235 S.W.3d 742 (2007)

Sharan Ann WILLIAMS, Appellant
v.
The STATE of Texas.

No. PD-0446-06.

Court of Criminal Appeals of Texas.

October 3, 2007.

*745 Anthony C. Odiorne, Wichita Falls, for Appellant.

John W. Brasher, Assistant District Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which, PRICE, WOMACK, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined.

We granted appellant's petition for discretionary review to examine the culpable mental state of recklessness.

Appellant was convicted of injury to a child and sentenced to fifteen years' imprisonment after her two children died in an accidental house fire while her boyfriend was babysitting them. We hold that the evidence in this case was legally insufficient to support her conviction under Section 22.04 of the Texas Penal Code.^[1] The court of appeals erred in concluding that the State proved the criminal offense of reckless injury to a child when the evidence showed that appellant took her children from their grandmother's house (which had working utilities) to her boyfriend's temporary home (which did not have working utilities) and left them under her boyfriend's care with a lit candle in the bedroom.^[2] The State's proof of these *746 facts—proof beyond a reasonable doubt— did not establish a criminally culpable reckless state of mind. Further, the State did not prove that appellant's acts or omissions caused the death of her children.^[3]

I.

Two of appellant's children, Ujeana, age seven, and Precious, age eight, died in a house fire in the early morning hours of October 5, 2002. Ujeana, Precious, and appellant lived with appellant's mother, Zula Mae Scott, who routinely cared for the young girls. Occasionally the girls stayed with their father, Charles Leon Williams, Jr. Sometimes they stayed with appellant and her boyfriend, Herbert Ronald Bowden, in his "home." Bowden lived in an altered duplex with both halves of the house combined into a single unit. It was a four-room structure, but it had no kitchen or bathroom, no working utilities, and very little furniture. In Bowden's bedroom there was a bed, as well as a dresser under the window, and a chair in front of the nailed-up door to the outside. There was a couch in the living room. The house was, according to Bowden, "somewhat trashy." There was indeed trash on the floor, mainly in the living room.

Bowden lived in this makeshift home with permission, and he paid a nominal rent. He intended to live there until he saved enough money from his new job at Bennigan's restaurant to afford a proper apartment. About two weeks before the fire, Zula Mae learned that appellant and Bowden were taking the children to the duplex. She warned them both that "it was too dangerous to be taking them down there and burning candles," in part because of the risk of a house fire.

Nevertheless, after he got off work on October 4, 2002, Bowden went to Zula Mae's house to pick up appellant and her girls. Zula Mae was not yet home from work. The four walked to his duplex. Appellant went out to get cigarettes and ran into the girls' father, Charles Leon Williams, Jr., in the parking lot of the store. He asked appellant where the girls were. She told him that they were "at home," which meant, to Mr. Williams, "with Zula Mae." Mr. Williams saw appellant leave the store in a car with a man who was not Bowden.

When appellant returned to the duplex, she told Bowden that she wanted to go out with friends, and he agreed to watch the girls. He dressed them in his sweatshirts to keep them warm, and then he and appellant put the girls to bed in his bedroom. They placed a burning candle in an aluminum pie plate for light^[4] because Bowden did not want the girls to be left "in the dark." Bowden said that he and appellant "were sitting there talking and um, and uh, soon as we got through talking I took the candle and sat it over there in the corner at the edge of the bed. I sat it there." The candle was closer to the wall than the bed. After appellant left, Bowden checked on the girls who were asleep with the candle still lit. "I don't know why I didn't *747 think to blow the candle out, I just didn't want them to be in the dark."

Bowden said that he left the house only once-around 9:30-to get a cigarette from his neighbor Preston. Then he "ran on back down the street and went on back in the house and went and checked on 'em and they were still sleep. And I went and sat in the living room on the couch. And then I went and got up and checked on 'em again and that was I'm saying that was about 10 o'clock or so."

Bowden finally fell asleep on the living-room couch. His neighbor Preston woke him up about 11:00 p.m. He was outside "hollering" and "asking about Sharan `cause apparently he had loaned her a couple of dollars or something and he needed it. So uh, I was telling him she wasn't there." Bowden came back inside because it was "cool" outside, and "I didn't have on any shoes or nothing and I went out there just in my socks." He checked on the girls again and then once more fell asleep on the couch.

