NO. 03-97-00334-CV
IN THE THIRD COURT OF APPEALS OF TEXAS
AT AUSTIN
IN THE MATTER OF
L. M.
APPELLANT
APPELLANT'S BRIEF
On appeal from Cause Number J-15,956
in the 98TH District Court of
Travis County, Texas
Sitting as a Juvenile Court
Honorable John Dietz, Presiding
KEITH S. HAMPTON
819 ½ West 11th Street
Austin, Texas 78701
(512) 476-8484
(512) 476-0953 (fax)08873230
ATTORNEY FOR APPELLANT
Oral Argument Respectfully Requested
PAGE
NAMES AND IDENTITIES OF PARTIES AND COUNSEL ii
INDEX OF AUTHORITIES iii-iv
ISSUES PRESENTED v-vi
PRAYER 106
APPENDIX 107
NAMES AND IDENTITIES OF PARTIES AND COUNSEL
Pursuant to the provisions of Rule 38.1(a), Texas Rules of Appellate Procedure, a complete list of the names of all parties to this action are as follows:
Lacresha Murray -- Appellant
The State of Texas -- Appellee
Names of counsel are as follows:
Attorneys for Appellant:
Keith S. Hampton
Attorney at Law
819 ½ West 11th Street
Austin, Texas 78701
Linda Icenhauer-Ramirez
ICENHAUER-RAMIREZ & HUBNER, P.C.
1103 Nueces Street
Austin, Texas 78701
William A. White
Law Offices of William A. White
608 W. 12th Street, Suite B
Austin, Texas 78701Attorneys for the State:
Ronald Earle, District Attorney
Stephanie Emmons
Gary Cobb
Jack Stick
Assistant District Attorneys
Travis County Courthouse
P.O. Box 1748
Austin, Texas 78767CASES PAGE
Adanandus v. State, 866 S.W.2d 210 (Tex.Crim.App. 1993), cert. denied, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1993) 17
Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) 3
Aliff v. State, 627 S.W.2d 166 (Tex.Crim.App. 1982) 18
Arnold v. State, 920 S.W.2d 704 (Tex.App. -- Houston [1st] 1996) 6, 9
Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App. 1996) 10
Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) 3
Blakley v. State, 814 S.W.2d 433 (Tex.App. -- Austin 1991), affirmed, 843 S.W.2d 33 (Tex.Crim.App. 1992) 12
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) 3-5
Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) 3, 17, 18
Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) 5, 16
Ex parte George, 913 S.W.2d 523 (Tex.Crim.App. 1995) 14
Ex parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App. 1982) 11
Ex parte Peterson, 738 S.W.2d 688 (Tex.Crim.App. 1987) 10
Flores v. State, 906 S.W.2d 133 (Tex.App. -- San Antonio 1995) 10
Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) 11
Graham v. Board of Pardons & Paroles, 913 S.W.2d 745 (Tex.App. -- Austin 1996) 10
Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) 12, 18
Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) 5, 16
Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) 3
Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) 3
Johnson v. State, 73 Tex.Cr.R. 133, 164 S.W. 833 (1914) 10
Johnson v. State, 828 S.W.2d 511 (Tex.App. -- Waco 1992, pet. ref'd) 9
Lugo v. State, 667 S.W.2d 144 (Tex.Crim.App. 1984) 17
Mello v. State, 806 S.W.2d 875 (Tex.App. -- Eastland 1991, pet. ref'd) 9
Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) 3
Nobles v. State, 843 S.W.2d 503 (Tex.Crim.App. 1992) 18
North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) 5,16
Parrish v. State, 869 S.W.2d 352 (Tex.Crim.App. 1994) 4
Phillips v. State, 787 S.W.2d 391 (Tex.Crim. App. 1990) 10
Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) 18
Rice v. State, 861 S.W.2d 925 (Tex.Crim.App. 1993) 4, 5
Rose v. State, 752 S.W.2d 529 (Tex.Crim.App. 1988) 14
State v. Hensley, 866 S.W.2d 28 (Tex.Crim.App. 1993) 5
State v. Holguin, 861 S.W.2d 919 (Tex.Crim.App. 1993) 5
State v. Garza, 908 S.W.2d 60 (Tex.App. -- Waco 1995) 10
State v. Rios, 861 S.W.2d 42 (Tex.App -- Houston [14th] 1993, pet. ref'd) 17
State v. Santos, 831 S.W.2d 827 (Tex.App. -- Dallas 1992, pet. ref'd) 4, 10
Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App. 1990) 6
Stockton v. State, 756 S.W.2d 873 (Tex.App. -- Austin 1988, no pet.) 9
Thompson v. State, 527 S.W.2d 888 (Tex.Crim.App. 1975) 10
United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) 4
United States v. Martin Linen, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) 5, 16
Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) 3
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES OF APPELLATE PROCEDURE
U.S. Const., amend. V 4
U.S. Const., amend. XIV 4
Tex.Const., Art. I, §14 passim
Tex. Fam. Code, §54.04(d)(3) (West 1996) 2
Tex. Fam. Code, §54.04 (West 1996) 9
Tex. Gov't. Code §311.023(5) 7
Tex. Gov't. Code 311.021(1) 7
Tex.Penal Code, §1.07(46)(West 1996) 5
Tex.Penal Code, §19.02(a)(2) (West 1996) 13
Tex. Penal Code, §19.03(a)(8) (West 1996) 2
Tex. Penal Code, §22.04(a)(1) (West 1996) 2
Tex. Penal Code, §22.04(h) (West 1996) 6
Tex.Code Crim.Pro. art. 37.09(3) 17, 18
Tex.R.App.Pro. 38.1(a)
Tex.R.App.Pro. 44 vi
Tex.R.App.Pro. 74(a) iii
Tex.R.App.Pro. 74(f) 14, 17
(1) Whether prosecution and conviction for intentional injury to a child is barred by double jeopardy when Appellant was previously prosecuted and acquitted of murder of a child under the age of six and manslaughter, and convicted of negligent homicide on the same facts.
(2) Whether Appellant was placed in jeopardy twice in violation of double jeopardy guarantees when the trial court authorized the first jury to find her guilty of intentional injury to a child after the jury had decided the homicide theories of the case.
(3) Whether the evidence is legally sufficient in light of the variance between the State's pleading (which alleged that the injury resulted in a protracted loss and impairment of a bodily organ and risk of death) and its proof that death was the result.
(4) Whether Appellant's due process and due course of law rights to enter a plea in bar were violated when the State altered its pleadings to avoid Appellant's double jeopardy arguments advanced in a pretrial writ application.
(5) Whether the evidence is legally sufficient in light of the consistency of the evidence with innocence.
(6) Whether the evidence is factually sufficient to support the verdict in the face of other evidence supporting an outstanding reasonable hypothesis consistent with innocence.
(7) Whether Appellant was in "custody" when questioned for almost three hours as the suspect in the case.
(8) Whether Appellant's statements to the police were voluntary under Due Course and Due Process of Law, as well as the self-incrimination provisions of both the state and federal constitutions.
(9) Whether any 11-year-old is capable of waiving constitutional rights, and whether Appellant validly waived her rights in this case.
(10) Whether anyone other than Appellant's parents possessed the legal authority to make significant legal decisions on her behalf.
(11) Whether parental notification of the interrogation of their children is a constitutionally-protected right belonging to both parent and child.
(12) Whether evidence should have been admitted that Derrick Shaw abused alcohol and crack cocaine during the time that Jayla Belton was in his care, and that Jayla was neglected and kept secluded.
(13) Whether Dr. DiMaio's opinion that a "match" existed between marks on Jayla Belton's body and tennis shoes constituted reliable, scientific expert testimony.
(14) Whether the defense should have been permitted to question its own expert about the DPS Crime's Lab letter about its comparison of the marks on the deceased's body with tennis shoes said to have caused the marks.
(15) Whether Venireman Stevens was unqualified to serve as a juror.
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, L.M., Appellant in this cause, by and through her attorney of record Keith S. Hampton, and files this Brief on appeal.
Appellant was charged with capital murder and injury to a child pursuant to the State's First Amended Original Petition Alleging Delinquent Conduct Seeking A Determinate Sentence. (CR: Vol. I, pp. 8-9).(1) From July 29 through August 7, 1996, she was tried before a jury and on August 7th, was acquitted of capital murder and involuntary manslaughter, but convicted of negligent homicide and intentional injury to a child. (CR: Vol. II, pp. 59-60). On August 9, 1996, the jury sentenced Appellant to a term of twenty years. (CR: Vol. II, pp. 63-66).
Appellant filed a Motion for New Trial and after a hearing, the trial court ordered a new trial. (CR: Vol. III, pp. 158-198). Appellant filed her First Amended Answer, General Denial, Plea in Bar and Special Exceptions on November 18, 1996, and on November 21st, Appellant filed a Pretrial Application for Writ of Habeas Corpus alleging that prosecution of injury to a child was jeopardy barred. (CR: Vol. II, pp. 94-102)(CR: Vol. IV, pp. 1-27). The trial court denied relief, and she appealed. Ex parte L.M., No. 03-96-00698-CV.
While the writ application was pending, the Stated filed its Second Amended Original Petition Alleging Delinquent Conduct Seeking A Determinate Sentence on December 19, 1996. (CR: Vol. III, pp. 47- 50). Appellant filed a Second Amended Answer, General Denial, Plea in Bar and Special Exceptions on January 21, 1997. (CR: Vol.VI, pp. 94-110). Two days later, the trial court denied Appellant's plea in bar and special exceptions. (RR: pretrial hearing, January 23, 1997, p. 29).
Trial commenced on January 29, 1997. (RR: voir dire volume). At the close of the State's case, Appellant moved for a directed verdict, which was denied. (RR: Vol. 7, pp. 48-52). On February 17, 1997, the jury returned a verdict of guilty for injury to a child. (CR: Vol. VII, pp. 170-174). Appellant's motion for judgment notwithstanding the verdict was denied. (CR: Vol. VII, 209-213; 220). The court sentenced Appellant to a term of 25 years in the care, custody and control of the Texas Youth Commission, pursuant to Tex.Human Res.Code § 61.084, and Tex.Family Code § 54.04. (CR: Vol. VII, pp. 167-169).
On March 17, 1997, Appellant moved for a new trial, which was denied. (CR: Vol. VII, p. 216-227; 207). Notice of appeal was filed on February 28, 1997, and was timely filed. (CR: Vol. VII, p. 197). Appellant's pretrial writ application was dismissed by this Court as moot on September 15, 1997. Ex parte L.M., No. 03-96-00698-CV.
