Lead Opinion
OPINION
delivered the opinion of the Court in which,
We granted appellant’s petition for discretionary review to examine the culpable mental state of recklessness.
Appellant was convicted of injury to a child and sentenced to fifteen years’ imprisonment after her two children died in an accidental house fire while her boyfriend was babysitting them. We hold that the evidence in this case was legally insufficient to support her conviction under Section 22.04 of the Texas Penal Code.
I.
Two of appellant’s children, Ujeana, age seven, and Precious, age eight, died in a house fire in the early morning hours of October 5, 2002. Ujeana, Precious, and appellant lived with appellant’s mother, Zula Mae Scott, who routinely cared for the young girls. Occasionally the girls stayed with their father, Charles Leon Williams, Jr. Sometimes they stayed with appellant and her boyfriend, Herbert Ronald Bowden, in his “home.” Bowden lived in an altered duplex with both halves of the house combined into a single unit. It was a four-room structure, but it had no kitchen or bathroom, no working utilities, and very little furniture. In Bowden’s bedroom there was a bed, as well as a dresser under the window, and a chair in front of the nailed-up door to the outside. There was a couch in the living room. The house was, according to Bowden, “somewhat trashy.” There was indeed trash on the floor, mainly in the living room.
Bowden lived in this makeshift home with permission, and he pаid a nominal rent. He intended to live there until he saved enough money from his new job at Bennigan’s restaurant to afford a proper apartment. About two weeks before the fire, Zula Mae learned that appellant and Bowden were taking the children to the duplex. She warned them both that “it was too dangerous to be taking them down there and burning candles,” in part because of the risk of a house fire.
Nevertheless, after he got off work on October 4, 2002, Bowden went to Zula Mae’s house to pick up appellant and her girls. Zula Mae was not yet home from work. The four walked to his duplex. Appellant went out to get cigarettes and ran into the girls’ father, Charles Leon Williams, Jr., in the parking lot of the store. He asked appellant where the girls were. She told him that they were “at home,” which meant, to Mr. Williams, “with Zula Mae.” Mr. Williams saw appellant leave the store in a car with a man who was not Bowden.
When appellant returned to the duplex, she told Bowden that she wanted to go out with friends, and he agreed to watch the girls. He dressed them in his sweatshirts to keep them warm, and then he and appellant put the girls to bed in his bedroom. They placed a burning candle in an aluminum pie plate for light
Bowden said that he left the house only once-around 9:30-to get a cigarette from his neighbor Preston. Then he “ran on back down the street and went on back in the house and went and checked on ’em and they were still sleep. And I went and sat in the living room on the couch. And then I went and got up and checked on ’em again and that was I’m saying that was about 10 o’clock or so.”
Bowden finally fell asleep on the living-room couch. His neighbor Preston woke him up about 11:00 p.m. He was outside “hollering” and “asking about Sharan ‘cause apparently he had loaned her a couple of dollars or something and he needed it. So uh, I was telling him she wasn’t there.” Bowden came back inside because it was “cool” outside, and “I didn’t have on any shoes or nothing and I went out there just in my socks.” He checked on the girls again and then once more fell asleep on the couch.
Around 1:00 a.m., Bowden woke up to loud screams and saw that the bedroom where the girls were sleeping was on fire. When he looked in the “open” door all he could see “was flames and smoke.”
Wichita Falls Police Officer Jonathan Lindsay was the first emergency responder. When he arrived, he saw Bowden with a towel wrapped around one of his hands, crying “my babies are inside, my babies are inside.” Bowden was “frantic.” By the time the fire department arrived, the house was “fully involved” with flames, and the firemen were unable to enter it. The children never got out.
Appellant, who had been told about the fire, arrived back at the scene as the fire department was extinguishing the blaze. Bowden — who had cut his hand when he broke the window trying to get to the children — was briefly checked out by medical personnel. He had no burns or cough.
Jim Graham, the Assistant Fire Marshal for the Wichita Falls Fire Department, talked to Bowden at the scene. Bowden told him about the candle, about waking up to find the bedroom on fire, and about how he tried to enter the room first through the open bedroom door, then through the outside window, and finally through the boarded-up back door.
A couple of hours later, Officer Ginger Harrill took statements from both Bowden (who was still in his socks) and appellant. They were both cooperative. Officer Har-rill took a second statement from Bowden a couple of days later. Regarding these two statements, Officer Harrill said,
Basically he was — both statements were consistent, that he was asleep on this couch, and this door goes into this front bedroom, and the girls were sleeping in this rear bedroom, and he woke up on this couch and heard them screaming and goes to this door, which was open,*748 and at that point he could see the doorway into this room and see the room glowing.
When questioned about whether he was at Preston’s house when the fire started, Bowden said, “No, no, absolutely not.” He stressed that he has always looked out for the kids-and that he was there, asleep, when the fire broke out. “Them safety has always been a factor with me.... I been around them for as long as I been around their mother. And you know, I’m not their ... father but it was just like they were my children you know?” Repeatedly pressed about whether he left the children alone, he stated
There’s no way I would just leave, leave them in the house like that. Not them or anybody else’s kids. I wouldn’t even have to know ’em. I just wouldn’t do it. Kids can’t, they can’t take care of they self.
He reiterated that he was not at Preston’s when the fire started, and that he was willing to take a polygraph. He concluded,
I, you know I haven’t lied to you about anything concerning that. I mean it’s hard enough to admit that these kids died in my care you know? I couldn’t, I couldn’t have left them like that. If anything I would’ve took ’em with me. I would’ve woke ’em up and took ’em with me.
