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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 conform to the feminine norm or the traditional feminine role." (RR: Vol. 7, p. 197-198).
Appellant was possibly coerced or induced to provide either a "genuine, though potentially coerced, statement," or "a false and coerced compliant kind of statement." (RR: Vol. 7, pp. 76-77). Appellant is "going to get bored pretty quickly. And after a period of time, she's going to get edgy and increase in anxiety." (RR: Vol. 7, pp. 105-106). "The decisions which she made are probably not going to be based on emotionality," but rather "on the facts that she's having to deal with at the time in her mind." (RR: Vol. 7, p. 106).
Police use interrogation techniques which "put a person into a dilemma and designed to push them in a direction of providing a confession." (RR: Vol. 7, p. 107). Minimization is "making light of any problems, saying that things are okay, reducing fears for providing statements that are desired by the interrogator." Maximization "basically places heavy emphasis on things like punishment, fear, things designed to raise anxiety, to push the person away from staying silent." Both minimization and maximization are "intermixed with whatever the officers know of the evidence and the situation and can be used along with intentional deception about evidence or various other issues." (RR: Vol. 7, p. 107).
Pedraza used minimization techniques by assuring Appellant: that police were only trying to help her and her family, which "reduces the emphasis on any issues having to do with a crime"; that Appellant should not "keep it inside," an attempt to play on her sense of guilt, hoping this would ultimately lead her to admit responsiblity for what she had allegedly done. (RR: Vol. 7, pp. 110-111). Maximization techniques were used: "'Doctors can tell us the exact time these things happened,' which is . . . most likely, a deception on the part of the officer. . . that [doctors] can't be wrong." (RR: Vol. 7, p. 112).
Pedraza suggested an accident scenario when he "actually uses the statement, 'You might have been carrying the baby and the baby might have fallen from your arms[.]' . . . If an officer is getting nowhere in obtaining a confession or a statement, they'll first offer the individual a zero cost option, saying that either what happened was an accident, that it's understandable . . . trying to get some kind of an admission to a non-criminal act . . . followed then by attempts to obtain some sort of admission to an act of responsibility in a criminal kind of way." (RR: Vol. 7, pp. 108;115). Frank characterized Pedraza's assertion that everyone else in the family knew what had happened to Jayla as use of suggestion as a technique in interrogations. (RR: Vol. 7, pp. 113 and 117-118).
Appellant was given confusing statements regarding her rights. (RR: Vol. 7, p. 109). When Pedraza said police would think "the worst," he was telling her that she had committed murder unless she told them otherwise. (RR: Vol. 7, p. 117). He implied Appellant was lying by constantly telling her that she had changed her story. (RR: Vol. 7, pp. 112-113). If she told police what they wanted to hear she could return to the shelter and they would not "bother" other members of her family. (RR: Vol. 7, pp. 113-114).
Pedraza alternated his use of minimization and maximization techniques when he first suggested Appellant may have dropped the baby (minimization) and then tells her people will think the worst of her (maximization). (RR: Vol. 7, pp. 118-119). Appellant agreed with Pedraza's accident scenario because it offered her a benefit: the interrogation would stop, police would not bother her family any longer, and she could return to the shelter. (RR: Vol. 7, p. 120; 202) When she said "Oh, when I was picking her up and I was going to take her to grandpa, she did fall a little bit. She fell. Her head hit the floor," she was only feeding back to officers what they had suggested (RR: Vol. 7, p.120)
After Appellant said that Jayla fell from her arms, Pedraza told her, "There's a few more injuries." When Appellant responded, "Where are they at?", she was seeking information from the officer, and he suggested that she had stepped on her or kicked her. (RR: Vol. 7, p. 121). After these suggestions, Appellant begins using the words "probably"and "maybe," which are "strong noncommittal kinds of terminology." (RR: Vol. 7, p. 121). There was "a transition" from 'probably,' 'maybe,' 'might have been,' to 'did happen this way.' The officer's statement is very firm, which foot kicked on the left side, not which foot might have kicked on the left side or which foot probably kicked on the left side." (RR: Vol. 7, p. 122). "[T]his is a fairly common kind of transition for officers conducting interrogations to go from the noncommital to a stronger commitment in the officer's interpretation." (RR: Vol. 7, p. 123). Pedraza continued the minimization technique when he thanks Appellant for "telling me all these things" which results in her statement, "But I didn't mean to drop her." (RR: Vol. 7, p. 123).
Appellant had difficulty understanding words used during the interrogation, such as "restrict,""sustained," and "warning." (RR: Vol. 7, pp. 108; 111; 183). When asked, "What could a lawyer do for you," Appellant's first response was, "A lawyer could understand me," then, with "considerable probing," she said, "A lawyer could defend me," which Frank would expect given her involvement with the legal system at the time he tested her. (RR: Vol. 7, p. 183). Frank did not know whether or not Appellant understood the warning given to her by Pedraza. (RR: Vol. 7, p. 144).
At the end of the interrogation Appellant refused to read her written statement out loud before signing it, probably because of fatigue and irritability, and because Pedraza had broken his promise to return her to the shelter, and so it is unclear whether she ever read it at all. (RR: Vol. 7, pp. 126-127). Frank believed that the interrogation transcript was in error:
When Pedraza says, "I just need for you to sign right there that it's all true and correct. Am I forcing you to sign that?" Lacresha's response--and I listened to this on the tape maybe 15 or 20 times--actually was a word that sounded very much like "Yep." And Pedraza's response is, "Huh?" And then Lacresha goes back to "No."
(RR: Vol. 7, pp. 127-128).
Appellant denied hurting Jayla forty times during the interrogation, which Frank calculated as "one denial every 4.5 minutes." (RR: Vol. 7, p. 135). Frank believed a high probability existed "that the statement that she made can be false." (RR: Vol. 7, p. 147).
The minimization/maximization techniques used against Appellant are accepted police tactics. (RR: Vol. 7, pp. 205-206). However, the authors of the "premiere text" on such techniques, Inbau, Reid and Buckley, acknowledge the fallibility of the techniques "in that they explicitly state in the book that the techniques that they are using can cause an innocent person to confess to something that they didn't do--to confess to a criminal act that they didn't do." (RR: Vol. 7, p. 206). These techniques have also been criticized in recent years because "[w]e don't know how to keep a person who might be innocent from giving a false confession. Our state of knowledge isn't sufficient to keep those groups separate." (RR: Vol. 7, pp. 206-207). Frank agreed that the use of techniques are more likely to lead to a false confession when used against an 11-year-old with a fourth-grade reading level. (RR: Vol. 7, p. 207). Another interrogation technique has been developed, "the cognitive interview," which is being taught under federal justice department grants throughout the United States. (RR: Vol. 7, pp. 207-208). The cognitive technique is used in Great Britain by law enforcement instead of interrogations "because of the risk of false confessions." (RR: Vol. 7, p. 208). See Geiselman, R.F. & Fisher, R.P., "Ten Years of Cognitive Interviewing," in D.G. Payne & F.G. Conrad (Eds.), A Synthesis of Basic and Applied Approaches to Human Memory (New York: Lawrence Earlbaum 1996).