SUMMARY OF THE REPORTER'S RECORDThe Death of Jayla Belton
On May 24, 1996, at approximately 6:00 p.m., two-and-one-half-year-old Jayla Belton arrived at Brackenridge Hospital's emergency room. (RR, Vol. 8, p. 71) Jayla, who was carried into the hospital by then eleven-year-old Appellant, was limp and "essentially . . . dead on arrival." (RR, Vol. 1, p. 65-68; Vol. 8, p. 71-72). As the child had no pulse or respiration, EMS nurse Gene Cummings took Jayla from Appellant and began administering CPR in an unsuccessful attempt to resuscitate her. (RR, Vol. 8, p. 72-73) After emergency efforts were ceased, Cummings returned to the hospital waiting area and questioned Appellant in an attempt to find out what had happened, and also to determine the location of the adults who had dropped off Appellant and Jayla. (RR, Vol. 8, p. 80-81) When Appellant said that Jayla had been throwing up all day, he told her to wait and then reported the situation to police officers stationed there. (RR, Vol. 8, p. 80-81)
R.L. Murray, Appellant's grandfather and adoptive father, eventually entered the emergency room and told social worker Kent Burris that Jayla had been sick all day and had vomited a "white foamy substance" that morning. (RR, Vol. 8, p. 102-103) Sometime later, Judy Belton, Jayla's mother, and Derrick Shaw, Judy's boyfriend, arrived, whereupon Shaw immediately asked Burris for a parking sticker, which under the circumstances left Burris a bit dumfounded. (RR, Vol. 8, p. 107-108) After viewing Jayla's body, Shaw and Belton left. (RR, Vol. 2, p.26) An autopsy the next day revealed that Jayla had died of a "massive blunt trauma to abdomen with ruptured liver." (RR, Vol. 1, p. 135) According to Travis County Medical Examiner Dr. Roberto Bayardo, who had performed the autopsy, Jayla's liver was split in two by a violent, forceful, impact, which caused her to bleed to death in a "matter of minutes. I would estimate between 5 to 10 minutes, possibly up to 15 minutes, but I very much doubt it." (RR, Vol. 1, p. 138; 141) In Bayardo's opinion, Jayla's injuries, which included bruises and broken ribs, were not the result of an accidental fall, and would not have been caused during either the autopsy or CPR. (RR, Vol. 1, p. 138-139)
The Events of May 24, 1996 -- What Happened at the Murray Home?
Because Bayardo had determined that Jayla's death was not an accident, police conducted an investigation of the Murray family and their house, where the child had died. Residing at the Murray home were R.L. and Shirley Murray, grandparents and adoptive parents of Appellant (12), Shawntay (18), Cleo (13), and Jason (11). (RR, Vol. 2, p. 70-71; Vol. 3, p. 98-99).(2) Also living in the home were Tyler (7) and Trenton (5). (RR, Vol. 2, p. 72) Shirley took care of Jayla and her younger sister Jasmine, Alicia Turner's twins, and Xanya and Erika Turner. (RR, Vol. 2, p. 74-75) R.L., who had suffered from polio at the age of two, is paralyzed from the waist down, uses crutches to walk, and is not really physically able to care for children. (RR, Vol. 3, p. 100-101; Vol. 4, p. 8)
On May 24, 1996, Julia Henderson dropped off her children, Keturah (14) and Trey (8). (RR, Vol. 2, p. 83) Shirley had told Shaw and Turner that she would be out of town on that day, but did not tell them not to bring their children over. (RR, Vol. 2, p. 85; 107-108; 119-120) Turner brought her children at 6:45 a.m. on her way to work, and understood that R.L. and Shawntay would care for them. (RR, Vol. 4, p. 103-105) Shaw took Jayla and Jasmine to the Murray home between 8:30 and 8:45 that morning because R.L. told him that "somebody would be there." (RR, Vol. 2, p. 14;18; 54; 57)
Jayla was normally an active, friendly child who usually wanted to eat when she arrived at the Murray home. (RR, Vol. 2, p. 111-112; 154-155; 253; 258-259; 269-270) However, on that morning, Jayla went into the den and laid down between two couches "balled up." (RR, Vol. 2, p. 186-187) Shawntay placed the child on the sofa with her and fell asleep, but at 10:30, when Shawntay went to help Cleo make breakfast, Jayla had retutned to her place between the couches. (RR, Vol. 2, p. 194-195) She did not move until about 1:00 p.m., when the Henderson children arrived and made noise. (RR, Vol. 2, p. 197-198; 256-257) Keturah Henderson, who held Jayla and rocked her, said she appeared ill, was sweaty, and may have had a fever. (RR, Vol. 8, p. 60-61; 67) Keturah noticed no bruises on Jayla, but she did tell Shawntay that Jayla had "peed on herself." (RR, Vol. 8, p 67-69) Shawntay did not know whether Jayla had wet on herself or was just sweaty, but her "clothes were wet. Her pants were wet and her shirt was damp." (RR, Vol. 2, p. 201; 210; 258) Shawntay took Jayla to the bathroom, then returned to the den where Keturah again rocked her. (RR, Vol. 2, p. 206) Julia Henderson, Shirley's cousin, who was at the Murray home visiting with R.L. from 1:00 to almost 4:00 that afternoon, saw Jayla go through the living room into the bathroom. (RR, Vol. 3, p. 69-71; 76) Henderson described Jayla as very thin, walking slowly, and although she was holding Shawntay's hand, it appeared as though Jayla was supporting herself. (RR, Vol. 3, p. 79)
When Jayla walked back into the living room she was holding her left side. (RR, Vol. 2, p. 208;214) When R.L. asked Jayla if she was feeling all right, she "shook her head, yeah." (RR, Vol.2, p. 214-215) After the bathroom trip, Shawntay made tuna casserole for the children, and Jayla threw up at the table. (RR, Vol. 2, p. 217-218; Vol. 3, p. 133) According to Shawntay, Jayla was sweating again, her head was warm, and she appeared to have a fever. (RR, Vol. 2, p. 218-219) Jayla threw up the tuna casserole and some unidentified substance which Shawntay described as having "some black stuff in it." (RR, Vol. 2, p. 219-220) Shawntay cleaned up the vomit, gave Jayla some juice and Tylenol, then took her into her own room because it was cooler there. (RR, Vol. 2, p. 221-223) R.L. thought Jayla had also thrown up earlier that morning. (RR, Vol. 3, p. 125) After laying Jayla on the bed, Shawntay got ready for work. (RR, Vol. 2, p. 224) Shawntay then said goodbye to Jayla, told R.L. to keep an eye on her, and left at about 2:40. (RR, Vol. 2, p. 227; 263; Vol. 3, p. 125)
After Shawntay left, R.L. never checked on Jayla because he thought Shawntay had given her some medicine and put her to sleep, and believed she just had a virus. (RR, Vol. 3, p. 123; 125) Appellant and Cleo were watching cartoons in R.L.'s bedroom starting at about 3:00 that afternoon. (RR, Vol. 4, p. 68-69) Alicia Turner arrived between 5:00 and 5:30 to pick up her children. (RR, Vol. 4, p. 11) Shortly thereafter, Appellant came into the front room carrying Jayla and said the child was cold. (RR, Vol. 4, p. 108) R.L. told Appellant to take Jayla outside where it was warmer, but Turner thought that was strange, and told Appellant to bring Jayla back inside to her. (RR, Vol. 4, p. 121) When Appellant laid Jayla down in front of Turner, Jayla's shirt rolled up and Turner saw bruises on the child's chest. (RR, Vol. 4, p. 110) Jayla was cold, her eyes were rolled back in her head, her breathing was "very labored . . . a faint, very shallow kind of thing," and her pulse was very weak. (RR, Vol. 4, p. 110) Turner told R.L. to call 911, but instead he and Appellant drove Jayla to the hospital. (RR, Vol. 4, p. 9; 111; 123-124)
The Police Investigate and Appellant Makes a Statement.
Upon learning of Jayla's death Austin police began questioning those present at the hospital. (RR, Vol. 6, p. 5-8) R.L. and Shawntay drove to the police station and were there a "long time." (RR, Vol. 2, p. 265-266) Police searched the Murray home that night from 11:30 p.m. until 1:00 or 1:30 the next morning, but found nothing. (RR, Vol. 3, p. 17-18) Investigators returned on May 29, 1996 to test for blood evidence, but again, nothing of any evidentiary value was found. (RR, Vol. 3, p. 27; 43)
The Murray children were removed from their home and taken to the Texas Baptist Children's Home. Appellant was kept there four days. (RR, Vol. 6, p. 28-29) On May 29, 1996, after being interrogated from 10:09 a.m. until 12:40 p.m. without a break by homicide detectives Ernest Pedraza and Al Eels, as well as Victim Services Supervisor Angela McGown, Appellant ultimately gave police a statement. (Supp. RR, Pretrial Hearing, p. 54). Without her parents being notified or a lawyer present, Appellant signed a statement that she had dropped Jayla. (State's exhibit #57; RR, Vol. 5, p. 19-20) Appellant was arrested and taken to the Gardner-Betts Juvenile Detention Center in Austin.
The State's Theory of the Case: Appellant killed Jayla because she was mad.
At trial the State argued that Jayla was killed by a single blow that split her liver. (RR, Vol. 1, p. 135; 183-184) According to this theory, Appellant violently attacked Jayla and savagely beat and stomped her while the child was sleeping in Shawntay's room, sometime during the afternoon of of May 24, 1996, and shortly before Alicia Turner arrived to pick up her children. This theory was supported by R.L.'s testimony that he heard a "thumping noise" which he believed was Appellant bouncing a ball (RR, Vol. 4, p. 18; 20), and by the testimony of Dr. Vincent DiMaio, who speculated that lines on Jayla's body "matched" marks made by Appellant's tennis shoes. (RR, Vol. 1, p. 216-217) Within a minute after R.L. heard the thumping noise, Appellant emerged from the back room and told him that Jayla was sick--throwing up and shaking. (RR, Vol. 1, p. 24) Appellant was the only one who could have done it, the State reasoned, because according to the medical examiner, Jayla would have bled to death in a matter of five or ten minutes, and Appellant was the only person to have gone into the room where the child was sleeping since Shawntay had left for work.
The State additionally offered a motive for the attack on Jayla--Appellant was angry because the child was sick. On that morning, Jayla had thrown up in the hall. (Vol. 3, p. 106; 108; 110) It was Appellant's duty that day to wash the clothes and sweep the floors. (Vol. 4, p. 64) Therefore, it would have been Appellant's job to clean up any vomit on the floor. (Vol. 3, p. 109-111) According to R.L. Appellant would have thought the vomit was "nasty," and would not have wanted to clean it up, although he was uncertain whether he had told her to do so. (Vol. 3, p. 111) Cleo had given police a statement that Appellant was mad that day because she had to clean up after Jayla, who kept throwing up. (Vol. 4, p. 79) However, Cleo never saw Appellant clean up any vomit that day. (Vol. 4, p. 100) Curiously, the transcript of the recorded statement of Appellant's interview with police reflected that Appellant was mad because Jayla had died, but that Jayla had done nothing to Appellant to make her mad. (RR, Vol. 4, p. 96-98)
Appellant's Defense -- Jayla Belton was a chronically battered child.
