Because 105 years ago one of their relatives, one of their relatives was an heir? Because they came over from Mexico, and how do u know tony? mom ?

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NUMBER 13-02-00130-CV



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI B EDINBURG



SISTER CARMEN DE LLANO, JOSEPHINE JOHNSON,

INDEPENDENT EXECUTRIX OF THE ESTATE OF

MANUEL DE LLANO, BLANCA A. DE LLANO DE AGUILAR,

MARTHA DE LLANO DE OLIVERA, FERNANDO

DE LLANO, JR., AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF FERNANDO DE LLANO, AND

JOSEFINA DE LLANO, Appellants,



v.



PABLO SUESS AND FROST NATIONAL BANK,

TRUSTEES OF THE JOHN G. KENEDY, JR.

CHARITABLE TRUST, Appellees.



On appeal from the 206th District Court of Hidalgo County, Texas.



MEMORANDUM OPINION



Before Justices Hinojosa, Yañez, and Garza

Memorandum Opinion by Justice Hinojosa



Appellants, Sister Carmen De Llano, Josephine Johnson, independent executrix of the estate of Manuel De Llano, Blanca De Llano De Aguilar, Martha De Llano De Olivera, Fernando De Llano, Jr., as personal representative of the estate of Fernando De Llano, and Josefina De Llano, filed suit against appellees, Pablo Suess and Frost National Bank, Trustees of the John G. Kenedy, Jr. Charitable Trust, for the recovery of real property, asserting various tort claims. A jury returned a verdict in favor of appellees, finding against appellants on all liability theories and in favor of appellees= defenses. In six issues, appellants (1) question the finality of the judgment and the jurisdiction of the trial court, (2) contend the appearance of the Attorney General of the State of Texas violated the Texas and United States Constitutions, (3) contend appellees= appeal to race during closing argument was incurable, (4) contend the trial court erred in failing to disqualify attorney J. A. ATony@ Canales, and (5) contend the jury=s finding on adverse possession requires this Court to render judgment for appellants. We affirm.

A. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of this Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

B. Finality of Judgment

In their sixth issue, appellants contend the trial court=s judgment is not final because: (1) it adjudicated the claims of Athe Unknown Heirs of Carmen Morell Kenedy;@ (2) it failed to adjudicate appellees= counterclaim for attorneys fees; and (3) it failed to identify, with sufficient particularity, the real property interests involved.[1]

Appellants assert the judgment improperly adjudicates the claims of the unknown heirs of Carmen Morell Kenedy. However, even though a trial court grants more relief than it ought to grant, the judgment is nevertheless final. See Jacobs v. Satterwhite, 65 S.W.2d 653, 655 (Tex. 2001). An order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties. Id. at 205.

Appellants further assert that because appellees requested an award of attorneys fees as a counterclaim, and no language in the judgment specifically states that they take nothing by their counterclaims, the judgment is not final. However, when a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003). Furthermore, claims raised by pleadings not expressly disposed of by a judgment are denied by implication. Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77, 78 (1896).

The judgment specifically says it is a AFinal Judgment,@ acknowledges appellees as counter-plaintiffs, and awards appellees the substantive relief requested in their counterclaims. Appellees admit that they did not produce any evidence in support of their claim for attorneys fees. Accordingly, we conclude that appellees= claim for attorneys fees was implicitly denied.

Finally, appellants argue that the judgment fails to identify with sufficient particularity the real property interests involved. However, because appellants fail to cite to any authority for their contention, this argument is waived. See Tex. R. App. P. 38.1(h). Appellants= sixth issue is overruled.

C. Participation of Attorney General

In their first issue, appellants contend the trial court violated the Texas and United States Constitutions by allowing the Attorney General of the State of Texas to appear before the jury on behalf of appellees. They assert that the attorney general=s participation in this suit constitutes excessive entanglement of the State and religious organizations. We note that appellants did not raise this contention before the trial court.

The attorney general intervened in this matter pursuant to section 123.002 of the property code, which provides:

For and on behalf of the interest of the general public of this state in charitable trusts, the attorney general is a proper party and may intervene in a proceeding involving a charitable trust. The attorney general may join and enter into a compromise, settlement agreement, contract, or judgment relating to a proceeding involving a charitable trust.



Tex. Prop. Code Ann. '123.002 (Vernon 1995).



Immediately before voir dire, when asked if there were any other Ahousekeeping matters@ to address, without challenging the constitutionality of the statutory basis for the attorney general=s intervention, counsel for appellants expressed concern regarding the attorney general=s participation at trial. When asked by the trial court if appellants were making a motion, appellants= counsel responded:

We are asking the Court to either limit her participation or at least set some ground rules, because if she is allowed unfettered access to this litigation, she will be essentially acting in violation of the constitutional restrictions that are set out in the Texas Constitution that prohibit the interference or the assistance of the state to any particular religious group. And we believe that=s improper and illegal.



When asked a second time by the trial court what relief appellants were requesting, counsel responded:

. . . . We want the Court to set some very specific ground rules that will limit the presentation to the jury of any inference or possibility in their minds that they will perceive the State as lending its weight and prestige to a secular religious organization, which we believe is improper under the constitution. We need some rules, some relief that will protect the jury from seeing the attorney general or hearing the attorney general arguing or representing religious entities.



The trial court then set forth the requested parameters and asked appellants if there was anything else needed from the plaintiff=s perspective. Counsel for appellants stated, AThat=s it, your Honor.@

The record reflects that appellants did not challenge the constitutionality of section 123.002 of the property code. Appellants only asked the trial court to set parameters for the attorney general=s participation at trial, and the trial court granted appellants= request. The trial court then inquired whether there was anything else, and appellants stated they had no further requests.

Accordingly, we conclude that a constitutional challenge was not properly raised in the trial court, and a constitutional challenge not raised properly in the trial court is waived on appeal. See Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959); Walker v. Employees Ret. Sys., 753 S.W.2d 796, 798 (Tex. App.BAustin 1988, writ denied). Appellants= first issue is overruled.

D. Improper Jury Argument

In their second issue, appellants contend that appellees= appeal to race and national origin during closing argument constituted improper jury argument that was incurable. Specifically, appellants challenge the reference to Carmen Morell Kenedy as a Agood old Mexican gal@ and Alittle Mexicanita@ and a reference to Ahalf-Mexicans.@

Incurable reversible error occurs when any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity. Tex. Employers Ins. Ass=n v. Guerrero, 800 S.W.2d 859, 866 (Tex. App.BSan Antonio 1990, writ denied); see Mission Res., Inc. v. Garza Energry Trust, 2005 Tex. App. LEXIS 3443, at *45-46 (Tex. App.BCorpus Christi May 5, 2005, no pet. h.) (Acourtroom strategies appealing to racial or ethnic biases are highly improper and unfairly prejudicial@). To prove incurable jury argument, the complaining party must show (1) improper argument was made; (2) that was not invited or provoked; (3) that was properly preserved at trial, such as by objection, motion to instruct or motion for mistrial; (4) error was not curable by instruction, prompt withdrawal of statement, or reprimand by judge; and (5) argument, by nature, degree, and extent, constituted reversible error based on examination of the entire record to determine the argument's probable effect on a material finding. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839‑40 (Tex. 1979); Tex. Employers Ins. Ass'n v. Puckett, 822 S.W.2d 133, 135 (Tex. App.BHouston [1st Dist.] 1991, writ denied).

Appellees argue that none of the statements made during closing argument constitute incurable jury argument and, moreover, any statements made by appellees were provoked by appellants= own appeal to racial prejudice that began during voir dire and continued throughout the trial. We agree.

During voir dire, appellants questioned jurors about Tejano history and referred to Dr. Andres Tijerina, a Tejano historian, who would testify at trial. During opening argument, appellants referred to Carmen as a poor Mexican girl who had her property stolen. During trial, appellants called Dr. Tijerina, who testified at length about the adverse treatment of people of Mexican descent by people of Anglo heritage and the unfair acquisition of land by Anglos from people of Mexican descent. Appellants also presented testimony regarding the use of the Texas Rangers by Captain King to murder people of Mexican descent, steal their land, and use lawyers to fix the documents. We conclude that such comments and evidence invited or provoked the challenged argument. Appellees= argument was nothing more than an appeal to the jury to disregard ethnicity, an issue first raised by appellants in this case.[2] Appellants second issue is overruled.



E. Disqualification of Defense Counsel

In their third issue, appellants contend the trial court erred by failing to disqualify attorney J. A. ATony@ Canales. Because appellants fail to (1) include any record references, (2) set forth the law regarding the disqualification of attorneys, and (3) provide any substantive analysis regarding this issue, we conclude this issue is waived. See Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@). Appellants= third issue is overruled.