Around 1:00 a.m., Bowden woke up to loud screams and saw that the bedroom where the girls were sleeping was on fire. When he looked in the "open" door all he could see "was flames and smoke."^[5] He said he got down close to the floor, but he "could barely even see the bottom of the bed you know? And it was that much smoke in there." He could still hear the girls screaming, and he was "hollering, calling their names, but they wasn't responding like they heard my voice." He ran out of the front door, and "I went around to the side window and uh, knocked it out. But flames were coming out of it." When he could not get in the window, he ran around to the boarded-up exterior bedroom door and tried to pull it open, but again he could not get inside.

Wichita Falls Police Officer Jonathan Lindsay was the first emergency responder. When he arrived, he saw Bowden with a towel wrapped around one of his hands, crying "my babies are inside, my babies are inside." Bowden was "frantic." By the time the fire department arrived, the house was "fully involved" with flames, and the firemen were unable to enter it. The children never got out.

Appellant, who had been told about the fire, arrived back at the scene as the fire department was extinguishing the blaze. Bowden—who had cut his hand when he broke the window trying to get to the children—was briefly checked out by medical personnel. He had no burns or cough.

Jim Graham, the Assistant Fire Marshal for the Wichita Falls Fire Department, talked to Bowden at the scene. Bowden told him about the candle, about waking up to find the bedroom on fire, and about how he tried to enter the room first through the open bedroom door, then through the outside window, and finally through the boarded-up back door.

A couple of hours later, Officer Ginger Harrill took statements from both Bowden (who was still in his socks) and appellant. They were both cooperative. Officer Harrill took a second statement from Bowden a couple of days later. Regarding these two statements, Officer Harrill said,

Basically he was—both statements were consistent, that he was asleep on this couch, and this door goes into this front bedroom, and the girls were sleeping in this rear bedroom, and he woke up on this couch and heard them screaming and goes to this door, which was open, *748 and at that point he could see the doorway into this room and see the room glowing.

When questioned about whether he was at Preston's house when the fire started, Bowden said, "No, no, absolutely not." He stressed that he has always looked out for the kids-and that he was there, asleep, when the fire broke out. "Their safety has always been a factor with me. . . . I been around them for as long as I been around their mother. And you know, I'm not their . . . father but it was just like they were my children you know?" Repeatedly pressed about whether he left the children alone, he stated

There's no way I would just leave, leave them in the house like that. Not them or anybody else's kids. I wouldn't even have to know 'em. I just wouldn't do it. Kids can't, they can't take care of they self.

He reiterated that he was not at Preston's when the fire started, and that he was willing to take a polygraph. He concluded,

I, you know I haven't lied to you about anything concerning that. I mean it's hard enough to admit that these kids died in my care you know? I couldn't, I couldn't have left them like that. If anything I would've took 'em with me. I would've woke 'em up and took 'em with me.

Appellant's statement related her activities that night. For the most part, her statement did not make much sense. It was fractured and incoherent. She stated that as soon as she, Bowden, and the girls arrived at the duplex, she went out to buy cigarettes. When she returned, she "hung out" for a while with the girls and Bowden. Then she lit a candle in the bedroom and put the girls to bed. Around 8:30 p.m., she went out to buy chips and Little Debbies for the girls-something she was supposed to have done on her first trip to the store. She mentioned a cast of characters that she saw or talked to during the evening: Paul Taylor, who gave her change for the girls' snacks; Judy, the owner of Lucky One Stop; a "young Spanish guy" who gave her a ride in a blue van; Christine, who lives down the street; Preston, from whose house she called Jerry, Christine's cousin; Easy B (AKA Anita Gibson) and Dee, who live at the Budget Motel; Shewe, who "got into it" with Easy B at the Budget Motel; an unknown man in a van, "I don't know his name, he just gave me a ride"; BL (AKA Lewis) and Pine, who told her the "girls just got burned up." Investigator Harrill asked appellant about Ujeana and Precious staying at Bowden's place:

Harrill: Ok. Uh, how often do you and the girls stay down there?

Williams: Uh, Uh, We go down there sometimes . . . We don't stay down there, we slept down there a couple of times.

Harrill: Um hmm.

Williams: 2 or 3 times. But we don't . . . Um, Like Mama said, we should've brought 'em home.

Harrill: Well I'm not trying to be harsh but that's gonna come up. Why didn't you just leave 'em at your mom's?

Williams Well at the time Mama wasn't there.

Harrill: Ok.

Williams: Mama wasn't there. `Cause Mama don't make it home until after 5:30.'

Both appellant and Bowden denied drinking or getting high that night.

