2009) (state-jail felony); Tex.Code Crim. weeks, 2007 to get visit Africa for six (Vernon 42.12, § Proo. Ann. art. Supp. married in Nigeria, help and Anichukwu 2009) (community supervision). open a nonprofit organization for children. Mosley brings error, points five claim- B. Mosley’s plans during child-care ing the evidence is legally factually and trip her to Africa prove Mosley insufficient to intended to children, Africa, abandon the evidence legal- Mosley’s At the time of trip ly factually children, and insufficient prove Mos- she had six ages whose were as ley J.R., left the male; Z.M., children under circumstances one-year-old follows: a a exposed male; AA.M., them to an seven-year-old unreasonable risk eight- an harm, female; AN.M., and the trial court in year-old nine-year-old erred a male; E.M., female; admission of evidence. We affirm. a fifteen-year-old male, complainants one-year-old 1. The were a 2. We note at the a outset that substantial (trial 1182323; arguments amount of evidence at trial and appel- J.R. court case number appellate conflicting 01-08-00937-CR), briefs was directed to late case number and an accounts related to the cleanliness of the Mos- female, (trial eight-year-old AA.M. court case ley home. Because this evidence has no bear- 1182322; appellate number case number 01- ing appeal, on our resolution of this we ex- 08-00938-CR). summary. clude it from this a T.M., going get money she was from sixteen-year-old female. one-year-old take J.R. to did not want to knew Although brother. she planned stay Africa because she could not come to Houston on December electricity running with no wa- house 29, Mosley change said she did ter, get might she was concerned he $1,600 plane plans at that time because could not afford to sick. She also said she ticket was nonrefundable. any of her other children with her on bring Mosley thought would be trip. arriving on the bus on December family that her Mosley testified close *4 she asked Harrison to meet her at the bus in for preparing members were involved arrive that Shaqual station. But did not wedding planning the to take care and day either. care primary of her children. Her child plan supervised for the to be was children arrive plan Shaqual The next was for to during entirety of her six-week ab- in Houston on December 31—the same by Shaqual Mosley, sence her sister who day Mosley’s trip scheduled to Africa on was to come to Houston from Louisiana. flight departing p.m. Shaqual at 4:40 her Shaqual Mosley testified that asked Mosley say called at 6:03 a.m. to that she six in look after about months advance to catching an 8:00 a.m. bus that would during anticipated trip the children to arrive in at But that p.m. Houston 2:00 Mosley’s backup plan for the Africa. Shaqual was not true. been unable to by children to be cared for her friend brother, get money and in- bus from Harrison, reg- Shawn for whom she was a informing Mosley, stead of so she told her babysitter. ular go ahead with her travel plans because $2,000 Mosley Shaqual left said she for promised she had to not let her down. children, to take care of the as well as medicine and medical records. She also cousin, Shaqual also called their Diana numbers, emergency telephone left both Jackson, who lived in the Houston area. phone written and stored in the home and Shaqual that testified she asked Jackson in phone. her mobile She testified that children, Mosley’s take care of but that she left food in the that before house and taking Jackson was uncomfortable with left, Shaqual she she cooked food for responsibility. Shaqual that then talked to keys feed the children. She gave also stay E.M. and told her to inside the house to her van to her fifteen-year-old daughter Shaqual with the other told children. E.M., along with between $100 $200 house, Mosley E.M. that if called for food and some credit or debit cards.3 “Don’t tell her I’m I not there because Mosley originally expected Shaqual to panic.” didn’t want her to freak out or by get- arrive in Houston December 29 Meanwhile, Mosley did not realize until ting a ride with a Shaqual friend. testified day that that be at the she needed to planning by that she was to travel bus on airport Shaqual’s p.m. before 2:00 arrival. day, that but did not because bus fares problem, again When she realized she higher were than expected during she holiday pick up Shaqual. asked Harrison to He Mosley season. offered to send declined, money Shaqual, saying airport she took to the and left his own Mosley’ssixteen-year-old daughter T.M. also that E.M. knew where the cash and cards $2,000 cash, testified that had left were. cards, along with bank hidden in a closet watched how young by two children to be Mos- to use them. E.M. testified that she very felt overwhelmed ley’s having older children. to be responsible for all the children. Turner Shaqual Mosley spoke said that she and stated that unsuccessfully she saw E.M. twenty with each other more than times on attempt to money using withdraw a debit December 31 and that told her that card buy groceries. so she could she needed to be on the bus before At this time E.M. probation was on plane. Mosley boarded her testified that assault, juvenile-court and her advocate Shaqual she talked to on the before was S. Turner.4 Sometime around noon airport, she left for the and she was confi- day, E.M. had called Turner and told way that Shaqual dent was on her yet had not arrived. Houston. testified that their Turner went to the house around 3:45 p.m. day, when last conversation van, and found E.M. outside in the holding airport, was