Opinion
No. 05-10-01086-CR
08-10-2012
FRANZWA MILLER, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed August 10, 2012.
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F09-40846-JJ
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Francis
A jury convicted Franzwa Miller of capital murder in the death of his four-month-old daughter, and the trial court assessed a mandatory life sentence without parole. On appeal, appellant contends the trial court abused its discretion by admitting into evidence statements he made to a Child Protective Services investigator and by admitting evidence he physically abused the child's mother. We affirm.
Appellant has not challenged the sufficiency of the evidence to support his conviction; consequently, we only briefly recount the facts. Mesquite police officers and paramedics responded to a call of an unconscious child at an apartment. When they arrived, four-month-old Lea Miller was not breathing and had no pulse. Her parents, Alesha Dean and appellant, showed no emotion as emergency responders performed CPR. Lea was transported to the hospital, where she was attended by numerous physicians before she was removed from life support. Lea's injuries included a bruise on her left temple, swelling on her right temple, multiple skull fractures, bleeding around the brain, bleeding in the back of the eyes, and several healing broken ribs. The blunt force head injury was fatal. Police arrested the parents: appellant was charged with capital murder, and Dean was charged with felony injury to a child by omission.
At the time of appellant's trial, Dean had not been prosecuted and waived her Fifth Amendment rights. Dean testified that on the night of the incident, she heard Lea crying around 1:30 a.m. She got up and fed Lea two ounces of her bottle, and Lea threw up. Dean called for appellant to help her while she cleaned up the mess. Appellant took Lea from Dean's arms and placed her on the floor. Lea was “crying hysterically,” and appellant was getting angry and screamed at her to “shut up.” Lea continued to cry, and Dean said appellant slapped Lea “as hard as he could” on the side of her face. Dean said Lea “stiffened up and . . . lost her breath and passed out.” According to Dean, Lea never moved or breathed after that. Dean testified appellant was physically abusive to Lea on other occasions. She acknowledged she knew the abuse was going on and did nothing to prevent it. To explain her inaction, Dean said appellant also beat her and she was afraid to say anything or to leave him.
A second witness, Jason Lester, corroborated Dean's testimony regarding abuse. He testified he lived with appellant and Dean during the last two weeks of Lea's life. When Lea cried, appellant would scream at her “at the top of his lungs,” which would cause Lea to cry even more. Appellant spanked Lea with a spatula on several occasions and kept her in a closet most of the time and would not allow anyone in the room. On the day of the incident, he was at the apartment with appellant; Dean was at work. Appellant went into Lea's room to put her hair in ponytails. Lea was crying, and appellant spanked her. At one point, Lea was screaming, and Lester said the screams became “muffled,” like appellant had put his hand over her mouth.
Lester said he had planned to report appellant's abusive conduct, but then Lea was fatally injured. He testified Dean knew appellant was abusing Lea but did not stop appellant because she was also abused. He saw bruises on Dean and, on one occasion, he witnessed appellant drag Dean by her hair into the bedroom and beat her. Lester's girlfriend, Desha Woods, gave similar testimony, saying appellant controlled the apartment and access to Lea. She said Dean was afraid of appellant.
In his first and second issues, appellant argues the trial court abused its discretion in allowing CPS investigator Dimple Pattle to testify about statements he made to her during a jailhouse interview. Appellant argues Pattle was an agent of the police during this interview and was therefore required to record the statement and warn her in compliance with Miranda v. Arizona, 384 U.S. 436 (1966) and article 38.22 of the Texas Code of Criminal Procedure.
We review the trial court's decision to admit appellant's statements for an abuse of discretion. See Wilkerson v. State, 173 S.W.3d 521, 533 (Tex. Crim. App. 2005). Thus, in this case, we determine whether the trial court's implicit conclusion that CPS investigator Pattle was not an agent of law enforcement was within the zone of reasonable disagreement. Id. The burden was on appellant to prove facts to support a finding that Pattle was an agent of law enforcement. Id. at 529.