Appellant’s statemеnt related her activities that night. For the most part, her statement did not make much sense. It was fractured and incoherent. She stated that as soon as she, Bowden, and the girls arrived at the duplex, she went out to buy cigarettes. When she returned, she “hung out” for a while with the girls and Bowden. Then she lit a candle in the bedroom and put the girls to bed. Around 8:30 p.m., she went out to buy chips and Little Deb-bies for the girls-something she was supposed to have done on her first trip to the store. She mentioned a cast of characters that she saw or talked to during the evening: Paul Taylor, who gave her change for the girls’ snacks; Judy, the owner of Lucky One Stop; a “young Spanish guy” who gave her a ride in a blue van; Christine, who lives down the street; Preston, from whose house she called Jerry, Christine’s cousin; Easy B (AKA Anita Gibson) and Dee, who live at the Budget Motel; Shewe, who “got into it” with Easy B at the Budget Motel; an unknown man in a van, “I don’t know his name, he just gave me a ride”; BL (AKA Lewis) and Pine, who told her the “girls just got burned up.” Investigator Harrill asked appellant about Ujeana and Precious staying at Bowden’s place:
Harrill: Ok. Uh, how often do you and the girls stay down there?
Williams: Uh, Uh, We go down there sometimes ... We don’t stay down there, we slept down there a couple of times.
Harrill: Um hmm.
Williams: 2 or 3 times. But we don’t Um, Like Mama said, we should’ve brought ’em home.
Harrill: Well I’m not trying to be harsh but that’s gonna come up. Why didn’t you just leave ’em at your mom’s?
Williams Well at the time Mama wasn’t there.
Harrill: Ok.
Williams: Mama wasn’t there. ‘Cause Mama don’t make it home until after 5:30.’
Both appellant and Bowden denied drinking or getting high that night.
Assistant Fire Marshal Graham investigated the fire and concluded that it was an accident:
There was absolutely nothing in this room that would lead me, as an investí-*749 gator, to believe that this fire was in anyway intentionally set. We’re looking at the accidental introduction by a human of some — some open flame. Take that with Mr. Bowden’s statement of having a candle placed in there, that’s exactly what we would have seen. Some material got too close to the candle. As the girls were described sleeрing on the bed, changing places, moving over, it’s quite likely — the most likely scenario was a sheet, maybe clothing, material used for — wrapped under their head for a pillow gets knocked — either knocked off the bed or hangs off the bed. A[t] this point the candle can ignite it.
[[Image here]]
The cause of the fire was, without question, the introduction of an open flame to the combustible material in the corner of that room. The only known open flame or alleged open flame to be there was the candle that was put there for light that night.
Marshal Graham said that he also investigated why the girls could not get out of the bedroom. From the burn patterns, he determined that one of the two front doors “was opened during this fire.” The burn patterns suggested both bedroom doors were closed for most of the fire. The one Bowden said that he had opened could have been opened only “momentarily.” But Marshal Graham surmised that this door had probably never been opened because Bowden had no symptoms of burns or smoke inhalation. The fire burned at 1,100 or 1,200 degrees, and, according to the marshal, if Bowden had opened that door during “full room involvement,” as he said he did, he would have suffered “ill-effects. So it’s just — it is more likely he never opened that doorway.” Other parts of Bowden’s statement — breaking the window and trying to open the boarded-up door — were corroborated by the physical evidence. Although Marshal Graham could not specifically say that Bowden had been on the couch when the fire started, he did acknowledge that Bowden’s shoes were found next to the couch; and that he was outside the burning house in only his socks.
Bowden and appellant were each indicted for two counts of reckless injury to a child. Bowden was alleged to have committed the two offenses “by leaving [each girl] in a room without adult supervision with a candle burning.”
The two cases were consolidated for trial, and both Bowden and appellant were convicted. Bowden was sentenced to ten years’ imprisonment on each count, and appellant was sentenced to fifteen years’ imprisonment on each count.
On appeal, appellant claimed that the evidence was legally and factually insufficient to prove her guilt. The court of appeals rejected this claim and held, in essence, that a rational trier of fact could conclude that the act of taking children from a home with utilities to one without utilities and leaving them in a bedroom with a lit candle is sufficient to create the known risk of death or serious bodily injury to those children, even if another adult caretaker is present.
In assessing the legal sufficiency of the evidence under Jackson v. Virginia,
A reviewing court’s duty, however, does require it to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged. If the evidence establishes precisely what the State has alleged, but the acts that the State has alleged do not constitute a criminal offense under the totality of the circumstances, then that evidence, as a matter of law, cannot support a conviction.
To sustain a conviction for reckless injury to a child the evidence must prove that a defendant recklessly, by act or omission, caused serious bodily injury to a child.
A person acts recklessly, or is reckless, with respect to ... the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the ... result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.15
Criminal recklessness must not be confused with (or blended into) criminal negligence, a lesser culpable mental state. With criminal negligence, the defendant ought to have been aware of a substantial and unjustifiable risk that his conduct could result in the type of harm that did occur, and that this risk was of such a nature that the failure to perceive it was a gross deviation from the reasonable stan
At common law, “the word ‘reckless’ or ‘recklessly’ was commonly used in expressing the concept of criminal negligence.”
“recklessness” and “criminal negligence” represent different mens rea concepts .... [but they] have one component in common. Each requires conduct which represents a gross failure to measure up to the reasonable-person standard of care. Assuming such conduct, if the actor was aware of the risk he was creating, and consciously disregarded that risk, however much he may have hoped that no harm would result, he was acting recklessly.18
Thus, “[a]t the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct[.]”
Whether a defendant’s conduct involves “an extreme degree of risk” must be determined by the conduct itself and not by the resultant harm. Nor can criminal liability be predicated on every careless act merely because its carelessness results in death or injury to another.
