United States v. Hector Flores, Jr.

In United States v. Flores, No. 22-50910 (5th Cir. 2025) (unpublished), the Fifth Circuit affirmed the defendant’s conviction for child endangerment. That Texas crime had been charged federally because the conduct occurred in a national park.

Background: Flores was a single parent who took his daughter to Big Bend National Park, perhaps based on his desire to “live off the grid.” While in the park, the father and daughter suffered a flat tire, and they spent 16 days in the park before being found. They ran out of food a few days into the experience; at which point, they survived on berries, “a couple of minnows and a frog,” granola bars, and an orange given to them by others in the park.

“At no point during the journey or rescue did Flores or [his daughter] request aid from the hikers, kayakers, or police helicopters searching for them.” And “[a]side from being hungry,” the daughter “was not injured.”

Once the two were found, Flores was charged with endangering a child under Texas Penal Code § 22.041 (assimilated through 18 U.S.C. § 13). As charged, the crime required the Government to prove that Flores, acting with at least criminal negligence, placed a child in imminent danger of death or injury by not providing adequate food and not voluntarily delivering the child to a medical provider.

At trial, the jury convicted Flores, who was later sentenced to five years of probation.

Issue: Was the evidence sufficient to support Flores’s conviction? Held: Yes.

Element 1: The Government presented sufficient evidence for the jury to conclude that Flores failed to provide his daughter with adequate food. The daughter testified at trial and described the food she consumed, and park rangers testified about the quantity of food that would be necessary for such a journey. “The jury was free to credit [the rangers’] testimony.”

Element 2: A rational jury could find that Flores placed his daughter in imminent danger of bodily injury.

Under Texas law, “imminent” means “ready to take place, near at hand, impending, hanging threateningly over one’s head, menacingly near.” Elder v. State, 993 S.W.2d 229, 230 (Tex. App.—San Antonio 1999, no pet.) (quoting Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)). The situation cannot be merely “potentially dangerous”—the danger must be “immediate” or “impending.” “Bodily injury” is a “purposefully broad” term under the Texas Penal Code. It may include any physical pain, “however minor.”

Here, a rational jury could have interpreted the testimony as proving that harm to the daughter was “imminent rather than merely an abstract possibility.” She had a “limited food intake” for several days, and there was no indication of when Flores “planned to end their ‘survival camping.’”

Element 3: The Texas statute requires that the crime have been committed “intentionally, knowingly, recklessly, or with criminal negligence.” The court cited several Texas courts that have interpreted that requirement as applying to the result of the defendant’s conduct rather than the conduct itself. In short, the Government needed to prove that Flores had that mens rea regarding his placement of his daughter into “imminent danger of bodily injury.”

The court held that the Government met that burden. Flores knew their food status and how much his daughter normally ate, but he still never sought help “from the hikers, kayakers, or police helicopters despite being aware they had run out of food.” That was sufficient for the jury to conclude that he had “consciously disregarded a substantial and unjustifiable risk that his failure to provide [his daughter] with adequate food placed her in imminent danger of a bodily injury.”

Note: The Fifth Circuit also rejected Flores’s arguments regarding the Government’s closing argument. In that argument, the Government did not constructively amend the indictment, and it did not commit prosecutorial misconduct.