Opinion
No. 05-04-01422-CR
Opinion Filed April 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-50758-MP. Affirm.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
OPINION
Appellant pleaded not guilty to capital murder of a child under six years of age, and a Dallas County jury convicted him. After making a deadly weapon finding, the trial court sentenced him to life imprisonment. On appeal, appellant's first four issues concern the admission of inculpatory oral statements, his fifth issue concerns the admission of evidence about his demeanor during interrogation, and his final issue concerns the admission of six autopsy photographs. We affirm.
MOTION TO SUPPRESS INCULPATORY STATEMENTS
In his first, second, and third issues, appellant argues that the trial court erred in admitting appellant's oral statement that he had shaken the victim and thrown him to the floor. Appellant objected under code of criminal procedure article 38.22 and requested a jury instruction under article 38.23 to disregard the inculpatory statements. The trial court overruled his objection and denied his request for an instruction to disregard. Appellant argues that, despite the State's arguments to the contrary, appellant was in custody for purposes of article 38.22 when he made inculpatory statements to the police because (1) the detectives believed that the child had been intentionally injured and was in appellant's care at the time of the injury, (2) the focus of their suspicion fell immediately on appellant, (3) detectives drove him to the station in a police vehicle instead of letting him take his own vehicle, (4) detectives placed him in an interrogation room and mirandized him, (5) appellant endured interrogation over a period of an hour and a half by two separate detectives, (6) the officers had probable cause to arrest appellant despite their protestations to the contrary, and (7) detectives failed to release appellant once he left the hospital. Appellant also argues that the Dallas Police Department's policy of not recording interrogations benefits the State. Standard of Review We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). But we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Id. In denying appellant's motion to suppress, the trial court entered oral findings of fact and conclusions of law: (1) that appellant voluntarily went with police to the police station; (2) that before the interviews or interrogations, appellant was mirandized; (3) that appellant spoke both English and Spanish, receiving the Miranda warnings in Spanish but, at his request, conducting the interviews in English; (4) that at no time during the interviews did police threaten appellant; (5) that at no time during the interviews did appellant ask to leave; (6) that at no time during the interviews did appellant request an attorney; (7) that appellant made his statements freely and voluntarily; (8) that appellant was not under arrest during the interviews; (9) that he was free to leave during the interviews; (10) that he made inculpatory statements during both interviews; (11) that appellant was not in custody during his interviews; (12) that his statements were therefore admissible; and (13) that, although he was in custody at the time, appellant freely and voluntarily made the statement that he would serve three or four years in jail, which would be a good rest. See State v. Groves, 837 S.W.2d 103, 106 n. 5 (Tex.Crim.App. 1992) (holding that oral findings of fact can be considered as findings of fact). Facts Pertinent to Issues One through Five Before trial, the trial court conducted a hearing on the admissibility of appellant's inculpatory statements outside of the jury's presence. Child abuse investigator Patricia Sanmartino testified that she and Detective Glen Slade interviewed appellant at Parkland Hospital where he was treated for an anxiety attack after his infant son, the victim, was hospitalized. Sanmartino asked appellant to accompany her to police headquarters for an interview, and he agreed to go. Appellant did not appear to be under the influence of any medication, alcohol, or drugs. She testified that he was not under arrest, police had not mirandized him, and he was not wearing handcuffs. She and Detective Slade drove him to the police station in an unmarked police car. When they arrived at the police station, the detectives placed appellant in an interview room and mirandized him. Slade testified that at the time of the interview, he had no probable cause to arrest appellant. Although hospital personnel had informed the detectives that the victim had sustained intentionally-inflicted injuries in appellant's care, Slade testified that he still needed to determine whether anyone had lied, other individuals were in the home, or appellant was covering up for someone else. Sanmartino testified that police usually read Miranda warnings to anyone they planned to interview, regardless of whether the person was under arrest. Slade told appellant that he was free to go, but appellant never asked to terminate the interview or asked for a lawyer. The police allowed appellant to drink water and use the bathroom. Sanmartino observed the thirty-minute interview from