In addressing the sufficiency of evidence to prove criminal recklessness, it is not enough to provide the jury with a set of legally correct definitions and then simply turn them loose and accept whatever they decide. Instead, there are “intermediate and progressively more demanding burdens of production that must be met by the State, as a matter of law, before the fact-finding process is even ratcheted up from one to the next higher level of possible culpability[.]”
Numerous Texas cases have addressed factual scenarios in which the jury could conclude that the defendant consciously disregarded a substantial and unjustified
Each of these cases involved “conscious risk creation.” As noted in the Model Penal Code commentaries, this “resembles acting knowingly in that a state of awareness is involved, but the awareness is of risk, that is of a probability less than substantial certainty[.]”
In sum, in addressing the culpable mental state of recklessness under section 6.08(c), the factfinder (and a reviewing court) must examine the defendant’s conduct to determine whether
(1) the alleged act or omission, viewed objectively at the time of its commission, created a “substantial and unjustifiable” risk of the type of harm that occurred;
(2) that risk was of such a magnitude that disregard of it constituted a gross deviation from the standard of care that a reasonable person would have exercised in the same situation (i.e., it involved an “extreme degree of risk, considering the probability and magnitude of the potential harm to others”),44
*756 (3) the defendant was- consciously aware of that “substantial and unjustifiable” risk at the time of the conduct; and
(4) the defendant consciously disregarded that risk.
With that background of the pertinent law concerning a reckless state of mind, the level of risk required, and causation for the harm suffered, we turn to the present case.
III.
The court of appeals held the evidence legally sufficient to prove that appellant recklessly, by act or omission, caused serious bodily injury to her two children.
(1) taking children from a home with utilities to one without utilities, and
(2) leaving them in a bedroom with a lit candle,
(3) creates the foreseeable risk of death or serious bodily injury to those children,
(4) even if another adult caretaker is present.47
Furthermore, the court concluded that there was legally sufficient evidence to support a finding that appellant was consciously aware of this risk and that she disregarded it. The court of appeals stated,
As the girls’ mother, Appellant was at least as responsible as Bowden for the decision to take them from Zula Mae’s house to the structure, and she, herself, “knew that room,” had placed the dresser in front of the window and the chair in front of the locked door. Appellant lit the candle and made sure the girls were in bed in the room with the candle burning before she left for several hours. From the evidence that she always made sure to extinguish the candle, the jury could have inferred that Appellant assumed the role of making sure of extinguishing the candles in that house. This is supported by her statement to Sergeant Harrill that she had no idea what Bowden may have done with the candle after she left. The jury could have inferred that Appellant was aware of but disregarded the risk that Bowden would not know what to do with the candle, specifically that he should extinguish it before leaving the room with the girls asleep. Moreover, Appellant acknowledged that she did not expect the girls to be awake when she returned hours later. Thus, the jury could have further inferred that she was aware of but disregarded the fact that they would fall*757 asleep with the candle burning.48
Appellant asserts that the court of appeals, in so holding, engaged in “precisely the sort of speculation frowned upon by this Court in Hooper [v. State ].”
There was absolutely no evidence that the children had ever fallen asleep in any house with a candle left burning in the room. Nor was there any evidence that there had ever been any safety problems or even a hint of injury to the children, especially with candles, in the previous times the children had stayed at the residence. It is also mere speculation by the appellate court that the jury could have inferred that Bowden would not know what to do with the candle or that Appellant assumed the role of making sure of extinguishing the candles in that house. There are no facts to suggest that [appellant] would know Mr. Bowden would move the candle down from a presumably “safe” place onto the floor behind the bed and leave it burning. These actions, and failures to act, by a person who had at least for the evening assumed an “in loco parentis role, supersede any contributions [appellant] made to the tragedy of that night.”51
We agree on both counts. First, there is legally insufficient evidence that appellant consciously disregarded a substantial or unjustifiable risk that her children would suffer serious bodily injury in a house fire if she took them from a house with utilities to one without utilities. Viewed objectively, this act, either by itself or in combination with the State’s second act of alleged recklessness — leaving the girls in a room with a lit candle — does not involve a “substantial and unjustifiable” risk of serious bodily injury or death. There is nothing inherently dangerous about staying or sleeping in a structure that does not have utilities. Staying in a structure without utilities does not increase the likelihood of dying in a fire. Indeed, as noted by the court of appeals, the evidence shows the opposite:
As to the lack of utilities, Battalion Chief Holzer testified that the majority of home fires the department responds to are in homes with utilities and that a major concern for them is to make sure the utilities are turned off. And the fire investigator agreed that electrical distribution equipment such as wiring, out*758 lets, and cords are the second leading cause of fire death and the third leading cause of fires in the United States. Cooking fires are “number one.” Only 15 percent of fires in 2001 were attributable to open flames or embers. Fires can occur in homes that have utilities; lack of utilities does not create an immediate chance that there will be a fire. Sammy Beatty did not believe candles were inherently dangerous and believed his girlfriend had some. Zula Mae admitted she had scented candles in her house that she used sometimes even when children were around.52
If taking children to spend the night in a structure without utilities is conduct that involves an extreme risk of danger for which one may be subject to criminal prosecution for injury to a child should harm befall that child, the backwoods campers of the world are in serious jeopardy. Any adult who lights a campfire that emits a spark that lands on a child’s pajamas and severely burns the child can be prosecuted as а felon. Scoutmasters beware. If a Coleman gas lantern tips over and sets the children’s pup tent ablaze, they might suffer the same fate. The parent who uses a candle to read a bedtime story to the weary little camper may rue the reading hour if the candle tips over and burns the child. Any of these harms might befall a camper’s child, but the act of camping in a site without utilities does not create such a foreseeable substantial and unjustifiable risk of serious bodily injury or death that it suffices to hold the camper’s parent criminally liable should injury occur. Yet this act is precisely the same as that alleged by the State in this case: taking a child from a house with working utilities to one without them.