Dr. Linda Norton, a medical doctor and pathologist who specializes in forensic pathology and forensic medicine with a subspecialty focusing on child death and child abuse, testified that Jayla Belton was a "chronically battered and malnourished child . . . [S]he would fall into the category of a child that we call the battered child syndrome . . . [and had] been battered over a long period of time." (RR, Vol. 8, p. 134-135) The child had so many bruises that Norton did not believe those buises could have been inflicted in a single attack. (RR, Vol. 8, p. 143) Jayla also had many old scars and bruises. (RR, Vol. 8, p. 148-150) Norton concluded, based on her extensive review of medical records, autopsy reports, the record from Appellant's previous trial, and other relevant documentation, that Jayla had been injured prior to arriving at the Murray home on May 24, 1996, and her vomiting, sleeping, and heavy sweating indicated she was already in shock when she entered the home. (RR, Vol. 8, p. 159-163) She did not believe that a single blow to Jayla's liver caused her death; rather, the initial injury was much smaller than that reflected in the autopsy photos, and action subsequent to Jayla's death, namely CPR, had caused more damage to the liver. (RR, Vol. 8, p. 172-173; Vol. 9, p. 10-18) Norton thought the possibility that Appellant's tennis shoe perfectly matched the linear bruises found on Jayla's body was "farfetched almost to the point of being impossible." (RR, Vol. 8, p. 155-156)
Appellant also offered testimony through sisters Audrey and LaShawn Forcey, former neighbors of Judy Belton and Derrick Shaw, that Shaw was abusive toward Jayla, and Belton did nothing to stop the abuse. Audrey once saw Shaw throw Jayla into the bedroom and close the door, without protest from Belton. (RR, Vol. IX, p. 108-109) LaShawn observed a similar incident in which Shaw became angry with Jayla when she would not take a nap, picked her up by one arm, and threw her into the bedroom. (RR, Vol. IX, p. 118-120)
Back To Table of ContentsThe issues regarding double jeopardy, the State's pleadings and fatal variance between pleadings and proof are interrelated points. Appellant contends that prosecution for injury to a child was jeopardy-barred because she was acquitted of capital murder and manslaughter, and because she was convicted of negligent homicide. Furthermore, Appellant was placed in jeopardy twice for the same offense through the trial court's instruction authorizing the jury at the first trial to decide whether she committed intentional injury to a child, even though it had already decided whether she committed homicide on exactly the same facts. Finally, Appellant urges this Court to adopt as a matter of state constitutional law the analysis of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) because it is a standard better equipped to deter double jeopardy violations than the test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
Related to the issues of double jeopardy is the purpose and effect of the State's second pleading, in which it replaced the allegation that Jayla Belton's injury caused her death, with the allegation that her injury caused a "risk of death" and a "protracted loss" of her liver. These additional allegations, as the State conceded at trial, were made to avoid the double jeopardy bar urged in Appellant's pretrial writ application. However, this use of pleadings created the errors discussed next, depending upon whether they are deemed necessary or unnecessary to the State's pleadings.
These additional allegations are either surplusage or "essential elements" of the offense. If they are surplusage, then they cannot be "essential elements" of the offense and are irrelevant for double jeopardy purposes. If the second-pleading allegations are not essential, the remaining allegations compel the conclusions that the second prosecution was jeopardy barred for all the reasons discussed supra, and that Appellant's special exceptions should have been granted because such surplusage deprived her of her right to enter a plea in bar. Moreover, notwithstanding the nature of the allegations, the post-writ application pleadings also created a fatal variance between the proof and the allegations, and the evidence in this case is therefore legally insufficient. Because these pleadings cannot be both necessary and unnecessary, both surplusage and essential to the pleadings, one of these claims is meritorious.
Appellant contends that because the evidence in this circumstantial evidence case is at least as consistent with innocence as it is with guilt, a reasonable doubt necessarily existed and the conviction should be reversed and an order of acquittal entered. Also, the evidence is factually insufficient because the prosecution experts conceded the defensive theory in this case and because the other defensive evidence--the contrast between Appellant's social history and character with Derrick Shaw's, and circumstantial evidence supporting the defensive theory of Jayla Belton's injuries --overwhelmed the weight and preponderance of the prosecution's case.
The incriminating statements adduced in this case are challenged on four grounds. First, they were the product of custodial interrogation where none of the statutory provisions governing such interrogation of juveniles was followed. Second, even if Appellant was not subjected to custodial interrogation, her statements were coerced and she was manipulated by her interrogators, rendering them involuntary and therefore inadmissible. Third, only Appellant's parents possessed authority to make significant legal decisions such as allowing her to be questioned alone by police as the prime suspect in a capital murder investigation. Finally, even if the Baptist Children's Home did have the authority to make such grave legal decisions for her, the statement was invalid because it was induced by police deception.
Appellant argues that waiver of her rights was invalid because 11-year-old children do not have the capacity to waive constitutional rights, and, in any event, because Appellant's waiver was involuntary.
The trial court permitted Dr. DiMaio to give his opinion regarding a purported "match" between shoes Appellant was wearing on the day of her interrogation, and parallel linear abrasions on Jayla's body. However, the trial court refused to allow evidence regarding a report from the DPS Crime Lab that insufficient general characteristics precluded any such "match." Appellant contends that testimony from DiMaio that a "match" existed between the shoes and the bruises should have been excluded as unscientific and unfairly prejudicial. However, because DiMaio's testimony was permitted, Appellant should have been allowed to question her expert witness about the Crime Lab's contrary conclusions.
The trial court excluded evidence that Derrick Shaw abused alcohol and drugs, kept Jayla Belton secluded and neglected, and that Jayla was seen eating cold food on the floor out of a can. This evidence was relevant to support the defensive theory that Shaw met the profile of an abusive step-father, that Jayla was an abused and neglected child, and that, when viewed in its totality, Jayla was more likely abused by Shaw and her injuries inflicted before she arrived at the Murray home.
Finally, Appellant argues that the trial court's granting of a State's challenge for cause was erroneous because the prospective juror was in fact qualified.
ISSUE ONE: APPELLANT'S CONVICTION WAS OBTAINED IN VIOLATION OF THE GUARANTEES AGAINST DOUBLE JEOPARDY UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AS WELL AS ARTICLE I, §14 OF THE TEXAS CONSTITUTION.
(A) APPELLANT'S ACQUITTAL OF CAPITAL MURDER OF A CHILD UNDER THE AGE OF SIX AT THE FIRST TRIAL BARRED A SUBSEQUENT PROSECUTION FOR INJURY TO A CHILD UNDER THE AGE OF FOURTEEN.
At the first trial the State alleged that Appellant had committed capital murder in its First Amended Original Petition Alleging Delinquent Conduct Seeking A Determinate Sentence, namely, that Appellant "did then and there intentionally and knowingly cause the death of Jayla Belton, an individual under six years of age[.]" (CR: Vol. I, p. 8). Appellant was acquitted. (CR: Vol. II, p. 59). See Tex. Penal Code, §19.03(a)(8) and Tex. Juv.J. Code, §54.04(d)(3). The State then sought to prosecute Appellant for intentional injury to a child, under Tex.Penal Code, § 22.04(a)(1), alleging that she "did then and there intentionally and knowingly cause serious bodily injury to Jayla Belton, an individual under 14 years of age[.]" (CR: Vol. I, pp. 4-5). In her Pretrial Application for Writ of Habeas Corpus Appellant alleged that prosecution for injury to a child was jeopardy barred. After the trial court denied relief, the State changed its pleadings, specifically removing the allegation that Appellant caused the child's death. (CR: Vol. III, pp. 47-48).
On December 19, 1996, the State obtained its Second Amended Original Petition Alleging Delinquent Conduct Seeking A Determinate Sentence, in which it alleged that Appellant "did then and there intentionally and knowingly cause serious bodily injury namely, cause bodily injury that created a substantial risk of death and that caused protracted loss and impairment of the function of a bodily organ to Jayla Belton, a child 14 years of age or younger[.]" (CR: Vol. III, pp. 47-48). The new pleadings removed the allegation that a death occurred and replaced that language with an allegation of forms of "serious bodily injury" different from death, namely, "risk of death" and "protracted loss" of an organ.
Appellant urged the present double jeopardy claims in her pretrial writ application, all her answers, pleas in bar, special exceptions, motion for directed verdict and both motions for new trial. See Ex parte L.M., No. 03-96-00698-CV. (RR: pretrial hearing, January 2, 1997, pp. 1-7; Vol. 7, pp. 47-52); (CR: Vol. II, pp. 104-108;Vol. IV, pp. 2-6; Vol. VI, pp. 23-26; 94-110; 207-210).
In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court articulated a test to determine whether a successive prosecution was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.(3) The "Blockburger test" requires courts to first examine the statutes that define each offense to see whether each requires proof of an additional fact or element the other does not. Id. See also Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). "If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred." State v. Santos, 831 S.W.2d 827, 828 (Tex.App.--Dallas 1992, pet. ref'd)(quoting Brown v. Ohio). Stated another way, this Court must ask whether each offense includes an element not contained in the other. If the answer to this question is 'no,' then the offenses are the "same" for the purposes of double jeopardy. United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556, 568 (1993); Rice v. State, 861 S.W.2d 925 (Tex.Crim.App. 1993).
The Court of Criminal Appeals, based on Dixon has concluded that essential elements relevant to a jeopardy inquiry are those of the charging instrument, not the penal statute, viz:
Statutory elements will, of course, always make up a part of the accusatory pleading, but additional nonstatutory allegations are necessary in every case to specify the unique offense with which the defendant is charged.
Parrish v. State, 869 S.W.2d 352, 353-354 (Tex.Crim.App. 1994).
The elements of the statutes in question are as follows:
Injury to a Child Capital Murder
(allegation before writ application)
(1) intentionally and knowingly (1) intentionally and knowingly
(2) causes serious bodily injury (2) causes death
(3) to a child under 14 years of age (3) to a child under 6 years of age
A comparison of these elements is as follows:
Element #1: These elements are identical.
Element #2: 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." "Serious bodily injury" contains the same element, i.e.,"death." (Tr., p. 17). Tex.Penal Code, §1.07(46)(West 1996). These elements are not mutually exclusive because there is nothing in the element "causes death" which is not included within the element "serious bodily injury." Therefore, the element "death" is included within the element "serious bodily injury."
The State's second-pleading replacement of "death" with "protracted loss" of an organ and "risk of death" does not alter the result, i.e., that the allegations refer to the same offense:
Injury to a Child Capital Murder
(allegation after writ application)
a substantial risk of death/
protracted loss and impairment death
of the function of a bodily organ
Because a person necessarily suffers the loss and impairment of bodily organs when he or she dies, these elements are included within the element of death. Furthermore, when one dies, he or she has necessarily been exposed to or "risked" death. Thus, because it is impossible as a matter of human experience for a person who dies not to have also been exposed to death or suffered the loss of all bodily organs, the additional allegations are lesser-included elements of death.Both the posture of the case and the issue is unique. Because the State has previously proven that a single intentional act--a blow to the liver--caused Jayla's death, then it is impossible that the second-pleading allegations could refer to anything other than the irreversible condition of death. As conceded by the prosecution: "We certainly don't intend to proceed at this trial and not introduce evidence that Jayla Belton was killed." (RR: pretrial hearing, January 23, 1997, pp. 21-25).
As Parrish makes clear, an appellate court is not confined to the statutory elements, but should review the charging instruments as well. A review of the first pleadings and verdicts reveals that the State intended to prove and did prove that Jayla had been killed. Because death is irreversible, the subsequent allegations regarding the harm and injuries she suffered could only have referred to her death. In light of the immutability of death, and in light of the first and subsequent pleadings in this cause, and in light of the statement of facts from the first trial, the loss of bodily organs and the risk of death are the same as death.
Even if the State's "substantial risk" and "protracted loss" pleadings are so wholly irreconcilable from its previous "death" allegation as to render Appellant's prosecution as something other than the "same offense" as the first trial, these additional allegations are surplusage and deserve no place in the double jeopardy analysis.