at the she told her that she the car keys. E.M. told Turner that she away was on the and three from bus hours only charging her phone promised E.M. Houston. testified that she also *5 she would not drive the van. spoke Mosley with on the before her Nevertheless, later that evening E.M. left, plane “Shaqual and told her that was drove the van around the block with a true, however, here.” almost This was not friend, upon and their return drove the Shaqual never left Shaqual her house. van into the family’s garage. E.M. called Mosley said that she told she on her was Harrison and him “somebody told that way because she did not want her to wor- pushed the car into the garage.” Harrison ry. then came over to the house for about two Mosley admitted that she left on her hours to garage. look at the An ambu- flight to Africa knowing without whether came, lance requested which E.M. said was in Shaqual had fact arrived to take care of by her friend. personnel The ambulance planned the children. She to call and examined E.M. and found that she was not check on once in Shaqual she landed Africa hurt. January on 1. E.M. p.m. called Turner around 7:00 and Events following Mosley’s depar- C. in hysterical voice and said that she had ture run the van garage. into the Turner came p.m. to the house around 8:30 and found a. December 31 screaming, E.M. “I’m going away. to run absence, In Shaqual’s fifteen-year-old My going mom is to kill me.” Turner told looking E.M. was after younger her four E.M. call in grandmother New Or- siblings, as well as young Harrison’s two leans and her aunt Diana Jackson in Hous- children, being while her mother was tak- ton. E.M. Shaqual called and Jackson and airport. en to the E.M. had the credit or told each of them about the accident. that by debit cards had been left her moth- Shaqual again called Jackson and encour- er, but aged hurry she was unable to use them to inup getting Mosley’s her to withdraw money because she did not know house.5 jury understanding
4. Turner testified that had she been aware for not describe to the Mosley’splans. couple going of months that was plans Africa and that to care for Although inconsistent with the timeline of gone, her children while she did was but she above, Shaqual events as set forth also testi- morning, again six- E.M. drove the van to take Mosley's daughter, oldest night That AA.M. T.M., Joyce to work. She later drove and to the with teen-year-old came house party neighborhood. AN.M. to a in the sister. Dur- Joyce Joyce’s her friend afternoon, five to ten of That between period, time T.M. had not been ing this came over to the E.M.’s friends house. house, to the but she came living age ranged The of her friends from sixteen Mosley’s departure. after She had house nineteen, E.M. that admitted Mos- Shaqual E.M. that was at the by been told ley many not chil- would have allowed ga- to the damage T.M. saw the house. in dren to be the house. not Shaqual and found that rage door trial, ex- at At T.M. did not the house. Shaqual up did not show at the When stay at the house plain why she did evening January E.M. house finding Shaqual out that night after again and called her. She drove upset left the was not there. After Harrison pick up Joyce, the van to and T.M. and house, and her children came over Jackson Joyce spent night at the house. spent night. upon called home her arrival in quickly spoke Africa and to one of her January
b. assumed that children. She left, morning, Houston, In the Jackson T.M. re- testified that she turned, and E.M. called sur- speak Shaqual, did not ask to to her. however, had not arrived. E.M. testi- prise she testified that she told that a friend of hers came over to the January fied 1 that she had never arrived at *6 burned food in a She pot. Shaqual house and some the house. said that house, plenty during there of food in the “mad” that call. She told said worry there was no milk for the children’s not to and that she had called a except cousin of theirs who was with the children. breakfast. Shaqual telephone later admitted that her Harrison, E.M. called who came over any records did not show calls between shop, along and took her to the store to January and her on They with three of the other children. left There was one international call to Africa one-year-old J.R. at home with T.M.’s January 2 when Shaqual spoke on to Mos- Joyce. E.M. bought friend food with ley. money given by Mosley. to her Harrison house, came in the never and E.M. told January c. him that was there. T.M. left the house around 3:00 a.m. on point during day, At some E.M. January expected Shaqual 2. She to ar- everyone Mosley’s drove in van to Mc- day. rive that In bus later Donald’s to eat. T.M. testified that she morning, Joyce E.M. drove to work before supposed knew that E.M. was not to drive the other children woke She then up. Mosley’s van that the children looked drove the children to McDonald’s after they good in health. like were Joyce, picking up who was on a break. spoke during day, Turner to E.M. around 10:00 a.m. Sometime Harrison out neither dropped and found Jackson nor his children off at the house be- afternoon, Shaqual was at the house. Later fore he went to work. That spoke garage. fied that she with on the into the on December 31 after E.M. crashed the van Mosley using calling E.M. called apparently upset card at presence.6 Ortiz’s her, falsely, and told was at stopping phone conversation, Without speak house. asked to with T.M. allowed Ortiz to enter the house. children, the other and E.M. told her that gathered Ortiz together all of the chil- they