F. Jurisdiction

Despite their success in opposing appellees= plea to the jurisdiction, in their fourth issue, appellants request A[o]ut of an abundance of caution and to finally settle the parties= jurisdictional dispute . . . a ruling from this Court stating which court properly may exercise subject matter jurisdiction over this case. . . .@

In a plea to the jurisdiction, appellees argued that the trial court lacked jurisdiction because appellants= claims constituted an impermissible collateral attack on judgments issued by courts of competent jurisdiction. However, we conclude that appellants= petition was not an attack on these judgments. Appellants= petition did not contest the validity of Carmen=s or any other individual=s will, nor did it seek to set aside any orders. Rather, it sought to clarify what interest Carmen held in the capital stock of Kenedy Pasture Company. The admission of Carmen=s will to probate is irrelevant to appellants= right to recovery or to the issues presented by their petition.

Moreover, since appellants= petition did not seek to avoid the effect of the court=s order, the action is not a collateral attack. See Solomon, Lambert, Roth & Assoc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.BHouston [1st Dist.] 1995, no writ) (collateral attack is one that attempts to avoid effect of judgment in proceeding brought for some other purpose and seeks to show original judgment is void). Appellants= fourth issue is overruled.

G. Adverse Possession

In their fifth issue, appellants contend the jury=s favorable finding on appellees= affirmative defense of adverse possession establishes that appellants had a Apresent possessory interest in real property.@ Therefore, appellants argue, this Court should render judgment for appellants for no less than one-fourth of all property interests and proceeds claimed by appellees. Appellants make this argument even though the jury found unanimously in favor of appellees, answering Ano@ to all liability questions.

An affirmative defense is by its nature "one of confession and avoidance" which seeks to establish an independent reason why the plaintiff should not prevail. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996). However, establishing an affirmative defense in no way relieves the plaintiff from proving the elements of his claim. If we were to accept appellants= argument that a finding of an element of an affirmative defense avoiding liability implicitly establishes the liability the defense seeks to avoid, we believe it would nullify the function of affirmative defenses. Accordingly, appellants= fifth issue is overruled.

The judgment of the trial court is affirmed.



FEDERICO G. HINOJOSA

Justice



Memorandum Opinion delivered and filed this

the 16th day of June, 2005.

[1] At oral argument, appellants argued, for the first time, that the judgment does not adjudicate the rights of the Attorney General of the State of Texas. This argument was not briefed, and a new issue may not be presented for the first time at oral argument. See Tex. R. App. P. 38.1(e), 39.2; see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); In the Interest of C.A.K., 155 S.W.3d 554, 562 n.5 (Tex. App.BSan Antonio 2004, pet. filed).



[2] During closing argument, appellees= counsel, J. A. ATony@ Canales, argued:



This is a classic lawsuit abuse case, let me tell you right now. I am telling you. It is B they are doing nothing else but trying to squeeze money out of us. Why? Because 105 years ago one of their relatives, one of their relatives was an heir? Because they came over from Mexico, all of a sudden, because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Do you know, just because you happen to be of Mexican descent doesn=t mean you are going to rule for somebody just for that. We are Americans; right? You told me B you promised me when we started this case, you are going to call it the way it is. I said in the beginning, this is not a case about a bunch of Rangers coming and killing a bunch of Mexicans and taking their property away. Remember I said that? Is this what this case is about?

Too Bad God and His Son were watching while the Devil laughed..........Amaya, go finger yourself. Schearer the got stings and film lesbo a leopard...

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"Having decided that "a motivating factor" is the correct standard of causation for the plaintiff in all TCHRA unlawful employment practice claims"

And of course the TSC "knows" the motive since .....


"Having decided that "a motivating factor" is the correct standard of causation for the plaintiff in all TCHRA unlawful employment practice claims"



IN THE SUPREME COURT OF TEXAS

No. 99-1042

Quantum Chemical Corporation, Petitioner

v.

Ralf Toennies, Respondent

On Petition for Review from the Court of Appeals for the First District of Texas

Argued on October 11, 2000

Chief Justice Phillips delivered the opinion of the Court, joined by Justice Enoch, Justice Baker, Justice Hankinson, and Justice O'Neill.

Justice Hecht filed a dissenting opinion, joined by Justice Owen.

Justice Abbott did not participate.

In this age discrimination suit brought under the Texas Commission on Human Rights Act ("TCHRA"), we must decide what standard of causation a plaintiff must meet. The relevant parts of the TCHRA are patterned after Title VII of the federal Civil Rights Act. Thus, we would ordinarily look to federal precedents for interpretative guidance to meet the legislative mandate that the TCHRA is intended to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Tex. Labor Code § 21.001(1). However, because the federal courts are closely divided on the issue, we follow the plain meaning of Texas Labor Code section 21.125. This section provides that a plaintiff establishes an unlawful employment practice by showing that discrimination was "a motivating factor" for the practice. We therefore affirm the judgment of the court of appeals, 998 S.W.2d 374, and remand the case to the trial court for further proceedings.

I.

Ralf Toennies was an engineer for DuPont at its La Porte facility when Quantum Chemical bought the facility in 1987. Two years later, Quantum promoted him to Senior Chemical Engineer. Before 1994, Toennies's employee evaluations were satisfactory; but in early 1994, a few months after he began reporting to a new supervisor, his performance evaluation was below expectations. Quantum terminated Toennies in late 1994, when he was 55 years old.

Toennies filed a complaint with the Texas Commission on Human Rights, which issued a right-to-sue letter. See Tex. Labor Code § 21.252. He then sued Quantum under the Texas Commission on Human Rights Act, Tex. Labor Code §§ 21.001-.556, alleging that age discrimination motivated the firing. Because there was no direct evidence of discrimination, Toennies relied on circumstantial evidence to make his case and to disprove Quantum's contention that it terminated him for poor job performance. At the close of evidence, Toennies proposed to instruct the jury "that an unlawful employment practice is established when the Plaintiff demonstrates that his age was a motivating factor for his discharge, even if other factors also motivated the discharge." The court rejected this language, and instead instructed "that an employer commits an unlawful employment practice if, because of age, the employer discharges an individual."

During deliberations, the jury sent a note to the judge inquiring whether Toennies had to show that "[a]ge was a determining factor" or that "[a]ge was the sole determining factor" in his dismissal. The judge declined to answer the question or otherwise elaborate on the initial instruction. The jury later reported it was deadlocked. After an Allen ⁽¹⁾ charge, the jury returned a verdict that Quantum was not liable. The trial court rendered judgment on the verdict, but the court of appeals reversed, agreeing with Toennies that the proper standard for causation in an employment discrimination suit is whether discrimination was "a motivating factor." 998 S.W.2d at 378-79.

II.

The trial court's jury instruction tracked Texas Labor Code section 21.051:

An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment . . . .

Section 21.051 is substantively identical to its federal equivalent in Title VII, with the exception that the federal law does not protect age and disability. ⁽²⁾ 42 U.S.C § 2000e-2(a).

Although Toennies's requested jury instruction began with the statement that an employer commits an unlawful employment practice if it discharges an individual "because of" age, the instruction also used the language of the first part of Texas Labor Code section 21.125. That section is entitled "Clarifying Prohibition Against Impermissible Consideration of Race, Color, Sex, National Origin, Religion, Age, or Disability in Employment Practices." Section 21.125 provides a more specific standard of causation than the one in section 21.051, and also provides a defense that may limit the plaintiff's remedies even if discrimination is present:

(a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice . . . .

(b) In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief . . . , and attorney's fees and costs . . . , but may not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or back pay.

Tex. Labor Code § 21.125. These two provisions are nearly identical to section 107 of the federal Civil Rights Act of 1991 ("section 107"). Pub. L. No. 102-106, § 107 (codified at 42 U.S.C. § 2000e-2(m) and 42 U.S.C. § 2000e-5(g)(2)(B)) (amending the Civil Rights Act of 1964).

One of TCHRA's purposes is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Tex. Labor Code § 21.001(1). Therefore, analogous federal statutes and the cases interpreting them guide our reading of the TCHRA. NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). Even though the statutory language appears to provide that "a motivating factor" is the causation standard in all TCHRA/Title VII cases alleging unlawful employment practices, federal case law makes the issue less simple than it appears. Quantum urges us to follow two federal circuit courts that generally use a "but for" standard of causation, reserving "a motivating factor" as the standard in only those discrimination cases in which the plaintiff has direct evidence of discriminatory animus. Using a motivating factor as the standard in all employment discrimination cases, Quantum argues, would destroy the intricate framework traditionally employed to analyze such claims.

Federal courts recognize two types of Title VII employment discrimination cases, each requiring different elements of proof. The first type is the "pretext" case, in which the plaintiff's ultimate goal is to show that the employer's stated reason for the adverse action was a pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). The plaintiff can usually provide sufficient evidence of discriminatory intent by showing that the employer's proffered reason for the adverse action is false. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, ___; 120 S. Ct. 2097, 2106-2109 (2000). The second type of case is the "mixed-motive" case, in which the plaintiff has direct evidence of discriminatory animus. This direct evidence shifts the burden of proof to the employer to show that legitimate reasons would have led to the same decision regardless of any discriminatory motives. Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095-99 (3rd Cir. 1995).