Element #3: "Under the age of 6" contains some but not all the same elements which make up the element "under the age of 14" because everyone under the age of 6 years is necessarily under the age of 14. The age requirement under the pertinent capital murder statute is a lesser included element of the age provision under the injury to a child statute.
Although counterintuitive, capital murder of a child under 6 is nevertheless a lesser-included offense of intentional injury to a child under a faithful application of the well-established Blockburger test because the pertinent capital murder statute contains some but not all the same elements as that of intentional injury to a child.
Acquittal terminates jeopardy, and once jeopardy terminates in an acquittal, the Double Jeopardy Clause precludes a successive prosecution for the same offense. See United States v. Martin Linen, 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642, 651 (1977); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Acquittal of a lesser-included offense bars prosecution for the greater. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See also Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App. 1990). Appellant was acquitted of capital murder of a child under 6. (Tr., p. 19). Because injury to a child is the "same offense" for which Appellant has already been acquitted, her subsequent prosecution for injury to a child was therefore barred under U.S.Const., amends. V and XIV, and Tex.Const., Art. I, §14, and her conviction violated the constitutional guarantees against double jeopardy.
As grounds for denying Appellant's pretrial writ application, the trial court noted the language from Tex.Penal Code, §22.04(h), which allows prosecution under either murder or injury to a child. However, reliance such statutory language can be ill-advised because its application would still violate double jeopardy provisions for all the reasons previously advanced, as recently recognized by another court of appeals construing a different provision. E.g., Arnold v. State, 920 S.W.2d 704, 708 (Tex.App.--Houston [1st] 1996)(analyzing Tex.Rev.Civ.Stat. 6687-b §5(d), which declares license suspensions immune from double jeopardy provisions, and observing, "If the legislature could make statutes constitutional by declaring them so, then no statute would ever be held unconstitutional".) Therefore, insofar as § 22.04(h) can be viewed as permitting successive prosecutions, its application under the circumstances in this case would constitute double jeopardy in violation of the double jeopardy provisions in the state and federal constitutions.(4)
(B) PROSECUTION WAS BARRED BY ARTICLE I, §14 OF THE TEXAS CONSTITUTION BECAUSE APPELLANT HAS ALREADY BEEN PUT IN JEOPARDY AND PROSECUTED FOR THE SAME OFFENSE.Texas courts "have been very liberal" in construing Article I, §14 of the Texas Constitution. Thompson v. State, 527 S.W.2d 888, 889 (Tex.Crim.App. 1975)(quoting Johnson v. State, 73 Tex.Crim. 133, 164 S.W. 833 (1914)). This provision has never been placed in lockstep with federal rationales and is subject to independent interpretation. Ex parte Hernandez, 953 S.W.2d 275 (Tex.Crim.App. 1997)(appellate court erred when it concluded that state and federal double jeopardy provisions "generally afford the same protections."); Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App. 1996). See also Graham v. Board of Pardons & Paroles, 913 S.W.2d 745 (Tex.App.--Austin 1996).
Appellant urges as a matter of state constitutional law that "offense" in Article I, §14 be interpreted to mean "an act which violates one or more penal statutes" for purposes of determining whether or not a successive prosecution is barred under this state's double jeopardy provision. In essence, this is exactly the double jeopardy analysis fully explicated in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and which Appellant urges be adopted as a matter of state constitutional jurisprudence for purposes of successive prosecution analysis.
The rule for analyzing successive prosecution claims under Article I, §14 should be:
Where the same criminal conduct violates two different penal statutes, and where one of the offenses so committed is a lesser included offense of the other, successive prosecutions for both offenses constitute double jeopardy.
See Blakley v. State, 814 S.W.2d 433, 437 (Tex.App.--Austin 1991), affirmed, 843 S.W.2d 33 (Tex.Crim.App. 1992); Grady, 110 S.Ct. at 2093. As this Court itself has noted, "[t]his rule had been recognized and applied in Texas before Grady." Blakley, supra at n. 4 (emphasis added). Grady is now overruled in federal jurisprudence, leaving only this state's independent jurisprudence to create a reasonable analytical construct which effectuates the underlying principles of double jeopardy. Grady's replacement, United States v. Dixon, provides little help.
In Green v. United States, 355 U.S. 184, 198, 78 S.Ct. 221, 229, 2 L.Ed.2d 199 (1957), the Supreme Court, after observing that jeopardy safeguards were dearly won and should be highly valued, opined "[i]f such great constitutional protections are given a narrow, grudging application they are deprived of much of their significance." This observation should apply with at least as much force by Texas courts regarding our double jeopardy provision. Double jeopardy claims appear to have become more numerous, due largely to the State's response to calls for harsher punishments. Blakely itself is a paradigm of the perpetually unsatisfied urge to judge and punish, and is precisely what the double jeopardy provision was meant to check and counter. Unlike so many other constitutional rights, Article I, §14 plainly sets out the limitations of the State's power to proceed again against one of its own citizens.
In its Reply, the State conceded that the conduct in question is a singular act:
To the extent respondent complains her previous dual adjudication of delinquency on charges of criminally negligent homicide and intentional injury to a child is barred because both offenses are predicated on the same proofs established at trial, the State would join respondent in urging this Court to review the statement of facts from the trial. That transcript shows the medical examiner located over thirty different injuries on the victim's body, only one of which can be described as fatal.
(CR: Vol. III, p. 136)(emphasis added). This concession ought to clarify that Appellant's prosecution was for the exact same conduct for which she had already been put to trial. Thus, prosecution for injury to a child was barred because she had already been found not guilty of capital murder and manslaughter, and had been found guilty of negligent homicide.
The jeopardy problems in this case arose because the State never formulated its theory of the case before trial or decided the appropriate statute under which it would seek a conviction. Tex.Penal Code, § 22.04(h) may have misled the State in this respect. Comparing chapter 19 with chapter 22 of the Penal Code, it appears that the legislature meant for the State to proceed under one of the homicide statutes when a child is killed, and under one of the assaultive statutes when the child is injured.
The present cause is not a case in which a child was injured, but one in which the child died. While the State's theory may have been that Appellant intended to cause serious bodily injury and not death, in light of the child's death, the State should have originally prosecuted her under that theory of homicide, i.e., that a person commits murder if she "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex.Penal Code, §19.02(a)(2). Instead, the State proceeded to the first trial under the capital theory that Appellant intended death to result from the injury. At the second trial the State proceeded under a statute which was clearly inapplicable under a theory foregone at the first trial, namely, that Appellant intended serious bodily injury to be the result, but caused death. Prosecution for intentionally causing serious bodily injury to a child was barred because Appellant was previously acquitted on that theory under the homicide statutes.
(C) PROSECUTION FOR INJURY TO A CHILD WAS BARRED BY ARTICLE I, § 14 OF THE TEXAS CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BECAUSE APPELLANT WAS ALREADY PLACED IN JEOPARDY FOR THE SAME OFFENSE WHEN THE JURY WAS INSTRUCTED AT THE FIRST TRIAL TO DECIDE THE HOMICIDE THEORIES OF THE CASE, AND THAT JEOPARDY TERMINATED WHEN THE JURY DECIDED THOSE ISSUES.
The facts of Appellant's case show that criminally negligent homicide and injury to a child are the same offense for jeopardy purposes for the same reasons advanced in the previous section. The evidence clearly showed one assault upon the child. The manner and means alleged in the capital murder paragraph (of which criminally negligent homicide was the lesser included offense) and the manner and means alleged in the injury to a child paragraph of the petition were identical. The two paragraphs were basically two different ways of charging the same offense: the assault upon the child. As a result Appellant should only have been adjudicated guilty of one offense. However, the court's charge permitted the jury to find Appellant guilty twice for this same offense.(5)
Paragraph VIII of the charge first asked the jury to consider if Appellant was guilty of capital murder, then voluntary manslaughter, and then criminally negligent homicide. (Tr., pp. 19-21). After deciding whether Appellant was guilty of any one of these different levels of homicide, and notwithstanding the jury's findings as to the levels of homicide, the jury was then instructed to consider whether she was guilty of injury to a child. See, e.g., Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App. 1988)(Opinion on Rehearing)(jurors are presumed to have followed trial court instructions); Ex parte George, 913 S.W.2d 523, 526 (Tex.Crim.App. 1995)(presumption of regularity of judgments). The jury considered both capital murder and manslaughter sequentially, and acquitted Appellant of both. (Tr., pp. 19-20). The jury then found Appellant guilty of criminally negligent homicide after being instructed to consider that offense only if it acquitted Appellant of capital murder and manslaughter. (Tr., pp. 19-21).
Despite having found Appellant guilty of criminally negligent homicide, the jury was instructed: "Regardless of how you answered questions 1, 2, and 3, you will proceed to question No. 4," which compelled the jury to consider injury to a child. (Tr., pp. 20-21). The jury found Appellant guilty of injury to a child as well. (Tr., p. 21).
The court's charge at the first trial wrongfully allowed the jury to convict Appellant of injury to a child even after it had found that she had committed criminally negligent homicide, and after acquitting her of capital murder and manslaughter. Appellant was adjudicated first of criminally negligent homicide and acquitted of manslaughter and capital murder before she was adjudicated guilty of injury to a child. This succession of jeopardy and latter conviction violated state and federal double jeopardy provisions not only because she was convicted twice for the same offense (under negligent homicide and injury to a child statutes), but also because she had already been acquitted of capital murder and manslaughter.(6)
Jeopardy terminated once the jury decided the homicide theories of the case. See United States v. Martin Linen, 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642, 651 (1977); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Not only is the conviction for injury to a child contrary to double jeopardy provisions, but the present prosecution is barred as well because Appellant had already been adjudicated for precisely the same conduct under the homicide statutes.
(D) PROSECUTION FOR INJURY TO A CHILD WAS BARRED BY THE ACQUITTAL OF MANSLAUGHTER AT THE FIRST TRIAL.
The State never alleged manslaughter. (CR: Vol. I, pp. 8-9). However, the trial court at the first trial instructed the jury that it should return a verdict on manslaughter if it believed that Appellant "did recklessly cause the death" of "an individual under six years of age," but Appellant was acquitted. (Tr., pp. 19-20). Manslaughter is a lesser-included offense of murder and capital murder. See, e.g., Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App. 1984); Adanandus v. State, 866 S.W.2d 210 (Tex.Crim.App. 1993), cert. denied, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1993). Causation of death and age are elements included within the injury to a child offense in the same way as described above under subsection "A", and for purposes of brevity will not be repeated. Manslaughter as charged to the jury in this case differs from injury to a child only by its culpable mental state. A lesser-included offense includes one which "differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission." Tex.Code Crim.Proc. art. 37.09(3). Because manslaughter as charged differs from intentional injury to a child only with respect to its less culpable mental state, it is a lesser-included offense. State v. Rios, 861 S.W.2d 42, 43-44 (Tex.App--Houston [14th] 1993, pet. ref'd). Because manslaughter is a lesser included offense, acquittal bars successive prosecution in the same way that acquittal for capital murder bars successive prosecution for injury to a child.
(5) PROSECUTION FOR INJURY TO A CHILD WAS BARRED BECAUSE CONVICTION OF NEGLIGENT HOMICIDE BARRED SUBSEQUENT PROSECUTION FOR INJURY TO A CHILD.