In examining the totality of circumstances surrounding Appellant's incriminating statements, this Court's analysis should consider both the conduct of the police, detailed under issues five, seven and eight, and the appropriateness of suppression in the interest of deterring such conduct in the future. Appellant's age and intelligence are also relevant factors to consider.
The police used techniques which have been criticized and even abandoned in other jurisdictions. Moreover, Pedraza's interrogation seemed better aimed at obtaining a confession and less effective at getting to the truth. For almost three hours, Appellant made at least forty denials during a psychologically coercive interrogation. She essentially resigned to police will and agreed with Pedraza's accident scenario. Under these circumstances, the reliability of Appellant's confession is highly questionable, and Frank concluded that it was likely false. While reliability is not the touchstone of voluntariness, the likelihood of a false confession can be good proof of its involuntariness, as it is here.
The lack of true voluntariness of Appellant's oral and ultimately written statements can be explicated by analogizing to the signing of a will. Were the object of the inquisitors in Appellant's case the signing of a will, and her statements were about to whom she would leave her property, it is doubtful if any court in Texas would uphold a will under these circumstances. Unless there is less protection when a person's life or liberty is at stake than when mere property is at issue, Appellant's statements were involuntary as that term is constitutionally understood, and her statements should have been suppressed under the Fourteenth Amendment's Due Process Clause, as well as Article I, §§ 10 and 19, because their acquisition and use in court offends the "complex of values" which "by way of convenient shorthand" is termed "involuntary." Blackburn v. Alabama, supra.
Also, in enacting Tex.Code Crim. Proc., Article 38.21, the legislature appears to have codified the common law rule dating at least to 1783 which excluded confessions "forced from the mind by the flattery of hope, or by the torture of fear." The King v. Warickshall, 168 Eng. Rep. 234, 235 (K.B. 1783). This rule has its own history independent of either Fifth Amendment jurisprudence or the Due Process Clause, and was adopted in Hopt v. Utah, 110 U.S. 574 (1884): "A confession, if freely and voluntarily made, is evidence of the most satisfactory character." Id. at 584. The Court based this rule on the presumption that an innocent man, if not coerced, would not lie, but the presence of coercion ends the presumption of reliability. Id. at 585.
"[R]eliance on a coerced confession vitiates a conviction because such a confession combines the persuasiveness of apparent conclusiveness with what judicial experience shows to be illusory and deceptive evidence." Stein v. New York, 346 U.S. 156, 192 (1953). See also Lyons v. Oklahoma, 322 U.S. 596, 605 (1944)("A coerced confession is offensive to basic standards of justice . . . because declarations procured by [such means] are not premises from which a civilized forum will infer guilt.") The emphasis on confession reliability was ultimately abandoned in Lisenba v. California, supra, for the "fundamental fairness" requirement of due process, and Appellant urges that interpretation of Article 38.21 likewise abandon the reliability focus for the plain language of the statutory preclusion of statements obtained by "compulsion or persuasion." Article 38.21, then, is an independent source of exclusion, and the same arguments advanced regarding custodial interrogation and voluntariness are applicable here.
ISSUE NO. EIGHT: APPELLANT'S STATEMENTS WERE THE PRODUCT OF POLICE QUESTIONING WHICH WAS ILLEGAL BECAUSE IT WAS NOT AUTHORIZED BY THE PARENTS BUT WAS IN VIOLATION OF APPELLANT'S FAMILIAL RIGHTS, AND SHOULD HAVE BEEN SUPPRESSED ACCORDINGLY UNDER ARTICLE 38.23 OF THE CODE OF CRIMINAL PROCEDURE.
On May 28, 1996, Judge Jeanne Meuer ordered that responsibility for Appellant's "placement and care" belonged to DPRS, which had taken possession of her pursuant to chapter 262 of the Texas Family Code. (Respondent's exhibit #1, pretrial hearing January 23, 1997). To that end, Judge Meuer entered the following order:
The Texas Department of Protective and Regulatory Services shall have only the following rights, privileges, duties and powers, pending such hearing:
1. the duty of care, control, protection and reasonable discipline of the subject Children;
2. the duty to provide the subject Children with clothing, food, and shelter; and
3. the power to consent to medical and surgical treatment for the health and safety of the subject Children.
(Respondent's exhibit #1, pretrial hearing, January 23, 1997)(emphasis added). Beyond the duties of care and protection, the only power which DPRS was given over Appellant was the authority to consent to medical treatment. Under Tex.Family Code §151.003(a)(7) and (11), parents have the right to make "decisions of substantial legal significance concerning the child," as well as any other right under the common law. Appellant is the adopted child of R.L. and Shirley Murray. (Respondent's exhibit #2, pretrial hearing, January 23, 1997).
DPRS was not given authority to make any legal decisions regarding Appellant, including whether to consent to interviews with the police. That power belonged to her parents, who were never notified about any interview and consequently, exercised no power or right to subject their adolescent daughter to any questioning or waiver of her rights, despite the well-established tradition that parents are the first and foremost repository for legal decision-making of such magnitude. Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Moreover, there exists a constitutionally-protected liberty interest in the freedom for parents and children to have a close relationship. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753-754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Stanley v. Illinois, 405 U.S. 645, 651-652, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944).
On the basis of Judge Meuer's Order, and the above Family Code provision, Appellant asserts that her interest in her family unit gives her the right to notify her parents, and her parents the right to know, when government agents take custody for the purpose of criminal interrogation, and that both as a family unit have the right to make significant legal decisions such as the waiver of applicable constitutional rights.
The State's violation, however, is not merely of statutory dimension, but is a constitutional affront as well, namely, against the Ninth, Tenth, and Fourteenth Amendments as well as Article I, §19 of the Texas Constitution. Justice Goldberg's concurrence in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) is the preeminent opinion regarding the Ninth Amendment and its meaning:
The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.
* * *
'Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. . . .' The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to . . . raise a family are of similar order and magnitude as the fundamental rights specifically protected.
Id., 381 U.S. at 488-90, 492-95, 85 S.Ct. at 1683-88, 14 L.Ed.2d at 517-18, 520-22 (citations omitted). This right to family integrity includes not only the reciprocal rights of parent and child, but the right of the child to seek and obtain guidance and assistance in making decisions affecting her own future liberty and continued presence in the home.
The mutual interest in this singular right was violated in this case because after having been kept from her family for four days, ostensibly for her own protection, Appellant was subjected to a 2-hour-and-forty-minute inquisition by an interrogation team intent on obtaining a confession and a waiver of all her constitutional rights--without a meaningful opportunity for parental notification. The government's action violated the spirit as well as tradition of a civilized nation founded upon the integrity and sanctity of the family unit. Thus, notwithstanding the question whether the interrogation implicated any legal decision of substantial significance under the Family Code, Appellant's rights to parental assistance and advice as well as her parents' rights to supply such guidance exist as a common law and constitutional matter, and these rights were destroyed in this case. Because only the unnotified parents had the authority to make the legal decision of submission to interrogation and waiver of all applicable constitutional rights, Appellant's participation in the interrogation and her waiver of rights was unauthorized and illegally obtained. Because her incriminating statements were obtained in violation of her right to have the guidance and assistance of her parents, and in violation of their statutory right to make such grave legal decisions, the statements should have been suppressed under Article 38.23 of the Code of Criminal Procedure.