Assistant Fire Marshal Graham investigated the fire and concluded that it was an accident:

There was absolutely nothing in this room that would lead me, as an investigator, *749 to believe that this fire was in any way intentionally set. We're looking at the accidental introduction by a human of some—some open flame. Take that with Mr. Bowden's statement of having a candle placed in there, that's exactly what we would have seen. Some material got too close to the candle. As the girls were described sleeping on the bed, changing places, moving over, it's quite likely—the most likely scenario was a sheet, maybe clothing, material used for—wrapped under their head for a pillow gets knocked—either knocked off the bed or hangs off the bed. A[t] this point the candle can ignite it.

___

The cause of the fire was, without question, the introduction of an open flame to the combustible material in the corner of that room. The only known open flame or alleged open flame to be there was the candle that was put there for light that night.

Marshal Graham said that he also investigated why the girls could not get out of the bedroom. From the burn patterns, he determined that one of the two front doors "was opened during this fire." The burn patterns suggested both bedroom doors were closed for most of the fire. The one Bowden said that he had opened could have been opened only "momentarily." But Marshal Graham surmised that this door had probably never been opened because Bowden had no symptoms of burns or smoke inhalation. The fire burned at 1,100 or 1,200 degrees, and, according to the marshal, if Bowden had opened that door during "full room involvement," as he said he did, he would have suffered "ill-effects. So it's just—it is more likely he never opened that doorway." Other parts of Bowden's statement—breaking the window and trying to open the boarded-up door—were corroborated by the physical evidence. Although Marshal Graham could not specifically say that Bowden had been on the couch when the fire started, he did acknowledge that Bowden's shoes were found next to the couch; and that he was outside the burning house in only his socks.

Bowden and appellant were each indicted for two counts of reckless injury to a child. Bowden was alleged to have committed the two offenses "by leaving [each girl] in a room without adult supervision with a candle burning."^[6] Appellant was alleged to have committed the offenses by either (1) taking the girls from a house with working utilities to a building without them and leaving the children in a room with a lit candle, or (2) leaving them asleep in a building without utilities with a burning candle instead of taking them to a house with working utilities. These were the specific acts that the State relied upon to prove recklessness.

The two cases were consolidated for trial, and both Bowden and appellant were convicted. Bowden was sentenced to ten years' imprisonment on each count, and appellant was sentenced to fifteen years' imprisonment on each count.

On appeal, appellant claimed that the evidence was legally and factually insufficient to prove her guilt. The court of appeals rejected this claim and held, in essence, that a rational trier of fact could conclude that the act of taking children from a home with utilities to one without utilities and leaving them in a bedroom with a lit candle is sufficient to create the known risk of death or serious bodily injury to those children, even if another adult caretaker is present.^[7]

*750 II.

In assessing the legal sufficiency of the evidence under Jackson v. Virginia,^[8] "we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt."^[9] Under a legal sufficiency review, "our role is not to become a thirteenth juror. This Court may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder."^[10] Thus, reviewing courts give deference to "`the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'"^[11]

A reviewing court's duty, however, does require it to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged. If the evidence establishes precisely what the State has alleged, but the acts that the State has alleged do not constitute a criminal offense under the totality of the circumstances, then that evidence, as a matter of law, cannot support a conviction.

To sustain a conviction for reckless injury to a child the evidence must prove that a defendant recklessly, by act or omission, caused serious bodily injury to a child.^[12] Injury to a child is a result-oriented offense requiring a mental state that relates not to the specific conduct but to the result of that conduct.^[13] The State must prove that a defendant caused a child's serious bodily injury with the requisite criminal intent.^[14] Under the Penal Code,

A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the . . . result will occur. 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.^[15]

Criminal recklessness must not be confused with (or blended into) criminal negligence, a lesser culpable mental state. With criminal negligence, the defendant ought to have been aware of a substantial and unjustifiable risk that his conduct could result in the type of harm that did occur, and that this risk was of such a nature that the failure to perceive it was a gross deviation from the reasonable standard *751 of care exercised by ordinary people.^[16] Criminal negligence depends upon a morally blameworthy failure to appreciate a substantial and unjustifiable risk while recklessness depends upon a more serious moral blameworthiness — the actual disregard of a known substantial and unjustifiable risk.

