Mosley v. State

355 S.W.3d 59, 2010 WL 5395655
CourtCourt of Appeals of Texas
DecidedMay 25, 2011
Docket01-08-00937-CR, 01-08-00938-CR
StatusPublished
Cited by18 cases

This text of 355 S.W.3d 59 (Mosley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mosley v. State, 355 S.W.3d 59, 2010 WL 5395655 (Tex. Ct. App. 2011).

Opinions

OPINION ON PETITION FOR DISCRETIONARY REVIEW

MICHAEL MASSENGALE, Justice.

In light of the petition for discretionary review filed by appellant, we withdraw our previous opinion of August 31, 2010. Our judgment of the same date remains unchanged. See Tex.R.App. P. 50. We substitute the following opinion in its stead.

Appellant Shanell Monique Mosley was convicted of abandoning two children. See Tex. Penal Code Ann. § 22.041(a), (b), (d)(1) (Vernon Supp. 2009). The trial court assessed punishment in each of the two cases at two years in state jail, suspended, and placed Mosley on community supervision for five years.1 See Tex. Penal Code Ann. § 12.35(a) (Vernon Supp. 2009) (state-jail felony); Tex.Code Crim. Proo. Ann. art. 42.12, § 15 (Vernon Supp. 2009) (community supervision).

Mosley brings five points of error, claiming the evidence is legally and factually insufficient to prove Mosley intended to abandon the children, the evidence is legally and factually insufficient to prove Mosley left the children under circumstances that exposed them to an unreasonable risk of harm, and the trial court erred in the admission of evidence. We affirm.

Background

We begin our analysis by summarizing testimony and evidence adduced at trial relevant to the issue of whether Shanell Mosley abandoned her children under circumstances that exposed them to an unreasonable risk of harm.2

A. Mosley’s family and marriage plans

Mosley and her extended family are originally from Louisiana. While living there, Mosley met her future husband, George Anichukwu, who was from the Republic of Benin, a country in western Africa. They established a long-distance relationship, communicating by telephone after Anichukwu returned to Benin.

After Hurricane Katrina, Mosley and her children moved to Texas. Anichukwu subsequently asked Mosley to marry him. Because Anichukwu was not a United States citizen, an immigration lawyer advised the couple to marry in Africa so he could obtain a spousal visa. Mosley planned to leave Houston on December 31, 2007 to visit Africa for six weeks, get married in Nigeria, and help Anichukwu open a nonprofit organization for children.

B. Mosley’s child-care plans during her trip to Africa

At the time of Mosley’s trip to Africa, she had six children, whose ages were as follows: J.R., a one-year-old male; Z.M., a seven-year-old male; AA.M., an eight-year-old female; AN.M., a nine-year-old male; E.M., a fifteen-year-old female; and [62]*62T.M., a sixteen-year-old female. Mosley did not want to take one-year-old J.R. to Africa because she was planned to stay in a house with no electricity or running water, and she was concerned he might get sick. She also said she could not afford to bring any of her other children with her on the trip.

Mosley testified that her close family members were involved in preparing for the wedding and the planning to take care of her children. Her primary child care plan was for the children to be supervised during the entirety of her six-week absence by her sister Shaqual Mosley, who was to come to Houston from Louisiana. Shaqual testified that Mosley asked her about six months in advance to look after the children during the anticipated trip to Africa. Mosley’s backup plan was for the children to be cared for by her friend Shawn Harrison, for whom she was a regular babysitter.

Mosley said she left $2,000 for Shaqual to take care of the children, as well as medicine and medical records. She also left emergency telephone numbers, both written and stored in the home phone and in her mobile phone. She testified that she left food in the house and that before she left, she cooked food for Shaqual to feed the children. She also gave the keys to her van to her fifteen-year-old daughter E.M., along with between $100 and $200 for food and some credit or debit cards.3

Mosley originally expected Shaqual to arrive in Houston on December 29 by getting a ride with a friend. Shaqual testified that she was planning to travel by bus on that day, but did not because bus fares were higher than she expected during the holiday season. Mosley offered to send money to Shaqual, but she declined, saying she was going to get the money from a brother. Although she knew Shaqual could not come to Houston on December 29, Mosley said she did not change her plans at that time because her $1,600 plane ticket was nonrefundable.

Mosley thought that Shaqual would be arriving on the bus on December 30, and she asked Harrison to meet her at the bus station. But Shaqual did not arrive that day either.

The next plan was for Shaqual to arrive in Houston on December 31 — the same day as Mosley’s scheduled trip to Africa on a flight departing at 4:40 p.m. Shaqual called Mosley at 6:03 a.m. to say that she was catching an 8:00 a.m. bus that would arrive in Houston at 2:00 p.m. But that was not true. Shaqual had been unable to get bus money from her brother, and instead of so informing Mosley, she told her to go ahead with her travel plans because she had promised to not let her down.

Shaqual also called their cousin, Diana Jackson, who lived in the Houston area. Shaqual testified that she asked Jackson to take care of Mosley’s children, but that Jackson was uncomfortable with taking that responsibility. Shaqual then talked to E.M. and told her to stay inside the house with the other children. Shaqual told E.M. that if Mosley called the house, “Don’t tell her I’m not there because I didn’t want her to freak out or panic.”

Meanwhile, Mosley did not realize until that day that she needed to be at the airport before Shaqual’s 2:00 p.m. arrival. When she realized the problem, she again asked Harrison to pick up Shaqual. He took Mosley to the airport and left his own [63]*63two young children to be watched by Mosley’s older children.

Shaqual said that she and Mosley spoke with each other more than twenty times on December 31 and that Mosley told her that she needed to be on the bus before Mosley boarded her plane. Mosley testified that she talked to Shaqual on the phone before she left for the airport, and she was confident that Shaqual was on her way to Houston. Shaqual testified that in their last conversation that day, when Mosley was at the airport, she told her that she was on the bus and three hours away from Houston. E.M. testified that she also spoke with Mosley on the phone before her plane left, and told her that “Shaqual was almost here.” This was not true, however, as Shaqual never left her house. Shaqual said that she told Mosley she was on her way because she did not want her to worry.

Mosley admitted that she left on her flight to Africa without knowing whether Shaqual had in fact arrived to take care of the children. She planned to call and check on Shaqual once she landed in Africa on January 1.

C. Events following Mosley’s departure

a. December 31

In Shaqual’s absence, fifteen-year-old E.M. was looking after her four younger siblings, as well as Harrison’s two young children, while her mother was being taken to the airport.

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Cite This Page — Counsel Stack

Bluebook (online)
355 S.W.3d 59, 2010 WL 5395655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mosley-v-state-texapp-2011.