One could also pose the legal issue in the opposite manner: Would appellant have been free from criminal liability had she done everything that she did do, but Bow-den’s duplex had working utilities? After all, people who have electricity frequently use candles as well as, or instead of, electric lights on various occasions. Zula Mae used candles even though her house had light bulbs. But the law does not predicate a finding of criminal liability for creating an unjustifiable and substantial risk of injury upon whether the actor used a candle out of necessity (an act that purportedly creates a substantial and unjustifiable risk) or for aesthetic purposes (a purportedly blameless act).
The State argues that appellant’s act of taking the children from Zula Mae’s house to Bowden’s was a reckless one because appellant ignored her mother’s sage advice: “[I]t was too dangerous to be taking them down there and burning candles.” Alas, who among us has not been guilty, from time to time, of ignoring our mother’s wise words. In hindsight, of course, Zula Mae proved to be a prescient Cassandra; the very harm that she had predicted did, in fact, occur. But merely because appellant failed to heed her mother’s words does not mean that thе act of taking the children to Bowden’s house (or camping outdoors for that matter) created a substantial and unjustified risk of serious bodily injury to the girls. Appellant’s “stupidity, irresponsibility, thoughtlessness, [or] ordinary negligence” do not constitute reckless disregard of a substantial and unjustified risk. A number of judicial decisions involving criminal “gross negligence” or “recklessness” have held that warnings like that given to appellant by Zula Mae do not suffice to establish the existence of a severe risk of injury or the defendant’s
Because we cannot conclude that the act of taking a child from a house with working utilities to one without working utilities is the type of conduct that, by its nature, raises a substantial and unjustifiable risk of injury, we hold that it cannot support a finding of reckless injury to a child.
Therefore, we must consider whether appellant’s act of leaving her two girls in a room with a lit candle under Bowden’s supervision could support a finding that she was criminally reckless in causing her children’s death.
For related reasons, we also agree that appellant is not “criminally responsible” for the result in this case. Texas Penal Code § 6.04(a) provides, “A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor
if Appellant had not taken the children to that house and put them to bed with the candle burning that she, herself, had lit, or if she had at least been there to extinguish the candle before the girls went to sleep as the evidence indicated she probably would have done, the girls would not have died in the fire. Thus, we cannot conclude that Appellant’s conduct was “clearly insufficient,” standing alone, to cause serious bodily injury and death to the girls.65
Under such a lengthy “but-for” chain of causation, however, one could trace that chain of causation much further back in time, in fact, all of the way back to appellant’s conduct of meeting Charles Leon Williams, Jr., having an intimate relationship with him, bearing the two girls, breaking up with Mr. Williams, and so forth. “But for” those acts, Ujeana and Precious never would have been in Bow-den’s home or under his care on October 5, 2002. Obviously, some element of foreseeability limits criminal causation just as it limits principles of civil “proximate causation.”
The State argues that the “substantial, unjustifiable risk” was “foreseeable” because of Zula Mae’s warning. But failing to follow a prophetic warning does not suffice to establish a foreseeably severe risk of harm. Mothers warn against improbable and unlikely dangers as well as objectively obvious ones. The Texas Supreme Court has explained, in the analogous context, “Extreme risk is a function of both the magnitude and the probability of the anticipated injury[,] ... the ‘extreme risk’ prong is not satisfied by a remote possibility of injury or even a high probability of minor harm, but rather ‘the likelihood of serious injury[.]’ ”
Determining whether an act or omission involves extreme risk or peril requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight. In every negligence or gross negligence case, some injury has allegedly occurred. However, the magnitude of the injury may be entirely disproportionate to the riskiness of the behavior. For example, inadvertently dropping a wooden board into the metal hold of a ship may constitute negligence, but cannot be gross negligence. This is so even though the board, upon landing, triggers a Rube Goldberg chain reaction, eventually causing the whole ship to explode.69
Thus, even though appellant’s act of leaving the girls with a lit candle in the room under the care of Bowden may have, in a “Rube Goldberg” chain of events, ultimately led to their demise, “it may nevertheless be the case that the behavior which caused it, viewed prospectively and without the benefit of hindsight, created no great danger.”
The State also argues that appellant is criminally responsible for this accident because she “had the ultimate authority to make decisions on behalf of her children,” and she had alternatives: appellant could have left the children with either her mother Zula Mae, or the girls’ father, Charles Williams, Jr. Then they would have “had the usual amenities of a functioning home.”
There appear to be no reported cases in Texas (or any other state) of criminal prоsecutions in this scenario. We can find no case in which a parent was held criminally liable for recklessly causing injuries to his child while that child was under the care of an apparently competent babysitter.
As the court of appeals noted in this case, criminal prosecutions for tragic accidents are inherently troubling.
Although we agree that “the decision to file criminal charge[s] is justifiable in cases involving gross negligence because of its deterrent and expressive effects[,]”
In this case, the evidence of a criminally reckless mens rea and causation were legally insufficient to sustain appellant’s conviction. We thus reverse the court of appeals and order an acquittal.
Notes
. Tex. Penal Code § 22.04(a). The offense of Injury to a Child, Elderly Individual, or Disabled Individual, states, in pertinent part, "A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual ... serious bodily injury.”
. Williams v. State,
. Appellant's sole question for review reads: Did the court of appeals err in holding that the evidence presented against appellant was legally and factually sufficient to support a conviction for recklessly causing serious bodily injury to her children?
Because we find the evidence legally insufficient, we do not address the question of factual sufficiency.
. The evidence was mixed on who lit the candle. In his first statement, Bowden said he lit it, and, in his second statement, he said appellant did. Appellant, in her statement, said that she lit it.
