COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-402-CR
HERBERT
RONALD BOWDEN APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 78TH DISTRICT COURT OF WICHITA COUNTY
OPINION
Appellant
Herbert Ronald Bowden was convicted by a jury of reckless injury to a child. The
trial court sentenced him to ten years’ confinement in accordance with the
jury’s assessment. In two issues on appeal, appellant contends that the
evidence is legally and factually insufficient to support his conviction.
Because we hold that the evidence is both legally and factually sufficient to
support the jury’s verdict, we affirm.
Factual Background1
This
case involves a house fire in which two sisters, seven and eight years old,
died. Appellant is the boyfriend of the girls’ mother, Sharan Williams;2 the girls were spending the night in a vacant house where
appellant was temporarily living until he could get an apartment. On the night
of October 4, 2002, Sharan left the girls with appellant while she went out.
The
house where appellant and the girls were staying had no utilities or running
water, so the girls were put to bed in a back bedroom with a candle in a pie
plate on the floor between their bed and the wall. In the early morning hours of
October 5, a fire started in the back bedroom while appellant claims he was
asleep on the couch. The girls did not come out by themselves, and appellant
tried to get them out of the room but could not. The State charged both
appellant and Sharan with two counts of reckless injury to a child.
Legal and Factual Sufficiency Standards of Review
In
reviewing the legal sufficiency of the evidence to support a conviction, we view
all the evidence in the light most favorable to the verdict in order to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Ross v. State, 133 S.W.3d
618, 620 (Tex. Crim. App. 2004). This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The trier of
fact is the sole judge of the weight and credibility of the evidence. See
Tex. Code Crim. Proc. Ann. art.
38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim.
App. 2000). Thus, when performing a legal sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). We must
resolve any inconsistencies in the evidence in favor of the verdict. Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). The standard of review is
the same for direct and circumstantial evidence cases. Burden v. State,
55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Kutzner v. State, 994 S.W.2d
180, 184 (Tex. Crim. App. 1999).
In
reviewing the factual sufficiency of the evidence to support a conviction, we
are to view all the evidence in a neutral light, favoring neither party. See
Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). The only
question to be answered in a factual sufficiency review is whether, considering
the evidence in a neutral light, the fact finder was rationally justified in
finding guilt beyond a reasonable doubt. Id. at 484. There are two ways
evidence may be factually insufficient: (1) the evidence supporting the verdict
or judgment, considered by itself, is too weak to support the finding of guilt
beyond a reasonable doubt; or (2) when there is evidence both supporting and
contradicting the verdict or judgment, weighing all of the evidence, the
contrary evidence is so strong that guilt cannot be proven beyond a reasonable
doubt. Id. at 484-85. “This standard acknowledges that evidence of
guilt can ‘preponderate’ in favor of conviction but still be insufficient to
prove the elements of the crime beyond a reasonable doubt.” Id. at 485.
In other words, evidence supporting a guilty finding can outweigh the contrary
proof but still be insufficient to prove the elements of an offense beyond a
reasonable doubt. Id.
In
performing a factual sufficiency review, we are to give deference to the fact
finder’s determinations, including determinations involving the credibility
and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d
404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment for that of
the fact finder’s. Zuniga, 144 S.W.3d at 482.
A
proper factual sufficiency review requires an examination of all the evidence. Id.
at 484, 486-87. An opinion addressing factual sufficiency must include a
discussion of the most important and relevant evidence that supports the
appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603
(Tex. Crim. App. 2003).
The
sufficiency of the evidence should be measured by the elements of the offense as
defined by the hypothetically correct jury charge for the case. Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Ortiz v. State,
993 S.W.2d 892, 895 (Tex. App.—Fort Worth 1999, no pet.). Such a charge would
be one that accurately sets out the law, is authorized by the indictment, does
not unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried. Gollihar
v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953
S.W.2d at 240. The law as authorized by the indictment means the statutory
elements of the charged offense as modified by the charging instrument. See
Curry, 30 S.W.3d at 404.