At common law, "the word `reckless' or `recklessly' was commonly used in expressing the concept of criminal negligence."^[17] However, Professor Perkins notes that, in most modern penal codes, the two concepts have been distinguished and separated:

"recklessness" and "criminal negligence" represent different mens rea concepts. . . . [but they] have one component in common. Each requires conduct which represents a gross failure to measure up to the reasonable-person standard of care. Assuming such conduct, if the actor was aware of the risk he was creating, and consciously disregarded that risk, however much he may have hoped that no harm would result, he was acting recklessly.^[18]

Thus, "[a]t the heart of reckless conduct is conscious disregard of the risk created by the actor's conduct[.]"^[19] As has often been noted, "[m]ere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be," do not suffice to constitute either culpable negligence or criminal recklessness.^[20] Recklessness requires the defendant to actually foresee the risk involved and to consciously decide to ignore it.^[21] Such a "devil may care" or "not giving *752 a damn" attitude toward the risk distinguishes the culpable mental state of criminal recklessness from that of criminal negligence, which assesses blame for the failure to foresee the risk that an objectively reasonable person would have foreseen.^[22] "Those who are subjectively aware of a significant danger to life and choose, without justification, to engage in actions (or in some cases inactions) that threaten to bring about that danger have made a calculated decision to gamble with other people's lives."^[23] This combination of an awareness of the magnitude of the risk^[24]*753 and the conscious disregard for consequences is crucial. "It is callous disregard of risk, and not awareness vel non of risk, however, which is critical."^[25] And, of course, determining whether an act or omission involves a substantial and unjustifiable risk "requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight."^[26]

Whether a defendant's conduct involves "an extreme degree of risk" must be determined by the conduct itself and not by the resultant harm. Nor can criminal liability be predicated on every careless act merely because its carelessness results in death or injury to another.^[27]

In addressing the sufficiency of evidence to prove criminal recklessness, it is not enough to provide the jury with a set of legally correct definitions and then simply turn them loose and accept whatever they decide. Instead, there are "intermediate and progressively more demanding burdens of production that must be met by the State, as a matter of law, before the fact-finding process is even ratcheted up from one to the next higher level of possible culpability[.]"^[28] The State cannot be permitted to submit its case to the jury unless it has offered a prima facie case of a defendant's actual, subjective "disregard of the risk of a resulting [injury] which . . . rise[s] to the level of a `gross deviation' from an ordinary standard of conduct."^[29] The incremental risk and mens rea that may transform mere civil negligence into criminal negligence and then possibly into criminal recklessness are, although elusive, substantive elements with unique burdens of production that must be satisfied as a matter of law.

Numerous Texas cases have addressed factual scenarios in which the jury could conclude that the defendant consciously disregarded a substantial and unjustified *754 risk of serious injury to a child. These include holding a child's feet under extremely hot water,^[30] ramming a parked car that had an 18-month-old child in it,^[31] twisting and pulling a baby's leg,^[32] letting a 350-pound lion, which was neither muzzled nor declawed, out of its cage at a flea market populated by children,^[33] and speeding and running through stop signs with a child passenger.^[34] These cases involved an actor committing a highly dangerous act whose substantial and unjustifiable risks were known to,^[35] but disregarded by, the actor, and that act led directly to serious harm to a child. In other reckless injury cases, the defendant failed to perform an act that directly resulted in the injury. In one case the defendant was held to have recklessly caused bodily injury to her children by failing to report to the authorities that her boyfriend had violently kidnaped them.^[36] In still other cases the actors have left a disabled victim lying in bleach for at least an hour;^[37] neglected a child;^[38]*755 failed to immediately seek medical help for a lethargic child;^[39] and left four-year-old twins unsupervised and wandering around an apartment complex.^[40]

Each of these cases involved "conscious risk creation." As noted in the Model Penal Code commentaries, this "resembles acting knowingly in that a state of awareness is involved, but the awareness is of risk, that is of a probability less than substantial certainty[.]"^[41] A person responsible for such "conscious risk creation" that results in serious bodily injury to a child 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."^[42] The defendant's conduct must be a direct cause of the harm suffered although, as set out in section 6.04(a), it need not be the only cause; it may be a concurrent cause.^[43]

In sum, in addressing the culpable mental state of recklessness under section 6.03(c), the factfinder (and a reviewing court) must examine the defendant's conduct to determine whether

(1) the alleged act or omission, viewed objectively at the time of its commission, created a "substantial and unjustifiable" risk of the type of harm that occurred;

(2) that risk was of such a magnitude that disregard of it constituted a gross deviation from the standard of care that a reasonable person would have exercised in the same situation (i.e., it involved an "extreme degree of risk, considering the probability and magnitude of the potential harm to others"),^[44]

*756 (3) the defendant was consciously aware of that "substantial and unjustifiable" risk at the time of the conduct; and

(4) the defendant consciously disregarded that risk.