Thus, how a case will be classified depends entirely upon the presence or absence of direct evidence. Price Waterhouse, 490 U.S. at 276 (O'Connor, J., concurring) (to qualify for mixed-motive treatment, a plaintiff "must show by direct evidence that an illegitimate criterion was a substantial factor in the decision"); Starceski, 54 F.3d at 1097 ("[T]he distinction between a Price Waterhouse and a McDonnell Douglas/Burdine case lies in the kind of proof the employee produces on the issue of bias."). If the plaintiff has only circumstantial evidence of discrimination, it will be classified as a pretext case regardless of how many motives the employer had. Starceski, 54 F.3d at 1097-98; Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995).

The Supreme Court defined the order and allocation of proof for a pretext case in McDonnell Douglas and Burdine. Initially, the complainant must establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Although the precise elements of this showing will vary depending on the allegations, id., the plaintiff's burden at this stage of the case "is not onerous." Burdine, 450 U.S. at 253. The burden of going forward then shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802. The offer of a legitimate reason eliminates the presumption of discrimination created by the plaintiff's prima facie showing. Burdine, 450 U.S. at 254. The burden then shifts back to the complainant to show that the employer's stated reason was a pretext for discrimination. McDonnell Douglas, 411 U.S. at 805-07; Burdine, 450 U.S. at 256.

Under the original Civil Rights Act of 1964, federal courts required the complainant in a pretext case to prove that "but for" the impermissible discrimination, the employer would not have taken the action against the complainant. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (employing the "but for" test in dicta); Kauffman v. Sidereal Corp., 695 F.2d 343, 345 (9th Cir. 1982); Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1112 (4th Cir. 1981). But when the Supreme Court first recognized mixed-motive cases under the 1964 Act, it decided to apply a different causal standard. In a mixed-motive case, the Court held, a plaintiff needed only to establish that the employer's discriminatory intent was "a motivating part" in the employment decision. Price Waterhouse, 490 U.S. at 244-45. A plurality of the Court clarified this standard by explaining:

In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a [member of a protected class].

Id. at 250. As in a pretext case, the burden of persuasion on the issue of discrimination always remained on the complainant. But once the mixed-motive plaintiff proved an improper motive, the employer could avoid all liability by "proving that it would have made the same decision even if it had not allowed [the improper motive] to play such a role." Id. at 244-45; see also id. at 260 (White, J., concurring); id. at 269 (O'Connor, J., concurring).

Congress responded to Price Waterhouse by enacting section 107 of the Civil Rights Act of 1991. Congress apparently was displeased with the Price Waterhouse approach and wanted to ensure that employers with discriminatory motives would not completely prevail merely by proving they would have made the same decision for legitimate reasons. Accordingly, section 107(b) allows a court to award attorney's fees and other limited forms of relief so long as the plaintiff has proven that discrimination was a motivating factor in the employment decision, even if the employer's decision would have been identical in the absence of discrimination. However, the plaintiff is not entitled to damages, back pay, or reinstatement if the employer proves that the same decision would have been made even without the discrimination. 42 U.S.C. § 2000e-5(g)(2)(B).

The statute's plain language does not indicate that Congress intended section 107 to apply only in mixed-motive cases. Rather, section 107(a) simply says that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). Establishing an unlawful employment practice is, of course, the entire point of a plaintiff's suit, no matter how it is judicially classified.

Nevertheless, the federal circuit courts disagree over whether section 107 and its "motivating factor" standard apply to all Title VII employment discrimination claims or only to claims of the type at issue in Price Waterhouse. The Supreme Court has stated in dicta that section 107 "responds to [Price Waterhouse] by setting forth standards applicable in 'mixed-motive' cases." Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994). But Landgraf was silent about section 107's effect on pretext cases, and its remark about mixed-motive cases was dicta in any event. Nevertheless, two federal court of appeals decisions have relied in part on Landgraf in deciding that section 107 applies only to mixed-motive cases. Watson v. Southeastern Penn. Transp. Auth., 207 F.3d 207, 219 (3rd Cir. 2000), cert. denied 69 U.S.L.W. 3552 (2001); Fuller v. Phipps, 67 F.3d 1137, 1143 (4th Cir. 1995).

Watson and Fuller emphasize that section 107, by its own terms, applies "even though other factors also motivated the [unlawful] practice." See Watson, 207 F.3d at 217; Fuller, 67 F.3d at 1143-44. Because the statute contemplates the same mixture of legitimate and illegitimate motives at issue in Price Waterhouse, both courts reasoned that Congress must have intended section 107 to affect only mixed-motive cases. Watson, 207 F.3d at 217; Fuller, 67 F.3d at 1143-44. But neither section 107's plain language nor the legislative history on which Watson and Fuller rely shows that Congress drew any distinction between pretext and mixed-motive cases. See H. Rep. No. 102-40(I), at 583-87, reprinted in 1991 U.S.C.C.A.N. 549; Watson, 207 F.3d at 218-19; Fuller, 67 F.3d at 1144. And in fact, two other federal circuits apply the "motivating factor" standard in pretext as well as mixed-motive cases. Fields v. New York State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 121 (2nd Cir. 1997) (a pretext case in which court held the plaintiff "was entitled to have a verdict in his favor if he could persuade the jury that race was a substantial motivating reason for the adverse employment actions") (emphasis in original); ⁽³⁾ Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084-85 (11th Cir. 1996) (affirming summary judgment based on the defendant's affirmative defense, but remanding to consider whether discrimination was a motivating factor that would entitle the plaintiff to attorney's fees). ⁽⁴⁾ Both Texas and federal model jury instructions also employ a motivating factor standard for pretext cases. Comm. on Pattern Jury charges, State Bar of Tex., Texas Pattern Jury Charges-Business, Consumer, Employment PJC 107.6 (1998); 3 Edward J. Devitt, et al., Federal Jury Practice and Instructions: Civil § 104.03 (West Supp. 2000); Eighth Circuit Manual of Model Jury Instructions: Civil 5.31 (West 1999); Ninth Circuit Manual of Model Jury Instructions: Civil 11.5.1 (West 1997). To apply our own section 21.125 to Toennies's lawsuit, we must determine which of these approaches is correct.

III.

Because Toennies offered only circumstantial evidence that Quantum Chemical discriminated against him because of his age, his case falls into the McDonnell Douglas pretext category. Therefore, if section 21.125 does not apply to pretext suits, the proper standard of causation for Toennies's suit would be the "but for" test that courts originally used for pretext claims. But if it does apply to all TCHRA employment discrimination claims, Toennies need only prove that age discrimination was a motivating factor in Quantum's decision to terminate him.

A basic rule of statutory construction is that we enforce the plain meaning of an unambiguous statute. Tune v. Texas Dep't of Pub. Safety, 23 S.W.3d 358, 363 (Tex. 2000). Section 21.125(a) provides that "an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice . . . ." There are no relevant textual restrictions on the applicability of this section to unlawful employment practices. Although section 21.125(a) begins with the qualifying words "[e]xcept as otherwise provided by this chapter," nowhere else does the TCHRA provide a different causal standard for pretext cases.

In our view, neither of the two federal circuit courts that use "a motivating factor" only for mixed-motive cases has adequately explained what justifies moving beyond the statute's unambiguous language. The mere fact that section 107, like Price Waterhouse, contemplates cases in which the employer may have a mixture of legitimate and discriminatory motives does not, without more, mean that Congress intended to limit section 107 to mixed-motive cases. Had Congress wanted to do so, it could easily have provided that "an employer with more than one motive commits an unlawful employment practice when discrimination was a motivating factor for the practice." Instead, the federal and state statutes provide that the employer commits an unlawful employment practice if discrimination "was a motivating factor for an employment practice, even if other factors also motivated the practice." Tex. Labor Code § 21.125(a); accord 42 U.S.C. § 2000e-2(m). The plain meaning of this statute establishes "a motivating factor" as the plaintiff's standard of causation in a TCHRA unlawful employment practice claim, regardless of how many factors influenced the employment decision. In the absence of meaningful Supreme Court authority, we therefore enforce the statute's plain meaning. Fields, 115 F.3d at 121; Harris, 99 F.3d at 1084-85.

IV.

Having decided that "a motivating factor" is the correct standard of causation for the plaintiff in all TCHRA unlawful employment practice claims, we must now determine whether the trial court's jury instruction was erroneous. The instruction followed the language of Texas Labor Code section 21.051, which states that an employer commits an unlawful employment practice if the employer makes an adverse decision "because of" the employee's age. However, this provision cannot take precedence over the "motivating factor" causation standard of section 21.125(a). The difference between the two statutes is that section 21.051 states circumstances in which an employer has committed an unlawful employment practice, whereas section 21.125(a) explicitly describes what a complainant must show in order to prevail in a lawsuit. To the extent there is any conflict between these provisions, the language that specifies the plaintiff's burden-section 21.125(a)-should control on that issue. Therefore, the trial court should have instructed the jury that Toennies established an unlawful employment practice if he demonstrated that age was a motivating factor in Quantum's decision to terminate him.

An incorrect jury instruction is only grounds for reversal if it probably caused the rendition of an improper judgment. Tex. R. App. P. 61.1(a); Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 675-76 (Tex. 1998). To determine whether the instruction probably caused an improper judgment, we examine the entire record. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). An improper instruction is especially likely to cause an unfair trial when the trial is contested and the evidence sharply conflicting, as it was in the present case. Id. at 756, n.25 (citing Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 921 (Tex. 1979)).