ISSUE NO. NINE: THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS APPELLANT'S STATEMENTS BECAUSE THE CONSENT TO INTERVIEW APPELLANT WAS INDUCED BY DECEPTION, AND THEREFORE INVALID.
Even if the Texas Baptist Children's Home did have authority to present Appellant for questioning, such consent was invalid because it was induced by deception. Police made more than a conscious effort to avoid "any perception that it was custodial," as Reveles put it. (RR: pretrial hearing January 23, 1997, pp. 142; 149). They deceived both the personnel at the Home as well the DPRS in order to conduct their interrogation. After Home personnel refused to bring Appellant to the Advocacy Center, Reveles consulted McGown "about procedurally talking to" her. (RR: pretrial hearing January 23, 1997, pp. 98;138-139).
When McGown's employee called the Home, she was told that because CPS had custody of the children, the Home would need CPS approval. (RR: pretrial hearing January 23, 1997, pp. 114; 116). McGown then called DPRS Supervisor Michael Morris on May 28th and sought his permission for Victim Services to interview Appellant and some of the other Murray children. (RR: pretrial hearing January 23, 1997, pp.197-198; 199; 207). Morris gave his permission, but was suspicious. (RR: pretrial hearing January 23, 1997, pp. 199-200). CPS worker Ana Becho called called Sheila Falco of the Home and arranged to have Appellant available for an interview. (RR: pretrial hearing January 23, 1997, pp.185; 189). Falco was 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).
No one from DPRS or the Home was told that Appellant was a suspect or was informed about the nature of the interview before the interrogation. Morris only learned about the genuine purpose of the trip because he got suspicious and asked a prosecutor. (RR: pretrial hearing January 23, 1997, pp. 201; 203; 212). Morris told DPRS Program Director Sally Milant, who then related to her "very surprised" supervisor that police had conducted an interview of Appellant at the Home. (RR: pretrial hearing January 23, 1997, p.166).
By inducing personnel at the Home to permit them to take custody of Appellant and interrogate her, Pedraza, McGown and Eels violated the authority of the DPRS agency (if not the parents' right) to make "decisions of substantial legal significance concerning the child," as well as any other right under the common law. Tex. Family Code §151.003(a)(7) and (11). The police subterfuge violated both the possessory rights of the Home as well as its decision-making authority, and the fruits of their illegality, namely, Appellant's incriminating statements, should have been suppressed under Article 38.23 of the Code of Criminal Procedure.
ISSUE NO. NINE: APPELLANT DID NOT VALIDLY WAIVE ANY OF HER CONSTITUTIONAL RIGHTS.
Even if Appellant's statements were not the product of custodial interrogation, and even if her statements are deemed "voluntary," she did not, and is not capable of waiving, her constitutional rights. Section 51.09(a) of the Juvenile Justice Code provides for the waiver of rights by a juvenile. An 11-year-old girl, separated from her family for four or five days, summoned to a conference room in a facility she was not permitted to leave, to face a team of interrogators for almost three hours without a break is not capable of waiving her constitutional rights under these circumstances. Police should investigate cases and collect evidence independent of incriminating statements wrested from the mouths of 11-year-old children. Beyond this practicality, a civilized society simply does not permit capital murder prosecutions against 11-year-old children to be based upon their own incriminating statements elicited by the police.
Tex.Code Crim.Proc., Art. 38.22 §3(2) provides that "prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning." Moreover, Art. 38.22 §2 requires that for a written statement to be admissible, certain warnings must first be "shown on the face of the statement."
The State had the burden of proving that Appellant knowingly and intelligently waived her rights under Art. 38.22. See Kelly v. State, 817 S.W.2d 168 (Tex.App.--Austin 1991, pet. ref'd). The State also had the burden of proving a waiver under the Fifth and Fourteenth Amendments and Article I, §§10 and 19. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Collins v. State, 171 Tex.Crim. 585, 352 S.W.2d 841, 843 (1961), cert. denied, 369 U.S. 881, 82 S.Ct. 1152, 8 L.Ed.2d 283 (1962); Faulkner v. State, 149 Tex.Crim. 210, 193 S.W.2d 217 (1946).
"[I]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived [his] privilege against self-incrimination and his right to . . . counsel." Miranda, 384 U.S. at 475; see also, Tague v. Louisiana, 444 U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980). "[C]ourts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).
As the Supreme Court explained in Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the State must prove under the "totality of the circumstances surrounding the interrogation" that the waiver was "the product of a free and deliberate choice rather than intimidation, coercion, or deception," and that the waiver was made with "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. at 422.
Waiver is an affirmative act; it is not procedural default and may not be implied. Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993). See also Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977)("strict standard" of waiver not limited to alleged waivers at trial; applies equally to alleged waiver of right to counsel during police interrogation). To establish a valid waiver of this right, the state must prove "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). "[C]ourts indulge in every reasonable presumption against waiver." Brewer, supra, 430 U.S. at 404; Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966); Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942).
Appellant did not knowingly or intelligently waive either her privilege against self-incrimination or her right to counsel under Articles 38.21 and 38.22,the Fifth and Fourteenth Amendments, or Article I, §§10 and 19. On the contrary:
Q. Am I forcing you to sign that?
A. Yeah.
Q. Huh?
A. No.
Q. Okay. You're doing this voluntarily?
A. Uh-huh.
(Respondent's exhibit #50, p. 111). As for as even knowing what was in her statement, Appellant chatted with McGown during the time she was expected to have read her statement. (Respondent's exhibit #50, pp. 98-107; 110). Her allegedly incriminating statements should not have been admitted.
Section 51.09(b)(1) of the Juvenile Justice Code requires that for a written statement made by a juvenile to be admissible the juvenile must be taken before a magistrate prior to giving the statement and be warned by the magistrate of his or her right to remain silent, right to have an attorney present during the interrogation, right to have an attorney appointed, right to terminate the interview, and the possible consequences of certification and/or determinate sentence, if applicable. Here the possible consequence was a potential transfer to the adult prison system for a maximum term of 40 years. Section 51.09(c) provides that the failure to give such a warning "does not render a statement made by the child inadmissible unless the state proceeds against the child on a petition approved by a grand jury under Section 53.045." Because the State did proceed against Appellant under such a petition, the warnings of subsection (b)(1)(F)(regarding possible transfer to prison) were required to make the statements admissible. However, this warning was the only one which Pedraza did not give Appellant. (Respondent's exhibit #50, p. 3).
Not only did no one from the APD interrogation team comply with this law, but in fact no one ever involved a magistrate at any time before, during or after the interrogation. Section 51.09(b)(1)(G) plainly requires a statement to be signed "in the presence of a magistrate by the child with no law enforcement officer," and the magistrate "must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily." Moreover, the magistrate "must certify that he has examined the child independent of any law enforcement officer" and "has determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights." Because none of this was done, the statement should not have been admitted.