Elements of Offense
Injury
to a child is a result-oriented offense; thus, it is not enough for the State to
prove that the defendant engaged in the conduct with the requisite criminal
intent. Lee v. State, 21 S.W.3d 532, 540 (Tex. App.—Tyler 2000, pet.
filed). Instead, the State must also prove that the defendant caused the result
with the requisite criminal intent. Id. 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. Tex. Penal Code Ann.
§ 6.04(a) (Vernon 2003).
A
person acts recklessly when he is aware of, but consciously disregards, a
substantial and unjustifiable risk that the result will occur. Id. §
6.03(c). 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. Id. Reckless conduct involves conscious risk creation; that
is, the actor was aware of the risk surrounding his conduct or the result of his
conduct, but consciously disregarded that risk. See Lewis v. State, 529
S.W.2d 550, 553 (Tex. Crim. App. 1975). The culpable mental state is generally
proven through circumstantial evidence. See Dillon v. State, 574 S.W.2d
92, 94 (Tex. Crim. App. [Panel Op.] 1978).
Indictment
In
two counts, the indictment charged appellant with recklessly causing serious
bodily injury to both girls “by leaving [them] in a room without adult
supervision with a candle burning.” As part of our legal sufficiency review,
we must review the evidence as authorized by the most recent valid indictment in
the record. See Curry, 30 S.W.3d at 404. In this case, the original
indictment did not allege how appellant recklessly caused serious bodily injury
to the children. See Tex. Code
Crim. Proc. Ann. art. 21.15 (Vernon 1989) (providing that whenever
defendant is charged with recklessness in commission of offense, indictment must
allege with reasonable certainty acts relied upon to constitute recklessness).
The State filed a motion to amend the indictment, which in paragraph 2 quoted
the charging language from the indictment with the addition of “by leaving
[them] in a room without adult supervision with a candle burning” to the
reckless injury to a child count. The trial court’s order granting the motion
did not set forth the amended language in full but stated that the indictment
was amended “as requested by the State in paragraph number two (2) of its
Original Motion to Amend the Indictment.” Cf. Aguilera v. State, 75
S.W.3d 60, 64 (Tex. App.—San Antonio 2002, pet. ref’d) (concluding that
trial court order, which reproduced language of indictment with amending
language included, effectively amended indictment); Valenti v. State, 49
S.W.3d 594, 598 (Tex. App.—Fort Worth 2001, no pet.) (holding that physical
interlineation on trial court order granting State’s motion to amend that
reproduced original language of indictment was effective as amendment). The
indictment was never physically interlineated or reproduced. See Riney v.
State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000) (noting “that Ward v.
State continues to stand for the proposition that ‘[n]either the motion
[to amend] itself nor the trial judge’s granting thereof is an amendment;
rather the two comprise the authorization for the eventual amendment of the
charging instrument pursuant to Article 28.10'” and quoting Ward v. State,
829 S.W.2d 787, 793 (Tex. Crim. App. 1992)). But appellant did not file a motion
to quash the indictment, nor did he object when the indictment was read with the
amending language included. In addition, appellant does not complain on appeal
that the indictment was never amended or about any other defect in the
indictment. See Robinson v. State, No. 2-02-462-CR, 2003 WL 22253856, at
*1 n.2 (Tex. App.—Fort Worth Oct. 2, 2003, pet. ref’d) (mem. op.) (not
designated for publication). In any event, we do not need to determine whether
the indictment in this case was validly amended or not because our analysis is
the same under either version of the indictment.3
Review of Evidence
Appellant
contends that the fire was merely accidental and that his act of falling asleep
on the couch while the candle was burning in the room where the girls were
sleeping was not reckless because it did not constitute a gross deviation from
the standard of care.4 The State responds that
there is evidence in the record that appellant was aware of the danger that fire
might result from burning candles in the house and that the room where the girls
slept was unsafe because it had trash on the floor and inadequate escape
options. The State further suggests that there is evidence in the record
from which the jury could reasonably infer that appellant was not in the house
when the fire started and was unavailable to assist the girls until it was too
late.
Zula
Mae Scott, the girls’ grandmother, testified that the girls had lived with her
since they were babies. Sharan sometimes stayed at Zula Mae’s house with them
but not all the time; she was mostly “in and out.” Sharan had a key to Zula
Mae’s house.