another room and took notes, from which she testified. The interview was not otherwise recorded. She testified that appellant stated that the baby was having problems breathing for the second time in two days. He said the baby was shaking as he held him. Appellant then put the baby in water and was going to give him a shower, but the baby did not like water. Appellant gave the baby a "regular" shake, not a hard shake. Appellant demonstrated the shake. He balled up his fists in front of his face, holding them about a foot apart, and did one very rapid shake forcefully with his hands back and forth. Appellant said that if Slade wanted to "put [the crime] on him" to go ahead and take him to jail. Throughout the interview, appellant had a sarcastic demeanor. He was argumentative with the detective, had a loud tone, and was smirking and smiling. Slade testified that even at the close of the interview, he still had no basis to believe that, other than what doctors had told him, appellant had done anything to the child. He did not arrest him. Detective Slade left to interview a witness in an unrelated case, and Detective Warren Breedlove then interviewed appellant for about forty minutes. Sanmartino also observed and took notes on Breedlove's interview. He did not re-mirandize appellant. Again, appellant never said he wanted to leave, nor did police deny him any basic necessities. Appellant's tone was calmer with Breedlove, although at the beginning of the interview, appellant was still angry. He asked Breedlove what he wanted from him. Breedlove said he just wanted the truth. Appellant said that the baby was shaking, so he gave him a bath. The baby was still shaking when appellant finished bathing him. Appellant placed the baby on the bed where he continued to shake, but the baby's arms and legs were stiff. Appellant shook him a little. The baby then fell off the bed and started shaking again, so appellant shook the baby to see if the baby was awake. Breedlove again said he just wanted to know the truth, and appellant said fine, "I don't give a fuck." He said I'm not going to tell you "shit" right now. Breedlove reiterated that he really needed to know what was going on with the baby. Appellant then claimed that he was taking care of three other kids, and the baby was crying. He threw the baby on the floor, shook him hard, and left him on the floor. Thirty minutes later when appellant checked on him, the baby was asleep and seizing. He told his wife that the baby "did not look right" and was changing colors. The baby turned purple around 7:50 p.m. Appellant said he tried CPR but claimed it did not work. Appellant then explained in detail the day's events. Appellant claimed that he cooked and cleaned and took care of the children. The baby was crying a lot. Appellant changed him, shook him a little bit, and threw him on the bed. He then gave the baby another bottle. He saw the baby shaking and seizing and turned on the shower. Appellant said that two or three days earlier, the baby was shaking the same way but that he did not tell his wife. Around 5:00 p.m., he put the oldest boy and little girl in the shower. He saw the baby shaking, but it did not scare him. He picked up the baby and hit him a little bit to see if he would wake up. The baby started crying and got stiff. Appellant was hitting him trying to wake him up and saying "ondelay puta" [phonetic spelling], which translates to "hurry whore." He laid the baby down on the bed and gave showers to the other kids. The baby looked different, "weird." Around 6:30 p.m., the baby started changing colors. Appellant hit him a little bit more to see if he would wake up. He dressed the baby and changed the other kids and then started cooking because he knew his wife would be hungry when she got home. The baby was having trouble breathing, and appellant could hear him from the kitchen. Appellant was thinking to himself, "What the fuck is wrong with him?" He picked up the baby and shook him a little, but the baby did not wake up. The baby was gasping for air. Appellant would have called 911, but it was hard with four kids, two in diapers, and one going to the hospital. After speaking with Breedlove, appellant refused to repeat his story to Slade or provide a written statement, and Breedlove arrested him. While Sanmartino and Breedlove transported appellant to jail, they told appellant that he was being charged with a first degree felony. Appellant responded, "[T]hat's fine, I'll probably get out in three or four years . . . that's a good rest." Applicable Law Appellant's first three issues turn on whether he was in custody when he made the inculpatory statements. Article 38.22 of the code of criminal procedure sets out certain requirements for admitting an accused's oral and written statements when they result from custodial interrogation and specifically exempts from its requirements any statement made outside of custody. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (Vernon 2006) (noting that nothing in article "precludes the admission of . . . a statement that does not stem from custodial interrogation"). The Supreme Court has defined custodial interrogation as "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 (1966). A person is in custody for purposes of article 38.22 if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322 (1994); see Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). The "reasonable person" standard presupposes an innocent person. Dowthitt, 931 S.W.2d at 254. The court of criminal appeals has outlined at least four general situations that may constitute custody for purposes of article 38.22: (1) when a law enforcement officer physically deprives a suspect of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement has been significantly restricted; and (4) when probable cause to arrest exists and law enforcement officers do not tell the suspect he is free to leave. See Dowthitt, 931 S.W.2d at 255 (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985)). As these four situations indicate, the initial determination of custody under the Supreme Court's Stansbury test depends on the objective circumstances of the interrogation, not on the subjective views of the interrogating officer or the person being questioned. See Stansbury, 511 U.S. at 325 (noting that even clear statement by officer that person under interrogation is prime suspect is not itself dispositive of custody issue because some suspects are free to come and go until police decide to make arrest). Law enforcement officials's subjective intent to arrest is irrelevant unless they somehow communicate or otherwise manifest their intent to the suspect. Dowthitt, 931 S.W.2d at 254. A reviewing court will determine whether a person is in custody on an ad hoc basis after considering all of the objective circumstances. Id. at 255. However, although an interrogation may begin as a non-custodial interrogation, police conduct during an encounter can cause an initially consensual inquiry to escalate into custodial interrogation. Id. Formal arrest is not a prerequisite to custodial interrogation. See Melton v. State, 790 S.W.2d 322, 325 (Tex.Crim.App. 1990). Article 38.23 prohibits the admission of evidence obtained by an officer or other person in violation of either the state or federal constitution or any laws. The defendant has the burden of raising an exclusionary issue by producing evidence of the statutory violation. See Pham v. State, 175 S.W.3d 767, 772 (Tex.Crim.App. 2005). Analysis The police interviews of appellant do not fall within any of the Dowthitt-described situations. Appellant voluntarily accompanied the detectives to the police station, traveling in an unmarked car. He was not wearing handcuffs before or during the interview. And police did not manifest any intent to detain him as a suspect. Although police mirandized and interviewed him at the police station, Slade reiterated that appellant was free to leave. Nevertheless, appellant did not invoke his Miranda rights or ask to leave at any time during the interviews, choosing instead to remain at the station and discuss the allegations involved in this case at length. Throughout the interviews, police allowed him water and use of the bathroom. Contrary to appellant's contentions, police could both focus their investigation on appellant and interview him at police headquarters without conclusively establishing "custody" for purposes of article 38.22. See Stansbury, 511 U.S. at 322-26. Under these circumstances and in light of the reasonable person standard set out in Stansbury and Dowthitt, we conclude that appellant was not in custody for purposes of article 38.22 at the time he made the oral statements. Because we conclude, based on the objective factors presented in this case, that a reasonable person in appellant's circumstances would not have believed, at the time of the statements, that police were restraining his freedom of movement to the degree associated with a formal arrest, see Dowthitt, 931 S.W.2d at 254, we conclude appellant's statements were not the result of custodial interrogation. As a result, article 38.22 did not apply to the statements, and the trial judge did not err in admitting the statements over appellant's objections. Because appellant has not met his burden under article 38.22, he has not raised an exclusionary issue. See Pham, 175 S.W.3d at 772. Accordingly, we conclude that article 38.23 did not preclude the admission of appellant's inculpatory statements or mandate a jury instruction. We overrule appellant's first three issues.APPELLANT'S COMMENTS AND DEMEANOR
In his fourth issue, appellant asserts that the trial court erred in overruling his Rule 401 and Rule 403 objections to Sanmartino's testimony that, en route to jail, appellant responded to being charged with a first degree felony by saying, "[T]hat's okay, I will probably get out in three or four years, that's a good rest." In his fifth issue, he argues that the trial court erred in overruling his relevancy objection to Sanmartino's testimony that appellant was sarcastic and smirked during the interviews. Preservation of Error The State argues that appellant made an untimely objection at trial by objecting to the testimony about appellant's demeanor after Sanmartino testified. To properly preserve error for appellate review, the complaining party must make a timely, specific objection. Tex.R.App.P. 33.1(a). However, when the court, out of the jury's presence, hears and overrules objections to evidence, the complaining party is not required to object again before the jury in order to preserve error. Tex. R. Evid. 103(a); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). In this case, appellant had already objected to testimony about his demeanor at the close of the motion to suppress hearing and preserved error for review. Standard of Review In considering a trial court's ruling on the admissibility of evidence, we must determine whether the trial court abused its discretion. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). We review the trial court's ruling in light of what was before the court at the time it made the ruling and uphold the ruling if the record reasonably supports it, and it is correct under any theory of law applicable to the case. Id.; see also Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App. 2005); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Applicable Law Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it is without the evidence. Tex. R. Evid. 401; see Mayes v. State, 816 S.W.2d 79, 84 (Tex.Crim.App. 1991) (noting that evidence is relevant under Rule 401 if it "influences consequential facts, i.e., facts which have something to do with the ultimate determination of guilt or innocence in a particular case"). Under Rule 403, all relevant evidence is admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Rule 403 does not exclude all prejudicial evidence; rather, it focuses only on the danger of unfair prejudice. State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). "Unfair prejudice" pertains "only to relevant evidence's tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged." Id. We assess four nonexclusive factors when determining whether the danger of unfair prejudice substantially outweighs the probative value of evidence. Id.; Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App. 2003). These factors include: (1) "how compellingly the evidence serves to make a fact of consequence more or less probable;" (2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way; (3) "the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense;" and (4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Mechler, 153 S.W.3d at 440-41; Manning, 114 S.W.3d at 926. Analysis Both the statement and appellant's cavalier demeanor were relevant to appellant's culpable state of mind as a tacit admission of guilt. And neither his statement nor demeanor were unduly prejudicial under the Mechler factors. Both made his guilt more probable, in conjunction with his earlier inculpatory statements. Neither would have impressed the jury irrationally, in light of the inculpatory evidence they had already heard. And the prosecutor needed only one exchange on each topic to develop the evidence. Further, both appellant's statement and demeanor went directly to his intent. Under the facts of this case, we conclude that the probative value of the evidence of appellant's statement and demeanor was not substantially outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion in admitting the testimony about his jail remark and demeanor. We overrule his fourth and fifth issues.ADMISSION OF AUTOPSY PHOTOS
In his sixth issue, appellant contests the admission of autopsy photos, State's Exhibits 21, 22, 23, 24, 28, and 29. Appellant objected outside of the jury's presence under Rules of Evidence 401 and 403. Standard of Review The admissibility of a photograph is within the sound discretion of the trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex.Crim.App. 2004). We will not disturb a trial court's ruling admitting or excluding evidence so long as the trial court's decision falls within the "zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Applicable Law In addition to usual Rule 401 and Rule 403 considerations, a trial court, in deciding whether to admit photographs, may consider the following factors to determine whether the danger of unfair prejudice substantially outweighs the probative value of the evidence: the number of photographs, the size of the photograph, whether they are in color or black and white, whether they are gruesome, whether the body is naked or clothed, and whether the body has been altered by autopsy. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App. 2003). Changes rendered by the autopsy process are of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant. Hayes v. State, 85 S.W.3d 809, 816 (Tex.Crim.App. 2002). When pictorial evidence will help the jury to understand verbal testimony, such as the technical language used by a medical doctor in describing the injuries sustained by a victim of a crime, the photograph is generally admissible. Harris v. State, 661 S.W.2d 106, 107 (Tex.Crim.App. 1983). Photographs that depict the nature, location, and extent of a wound have been declared probative enough to outweigh any prejudicial effect. Legate v. State, 52 S.W.3d 797, 807 (Tex.App.