ISSUE ELEVEN: THE TRIAL COURT ERRED IN ADMITTING EXPERT TESTIMONY REGARDING A "MATCH" BETWEEN APPELLANT'S SHOES AND MARKS ON JAYLA BELTON'S BODY.
On January 23, 1997, Juan Rojas, a criminalist with the DPS Crime Laboratory Service, wrote in a letter to an investigator from the Travis County District Attorney's office "that we were unable to testify that the marks on Belton's body were made by these shoes [allegedly worn by Appellant] due to insufficient general characteristics." (Respondent's exhibit #57).
Over lunch before he testified on the first day of trial, DiMaio examined a pair of sneakers (State's exhibits 44 and 45), and compared the grooves in the shoes with the "scrapes" on photographs of Jayla's body. (RR: Vol. 1, pp. 204; 206-209; 214; 218)(State's exhibits 46, 47 and 48). He came to a conclusion very different from that of the DPS Crime Lab: he perceived a "match" of the 3/4 inch lines on Jayla's body with the 3/4 inch treads on the shoes. (RR: Vol. 1, pp. 216- 217; 250). While DiMaio agreed that not all the lengths of the abrasions matched with the lengths of the tennis shoes, and that the marks could have been caused by something other than a tennis shoe, he nevertheless insisted that it was "most probably" the shoe: "That's all you can say." (RR: Vol. 1, pp. 252-253). DiMaio said that it was "[v]ery, very, very unlikely" that anything else other than the shoes caused the injury in light of the "match" of the 3/4 inch lines. (RR: Vol. 1, p. 250).
Dr. Bayardo had never mentioned anything about a tennis shoe causing bruising on Jayla's body's in any previous testimony regarding this case. (RR: Vol. 1, p. 101). However, on the morning he testified, he compared the tennis shoe with the "two parallel linear abrasions." "I didn't measure the shoes. We measured the photographs. *** They are compatible. The measurements are similar." (RR: Vol. 1, p. 102).
The Court: And then when you say it is compatible, the bruise on the body is compatible with what?
The witness: With the pattern in the sole of the tennis shoe. There is a portion on the sole of the tennis shoe that has two -- that has the edge and then there is a groove, and the width between the edge and of the groove is similar to the width between those two injuries.
The Court: And the tennis shoe that you say it is compatible with, where did you get the tennis shoe?
The witness: I saw a photograph this morning provided to me by the District Attorney's office.
(RR: Vol. 1, pp. 103-104).
Q: What's the scientific foundation for this particular opinion?
Bayardo: I don't have to have one.
Q: You don't? Well, then, it isn't a scientific foundation?
Bayardo: No.
Q: Something I could do; correct?
Bayardo: Correct. Anybody can have their own opinion.
(RR: Vol. 1, pp. 104-105).
[Defense counsel]: Objection is that it's not based upon a scientific foundation. He doesn't offer anything to the jury. The fact that it comes from a pathologist trying to limit some credence to scientific -- some scientific pronouncement, is really confusing, under 403 for sure, under the issue it confused the jury. It doesn't add anything that they don't already know but it now comes from a doctor and it's not based on a scientific principle.
The Court: The objections will be overruled. Bring the jury in.
(RR: Vol. 1, p. 105).
In rebuttal, Dr. Norton pointed out that the two linear bruises on Jayla's side could have been caused by a belt or some other common household object. (RR: Vol. 8, p. 155). As for tennis shoes, Norton said that possibility "is farfetched almost to the point of being impossible," and "it's a pretty far stretch" to conclude a "match." (RR: Vol. 8, p. 156-7). Echoing the DPS Crime Lab's conclusion, Norton said that while the soft part of any tennis shoe may leave a circular mark on a body, "there's nothing specific about these shoes that matches anything on the child's body." (RR: Vol. 8, p. 157). Norton did not examine Appellant's tennis shoes, or the depth of the tread on those shoes because she did not believe that the shoes were a cause of the linear bruises. (RR: Vol. 8, p. 207-208).
After trial, DiMaio explained in a letter to Appellant's counsel dated April 15, 1997 what he had meant by "match:"
I do recall the conversation that I had with you and Mr. White in January, 1997. At that time, I informed you that I would be offering expert testimony that the marks on the body, in my opinion, matched the pattern of the soles of the footwear warn [sic] by your client. I explained that the term "match" means that an object is equal to or similar to another thing. While a match may be unique such as in the case of a fingerprint, it does not have to be. The analogy that I gave was that if a convenience store was robbed by two individuals described as "white males," then both Mr. White and you "matched" that description because you both were white males.
(CR: Vol. 7, p. 185). It is noteworthy that DiMaio had evidently made his conclusions about a match long before he actually examined the shoes, which was on the day he testified. It is also noteworthy that while the Crime Lab had conveyed its opinion about the absence of a "match," the prosecution only produced the letter from Rojas after its case-in-chief, thereby precluding cross-examination of both DiMaio and Bayardo by the defense on this issue.
Argument & Authorities
Tex.R.Crim.Evid. 702 governs the admission of all scientific evidence. See Hartman v. State, 946 S.W.2d 60 (Tex.Crim.App. 1997). Rule 702 requires the trial court to act as "gatekeeper" by admitting only scientific testimony that is relevant and reliable. Id. See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Kelly v. State, 824 S.W.2d 562 (Tex.Crim.App. 1992), to be considered reliable, the "scientific, technical, or other specialized" testimony must first satisfy three criteria: (a) the underlying theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. Kelly at 573.
The nonexclusive factors which may be considered in the trial court's gate-keeping function regarding scientific or technical evidence include (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the experts testifying; (3) the potential rate of error of the technique; (4) the clarity with which the underlying scientific theory and technique can be explained to the court; and (5) the experience and skill of the person who applied the technique on the occasion in question. See Kelly at 572-573.
As the proponent of the shoe-marks "match," the prosecution had the burden of proving its reliability by clear and convincing evidence. Kelly at 573. The State made no attempt to do so, and the trial court took no judicial notice of anything, instead permitting both Bayardo and DiMaio to give their expert opinion of a "match" between the shoes and marks on the deceased. By failing to hold a hearing and require the State to prove the reliability of its proffered expert testimony, the trial court erred. See Fowler v. State, S.W.2d (Tex.App. No. 10-96-190-CR--Waco, delivered November 5, 1997)(error in admission of State expert error, not harmless, but overwhelming guilt).
Moreover, in order to be admissible, an expert's testimony must be related to scientific knowledge--inferences or assertions derived from the scientific method--and be based on "good grounds," that is, be empirically verifiable. Daubert, 509 U.S. at 590. See also Jordan v. State, 28 S.W.2d 550, 554 (Tex.Crim.App.1996).
