Jerry Steinecke v. State

Opinion issued April 12, 2007 Opinion issued April 12, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-00813-CR JERRY STEINECKE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 25th District Court Colorado County, Texas Trial Court Cause No. CR01-223 MEMORANDUM OPINION Appellant Jerry Steinecke pleaded not guilty to two counts of the felony offense of endangering a child. See Tex. Pen. Code Ann. § 22.041 (Vernon Supp. 2006). A jury found Steinecke guilty on both counts and the trial court assessed punishment at two years’ confinement and a $500 fine, but probated the sentence for five years. In four issues, Steinecke contends the evidence is legally and factually insufficient to support the jury’s finding that he intentionally, knowingly, recklessly, or with criminal negligence engaged in conduct that placed his children in imminent danger of death, bodily injury, or physical or mental impairment. We conclude that the evidence is legally and factually sufficient to support the jury’s finding that Steinecke acted with criminal negligence and engaged in conduct by omission that placed his children in imminent danger of death, bodily injury, or physical or mental impairment. We therefore affirm. Background On the evening of March 20, 1999, Ramona Ray was driving with her son Matthew on County Road 103 in Colorado County. Matthew and Ramona noticed that a vehicle was stuck on the railing of a bridge so they stopped to render aid. Steinecke was the driver of the disabled vehicle, and his two children, R.S. and D.S., were riding in the backseat. R.S. was five years old and D.S. was two years old. Matthew lifted the back of Steinecke’s vehicle and Steinecke was able to drive away from the railing and down an embankment. The embankment, however, was too steep for Steinecke’s vehicle to climb and it eventually became stuck in some mud. Steinecke then walked up the embankment and used Ramona’s cellular telephone to call his insurance company. Steinecke left R.S. and D.S. in the backseat. Ramona then flagged down a truck for additional assistance because she thought that Steinecke was acting strangely. Thad Stehling was the driver of the truck. Ramona testified that while Stehling was talking with Steinecke, she noticed flames coming from underneath Steinecke’s vehicle. Ramona then alerted Stehling that there were children in Steinecke’s vehicle. Stehling and Matthew ran down the embankment and pulled the children to safety. Ramona did not recall Steinecke assisting in the rescue, nor did she hear Stehling ask Steinecke if anyone was in his vehicle. Matthew did not recall Ramona telling Stehling that there were children in Steinecke’s vehicle. Instead, after the vehicle caught fire, Matthew heard Stehling ask Steinecke at least three times if anyone was in his vehicle. When Steinecke finally replied affirmatively, Stehling ran down the embankment and rescued the two children. Matthew also did not recall if Steinecke helped with the rescue. Stehling testified that as soon as he arrived at the scene, he noticed that Steinecke’s vehicle was filling with smoke and had fire underneath it. Stehling never heard Ramona say that children were in Steinecke’s vehicle. Stehling asked Steinecke if anyone was in the burning vehicle but Steinecke just stared at the vehicle and did not reply. Stehling asked again if anyone was in the vehicle but Steinecke just jokingly mumbled, “Man, look at my car.” Stehling finally asked a third time if anyone was in the vehicle and Steinecke looked right at him and yelled, “Yes, two babies.” Stehling testified that three or four minutes elapsed during this conversation. Stehling then immediately ran to the vehicle and removed Steinecke’s two children. Stehling also testified that Steinecke followed him down the hill and assisted with the rescue. Stehling testified that Steinecke seemed intoxicated during the incident. Police officers and the fire department arrived at the scene shortly thereafter. Officer C. Zermeno immediately noticed that Steinecke looked intoxicated. Zermeno also smelled alcohol when he interviewed Steinecke. Steinecke acted strangely throughout the interview and he told Zermeno that he was in the area because he was fishing. Officers J. Pavlicek and A. Owens spoke with Steinecke at the scene as well and both testified that Steinecke looked intoxicated and his breath smelled like alcohol. After Zermeno interviewed the other witnesses, he arrested Steinecke and took him to the police station. At the police station, Zermeno administered several sobriety tests, all of which Steinecke failed. Officer R. Korenek administered an Intoxilyzer test on Steinecke, which measured his blood alcohol level at .087. In March of 1999, a blood alcohol level of .087 was not above the legal limit. Korenek administered the Intoxilyzer test at 11:44 p.m., three and one-half hours after police were first called to the scene. Steinecke’s account of the events was similar to Ramona’s, but substantially different from Stehling’s and Matthew’s accounts. Steinecke testified that he was taking his daughters to his father’s birthday party on the day of the incident. He stopped at the bridge to look at the fish in the creek below because the traffic on the freeway was bad. Steinecke testified that his vehicle accidentally became stuck on the rail of the bridge while he was backing up. After Ramona and Matthew stopped and helped him remove his vehicle from the rail, Steinecke drove down the embankment where the vehicle became stuck in the mud. Steinecke admitted that he then drank some tequila because he was frustrated. Steinecke was standing on the bridge attempting to call his insurance company when Stehling arrived. Steinecke testified that Stehling walked past him without saying anything and began talking to Ramona and Matthew. Stehling