-San Antonio 2001, pet. ref'd). Overall, the photograph must be helpful to the jury: "[i]f there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects." Erazo v. State, 144 S.W.3d 487, 491-92 (Tex.Crim.App. 2004). Analysis Appellant is complaining solely of autopsy photos. Of the six contested autopsy photos, all depict internal injuries. We agree with appellant that the photos have been poorly reproduced for us in the reporter's record. However, in conjunction with the testimony of chief Dallas County medical examiner and director of the Southwestern Institute of Forensic Sciences Dr. Jeffrey Barnard, we can discern their relevance and probativity. In a hearing outside of the jury's presence, Barnard testified,State's Exhibit 21 is a photograph which demonstrates an area in the right side of the chest in which there are rib fractures which are traumatic injuries related to the course of events in this child's death. State's Exhibit 22 is a photograph of the head in which the scalp has been reflected [pulled back] and demonstrates the impact site to the right side of the head which was involved in part of the legal head injuries in this case. State's Exhibit number 23 is a photograph of the skull and the back portion of the head, the occipital scalp of which show no injuries, in which demonstrate that this area in conjunction with a previous photograph, I don't know what number that is, that this is not an injury but is a birthmark instead. State's Exhibit number 24 is a photograph of the thymus, which is part of the lymphatic system which is large in children, which has a large amount of injury on it. State's Exhibit number 28 is a close-up photograph of State's Exhibit 23, again, showing the area where the birthmark would be found on the opposite side of the scalp. In other words, that if this was a true traumatic injury where I shot the close-up photograph that's where you would have an impact site if it was traumatic. State's Exhibit number 29 is a photograph of the under surface of the liver, in which there is an injury to the liver. There's a laceration present.Indeed, our review of the pictures and testimony reveals that State's Exhibits 23 and 28 depict the back of the victim's head with the scalp removed to show that a birth mark on the back of the victim's head was not an injury. State's Exhibit 22 depicts a large, hemorrhaging impact site on the right side of the skull. State's Exhibit 24 depicts a traumatic hemorrhaging injury to the thalamus gland. State's Exhibit 29 depicts a laceration to the under surface of the liver. And State's Exhibit 21 depicts rib fractures to the rib cage, consistent with squeezing the rib cage. The appellate record includes eight-and-a-half-by-eleven-inch black and white photocopies of the exhibits. Although the record does not reveal the size of the originals, the originals were in color. Citing Prible v. State, 175 S.W.3d 724 (Tex.Crim.App. 2005), appellant asserts that the issue at trial was appellant's culpable mental state which the autopsy photographs do not illuminate. In Prible, the trial court admitted autopsy photos of the dissected organs of the children who died alongside their parents, whom appellant was charged with killing. Id. at 736. The court of criminal appeals held that the trial court erred in admitting the photographs but concluded that the error was harmless. Id. at 737. The court explained that (1) at the time of their admission, the jury had already seen and heard about the disturbing circumstances of the children's deaths through properly admitted photographs and testimony; (2) these photographs were not particularly gruesome or emotionally charged; they were clinical and depicted disembodied organs and tissue; (3) they paled in comparison to the properly admitted post-mortem photographs of the parents whose deaths appellant was charged with intentionally causing; (4) the State, while emphasizing appellant's admission to a witness that he had "taken out" an entire family, did not dwell upon or emphasize the improperly admitted post autopsy photographs of the children; and (5) these photographs had nothing to do with the disputed issue at trial of whether appellant murdered the children's parents as charged. Id. at 737. Unlike the photographs in Prible, the photographs in this case depicted injury to the victim whom appellant was charged with killing and went directly to appellant's culpable mental state. The injuries that caused the victim's death were not immediately apparent externally. The State therefore needed testimony and photographs to explain their extent. Further, the quantity and extent of the victim's injuries belie any evidence that appellant did not shake the victim or that he did not shake the victim hard. The autopsy photos show extensive and pervasive trauma. "Visual evidence accompanying testimony is most persuasive and often gives the fact finder a point of comparison against which to test the credibility of a witness and the validity of his conclusions." Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999). And "when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence." Id. Applying these principles to this case, we cannot conclude that the danger of unfair prejudice substantially outweighed the probative value of these photographs. The trial court did not abuse its discretion in admitting them. We overrule appellant's sixth issue.