When
Zula Mae found out that appellant and Sharan had been taking the girls to spend
the night at a vacant house, she told them it was too dangerous to be taking
them there and lighting candles. She also said she talked to them about the
house catching on fire. According to Zula Mae, Sharan said she always made sure
to put the candles out before she went to sleep, and Zula Mae believed that if
Sharan had been in the house that night, she would have done so.
On
the evening of October 4, Sharan was supposed to stay with the girls at Zula
Mae’s house until Zula Mae came home from work. Neither the girls nor Sharan
were home when Zula Mae came home at 5:30. She later learned that there had been
a fire and the girls were dead.
Lee
Samuel Beatty lives on Dallas Street, a couple of houses down from the abandoned
house, and was renovating the home next door. In a statement to police after the
fire, Beatty said that the girls should never have been in the house, but at
trial, Beatty equivocated, saying that “the house was fine to me as far as
them being in that house. But, you know, some people may say maybe they
shouldn’t have been there because the house was -- you know, didn’t have
everything like water and stuff.” Beatty testified that on the night of the
fire he heard “some noise like screaming, or yelling, or something,” then he
heard glass breaking. He went outside because he thought someone was trying to
break into a house and eventually saw appellant, who was upset.
Beatty’s
girlfriend, Brenda Strawn, testified next. On the night of the fire, she heard
screaming and glass breaking. By the time she got outside, Beatty had already
`been outside for about ten minutes. Strawn did not see Beatty at first, but she
did see appellant, who was “like in shock or something” and not talking. He
just shook his head when she asked him what was happening. She then saw Beatty
trying to put out the fire. In a prior statement to police, Strawn had stated
that she asked appellant if the girls were in the house, but he kept saying he
did not know.
Officer
Jonathan Lindsay testified that he was the first emergency responder to the
fire. When he arrived, the whole structure was in flames. He saw appellant in
front of the house; appellant had a towel wrapped around one of his hands and
said to Officer Lindsay, “[M]y babies are inside, my babies are inside.”
Appellant was frantic, nervous, and scared. Officer Lindsay did not see any
burns on appellant, nor did he remember appellant coughing.
Joanna
Burgan, a paramedic, testified that she went to check on someone she was told
was appellant. Appellant was in a police car. She saw blood on his hand but did
not treat him because he told her he was okay. Burgan did not notice any burns
on appellant, nor did she hear him coughing. She did not listen to his lungs,
however. According to Burgan, whether a person is suffering from smoke
inhalation is usually determined by difficulty in breathing, mild coughing, and
leaning forward while trying to take breaths. In her opinion, there was no need
to treat appellant for smoke inhalation; however, she acknowledged she was not
evaluating appellant’s respiratory system at the time. In response to
cross-examination, Burgan admitted that some smoke inhalation damage can show up
later and that some first degree burns do not appear until after a person is
away from the heat source. Appellant’s counsel also elicited testimony that
appellant has dark skin, it was dark outside, and the only light available was
the overhead light in the police car.
Sergeant
Ginger Harrill interviewed appellant twice after the fire. The State admitted
videotapes of the interviews, and a transcription of the interviews is included
in the record.
During
appellant’s first interview, which took place about 4:00 a.m. the morning of
the fire, appellant told Sergeant Harrill that he, Sharan, and the girls walked
to the abandoned house from Zula Mae’s. The girls stayed at the house that
night because Sharan wanted to go out. He said that he put the girls to bed in
the back bedroom5 about 7:30 or 8:00 p.m., lit a
candle when it got dark, and then went to the couch in the front room6 and fell asleep about 10:00. When appellant got up to
check on the girls, the back room was on fire; flames were coming out the door
between the front rooms and the back room, and he could not get in the back
room. He went out the front door of the house, then around to the back where he
knocked out the back bedroom window. A dresser was in front of the window, and
he knocked it over. He also tried to get through a back exterior door to the
bedroom, which had been nailed shut. That door was also obstructed by a chair.
Appellant knocked the door down but could not get in.