Prosecution for injury to a child was barred by the federal double jeopardy provision because Appellant was convicted of negligent homicide, which is a lesser-included offense of capital murder. Nobles v. State, 843 S.W.2d 503 (Tex.Crim.App. 1992). Negligent homicide is also a lesser-included offense of manslaughter. Aliff v. State, 627 S.W.2d 166 (Tex.Crim.App. 1982). A lesser-included offense includes one which "differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission." Tex.Code Crim.Pro. art. 37.09(3). Causation of death and age are elements included within the injury to a child offense in the same way as described under subsection "A" of this double jeopardy issue, and for purposes of brevity, will not be repeated here. Under Article 37.09, then, negligent homicide is a lesser included offense of injury to a child because it carries the least culpable mental state, whereas intentional injury to a child carries the highest culpable mental state. Conviction of a lesser-included offense bars prosecution for the greater. See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Brown v. Ohio, supra. Because Appellant was convicted of negligent homicide, she should not have been placed again in jeopardy for intentional injury to a child because negligent homicide and intentional injury to a child constitute the same offense for jeopardy purposes.
ISSUE NO. TWO: THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S SPECIAL EXCEPTIONS ON THE GROUNDS THAT THE ALLEGATIONS UNNECESSARY TO CHARGE AN OFFENSE CONSTITUTED SURPLUSAGE INTENDED TO CIRCUMVENT APPELLANT'S DOUBLE JEOPARDY PLEA AND RIGHT TO FAIR NOTICE.
In August, 1996 the State accused Appellant of capital murder and injury to a child in its First Amended Original Petition. (CR: Vol. I, pp. 4-5; 8-9). Appellant was acquitted of capital murder, but found guilty of negligent homicide and--over a timely double jeopardy objection--injury to a child. (CR: Vol. II, pp. 59-60; Vol. IV, pp. 780-781).
After the new trial was ordered, Appellant argued in her pretrial writ application that capital murder of a child under six is a lesser-included offense of injury to a child. The key element included within the injury to a child statute's definition of serious bodily injury is that a death had occurred. During pendency of her appeal in Ex parte L.M., No. 03-96-00698-CV, the State filed an amended petition which not only omitted any allegation that a death had occurred, but included all applicable definitions of "serious bodily injury" except death, namely "bodily injury that created a substantial risk of death and that caused protracted loss and impairment of the function of a bodily organ." (CR: Vol. III, pp. 47-48). The State was ordered to replead by December 5, 1996, but instead filed its second petition two weeks later because it "took a little work to figure out what type of wording we would include in the injury to a child charge. And then after deciding what type of pleading we would pursue," an appointment was made with the grand jury. (RR: pretrial hearing, January 2, 1997, pp. 1-7). Appellant filed special exceptions to the new pleadings contending, among other things, that the additional allegations constituted surplusage which replaced the allegation that a death had occurred in order to circumvent Appellant's double jeopardy protections. (CR: Vol. 4, pp. 2-27). Appellant and the State argued about the merits of the special exceptions:
[DEFENSE COUNSEL]: [T]he State, in its latest pleading, has omitted all references that a death occurred in this case. The pleadings purport that they intend to prove that a protracted loss of an organ was suffered by the victim in the case. We don't believe--we find it hard to believe, in light of all of the statements of fact from the previous trial, that they really do intend to prove that allegation.
***
[PROSECUTION]: The State's redrafting of the petition was completed after the hearing we held on the writ that was filed by the Respondent. We redrafted the petition at the direction, or strong suggestion of the Court, and with the understanding that Mr. Hampton was aware of that. We certainly don't intend to proceed at this trial and not introduce evidence that Jayla Belton was killed. I mean, that's certainly a part of the State's case. The reason we drafted the petition in the manner in which we did was to avoid any question whatsoever about a double jeopardy prohibition. The fact of the matter is, however, that the Respondent was adjudicated delinquent previously of injury to a child on issues, or a charge that includes not only death, but protracted loss or impairment of the bodily organ or function.
***
[DEFENSE COUNSEL]: What they've done is that they have alleged serious bodily injury. . . . [T]hey've . . . alleged specific factual things they say they're going to prove namely, "bodily injury that created a substantial risk of death and that caused protracted loss and impairment of the function of a bodily organ to Jayla Belton." That is unnecessary to the pleadings. It is surplusage that will create a fatal variance at the end of the State's case. And the State has now just admitted on the record exactly the bad faith pleading allegation that we make in this special exception; namely, they have pled these extra factual elements that they know they don't intend to prove in order to preclude appellant[']s . . . plea in bar.
(RR: pretrial hearing, January 23, 1997, pp. 21-25). The trial court denied Appellant's special exceptions. (RR: pretrial hearing, January 23, 1997, p. 29).
Argument and Authorities
Unless a fact is essential for notice to the defendant, a criminal accusation need not plead the evidence relied on by the state. Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App. 1980), Cameron v. State, 401 S.W.2d 809 (Tex.Crim.App. 1966). The State is not required to plead the specific definitional terms of serious bodily injury. See Thomas v. State, 621 S.W.2d 158 (Tex.Crim.App. 1981). Because these allegations were unnecessary to accuse Appellant of a criminal offense, they constituted surplusage which the trial court should have ordered stricken from the pleading. Moreover, this surplusage should have been stricken because it constituted a conscious effort to circumvent Appellant's rights not to be exposed to double jeopardy, under Tex.Const., Art. I, §14, and U.S.Const., amends. V and XIV. Because the trial court refused to grant Appellant's special exceptions, the State was permitted to proceed on a theory never pled (murder under § 19.02) through allegations of facts never intended to be proven (protracted loss/impairment of bodily organ), under a statute which did not apply (§ 22.04) for an offense barred by double jeopardy.
While the State has wide latitude in what it may charge and how it may plead criminal accusations, there are constitutional limits. Both state and federal constitutions require that an accused be informed of the nature and cause of the accusation against him. See Tex.Const. art. I, §10; U.S. Const. amend. VI. These fundamental guarantees apply equally in federal and state courts. See U.S. Const. amend. XIV; Tex.Const., Art. I, § 19; Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Jackson v. State, 697 S.W.2d 513, 514 (Tex. App.--San Antonio 1985, no pet.). Article I, §19, and the Fifth and Fourteenth Amendments also guarantee an accused person the right to be fairly informed of the charge against which she must defend, and enough notice to enable her to plead former acquittal or conviction in bar of prosecution for the same offense. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). See also Zweig v. State, 74 Tex.Crim. 306, 171 S.W. 747, 753 (1914); Kelly v. State, 713 S.W.2d 198 (Tex.App.-- Amarillo 1986); Wilson v. State, 825 S.W.2d 155 (Tex. App.--Dallas 1992).
As the United States Supreme Court has observed:
[T]wo of the protections which an indictment is intended to guarantee [are] reflected by two of the criteria by which the sufficiency of an indictment is to be measured. These criteria are, first, whether the indictment contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet," and, secondly, "in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction."
Russell, 369 U.S. at 763-764 (internal citations omitted). "Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute." Id.
The specific fact omitted from the State's pleading in this case was the actual result of the alleged conduct and true nature of the injury it intended to prove at trial. The Second Amended Original Petition was written to preclude Appellant's plea in bar, thereby denying her rights under the Due Course of Law provision and Due Process Clauses cited supra.
The Second Amended Original Petition was deliberately misleading because the prosecution fully intended to prove the very element omitted from its pleading. A pleading by the State omitting a material fact which would create a bar to prosecution but which it fully intends to prove at trial is not fair notice under the constitutional provisions cited supra. Otherwise, the State could always side-step the double jeopardy guarantees simply by pleading any additional or unique fact in the case.
"One of the central objectives of the double jeopardy prohibition against successive trials is to prevent the state, with its unlimited resources, from using the first trial in the appellate process to pinpoint the inadequacies of its case. The double jeopardy clause forbids a second trial for [that] purpose." Mars v. Mounts, 895 F.2d 1348, 1359 (11th Cir. 1990) (holding that double jeopardy barred subsequent prosecution of defendant for second degree murder after his acquittal of first degree murder of same victim, where only difference between two prosecutions was hour at which crime allegedly occurred.) The additional allegations in the second pleading were designed to give the State exactly that which double jeopardy precludes, i.e., the use of a previous trial to fine-tune inadequacies in its case, and should therefore have been stricken. In light of the State's admittedly unconstitutional strategy, the trial court should have granted Appellant's special exceptions.
ISSUE NO. THREE: THE EVIDENCE IS LEGALLY INSUFFICIENT BECAUSE THERE IS A FATAL VARIANCE BETWEEN THE PLEADING AND THE PROOF.
The Second Amended Original Petition did not allege what the State actually proved, namely, that death was the intended result, but instead alleged what the prosecution had no intention of proving at trial: that Jayla Belton suffered a protracted loss or impairment of her liver and was exposed to nothing more than a "risk of death." This creative pleading, while circumventing Appellant's double jeopardy claim, also created a fatal variance between the pleading and the proof. See Fisher v. State, 887 S.W.2d 49 (Tex.Crim.App. 1994). If not descriptive of that which is legally essential to the validity of the indictment, unnecessary words or allegations may be rejected as surplusage. Hernandez v. State, 903 S.W.2d 109, 113 (Tex.App.--Fort Worth 1995, pet. ref'd.). "The exception to the general rule is where the unnecessary matter is descriptive of that which is legally essential to charge a crime. In that case the matter must be proved as alleged." Ibid.
The State alleged a "protracted loss or impairment of the function of a bodily organ." However, the State proved that death occurred, not merely an impairment of an organ. "Risk of death" and death itself are qualitatively different, mutually exclusive results. These different results define the difference between assaultive offenses (in chapter 22) and homicide (in chapter 19). Death is only included in the definition of serious bodily injury to accomodate prosecution under § 19.02(a)(2), i.e., a person who merely intends serious bodily injury as a result is still guilty of murder if his act is clearly dangerous to human life and the person dies as a result.
In its Second Amended Original Petition, the State charged that Appellant did "intentionally and knowingly cause serious bodily injury namely, cause bodily injury that created a substantial risk of death and that caused protracted loss and impairment of the function of a bodily organ to Jayla Belton, a child 14 years of age or younger." There was no requirement that the State plead specific definitional terms; however, because it did, its proof must meet its pleading. The State's proof fatally varies with its pleading, just as Appellant repeatedly pointed out both in her motion for directed verdict and her motion for new trial, and as she had anticipated in her special exceptions and plea in bar. (RR: pretrial hearing, January 23, 1997, pp. 21-29)(RR: Vol. 7, pp. 47-52)(CR: Vol. II, pp. 104-108)(CR: Vol. IV, pp. 2-6)(Vol. VI, pp. 23-26; 94-110; 207-210). Fisher, supra. The fatal variance between the pleading and the proof is:
Pleading Proof
injury creating "risk of death" a death and not mere injury occurred
protracted loss/impairment death resulted within a very short
of bodily organ period of time after injury
The State did not prove that death was merely made possible, ie, "risk of death," but proved that death did in fact occur. The State's proof on this point is at fatal variance with its pleadings.