The procedural safeguards of Miranda and article 38.22 apply to custodial interrogation by law enforcement officers or their agents. Id. at 527. State employment alone does not make a person an agent of the state for the purpose of defining “custodial interrogation.” Id. It is law enforcement's job to ferret out crime, investigate its commission, arrest the perpetrator, and gather evidence for a possible prosecution. Id. at 528; Berry v. State, 233 S.W.3d 847, 855 (Tex. Crim. App. 2007). CPS's duty is to protect the welfare and safety of children in the community. Wilkerson, 173 S.W.3d at 528; Berry, 233 S.W.3d at 855. So, while police are collecting information for an arrest and criminal prosecution, CPS workers are investigating to find safe housing and protection. When a state-agency employee is working on a path parallel to, yet separate from, the police, Miranda warnings are not required. Wilkerson, 173 S.W.3d at 527; Berry, 233 S.W.3d at 855. But, if the once parallel paths of CPS and the police converge, and the police and the state agent are investigating a criminal offense in tandem, Miranda warnings and compliance with article 38.22 may be necessary. Wilkerson, 173 S.W.3d 529.
To determine whether the two paths have converged, courts must examine the entire record. Id. 173 S.W.3d at 530. Central to this evaluation are the actions and perceptions of the police, the CPS worker, and the defendant himself. See id. The essential inquiry is: “Was this custodial interview conducted (explicitly or implicitly) on behalf of the police for the primary purpose of gathering evidence or statements to be used in a later criminal proceeding against the interviewee?” Id., 173 S.W.3d at 531; Berry, 233 S.W.3d at 855.
Evidence presented before the jury and outside its presence showed the following. Pattle testified she was the CPS investigator assigned to this case. She investigated allegations of abuse and neglect of children and her goal was to ensure the safety of children in the home. In this case, CPS was concerned with the welfare of Lea's eighteen-month-old surviving sister, Cerenady, who was also living in the home. Although appellant was not Cerenady's biological father, he had acted as Cerenady's father since her birth.
Pattle testified she was not instructed by the police as to what to do in her investigation; rather, she followed CPS policies. Those policies were not formulated by the police or the district attorney's office and required her to interview all family members living in the home. Additionally, she said she generally interviews any other person that may have been a witness or has information about the family and the safety of the children. In this case, she interviewed Dean and appellant and also spoke to the medical staff, the medical examiner's office, Dean's sister, the maternal aunt and grandmother, and law enforcement.
With respect to her interview with appellant, Pattle said she went to the Mesquite City Jail alone on June 25, which was five days after the incident. She had spoken with Detective Brent Ehrenberger over the telephone for about thirty minutes a few days earlier, and he gave her a summary of what he believed to be the facts. She knew he had spoken with appellant, but she did not see any police documents, including appellant's statement. (Detective Ehrenberger interviewed appellant twice on the day of the incident. He attempted to talk to appellant a third time a day or two later, but appellant would not talk to him.) She said she spoke to Detective Ehrenberger because he had information and she was “trying to put the pieces together at that point.” Pattle knew appellant had been charged with capital murder, and she had also spoken with the medical people and knew what injuries Lea sustained.
Pattle said the meeting with appellant was not arranged by the police, nor did she speak to appellant at the direction of either the police or district attorney's office. She did use her CPS credentials at the jail but had to visit during regular visitation hours. She said she met with appellant in a visitor's room in which they were separated by glass. She introduced herself and explained she worked for CPS, was investigating a case involving his family, and needed information from him about Cerenady and Lea. She asked if he was willing to speak to her, and he agreed.
Pattle talked to appellant for about two hours and, for the first hour, asked a “detailed list” of questions she was required to ask regarding background information. During the interview, she learned appellant had another child who he did not see often. He also told Pattle about his relationship with Dean. She asked if there was any violence between them, and he said “just pushing, no blood, no hospitals.” As for Lea, he said she “had a lot of personalities” and “would get mad a lot.” She got louder as she got older, and he said it was “embarrassing having to hold a crying baby” when company was visiting. Pattle said appellant told her he used a “paddle” to discipline both Lea and Cerenady, although he said he really never had to hit Cerenady. Appellant said he would give Lea a “licking on her hand, but not too hard, whenever she cried.” According to Pattle, appellant said he believed it was appropriate to physically discipline a four-month-old baby.
She also asked him questions regarding the day Lea was fatally injured. Appellant said Lea awakened that afternoon and would not take her bottle, so he filled a syringe with milk and poured it down her throat. Lea threw up and started to cry loudly. She eventually stopped crying when he put her in her swing. Dean came home from work at about 7:30 p.m. Later that night, Lea threw up again. Appellant said he put her on the bathroom floor and “gently slapped her on the face” to “get her to calm down.” He was worried about the neighbors complaining about the noise. Pattle said she confronted appellant with the extent of Lea's injuries, and he told her “Alesha probably did it.” He told Pattle he did not do anything to cause Lea's injuries.