was dressed in camouflage and had a pistol in a holster at his side. Ramona then said something about a fire and Stehling and Steinecke immediately ran down to the vehicle. Steinecke arrived at the vehicle first and removed both R.S. and D.S. Steinecke testified that smoke was not inside the passenger compartment when he opened the door. Stehling carried R.S. up the embankment while Steinecke carried D.S. Steinecke then removed his belongings from the vehicle, including the children’s toys and the bottle of tequila. Steinecke tried to push the vehicle away from the fire but he burned his hand. He then drank some more tequila for the pain. Legal and Factual Sufficiency In four issues, Steinecke contends the evidence is legally and factually insufficient to support the jury’s finding that he intentionally, knowingly, recklessly, or with criminal negligence engaged in conduct that placed R.S. and D.S. in imminent danger of death, bodily injury, or physical or mental impairment. Standard of Review When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. Endangering a Child A person commits the offense of endangering a child if he “intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.” Tex. Pen. Code Ann. § 22.041(c). “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); Rodriguez v. State, 137 S.W.3d 758, 761 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Millslagle v. State, 81 S.W.3d 895, 898 (Tex. App.—Austin 2002, pet. ref’d); Elder v. State, 993 S.W.2d 229, 230 (Tex. App.—San Antonio 1999, no pet.). The accused’s conduct must threaten the child with immediate, impending death, bodily injury, or impairment; placing a child in a situation that involves potential danger is not sufficient. Millslagle, 81 S.W.3d at 898 (holding that defendant did not place three-year-old son in imminent danger by leaving him alone in truck with windows slightly open near busy intersection); Elder, 993 S.W.2d at 230 (holding that defendant did not place eight-year-old daughter in imminent danger by permitting man on probation for indecency with child to move into home she shared with her children). “A person commits an offense [under the Texas Penal Code] only if he voluntarily engages in conduct, including an act, an omission, or possession.” Tex. Pen. Code Ann. § 6.01(a) (Vernon 2003). “A person who omits to perform an act does not commit an offense unless a law . . . provides that the omission is an offense or otherwise provides that he has a duty to perform the act.” Id. § 6.01(c). A parent has the duty of care, control, protection, and reasonable discipline of his child. Tex. Fam. Code Ann. § 151.001(a)(2) (Vernon Supp. 2006). A parent appointed as a conservator of a child has the duty of care, control, protection, and reasonable discipline of the child during the period that the parent has possession of the child. Id. § 153.074(1) (Vernon Supp. 2006). “Voluntary intoxication does not constitute a defense to the commission of crime.” Tex. Pen. Code Ann. § 8.04(a) (Vernon 2003). Texas Penal Code section 6.03(d) provides: A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it 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. Id. § 6.03(d) (Vernon 2003). No Duty In his appellate brief, Steinecke asserts that he had no duty to rescue his children from the burning car, and thus his failure to immediately attempt a rescue of his children is not evidence of endangerment. The evidence in this case is undisputed, however, that Steinecke was the possessory conservator of his two daughters, R.S. and D.S., and that Steinecke was in possession of R.S. and D.S. on the day of the incident. These facts gave rise to Steinecke’s duty of care, control, protection, and reasonable discipline over the children. Tex. Fam. Code Ann. § 153.074(1). The Texas Penal Code then imposed an obligation on Steinecke to avoid conduct by act or omission that placed the children in imminent danger of death, bodily injury, or physical or mental impairment. See Tex. Pen. Code Ann. § 22.041(c); see also id. § 6.01(c) (“A person who omits to perform an act does not commit an offense unless a law . . . provides that the omission is an offense or otherwise provides that he has a duty to perform the act.”). The conduct that the Penal Code criminalizes in this case is the omission to act that placed the children in imminent danger of death, bodily injury, or physical or mental impairment. See id. § 22.041(c). Here, Stehling and Matthew both testified that Steinecke stared at the burning vehicle containing his two children for three or four minutes while Stehling asked three times if anyone was in the vehicle, in disregard of a foreseeable result—that his children could be seriously injured or killed. Legally and factually sufficient evidence thus supports the conclusion that, by failing to disclose the presence of his children, Steinecke left them in imminent danger, and failed in his duty to protect them pursuant to the Family Code. Conduct and Mental State The record also contains legally and factually sufficient evidence to support the jury’s finding that Steinecke acted with criminal negligence and engaged in conduct by omission that placed his children in imminent danger of death, bodily injury, or physical or mental impairment. Stehling and Matthew both testified that Steinecke stared at the burning vehicle containing his two children for three or four minutes while Stehling asked three times if anyone was in the vehicle. Stehling testified that Steinecke seemed like he was intoxicated during the incident, and Ramona testified that she flagged down Stehling because of Steinecke’s strange behavior. Matthew testified that the fire was underneath the engine and passenger compartment, and that smoke was inside the passenger compartment. Stehling testified that the fire was underneath the passenger