Opinion
No. 05-10-00480-CR
03-13-2012
TOMISHA ANGRENETTE HARRIS, Appellant v. THE STATE OF TEXAS, Appelle
Affirm; Opinion Issued March 13, 2012
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F07-52887-K
OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
Appellant Tomisha Angrenette Harris was charged with child abandonment. She pleaded not guilty and waived her right to a jury trial. After a nonjury trial, the trial court found appellant guilty, sentenced appellant to 30 days in jail, suspended the sentence, and placed appellant on community supervision for a period of one year. In two issues on appeal appellant argues that the evidence is insufficient to prove that she intended to abandon her children or that she left them under circumstances that exposed them to an unreasonable risk of harm. We resolve appellant's issues against her and affirm the trial court's judgment. Background
The State's Witnesses
Chris Harry and Melvin A. Williams, patrol officers with the Dallas Police Department, testified for the State. Harry testified that around 4:00 p.m. on May 25, 2007, they received a call from dispatch about abandoned children at appellant's address. They arrived at the house and knocked on the door. Appellant's nine year old son, Diamante, answered the door. Diamante appeared "tentative" and "relieved." Officer Harry went inside and found appellant's eight year old daughter hiding in a closet and crying. The children said that they had been left alone all day. Officer Harry did not remember seeing any food. Officer Harry called appellant's mother. She was angry and agreed to take the children. Appellant's mother said she had spoken to appellant earlier and had told appellant she could not take care of the children that day because she was sick. She said she thought appellant was taking care of the children. While Officer Harry was at appellant's mother's home he spoke with appellant over the phone. He asked her "something like" why she was not with the children and who was supposed to be with the children, and she hung up on him. Neither the children nor appellant's mother mentioned a boyfriend or anyone named Donte that day.
In the reporter's record "Donte" is sometimes spelled "Dante." For consistency, we are using "Donte" in this opinion.
Officer Williams testified that when they arrived at appellant's house around 3:30 p.m., they discovered two children there alone. The children never mentioned someone named Donte or a boyfriend. They took the children to their grandmother's house. She was "pretty upset."
Kimberly Mayfield, a detective in the child abuse unit of the Dallas Police Department, was assigned to investigate the case the next day. She testified that she called Mercides Harris, appellant's mother, to set up a time to speak with appellant's children. During that call Harris told Detective Mayfield that appellant had called her around 6:30 or 7:00 a.m. the previous morning and asked her to watch the children. Harris declined because she was not feeling well, told appellant to call her brother or sister, and assumed other arrangements had been made. Harris did not mention someone named Donte or indicate that he had been there watching the children. Harris was "very upset" and had refused to return the children to appellant later that day, and the police were called to her house. Detective Mayfield testified that it was unreasonable to leave the children alone.
The State also called appellant's son Diamante as a witness. He was 12 years old at the time of trial. Diamante testified that he talked to his mother and his grandmother about this case and was afraid that his mother would go to jail. His testimony about the date at issue was somewhat inconsistent, but he generally testified that his mother went to work early in the mornings and that his mother's friend Donte always watched him and his sister when she was at work, until his grandmother picked them up around noon. He also testified that Donte was watching him and his sister on the date at issue until "just a few seconds" before the police arrived.
Appellant's mother, also testified. At the beginning of her testimony she acknowledged that the children were too young to be left home alone. Harris testified that she saw her daughter's friend Donte only a few times and that he kept appellant's children only "that one day" because the children were with her the other days starting at 7:30 a.m. when appellant would bring them over. Harris testified that on the morning of May 25, 2007, appellant called her and said she needed to bring the children to her house. Harris told appellant that she was sick and could not watch the children, so appellant said she was going to leave them with her friend Donte. Later that day, Diamante called her to say he and his sister were home alone. Harris called and told her son, who "called the police out of anger." Then Diamante called her back to say that Donte was with him and his sister. Harris testified that when the police brought the children to her house she was not angry and she told them that appellant's friend was watching the children. She also testified that appellant did not call her house while the police were there, and that the police did not talk to appellant. Harris also testified that Donte left her a message asking her to come get the children because he needed to leave for work, and that her car was broken down that day, but that she did not tell the police or prosecutors about those facts because they did not ask the right questions.