As the court of appeals recognized, the problem with requiring the jury to consider whether Quantum discharged Toennies "because of" his age is that the words are inherently ambiguous. 998 S.W.2d at 378. "Because of" can reasonably be interpreted to require that the improper motivation be either the sole factor or one of several factors that led to Toennies's firing. That this ambiguity confused the jurors is readily apparent from their initial deadlock and note to the trial judge, inquiring whether Toennies had to show that age was a determining factor or the sole determining factor. See Texas Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995) (error was harmful when jury instruction stated the wrong standard of causation in a Whistleblower Act suit and the facts were vigorously disputed); cf. Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995) (error was not harmful because the jury was unanimous and there was no indication that the jury based its verdict on the allegedly erroneous instruction). In light of this obvious confusion, we agree with the court of appeals that the "because of" instruction is reversible error because it probably caused the rendition of an improper judgment.

We also reject Quantum's argument that Toennies failed to preserve error by submitting a substantially correct instruction of his own. Although Toennies requested a jury instruction reflecting only section 21.125(a), the instruction was not incomplete because it omitted the defense contained in section 21.125(b). It is the defendant's burden to plead and request instructions on an affirmative defense. Tex. R. Civ. P. 94; T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex. 1992); Little Rock Furniture Mfg. Co. v. Dunn, 222 S.W.2d 985, 989 (Tex. 1949).

V.

Finally, Quantum argues that there was legally insufficient evidence of age discrimination to submit the case to the jury even under a motivating factor standard. We disagree. A no-evidence point will be sustained only if there is no more than a scintilla of evidence to prove the existence of a fact. General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999). Toennies presented some evidence that Quantum's stated reasons for the dismissal were a pretext for age discrimination.

One of Toennies's witnesses at trial was Darryl Churchwell, a senior project manager who had worked closely with Toennies at Quantum for three or four years. The evidence shows in particular that Toennies had worked in support of Churchwell on a major "turnaround" project in the months immediately before the firing. Churchwell testified that Toennies was "diligent" and "very competent." When asked to rate Toennies's knowledge of the profession, Churchwell rated him as a 10 on a scale of one to ten. Churchwell also gave Toennies "a 7 or 8" on the same scale for performance. Overall, Churchwell's assessment was that Toennies was an above average engineer.

Toennies's evidence also includes a letter, dated February 11, 1994, from a coworker to Toennies's supervisor, John Olivo. It responds to Olivo's negative job review by stating: "Ralf Toennies is an outstanding E&I Engineer in his discipline. He is always co-operative and informative in dealing with this Design Group on all projects. Most important, Ralf is very supportive to this Group and has never said anything derogatory about this group." This letter of support was written shortly after the first of the negative performance reviews that Toennies claims were a pretext for age discrimination.

Also in the record are several emails sent to Toennies from coworkers during 1994, praising him for his work on projects during the period Quantum claims his work was unacceptable. One of these is a message dated December 6, 1994 (just two days before Toennies was fired), telling Toennies that "Your assistance enabled us to complete our data center relocation on schedule and under budget." Several more exhibits contain statements by Olivo, the supervisor who gave Toennies the bad reviews, which indicate that Toennies's work was good. For instance, a June 21, 1994 email from Olivo states that "This review by [Toennies] saved us about 30,000 dollars on pox alt fuels." Olivo's handwritten notations on other documents from February and March, around the time of the first bad employee evaluation, also compliment Toennies on his work.

This is more than a scintilla of evidence that Quantum regarded Toennies's job performance as satisfactory, which contradicts the company's argument that he was fired for poor performance. Proving the employer's stated reason for the firing is pretext is ordinarily sufficient to permit the trier of fact to find that the employer was actually motivated by discrimination. Reeves, 530 U.S. 133, ___; 120 S. Ct. at 2108-09; see also Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996) (when employer claimed it fired employee for violating policy against unexplained three-day absences, plaintiff's testimony that she was fired before expiration of the three days was some evidence of retaliation). In addition to the pretext evidence, Toennies submitted evidence that he was replaced by two considerably younger engineers, and statistical evidence that older Quantum engineers had a much higher rate of turnover than their younger counterparts. There is, therefore, legally sufficient evidence in support of Toennies's claim that Quantum was motivated by age discrimination when it fired him.

Conclusion

Section 21.125 of the Texas Commission on Human Rights Act requires an employment-discrimination plaintiff to show that discrimination was a motivating factor in an adverse employment decision. The act makes no distinction between pretext and mixed-motive cases. Because the federal courts are divided on how to apply the federal equivalent of this provision, we follow the statute's plain meaning. Accordingly, we affirm the judgment of the court of appeals and remand this cause to the trial court for further proceedings.

_________________________________

Thomas R. Phillips

Chief Justice

DELIVERED: March 8, 2001

1. Allen v. United States, 164 U.S. 492, 501 (1896) (approving supplemental instructions that jurors should "decide the case if they could conscientiously do so").

2. Federal law protects age and disability under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. Federal analysis of these types of employment discrimination claims is generally similar to the approach under Title VII.

3. The dissent suggests that Hayden v. County of Nassau, 180 F.3d 42, 53 (2nd Cir. 1999), overrules or limits Fields. We disagree. Hayden, like Landgraf before it, states that section 107 applies to mixed-motive discrimination claims, but it does not discuss its applicability to pretext cases. Id. Moreover, the section 107 discussion in Hayden is dicta, because the court itself states that "[t]he instant suit is entirely devoid of any Title VII claims." Id.

4. We note that a recent Fourth Circuit case also takes the view that the "motivating factor" standard applies to all Title VII claims. Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999). However, Baird is potentially distinguishable from the same circuit's earlier Fuller decision because Baird involves the standard of causation in the context of a defendant's motion for summary judgment based on a failure to state a claim. Baird, 192 F.3d at 466-67; see also Fed. R. Civ. P. 12(b)(6). When the evidence has not yet been fully developed at trial and it is not apparent whether the plaintiff's case is pretext or mixed-motive, the lower standard of causation is logically the proper one to apply in deciding whether the plaintiff has stated a claim for relief.

PROSECUTORIAL MISCONDUCT~SNAFU

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-0446-06

SHARAN ANN WILLIAMS, Appellant


v.


THE STATE OF TEXAS


ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

WICHITA COUNTY

Cochran, J., delivered the opinion of the Court in which, Price, Womack, Johnson, Keasler, Hervey and Holcomb, JJ., joined. Keller, P.J., filed a dissenting opinion in which Meyers, J., joined.

O P I N I O N

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. (1) The court of appeals erred in concluding that the State proved the criminal offense of reckless injury to a child when the evidence showed that appellant took her children from their grandmother's house (which had working utilities) to her boyfriend's temporary home (which did not have working utilities) and left them under her boyfriend's care with a lit candle in the bedroom. (2) The State's proof of these facts-proof beyond a reasonable doubt-did not establish a criminally culpable reckless state of mind. Further, the State did not prove that appellant's acts or omissions caused the death of her children. (3)

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 paid 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 (4) because Bowden did not want the girls to be left "in the dark." Bowden said that he and appellant "were sitting there talking and um, and uh, soon as we got through talking I took the candle and sat it over there in the corner at the edge of the bed. I sat it there." The candle was closer to the wall than the bed. After appellant left, Bowden checked on the girls who were asleep with the candle still lit. "I don't know why I didn't think to blow the candle out, I just didn't want them to be in the dark."

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." (5) He said he got down close to the floor, but he "could barely even see the bottom of the bed you know? And it was that much smoke in there." He could still hear the girls screaming, and he was "hollering, calling their names, but they wasn't responding like they heard my voice." He ran out of the front door, and "I went around to the side window and uh, knocked it out. But flames were coming out of it." When he could not get in the window, he ran around to the boarded-up exterior bedroom door and tried to pull it open, but again he could not get inside.

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 Harrill 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, 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. "Their 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 statement 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 Debbies 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 investigator, to believe that this fire was in any way 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 sleeping 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.

---

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." (6) Appellant was alleged to have committed the offenses by either (1) taking the girls from a house with working utilities to a building without them and leaving the children in a room with a lit candle, or (2) leaving them asleep in a building without utilities with a burning candle instead of taking them to a house with working utilities. These were the specific acts that the State relied upon to prove recklessness.

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. (7)

II.

In assessing the legal sufficiency of the evidence under Jackson v. Virginia, (8) "we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." (9) Under a legal sufficiency review, "our role is not to become a thirteenth juror. This Court may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder." (10) Thus, reviewing courts give deference to "'the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" (11)

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. (12) Injury to a child is a result-oriented offense requiring a mental state that relates not to the specific conduct but to the result of that conduct. (13) The State must prove that a defendant caused a child's serious bodily injury with the requisite criminal intent. (14) Under the Penal Code,

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 standard of care exercised by ordinary people. (16) Criminal negligence depends upon a morally blameworthy failure to appreciate a substantial and unjustifiable risk while recklessness depends upon a more serious moral blameworthiness-the actual disregard of a known substantial and unjustifiable risk.

