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Hernandez v. State

Court of Appeals of Texas, Eleventh District

September 21, 2017

JOANNA HERNANDEZ, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 358th District Court Ector County, Texas Trial Court Cause No. D-44, 330

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          OPINION

          MIKE WILLSON, JUSTICE

         The jury convicted Appellant of three counts of the offense of endangering a child and assessed her punishment at confinement for two years for each conviction. However, the jury recommended that the trial court suspend the imposition of Appellant's sentence. The trial court followed the jury's recommendation, suspended the imposition of the sentence and placed Appellant on community supervision for five years. On appeal, Appellant challenges the sufficiency of the evidence to support each of her three convictions. We affirm.

         I. The Charged Offenses

         The grand jury returned a three-count indictment against Appellant for the offenses of endangering a child younger than fifteen years of age, namely J.H., B.B., and B.H., when Appellant "intentionally, knowingly, recklessly, or with criminal negligence" placed her children in "imminent danger of death, bodily injury, or physical or mental impairment, " when she left them in filthy living conditions that exposed them to "insect bites, illness, and disease." Appellant pleaded not guilty and proceeded to trial before a jury.

         A person commits the offense of child endangerment if she "intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment." Tex. Penal Code Ann. § 22.041(c) (West 2011).

         II. Evidence at Trial

         Appellant is the mother of three children: J.H., B.B., and B.H. Appellant and her children lived in an approximately 1, 200-square foot home with her mother, her brother, her brother's wife, and her brother's two children. Many animals, including birds, gerbils, three dogs and a clowder of cats, also lived in the house. Animal feces littered the floors, and insects infested the home.

         A. J.H., an eight-month-old child, was admitted to the hospital for a high fever, a rash on his leg, and insect bites all over his body.

         At some point, Appellant noticed that J.H. had a fever. Only after she had given J.H. Tylenol and Advil for three days did she take him to the emergency room at the hospital. A nurse practitioner, Ron Bacani, examined J.H. and admitted J.H. to the hospital because J.H. had a temperature of 105.3 degrees and had an infection that could progress into septicemia or blood poisoning from bacteria, if not promptly treated. He diagnosed J.H. with a fever and a skin infection, cellulitis, caused by insect bites. Bacani explained that the insect bites that covered J.H.'s body led to an infection and caused his high fever. He also testified that cockroaches crawled out of the diaper bag that Appellant brought with her to the hospital.

         Bacani notified a pediatric doctor. J.H. received antibiotics and remained in the hospital for three days. Because J.H.'s physical condition and ill health alarmed Bacani, he called Child Protective Services. CPS notified the Odessa Police Department.

         B. Police observed the children's physical conditions and investigated their living conditions.

         Caleb Lacey, an officer with the Odessa Police Department, arrived at the hospital and noticed that J.H. had insect bites all over his arms, legs, and head and that he had a large rash on his right leg. Officer Lacey said that J.H. had been crying and was "obviously in some sort of distress." Brad Cline, a detective with the Odessa Police Department, went to Appellant's home to do a welfare check on Appellant's other two children. When Detective Cline arrived at Appellant's home, he noticed several cats coming out the window near the door, saw big and little cats in the house, and smelled "a really foul odor coming out of the house." Once he entered the home, Detective Cline noticed cat feces everywhere on the floor of the living room. Detective Cline explained that the unsanitary conditions were so severe that Appellant had to have known of the large amount of feces and insects in the home. The house also contained several cages for pet birds and rodents. Detective Cline saw that both living and dead insects covered the floors of the house. Piles of clothes and trash littered the living room. Dirty dishes, trash, and insects were strewn throughout the kitchen. He also saw beer cans and trash that littered the floor. Trash, dead and living insects, and other items were on the floor in every part of the house. In addition, Detective Cline observed that mold covered the interior of a nonworking refrigerator. When Detective ...


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