Under the Daubert reliability standard, claimed "matches" of hair and handwriting have been found lacking as scientific knowledge, despite their traditional use in criminal cases. See, e.g., United States v. Starzecpyzel, 880 F.Supp. 1027, 1038 (S.D.N.Y. 1995) (despite "trappings of science," forensic document examination cannot be regarded as scientific knowledge in light of Daubert); Williamson v. Reynolds, 904 F.Supp. 1529, 1558 (E.D. Okla. 1995)(expert hair comparison testimony fails to meet Daubert's standard of reliability). However, the shoe "match" was not founded on science or specialized knowledge, two prerequisites for the admission of expert testimony.
As Bayardo insisted, no scientific foundation was necessary for an opinion which, as he put it, anyone can have. (RR: Vol. 1, pp. 104-105). This observation raises a question about why the prosecution introduced such "scientific" evidence, which anyone can perceive, through "expert" testimony. The answer is that Bayardo and DiMaio were needed to lend the facade of science and expertise to a dubious application of an unscientific theory already rejected by the DPS Crime Lab. This use of an expert to convey unscientific opinions in order for the State to secure criminal convictions is exactly the trial technique Daubert was meant to preclude.(9)
One factor in determining the reliability of ostensibly scientific evidence is the relevant scientific community's acceptance of the validity of the underlying scientific theory and technique. See Kelly at 572-573. Valid shoeprint analysis ordinarily involves a comparison of the shoe with a plaster cast of a print discovered at a crime scene. See Federal Bureau of Investigation, U.S. Department of Justice, Handbook of Forensic Science 29, 35 (1994). As the FBI expert on forensic foot morphology has pointed out in a leading text on the subject: "Positive identification of a shoe with a questioned impression cannot be made based on physical size and shape characteristics alone." Bodziak, W.J., Footwear Impression Evidence 374 (1990). See Thiel v. State, 762 P.2d 478, 484-85 (Alaska App. 1988). The DPS Crime Lab also deserves some consideration in determining acceptance of a "match" in the relevant scientific community. Thus, other legitimate experts in the field of shoe print comparisons would require more than a finding of some general characteristics before declaring a "match" between a given shoe and a given print.
Another factor in a reliability determination is the potential for error of the technique and its application, here, the comparison of measurements between footwear and imprints on a body. See Kelly at 572-573. The lack of reliability of the expert opinion that a "match" existed, was essentially conceded by DiMaio himself when he agreed that the marks could have been caused by something other than a tennis shoe. (RR: Vol. 1, pp. 252-253). This concession creates an infinite potential for error in the declared "match;" quite literally, anything else could have caused the marks other than Appellant's shoe.
A fundamental prerequisite of expert testimony is the existence of a scientific foundation, which Bayardo freely conceded was absent in his testimony: "I don't have to have one." (RR: Vol. 1, pp. 104-105). DiMaio, on the other hand, explained the scientific method underlying his opinion: a robbery description of "two white males" was the perfect match for Appellant's two white male attorneys. Under this scientific "match," then, a robbery description of "a human being" would match not only the reader, but every other person on Earth. The opinion that there was a match between an imprint on a body and a shoe when the imprint could also be matched with any other object or objects, is therefore scientifically unreliable. Notwithstanding the absence of a Daubert hearing, Appellant's objection on this point should have been sustained.
Tex. R.Crim.Evid. 403 requires exclusion of otherwise admissible expert testimony if the probative value of the evidence is substantially outweighed by "the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Expert testimony must be closely scrutinized for compliance with Rule 403 because, as the Daubert Court recognized, "expert evidence can be both powerful and quite misleading[.]" Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not be Amended, 138 F.R.D. 631, 632 (1991)); United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979).
If "anybody can have their own opinion," then no one, including the jurors, could have benefitted from either pathologist's opinion about a claimed "match" from a comparison anyone was capable of making. Appellant does not contend that such comparisons between two physical objects are unhelpful to jurors; they may well be. But a conclusion from two pathologists that two things look the same to them is not helpful to a jury because it carries no expertise beyond the ken of ordinary laymen.
If anything, an expert's claim that in his own mind he sees a "match," where similarities and dissimilarities have been made evident to a jury, runs counter to the roles of juries and expert witnesses. Expert testimony is meant to clarify evidence for jurors who alone must make a conclusion about whether two things "match." When the expert makes the conclusion for the jury, he is no longer "helpful" in the sense that a witness' testimony was meant to be, but has instead offered a factual determination to which jurors may defer.
DiMaio insisted that a "match" existed, while Bayardo saw "compatible" and "similar" measurements. Measurements can be defined with mathematical precision, but they were treated in this case more like ink blots, with two pathologists gazing into two sets of photographs and declaring their own subjective visions of similarities. Such testimony neither genuinely assists the trier of fact in rational, independent decision-making, nor does it ground factual determinations in anything scientifically reliable.
In Pierce v. State, 777 S.W.2d 399 (Tex.Crim.App. 1989), defense evidence was held properly excluded because the jury was inherently able to determine the matter and thus the evidence was not helpful under Rule 702. In Williams v. State, expert defense evidence was held properly excluded in part because it did not "constitute highly specialized knowledge, but is the type of assessment that lay people make every day." Williams v. State, 850 S.W.2d 784, 788 (Tex.App.--Houston [14th] 1993), affirmed, 895 S.W.2d 363 (Tex.Crim.App. 1994). The Court of Criminal Appeals has stressed that to be helpful in the evidentiary sense means that "expert testimony must be limited to situations in which the expert's knowledge and experience on a relevant issue are beyond that of an average juror." Duckett v. State, 797 S.W.2d 914, 966 (Tex.Crim.App. 1990).
Whatever probativeness may be credited to the unscientific expert opinion in this case, it was surely outweighed by the danger of misleading the jury about the validity of a genuine "match." The unfair prejudice in permitting experts to testify about a "match" which their own testimony belies is that jurors may well defer to the experts and simply accept their conclusions. Just as witnesses are precluded from giving their conclusions about such matters as "truth," experts should only be permitted to testify about characteristics and show their comparisons to the jury, and be precluded from inviting jurors to rely on their own subjective but "expert" pronouncements. See Yount v. State, 872 S.W.2d 706, 711 (Tex.Crim.App. 1993)("expert testimony that a particular witness is truthful is inadmissible under Rule 702"); Cohn v. State, 849 S.W.2d 817 (Tex.Crim.App. 1993). See also Celeste v. State, 805 S.W.2d 579, 581-582 (Tex.App.--Tyler 1991, no pet.)(mistrial should have been declared when witness said he believed the victim was telling the truth); Taylor v. State, 774 S.W.2d 31, 34 (Tex.App.--Houston [14th] 1989, pet. ref'd)("No witness is competent to voice an opinion as to guilt or innocence.") Both Bayardo and DiMaio were simply conveying their own subjective opinions about physicial evidence subject to various and contradictory interpretations--the very antithesis of reliable scientific conclusions. Because the State never proved by clear and convincing evidence the reliability of the "match" evidence, and because such evidence is not only unreliable but misleading and unfairly prejudicial, the trial court erred in admitting it as scientific evidence in this case.