Pattle said she did not record her interview of appellant because it was against CPS policy to do so. She also said this was a civil investigation, not a criminal investigation. Pattle explained she needed to talk to appellant, in addition to all the other people she talked to, because CPS had to determine what to do with Cerenady-whether to return her to her parents at some point or what needed to be told to the court at a custody hearing. She said she needed to collect information about where the children were born, how they were raised, allergies, pediatrician's name, “just basic information.”
Pattle further testified she knew the information she obtained from appellant would be provided to the police. She acknowledged calling Detective Ehrenberger a day or two after talking to appellant, but she was not asked anything about the conversation. She also said she knew there was a “probability” she would be subpoenaed to testify, although she explained that in five years, she had been subpoenaed multiple times but had only testified one other time.
Having reviewed this evidence, we conclude the trial court did not abuse its discretion by implicitly finding Pattle was not an agent of law enforcement who was required to comply with Miranda and article 38.22. We begin by examining the record for information about the relationship between the police and Pattle. See Wilkerson, 173 S.W.3d at 530. Pattle testified the police did not arrange the meeting and were not present during the interview. She was given no special treatment from the police when she went to the jail to interview appellant. In fact, she initially went to see him during nonvisitor hours and was told she would have to return during regular visitor hours. Moreover, there is no evidence she knew appellant had refused to talk further to the police, and there is no evidence the police gave Pattle implicit or explicit instructions to get certain information, provided her with the questions to ask, or that there was any “calculated practice” between the police and Pattle likely to evoke an incriminating response from appellant during the interview. See id.
Second, we review the record concerning Pattle's actions and perceptions about the purpose of the interview. See id. Pattle's primary purpose in interviewing appellant was to obtain facts about Lea's death and to determine placement of the surviving child, Cerenady, not to gather evidence for a criminal prosecution. Interviewing appellant, who was Lea's father, was consistent with CPS policy. She explained that CPS had to determine whether Cerenady would be returned to her parents at some point or what information needed to be told to the court at a custody hearing. Additionally, she explained she needed other basic information about Cerenady. As part of her interview, she asked him about his relationship with Cerenady's mother and also asked about the events leading to Lea's death, both areas relevant to her role investigating neglect and abuse of children. Finally, although Pattle knew the information she gathered could be turned over to the police, she specifically testified she was engaged in a civil, not criminal, investigation and was not acting on behalf of the police or district attorney's office.
The last area for evaluation is evidence of appellant's perceptions of the encounter. See id. Here, appellant did not testify about those perceptions, but Pattle testified she explained to appellant who she was and why she was there. She asked appellant if he would talk to her, and he agreed. Moreover, she visited appellant during regular visitation hours in a room in which glass separated them, presumably as any other visitor would. Given the evidence, we conclude a reasonable person in appellant's position would not believe Pattle was an agent of law enforcement.
Appellant argues the “lack of purpose of the interview” supports his position that Pattle was working in tandem with Detective Ehrenberger. He asserts appellant had no other children in need of placement “making the CPS interview unnecessary” and he was not Cerenady's biological father and had no custodial rights to her. There is no evidence in the record that Pattle knew before the interview that appellant was not Cerenady's biological father, but even assuming there was, appellant acted as Cerenady's father since her birth. Certainly, appellant would have been a source of information regarding Cerenady and information regarding her doctors, allergies and other basic information. Moreover, he could provide information about Cerenady's mother, which could be relevant to the issue of future custody. Finally, Pattle learned appellant had another child. Although appellant rarely saw this child, the information is relevant in a neglect/abuse investigation and would be important in determining appellant's future relationship with the child.
Our examination of the evidence leads us to conclude that Pattle was not “in cahoots” with Detective Ehrenberger. See Wilkerson, 173 S.W.3d at 531. The interview was not conducted explicitly or implictly on behalf of the police for the primary purpose of gathering evidence against appellant for use at a later criminal trial; rather the primary purpose was to determine Cerenady's welfare. Because we conclude Pattle was not an agent of the law enforcement, the trial court did not abuse its discretion in admitting Pattle's testimony regarding appellant's statements. We overrule issues one and two.