Appellant
told Sergeant Harrill that before the fire that night he had gone a few houses
down to Preston McFadden’s house for a cigarette, but he returned at 9:30 and
checked on the girls, who were okay. He was gone only about a minute, and the
candle was lit while he was gone. Sergeant Harrill told appellant that there
were “neighbors that are saying you came walking down the alley was on fire
[sic]” and that she needed appellant to tell the truth about whether he was
gone when the house caught fire. Appellant answered “No.”
In
his second interview, which took place two days after the fire, appellant told
Sergeant Harrill that McFadden woke him up “hollerin’” sometime after
11:00 p.m. Appellant went out to talk to McFadden and was gone for about thirty
seconds. After appellant went back inside, he checked on the girls and then fell
asleep on the couch. He was not away from the house when the fire started.
Appellant said he would not have left the girls alone because “[k]ids can’t
. . . take care of” themselves. Appellant told Sergeant Harrill that he was
awakened by the girls screaming. According to appellant, the girls had stopped
screaming by the time he knocked out the window.
Appellant
told Sergeant Harrill that the room the girls were in had two interior doors to
it; one was closed and the other one was open. The closed door7
opened to the inside of the girls’ room and had no doorknob; thus, the girls
could not have easily opened it from their room, and appellant would have had to
push on it from outside the bedroom to open it. Appellant said that the bedroom
the girls were in had “just a little trash on the floor.”
At
first, appellant said that he was the one who lit the candle, but then said he
remembered Sharan lit the candle while he and Sharan were in the bedroom talking
before Sharan went out that night. He said the candle was away from the bed and
closer to the wall.
Sergeant
Harrill then testified that when she first interviewed appellant, he did not
have on any shoes, which was consistent with his claim that he had been asleep
when the fire started. Based on appellant’s drawing that he made for Sergeant
Harrill during the interview, the couch where he claimed to be sleeping was only
about sixteen feet away from the candle.
Officer
Ronald Bukowski testified after Sergeant Harrill. He confirmed that when he
responded to the fire, appellant was upset and had a laceration on his hand. He
didn’t remember if appellant had been coughing or whether he had any burns.
Battalion
Chief Lynn Holzer of the Wichita Falls Fire Department testified that the fire
was accidental. By the time he arrived at the house, the fire was so strong that
a person trying to go into the house would not “have lasted two or three
seconds.” In response to cross-examination, he said that if a window had been
broken in the early stages of the fire, it would have added more oxygen to the
fire and could possibly have created a variation in air pressure that would have
caused an open door to the bedroom to shut. He also confirmed that if a person
is capable of screaming, the fire has probably not grown to the point where
breathing the smoke and fire has damaged that person’s lungs. He stated
further that if someone had attempted to open a door to the bedroom while it was
on fire, that person would probably suffer some smoke inhalation damage and
maybe have burned their hands. Battalion Chief Holzer also 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.
The
final witness at guilt-innocence was Jim Graham, the Assistant Fire Marshal for
the Wichita Falls Fire Department. Graham described how he investigated the fire
and came to his conclusions about the cause and origin of the fire. He concluded
that the fire was started in the back bedroom by the accidental introduction of
an open flame; based on appellant’s comments to him about the fire, he
believed the fire was most likely started when clothing or a sheet came into
contact with the candle, perhaps when one of the girls rolled over on the bed.
Graham
testified that based on the burn patterns on the wood, the front door of the
house had been open during most of the fire, but the door between the front
rooms and the back room where the girls were—the door that appellant claimed
had been open—had been closed during most of the fire. He said he could not
tell if someone had opened and shut the door briefly. He did state that if
someone had tried to open the door when it was in flames, it probably would have
collapsed. When he found the door, it had fallen off its hinges and part of it
was broken, but the majority of it was still intact. When questioned about the
lack of burns on appellant and the fact that appellant did not appear to have
any smoke inhalation symptoms, Graham opined that that was not consistent with
someone trying to open the door. Graham confirmed that the second door, the one
without the doorknob, was closed during the fire.