With that background of the pertinent law concerning a reckless state of mind, the level of risk required, and causation for the harm suffered, we turn to the present case.

III.

The court of appeals held the evidence legally sufficient to prove that appellant recklessly, by act or omission, caused serious bodily injury to her two children.^[45] The court further held that she was criminally responsible because (1) the result would not have occurred but for her conduct, operating either alone or concurrently with Bowden's, and (2) while Bowden's concurrent cause was clearly sufficient to produce the result, appellant's conduct was not clearly insufficient.^[46] The court of appeals found, in essence, that a rational trier of fact could conclude that

(1) taking children from a home with utilities to one without utilities, and

(2) leaving them in a bedroom with a lit candle,

(3) creates the foreseeable risk of death or serious bodily injury to those children,

(4) even if another adult caretaker is present.^[47]

Furthermore, the court concluded that there was legally sufficient evidence to support a finding that appellant was consciously aware of this risk and that she disregarded it. The court of appeals stated,

As the girls' mother, Appellant was at least as responsible as Bowden for the decision to take them from Zula Mae's house to the structure, and she, herself, "knew that room," had placed the dresser in front of the window and the chair in front of the locked door. Appellant lit the candle and made sure the girls were in bed in the room with the candle burning before she left for several hours. From the evidence that she always made sure to extinguish the candle, the jury could have inferred that Appellant assumed the role of making sure of extinguishing the candles in that house. This is supported by her statement to Sergeant Harrill that she had no idea what Bowden may have done with the candle after she left. The jury could have inferred that Appellant was aware of but disregarded the risk that Bowden would not know what to do with the candle, specifically that he should extinguish it before leaving the room with the girls asleep. Moreover, Appellant acknowledged that she did not expect the girls to be awake when she returned hours later. Thus, the jury could have further inferred that she was aware of but disregarded the fact that they would fall *757 asleep with the candle burning.^[48]

Appellant asserts that the court of appeals, in so holding, engaged in "precisely the sort of speculation frowned upon by this Court in Hooper [v. State]."^[49] She contends that there is legally insufficient evidence that she consciously disregarded a substantial or unjustifiable risk that her girls would suffer grievous harm. She states that she "had left Mr. Bowden to baby-sit while she was out during the evening and had no reason to suspect he was not trustworthy."^[50] She also asserts that the evidence of causation was legally insufficient because her conduct, standing alone, was "clearly insufficient" to cause her children serious bodily injury.

There was absolutely no evidence that the children had ever fallen asleep in any house with a candle left burning in the room. Nor was there any evidence that there had ever been any safety problems or even a hint of injury to the children, especially with candles, in the previous times the children had stayed at the residence. It is also mere speculation by the appellate court that the jury could have inferred that Bowden would not know what to do with the candle or that Appellant assumed the role of making sure of extinguishing the candles in that house. There are no facts to suggest that [appellant] would know Mr. Bowden would move the candle down from a presumably "safe" place onto the floor behind the bed and leave it burning. These actions, and failures to act, by a person who had at least for the evening assumed an "in loco parentis role, supersede any contributions [appellant] made to the tragedy of that night."^[51]

We agree on both counts. First, there is legally insufficient evidence that appellant consciously disregarded a substantial or unjustifiable risk that her children would suffer serious bodily injury in a house fire if she took them from a house with utilities to one without utilities. Viewed objectively, this act, either by itself or in combination with the State's second act of alleged recklessness — leaving the girls in a room with a lit candle — does not involve a "substantial and unjustifiable" risk of serious bodily injury or death. There is nothing inherently dangerous about staying or sleeping in a structure that does not have utilities. Staying in a structure without utilities does not increase the likelihood of dying in a fire. Indeed, as noted by the court of appeals, the evidence shows the opposite:

As to the lack of utilities, Battalion Chief Holzer 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. And the fire investigator agreed that electrical distribution equipment such as wiring, outlets, *758 and cords are the second leading cause of fire death and the third leading cause of fires in the United States. Cooking fires are "number one." Only 15 percent of fires in 2001 were attributable to open flames or embers. Fires can occur in homes that have utilities; lack of utilities does not create an immediate chance that there will be a fire. Sammy Beatty did not believe candles were inherently dangerous and believed his girlfriend had some. Zula Mae admitted she had scented candles in her house that she used sometimes even when children were around.^[52]

