Opinion
No. 05-09-00242-CR
Opinion Filed July 13, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F-07-01278-M.
Before Justices RICHTER, LANG-MIERS, and MYERS.
OPINION
Appellant Razak Bahed Albakhtari was convicted of the offense of endangering a child. On appeal he challenges the factual sufficiency of the evidence to support his conviction. We affirm.
Background
Appellant was indicted for endangering a child after his five-year-old son, Ali, drowned near a dam at Jennifer McFalls Park in Grand Prairie, Texas (the Park). He pleaded not guilty and his case was tried to a jury. The evidence in this case included an aerial photograph of the Park, video of the Park taken by news station helicopters and ground cameras during the search for Ali, and photographs of the dam taken after Ali died. The Park includes several open fields, a pavilion with picnic tables, and a playground. Water runs west to east through the middle of the Park. Water flows into the park from two creeks that merge together near a cement dam in the Park running north and south. The dam is several yards wide, and low enough to walk across. On the west side of the dam is a small pond formed by damming the water flowing from the two creeks. Several feet underwater on the west side of the dam is a large drainage pipe that allows water to flow from the pond into a single creek on the east side of the dam. The surface of the pond appears calm, but the drainage pipe in the dam's wall creates a suction effect below the surface of the pond, and the water running out of the east side of the dam is moving very fast. It is undisputed that on the afternoon of June 21, 2007, appellant drove his six children, ages three to twelve, to the Park in the family's van. It is also undisputed that while the family was at the Park, Ali fell into the pond on the west side of the dam, and his body was later recovered by a dive team on the east side of the dam after another rescue worker moved some debris near the pond's underwater drainage pipe. Three witnesses who were at the Park that afternoon testified that they saw appellant's children playing on the dam by themselves. Jacquelyn Wofford testified that she was at the Park with her fiancé, Russell Hammond. When they arrived at the Park and parked their car, she noticed a man sitting in the driver's seat of a burgundy van with the seat reclined. Wofford and Hammond got out of their car and were walking towards the pavilion when they saw five children near the dam. After they arrived at the pavilion, they watched the children on the dam playing in the water and wondered why they were unsupervised. Wofford thought the man in the van might be the children's father. After watching the children for about an hour to an hour and a half, Wofford went to the restroom. When she came out, she saw appellant coming out of the restroom. He was walking towards the children and appeared to be gathering them up to leave when one of the children ran up to Wofford and Hammond and asked them if they had seen his little brother. They said no and got up to help. Wofford saw appellant and asked him to call 911. Wofford could not understand appellant's response, so she used someone else's cell phone to call 911. While she was talking to the 911 operator, she saw appellant pulling his daughter's hair and appearing to accuse her of something, "like it was her fault." On cross-examination Wofford acknowledged that she could not see everything in the Park from the pavilion, and that the ground slopes down towards the water. Hammond testified that when he and Wofford arrived at the Park he saw a man sitting in a red van or truck. He and Wofford went to the pavilion and were talking and watching children who were on the dam playing in the water. At the time he was thinking that it "was a pretty dangerous situation." He looked around the Park to see if he could see an adult with them, but he did not see one. An hour and a half or two hours later, the children came up to the couple and asked them if they had seen their brother. They got up and looked around the dam with the children. They saw appellant and asked him to call the police, but they could not understand his response so Wofford used someone else's cell phone and called 911. While she was on the phone, appellant was frantic and was looking for the missing child and yelling at his other children. Jean Meyer testified that she was in the parking lot of the Park with her 11-year-old second cousin when they saw children playing on the dam. Meyer noticed that there was "not an adult anywhere," and commented that "it wasn't a good place for them to be." Less than twenty minutes later, when she started to leave, she saw a man talking on a cell phone walking briskly towards the children on the dam. A police officer and two firefighters who responded to the 911 call testified for the State. Police Officer Oscar Garcia testified that shortly after he arrived at the Park, he approached appellant. Appellant looked worried and was yelling at his children in Arabic. Garcia asked appellant's daughter what appellant was saying and she told him, "He is blaming me for not taking care of my brother." Appellant was primarily concerned that his missing son fell in the spillway, but was also searching for his son in different areas of the Park including the bathroom and around the playground. Garcia testified that appellant had care, custody, and control of appellant's children that day. On cross-examination, Garcia was asked, whether he was "aware of the Middle Eastern custom in which the oldest daughter is responsible for her brothers and sisters," and he answered yes. Garcia also acknowledged that there were a few trees directly between the pavilion and the dam, and that if someone was sitting in the area near the dam that slopes down, it might not be possible to see that person from the pavilion area. Fire Lieutenant Chad Whitney testified that when he arrived at the Park, he walked onto the dam and saw two children and some bystanders. Whitney asked the children what was going on, and they told him their brother was missing and that they were standing on the dam because that is where they had been playing. There were no adults