Graham
opined that one of two scenarios was possible: either the fire was “fully
involved” as appellant described it and appellant did not open the door to the
bedroom, or appellant opened the door before conditions were as bad as appellant
said and left the girls inside. Graham said he did not think anyone believed the
second scenario. Graham also said that if appellant broke the back window when
the fire was fully engaged, a backdraft explosion would have occurred, burning
appellant. Graham could see no reason why the girls should not have been able to
get out of the room unless the door between the back bedroom and the front rooms
had been obstructed or locked. But Graham also stated that there was no way to
tell if the door had been locked or obstructed. Graham thought the evidence was
inconsistent with appellant opening the door to the bedroom. But Graham admitted
there were no facts from the physical evidence showing that appellant was not in
the house when the fire started and that appellant could have been inside.
Graham did not think it possible that appellant’s breaking out the window
could have caused the bedroom door to close. Graham also testified that it’s
unlikely the girls would have been able to break and escape through the window
by themselves and that they would “more than likely” have needed some
assistance or direction to get out of the room. In addition, one of the girls
“had enough carbon monoxide in her to have affected her ability to be able to
escape or make any kind of decisions.”
On
cross-examination, Graham admitted that the majority of open-flame fires occur
in homes with utilities and that a similar, albeit nonfatal, fire had occurred
in Wichita Falls in a house that had electricity.
Analysis
The
evidence shows that appellant could have taken the girls back to Zula Mae’s
house, a short walk away. He could have stayed in the room with the girls. Or he
could have extinguished the candle if he did not want to stay in the room with
them. Instead, knowing that using candles in the house could potentially start a
fire, appellant chose to allow the girls to sleep alone in a room with a candle
in a pie tin on the floor close to the bed in a house that he knew had no
running water or other means of extinguishing a fire and in a room with a
blocked window and only one working door, which the jury was free to believe was
shut during the duration of the fire.8 Even if
appellant was asleep on the couch approximately sixteen feet away from the
bedroom as he claims,9 the evidence shows that he
was not able to assist the girls in escaping the fire and they died as a result.10 According to the assistant fire marshal’s
testimony, the girls more than likely would have needed assistance to escape the
room. Yet, appellant, knowing the risk that a fire could occur, left them
unsupervised in the room with a burning candle. Thus, we conclude that this
evidence is both legally and factually sufficient to show that appellant’s
conduct in leaving the girls alone in the room with a burning candle constituted
a “gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from [appellant’s]
standpoint.” Tex. Penal Code Ann.
§ 6.03(c).11
In
addition, there is evidence from which the jury could have believed appellant
was not in the house when the fire started. In her statement to police, Strawn
stated that when she first encountered appellant outside the house (after
hearing breaking glass), she asked him if the girls were in the house, and he
said he did not know. In addition, there was testimony that had appellant
attempted to enter the bedroom when he said he did, he most likely would have
suffered burns or smoke inhalation, but no one at the scene detected any burns
or symptoms of smoke inhalation on appellant. Appellant claimed that he was on
the couch until he first noticed the fire, at which point he already saw flames
coming out of the door to the bedroom. Yet assistant fire marshal Graham
testified that appellant could not have been on the couch for any length of time
as the fire burned. Finally, appellant’s statements were inconsistent about
the times he left the house. In his first statement, he said he left only once.
But in his second statement, he said he left twice, but the second time was only
for about thirty seconds. In those thirty seconds, he claims to have had a
conversation with Preston McFadden. Although we do not believe that these
inconsistencies alone would support sufficient evidence to warrant a conclusion
that appellant was not in the house when the fire started, the jury was entitled
to consider these inconsistencies as proof of guilt in conjunction with
Strawn’s testimony and the lack of burns on, or smoke inhalation symptoms of,
appellant. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)
(stating that inconsistent statements are probative of wrongful conduct and
circumstances of guilt and acknowledging that “[e]ach fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative effect of all the incriminating facts are sufficient to support the
conviction”); see also Tippitt v. State, 41 S.W.3d 316, 326 (Tex.
App.—Fort Worth 2001, no pet.) (acknowledging that inconsistencies in the
appellant’s statements to police were “factors that could have been
considered by the jury in determining his guilt”). All of this evidence taken
together supports a conclusion that appellant was not in the house when the fire
started.