If taking children to spend the night in a structure without utilities is conduct that involves an extreme risk of danger for which one may be subject to criminal prosecution for injury to a child should harm befall that child, the backwoods campers of the world are in serious jeopardy. Any adult who lights a campfire that emits a spark that lands on a child's pajamas and severely burns the child can be prosecuted as a felon. Scoutmasters beware. If a Coleman gas lantern tips over and sets the children's pup tent ablaze, they might suffer the same fate. The parent who uses a candle to read a bedtime story to the weary little camper may rue the reading hour if the candle tips over and burns the child. Any of these harms might befall a camper's child, but the act of camping in a site without utilities does not create such a foreseeable substantial and unjustifiable risk of serious bodily injury or death that it suffices to hold the camper's parent criminally liable should injury occur. Yet this act is precisely the same as that alleged by the State in this case: taking a child from a house with working utilities to one without them.

One could also pose the legal issue in the opposite manner: Would appellant have been free from criminal liability had she done everything that she did do, but Bowden's duplex had working utilities? After all, people who have electricity frequently use candles as well as, or instead of, electric lights on various occasions. Zula Mae used candles even though her house had light bulbs. But the law does not predicate a finding of criminal liability for creating an unjustifiable and substantial risk of injury upon whether the actor used a candle out of necessity (an act that purportedly creates a substantial and unjustifiable risk) or for aesthetic purposes (a purportedly blameless act).

The State argues that appellant's act of taking the children from Zula Mae's house to Bowden's was a reckless one because appellant ignored her mother's sage advice: "[I]t was too dangerous to be taking them down there and burning candles." Alas, who among us has not been guilty, from time to time, of ignoring our mother's wise words. In hindsight, of course, Zula Mae proved to be a prescient Cassandra; the very harm that she had predicted did, in fact, occur. But merely because appellant failed to heed her mother's words does not mean that the act of taking the children to Bowden's house (or camping outdoors for that matter) created a substantial and unjustified risk of serious bodily injury to the girls. Appellant's "stupidity, irresponsibility, thoughtlessness, [or] ordinary negligence" do not constitute reckless disregard of a substantial and unjustified risk. A number of judicial decisions involving criminal "gross negligence" or "recklessness" have held that warnings like that given to appellant by Zula Mae do not suffice to establish the existence of a severe risk of injury or the defendant's *759 conscious disregard of such a risk.^[53] The importance of such warnings must be *760 viewed in light of the likelihood of their occurrence and magnitude of the danger posed at the time the defendant acted, not in post-event hindsight.

Because we cannot conclude that the act of taking a child from a house with working utilities to one without working utilities is the type of conduct that, by its nature, raises a substantial and unjustifiable risk of injury, we hold that it cannot support a finding of reckless injury to a child.^[54] Thus, even if the State proved beyond all possible doubt that appellant did take her children from a house with working utilities to one without, that fact cannot, either by itself or in combination with other acts, support a finding of criminal recklessness under these circumstances.^[55]

Therefore, we must consider whether appellant's act of leaving her two girls in a room with a lit candle under Bowden's supervision could support a finding that she was criminally reckless in causing her children's death.^[56] This is an act that, by its nature and depending upon the circumstances, could support a finding of recklessness — the conscious disregard of a substantial and unjustifiable risk of injury. Were there such circumstances shown in this case? The court of appeals correctly stated, "It was undisputed that Appellant did not leave the girls alone to sleep in the room with the candle burning but left them awake with Bowden in the room to care for them, and there was evidence that he was trustworthy to care for the children."^[57] In fact, there was absolutely no evidence that Bowden was an incompetent or uncaring babysitter. All of the evidence indicated that, in fact, he was a considerably more responsible caretaker than appellant herself.^[58] It is, as appellant *761 asserts, "mere speculation by the appellate court that the jury could have inferred that Bowden would not know what to do with the candle or that Appellant assumed the role of making sure of extinguishing the candles in that house."^[59] There is nothing in the record to support this supposition that Bowden did not know what to do with a lit candle. Blowing out a candle is not rocket science. And there is nothing in the record to suggest that Bowden could not handle the task or did not care enough to handle it. Quite the reverse. In hindsight, Bowden expressed great remorse and regret that he did not blow out the candle when he went back in to check on the sleeping girls. He had left it burning so that the girls would not be in the dark. In hindsight, this was obviously an unwise decision; even at the time this was, perhaps, an unwise decision, but it does not prove he was an incompetent caretaker or that appellant was actually aware that he was an incompetent caretaker. A parade of State's witnesses had nothing bad to say about Bowden and much that showed his conscientious character.^[60] There is simply no evidence to suggest *762 that Bowden, the "Johnny-on-the-Spot" babysitter, was in any way incompetent. But the oddity of this case — the fact that appellant left the children in the care of Bowden, who was not shown to be an unsuitable caregiver — makes it one of a kind.^[61] That difference takes this case out *763 of the norm of reported fatal neglect cases.^[62] On this record, we cannot agree that appellant's leaving her children with Bowden in a room with a lit candle represents a gross deviation from the standard of conduct that a law-abiding person in appellant's situation would observe. The Texas Supreme Court has enunciated an appropriate standard for civil cases involving reckless conduct which, applied here, asks: "viewed objectively" from appellant's viewpoint, did her act or omission "involve an extreme degree of risk, considering the probability and magnitude of the potential harm" to her two daughters?^[63] The acts that the State alleged and proved do not meet that threshold. This factual situation — leaving Ujeana and Precious, 7-and 8-year-old girls, in bed with a lit candle upright in a metal pan with Bowden nearby watching over the girls — is not one so inherently fraught with danger as to create, in the mind of the objectively reasonable person, the awareness of a substantial and unjustifiable risk of serious bodily injury. If appellant's conduct would not suffice to raise a jury issue for imposition of punitive damages in a civil case, it is hardly sufficient to raise a jury issue for a criminal conviction.