on the dam, and Whitney could not see an adult with the children. Whitney asked the children where their parents were, and one of them went and got appellant. Whitney asked appellant what was going on, but appellant spoke very little English, so Whitney relied on appellant's children in order to communicate with appellant. Whitney asked appellant and his children when they last saw Ali, and where Ali was before he disappeared, but none of them could give him a definite answer. Mark Johnson of the Grand Prairie Fire Department's dive rescue team was one of the five or six divers who responded to the scene. He testified about the dangerous conditions around the dam, and the rescue efforts that led to the discovery of Ali's body. Vicki Weichern, a social worker at Arlington Memorial Hospital, testified about her discussion with appellant after he and Ali arrived at the hospital by ambulance. Weichern talked to appellant for an hour to an hour and a half. Appellant was upset and hesitant to respond to questions. During their discussion, appellant told Weichern three different stories about what happened at the park:The first story was that he and the child that came to the emergency room had gone to the creek with the other children. Then he told me that the child had gone to the creek with the other children. And then he told me that he had gone back to the table where he was sitting and the child had been left at the creek with his siblings.Appellant eventually settled on the third version, "That he had gone to the creek to wash his hands and had gone back to the table and the child had stayed at the creek with his siblings." On cross-examination, Weichern acknowledged that when she was asked by the State to identify appellant in the courtroom, she identified an interpreter instead. She also acknowledged that (1) the interpreter who assisted her at the hospital was not a certified interpreter; (2) she did not know which Arabic dialect the interpreter at the hospital spoke; (3) she did not ask appellant detailed questions about where he was in relation to his children during the entire time they were at the Park; and (4) the Middle Eastern custom regarding "men speaking to women who are not their wives" could have been the reason that appellant was reluctant to talk to her. Lloyd White, M.D., the pathologist who performed the autopsy on Ali, testified that Ali's death "was ruled an accident." He also explained to the jury that "accident" is a term of art used by medical examiners to mean "a sudden unexpected event without human intentional intervention," and contrasted it to homicide. He also explained,
The manner of death refers to the circumstances. And this is something that is really a matter of vital statistics. The categories we use are not clearly defined or well defined. They are used purely by health statisticians[.] [W]hether or not there is any kind of culpable negligence involved or criminality involved is a determination that is made in other parts of the court system.Detective Allen Frizzell, who investigated the circumstances surrounding Ali's death, testified that Ali was in appellant's "care, custody, and control" when he died. He also testified as follows concerning the scene at the Park:
Q. Now, if [appellant], based on your investigation, if he had been sitting in that van, leaning back, talking on a cell phone, and his kids had been playing on the dam, 430 feet away, would he have been able to supervise them adequately?
A. No, he would not.
Q. Would he have even been able to see them?
A. No.
Q. Based upon your investigation of the conditions that day on June 21st, 2007, would allowing a five-year-old to play on a dam there in Jennifer McFalls Park place them in imminent danger of death, bodily injury, physical and mental impairment?
A. Yes, it would.
On cross-examination, Frizzell acknowledged that, after Ali's death, a fence was erected around the dam, along with signs that read "KEEP OFF DAM."
Appellant testified that he was born in Iraq, but fled on foot to Saudi Arabia in 1991 after Saddam Hussein attacked the shi'ites and forced them to evacuate. He met his wife in a Saudi refugee camp. They married in 1995 and had six children. They moved to Arlington in 2000, where he has been employed as a security guard. On the day Ali died, he took his children to the Park and went with them to the creek. The children played in different places but were close to him. The water was low and he "[d]idn't see any danger." He realized Ali was missing when he saw only five children. He looked for Ali all over the Park and was very emotional. When he and Ali arrived at the hospital, he was very upset. He was not prepared to answer questions and does not remember speaking to the social worker. On cross-examination he acknowledged that it was his responsibility to supervise his children that day.
Appellant's daughter, Hora, was nine years old when Ali died. She was called as a witness by the State. She testified that when her family arrived at the Park, her brothers went to play near the water, so she and her dad went to watch them. In response to questions from the State, she denied telling anyone that appellant stayed in the van, or that she first saw appellant later after she washed her hands. The State then played two short excerpts from State's Exhibit 57, a videotape interview of Hora. In those excerpts, Hora told the interviewer that when her family arrived at the Park, she and her brothers got out of the van and appellant stayed in the van. She also told the interviewer that she saw appellant later, after she washed her hands, and that appellant asked her where Ali was. After that video was played, Hora essentially testified that she was wrong in her interview because she "didn't know the right words to say." She testified that she played on the dam with her brothers while her dad sat on the ground next to the water. She testified that when she discovered that Ali was missing, she told her brothers and appellant, and everyone separated to look for Ali. Hora testified that appellant first went to the van to look for Ali. Hora testified that appellant was upset that Ali was missing, but Hora denied that appellant pulled her hair.
