Elder v. State

OPINION

Opinion by:

PAUL W. GREEN, Justice.

Frances Elder lived with Bert Timms who was on probation for indecency with a child. After Timms assaulted Elder’s daughter, Elder was indicted with endangerment of a child. A jury convicted Elder, and the trial court sentenced her to two years confinement, probated for five years, plus twenty days in jail. On appeal, Elder contends there is no evidence she placed her child in imminent danger. We agree. Accordingly, we reverse the trial court’s judgment and render a judgment of acquittal.

Background

In 1993, Timms was placed on eight years deferred adjudication probation for indecency with a sixteen-year-old child. His contact with children, other than the complainant, was not restricted. In May 1996, Timms obtained custody of his two-year-old son. In June, Timms moved in with Elder and her five children.

In July, Timms’s probation officer, Sean Finn, asked Elder to sign a release, which stated:

It has been explained to me ... that the Defendant Bert Timms, has been placed on probation for the offense of indecency. Furthermore, I understand that a condition of the Court Order prohibits Bert Timms from having any contact with any child, male or female, under eighteen (18) years of age, unless in the presence of the child’s parent, guardian, or managing conservator and with the specific approval of the parent, guardian, or managing conservator submitted in writing.... Therefore, I, Frances Noreen Elder, am giving Bert Timms permission to have contact with my children ... while under my direct supervision. Therefore, I accept full responsibility during such contact, and release the Community Supervisions and Corrections Department, its agents, officers, and employees from any and all *230liabilities that may arise from such contact.
I understand that if the Defendant, Bert Timms, engages in any inappropriate sexual contact with my children ... that I may be criminally responsible for facilitating that contact and may be prosecuted.

Finn did not tell Elder he thought Timms was harmless; nor did he tell her there was a possibility he might repeat his offense. On the other hand, Elder did not ask for additional information.

In January 1997, Elder’s nine-year-old daughter alleged that Timms sexually assaulted her. On February 11, Child Protective Services investigated the incident and obtained a confession from Timms. Two days later Timms and Elder were indicted. Timms was tried first and found guilty of attempted aggravated sexual assault of a child.

Discussion

In her first point of error, Elder maintains there is no evidence she placed her child in imminent danger. We agree.

In reviewing legal sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict and ask whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We consider all the evidence introduced, whether properly admitted or not. See Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993). Finally, we look at the circumstances surrounding the offense objectively rather than subjectively. Herbst v. State, 941 S.W.2d 371, 373 (Tex.App.-Beaumont 1997, no pet.).

As the jury was charged, the State was required to prove beyond a reasonable doubt that Elder “intentionally or knowingly” placed her daughter “in imminent danger of bodily injury or physical or mental impairment” by putting her “in a home environment which included a known child molester.” See Tex. Penal Code Ann. § 22.041(c) (Vernon 1994). The word “imminent” means “ready to take place, near at hand, impending, hanging threateningly over one’s head, menacingly near.” Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim.App.1989); see also Garcia v. State, 819 S.W.2d 634, 636 (Tex.App.-Corpus Christi 1991, no pet.) (defining “imminent” as present, not future, threat).

The evidence, when viewed objectively and in the light most favorable to the verdict, shows that Elder began living with Timms shortly after he obtained custody of his two-year-old son. Elder knew Timms was on probation for indecency with a child, and she signed a release indicating she would supervise Timms’s contact with her children. There is no evidence that Timms posed a danger to children, other than the fact of his probation. There is no evidence about Timms’s relationship with Elder’s daughter, nor is there any evidence describing his assault on the child and what role, if any, Elder played in the circumstances surrounding the incident. Finally, there is no expert testimony describing Timms as a pedophile or alleging he could not be rehabilitated. From this scant evidence, no rational juror could have found the element of imminent danger beyond a reasonable doubt. Cf. Broussard v. State, 827 S.W.2d 619, 622 (Tex.App.-Corpus Christi 1992, no writ) (holding that possibility of harm is not “imminent risk” for purposes of involuntary commitment).

Conclusion

Essentially, the State urges us to hold that, as a matter of law, a parent cannot live with a “known child molester” without putting her child in imminent danger. We decline the State’s invitation. Accordingly, we sustain Elder’s first point of error. It is therefore unnecessary to address her second point of error regarding use immunity. See Tex.R.App. P. 47.1. We reverse the trial court’s judgment and render a *231judgment of acquittal. See Tex.R.App. P. 43.2(c).

Concurring opinion by: CATHERINE STONE, Justice.