Shaqual. were at the store with dren as Rogers arrived. There were sev- afternoon, Late that E.M. drove the van en children the house: Mosley’s all of work, give Joyce a ride from while the E.M., except children plus Harrison’s two other children were at home with T.M. Rogers children. testified that the chil- E.M. hit a car driving get while she was fine, dren’s demeanor they were Jackson, Joyce. Shaqual, E.M. called hungry. all Harrison about this incident. After E.M. Ortiz talked to the children and became off, dropped Joyce she drove home find J.R., concerned one-year-old about who that law-enforcement officers were there. she was not able to wake. Rogers was initially She testified that she called Mos- J.R., also concerned about who he de- ley Africa to tell her what hap- scribed as apparently listless and dehy- pened, but later denied this and said that drated. Ortiz believed J.R. was not mere- she lied about it. ly sleepy, so she Emergency asked that January D. The “welfare check” Medical Services come to the scene and Deputy A. Ortiz County of the Harris examine him. She also asked dep- another Sheriffs Department testified that she was uty children, go buy food be- Mosley’s sent to on January house 2 at cause it appeared they to her had not check,” p.m. 7:30 for a “welfare which is an eaten morning. since that Rogers testi- inquiry by law-enforcement re- personnel fied, “All the children were hungry. Ev- garding a person’s being, well such as an ery one of them were starving.” When elderly or person. suicidal In in- this arrived, personnel they EMS gave Pedia- stance, department the sheriffs received a lyte J.R., but he did not need intrave- call from someone who believed that Mos- *7 nous or hospitalization. per- fluids EMS ley’s children had been left alone. When children, sonnel examined all of the but did she was dispatched, she was told the chil- hospital. not take them to the dren were alone the house and the gone mother had to Africa to get married. Rogers kitchen, soot in the saw indicat- ing to him stovetop there had been a fire. Ortiz knocked on the front door and stove, He saw baking flour or soda on the identified herself as a deputy, sheriffs which he believed the put children used to no one answered. She saw a silhouette of out the window, prior experi- fire. Based on his upstairs child’s head in an firefighter, ence as a Sergeant Rogers she G. estimated Rogers contacted of the County days Harris Sheriffs that the fire occurred from Department and three to a continued to knock on the week before. He later it door and identi- admitted was fy herself. After passed, possible Mosley some time T.M. that had caused the fire door, opened talking phone the on a cell before she left.7 thing Shaqual 6. T.M. testified that the first did she alone without Jackson. told T.M. when she not to answer the door. saw Ortiz was to call hide the children in a room. testi- trial, phone fied that Mosley cooking this call was the first time she 7. At fire discussed she knew that spots ceiling, the children were at the house had that left dark the on but she checks, that he did not eating, any were but admitted the other children While Mosley any if left ask the children had appeared very upset E.M. arrived. E.M. money. were at the deputies and bothered that the eventually able to find out house. Ortiz was while the Harrison arrived at the house Mosley in Africa. Or- E.M. that
from Rogers there. He told deputies were T.M. there were E.M. and if tiz asked both Afri- Mosley gone he believed that had to to come any that could be called adults ca, but was not sure. children, the but were stay over and with p.m. investigator an for Around 11:30 locally. there was no one who lived told Department Family and Protective relatives lived in Most of the children’s go Mosley’s to house Services was called None of the children men- Louisiana. transporting the children to assist or Sandra Turner as tioned Diana Jackson office. In- Protective Services Child be an adult who could contacted. pri- that the vestigator P. Smith testified Ortiz admitted that he did not check mary taking reason for the children into Other injuries or bruises. children custody present. no adult was was because condition, Ortiz not see than J.R.’s did took both the children and Smith the chil- anything that alarmed about custody. into Harrison children CPS physical condition. She determined dren’s pres- acknowledged She that Harrison was speaking that T.M. was on ent when she arrived. aunt, Jackson, Diana but she did not Smith that when she saw the chil- said Jackson. She also did not speak ask January they were dressed dren any ask E.M. if there were adults who She saw food in the house appropriately. supposed
were to be with the children eat, that the such as canned children could no gone. while Ortiz made butter, goods, peanut and food in the re- attempt contact either or Jack- frigerator. only thing The she did not see son, and the officer who contacted she was refrigerator milk in the for J.R. She attorney’s office to ask for district any not remember whether there was did charges brought against Mosley. to be milk in Smith pantry. canned did staying T.M. Ortiz that she was told negative opinion ap- have a about J.R.’s with a kicked friend because pearance general health. She worked her out of the house three or four weeks approximately at the office until 4:00 CPS something denied at prepare required reports. or 5:00 a.m. to earlier — time, trial. that she was the E.M. told Ortiz During pick up no one came to *8 chil- person taking younger care of Mosley’s children.