The State pled that a protracted loss and impairment of a bodily organ occurred. However, the State proved that death occurred within minutes. This is also a fatal variance between pleading and proof.(7)
Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997) is not applicable because the purpose of measuring the proof against a "hypothetically correct" charge was to avoid the "windfall"of an otherwise guilty person from acquittal "because the State failed to object to an erroneous and/or unnecessary instruction favorable to the defendant." However, the instructions in this case were not erroneous, but tracked the pleadings correctly. Thus, there is no reason to resort to the hypothetically correct jury charge construct invented in that case. See Armstrong v. State, S.W.2d (Tex.App. No. 07-96-0441-CR--Amarillo, delivered November 26, 1997)(Malik applicable only where jury charge contains additional, nonessential elements).
In light of the variance between the pleadings and proof, the trial court erred when it denied Appellant's special exceptions, motion for directed verdict, motion notwithstanding the verdict, and motion for new trial on grounds of fatal variance. (RR: Vol. 7, pp. 47-52)(CR: Vol. II, pp. 104-108)(CR: Vol. IV, pp. 2-6)(Vol. VI, pp. 23-26; 94-110; 207-210).
ISSUE NO. FOUR: THE EVIDENCE IN THIS CASE WAS LEGALLY INSUFFICIENT TO SUPPORT THE VERDICT BECAUSE THE EVIDENCE IS AT LEAST AS CONSISTENT WITH INNOCENCE AS WITH GUILT.
As best that can be gleaned from the record, the State's theory was that Appellant became angry with Jayla, then beat and stomped her to death sometime just before she told R.L. Murray that the child appeared ill. To support this theory, the State relied upon the following four chief pieces of evidence:
(1) Bayardo's testimony that the injuries he discovered caused death within minutes;
(2) Testimony from Cleo and R.L. Murray that she was the last one seen with Jayla;
(3) DiMaio's testimony that Appellant's tennis shoes "matched" the injuries on Jayla;
(4) Appellant's incriminating statements to police.
That Appellant was the last one seen with Jayla is not seriously disputed, and because the merits of items three and four are examined elsewhere in this brief, they will not be repeated here, but are incorporated by reference. The remaining item on which the State relied is the medical rationale of its experts, Bayardo and DiMaio, regarding the nature of the injuries.When Bayardo saw the state of Jayla's liver and her fractured ribs during the autopsy, he determined her injuries were consistent with a single massive blow which caused all the injuries at once. Because her injuries were consistent with such a scenario, he concluded that the liver was split in a single blow. Not only did he not scientifically exclude another reasonable hypothesis (a liver with a tear, later exacerbated), his stated expectations nevertheless met the very evidence which supported the alternative theory. (RR: Vol. 1, pp. 145-146).
Throughout his testimony, because Bayardo assumed that a single blow split the liver, he answered most of the questions posed to him with this assumption in mind. However, when asked whether bleeding from an injury to the liver would eventually rupture or leak through the fibrous membrane surrounding the liver, Bayardo agreed that "[i]t could happen." (RR: Vol. 1, pp. 145-146). Bayardo would expect in such a scenario exactly what he found: "free blood inside the abdominal cavity." (RR: Vol. 1, pp. 145-146). Bayardo would not expect a person with a subcapsular hematoma to walk around normally: "You would try to protect the injury bending your body, as I said, protecting the injury." (RR: Vol. 1, p. 145). Although Bayardo may not have been aware of it, his expectations matched the observations of Julia Henderson (RR: Vol. 3, p. 79), Shawntay (RR: Vol. 2, pp. 208; 214), and R.L. (RR: Vol. 3, p. 129). Thus, the medical evidence in Bayardo's testimony, while consistent with the State's theory, was also consistent with the defensive theory.
Dr. DiMaio made the same assumption as Bayardo: the injuries seen at the autopsy were proof that Jayla could only have been killed by a single blow causing rib fractures and a split liver. (RR: Vol. 1, pp. 183-184). But like Bayardo, DiMaio agreed with the possibility of the defense scenario, i.e., that a person could have four broken ribs and an injured but not severed liver: "It would represent a tear in the liver, a tear, but would not be as severe as this. You would still have to have a tear." (RR: Vol. 1, p. 230). DiMaio also agreed that a small tear or laceration to the liver would not cause a person to die within minutes. (RR: Vol. 1, p. 231). Thus, the validity of the defensive theory regarding the injuries was conceded by the prosecution's two expert witnesses.
In stark contrast to the extensive information given to Dr. Norton, DiMaio was told nothing about either the events of the day of Jayla's death, or anything about her health. (RR: Vol. 1, pp. 220-221; 232). As for Bayardo, he agreed with the general characteristics of battered child syndrome. (RR: Vol. 1, pp. 168-171).
The test for determining the legal sufficiency of evidence to support a conviction is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App. 1981). All evidence, all reasonable inferences drawn therefrom, and all credibility determinations are considered in the light most favorable to the prosecution. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). An appellate court may not weigh the evidence or assess witness credibility. See Glasser, 315 U.S. at 80, 62 S.Ct. at 469. However, if the evidence "gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt." Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985), cert. denied, U.S. , 113 S.Ct. 330,121 L.Ed.2d 3156 (1992). Because the evidence is at least as consistent with innocence as it is with guilt, a reasonable doubt necessarily existed and this Court should reverse the conviction and order an acquittal.
ISSUE NO. FIVE: THE EVIDENCE IN THIS CASE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE VERDICT.
The proper standard of review for a claim of factual sufficiency of the elements of the offense is the one articulated by this Honorable Court in Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin, 1992, State's pet. dism'd as untimely), and later adopted by the Court of Criminal Appeals. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting a factual sufficiency review, an appellate court reviews the factfinder's weighing of the evidence and is authorized to disagree with the factfinder's determination. Clewis, supra at 133. Such a review begins with the presumption that the evidence is legally sufficient to support the jury's verdict. Stone, 823 S.W.2d at 381.
[T]he court views all the evidence without the prism of "in the light most favorable to the prosecution." Because the court is not bound to view the evidence in the light most favorable to the prosecution, it may consider the testimony of defense witnesses and the existence of alternative hypotheses. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Ibid. (internal citations omitted).This review, however, must be appropriately deferential so as to avoid an appellate court's substituting its judgment for that of the jury. Clewis, supra at 133. The factual insufficiency standard "assesses all the evidence 'impartially' to determine if it is factually sufficient for a factfinder to have found appellant guilty beyond a reasonable doubt." Id. at 134, quoting Clewis v. State, 876 S.W. 2d 428, 433 (Tex.App.--Dallas 1994). The reviewing court is neither authorized to substitute its finding for that of the factfinder or to "find" facts. Clewis, 922 S.W. 2d at 135. Rather, it may only "unfind" a vital fact. Id. at 135, n.19. This Court compares "the evidence that tends to prove the disputed element of the crime with the evidence that tends to disprove it." Reina v. State, 940 S.W.2d 770, 773 (Tex.App.--Austin 1997, pet. ref'd).
Under the previous issue Appellant has argued that the medical evidence in this case is equally consistent with both the defense and prosecution theories in the case. This consistency is incorporated by reference, and Appellant urges that it become part of the factual sufficiency review as well. The State's theory, while arguably sufficient if viewed in a vacuum, cannot stand when measured against the overwhelming weight and preponderance of the other evidence in this case. Evidence inconsistent with the prosecution theory of a vicious 11-year-old making a savage attack on a sick child includes:
(1) Circumstantial evidence from witnesses in the Murray home which is consistent with a child with a previously injured liver, who slowly bled to death over the day.
(2) Blood found in Jayla's vomit.
(3) Appellant's history of nonviolence and absence of any unusual character traits.
(4) Evidence that Jayla was a neglected and abused child.
(5) Evidence that Derrick Shaw was an abusive step-father.
As for the State's tennis shoe-marks theory, the only evidence that Appellant was wearing tennis shoes was developed during the questionable interrogation in this case. (Respondent's exhibit #50). Keturah Henderson saw Appellant without her shoes that day, and Alicia Turner said that it was Appellant's habit to go barefoot. (RR:Vol. 4, p. 124; Vol. 8, p. 57). Because Jayla's shirt had no shoe imprint, the prosecution suggested that the shoes were clean, and thus would not have left any prints on the shirt. (RR: Vol. 3, pp. 60-65). However, a cursory review of the photographs of the Murray household, including an unclean floor, makes that scenario highly unlikely.
ISSUE NO. SIX: THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS APPELLANT'S RECORDED STATEMENTS BECAUSE THEY WERE THE PRODUCT OF CUSTODIAL INTERROGATION.
Immediately upon learning of Jayla's death at Brackenridge Hospital on May 24, 1996, the Austin Police Department began questioning those present at the hospital. (RR: Vol. 6, pp. 5-8). Appellant, at that time 11 years old, was separated from her parents and taken to the Texas Baptist Children's Home ("Home") where she was kept for four days. (RR: Vol. 6, pp. 28-29). On May 29, 1996, after being interrogated from 10:09 a.m. until 12:40 p.m. without a break by detectives Pedraza and Eels, and APD victim services counselor Angie McGown, Appellant made incriminating statements to the police. (Supp. RR: pretrial hearing July 29, 1996, p. 54)(State's exhibit #57)(RR: Vol. 5, pp. 19-20).
At her first trial a hearing was held on Appellant's motion to suppress these statements. (CR: Vol. III, pp. 230-237)(RR: Vol. 9, pp. 99-100). Both Appellant and the State briefed the issues. (CR: Vol. V, pp. 180-192)(CR: Vol. VI, pp. 112-116). The trial court made findings of fact and conclusions of law and denied her motion. (CR: Vol. VI, pp. 67-68). After the Motion for New Trial was granted, Appellant filed her Amended Motion to Suppress on December 3, 1996. (CR: Vol. VI, pp. 30-35).
Another hearing was held on January 23, 1997, which focused on the issue of whether or not Appellant was in "custody." (RR: pretrial hearing January 23, 1997). On February 3, 1997, the trial court denied her amended motion. (CR: Vol. VI, pp. 2; 36). The trial court made findings of fact and conclusions of law, ruling that Appellant was not in custody when interviewed by Pedraza, Eels and McGown. (CR: Vol. VI, p. 4-5).
At the pretrial hearing held January 23, 1997, Pedraza testified that Appellant and the other children were removed from their home they "were in danger because there was a homicide that had occurred in the residence, and we did not know who may have done this murder." (RR: pretrial hearing January 23, 1997, p. 75). Pedraza called Ana Becho, caseworker for the Texas Department of Protective and Regulatory Services ("DPRS"), to remove the children from the Murray home. (RR: pretrial hearing January 23, 1997, pp. 91-93). Becho did not tell the Murrays in which shelter the children would be placed. (RR: pretrial hearing January 23, 1997, pp. 93-94).
Pedraza said he did not have probable cause to arrest Appellant when he went to interrogate her, and denied any intention to arrest her. (RR: pretrial hearing January 23, 1997, p. 76). Pedraza was "trying to get to the bottom of the whole thing, whether Lacresha did it or Cleo did it." (RR: pretrial hearing January 23, 1997, p. 84). Cleo was questioned alone by only one officer. (RR: pretrial hearing January 23, 1997, p. 86). Pedraza admitted they did not want to take Appellant to a magistrate because they might then be unable to obtain a confession. (RR: pretrial hearing January 23, 1997, pp. 85-88). Because it "crossed our mind as police officers" to take Appellant to a magistrate, but because they were not certain, "we contacted the District Attorney's Office." (RR: pretrial hearing January 23, 1997, p. 86-87). "Stephanie Emmons explained . . . that this was a noncustodial interview." (RR: pretrial hearing January 23, 1997, p. 90). "[W]e didn't want any perception that it was custodial," according to Hector Reveles. (RR: pretrial hearing January 23, 1997, p.142; 149).