. There were two interior doors into the bedroom. According to Bowden, one was open; the other, which did not have a doorknob, was shut. This latter door opened inward, but the girls could not open it, so they always used the other door.
. Bowden v. State,
. Williams,
.
. Hooper v. State,
. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).
. Hooper v. State,
. Tex. Penal Code § 22.04(a)(1) ("A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual ... serious bodily injury”).
. Alvarado v. State,
. See Cook v. State,
. Tex. Penal Code § 6.03(c).
. Tex. Penal Code § 6.03(d). See also Transportation Ins. Co. v. Moriel,
Criminal negligence and recklessness differ from one another only in terms of mental state. A criminally negligent defendant "ought to be aware" of a "substantial and unjustifiable” risk, while a reckless defendant is subjectively aware of an identical risk but disregards it. Importantly, nobody is subject to criminal punishment if they are aware of a relatively minor risk or simply negligent.
It should not be surprising that the civil definition of gross negligence and the criminal definition of recklessness are virtually identical. Both serve the same purpose— identifying when it is appropriate to punish an individual for consciously disregarding an unjustifiable risk.
Id.
. Rollin M. Perkins and Ronald N. Boyce, Criminal Law 849 (3rd ed.1982).
While it “is elementary that to support a conviction of crime, the accused must be guilty of negligence in a higher and grosser degree than is sufficient to support a judgment in a civil case,” some difficulty has been encountered in expressing this greater fault, and the trend has been in the direction of employing the word "reckless” for this purpose.
Id. at 846.
. Id. at 850; see generally Fagotto v. State,
. Lewis v. State,
. People v. Carlson,
. Criminal recklessness is of "a gross and flagrant character, evincing reckless disre
. Tex. Penal Code § 6.03(d) ("A person acts with criminal negligence ... with respect to ... the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that ... the result will occur.”).
. James Gobert, Searching for Coherence in the Law of Involuntary Manslaughter: The English Experience, 6 Crim. L.F. 435, 454 (1995).
. In Transportation Ins. Co. v. Moriel,
Subjectively, the defendant must have actual awareness of the extreme risk created by his or her conduct. Objectively, the defendant’s conduct must involve an “extreme degree of risk,” a threshold significantly higher than the objective "reasonable person” test for negligence. Extreme risk is a function of both the magnitude and the probability of the anticipated injury.... [Tjhe "extreme risk” prong is not satisfied by a remote possibility of injury or even a high probability of minor harm, but rather "the likelihood of serious injury” to the plaintiff.
Id. (citations omitted). Our sister court summarized the two prongs of gross negligence or recklessness as follows:
(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.
Id. at 23. Courts have frequently employed the same definition of "gross negligence” used in assessing punitive damages in civil cases to "recklessness” in criminal cases. The Florida Supreme Court explained the rationale for doing so:
While the kind of negligence required to impose criminal liability has been described in different terms in different jurisdictions, it is uniformly held that it must be of a higher degree than that required to establish simple negligence upon a mere civil issue and the definition above quoted from former decisions of this court as to the character of negligence authorizing punitive damages appears to be in line with the weight of authority as to the character of negligence necessary to be shown to sustain criminal liability. It stands to reason that the degree of negligence to sustain imposition of imprisonment should at least be as high as that required for imposition of punitive damages in a civil action.
Cannon,
. Gobert, supra note 23 at 461.
. Moriel,
. People v. Sikes,
. Fagotto v. State,
. Crume v. State,
. Lee v. State,
. Cleburn v. State,
. Torres v. State,
. Durkovitz v. State,
. LaSalle v. State,
. Compare Whitmire v. State,
. Patterson v. State,
. Kennedy v. State,
. Ahearn v. State,
. Payton v. State,
. Prescott v. State,
. American Law Institute, Model Penal Code § 2.02, Comment 3, at 236.
. Tex. Penal Code § 6.04(a) (Causation: Conduct and Results).
. See generally, Robbins v. State, 111 S.W.2d 348, 351 (Tex.Crim.App.1986).
. Moriel,
. Williams,
. Id. at 713-14. The court reasoned that the record, viewed in the light most favorable to the verdict, supports the inference that if Appellant had not taken the children to that house and put them to bed with the candle burning that she, herself, had lit, or if she had at least been there to extinguish the candle before the girls went to sleep as the evidence indicated she probably would have done, the girls would not have died in the fire. Thus, we cannot conclude that Appellant's conduct was "clearly insufficient,” standing alone, to cause serious bodily injury and death to the girls.
Id.
.Williams,
. Id. at 713-14.
. Appellant’s Brief at 6; see Hooper v. State,
. Appellant's Brief at 6.
. Id. (citation omitted).
. Williarns,
. State v. Jones,
The statutes describing the offense and the definition of the standard of care together required that before this charge could have been submitted to the jury there had to be evidence from which it could fairly have been found: (1) that the act of the mother in leaving the child in the care of his father while doing an ordinary family chore was done without recognition of a high degree of likelihood that he would cause an injury to the child; and (2) that the failure to recognize that likelihood was different in an extraordinary way from what others would have done in similar circumstances. Even given the husband’s record of bad temper and violence toward her and one of the older children, and the warnings of the caseworker, the evidence was not sufficient to permit a finding that the mother failed to recognize the degree of risk to the extent*760 that any reasonable person would have done.
. According to USAID, two billion people worldwide lack access to affordable and reliable energy supplies. See Testimony of the Alliance to Save Energy Submitted to the House Appropriations Subcommittee on Foreign Operations 2007 Appropriations for USAID’s Energy Programs, March 31, 2006 (available at http://www.ase.org/'content/article! detail/3046) (last visited September 20, 2007). The world's population is currently 6.6 to 6.7 billion. See http://www.census.gov/ipc/www/ popclockword.html (last visited September 20, 2007). Thus, nearly one in three people in the world go to sleep as did Ujeana and Precious Williams — by candle light, gas light, fire light, or no light at all.