dren. Sixteen-year-old away T.M. later ran
Rogers emergency- facility Mosley. not see a list of from the and called did CPS Shaqual anywhere explained contact numbers left in the She to her mother that house, arrived, only “everybody thought never she working and he found one us,” he the children were in telephone. Rogers admitted that did had abandoned if emergency-contact custody, Mosley not check to see and “was trouble” CPS you telephone. “get numbers were on the and to here as fast as stored needed cards, any money, He did not find debit can.”8 cross-examination, 8. On T.M. said that she
did not know what caused some other smoke 12, January days Mosley on ten first called damage in the kitchen. custody. after she was taken into CPS T.M. Mosley’s response learning to about recognized Mosley. E. said she Samuy Harrison, Mosley intervention heard tell CPS “Do not talk to CPS,” “you and Shaqual know was sup- Shaqual Mosley told on testified she posed to watch them children [because] January 3 that law enforcement had come you supposed pick was to her up from the out to her house and her children had been bus station.” Samuy also heard however, placed custody. Mosley, in CPS tell Harrison that she had left for money first testified she learned her children Shaqual’s bus fare and to take care of the on custody January were CPS when children while gone. she was The conver- she received a call from T.M. after she had minutes, sation lasted about five then the away run from CPS. connection was lost. and husband collected mon- Samuy testified that Harrison then told ey from to villagers approximate- raise the her he calling Shaqual, and Harrison ly to change needed the date of her $200 dialed a number put February flight 16 return early and return speaker. Samuy say, heard a voice “This to Houston. It took her approximately Shaqual.” Samuy testified that days money. twelve to find the She called say went on to the following: family members in the States United money, asked them to send her but no Monique one knew I coming wasn’t to bus, Mosley would. Due to a late missed Houston before she got plane on the flight first home she rescheduled for any because she didn’t send me money. January flight The next she was able She money didn’t send the bus for me January my schedule was on 27. No one kids to come. She knew before from law enforcement or got plane CPS contacted she on that that I going wasn’t Africa, her while she was in to be—I couldn’t come to Houston. I why called CPS and was told she would be don’t know got plane. she on that arrested when she returned. testi- Samuy admitted she did not know if that she surprised Shaqual fied never truthful, Shaqual was being or if she was arrived take care of the children and lying cover up lying Mosley. that she not have left if would for Africa Samuy believed that Harrison let her lis- she had known that was not com- ten to the calls to demonstrate that he ing. reasonably acted when Mosley’s he left F. January telephone Harrison’s call house assuming on December that his U being adequately supervised children were Samuy, A. investigator employed a CPS by Shaqual. Finally, Samuy admitted on Department of Family and Protec- cross-examination that both calls referred Services, tive assigned investigate “Monique” to a and that she did not have the Harrison children. she was at While any independent knowledge January Harrison’s house on she ob- went by “Monique.” the name him receiving served an international *9 phone call. She testified that she saw the The if Shaqual State asked she told Har- number, thirteen-digit phone caller’s January “my which rison on 4 that sister I knew began with “234.” call put Harrison the couldn’t come because she did not send speakerphone, Samuy and money. heard the She knew I had not left. She was say “Monique,” caller she was who Samuy supposed money to wire me and she Mosley’strip supposed telling said to Africa was She also denied Ortiz that weeks, to be for two or three not six thrown her out of weeks. the house. a Samuy re- testified that Harrison dialed responded, “I don’t Shaqual didn’t.” number, speakerphone, the call on put that.” saying member ever person saying, answered “This to Cara Bates Shaqual’s statement G. specifically object- then Shaqual.” Bates, appointed special a court follows, Honor, Cara un- “Objection, Your ed Advocates, testified advocate with Child [Samuy] can authenticate less she in New Or- Shaqual with spoke that she object I her testi- Shaqual’s voice would to the May part 2008 as leans on The fying to someone she doesn’t know.” place- for assessing relatives process of immediately overruled the ob- trial court Mosley’s children. Bates asked Samuy per- ment of then testified that the jection. on December Shaqual happened following: what phone son on the said her she had been sent Shaqual told Monique coming knew I wasn’t ticket, money for a bus but because got plane Houston before she on the holidays, for the fares had increased any money. didn’t send me because she expensive. ticket was too said money the bus for me She didn’t send Mosley before she boarded that she called my kids to come. She knew before that “she could not plane her and told her I got plane going she on that that wasn’t find afford the bus ticket but would some I to be—I couldn’t come to Houston. on her way 'over to Houston. But wasn’t why got she on that