compartment. When Stehling reached the vehicle and started to open the door to rescue the children, the front tire exploded and the hood popped open because of the fire. Stehling testified that the smoke was thick inside the vehicle and the two children were in the backseat clutching their teddy bears. Stehling then pulled both children out of the vehicle and brought them up the hill with the help of Steinecke. Nancy Steinecke, Steinecke’s ex-wife, testified that the children smelled like smoke when she picked them up at the police station later that night. Officers Zermeno, Pavlicek, Owens, and Korenek all testified that Steinecke looked intoxicated and smelled like alcohol when they spoke with him at the scene and at the police station. Steinecke admitted that he drank some tequila when he realized that his vehicle was stuck in the mud. In contrast, Steinecke testified that Stehling never asked him if anyone was in his vehicle. When Stehling arrived at the scene, he walked right past Steinecke and began talking to Matthew and Ramona. Similarly, Ramona testified that she did not hear Stehling ask Steinecke if anyone was in the vehicle. Ramona testified that as soon as she saw the fire, she alerted the others that there were children in the vehicle and Stehling took immediate action. Ramona did not recall if Steinecke assisted in the rescue. Steinecke testified that he and Stehling took action to rescue the children as soon as Ramona said something about the fire. Steinecke also specifically testified that he opened the door and pulled his children out of the vehicle, not Stehling. Steinecke testified that smoke was not inside the passenger compartment. The only smoke was on the outside of the vehicle and most of that was steam from the wet grass. Steinecke also testified that when he pulled the children out of the vehicle, the fire was only underneath the engine. We conclude that the record contains legally and factually sufficient evidence to support the jury’s finding that Steinecke ought to have been aware that there was a substantial and unjustifiable risk in failing to immediately report the presence of his children or to remove them from the burning vehicle, and that his failure to perceive that risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. See Tex. Pen. Code Ann. § 6.03(d); see also Urbanski v. State, 993 S.W.2d 789, 795 (Tex. App.—Dallas 1999, no pet.) (holding that evidence was sufficient to support finding that defendant acted with criminal negligence in determining whether minor was voluntarily absent from home without her parents’ consent for substantial length of time); Edmonson v. State, 955 S.W.2d 472, 473 (Tex. App.—Austin 1997, no pet.) (holding that evidence was sufficient to support finding that defendant acted with criminal negligence in selling alcohol to minor). We further conclude that the record contains legally and factually sufficient evidence to support the jury’s finding that Steinecke engaged in conduct by omission that placed his children in imminent danger of death, bodily injury, or physical or mental impairment. See Rodriguez, 137 S.W.3d at 761 (holding that evidence was sufficient to support finding that defendant placed child in imminent danger by driving drunk and crashing with child in vehicle); Walker v. State, 95 S.W.3d 516, 520–21 (Tex. App.—Fort Worth 2002, pet. ref’d) (holding that evidence was sufficient to support conviction for endangering child when defendant fled from police officer with child in vehicle); Millslagle, 81 S.W.3d at 898 (holding that evidence was insufficient to support finding that defendant placed three-year-old son in imminent danger by leaving him alone in truck with windows slightly open near busy intersection); Contreras v. State, 54 S.W.3d 898, 904–05 (Tex. App.—Corpus Christi 2001, no pet.) (holding that evidence was sufficient to support conviction for endangering child when defendant failed to adequately feed her child); Elder, 993 S.W.2d at 230 (holding that evidence was insufficient to support finding that defendant placed eight-year-old daughter in imminent danger by permitting man on probation for indecency with child to move into home she shared with her children). While the evidence is conflicting with regard to Steinecke’s conduct, the amount of time that elapsed between the time the witnesses first saw fire under Steinecke’s vehicle and the time a rescue attempt was made, and whether the children were in imminent danger of death, bodily injury, or physical or mental impairment, the jury was entitled to disregard any testimony that it found not to be credible. See Cain, 958 S.W.2d at 408–09. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Steinecke acted with criminal negligence and engaged in conduct by omission that placed his children in imminent danger of death, bodily injury, or physical or mental impairment. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Drichas, 175 S.W.3d at 798; Matson, 819 S.W.2d at 843. When viewed in a neutral light, the evidence supporting the jury’s findings is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the verdict against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11; Ladd, 3 S.W.3d at 557. The evidence is therefore legally and factually sufficient to support the jury’s finding that Steinecke acted with criminal negligence and engaged in conduct by omission that placed his children in imminent danger of death, bodily injury, or physical or mental impairment. Conclusion We hold that the evidence is legally and factually sufficient to support the jury’s finding that Steinecke acted with criminal negligence and engaged in conduct by omission that placed R.S. and D.S. in imminent danger of death, bodily injury, or physical or mental impairment. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. Tex. R. App. P. 47.2(b).