In his third issue, appellant complains the trial court abused its discretion in admitting testimony that he physically abused Dean because it was improper extraneous offense evidence and was highly prejudicial with minimal probative value. See Tex. R. Evid. 403, 404(b).
As in the previous issue, we consider this issue under an abuse of discretion standard, keeping in mind that a trial court does not abuse its discretion in admitting evidence so long as the decision to admit evidence is within the “zone of reasonable disagreement.” See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).
Rule 404(b) prohibits the admission of extraneous offenses to prove a person's character or to show the person acted in conformity with that character. Tex. R. Evid. 404(b). Extraneous offenses may, however, be admissible if they are logically relevant to prove some other fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. This list is illustrative, not exhaustive. Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). For instance, an extraneous offense may be admissible when a defendant raises an affirmative defense or a defensive issue that negates one of the elements of the crime, or when the evidence is “same transaction contextual evidence.” Id.
For extraneous offense evidence to be admissible under both rule 404(b) and 403, the evidence must satisfy a two-prong test. Id. at 220. First, it must be relevant to a fact of consequence in the case apart from its tendency to prove conduct in conformity with character. Id. Second, the probative value of the evidence must be sufficiently strong so that it is not substantially outweighed by unfair prejudice. Id. Unfair prejudice does not arise from the mere fact that evidence injures a party's case. Unfair prejudice may result from the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007).
We begin with the relevancy prong. Appellant argues the evidence he abused Dean was offered to show he was a chronic abuser. We disagree. Extraneous offense evidence might be relevant under rule 404(b) to prove identity by rebutting a defensive theory that someone other than the defendant caused the specific injury alleged. Johnston, 145 S.W.3d. at 220. In this case, the evidence negated the defense theory outlined in its opening statements that Dean was actually the person who beat Lea and caused the fatal injury and appellant was “the one who looked after the kids.” Evidence that Dean was not violent and was actually a victim of appellant's abuse tended to rebut this defense. It explained why Dean did nothing to protect the child and provided context for the environment in which it happened. Because the evidence provided a relevant purpose apart from character conformity, it was not inadmissible as extraneous offense evidence.
Appellant argues that even if admissible, the evidence should have been excluded under rule of evidence 403. Under rule 403, we evaluate relevant evidence to determine if its probative value is substantially outweighed by the potential for unfair prejudicial effect. See Tex. R. Evid. 403. A rule 403 balancing test includes the following factors: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 & n.8 (Tex. Crim. App. 2006).
We question whether appellant has adequately briefed this issue. See Tex. R. App. P. 38.1(h). He does not identify the above factors in his brief nor does he attempt to analyze the evidence in light of the appropriate balancing test and the specific factors we consider on review. Regardless, having reviewed the evidence, we conclude the issue is without merit.
The trial court in this case could have reasonably concluded the inherent probative force of the evidence was considerable, since the ultimate issue to which the evidence was relevant was the identity of the perpetrator. Only two people witnessed what happened to Lea: appellant and Dean. Appellant's defense was that Dean was the one in the household beating Lea while he actually took care of the children. As stated above, this evidence tended to rebut that theory and explained why Dean said and did nothing to protect the child. Moreover, the trial court could have reasonably concluded that the State's need to show appellant physically abused Dean was considerable. Without the evidence, the jury only knew Dean stood silently by while appellant, on more than one occasion, beat their infant daughter. With the evidence, the crime as well as the psychological relationship of appellant and Dean was placed in context.
Contrary to appellant's assertion otherwise, the evidence did not tend to suggest a decision on an improper basis nor did it have a tendency to confuse, distract, or mislead the jury from the main issues in the case. The evidence was rather general in nature and, quite frankly, was much less vivid than the abuse and injuries suffered by Lea, whose skull was so fractured that it looked like puzzle pieces, according to one witness. Additionally, the evidence took little time to develop in comparison to the record as a whole and did not merely repeat evidence already admitted. In conclusion, we conclude the trial court did not abuse its discretion in admitting the evidence. We overrule the third issue.
We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101086F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
FRANZWA MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01086-CR
Appeal from the Criminal District Court No. 3 of Dallas County, Texas. (Tr.Ct.No. F09- 40846-JJ).
Opinion delivered by Justice Francis, Justices Bridges and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 10, 2012.
MOLLY FRANCIS
JUSTICE