plane. don’t know continued way yet.” The conversation provides Rule of Evidence 901 Texas Shaqual telling Mosley with she tried to of telephone the authentication calls as Houston, it get a friend to drive her to follows: way did not work out and “she had no (a) require- The General Provision. get to Houston.” authentication or ment of identification admissibility precedent as a condition solely on Bates admitted that she relied by sup- evidence sufficient to is satisfied Shaqual’s to her and that she statements that the matter in port finding ques- any had not records. She said phone seen proponent tion is what its claims. Shaqual appeared guilty to feel (b) By way of illustra- Illustrations. get she was unable to to Houston. limitation, by way of only, tion and not Mosley never told her that offered following examples are of authenti- any money additional for the bus. conforming cation or identification with requirements of this rule: Analysis I. of evidence Admission (6) Telephone conversations. Tele- conversations, by that a evidence error, Mosley In fifth point assigned call made to the number at overruling contends the trial court erred in by telephone company the time to a objection Samuy’s her authentication business, person or if: particular testimony telephone about a conversation (A) person, in the case of a circum- while speakerphone she heard on a she self-identification, stances, including testimony was at house. This Harrison’s person answering show the to be the to rebut was offered the State called; one Shaqual’s prior testimony that she did not (B) business, in the case of a telling remember Harrison that coming place knew call was made to a of business Shaqual was Houston *10 and the conversation related to busi- December 31.
69 reasonably Evidence)). ness transacted over the current Texas Here, Rules of telephone. Samuy testified that the person on the
phone identified herself as and continued to disclose information that was (1) Here, testimony the State offered of very specific to previously circumstances (2) the number called that the person and by described Shaqual Mosley. and who answered identified herself as trial, Shaqual. At did not make a We hold that the trial court did not specific objection Rule 901 on the basis abuse its discretion in admitting Samuy’s number by offered testimony because there was sufficient evi- State was not assigned Shaqual. In- dence before the trial court to support a stead, Mosley objection made an that Sa- finding person on the telephone was muy was not able to Shaqual’s authenticate Shaqual. 901(a); See TEX.R. EVID. see voice. State, 85, also Guzman v. 955 S.W.2d 89 the State all (Tex.Crim.App.1997) While did match (discussing abuse-of- elements of the illustration in Rule discretion standard in review of evidentia- 901(b) 901(b)(6)(A), Rule specifically pro- ry rulings); State, Montgomery v. 810 vides that the illustrations do not limit the 372, 378-80 (Tex.Crim.App.1990) 901(a): general provision (same). in Rule “The re- The trial ruling court’s that the quirement of authentication or identifica- admissible, course, evidence was did not tion a precedent condition to admissibil- preclude Mosley challenging from its ity by is satisfied evidence sufficient to weight credibility. and support finding in ques- matter point We overrule the fifth of error. tion is what its Al- proponent claims.” Sufficiency II. of the evidence though the State did not show that the call “was made to the assigned number at the error, In her four points first telephone time company partic- to a legally contends the evidence is and factu- person,” ular that alone does not foreclose ally insufficient to establish that in- she grounds. authentication on other tended to abandon the children and that she left the children under circumstances grounds
Alternate to authenticate that exposed them to an unreasonable risk identity telephone caller include of harm. Mosley grouped argu- these self-identification of the caller coupled with together ments separate and did not make additional evidence such as the context and arguments for her and legal factual suffi- call, timing telephone of the the contents ciency points. of the statement challenged, pat internal characteristics, terns other distinctive Penal section 22.041 pro Code knowledge and disclosure of and facts in part: vides See, peculiarly known to the e.g., caller. (a) section, In this “abandon” means 334, Manemann v. 338 any place to leave a child in without ref'd) 1994, (Tex.App.-Austin pet. (citing providing necessary reasonable and care Orozco-Santillan, United States 903 child, for the under circumstances under (9th Cir.1990); F.2d United reasonable, similarly no which situated Miller, (9th States v. 771 F.2d adult would leave a child of that age Cir.1985); Tex.R.Crim. Evid. ability. (Tex. 901(b)(4), (5), (6), Reg. 11 Tex. (former (b) if, Crim.App.1985) A person Texas Rule of commits an offense care, repealed by having custody, Criminal Evidence since or control of a *11 70 op.), (Maloney he S.W.2d at 2-4 4-5 years, (plurality than 15 inten- younger
child
However,
Mansfield, JJ.,
any place
concurring).
the child in
tionally abandons
&
expose
under circumstances
the evidence need not show that the defen-
risk of harm.
child to an unreasonable
actually knew that the
dant
circumstances
expose
would
the child to an unreasonable
22.041(a),
§
ANN.