At common law, "the word 'reckless' or 'recklessly' was commonly used in expressing the concept of criminal negligence." (17) However, Professor Perkins notes that, in most modern penal codes, the two concepts have been distinguished and separated:

"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[.]" (19) As has often been noted, "[m]ere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be," do not suffice to constitute either culpable negligence or criminal recklessness. (20) Recklessness requires the defendant to actually foresee the risk involved and to consciously decide to ignore it. (21) Such a "devil may care" or "not giving a damn" attitude toward the risk distinguishes the culpable mental state of criminal recklessness from that of criminal negligence, which assesses blame for the failure to foresee the risk that an objectively reasonable person would have foreseen. (22) "Those who are subjectively aware of a significant danger to life and choose, without justification, to engage in actions (or in some cases inactions) that threaten to bring about that danger have made a calculated decision to gamble with other people's lives." (23) This combination of an awareness of the magnitude of the risk (24) and the conscious disregard for consequences is crucial. "It is callous disregard of risk, and not awareness vel non of risk, however, which is critical." (25) And, of course, determining whether an act or omission involves a substantial and unjustifiable risk "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." (26)

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. (27)

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[.]" (28) The State cannot be permitted to submit its case to the jury unless it has offered a prima facie case of a defendant's actual, subjective "disregard of the risk of a resulting [injury] which. . . rise[s] to the level of a 'gross deviation' from an ordinary standard of conduct." (29) The incremental risk and mens rea that may transform mere civil negligence into criminal negligence and then possibly into criminal recklessness are, although elusive, substantive elements with unique burdens of production that must be satisfied as a matter of law.
Numerous Texas cases have addressed factual scenarios in which the jury could conclude that the defendant consciously disregarded a substantial and unjustified risk of serious injury to a child. These include holding a child's feet under extremely hot water, (30) ramming a parked car that had an 18-month-old child in it, (31) twisting and pulling a baby's leg, (32) letting a 350-pound lion, which was neither muzzled nor declawed, out of its cage at a flea market populated by children, (33) and speeding and running through stop signs with a child passenger. (34) These cases involved an actor committing a highly dangerous act whose substantial and unjustifiable risks were known to, (35) but disregarded by, the actor, and that act led directly to serious harm to a child. In other reckless injury cases, the defendant failed to perform an act that directly resulted in the injury. In one case the defendant was held to have recklessly caused bodily injury to her children by failing to report to the authorities that her boyfriend had violently kidnaped them. (36) In still other cases the actors have left a disabled victim lying in bleach for at least an hour; (37) neglected a child; (38) failed to immediately seek medical help for a lethargic child; (39)and left four-year-old twins unsupervised and wondering around an apartment complex. (40)

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[.]" (41) A person responsible for such "conscious risk creation" that results in serious bodily injury to a child 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 clearly insufficient." (42) The defendant's conduct must be a direct cause of the harm suffered although, as set out in section 6.04(a), it need not be the only cause; it may be a concurrent cause. (43)

In sum, in addressing the culpable mental state of recklessness under section 6.03(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)


(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. (45) The court further held that she was criminally responsible because (1) the result would not have occurred but for her conduct, operating either alone or concurrently with Bowden's, and (2) while Bowden's concurrent cause was clearly sufficient to produce the result, appellant's conduct was not clearly insufficient. (46) The court of appeals found, in essence, that a rational trier of fact could conclude that

(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 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]." (49) She contends that there is legally insufficient evidence that she consciously disregarded a substantial or unjustifiable risk that her girls would suffer grievous harm. She states that she "had left Mr. Bowden to baby-sit while she was out during the evening and had no reason to suspect he was not trustworthy." (50) She also asserts that the evidence of causation was legally insufficient because her conduct, standing alone, was "clearly insufficient" to cause her children serious bodily injury.

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, outlets, 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 a 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 Bowden'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 the 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 conscious disregard of such a risk. (53) The importance of such warnings must be viewed in light of the likelihood of their occurrence and magnitude of the danger posed at the time the defendant acted, not in post-event hindsight.

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. (54) Thus, even if the State proved beyond all possible doubt that appellant did take her children from a house with working utilities to one without, that fact cannot, either by itself or in combination with other acts, support a finding of criminal recklessness under these circumstances. (55)

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. (56) This is an act that, by its nature and depending upon the circumstances, could support a finding of recklessness-the conscious disregard of a substantial and unjustifiable risk of injury. Were there such circumstances shown in this case? The court of appeals correctly stated, "It was undisputed that Appellant did not leave the girls alone to sleep in the room with the candle burning but left them awake with Bowden in the room to care for them, and there was evidence that he was trustworthy to care for the children." (57) In fact, there was absolutely no evidence that Bowden was an incompetent or uncaring babysitter. All of the evidence indicated that, in fact, he was a considerably more responsible caretaker than appellant herself. (58) It is, as appellant asserts, "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." (59) There is nothing in the record to support this supposition that Bowden did not know what to do with a lit candle. Blowing out a candle is not rocket science. And there is nothing in the record to suggest that Bowden could not handle the task or did not care enough to handle it. Quite the reverse. In hindsight, Bowden expressed great remorse and regret that he did not blow out the candle when he went back in to check on the sleeping girls. He had left it burning so that the girls would not be in the dark. In hindsight, this was obviously an unwise decision; even at the time this was, perhaps, an unwise decision, but it does not prove he was an incompetent caretaker or that appellant was actually aware that he was an incompetent caretaker. A parade of State's witnesses had nothing bad to say about Bowden and much that showed his conscientious character. (60) There is simply no evidence to suggest that Bowden, the "Johnny-on-the-Spot" babysitter, was in any way incompetent. But the oddity of this case-the fact that appellant left the children in the care of Bowden, who was not shown to be an unsuitable caregiver-makes it one of a kind. (61) That difference takes this case out of the norm of reported fatal neglect cases. (62) On this record, we cannot agree that appellant's leaving her children with Bowden in a room with a lit candle represents a gross deviation from the standard of conduct that a law-abiding person in appellant's situation would observe. The Texas Supreme Court has enunciated an appropriate standard for civil cases involving reckless conduct which, applied here, asks: "viewed objectively" from appellant's viewpoint, did her act or omission "involve an extreme degree of risk, considering the probability and magnitude of the potential harm" to her two daughters? (63) The acts that the State alleged and proved do not meet that threshold. This factual situation-leaving Ujeana and Precious, 7-and 8-year-old girls, in bed with a lit candle upright in a metal pan with Bowden nearby watching over the girls-is not one so inherently fraught with danger as to create, in the mind of the objectively reasonable person, the awareness of a substantial and unjustifiable risk of serious bodily injury. If appellant's conduct would not suffice to raise a jury issue for imposition of punitive damages in a civil case, it is hardly sufficient to raise a jury issue for a criminal conviction.

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 clearly insufficient." (64) The court of appeals held 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. (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 Bowden'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. (66) Criminal liability is predicated on "but-for" causation, and appellant's acts are not a "but-for" cause of her girls' death unless that result is within the scope of the risk of which she was aware. (67) Such would be the case if the intervening cause was reasonably foreseeable on her part. But it was not. Bowden's act of falling asleep without blowing out the candle was not reasonably foreseeable to appellant at the time she left. It was not reasonably foreseeable that Bowden would move the candle. Nor was it foreseeable that a sheet or clothing would then fall on the burning candle, or that Bowden would not be able to get the children out of the house after a fire started. For the same reason that leaving the children with Bowden did not represent a gross deviation from the standard of conduct that a law-abiding person in the appellant's situation would observe, appellant's acts are not a "but-for" cause of the result in this case: there is nothing to suggest that Bowden was an incompetent caretaker or that appellant, had she been there, would have prevented this tragedy.

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[.]" (68) Further, the severity of the risk must be measured from the defendant's viewpoint at the time of the act or omission. As the supreme court explained in Moriel,

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." (70) Here, as in Moriel, the task in evaluating legal sufficiency of the evidence to support a finding of "gross negligence" for civil lawsuit purposes (or "recklessness" for criminal liability) is to "determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." (71) Appellant cannot be liable for a reckless injury to her children unless she was actually aware, at the time she left, of a genuine and unjustifiable likelihood of serious harm to her children from leaving a lit candle in the bedroom while her children were under Bowden's care. (72) Here, as in Moriel, the evidence does not support (1) the inference that appellant had any subjective awareness that her children would probably suffer serious bodily injury because of the lit candle in the bedroom while under Bowden's care, or (2) the inference that appellant's action of leaving the children under Bowden's care with the lit candle in the bedroom created a risk of serious harm to those children. (73) Appellant's mother's warning was too general and unfocused to suffice to raise a jury issue on either of these prongs. (74) Here, as in Jones, Riggs, Owens, and McLaughlin, (75) the warnings given were too general and unfocused to establish that (1) the mother was subjectively aware of the risk of a deadly accident, and (2) her actions created a severe risk that such an accident would occur.