For related reasons, we also agree that appellant is not "criminally responsible" for the result in this case. Texas Penal Code § 6.04(a) provides, "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 *764 clearly insufficient."^[64] The court of appeals held that

if Appellant had not taken the children to that house and put them to bed with the candle burning that she, herself, had lit, or if she had at least been there to extinguish the candle before the girls went to sleep as the evidence indicated she probably would have done, the girls would not have died in the fire. Thus, we cannot conclude that Appellant's conduct was "clearly insufficient," standing alone, to cause serious bodily injury and death to the girls.^[65]

Under such a lengthy "but-for" chain of causation, however, one could trace that chain of causation much further back in time, in fact, all of the way back to appellant's conduct of meeting Charles Leon Williams, Jr., having an intimate relationship with him, bearing the two girls, breaking up with Mr. Williams, and so forth. "But for" those acts, Ujeana and Precious never would have been in Bowden's home or under his care on October 5, 2002. Obviously, some element of foreseeability limits criminal causation just as it limits principles of civil "proximate causation."^[66] Criminal liability is predicated on "but-for" causation, and appellant's acts are not a "but-for" cause of her girls' death unless that result is within the scope of the risk of which she was aware.^[67] Such would *765 be the case if the intervening cause was reasonably foreseeable on her part. But it was not. Bowden's act of falling asleep without blowing out the candle was not reasonably foreseeable to appellant at the time she left. It was not reasonably foreseeable that Bowden would move the candle. Nor was it foreseeable that a sheet or clothing would then fall on the burning candle, or that Bowden would not be able to get the children out of the house after a fire started. For the same reason that leaving the children with Bowden did not represent a gross deviation from the standard of conduct that a law-abiding person in the appellant's situation would observe, appellant's acts are not a "but-for" cause of the result in this case: there is nothing to suggest that Bowden was an incompetent caretaker or that appellant, had she been there, would have prevented this tragedy.

The State argues that the "substantial, unjustifiable risk" was "foreseeable" because of Zula Mae's warning. But failing to follow a prophetic warning does not suffice to establish a foreseeably severe risk of harm. Mothers warn against improbable and unlikely dangers as well as objectively obvious ones. The Texas Supreme Court has explained, in the analogous context, "Extreme risk is a function of both the magnitude and the probability of the anticipated injury[,] . . . the `extreme risk' prong is not satisfied by a remote possibility of injury or even a high probability of minor harm, but rather `the likelihood of serious injury[.]'"^[68] Further, the severity of the risk must be measured from the defendant's viewpoint at the time of the act or omission. As the supreme court explained in Moriel,

Determining whether an act or omission involves extreme risk or peril requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight. In every negligence or gross negligence case, some injury has allegedly occurred. However, the magnitude of the injury may be entirely disproportionate to the riskiness of the behavior. For example, inadvertently dropping a wooden board into the metal hold of a ship may constitute negligence, but cannot be gross negligence. This is so even though the board, upon landing, triggers a Rube Goldberg chain reaction, eventually causing the whole ship to explode.^[69]