TEX. PENAL CODE
Schultz,
(Vernon
2009).
risk of harm. See
923 S.W.2d at
(b)
Supp.
appel-
When an
(Maloney
2-4 & n.
&
(plurality op.),
a
6
4-5
issuing
late court decides a case without
Mansfield, JJ.,
by
a
ratio-
As noted
majority opinion providing
single
concurring).
result,
majority
explaining
nale
plurality,
the Schultz
construction
“[t]his
by
taken
holding
position
is the
those
are
appears designed
punish
actors who
judgment
members who concurred
dangerous
aware of the
circumstances
grounds. Haynes
on the narrowest
v.
though,
shortsightedness,
even
due to
lack
State,
183,
(Tex.Crim.App.
273 S.W.3d
186
sense, apathy,
just plain
of common
2008). majority
A
of the
Court
Crimi-
they
that the
stupidity,
may not be aware
Appeals
interpreted
nal
has
section 22.041
Schultz,
dangerous.”
circumstances are
prescribed
to mean that the
mental state—
at 4 n.
(plurality op.).
923 S.W.2d
6
act of
intentional —is connected with the
sufficiency
The
of review for
standard
State,
abandonment. See Schultz v.
923
whether, viewing
the evidence is
the evi
1,
(Tex.Crim.App.1996) (plural-
2-4
light
dence in the
most favorable to the
Mansfield,
(Maloney
ity op.); id. at 4-5
&
verdict, any rational
trier of fact could
JJ., concurring).
culpable
To meet
this
have found the essential elements of the
state,
mental
the defendant must inten-
beyond
crime
a reasonable doubt.
Jack
tionally
any place
a child in
without
leave
307, 318-19,
Virginia,
son v.
443 U.S.
99
providing
necessary
reasonable and
care
2781, 2788-89,
(1979);
S.Ct.
71 jury’s daughter erence to a decision when that deci when the defendant left the child unattended in a car upon an evaluation of credi while she went shop- sion is based ping. The defendant State, brought legal-suffi- a bility.” v. Lancon ciency challenge, claiming that the State (Tex.Crim.App.2008). jury 705 “The “failed to refute her allegation that position judge credibility the best of child was competent supervise herself.” present a witness because it is to hear the 1992 WL at *2. She also contend- testimony, opposed appellate to an court ed that she did not abandon her four-year- who relies on the cold Id. record.”
old child because she left the child in the
her “capable twelve-year-old
care of
son.”
a.
Intent
to abandon
Id. The
rejected
Fourteenth Court
both
Mosley contends that the evidence
of these arguments, stating,
jury
“The
prove
is insufficient to
that she intended to
reasonable,
entitled to believe that a
simi-
above,
abandon her children. As
noted
larly situated
permit
adult would not
a
“abandon” in this context means “to leave
twelve-year-old
solely responsible
to be
for
any place
providing
a child in
without
rea
the care of a younger sibling for any peri-
child,
necessary
sonable and
care for
od of time without
parental supervi-
some
which
under circumstances under
no rea
sion.” Id.
sonable, similarly situated adult would
State,
In Schultz v.
the defendant was
age
ability.”
leave a child of that
convicted of abandoning
nine-year-old
her
22.041(a)
§
TEX. PENAL CODE ANN.
daughter when the
left
defendant
her and
(Vernon
2009). In
Supp.
regard,
this
Mos
an eleven-year-old nephew at home from
ley suggests that reasonable
rou
adults
noon until
day.
3:30 a.m. the next
879
tinely
by
leave their children
a
supervised
at 378.
The defendant did call the
teenager. That common-sense notion can
periodically
children
on
phone,
but
not immunize Mosley’s conduct as a matter
tragically both the daughter
nephew
of law. Leaving four children under the
were killed
a fire while the defendant
age
ten for
of
six weeks without adult
gone.
See id. at
380-81. The
supervision
supervision
and under the
of a
argued
appeal
defendant
that because
fifteen-year-old
juvenile
child who is on
calls,
legally
the evidence was
probation
entirely
is an
proposi
different
of,
insufficient to show that she was aware
babysitter
tion than
a
hiring
for the eve
substantial,
consciously disregarded,
a
Many
ning.
appellate cases have dis
unjustifiable, unreasonable risk of the chil-
child,
abandoning
cussed the offense of
dren’s death
fire.