ISSUE NO. TWELVE: THE TRIAL COURT ERRED IN SUSTAINING THE STATE'S OBJECTION AND EXCLUDING ANY QUESTIONS REGARDING THE DPS CRIME LAB'S REFUSAL TO SUPPORT THE CLAIMED "MATCH" BETWEEN APPELLANT'S SHOES AND MARKS ON JAYLA BELTON'S BODY.
During the redirect examination of Dr. Norton, defense counsel sought to question her about a letter to the prosecution, but the State objected and the court sustained the objection. (RR: Vol. 9, pp. 60-61). The letter from criminalist Juan A. Rojas, dated February 5, 1997, and addressed to prosecutor Jack Stick, concerned the "match" about which DiMaio had testified, and stated in pertinent part:
On this date, you requested a written summary concerning my review of some photographs of markings on the body of Jayla Belton and photographs of a pair of shoes allegedly from Lacresha Murray.
On Jan. 23, 1997 Inv. Joe Martinez met with me at the DPS Lab. After viewing the photographs, I advised Mr. Martinez that we were unable to testify that the marks on Belton's body were made by these shoes due to insufficient general characteristics.
***
(Respondent's Exhibit #57). The trial court refused to admit the letter through Norton or allow counsel to question her regarding its contents, but did permit Appellant to make an offer of proof.(10)
(RR: Vol. 9, pp. 100-101). The court's ruling was far broader than a mere sustaining of an objection--Appellant was precluded from even showing the letter to Norton.
Appellant contends that Norton should have been permitted to read Rojas' letter and include its contents within her expert conclusions. The letter was a confirmation by one of the experts consulted by the State which supported Norton's conclusions about a shoe-marks match and refuted the opinions of Bayardo and DiMaio. The connection between the tennis shoe and the "scrapes" on the body perceived by the prosecution's experts was critical to the State's case and the letter undermined that theory altogether. It was therefore highly relevant and defense counsel should have been permitted to question her about its contents -- if nothing else, whether or not she was aware of the Crime Lab's conclusions.
Rule 703 of the Texas Rules of Criminal Evidence provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
The Crime Lab's conclusion that "insufficient general characteristics" made a reliable scientific determination impossible is a fact which Norton surely could have considered as part of her opinion about the tennis shoe-scraping match touted by the prosecution. Norton was certainly quizzed by the prosecution regarding contrary conclusions about the acclaimed "match;" the defense should have been permitted to ask her about consonant conclusions as well. Under Rule 703 defense Appellant should have been able to ask and Norton should have been able to testify about the DPS Crime Lab's conclusion that "insufficient general characteristics" prevented expert testimony that certain marks on Jayla's body were caused by the shoes DPS was shown.
The trial court's blanket preclusion of even showing the document to Appellant's expert witness also constitutes an interference with her right to present a defense under Article I, §19, as well as the Fourteenth Amendment's Due Process guarantee. Because the authorities are the same as in Appellant's next issue, Issue Number 13, they will not be repeated here but merely incorporated by reference.
ISSUE NO. THIRTEEN: THE TRIAL COURT ERRED IN REFUSING TO PERMIT THE DEFENSE FROM INTRODUCING EVIDENCE THAT DERRICK SHAW DRANK ALCOHOL BEGINNING EARLY IN THE MORNING, THAT HE PURCHASED "CRACK" COCAINE, THAT JAYLA ATE FOOD FROM A CAN ON THE FLOOR, THAT SHAW DID NOT ALLOW JAYLA TO LEAVE THE APARTMENT, AND THAT JAYLA WAS LEFT ALONE BY BOTH PARENTS WHEN THEY WENT TO THE STORE.
The defense sought to show that Derrick Shaw had a history of abusing and neglecting Jayla and abusing drugs and alcohol. (RR: Vol. 9, pp. 63-66). Outside the presence of the jury, the defense called two witnesses, sisters Audrey and Lashawn Forcey.
In the fall of 1995 the Forcey sisters had lived directly across the walkway from the apartment shared by Shaw and Belton. Shaw was unemployer and stayed home with Jayla and Jasmine, frequently drinking alcohol throughout the day beginning early in the morning, and leaving the children alone as he socialized around the apartment complex. (RR: Vol. 9, p. 69). Audrey knew of two occasions that Shaw purchased crack cocaine. (RR: Vol. 9, pp. 69-70). Jayla was about 1½ years old, was dirty and undernourished, and Shaw's apartment was filthy. (RR: Vol. 9, pp. 70-71). Audrey gave Jayla some toys, but she never saw her play with them, and Jayla was not allowed to go outside and play with other children. (RR: Vol. 9, p. 72). Shaw frequently yelled at children, and Audrey once observed Derrick pick up Jayla and forcibly throw her onto the bed after she would not eat. (RR: Vol. 9, pp. 74-75). Judy Belton did nothing to protest this action. (RR: Vol. 9, p. 76).
Lashawn Forcey testified that Shaw left the children alone for long periods of time. (RR: Vol. 9, p.78). He was usually drinking alcohol, and discussed purchasing crack cocaine in order to make money. (RR: Vol. 9, p. 79). Shaw would come to her home and stay one to two hours, leaving the children alone. She observed Belton and Shaw leave the apartment with the infant Jasmine and leave Jayla alone. (RR: Vol. 9, pp. 80-81). Jayla appeared "dirty, undernourished, unhealthy…[h]er hair was never combed [and] [s]he kept a dirty t-shirt on, a wet diaper." (RR: Vol. 9, p. 81). From time to time she could see into the apartment and characterized it as "dirty." (RR: Vol. 9, p. 82). Lashawn heard Shaw yelling at the children in a violent way, and saw him pick Jayla up by the arm and throw her on the bed. (RR: Vol. 9, pp. 82-85). When Jayla began to cry, Shaw closed the apartment door and went outside. (RR: Vol. 9, p. 85). Shaw also acted violently toward Lashawn, and she characterized him as a liar and a violent person. (RR: Vol. 9, p. 86).
The State objected to the admission of this evidence under Tex.R.App.Pro. 404(a)(3), 607 and 608. (RR: Vol. 9, p. 88). After hearing extensive argument of counsel and reviewing case law, the trial court excluded evidence that Shaw had a drinking problem and that he bought crack cocaine. (RR: Vol. 9, pp. 88;100;103-104). The court excluded evidence that Jayla ate on the floor out of a can before Shaw threw her into the bedroom. (RR: Vol. 9, pp. 104-105). Evidence that Shaw would not allow Jayla to play outside and that Jayla was left alone in the apartment was also excluded. (RR: Vol. 9, pp. 104-105). Other than proof of Shaw's substance abuse problems, the court excluded the evidence under Tex.R.App.Pro. 403.
Evidence of Jayla's neglect and testimony that both Shaw and Belton would leave a baby of less than 2 years alone suggests that they had done so sometime before Jayla was left at the Murray home. The fact that Jayla was kept secluded inside her apartment also contributed to the larger picture of an abused and neglected child. Because virtually anything can happen to a neglected child, including in-home abuse, this evidence would also have added to the likelihood that Jayla was abused or injured before she made it to the Murray's--which was the defensive theory in this case.
