¶1dissenting.
¶2Appellant challenges the sufficiency of the evidence. His basic contention is that there is no evidence to support the allegation that the complaining witness was recklessly exposed to a substantial risk of serious bodily injury. Such element must be proven in order to elevate false imprisonment from its Class B misdemeanor punishment classification to that of a third degree felony. V.T.C.A., Penal Code, Section 20.-02(c).
¶3The record reflects that appellant and two companions entered a Safeway store in Amarillo, Texas, on January 25, 1975. Within the store was a meat cooler in which two store employees were placed by appellant and his companions. Randall Bright, one of the two employees, testified that he was tied up by appellant and placed in the meat cooler. Bright testified that the com*698plaining witness, Monroe Davis, was already tied up and in the meat cooler when the appellant and his companions placed Bright in the meat cooler.
¶4Monroe Davis testified that when he was bound, gagged and placed in the cooler by appellant’s companions, he was dressed in blue jeans and a short-sleeved shirt. He was laid on the concrete floor of the cooler, and was beginning to experience discomfort to his arms from the cold before he and Randall Bright were able to extricate themselves. Such extrication occurred approximately ten minutes after Bright was bound and placed in the meat cooler.
¶5Joe Clyde McMahan, assistant manager of the Safeway store, testified that part of his duties included supervising the cold storage locker where the complaining witness and Bright were placed by appellant and his companions. He testified that the temperature range in this locker was usually between 30 to 38 degrees, Fahrenheit. He testified that the floor of the meat locker was concrete and that in his opinion it would be the coldest part of the freezer. He testified that the temperature is taken from a center point in the freezer, and that he tried to keep the meat locker “cold enough and not freeze the meat.” He testified that one thermometer measured the uppermost portion of the meat locker and it usually read about 40 to 41 degrees, Fahrenheit; that the 30 to 38 degree Fahrenheit reading came from the center part of the meat locker, but that he had never taken the temperature on the floor.
¶6The State contends that “Bound and gagged as Bright and Davis were, the jury could well find that they were exposed to a substantial risk of frost-bite, pneumonia, or any of the other well-known health hazards associated with near-freezing and sub-freezing temperatures, hazards clearly meeting the law’s definition of serious bodily injury.”
¶7Section 20.02(c), supra, provides:
“An offense under this section is a Class B misdemeanor unless the actor recklessly exposes the victim to a substantial risk of serious bodily injury, in which event it is a felony of the third degree.”
¶8V.T.C.A., Penal Code, Section 6.03(c), provides:
“A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or 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.”
¶9V.T.C.A., Penal Code, Section 1.07(34), provides:
“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
¶10From the record before me, I cannot say that there was sufficient evidence to support a fact finding that the appellant recklessly exposed the victim to a substantial risk of serious bodily injury. I would be more inclined to hold the evidence sufficient if the pertinent facts were more than that the complaining witness was bound in such a manner that he could escape in ten minutes and put in a meat locker equipped with an inside release mechanism that had a temperature range of 30 degrees to 41 degrees, Fahrenheit. I would also be similarly influenced if the record contained direct evidence that the above pertinent facts constituted a “real” and “true” risk of frostbite instead of revealing a witness prompted to use that term who admitted on cross-examination that his arms weren’t frostbitten but were “just real cold.” The complaining witness and Bright were able to untie themselves and leave the meat cooler in a matter of minutes. There is no evidence in the record that the appellant or his companions locked the doorway to the meat cooler. There is no direct evidence *699indicating that appellant’s actions constituted a substantial risk of “serious bodily injury” to the complaining witness, as that term is above defined. A circumstantial evidence charge was given, and under such the jury could have inferred that a substantial risk of serious bodily injury was present. However, from the record, I do not feel that the evidence excludes, to a moral certainty, every other reasonable hypothesis except that of a “substantial risk of serious bodily injury.”
¶11While the evidence is sufficient to support a Class B misdemeanor false imprisonment, it is insufficient to support a third degree felony false imprisonment. What happened to the two young men was unfortunate and should not have occurred; appellant can and should be punished for his actions, but I cannot say that the State proved what it pled.
¶12The judgment should be reversed and the cause remanded.