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." (76) This underscores what appellant maintains: "under the State's theory, presumably appellant would have no culpability [and hence no criminal liability] for the girls' deaths if they had perished in a fire from a lit candle in . . . [a] building with working utilities." (77)

Almost one third of the world lives, day in and day out, without electricity. (79) Are all of those parents who live without electricity but who could send their children off to someone else-another relative, a friend, nurses at an orphanage-who does have electricity criminally liable when they do not do so and an accidental fire causes their children's death? Viewed in a different light, what makes this scenario distinguishable from a family's camping venture in which the cabin is lit only by firelight or candles and one parent leaves to go fishing while the other supervises the sleeping children? Is the departing parent criminally reckless in leaving the other parent with the children in a cabin with a roaring fire or a flickering candle?

There appear to be no reported cases in Texas (or any other state) of criminal prosecutions 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. (80) Nor can we find any case in which the mere fact that either a parent or a babysitter cares for children in an abode without electricity is, by virtue of that lack of modern utilities, criminally reckless when an accident causes a fatal fire. (81)

As the court of appeals noted in this case, criminal prosecutions for tragic accidents are inherently troubling. (82) They are also rare. (83)

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[,]" (84) the specific acts alleged and proven by the State in this case do not support a finding of such gross negligence amounting to recklessness on appellant's part. In the vast majority of cases, the issue of whether the evidence supports a finding of culpable recklessness is a question for the jury. But on occasion it becomes a question of law. (85) If the acts themselves do not pose a "substantial or unjustifiable risk" that the harm will occur, or if that "extreme degree of risk" was not actually foreseen by the defendant, or if the defendant's conduct was clearly not sufficient, by itself, to result in the injury but the conduct of another was clearly sufficient, then the evidence is not legally sufficient to submit the case to a jury or to sustain a conviction. We do not sit as a "thirteenth juror" and disagree with the jury's finding that the appellant did the very acts that the State alleged she committed. The jury followed the law as it was given to them. But the State's allegations of the purportedly reckless acts committed by appellant are simply not acts that, viewed objectively under these particular circumstances, involved "an extreme degree of risk, considering the probability and magnitude of the potential harm to others." (86) Appellant may have been a "bad" mother, unworthy of her mother, her children, and her boyfriend, but she did not commit the crime of reckless injury to a child merely because she took her children from a house with utilities to one without utilities, and left them, under the care of a responsible adult, with a lit candle in the bedroom.

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.


Delivered: October 3, 2007

Publish

1. 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."

2.
Williams v. State, 190 S.W.3d 700 (Tex. App.-Fort Worth 2005).

3. 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.

4. 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.

5.
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.

6.
Bowden v. State, 166 S.W.3d 466, 470 (Tex. App.-- Fort Worth 2005, pet. ref'd).

7.
Williams, 190 S.W.3d at 714.

8. 443 U.S. 307 (1979).

9.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).

10.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

11.
Hooper v. State, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 318-19).

12.
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").

13.
Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985).

14.
See Cook v. State, 884 S.W.2d 485, 490-92 (Tex. Crim. App. 1994).

15. Tex. Penal Code § 6.03(c).

16. Tex. Penal Code § 6.03(d).
See also Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 20 (Tex. 1994). In Moriel, the Texas Supreme Court discussed the legal standard for proving entitlement to punitive damages for "gross negligence" and noted,

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.

17. Rollin M. Perkins and Ronald N. Boyce, Criminal Law 849 (3
rd 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.

18.
Id. at 850; see generally Pagotto v. State, 732 A.2d 920 (Md. Ct. Spec. App. 1999) (discussing and distinguishing the varying degrees of civil and criminal negligence; evidence legally insufficient to establish defendant's "gross negligence"); see also People v. Rodriguez, 8 Cal. Rptr. 863, 867 (Cal. Ct. App. 1960) ("in order to impose criminal liability for a homicide caused by negligence, there must be a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless"; evidence legally insufficient to establish gross negligence or recklessness) (quotations and citations omitted).

19.
Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975).

20.
People v. Carlson, 26 N.Y.S.2d 1003, 1005 (N.Y. County Ct. 1941).

21. Criminal recklessness is of "a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of [a conscious] indifference to consequences; or which shows such wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them."
Cannon v. State, 107 So. 360, 363 (Fla. 1926) (quoting Florida South. Ry. Co. v. Hirst, 11 So. 506 (Fla. 1892) (applying definition used by civil courts to award punitive damages as the measure of gross negligence for criminal manslaughter charges)).

22. 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.").

23. James Gobert,
Searching for Coherence in the Law of Involuntary Manslaughter: The English Experience, 6 Crim. L.F. 435, 454 (1995).

24. In
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994), the Texas Supreme Court held that the evidence was legally insufficient to support a jury verdict that the defendant had been grossly negligent for purposes of the imposition of punitive damages and explained,

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 . . . . [T]he "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, 107 So. at 363 (citing 29 C. J. 1154; 1 Bishop on Crim. Law (9th ed.) 216, 314.); see also State v. Riggs, 2 S.W.3d 867, 871 (Mo. App. 1999) ("All of the authorities are agreed that, in order to hold one a criminal, there must be a higher degree of negligence than is required to establish negligent default on a mere civil issue") (internal quotations and citation omitted); Oregon v. McLaughlin, 600 P.2d 474, 477 (Or. Ct. App. 1979) ("[W]e do not believe that the legislature intended thereby to permit a lesser quantum of proof to go to the jury in a criminal case than would be permitted in a civil case involving gross negligence.").

25. Gobert,
supra note 23 at 461.

26.
Moriel, 879 S.W.2d at 23; see also State v. Jones 151 S.W.3d 494, 499 (Tenn. Crim. App. 2004) (when assessing the legal sufficiency of evidence to prove criminal negligence, "we must view the circumstances 'from the accused person's standpoint'") (citation omitted); State v. Owens, 820 S.W.2d 757, 760-61 (Tenn. Crim. App. 1991) (legally insufficient evidence to prove criminal gross negligence; "It is not sufficient to say, with 20/20 hindsight, that the appellant could have, or should have, done some things differently. To affirm this conviction we must view the circumstances under which the appellant acted and find she failed to perceive that her conduct presented an unjustifiable risk to her child. The failure to perceive the risk must be a gross deviation from the standard of care than an ordinary person would exercise under the circumstances.").

27.
People v. Sikes, 159 N.E. 293, 297 (Ill. 1927); see also State v. Jones, 151 S.W.3d at 502 (stating that "ordinary negligence or inattention on the part of a mother does not rise to the level of gross negligence, even if the mother's conduct contributes to the death of her child"); State v. Riggs, 2 S.W.3d at 871 (evidence was legally insufficient to support mother's conviction for involuntary manslaughter involving the death of her child; stating that "mere inattention or mistaken judgment resulting even in the death of another is not criminal unless the quality of the act makes it so") (internal quotations and citation omitted).

28.
Pagotto v. State, 732 A.2d 920, 924-25 (Md. Ct. Spec. App. 1999) (holding that evidence was legally insufficient to support finding of defendant's "gross negligence" in involuntary manslaughter trial; trial court should have granted motion for directed verdict).

29.
Crume v. State, 658 S.W.2d 607, 609 (Tex. Crim. App. 1983).

30.
Lee v. State, 21 S.W.3d 532 (Tex. App.-Tyler 2000, pet. ref'd) ("reckless" to hold child's feet stable under hot, running water for 30 to 45 seconds).

31.
Cleburn v. State, 138 S.W.3d 542, 545 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) ("a rational trier of fact could have found appellant to have been aware of, but have consciously disregarded, the substantial risk that using his vehicle, a large pick-up truck, to move George's small Toyota Tercel with a visible car seat and two adult occupants would result in bodily injury to anyone in George's vehicle, including a child").

32.
Torres v. State, 116 S.W.3d 208, 210 (Tex. App.-Corpus Christi 2003, no pet.) (defendant acted recklessly when he grabbed and twisted infant's leg in anger while changing his diaper).

33.
Durkovitz v. State, 771 S.W.2d 12, 14-15 (Tex. App.-San Antonio 1989, no pet.) (rejecting claim that evidence was insufficient to prove recklessness and listing eighteen pieces of evidence that supported jury's determination, including "1) that a 350 pound grown lion is a dangerous beast; 2) that appellant is an experienced animal trainer who knew the dangers presented by such a beast; 3) that appellant was aware that the lion had injured two other children before this incident; 4) that appellant knew that such a beast is instinctively attracted to attack smaller creatures, such as children;" etc.).

34.
LaSalle v. State, 973 S.W.2d 467, 474 (Tex. App.-Beaumont 1998, pet. ref'd) (defendant who drove car at 50 m.p.h in a 35 m.p.h. zone and ran through numerous stop signs resulting in a collision that injured his child passenger was reckless).

35.
Compare Whitmire v. State, 913 S.W.2d 738, 740 (Tex. App.-Eastland 1996, pet. dism'd) (evidence legally insufficient to support conviction for reckless injury to a child when evidence did not show that appellant, who admittedly was intoxicated and drove recklessly, knew that there was a child in car that he accidentally ran into).