At the time that counsel sought to introduce this evidence, Dr. Norton had already outlined the ingredients for child abuse: "poverty, alcohol, drugs . . . they're the hotbed for child abuse." (RR: Vol. 9, p. 59). The snapshot of Jayla's life in the fall of 1995 leading up to her stay at the Murray home fit the larger pattern of abuse which the defense had theorized happened within the Shaw-Belton household. Jayla's homelife with her step-father as a whole and circumstantially had all the tell-tale signs of on-going abuse. All this evidence was relevant to the defense's case because it constituted confirmation and specific application of everything about the nature of child abuse that Norton had already conveyed.
The State repeatedly impeached Norton and her conclusion that Shaw or Belton were the more likely sources of Jayla's injuries. The eyewitness accounts of Audrey and Lashawn Forcey rehabilitated Norton's testimony and should have been admitted on this basis as well.
This evidence was also offered after the prosecution had elicited on direct examination from Judy Belton that Jayla was "very energetic and happy," and healthy. (RR: Vol. 7, p. 22). The State had opened the door to this line of inquiry and the evidence was admissible as contradiction and rebuttal to the State's portrayal of a happy, healthy child.
Shaw's alcohol and crack problem was relevant because his habit of drinking early in the morning indicates an addiction which the jury could infer continued through May, 1996. Moreover, an alcohol and/or crack cocaine addiction is often associated with child abuse, as Norton had testified, and the evidence supported the theory that Jayla was chronically abused and neglected. The source of her injuries, in the light of this evidence, was more likely Shaw than Appellant. All this evidence was offered not to expose Shaw as a liar, but as the more likely source of Jayla's fatal injuries.
The cases relied upon by the trial court are inapposite. Ramirez v. State, 802 S.W.2d 674 (Tex.Crim.App. 1990) involved the State's impeachment of a witness on a collateral issue. Appellant was not impeaching anyone with testimony of Audrey or Lashawn Forcey. In Moody v. State, 827 S.W.2d 875 (Tex.Crim.App. 1992), the defense sought to cross-examine a deputy sheriff about a civil rights suit in which he (the deputy) was a defendant, claiming that the suit showed his bias against the defendant. Here, the defense was not cross-examining the Forcey sisters, or attempting to prove bias or motive. Carroll v. State, 916 S.W.2d 494 (Tex.Crim.App. 1996) involved cross-examination of a key State's witness regarding pending criminal charges--a case which if anything, advances Appellant's arguments infra that evidentiary rules must yield to constitutional considerations, such as the right to present a defense. Thus, the State's Rule 608 objection was misplaced, and the trial court's reliance on that inapplicable rule (as well as the interpretative cases) as a basis for exclusion was error.
The exclusion of evidence regarding Shaw's misleading testimony and substance abuse, and Jayla's neglect and seclusion in this circumstantial evidence case deprived Appellant of her right to present a defense, contrary to the due course of law provision in Article I, §19, and due process as guaranteed by the Fourteenth Amendment. The application of evidentiary rules is offensive to notions of fundamental fairness "only when, (1) without a rational basis, they disadvantage the defendant more severely than they do the State or (2) arbitrarily exclude reliable defensive evidence without achieving a superior social benefit." Fuller v. State, 829 S.W.2d 191, 208 (Tex.Crim.App. 1992). "Few rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 301, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process." Id, U.S. 410 at 293, 93 S.Ct. at 1045.
In Skelton v. State, 655 S.W.2d 302 (Tex.App.--Tyler 1983, no pet.), the trial court struck the testimony of three defense witnesses on the State's motion. Quoting Washington v. Texas, supra, the appellate court opined that "the right to offer the testimony of witnesses . . . is in plain terms a right to present a defense . . . to the jury so it may decide where the truth lies. * * * This right is a fundamental element of due process of law." Skelton at 304 (emphasis in original). See also Coleman v. State, 915 S.W.2d 80 (Tex.App.--Waco 1996, no pet.); Renfro v. State, 822 S.W.2d 757 (Tex.App.--Houston [14th] 1992, pet. ref'd).
[F]alse evidence, left uncorrected, can mislead the factfinder, thereby misdirecting the due course of law and diverting due process from its intended progression toward a just and fair trial. Because false evidence corrupts the truth seeking function of trial, a new trial will be necessary unless the false evidence does not violate the accused's right to due process.
Duggan v. State, 778 S.W.2d 465, 468 (Tex.Crim.App. 1989). Neither fundamental fairness nor the truth-seeking function of trial was served by the exclusion of evidence revealing that, had Shaw been investigated by the police, he would have met at least as many requisites for a suspect, and police would have been able to secure an arrest warrant for Shaw just as easily as for Appellant. The evidence was reliable defensive evidence, and its exclusion achieved no superior social benefit. The trial court therefore erred as a constitutional matter as well as under the rules of criminal evidence.
ISSUE NO. FOURTEEN: THE TRIAL COURT ERRED IN GRANTING A STATE'S CHALLENGE FOR CAUSE AGAINST A QUALIFIED VENIREMAN.
During the voir dire examination, venireman Michael Stevens indicated that he had formed an opinion about the case:
[I]t's just the way that I feel about the little girl. I think she's innocent and I just think that because she's just 12 years old and, you know, it's sort of like I feel sorry for her and I really don't want to see her, you know, go through all the trouble. But, you know, that's just based on my opinion.
***
It's just because, you know, like I feel sorry for her.
(Voir Dire, pp. 42-46). However, when asked whether or not he could find Appellant guilty, Stevens said, "Well, if the evidence shows it, then I wouldn't have no choice but to find her guilty." (Voir Dire, pp. 42-46). Stevens could set aside his feelings and follow the law. (Voir Dire, pp. 42-46).
The State posed two questions:
MR. COBB: Mr. Stevens, you don't want to find her guilty, do you?
MR. STEVENS: No, not really.
MR. COBB: And would it be safe to say that you would look for reasons not to find her guilty?
MR. STEVENS: Pretty much.
(Voir Dire, pp. 42-46). Over objection the trial court granted the State's challenge for cause.
Tex.Code Crim.Proc., Art. 35.16(b)(3) allows a challenge for cause to a prospective juror who has a "bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." However, there is nothing to indicate that Stevens had any predisposition about any law whatsoever. From the plain language of Art. 35.16(b)(3), Stevens was not unqualified to serve as a juror.
That Stevens was reluctant to find Appellant guilty or would look for reasonable doubt does not render him challengeable for cause. On the contrary, a prospective juror who would have held the prosecution to its burden of proof and returned a guilty verdict "if the evidence shows it," despite feelings of pity, might be said to be well-qualified to sit as a juror. In any event, the State did not show that Stevens was unable to follow any phase of the law, or was relying on anything other than his own reasonable notion of what constitutes proof beyond a reasonable doubt. See Zinger v. State, 932 S.W.2d 511 (Tex.Crim.App. 1996); Castillo v. State, 913 S.W.2d 529, 534 (Tex.Crim.App. 1995).