Id. at 380. The
and we consider three with
cir
analogous
Appeals explained
Court
Criminal
State,
cumstances. See Schultz v.
879 “abandoning” a child is not the same as
1994),
(TexApp.-Amarillo
S.W.2d 377
affd,
“leaving” child:
1
S.W.2d (Tex.Crim.App.1996); Castil
mistakenly
Appellant
believes that this
State,
08-04-00377-CR,
lo v.
No.
2006 WL
interpretation
punishes
of the statute
22, 2006,
(Tex.App.-El
Paso June
regard
her actions without
to the sur-
(not
pet.)
no
designated
publication);
rounding circumstances. On the con-
State,
14-91-00153-CR,
Cochener
No.
trary, by intentionally “abandoning” a
forcement came officers to the house. We hold there is sufficient evidence There is in conflicting evidence the record from which the jury could find that Mosley concerning Mosley thought whether her abandoned the children under circum- sister way was on her to Houston stances exposed that them to an unreason- to take the care of children. There is also able risk of harm. As the Castillo court conflicting evidence record as to in circumstances, held similar we also hold Mosley whether left money sufficient and that because Mosley’s children could have food in the provide house to for the chil- injured been or fallen ill during her ab- dren while gone she was for six weeks. sence and there was evidence that the however, not argue, does children did not adequate have food avail- Jackson, Harrison, or some other adult them, able there is sufficient evidence supervising had committed to the children from which jury the could find that if Shaqual was not able to take care of abandoned them under circumstances that them. exposed to an them unreasonable risk of light Castillo,
Viewed in the 1710062, most favorable to the harm. See 2006 WL at verdicts, the in evidence this case shows *2-3. money did not leave sufficient to We overrule the first four points of er-
provide for the during children her ror. planned six-week absence. testi- gave $2,000
fied she no more than in cash Conclusion E.M., and the evidence was inconsistent affirm the judgments. We trial court’s as to whether even that much money had been left. E.M. said she had access to Justice in concurring JENNINGS the cards, credit or debit but that had judgments. left her instructions on how to use JENNINGS, Justice, TERRY them. The evidence showed that E.M. concurring. unsuccessfully attempted to obtain cash with a buy groceries, Court, debit card to judgments I concur in the this of jury which the could have concluded was but write separately explain why I do so Mosley’s testimony inconsistent with regard in to the of questions present- fact $2,000. given she had by appellant, ed to this Court Shanell Mo- nique Mosley, in light my recent concur- Finally, again light viewed in the State, ring opinion in Ervin 331 S.W.3d verdicts, most favorable to the the evi- 49, 56-70 (Tex.App.-Houston [1st Dist.] although dence shows that food was the h.) 2010, J., no pet. (Jennings, concurring). pantry January it had not been who, issues, served to young children at 7:30 In her fourth appel- second and p.m., lant, apparently had not eaten since that citing Johnson v.
morning department when the sheriffs (Tex.Crim.App.2000), argues that the evi- .... with it simply disagrees because it
dence, light not in the most when viewed Third, appeals explain but when must the court prosecution, to the favorable factually insufficient to neutrally, support is too weak to why viewed the evidence is abandoning her conviction for support why conflicting evi- verdict that evidence is “so because children1 against the ver- greatly weighs dence clear- jury’s verdict weak that it makes ... serves two requirement dict. This unjust” finding or “the ly wrong and First, purposes. supports related it great weight pre- guilt against mani- appeals’s judgment that a court of of the evidence.” ponderance And sec- injustice fest has occurred.... ond, ensuring it us in assists Appeals the Texas of Criminal As Court applied. was properly standard of review recently as clearly explained by legally suf- being supported addition (Tex. State, 275 Laster v. law, evidence, under Texas ficient (Keasler, J., joined by Kel Crim.App.2009) *15 supported by be A verdict must also P.J., Womack, ler, Hervey, Meyers, factually evidence. But unlike sufficient added) (citations omitted). JJ.) (emphasis review, sufficiency which is a legal a fact, appeal in on a to the In direct requirement, a process federal due fac- appeals death-penal- criminal of a court of a creature sufficiency tual review is of conviction, the court it- ty capital murder appeal, .... a state law On direct court factual-sufficiency review self conducted a begin sufficiency must its review factual the and reversed the convic- of evidence assumption with the that evidence is tion, law of par- which was based on the under Jackson. Evi- legally sufficient Vodochodsky ties. sufficient, however, legally that is dence In (Tex.Crim.App.2005). remand- in factually can be deemed insufficient case, the murder of ing the which involved (1) ways: supporting two the evidence