36.
Patterson v. State, 46 S.W.3d 294, 303-04 (Tex. App.-Fort Worth 2001, pet. ref'd) (defendant recklessly caused serious bodily injury by failing to call 911 and identify her boyfriend as the violent kidnapper of her children; a "reasonable juror could have found that the ability of law enforcement authorities to immediately respond and restrict access to the city with minimal resources in approximately seven minutes would have enabled them to intercept Woods before reaching the cemetery road and prevented serious bodily injury to the children").

37.
Kennerly v. State, 40 S.W.3d 718, 721 (Tex. App.-Waco 2001, no pet.) (defendant caretaker at group home for disabled was reckless in leaving mentally and physically disabled woman lying for a minimum of an hour in Clorox that defendant had poured in the hallway; defendant knew Clorox was a hazardous material because she wore gloves when handling it ).

38.
Ahearn v. State, 588 S.W.2d 327, 337 (Tex. Crim. App. 1979) (parents recklessly failed to provide adequate food or medical care to their obviously emaciated four-month-old child;

"When it became obvious that the child was losing weight and was in such a physical condition and when the wounds became evident, appellants had a duty to seek medical care. The result of their failure to do so no doubt caused a continuing decline in the baby's condition such that the jury was able to find that appellants acted at least reckless[ly] or with criminal negligence.").

39.
Payton v. State, 106 S.W.3d 326, 330 (Tex. App.- Fort Worth 2003, pet. ref'd) (defendant recklessly caused child's injury when he failed to obtain reasonable medical care of his grandson; "Based on the facts that appellant delayed seeking medical treatment for T.P. when the medical evidence showed that T.P. had visible signs of distress, [defendant] had emergency medical training, and [doctor] stated that it was possible that T.P. would have survived if he had received medical care shortly after the injury occurred, the jury could have found that appellant acted recklessly and grossly deviated from the standard of care that an ordinary person would have exercised under all the circumstances as viewed from his standpoint.").

40.
Prescott v. State, 123 S.W.3d 506, 510 (Tex. App.-San Antonio 2003, no pet.) (mother reckless for failing to guard against drowning death of one of her four-year-old twins; "The testimony of witnesses who, on numerous previous occasions, saw the girls wandering around the apartment complex unsupervised [and returned them to their mother] is legally sufficient evidence of recklessness.").

41. American Law Institute, Model Penal Code § 2.02, Comment 3, at 236.

42.
Tex. Penal Code § 6.04(a) (Causation: Conduct and Results).

43.
See generally, Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986).

44.
Moriel, 879 S.W.2d at 23; see also Plummer v. State, 702 A.2d 453, 458 (Md. Ct. Spec. App. 1997) (evidence legally insufficient to support automobile manslaughter conviction; "Only conduct that is of extraordinary or outrageous character will be sufficient to imply" grossly negligent state of mind); State v. Jones, 151 S.W.3d 494, 501 (Tenn. Crim. App. 2004) ("Tennessee courts have sustained convictions for criminally negligent homicide only where the 'risk is of such a nature and degree that injury or death is likely and foreseeable.'") (citation omitted).

45.
Williams, 190 S.W.3d at 714.

46.
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.

47.
Williams, 190 S.W.3d at 714.

48.
Id. at 713-14.

49. Appellant's Brief at 6;
see Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) ("Under the Jackson test, we permit juries to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. . . . [A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.") (footnote omitted).

50. Appellant's Brief at 6.

51.
Id. (citation omitted).

52.
Williams, 190 S.W.3d at 716.

53.
State v. Jones, 151 S.W.3d 494, 497-501 (Tenn. 2004) (finding legally insufficient evidence to support mother's conviction for criminally negligent homicide of her two-year-old child who died when passenger-side air bag deployed and broke child's neck after collision even though the State showed (1) the mother had been verbally warned about child restraint law by hospital administrator and was given a written pamphlet on car seat safety that stated, "never hold a child in your lap while riding in either the front or back seat" and "be consistent! Always buckle your child in the safety seat," (2) the rental car visor and seat belt contained explicit warnings that "Children 12 and under can be killed by the air bag" and "ALWAYS use SEAT BELTS and CHILD RESTRAINTS," and (3) "during the year prior to the accident, assorted public service announcements in print and television were circulated regarding the importance of using child restraint seats"; although the defendant's "failure to heed these warnings and to perceive the danger posed by sitting with her child on her lap in front of an air bag may have been negligent, our cases illustrate that it simply does not rise to the level of gross negligence necessary to uphold a conviction for criminally negligent homicide") (citation omitted) ; State v. Riggs, 2 S.W.3d 867, 868, 872, 875 (Mo. Ct. App. 1999) (evidence legally insufficient to support defendant's conviction for involuntary manslaughter for the drowning death of her two-year-old son; although landlord had warned defendant not to let her children go beyond the last mobile home in the park because "there was an open basement and an unfenced duck pond located about 80 feet from that last trailer," defendant's conduct of being "inert, inactive, and languishing in front of a movie" for 45 minutes while her children played outside "did not manifest a conscious disregard of a risk of death to her child." The court noted that defendant's "conduct included nothing intentional. She did not commit overt acts that would blatantly harm a child. Her omission to watch her children on the steps of her home for a forty-five minute period did not make it substantially certain that her two-year-old son would wander to his death. The pond was 628 feet away from her home with more than 8 homes between [defendant's] home and the pond."); State v. Owens, 820 S.W.2d 757, 760-61 (Tenn Crim. App. 1991) (finding legally insufficient evidence to support mother's conviction for criminally negligent homicide of her eleven-month-old daughter who died of bronchitis and pneumonia; (1) defendant's primary care physician had warned her that taking her disabled daughter into public places would expose her to a great risk of infection and the mother regularly took daughter out with her, and (2) the State "presented several other witnesses who related incidents in which the care the appellant gave to [her daughter] did not conform to the instructions given by the doctors[,]" but these acts amounted to no more than "some carelessness and negligence," and did not rise to the level of gross negligence which requires proof of a gross deviation from the required standard of care); State v. McLaughlin, 600 P.2d 474, 475-77 (Or. Ct. App. 1979) (finding evidence legally insufficient to support defendant's conviction for child neglect in the death of her newborn baby who died when her husband hit the baby while babysitting him even though (1) father had a well-known violent temper and a history of assaulting their children and was, at the time of the baby's death, awaiting trial for assaulting their six-year-old daughter while babysitting her, and (2) State offered evidence that caseworker for Children's Services Division had warned the mother that a "'high risk situation' could exist if the daughters were around the husband and also after a new baby would come into the home"). In McLaughlin, the court stated that the case never should have been submitted to the jury on the issue of criminal negligence:

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 that any reasonable person would have done.

600 P.2d at 477.

54. 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.

55. 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.

56. 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.

190 S.W.3d at 714-15.

57.
Williams, 190 S.W.3d at 716.

58. 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 Bowden was staying at. Beatty was remodeling it and Bowden was helping him. Bowden also had started working at Bennigan'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 baby-sat 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).

59. Appellant's Brief at 6.

60.
See Williams, 190 S.W.3d at 714-15. For example, appellant's mother, Zula Mae Scott, agreed that the children liked to spend time with Mr. Bowden:

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.

****

Q Okay. Do you have any facts which would support a conclusion that he set out to hurt the children?

A No, I don't.

****

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.

****

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.

****

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.

****

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.

Q You could have gotten the girls and take them back to your place?

A Yes, ma'am.

****

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. Bowden. 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.

***

Q So there might be a period there, a few days, 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.

61. There was no evidence Bowden was drunk, "high," or otherwise incapacitated.
Contra Bohannon v. State, 498 S.E.2d 316, 320-23 (Ga. Ct. App. 1998) (sufficient evidence to support manslaughter conviction when defendant, while in a drunken state, took her infant "from the safety of a babysitter," and placed the baby in bed with her and the baby's father, who she knew was also intoxicated, and, in a drunken sleep, rolled on top of their child and asphyxiated her). And there was no evidence that appellant had any reason to suspect that Bowden was an unfit caretaker. See e.g., Rayzor v. United States, No. 96-2100, 1997 U.S. App. LEXIS 18194, *5-6 (1st Cir. July 22, 1997) (not designated for publication) (affirming the grant of Navy's motion for summary judgment against parents who sued on behalf of their daughter, who was allegedly abused by a babysitter whom the parents hired from a list of sitters recommended by the Navy; no evidence "that the Navy lacked due diligence in failing to investigate the individuals whose names appeared on the list. They cite to no incidents of child abuse involving Red Cross sitters generally, or concerning the specific individuals on the list at the base").

62.
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 reported 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).

63.
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994) (holding that evidence of defendant's allegedly "reckless" conduct was legally insufficient to support award of punitive damages in civil lawsuit).

64. Tex. Penal Code § 6.04(a).

65.
190 S.W.3d at 713-714.

66.
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 or 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").