Stevens said that he could follow the law and find Appellant guilty were the State to so prove beyond a reasonable doubt. If Stevens could be disqualified, then only the pitiless and those eager to condemn an adolescent would be qualified. Thus, he was not unqualified and the trial court erred by granting the State's challenge. See Brown v. State, 913 S.W.2d 577, 580 (Tex.Crim.App. 1996)(trial court abuses its discretion for permitting challenge for cause against an unequivocal venireperson because "nothing is left to the discretion of the trial court" under those circumstances).
Harm is established where the prosecution has exhausted all its peremptory challenges. Bell v. State, 724 S.W.2d 780, 794 (Tex.Crim.App. 1986), cert. denied, 479 U.S.1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987); Grijalva v. State, 614 S.W.2d 420, 423 (Tex.Crim.App. 1980); Payton v. State, 572 S.W.2d 677, 680 (Tex.Crim.App. 1978). The State exhausted its peremptory strikes. (Second Supp. Clerk's Record, p. 38). Thus, the trial court erred in granting the State's challenge for cause.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court reverse the conviction and remand the case to the trial court for entry of an order of acquital; alternatively, Appellant prays that this Court reverse her conviction and bar further prosecution in this cause; or Appellant prays that her conviction be reversed and the case remanded for a new trial.
Respectfully submitted,
KEITH S. HAMPTON
Attorney At Law
819 ½ West 11th St.
Austin, Texas 78701
(512) 476-8484
(512) 476-0953 (fax)
SBN # 08873230
CERTIFICATE OF SERVICE: By affixing my signature above, I hereby certify that a true and correct copy of the foregoing Appellant's Brief was delivered via to the Honorable Ronald Earle, Travis County District Attorney, Travis County Courthouse, P.O. Box 1748, Austin, Texas 78767, on this day, January , 1997.
(1) First Amended Original Petition Alleging Delinquent Conduct Seeking A Determinate Sentence.
(2) Jury Instructions on Appellant's First Trial and Verdicts on Negligent Homicide and Injury to a Child.
(3) Second Amended Original Petition Alleging Delinquent Conduct Seeking A Determinate Sentence.
(4) Jury Instructions on Appellant's Second Trial and Verdict on Injury to a Child.
(5) Trial court's finding of fact and conclusions of law regarding Appellant's Motion to Suppress Confession.
(6) Text of the following provisions:
1. The record from the first trial, which was included as an exhibit to Appellant's pretrial writ, has been withdrawn from that cause number and is now included as an exhibit in the instant cause. Because there were two trials involved in this case, Appellant uses pre-1997 appellate rules designations for the first trial: "Tr." refers to the clerk's record, and the statement of facts is designated by volume and page number. For the cause directly on appeal, Appellant uses post-1997 appellate rules designations: "RR" refers to the reporter's record, and "CR," to the clerk's record.
2. Ages refer to time of trial, not time of offense.
3. The Fifth Amendment is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)
4. The purpose of § 22.04(h) may be to allow the State to commence prosecutions with pleadings including allegations of injury to a child as well as other applicable provisions. However, there is no proof that the legislature intended to permit successive prosecutions for the same offense, and the statute itself does not purport on its face to do so. Tex.Gov't Code, § 311.023(5) directs the trial court to consider the "consequences of a particular construction," while § 311.021(1) bears a presumption that the legislature intended its statute to be in "compliance with the constitutions of this state and of the United States." The trial court made the only interpretation of the statute which would be in violation of the constitutional double jeopardy protections. These Government Code provisions, compelled the opposite conclusion.
5. During the conference on the jury instructions trial counsel made the following objections regarding the instruction to consider whether Appellant committed injury to a child, regardless of the jury's previous answers:
Respondent would further object to Page 11 of this Court's proposed charge, which proposes to give an instruction on injury to a child. We believe that, based on the evidence and the Court's charge, that the instruction to the jury including injury to a child as an additional paragraph is a violation of the Respondent's constitutional rights and due process rights. And based on the Blockburger rule, each element that's included in injury to a child is included in the capital murder. Respondent would further object to Question 5, which begins on Page 12. We would also object to the inclusion of the lesser included offense of injury to a child.
(Vol. IV, p. 780). The trial court overruled the objections. (Vol. IV, p. 781).
6. The circumstances appear to make this a case of first impression. Appellant is not arguing here that she suffered multiple punishment; the trial court made no disposition regarding the verdict on criminally negligent homicide. Rather, Appellant contends that the court's instructions permitted jurors to put Appellant in jeopardy a second time for the same offense even if they had already adjudicated her guilt or innocence when answering the questions under the homicide theories of the case.
7. As Appellant urged in her special exceptions:
The State seeks to prosecute Appellant under a theory never pled (murder under Section 19.02) through allegations of facts never intended to be proven, under a statute which did not apply (Section 22.04) for an offense barred by double jeopardy. There is very little about this procedural subterfuge which comports with Appellant's constitutional rights. Unless this Court is prepared to elevate form over substance and ignore the State's transparent design, the additional allegations should be stricken from the pleadings or, in the alternative, the State should be required to plead the result it expects to prove at trial, and which it proved at the previous trial, namely, death.
(CR: Vol.VI, p. 109)
8. The Court of Criminal Appeals recently found the opinions of other state's courts persuasive authority in a recent decision. See Woods v. State, S.W.2d (Tex.Crim.App. No. 1574-96, delivered November 5, 1997).
9. Such misuse of science in criminal cases has become well-known to the legal profession. For example, "forensic dentist" Dr. Michael West's various "matches" with the use of his alternate light imaging technique have been exposed as unreliable. See Hansen, M., Out of the Blue, A.B.A.J. 50 (Feb. 1996). Better known to the judiciary and pertinent to the issue in this case are the "expert" shoeprint comparisons of Dr. Louise Robbins. See Giannelli, Essay: the Abuse of Scientific Evidence in Criminal Cases: the Need For Independent Crime Laboratories, Va.J.Soc.Poly.&L. 439, 458-461 (Winter 1997). Robbins, like Bayardo and DiMaio, declared a "match" whenever she saw enough similarities to convince her that a given shoe caused a given print. Hansen, M., Believe It or Not, A.B.A.J. 64 (Jun. 1993). This approach permitted Robbins to give "expert" testimony about a "match" based on her own subjective state of certitude not subject to any independent scientific refutation or verification--except an equally subjective opinion of another expert to the contrary.
10. THE COURT: During the second round of examination of Dr. Norton by Mr. White; that is, the rebuttal portion of his examination, Mr. White showed Respondent's Exhibit #57, which is a letter dated February the 5th, 1997 addressed to Mr. Stick, signed by Mr. Juan Rojas, Criminalist No. 6. And this letter was shown to me, and I indicated to Mr. White that he could not show that or question Dr. Norton concerning the contents of this letter. We're putting this into a bill. It is a 103 offer of proof, and the contents were made known to the Court prior to the Court's exclusion of that evidence.
(RR: Vol. 9, pp. 100-101).
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