Testimony from the pretrial hearing demonstrates that police were deliberately trying to avoid a custodial situation, which explains why the interview did not take place at the Children's Advocacy Center. (RR: pretrial hearing January 23, 1997, pp. 88-89). Police asked Home personnel to bring Appellant to the Advocacy Center, but they refused. (RR: pretrial hearing January 23, 1997, p. 89).
McGown accompanied Pedraza and Eels to the Home. (RR: pretrial hearing January 23, 1997, pp. 103; 109-111; 117). Although she works closely with police, she admitted that it was not typical for her to question suspects, and never "with Homicide detectives that had a suspect that was a minor." (RR: pretrial hearing January 23, 1997, pp. 104-105; 117). Pedraza and Eels "related to me that she was a suspect," and said "there was a possibility that we would get a confession or that she would talk to us more about what had happened." (RR: pretrial hearing January 23, 1997, pp. 109-110). McGown agreed that their objective was to get a confession from Appellant, but "nobody worded it as getting a confession." (RR: pretrial hearing January 23, 1997, p. 110).
McGown knew that Appellant had been placed at the Home by Child Protective Services ("CPS"), but was "not comfortable giving us information about whether or not the children were there." (RR: pretrial hearing January 23, 1997, p. 114). McGown consequently had one of her counselors, Mellisa Greer, who knew Appellant was a suspect, call the Home. (RR: pretrial hearing January 23, 1997, p. 114-116). McGown said, "I don't recall," when asked whether or not Greer related to CPS that Appellant was a suspect. (RR: pretrial hearing January 23, 1997, p. 116). Her purpose in going along was "to be available in case she needed any emotional support." (RR: pretrial hearing January 23, 1997, p. 120).
In light of Bayardo's conclusion that Jayla died within minutes of her injury, the police eliminated Shawntay and Jason as suspects because they had left the house at least by 3:00 p.m., leaving R.L., Cleo and Appellant as suspects. (RR: pretrial hearing January 23, 1997, p. 128). Derrick Shaw and Judy Belton were no longer suspects at the time of Appellant's interrogation, and none of the younger children in the Murray home were suspects. (RR: pretrial hearing January 23, 1997, p. 129). The police had reinterviewed R.L., and his recollection of hearing a thumping in the back bedroom before Appellant brought Jayla into the living room led Pedraza to suspect her. (RR: pretrial hearing January 23, 1997, pp. 129-132).
Reveles took the lead in arranging an interrogation with Appellant, and consulted McGown for advice on "procedurally talking to her." (RR: pretrial hearing January 23, 1997, p. 150; pp. 138-139). Eels assisted Pedraza with Appellant's interview because he had a "more gentle demeanor," while Pedraza "has a more imposing appearance." (RR: pretrial hearing January 23, 1997, pp. 134-135).
The "emphasis" of their many conversations with the D.A.'s office "was to try to determine whether she would be considered to be in custody." (RR: pretrial hearing January 23, 1997, p. 140). "To be frank, I think that we thought that it was not a custodial interrogation." (RR: pretrial hearing January 23, 1997, p. 141). Reveles did not inform either CPS or the Home that Appellant was a suspect, but denied "trying to keep it a secret." (RR: pretrial hearing January 23, 1997, pp. 146-147).
Wanda Pena is Lead Program Director for CPS in Travis County employed by the Texas DPRS. (RR: pretrial hearing January 23, 1997, pp. 159-160). The show cause order in Appellant's case gave her agency care, custody and control over Appellant, including the "right to consent to medical care and surgical treatment, those kinds of things in an emergency." (RR: pretrial hearing January 23, 1997, pp. 162-163). The agency's powers over a child are dependent upon what powers are given in the order. (RR: pretrial hearing January 23, 1997, p. 163). When program director Sally Milant called to tell her the police had interviewed Appellant, she was "concerned that Appellant was a suspect in the death of Jayla Belton." (RR: pretrial hearing January 23, 1997, p. 165-166). Pena was not told that Appellant was a suspect and she was "very surprised when I got that phone call." (RR: pretrial hearing January 23, 1997, pp. 166-167). Had she known, Pena probably would have called the D.A.'s office. (RR: pretrial hearing January 23, 1997, p. 167).
Sheila Falco from the Home testified that the Home had a contract with the DPRS for emergency shelter, and took possession of Appellant for that purpose on or about May 25, 1996. (RR: pretrial hearing January 23, 1997, pp. 183-184). The Home has "some of the rights of a parent," and its job is to provide basic care to the child. However, the Home "for the most part, get CPS consent for any kind of contact with our children." (RR: pretrial hearing January 23, 1997, p. 188).
Ana Becho called Falco to get permission for all the Murray children to be interviewed, but did not tell her that Appellant was a suspect in the case. (RR: pretrial hearing January 23, 1997, pp. 185; 189). Home personnel had been instructed by police to transport her from the shelter to the office, the site of her interview. (RR: pretrial hearing January 23, 1997, pp. 186; 187). She first learned that Appellant was a suspect about 5:30 p.m. on May 29th. (RR: pretrial hearing January 23, 1997, pp. 185-186; 189).
Neither DPRS caseworker Megan, nor her supervisor, Michael Morris, were told that Appellant was a suspect in the Belton homicide case. (RR: pretrial hearing January 23, 1997, pp. 189-193; 194-198). Morris "assumed that it would be a standard videotaped inteview at Children's Advocacy Center" with a caseworker when McGown called him on the 28th and "asked if it was okay with us if Lacresha and some of the other children . . . could be reinterviewed by Victim Services." (RR: pretrial hearing January 23, 1997, pp. 197-198; 199; 207). Morris became suspicious about this interview because McGown's desire for CPS to handle the transportation was unusual, so the next morning he went to see prosecutor Dayna Blazey, assigned to represent CPS, because he "had questions about why it was necessary for us to transport" Appellant. (RR: pretrial hearing January 23, 1997, p.199-201). During their conversation Blazey "indicated to me that Lacresha was the prime suspect." (RR: pretrial hearing January 23, 1997, p. 203). Morris called Milant and told her that Appellant "was--appeared to be a prime suspect." (RR: pretrial hearing January 23, 1997, p. 205).
Dayna Blazey did not remember a conversation with Morris, and denied telling him that Appellant was the prime suspect. (RR: pretrial hearing January 23, 1997, pp. 210-212). However, it was "entirely possible" that she told Morris that Appellant was "a suspect, or a potential suspect." (RR: pretrial hearing January 23, 1997, p. 212). Megan Morris had conversed with Pedraza on May 28th, but he did not relate that Appellant was a suspect either that day or the next. (RR: pretrial hearing January 23, 1997, pp. 192-193).
Arguments & Authorities
If Appellant was in "custody" at the time of her questioning, then she is entitled to the full complement of constitutional rights accorded by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). In addition, she would also be accorded additional procedural safeguards under this state's family and juvenile justice codes as well as chapter 38 of the Code of Criminal Procedure. See Tex.Const. art. I, §10 and §19; U.S. Const. amends. V and IV. See also Tex.Family Code Ann. §151.003 and §262.104; Juvenile Justice Code, §54.03 and §51.09; Tex. Code Crim.Pro. articles 38.21, 38.22 and 38.23.
"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Stated another way, custody may be found when "a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 133 L.Ed.2d 383, 116 S.Ct. 457, 465 (1995). Where a suspect's presence is involuntary, a finding of custody is much more likely. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977). The Court of Criminal Appeals has said:
In deciding whether a particular interrogation was custodial, courts must consider numerous factors[.] . . . . The subjective intent of the police officer is one such factor, but courts will disregard an officer's testimony that a defendant was not a suspect and not in custody if the testimony is belied by the facts of the case. . . . "The courts cannot be expected to decide cases solely on the basis of self-serving statements by the defendant or the interrogating officer." . . . Among the other factors which may be considered, one which "has consistently impressed our court [is] whether or not the focus of the investigation has finally centered on the defendant." . . . Another factor which may be considered is whether there was probable cause to arrest.
Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App. 1979)(internal citations omitted). The Court of Criminal Appeals outlined at least four general situations which constitute custody:
(1) when the suspect is significantly deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to go.
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). Some courts have found it appropriate to "apply a wider definition of custody for Miranda purposes" where juveniles are concerned. See, e.g., In re Joshua David C., 116 Md. App. 580, 698 A.2d 1155 (Md.App. 1997). The voluntariness of juvenile confessions is gauged according to the totality of circumstances. See Fare v. Michael C., 442 U.S. 707, 725 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).
Appellant's age should be included in any legal analysis of whether or not she was in "custody" for purposes of her entitlement to constitutional and statutory protections against coerced statements.
[W]hen ... a mere child--an easy victim of the law--is before us, special care in scrutinizing the record must be used.
***
He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a [child] in his early teens. This is the period of instability which the crisis of adolescence produces. A 15-year old . . . is a ready victim of the inquisition. Mature men might possibly withstand the ordeal. . . . But we cannot believe that a [child] of tender years is a match for police in such a contest.
Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 303-304, 92 L.Ed. 224, 228 (1948)(reviewing confession of a 15-year-old interrogated for 15 hours by police in relay teams). For these reasons, due process requires that "the greatest care must be taken to assure that the admission was voluntary, on the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of right or of adolescent fantasy." Matter of Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). See also Gallegos v. Colorado, 370 U.S. 49, 53-55, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962) (five days of isolating 14-year-old from mother or other adult, deemed coercive).
Because of the potential for overwhelming a minor suspect, as recognized both by the Supreme Court and the Texas Legislature through its many protections afforded juveniles, Appellant urges this Court to consider Appellant's age in its custody decision along with her level of education and total lack of experience with the police. See Clewis v. Texas, 386 U.S. 707, 712, 87 S.Ct. 1338, 1341, 18 L.Ed.2d 423, 428 (1967)(suspect's fifth grade education taken into account); Haynes v. Washington, 373 U.S. 503, 514, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513, 521 (1963)(lack of prior experience with police included in analysis). Appellant also contends that her isolation and coercive environment are appropriate factors in this Honorable Court's analysis of the "custody" question.
The State conceded in its earlier brief on this issue that indeed "the investigation had focused on Lacresha as a result of R.L. Murray's interview." (CR: Vol. VI, pp. 112- 115). Thus, this point is not in dispute. However, despite early focus on Appellant as the prime suspect, the State nevertheless insisted that police lacked probable cause to arrest Appellant. Like the claim in Ruth, supra, this one requires an appellate court to believe the unbelievable: that no probable cause existed to suspect Appellant of the Belton homicide at the time of her interrogation. The State has little else to support a conclusion that police had no probable cause other than the self-serving conclusions of the police-- which are irrelevant to the legal inquiry. See Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Pedraza himself outlined at the first trial why the investigation had focused on Appellant: they had interviewed every person who was at the residence on that particular day, and had determined that Appellant was the only person who went to the back bedroom where Jayla was sleeping, and concluded that no one else had gone to that bedroom within the one hour before the baby was taken to the hospital. Bayardo had told police that Jayla's injuries were sustained just prior to the child's death, and R.L. Murray said he had heard a thumping noise coming from the bedroom where Appellant had been.