Two of appellant's sons were called as witnesses by the defense. Raza was ten years old when Ali died. Raza testified that when his family arrived at the Park, appellant went to the creek with the children and did not stay in the van. Raza was asked, "Now, when you went and played along the water, where was your dad?", and Raza answered, "Right behind us." He testified that appellant was sitting on concrete near the dam the entire time the children were on the dam. During cross-examination by the State, Raza testified that appellant watched Ali ride a skateboard on the dam next to the rushing water, and then the following exchange occurred:
Q. Okay. What about when Ali fell in the water . . . [d]id your dad say, hey, we got to get Ali out of the water?
A. We never saw him when he fell.
Q. But he was sitting right there watching wasn't he?
A. I don't remember.
The State also asked Raza, "It's a dangerous park, isn't it?", and Raza answered, "Yes," and then added, "We never know what is danger, they never put a sign dangerous, we never know."
Appellant's oldest son, Monty, testified that he was twelve years old when Ali died. Monty testified that he remembers going to the Park with his family on the day Ali died. Monty testified that appellant was sitting near the water while the children were playing. During Monty's cross-examination by the State, the following exchange occurred:
Q. Your dad wasn't there next to the dam when Ali was playing on the skateboard, was he?
A. I think, I don't know, I don't remember.
Q. Okay. You don't know if he was sitting next to the dam or if he was down by the creek, do you?
A. No.
Q. You don't know if he was in the restroom, do you?
A. No.
Q. You don't know if he was in the van, do you?
A. No.
Q. He could have been anywhere, right?
A. Yeah.
Q. That's when Ali was on the dam riding the skateboard, right?
A. Yeah.The jury found appellant guilty of the offense of endangering a child as charged in the indictment, assessed punishment at two years' confinement in state jail, and recommended that the sentence be suspended and that appellant be placed on community supervision. Based upon the jury's verdict, the trial court sentenced appellant to two years' confinement in state jail, suspended the sentence, and placed appellant on community supervision for four years.
Analysis
Appellant argues that the evidence is factually insufficient to support his conviction because the evidence does not support a finding that he acted with one of the culpable mental states required for the offense of endangering a child. In a factual sufficiency review, we consider all of the evidence in a neutral light. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We can set aside the jury's verdict only if (1) the evidence supporting the conviction is too weak to support the verdict or, (2) considering conflicting evidence, the verdict is against the great weight and preponderance of the evidence. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the jury's determinations concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705-07 (Tex. Crim. App. 2008). We measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Wooley v. State, 273 S.W.3d 260, 268 (Tex. Crim. App. 2008). Based on the indictment in this case, the State was required to prove beyond a reasonable doubt that appellant "intentionally, knowingly, recklessly, or with criminal negligence, by act or omission," engaged in conduct that placed Ali "in imminent danger of death, bodily injury, or physical or mental impairment." See Tex. Penal Code Ann. § 22.041(c) (Vernon Supp. 2009). The penal code defines the culpable mental state of "criminal negligence" as follows:A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.Tex. Penal Code Ann. § 6.03(d) (Vernon 2003). In conducting a factual-sufficiency review, we consider the evidence that appellant contends most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Appellant argues that the evidence is factually insufficient because (1) he and his children all testified that appellant was with his children while they played near the dam, (2) "Wofford and Hammond both acknowledged that because of the angle of where they were seated vis-´-vis the dam, an adult could have been seated at a lower elevation, supervising the children," (3) Meyers was only at the Park for 20 minutes, and (4) there was no evidence that appellant "intentionally harmed his child or intentionally left his children unattended." There was conflicting evidence about where appellant was when Ali fell into the water. But the evidence in this case also included video footage of the dam and its surrounding area taken during the search for Ali, and the jury heard testimony from several bystanders and rescue workers about the dangerous conditions around the dam where Ali was playing. The jury was entitled to disregard the testimony from appellant and his children that he was near his children watching them the whole time. After reviewing all of the evidence under the proper standard, we conclude that it is factually sufficient to support appellant's conviction for the offense of endangering a child because it supports a finding that appellant, with criminal negligence, by act or omission, engaged in conduct that placed Ali in imminent danger of death, bodily injury, or physical or mental impairment.