Thus, even though appellant's act of leaving the girls with a lit candle in the room under the care of Bowden may have, in a "Rube Goldberg" chain of events, ultimately led to their demise, "it may nevertheless be the case that the behavior which caused it, viewed prospectively and without the benefit of hindsight, created no great danger."^[70] Here, as in Moriel, the task in evaluating legal sufficiency of the evidence to support a finding of "gross negligence" for civil lawsuit purposes (or "recklessness" for criminal liability) is to "determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people *766 to differ in their conclusions."^[71] Appellant cannot be liable for a reckless injury to her children unless she was actually aware, at the time she left, of a genuine and unjustifiable likelihood of serious harm to her children from leaving a lit candle in the bedroom while her children were under Bowden's care.^[72] Here, as in Moriel, the evidence does not support (1) the inference that appellant had any subjective awareness that her children would probably suffer serious bodily injury because of the lit candle in the bedroom while under Bowden's care, or (2) the inference that appellant's action of leaving the children under Bowden's care with the lit candle in the bedroom created a risk of serious harm to those children.^[73] Appellant's mother's warning was too general and unfocused to suffice to raise a jury issue on either of these prongs.^[74] Here, as in Jones, Riggs, Owens, and McLaughlin,^[75] the warnings given were too general and unfocused to establish that (1) the mother was subjectively aware of the risk of a deadly accident, and (2) her actions created a severe risk that such an accident would occur.

The State also argues that appellant is criminally responsible for this accident because she "had the ultimate authority to make decisions on behalf of her children," and she had alternatives: appellant could have left the children with either her mother Zula Mae, or the girls' father, Charles Williams, Jr. Then they would have "had the usual amenities of a functioning home."^[76] This underscores what appellant maintains: "under the State's theory, presumably appellant would have no culpability [and hence no criminal liability] for the girls' deaths if they had perished in a fire from a lit candle in . . . [a] building with working utilities."^[77] Almost one third of the world lives, day in and day out, without electricity.^[78] Are all of those parents who live without electricity but who could send their children off to someone else — another relative, a friend, nurses at an orphanage — who does have electricity criminally liable when they do not do so and an accidental fire causes their children's death? Viewed in a different light, what makes this scenario distinguishable from a family's camping venture in which the cabin is lit only by firelight or candles and one parent leaves to go fishing while the other supervises the sleeping children? Is the departing parent criminally reckless in leaving the other parent with the children in a cabin with a roaring fire or a flickering candle?

There appear to be no reported cases in Texas (or any other state) of criminal prosecutions in this scenario. We can find no case in which a parent was held criminally liable for recklessly causing injuries to his child while that child was under the care of an apparently competent babysitter.^[79]*767 Nor can we find any case in which the mere fact that either a parent or a babysitter cares for children in an abode without electricity is, by virtue of that lack of modern utilities, criminally reckless when an accident causes a fatal fire.^[80]

As the court of appeals noted in this case, criminal prosecutions for tragic accidents are inherently troubling.^[81] They are *768 also rare.^[82]

Although we agree that "the decision to file criminal charge[s] is justifiable in cases involving gross negligence because of its deterrent and expressive effects[,]"^[83] the specific acts alleged and proven by the State in this case do not support a finding of such gross negligence amounting to recklessness on appellant's part. In the vast majority of cases, the issue of whether the evidence supports a finding of culpable recklessness is a question for the jury. But on occasion it becomes a question of law.^[84] If the acts themselves do not pose a *769 "substantial or unjustifiable risk" that the harm will occur, or if that "extreme degree of risk" was not actually foreseen by the defendant, or if the defendant's conduct was clearly not sufficient, by itself, to result in the injury but the conduct of another was clearly sufficient, then the evidence is not legally sufficient to submit the case to a jury or to sustain a conviction. We do not sit as a "thirteenth juror" and disagree with the jury's finding that the appellant did the very acts that the State alleged she committed. The jury followed the law as it was given to them. But the State's allegations of the purportedly reckless acts committed by appellant are simply not acts that, viewed objectively under these particular circumstances, involved "an extreme degree of risk, considering the probability and magnitude of the potential harm to others."^[85] Appellant may have been a "bad" mother, unworthy of her mother, her children, and her boyfriend, but she did not commit the crime of reckless injury to a child merely because she took her children from a house with utilities to one without utilities, and left them, under the care of a responsible adult, with a lit candle in the bedroom.

In this case, the evidence of a criminally reckless mens rea and causation were legally insufficient to sustain appellant's conviction. We thus reverse t