67.
See, e.g., People v. Warner-Lambert Co., 414 N.E.2d 660 (N.Y. Sup. 1980). In Warner-Lambert, four corporate officials were indicted for second-degree manslaughter and negligent homicide. The defendants operated a chewing-gum factory and had been warned that dust build-up created a hazard of explosion. Sometime after the warning, but before the defendants had taken significant steps to remedy the situation, a spark ignited an explosion that killed six employees. The court of appeals dismissed the indictments before trial because the facts, as alleged, were insufficient to prove that the defendants' conduct caused the deaths. Although [the defendants] were aware that there was a broad, undifferentiated risk of an explosion in consequence of ambient magnesium stearate dust arising from the procedures employed in its manufacturing operations, the corporate and individual defendants may nonetheless not be held criminally liable, on the theory of either reckless or negligent conduct, for the deaths of employees occasioned when such an explosion occurred where the triggering cause thereof was neither foreseen nor foreseeable.

414 N.E.2d at 661.

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., 414 N.E.2d at 666 (distinguishing scenario in which the defendant had abandoned the victim on a roadway and the foreseeable chain of events that led to that victim's death; "We subscribe to the requirement that the defendants' actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability. Thus, [in the prior case] we were concerned for the nature of the chain of particularized events which in fact led to the victim's death; it was not enough that death had occurred as the result of the defendants' abandonment of their helpless victim.") (internal quotations omitted; citation omitted).

68.
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).

69.
Id. (footnote omitted).

70.
Id.

71.
Id. at 25.

72.
Id.

73.
Id.

74.
See, e.g., General Motors Corp. v. Sanchez, 997 S.W.2d 584, 596-97 (Tex. 1999) (car manufacturer's consumer warning concerning possibility that car "not fully in Park" could "move suddenly" and be dangerous did not allow an inference that G.M. consciously decided to downplay the "mis-shift danger" or "provide a reasonable basis upon which to infer conscious indifference"; legally insufficient evidence to support a finding of gross negligence for purposes of punitive damages).

75.
See note 53 supra.

76. State's Brief at 8-9, 15.

77.
Williams, 190 S.W.3d at 710. (78)

78. 100 Nw. U.L. Rev. at 854 ("Moreover, another reason we are so reluctant to prosecute in failure to supervise cases in particular is undoubtedly because these incidents are just as likely to occur in upper-and middle-income families as in poorer ones. If we are reluctant to view harms committed against children as criminal acts, we are even more reluctant to do so when the harmful act is committed in a home typically viewed positively by both society at large and the criminal justice system. 216 This bias in favor of homes and parents traditionally considered "good" is evident in a number of ways throughout the criminal justice system. For example, at the time of sentencing, "courts may assume that white middle-class mothers are both more amenable to nonjudicial social controls and more needed in the home by their children than other groups of mothers." 217 Indeed, the fact that so many of these [*854] cases involve the father as the responsible party is probably another factor in our hesitance to prosecute as well. We are far more forgiving of paternal mistakes in childrearing than maternal ones. 218




79.
See supra note 54.

80. 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).

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 took 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, 282 So. 2d 261, 265 (Ala. 1973) ("defendant under-took to supervise, watch and care for plaintiff. By undertaking to perform these services, defendant binds himself to the exercise of due care in their execution, irrespective of compensation"); Zalak v. Carroll, 205 N.E.2d 313, 313 (N.Y. 1965) ("Even without compensation, when defendants undertook to control a young child and provide care for her, they became responsible for her injury through their negligence.") (citations omitted); Whitney v. Southern Farm Bureau Casualty Ins. Co., 225 So. 2d 30, 33 (La. Ct. App. 1969) ("As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risks of harm").

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. R. Co. v. Schumilowsky, 8 Ill. App. 613 (1881), the court found a mother, who had left her child with a sitter while she went to the store, was at least culpably "negligent." The child, apparently under the care of his uncle, strayed out of the house and was sitting by the side of a railroad track when a train struck and killed him. Id. at 613. The mother sued the railway company for the child's death, but did not recover: "The proof shows, either that the mother left the child in the care of its uncle, or if not in his care, then in the care of no one, and it is immaterial which. If left in the uncle's care he gave it no attention, and permitted it to go at large; and this, under the circumstances, was culpable negligence. If the mother went away leaving the child in the care of no one, it was equal negligence on her part." Id. at 619. Here, the mother was held civilly negligent, not criminally reckless, in contributing to her son's death.

81.
See People v. Rodriguez, 186 Cal. App.2d 433, 438 (Cal. App. 1960) (evidence legally insufficient to support the defendant's conviction for manslaughter when she left her four small children alone at home for several hours, and an accidental fire of unknown origins burned her house down and caused the death of one of her children).

82.
Williams, 190 S.W.3d at 717 ("This is a troubling and tragic case. Poverty and having to 'do without' is not a crime, but Appellant had choices she chose to disregard."). One commentator has noted a "particularly important-and disturbing," trend in one empirical study: 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 Collins, 100 Nw. U.L. Rev. at 809. Professor Collins set out the results of an empirical study examining prosecutorial charging decisions over a six-year period in cases involving children who died of hyperthermia when left alone in motor vehicles and noted:

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 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 socioeconomic 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 Madla, 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, Madla, Grandchild Reunited in Death, San Antonio Express-News, Nov. 26, 2006, at 1B.( "Dozens of candles had been lit in the living room and in the backyard during the Madlas' Thanksgiving celebration and, although they had been blown out, they had likely caused the fire[.]"). Instead, Texas legislators responded by drafting the "Senator Frank Madla Act" requiring smoke detectors in homes. Gary Scharrer, Senate OKs Madla Act Unanimously, San Antonio Express-News, Apr. 27, 2007, at 11A.

83. Published opinions dealing with prosecutions for accidental fires are few and far between. In
People v. Albers, 672 N.W.2d 336 (Mich. Ct. App. 2003), a conviction of involuntary manslaughter based on a fire started by the defendant's six-year-old child was upheld. The child had found a cigarette lighter underneath a sofa cushion, jumped onto a kitchen counter and grabbed a candle from the top of the refrigerator, then took the candle and lighter to the defendant's bedroom and lit the candle. Id. at 338. Shortly thereafter, "the bedroom curtains caught fire, and the fire eventually spread throughout the apartment complex," killing a neighbor's baby. Id. The court held the evidence sufficient because the prosecution proved that: 1) the child was a known fire starter, 2) the defendant was aware of that fact and had been repeatedly warned to keep all flammable materials and incendiary devices (including cigarette lighters) out of the child's reach, and 3) that the defendant had refused to do so, stating that she was "'not going to live like that,' and '[her children] know better than to play with matches or lighters.'" Id. at 339.

84. Collins, 100 Nw. U.L. Rev. at 811.

85.
See Jones, 151 S.W.3d at 503 (evidence legally insufficient to support mother's conviction for criminally negligent homicide because her conduct did not constitute a gross deviation from the standard of care); Riggs, 2 S.W.3d at 875 (evidence legally insufficient to support mother's conviction for involuntary manslaughter because facts and circumstances were not sufficient to establish gross negligence or show a conscious disregard for human life); Owens, 820 S.W.2d at 760-61 (evidence legally insufficient to support mother's conviction for criminally negligent homicide because her carelessness and negligence did not rise to the level of gross negligence); McLaughlin, 600 P.2d at 477 (evidence legally insufficient to support mother's conviction for child neglect because the "evidence was not sufficient to permit a finding that the mother failed to recognize the degree of risk that any reasonable person would have done"); see also People v. Angelo, 159 N.E. 394, 396 (N.Y. 1927) ("Under a given state of facts, whether negligence is culpable is a question of judgment. Ordinarily for the judgment of the jury, as is the question whether negligence exists at all. But in the one case as in the other it may become a question of law. If the negligence is so slight as not to reach the required standard the court should advise an acquittal of the accused."); People v. Rodriguez, 8 Cal. Rptr. 863, 869 (Cal. App. 1960) (evidence legally insufficient to support manslaughter conviction when "[t]here was no evidence from which it can be inferred that defendant realized her conduct would in all probability produce death. There was no evidence as to the cause of the fire, as to how or where it started. There was no evidence connecting defendant in any way with the fire. There was no evidence that defendant could reasonably have foreseen there was a probability that fire would ignite in the house and that Carlos would be burned to death. The most that can be said is that defendant may have been negligent; but mere negligence is not sufficient to authorize a conviction of involuntary manslaughter."); Pagatto v. State, 732 A.2d 920, 925, 969 (Md. Ct. Spec. App. 1999) ("In a case charging involuntary manslaughter of the gross negligence variety, as we graduate upward, the State will not be permitted to take its case to the jury simply by proving a prima facie case of ordinary negligence. It must meet an additional and higher burden of production by showing such gross negligence, above and beyond mere civil negligence, as to evidence 'a wanton or reckless disregard for human life.' There are a number of cases where ordinary negligence has been established or assumed but where the evidence was nonetheless held, as a matter of law, to have been legally insufficient to have permitted the jury even to consider a manslaughter verdict based on gross criminal negligence. . . . We hold that the evidence was not legally sufficient to permit a finding of gross criminal negligence on the part of the appellant and that the charge of manslaughter, therefore, should not have been submitted to the jury. . . . Alternatively, we hold that the evidence was not legally sufficient to permit a finding that any action of the appellant, even if assumed to have been grossly negligent, was the proximate cause of the decedent's death and that the charge of manslaughter, therefore, should not have been submitted to the jury.").

86.
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).