Not only does this information establish probable cause to believe that Appellant was responsible for the Belton homicide, there is little other evidence to the State's case-- which two juries have decided proves guilt beyond a reasonable doubt. Appellant was the last one in the company of a child whose fatal injuries must have been inflicted by the last person seen with her. This fact, along with a noise coming from the room in which Appellant and the victim were last seen, constitute circumstantial evidence for probable cause. If this information known to Pedraza does not establish probable cause, then the evidence in this case is legally insufficient and an acquittal should be ordered because a confession of questionable validity was the only other incriminating evidence which would support the conclusion that Appellant was guilty. Because probable cause existed and the police never told Appellant that she was free to go, then the interrogation was custodial.
Additionally, Pedraza had conveyed to Appellant that she was a suspect. Under Stansbury v. California, supra, the subjective intent, beliefs or views of the police that the person is a suspect is relevant to the custody inquiry "only if the officer's views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave." Stansbury, 114 S.Ct. at 1530, 128 L.Ed.2d at 299. "Such manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996).
Pedraza began relating his beliefs early in the interrogation, asking "what happened to the baby," and that Appellant was the only one "back there" with her. (Respondent's exhibit #50, pp. 29-31). He told her that a doctor had determined the injuries could only have been sustained while Appellant was with her, and that R.L. had heard a "thumping noise."(Respondent's exhibit #50, pp. 33-34). If she told police "the truth" they would stop "bothering" her family, and take her back to the shelter. (Respondent's exhibit #50, p. 47).
This information about why the police suspected her, i.e., "substantiating probable cause," was repeatedly conveyed to Appellant and maintained a coercive atmosphere which would have made a reasonable adolescent in Appellant's position believe that she was not free to simply walk away.
Pedraza repeatedly tells Appellant that she will be free to go ("We're going to take you back to the shelter") only when the interrogation team got "everything straight." (Respondent's exhibit #50, p. 38). "We're going to go over it and over it until it comes back into your mind." (Respondent's exhibit #50, p. 33). "Once we get the story straight, then it's over." (Respondent's exhibit #50, p. 38). "We're not going to go away." (Respondent's exhibit #50, p. 51). These statements contain an express conditional prerequisite: police approval of her answers to their questions. This conditional language underscores that she is not free to leave until that condition has first been met, i.e., she gets to go when the interrogation team has been satisfied.
Appellant had made it clear to the detectives from the first question asked her that she was not "enjoying the place" and wanted to go home. (Respondent's exhibit #50, p. 2). She also described to McGown what regimented life was like at the shelter, a reality surely known to the detectives. (Respondent's exhibit #50, pp. 102; 105). The Travis County Child Protection Team Interagency Agreement sought to curb child interviews which, its authors noted, "often take place in strange and forbidding environments," one of which is surely the room of a shelter, alone with accusatorial detectives. (Respondent's exhibit #3, pretrial hearing January 23, 1997).
Under these conditions, an 11-year-old being interrogated for 2 hours and 40 minutes by police would not have understood that she was "free to leave" the room or disengage the interrogation until police decided otherwise. This Court can infer that custodial interrogation was well underway when the "interview" produced from the mouth of a child the question, "Are you-all going to take me to jail or something?" (Respondent's exhibit #50, p. 46). Appellant contends that being psychologically coerced in a room with two persistent detectives for a time period of the officers' choosing would have led a reasonable adolescent to believe that her freedom of movement had been significantly restricted, and constituted a deprivation of freedom of action in a significant enough way to be deemed "custodial."
Other state judiciaries faced with the same questions have decided that circumstances less coercive than the instant case constituted custodial interrogation.(8) In State v. D.R., 84 Wash.App. 832, 930 P.2d 350 (Wash.App. 1997), police questioned a 14-year-old boy in the presence of the assistant principal and a school social worker in the assistant principal's office. While the boy was told little more than that he did not have to answer questions, the appellate court decided that D.R. was in custody during his interview, "in light of [the officer's] failure to inform him he was free to leave, D.R.'s youth, the naturally coercive nature of the school and principal's office environment for children of his age, and the obviously accusative nature of the interrogation." Id. at 353. In State ex rel. Juvenile Dep't of Lane County v. Killitz, 59 Ore.App. 720, 651 P.2d 1382 (Or.App. 1982), a junior high school student summoned to the principal's office and interrogated by an armed police officer was deemed in custody for purposes of Miranda protections because he would have been subject to disciplinary measures if he had not come to the office when told, and no one indicated that he was free to leave the office. In Matter of Chad L., 131 A.D.2d 760, 517 N.Y.S.2d 58 (N.Y. 1987), the questioning of a 10-year-old in the bedroom of his home, but where the body of a murder victim had been found, constituted custodial interrogation, because "a reasonable 10-year-old, innocent of any crime, would have believed that his freedom had been infringed upon in a significant way." Id. at 59. See also Commonwealth v. A Juvenile, 402 Mass. 275, 277, 521 N.E.2d 1368 (Mass. 1988)(juvenile in custody when interrogation took place in facility at which he was subject to continuous supervision, and "no realistic way in which the juvenile could have avoided the persistent questioning"); Commonwealth vs. Damiano, 422 Mass. 10, 660 N.E.2d 660 (Mass. 1996). See also Seagroves v. State, 211 So.2d 486 (Ala. 1968)(juvenile in custody whether for delinquency or criminal charges). In the instant cause, no one from the interrogation team ever hinted that Appellant could simply walk away, she was not in a familiar or noncoercive setting but a police-dominated one, and the nature of the interrogation was accusatory and intense. Under these holdings from other states, in addition to the analysis of Dowthett and Stansbury, Appellant was clearly in custody when the police interrogated her about the Belton homicide.
Appellant was also protected by the Texas Juvenile Justice Code's shield against coerced confessions, which only allows a statement to be "admissible in evidence in any future proceeding concerning the matter about which the statement was given if:"
(1) when the child is in a detention facility or other place of confinement or in the custody of an officer, the statement is made in writing and the statement shows that the child has at some time prior to the making thereof received from a magistrate a warning[.]
Tex.Juv.J.Code Ann. §51.09(b)(1)(emphasis added). Because Appellant was in police custody under the circumstances described and argued supra, she should have been afforded all the protections put in place to shield children from exactly the sort of coerced confession which occurred in this case.
No one followed any of the requirements of § 51.09. No magistrate informed Appellant of her rights. Not even all voices were identified on the tape, as required by law. See Tex.Code Crim.Pro. art. 38.22, §3(a)(4). (Respondent's exhibit #50, p. 75). In short, no law governing statements made by juveniles during custodial interrogation was followed, and her statements accordingly should have been excluded.
ISSUE NO. SEVEN: THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS APPELLANT'S CONFESSION BECAUSE APPELLANT'S STATEMENTS WERE COERCED AND INVOLUNTARY, UNDER ARTICLE 38.21 AS WELL AS THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, §§10 AND 19 OF THE TEXAS CONSTITUTION.
The trial court memorialized for the record that it had heard evidence at the first trial, and had ruled Appellant's statements voluntary. (RR: Vol. 9, pp. 97-99). The court took judicial notice of the evidence from the first trial and the first pretrial hearing as well as the testimony of Eels, Pedraza and McGown in the second trial, ruled Appellant's statements voluntary, and denied her motion to suppress. (RR: Vol. 9, p. 99-100).
The admissibility of Appellant's statements is governed by chapter 38 of the Code of Criminal Procedure, specifically, article 38.21, which admits only statements "made freely and voluntarily made without compulsion or persuasion," and article 38.22, which regulates statements obtained as a result of custodial interrogation. As this Court has pointed out, Article I, §19 of the Texas Constitution provides a separate and independent basis for excluding involuntary confessions, and Appellant relies upon this constitutional provision as well. See Zuliani v. State, 903 S.W.2d 812, 819-821, 825 (Tex.App.--Austin 1995, pet. ref'd). Appellant also relies separately upon this state's prohibition against self-incrimination in Article I, §10 of the Texas Constitution which, like the federal counterpart, proscribes compelled self-incrimination. Finally, Appellant relies upon the Due Process Clause of the 14th Amendment, which requires exclusion of involuntary confessions. See Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936).
A confession is deemed voluntary if it is "the product of an essentially free and unconstrained choice[.]" If the maker "has willed to confess, it may be used against him. [I]f his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process." Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 36 L.Ed.2d 854, 93 S.Ct. 2041 (1973). See also Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct.1860, 1879, 6 L.Ed.2d 1037 (1961)(confession must be "product of an essentially free and unconstrained choice" to be voluntary); Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961)(decision to confess must be "freely self-determined"); Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960)("product of a rational intellect and a free will"). "[C]oercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, supra at 206. See also Reck v. Pate, 367 U.S. 433, 440-441, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 93 L. Ed. 1801 (1949).
When the issue is raised the State bears the burden of proving a statement deemed incriminating was voluntarily given. See Alabama v. Beecher, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). "The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false." Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). See also Tex. Code Crim. Pro., art. 38.21. The voluntariness of juvenile confessions is gauged according to the totality of circumstances. See Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).
The statements at issue in this case are contained in Respondent's exhibit #50, the transcription of Appellant's taped interrogation session with Pedraza. Appellant also incorporates here all the arguments and authorities cited in the previous point of error regarding the custodial nature of her interrogation.
Appellant presented expert testimony through forensic psychologist Rex Alan Frank, who had reviewed the video recording of the May 24th interview conducted by Tello Leal and the May 29th audiotaped recordings of Appellant's interrogation by Pedraza. In addition to reading other relevant documentation regarding Appellant, Dr. Frank personally interviewed Appellant: "I think I spent a total of about ten hours with her altogether." He also spoke with Shirley Murray and Shawntay Murray "for a total of about two hours for the two of them," and administered a personality test to Appellant. (Vol. 7, pp. 65-67; 91).
Frank explained the differences between voluntary genuine confessions, coerced genuine confessions, coerced false confessions and voluntary false confessions:
"[V]oluntary" to a psychologist usually implies it's coming out of some kind of internal wish or internal desire or internal impulse, not coming out of pressure from outside the person. . . . The other type of confession we're concerned about is coerced false confession. . . . The first of these [is] the "internalized coerced false confession." . . . What [that term] boils down to is a person who comes to believe that they actually committed a crime that they didn't do. . . . The other is what we term the "compliant." And basically that's a condition where the individual gives in to the pressure, the coercion of the interrogation process, and says that they did something that they didn't. They don't . . . believe that they actually did it. Instead what they do is say that they've done something in order to escape the immediate pressure of the interrogation system.
(RR: Vol. 7, pp. 68-71). "Compliant" persons are those who give in under pressure of interrogation, either because of suggestibility or low intelligence, and they are "more prone to giving confessions, whether false or genuine." (RR: Vol. 7, pp. 72-73). Frank did not believe Appellant was suggestible, and her social responsibility score showed that "she's very different than a lot of little girls and doesn't conf