. One can, of course, imagine some circumstances in which this act could give rise to a finding of a substantial and unjustifiable risk. Suppose, for example, that we are back in the early 1950’s and appellant's child had polio requiring her to be in an iron lung. The iron lung is powered by electricity, which is used to continuously assist her to breathe. Detaching the child from her source of electricity and taking her to a structure without electricity, while actually aware that it is the iron lung that sustains her child’s life, would constitute a substantial and unjustifiable risk of injury.
. The court of appeals noted that
it was undisputed that Appellant did not leave the girls in the room alone to sleep with the candle burning, but that Bowden had agreed to and did stay with the girls. Bowden was in the room with Appellant when she lit the candle before she left the second time, and Bowden was in the back room with the girls when Appellant left.
. Williams,
. As the court of appeals stated,
There was evidence that Appellant could have trusted Bowden to take care in keeping the girls that night. Bowden and Appellant had been seeing each other for about four years. Charles Williams and Sammy Beatty both testified that Bowden seemed to be a friend to the girls and Beatty recalled that he sometimes heard them call him "Dad.” Beatty had known Bowden for many years, since they were kids. Beatty owned two houses on Dallas Street, including the one next door to the structure*761 Bowden was staying at. Beatty was remodeling it and Bowden was helping him. Bowden also had started working at Benni-gan’s with Beatty, so they worked together almost every day. Beatty recalled that Bowden would get food for the girls at Bennigan’s almost every day.
Id. at 715. The court of appeals also stated, In his second statement, Bowden elaborated that the girls were just like his own children to him. He spent his money on them, and his time with them. Zula Mae had complained to him how much he babysat the girls when Appellant would go places. The girls were always a number one priority for him. There was no evidence that Bowden used drugs or alcohol that night. The jury could reasonably have concluded that Appellant did not act recklessly in leaving the girls in Bowden’s care with the candle still burning.
Id. (footnote omitted).
. Appellant’s Brief at 6.
. See Williams,
Q Okay. Is it a fact that Mr. Bowden spent a lot of time with the children over the years?
A Yes. When they was with their mother and him.
⅜ ⅜ ‡ *
Q Okay. Do yоu have any facts which would support a conclusion that he set out to hurt the children?
A No, I don’t.
⅜ ⅜ ⅜ V
Q Okay. And I understand this is hard to gauge, but did the children seem to enjoy going over to visit [Mr. Bowden] with their mother?
A Yeah, they was happy to be with their mother.
Q At Ronald's residence?
A I — at anywhere their mother was at, they would like to be with her.
Charles Leon Williams, Jr., the father of the two girls, testified he had no issue with Mr. Bowden—
Q And — and did you know Ron was hanging around last fall with Sharan?
A Yes, ma’am.
Q Did you — did you know Ron?
A Yes, ma’am.
Q And about how long have you known Ron?
A I’ve known him for some years.
⅜ ⅜ ⅜ ⅜
Q Was there any animosity between you and Ron?
A No, ma'am. We worked together a couple of times.
Q Okay. You didn’t have a problem with the fact that your ex was — was dating someone else?
A No, ma'am.
[[Image here]]
Q Okay_Mr. Williams, would you have gone and gotten the girls that night had you known they were not at home?
A Yeah. She would told me to go get them somewhere. I would have picked them up.
Q You had a vehicle you were driving?
A Yes, ma’am.
⅜ * * ⅜
Q And you wouldn’t have had any problems with Ron as far as any animosity or ex-spouse kind of thing going on there?
A No, ma’am.
*762 Q You could have gotten the girls and take them back to your place?
A Yes, ma’am.
[[Image here]]
Q ... Last series of questions, you had worked with Ron, there wasn’t any— worked with Ron, there wasn’t any problems. Fundamentally did you think of him as a good guy?
A I knew him as a friend.
Q As a friend. You don’t have any doubt in your mind that Ron — Ron set out to hurt your children, do you? You don't think he wanted to hurt Precious or Ujeana?
A No. Ain’t nobody want to hurt them.
Q Okay. Do you think of it as an accident? A Fire started accidentally.
In addition, appellant’s neighbor Lee Sammy Beatty, testified favorably about Mr. Bow-den. Mr. Bowden often worked for Mr. Beatty, at Bennigan's, and also on a remodeling job. He'd known Mr. Bowden since he "was a kid.”
Q ... You have no reason to believe or no fact that you can provide to the jury that would sustain a belief that he wanted to hurt the kids—
A No.
Q — is that correct?
A No.
Q And indeed, you believe quite the opposite—
A Right.
Q — is that correct?
A Yeah, those kids were fine.
Q Those kids were fine. Did — to the best of your recollection, did [Ron] used to sometimes get food at Bennigan’s to give to the children?
A Just about every day. But—
Q Go ahead.
A I — I’d get on him. Hey, you’re not supposed to do this. But they're for the kids, so—
Q Considering the circumstances?
A You know, I didn’t have no problem with it. I did, but didn’t at the same time.
Q Right. You don't think he intentionally wanted to hurt the children, do you?
A No way.
Mr. Beatty also noted that he did not think a residence became inherently unsafe once utilities were shut off:
Q ... You alluded to in your childhood there were times when you essentially had to do without?
A Yes. Stuff didn't get paid, stuff got cut off.
[[Image here]]
Q So there might be a period there, a few dаys, even a few weeks, where you’re without electricity or without gas?
A Yeah. It can happen to anybody.