This
evidence is relevant as further evidence (in addition to the evidence detailed
above) of the degree of appellant’s disregard of the appreciable risk of
leaving the girls alone in the bedroom with the candle burning. We do not
suggest that the record contains evidence showing that “but for”
appellant’s being outside of the house, he would have been able to save the
girls from the burning room, thus preventing their deaths. To the contrary, the
evidence shows that once the fire started, it spread rapidly and reached
flashpoint within a five to seven minute period. There is no evidence that
appellant would have been able to save the girls even if he had been on the
couch when the fire started. Thus, our conclusion is that there is sufficient
evidence to show that appellant’s act of leaving the girls unsupervised in the
room with the candle burning caused the girls’ deaths, not that appellant’s
being out of the house when the fire started caused the girls’ deaths. But
that evidence is circumstantial evidence relevant to appellant’s mental state
(i.e., disregard of the risk) and as such is appropriate to discuss in our
sufficiency review.
We
further conclude that the evidence of appellant’s awareness of the risk is
factually sufficient. Zula Mae testified that she warned both appellant and
Sharan that lighting candles in the house could cause a fire. This warning was
in the context of her telling appellant and Sharan not to take the girls to the
house where appellant was staying. The jury was free to believe Zula Mae’s
testimony.
This
is a tragic case. While we may not necessarily have reached the same conclusion
as the fact finder, we may not second-guess the jury. Accordingly, we hold,
based on our review of the record and the appropriate standards of review, and
giving appropriate deference to the jury as fact finder, that the evidence is
both legally and factually sufficient to support appellant’s conviction for
reckless injury to a child.
Conclusion
Having
determined that the evidence is both legally and factually sufficient to support
the jury’s verdict, we overrule appellant’s issues and affirm the trial
court’s judgment.
TERRIE
LIVINGSTON
JUSTICE
PANEL
F: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
PUBLISH
DELIVERED:
May 26, 2005
ATTACHED DRAWING
OF HOUSE
NOTES
1.
Because we must review the entire record to determine appellant’s issues, a
more thorough recitation of the evidence introduced at trial follows the
standard of review below.
2.
Sharan’s appeal is also before this court in cause number 02-03-472-CR.
3.
We note that the amendment, if valid, would restrict the State’s theory of the
case to proving that appellant recklessly caused serious bodily injury to the
children by leaving them in the room unsupervised with a lit candle. We analyze
the sufficiency of the evidence under this theory; however, we note that no
other manner and means is raised by the evidence.
4.
In his legal sufficiency issue, appellant does not challenge the sufficiency of
the evidence to support the other elements of the offense: that appellant had
responsibility for the children when they died, that the children suffered
serious bodily injury, and that there is evidence of his awareness of the risk
to the children. But in his factual sufficiency issue, he does appear to argue
that the evidence of his awareness of the risk is weak.
5.
A copy of a drawing of the house that appellant made during the interview is
attached to this opinion. The drawing is oriented so that the southernmost parts
of the house are closer to the top of the page and the northernmost parts are
closer to the bottom. The back bedroom where the girls were sleeping is shown in
the bottom right corner of the drawing.
6.
The room shown in the upper left corner of the drawing, situated diagonally from
the room the girls were sleeping in.
7.
Shown in the drawing on the left side of the back bedroom.
8.
Evidence of the proximity of the candle to the bed and the lack of an adequate
escape route is relevant to the issue of causation—there is evidence that
these things contributed to the fire that caused the girls’ deaths. But there
is no evidence that these were the sole cause of the girls’ deaths or that
appellant’s act of leaving the girls unsupervised with the candle in the room
would have been insufficient to cause the girls’ deaths. See Tex. Penal Code Ann. § 6.04(a).
9.
The thrust of appellant’s complaint on appeal is that his act of falling
asleep was not a gross deviation from the standard of care. But the State did
not contend that appellant’s falling asleep caused the deaths, rather that
appellant recklessly caused the girls’ deaths by leaving them without adult
supervision in the room with the candle burning.
10.
Assistant fire marshal Graham testified that he did not think it would have made
any difference which door or window appellant tried first in determining whether
he could have rescued the girls from the fire.
11.
Appellant does not appear to challenge the conclusion that his actions, whether
leaving the room or falling asleep on the couch, were not a cause of the
girls’ deaths. See id. § 6.04(a).