Appellant's Testimony
Appellant testified in her own defense. She testified that in May 2007 she had known Donte Johnson for five years. He was her boyfriend and lived with her. He would normally watch her two children for about an hour in the morning until her mother came to pick them up. Donte normally would not leave the house until around 3:00 p.m. On May 25, 2007, appellant's mother was not feeling well so Donte was still watching the children when he called appellant around noon, or between 1:00 and 2:00 p.m., and said he needed to leave a little earlier than normal. Appellant immediately left work, which was about 15 minutes away, and headed to her house, but by the time she arrived the police had already been there and taken her children to her mother's house. Appellant testified that when she called her mother's house the police were not there. She does not remember talking to the police. She does not remember telling anyone that Donte was supposed to be watching the children.
On cross-examination, appellant stated that she called her mother on the morning of May 25, 2007, and asked her to come pick up the children. The State asked appellant why she would need to do that if her mother normally arrived at 7:00 a.m. to pick up the children. Appellant responded, "Well, I called my mom that morning when she-well, Donte left a message on my phone and said my mom wasn't feeling too good, but he called my mom first before he called me." During cross-examination appellant also acknowledged that (1) her son was under 15 years old, (2) she was the person who had care, custody, and control of him, and (3) leaving him alone presented an unreasonable risk of harm. Applicable Law and Standard of Review
Under Texas Penal Code section 22.041, a person commits the offense of abandoning a child if, having custody, care, or control of a child under the age of 15, the person intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm. Tex. Penal Code Ann. § 22.041(b) (West 2011). To abandon "means to leave a child in any place without providing the youth reasonable and necessary care, under circumstances which no reasonable, similarly situated adult would leave a child of that age and ability." Id. § 22.041(a). If the actor abandoned the child with the intent to return, the offense is a state jail felony. Id. § 22.041(d)(1).
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the trier of fact's credibility and weight determinations because the trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (a court "faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution").
Analysis
In two issues combined into one argument, appellant argues that the evidence is insufficient because it does not show that she intentionally abandoned her children or that when the children were alone they were exposed to an unreasonable risk of harm. Appellant contends that the evidence demonstrates that she made reasonable arrangements for her live-in boyfriend, Donte, to watch her children, and that she reacted "immediately and appropriately" when the arrangements fell apart. In response, the State argues that when viewed in the light most favorable to the verdict, the evidence is sufficient to support appellant's conviction. We agree with the State.
In short, the evidence-and particularly the evidence about Donte watching the children on the date at issue-was conflicting and turned on the credibility of witnesses. The trial court resolved the conflicts in favor of the State. Viewing the evidence under the appropriate standard, we conclude that the evidence supports the State's theory that appellant intentionally left her children, ages nine and eight, home alone from around 7:00 a.m. until the police arrived around 3:30 or 4:00 p.m. Officer Harry testified that the children told him they had been left home alone all day. When the police arrived, Diamante was "relieved" and his sister was crying. Multiple witnesses testified that it was unreasonable to leave them alone, and appellant testified that leaving them alone exposed them to an unreasonable risk of harm. A rational trier of fact could have disregarded the testimony about Donte and concluded beyond a reasonable doubt that appellant left her children home alone without providing reasonable and necessary care, and that a reasonable and similarly situated adult would not have left the children alone under those circumstances. As a result, we conclude that the evidence is sufficient to support appellant's conviction for child abandonment. See, e.g., Castillo v. State, No. 08-04-00377-CR, 2006 WL 1710062, at *2-5 (Tex. App.-El Paso June 22, 2006, no pet.) (not designated for publication) (evidence legally sufficient to support conviction for child abandonment, despite conflicting evidence concerning whether defendant left young children alone overnight or with roommate, because children could have injured themselves or become ill).
Conclusion
We resolve appellant's issues against her and affirm the trial court's judgment.
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100480F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TOMISHA ANGRENETTE HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00480-CR
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F07- 52887-K).
Opinion delivered by Justice Lang-Miers, Justices FitzGerald and Richter participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 13, 2012.
ELIZABETH LANG-MIERS
JUSTICE