Q Exactly? It can happen to anybody. Would you have considered your house to be inherently unsafe because you didn’t have gas or electricity during that time? A No. No. Still home to me.
Q In this particular house where Ron was living at back there, you wouldn’t have been interested in adding on to your house unless you felt it was a well-built, solid structure?
A Right.
Q Would you have had any problem staying there yourself—
A No.
Q — in that house?
A No.
These were all State's witnesses. The State put on no "bad character" witnesses.
. There was no evidence Bowden was drunk, "high,” or otherwise incapacitated. Contra Bohannon v. State,
. See generally Jennifer M. Collins: Crime and Parenthood: the Uneasy Case for Prosecuting Negligent Parents, 100 Nw. U.L.Rev. 807 (2006). Professor Collins identified general trends in part by studying reported judicial decisions involving fatal parental negligence. She found only ninety-two such decisions nationwide and categorized them as: (1) failure to provide (such as food, water, or medical care), (2) failure to supervise, and (3) failure to intervene (to protect a child from the abuse or neglect of another adult). Id. at 818. She noted,
The repotted case survey showed, as I expected, that a very significant percentage of the cases involved a failure to provide for a child, especially medical care. Forty-three cases primarily involved a failure to provide for the child. In twenty-four of those forty-three cases, the charges against the parent primarily involved a failure to provide timely medical care. Twelve of the remaining cases involved a failure to provide nourishment and six involved a failure to provide both. Another case, in which a four-day-old baby was attacked and killed by a
swarm of fire ants, involved a failure to provide safe conditions. Only thirteen of the ninety-two cases included an allegation that the death was caused by a failure to intervene to protect a child from abuse by another individual, probably because this is still a relatively new legal development.
In thirty-four of the ninety-two cases, the parent or guardian was prosecuted because of a failure to provide adequate supervision. Thus, prosecution in failure to supervise cases is certainly not unprecedented. The most common causes of death were as follows: twelve cases involved accidental drowning, which resulted either from children being left unattended in a bathtub or from children being left unsupervised, allowing the children to wander outside and drown in a pool or other water hazard; eleven cases involved leaving young children home alone, who died when a fire broke out in their residence; and seven of the remaining cases involved deaths in automobiles.
Id. at 818-19 (footnotes omitted).
. Transportation Ins. Co. v. Moriel,
. Tex. Penal Code § 6.04(a).
.
. See American Law Institute, Model Penal Code § 2.03, Explanatory Note at 254-55 (stating that but-for causation is not sufficient by itself, and stating, "Liability is predicated on but-for causation, subject to limitations based on the relationship between the risks created by the actor’s conduct that support a finding of recklessness оr negligence and the consequences that in fact ensued”), see also id. at 263-64 (discussing offenses in which recklessness or negligence is the required culpability and in which the actual result is not within the risk of which the actor was aware or, in the case of negligence, of which he should have been aware), id. at 265 n. 24 (discussing a federal draft provision on criminal causation that left limitations on "but-for” causation "to judicial development of the concept of proximate cause”; stating that Texas had enacted a variation of the federal draft which, "[t]aken literally ... would imply that but-for causation alone is ordinarily sufficient for liability, subject only to qualification with respect to concurrent causes,” and noting that "[t]he same error occurs in the Alabama Code”).
. See, e.g., People v. Warner-Lambert Co.,
Analogized to the present case, it is not sufficient to prove that leaving a lit candle in a bedroom could cause a fire that causes the death of children. It is the general chain of events that did actually occur which must have been at least reasonably foreseeable. See id.,
. Transportation Ins. Co. v. Moriel,
. Id. (footnote omitted).
. Id.
. Id. at 25.
. Id.
. Id.
. See, e.g., General Motors Corp. v. Sanchez,
. See note 53 supra.
. State’s Brief at 8-9, 15.
. Williams,
. See supra note 54.
. In civil law, a babysitter owes a child due or reasonable care. See Restatement (Second) of Torts, § 324 (Duty of One Who Takes Charge of Another Who Is Helpless).
*767 One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or (b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor toоk charge of him.
Id.; see also id., Comment B ("It applies also to one who takes charge of another who by reason of his youth is incapable of caring for himself”); Standifer v. Pate,
In one case, a mother was held to have breached her duty of exercising reasonable care when she left the child with a babysitter. In Chicago & N.W. Ry. Co. v. Schumilowsky,
. See People v. Rodriguez,
. Williams,
One of the most striking trends in the data was the preferential treatment accorded parents who could be identified via descriptions contained in media reports as middle or upper class or employed in “white collar" professions. I was able to obtain information regarding both socioeconomic status and prosecution outcome for fifty-one of the cases involving parents as potential defendants. Thirty of these cases involved parents who could be characterized as working in a white collar profession or as*768 being the spouse of a white collar professional. Professions ranged from a NASA scientist to college professors to a hospital CEO. Of these individuals, only seven were prosecuted, for a prosecution rate of 23.3%. But of the twenty-one individuals who could be classified as working in a blue collar profession or who were unemployed, or had some other indicator of a lower soсioeconomic status such as living in a mobile home with no working utilities, eighteen were prosecuted, translating to a staggering prosecution rate of 85.7%.
Id. at 831-32 (footnotes omitted). By comparison, when San Antonio’s Senator Frank Madia, his wife’s mother, and his grandchild died in a house fire caused by candles lit in celebration of Thanksgiving, no one was prosecuted. Lomi Kriel, Madia, Grandchild Reunited in Death, San Antonio Express-News, Nov. 26, 2006, at IB. ("Dozens of candles had been lit in the living room and in the backyard during the Madias' Thanksgiving celebration and, although they had been blown out, they had likely caused the fire[.]”). Instead, Texas legislators responded by drafting the "Senator Frank Madia Act” requiring smoke detectors in homes. Gary Scharrer, Senate OKs Madia Act Unanimously, San Antonio Express-News, Apr. 27, 2007, at 11 A.