officers, trial, peace Judge three for a new support “too weak” to conviction is Keasler, majority, neutrally writing for the (2) verdict, or the factfinder’s consider- weighed explained: the evidence and evidence, the factfinder’s ing conflicting case, overwhelming weight In this “against great weight verdict is of against the con- mitigates the evidence of the preponderance evidence.” solicited, Vodochodsky that en- clusion appeals a court of a fac- When conducts directed, couraged, attempted aided or review, sufficiency tual it must defer to principal committing to aid [the actor] jury’s findings.... We have set out the offense. All the evidence that ground implementing three “basic rules” legally support jury’s a rational could First, ap- this standard.... the court of so weak that conclusion is nevertheless peals must consider all the evidence jury’s our verdict is ... light, opposed in a neutral as to in confidence Although undermined. there was some light a most to the verdict favorable roof, of a shooter on the Second, evidence second appeals may .... the court of this was not established. While Vodo- only factually find evidence insuffi- inconsistent, chodsky’s were statements necessary “prevent cient when mani- the inconsistencies were minor. When injustice.” Although fest ... the verdict a principal expressed desire during [the actor] less a afforded deference fac- review, Vodochodsky right to “do it now” and sufficiency ap- tual the court of they yet plan, told him did not have peals is not to override the verdict free 2010). (Vernon § 1. See TEX. PENAL CODE ANN. 22.041 kill- specifically neither man mentioned to convict. Point of error two is sus- ing peace Vodochodsky officer. When tained. princi-
told that he bailed [another] [the We reverse the judgment of the trial this,” pal jail out of “to do he did actor] court and remand this case for Vodo- specifically not state that he bailed him chodsky to answer the charges part plan police out as of a to kill offi- indictment. Vodochodsky belongings removed cers. added) (citations Id. at (emphasis 510-11 house, proof from the but there is no omitted). part that he did so as of a murderous regard In plot. Vodoehodsky’s appellate challenges And comment to based on the principal insufficiency [the had factual of the [the other] actor] evidence “gone edge” over the when he took in Texas appeals, [a] courts of the factual- deputy’s gun just reasonably could conclusivity clause of the Texas Constitu- comment, have been a speculative provides tion in no uncertain terms that: indicating Vodochodsky one decision of Ap- [T]he [Texas Courts of witnessed of the [the murder one peals] shall be ques- conclusive on all officers]. tions of fact brought before them on Indeed, none of that evidence neces- appeal or error. sarily suggests Vodochodsky act- CONST, 6(a) V, § TEX. (emphasis art. promote ed with intent or assist *16 added). original The intent of the drafters principal None of his [the actor]. of the clause is clear. The clause “re- directly killing po- statements refer to quires” that Texas courts make a “distinc- lice officers. His statements are de- questions tion” between of ques- law and void of information on the details of Garza, tions of fact. Sw. Bell Tel. Co. v. alleged plot, the murder and there is (Tex.2004). 607, 164 621 clearly S.W.3d As no other information in the record explained, again by the court of criminal suggesting Vodochodsky Laster, appeals, in planning the event principal with [the jurisdiction legal Unlike our over suffi- actor]. decisions, ciency jurisdiction our over Furthermore, suggests other evidence appeals the court ’s sufficiency that Vodochodsky working was not with of factual decisions is limited .... The Factual principal whispered [the His actor]. Conelusivity gives appellate Clause warning to [a could indicate witness] final jurisdiction appeals to the court may that while he have known of [the of questions brought before the principal plan, par- he was not a actor]’s fact of ty ap- to it. court.... We review the court of participate He did not in the peals’s purchase sufficiency analysis of ammunition. factual to en- There is no evidence that Vodochodsky actually did sure that the court applied the correct any affirmative act to assist princi- legal [the standard and considered all the of Instead, pal plan. with the actor] Vodo- evidence .... not relevant We do con- chodsky had the bad luck of the being duct a de novo factual sufficiency re- friend and roommate of a man deter- view. ... If we determine that the court mined to kill police officers and himself. appeals applied wrong of the standard standard, proof misapplied We conclude that the correct the of Vodochod- sky’s guilt case be court was so weak as to undermine must remanded of jury’s appeals proper determination. to conduct a factual suffi- confidence factually ciency This evidence was review. insufficient 76 added) a factual- place standard of review of (emphasis
conelusivity gives appellate clause “final
jurisdiction to the courts of appeals
questions brought of fact before” them.