.Published opinions dealing with prosecutions for accidental fires are few and far between. In People v. Albers,
. Collins, 100 Nw U.L.Rev. at 811.
. See Iones,
. Transportation Ins. Co. v. Moriel,
Dissenting Opinion
filed a dissenting opinion in which MEYERS, J., joined.
This case is not about a family camping trip gone wrong. It’s not about a poor family doing the best it could with the little they had. This case is about two little girls who died a horrible death because their mother, for no good reason, took them from a safe home and left them in a place that she knew was a fire hazard. She left them there with a lit candle, telling them she was going to the store to get them snacks and that she would be back, but she didn’t come back. The jury had no trouble deciding that appellant’s behavior on the night of October 4, 2002, was
There are two aspects of this case that I believe the Court overlooks. First, for an act to be reckless, the risk that it creates must be unjustifiable.
The fact that appellant failed to return when she said she would is the second aspect of the case that the Court’s analysis seems to overlook. Bowden assumed responsibility for the girls while appellant went to the store, but he expected her back hours before the fire.
Moreover, the Court discounts the evidence that appellant knew the risk because people sometimes disregard a mother’s advice.
In my opinion, these two aspects of the case — the unjustifiability of the risk and the failure to return — are sufficient to rebut the Court’s conclusion. But I also believe it is important to address at least some of the other statements in the Court’s opinion with which I disagree most strongly.
First, the Court suggests that “the acts that the State has alleged do not constitute a criminal offense under the totality of the circumstances.”
Third, I cannot agree with some of the Court’s comments regarding the likelihood of dying in fires or the reasonableness of certain types of conduct around fire. I think the Court goes too far in saying, “Staying in a structure without utilities does not increase the likelihood of dying in a fire.”
I also cannot agree with a number of the Court’s statements regarding “foreseeabil
I would also caution against relying upon socioeconomic studies in formulating rules of law. As an appellate court, our task is to construe statutes in accordance with the legislative intent, not to implement our own notions of what constitutes good policy.
The court of appeals carefully examined the evidence, applied the appropriate standard for reviewing sufficiency of the evidence, and gave proper deference to the jury’s implied credibility decisions. I agree with that court’s reasoning and its conclusion, and I respectfully dissent to the reversal of appellant’s conviction.
. Tex. Penal Code § 6.03(c).
. Bowden had lived there for less than two weeks, so there was no long history of safe visits.
. This was according to appellant's own statement. The Court seems to place more weight on the evidence that appellant told Bowden she was going out to see friends, but the jury was entitled to instead believe appellant's account of what she said.
. Appellant was a prostitute.
. While it seems clear that Bowden loved the girls and was distraught at their deaths, I disagree with the Court’s implication that the record shows that he was a reliable and responsible person. I find virtually no testimony regarding his actions in the days and years before the fire to suggest either that conclusion or the contrary. The lack of such evidence should be held against appellant — not in her favor.
. Court’s op. at 765.
. Id. at 758.
. One witness testified that appellant said the girls were at ‘‘home’’ but another testified specifically that appellant said they were "at grandma’s" house. The jury was entitled to believe that appellant used the words "at grandma’s.”
. Id. at 750.
. Id. at 751-52 (referring to "devil may care” or "not giving a damn” attitude).
. Tex. Pen.Code § 6.03(c).
. Id. at 757.
. For instance, most homes have utilities, so it’s not particularly significant that only fifteen percent of home fires were attributable to open fires. The cited statistics do not address what proportion of homes without utilities have open fires or whether homes with utilities are less likely to have fires than homes without. Besides, a house without utilities presents its own additional problems, not found in the camping scenario or in a house with utilities. The children in this case were in a room with only one usable exit, which was blocked by the fire. The absence of running water can affect the ability to put out a fire. Electricity might have been used to run a smoke or carbon monoxide detector.
.Id. at 757.
. See id. at 764.
. The Court relies uрon the Collins study for the proposition that “ ‘parents in blue collar professions and parents who were unemployed were four times more likely to be prosecuted than parents from wealthier socioeconomic groups’ for fatal accidents involving children.” See Court’s op. at 41 n. 81. Collins's study involved a subset of children who died from fatal accidents: those "who died of hyperthermia as a result of being left unattended in an automobile.” And factors related to the nature of the crime were strongly correlated to the decision to prosecute: "prosecutions were initiated in every case where the responsible party left the child in the car deliberately” in contrast to cases in which the person forgot the child was in the car and ”[p]rosecutions were initiated in virtually every case where any sort of aggravating factor was present,” such as drug or alcohol use. Collins acknowledged that the socioeconomic disparity could result from a correlation between socioeconomic status and these other factors, but after conducting a multiple regression analysis, she determined that "socioeconomic status was an independently significant factor in prosecutorial deci-sionmaking." She did not, however, reveal the residual amount of disparity, other than to say that it was “statistically significant in terms of patterns of prosecutorial decision-making at more than a ninety-nine percent confidence level.” The question remains whether that residual disparity is due to the overly aggressive prosecution of parents of lower socioeconomic status or due to the overly lenient treatment of more affluent parents. Collins's primary argument is "that prosecutors are in fact employing a ‘suffering discount’ for parents” and that the authorities should be more willing to charge parents when children are harmed by a parent’s grossly negligent or reckless conduct. See Jennifer Collins, Crime and Parenthood: The Uneasy Case for Prosecuting Negligent Parents, 100 Nw. U.L.Rev. 807, 809, 820, 828-830, 832, 853, 854-55 (2006).