Toni Tavarez v. State ( 2015 )

ACCEPTED
01-15-00268-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/5/2015 6:22:42 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00268-CR
IN THE COURT OF APPEALS FILED IN
FOR THE FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
10/5/2015 6:22:42 PM
CHRISTOPHER A. PRINE
TONI TAVAREZ Clerk
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Number 1450059
From the 177th District Court of Harris County, Texas
BRIEF FOR APPELLANT
ORAL ARGUMENT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
DAUCIE SCHINDLER
Assistant Public Defender
Harris County, Texas
TBN 24013495
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
Counsel for Appellant
1
IDENTITY OF PARTIES AND COUNSEL
Appellant Ms. Toni Tavarez
TDCJ No. 01985672
William P. HobbyUnit
742 FM 712
Marlin, Texas 76661
Defense Counsel at Trial Mr. R.P. “Skip” Cornelius
SBOT No. 04831500
2028 Buffalo Terrace
Houston, Texas 77019
Prosecutor at Trial Ms. Keri Fuller
Ms. Sunni Mitchell
Assistant District Attorneys
Harris County
1201 Franklin Street, 6th Floor
Houston, Texas 77002
Presiding Judge Honorable Ryan Patrick
177th District Court
1201 Franklin Street, 19th Floor
Houston, Texas 77002
Appellant’s Counsel Ms. Daucie Schindler
Assistant Public Defender
Harris County
1201 Franklin Street, 13th Floor
Houston, Texas 77002
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................................... 2
TABLE OF CONTENTS ................................................................................................................. 3
TABLE OF AUTHORITIES ........................................................................................................... 4
STATEMENT OF THE CASE ....................................................................................................... 5
ISSUE PRESENTED ........................................................................................................................ 5
STATEMENT OF FACTS ............................................................................................................... 6
SUMMARY OF THE ARGUMENT ............................................................................................ 17
ISSUE ONE ...................................................................................................................................... 18
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN MS.
TAVAREZ’ CONVICTION FOR THE OFFENSE OF FELONY MURDER WHERE
THE EVIDENCE FAILED TO ESTABLISH THAT SHE CAUSED THE DEATH OF
THE COMPLAINANT.
ISSUE TWO ...................................................................................................................................... 21
THE TRIAL COURT ERRED IN FAILING TO INCLUDE A GENERAL
VOLUNTARINESS INSTRUCTION IN THE JURY CHARGE AS REQUIRED BY
TEX. CODE CRIM. PROC. ART. 38.22§6.
PRAYER ............................................................................................................................................ 25
CERTIFICATE OF COMPLIANCE ........................................................................................... 26
CERTIFICATE OF SERVICE ...................................................................................................... 27
3
TABLE OF AUTHORITIES
Cases
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). ..........................................................23
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). ..............................................................19
Burks v. United States, 437 U.S. 1 (1978). .........................................................................................21
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). ...............................................................19
Contreras v. State, 312 S.W.3d 566 (Tex. Crim. App. 2010) ...........................................................18
Creager v. State, 952 S.W.2d 852 (Tex. Crim. App. 1997) ..............................................................23
Greene v. Massey, 437 U.S. 19 (1978) .................................................................................................21
Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................................... 18, 19
Jackson v. State, 652 S.W.2d 415 (Tex. Crim. App. 1983). .............................................................20
Moore v. State, No. 14-07-00366-CR, 2008 WL 4308424 (Tex. App. -Houston [14th Dist.] Aug.
28, 2008, pet. dism). ......................................................................................................................23
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005). ..................................................................24
Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008). ................................................. 22, 23
Oursbourn v. State, 288 S.W.3d 65 (Tex. App. -Houston [1st Dist.] 2009, no pet.) .....................24
Schneckloth v. Bustamonte, 412 U.S. 218 (1973). ................................................................................23
Statutes
Texas Code Crim. Proc Art. 38.22 ..................................................................................................21
Texas Penal Code §19.02 ..................................................................................................................18
Texas Penal Code §22.04 ..................................................................................................................18
4
STATEMENT OF THE CASE
Ms. Tavarez was charged by indictment with the offense of felony murder on
December 1, 2014. The State alleged three alternative manner and means in the
commission of the offense that was alleged to have occurred on June 18, 2012. (C.R.
at 9). On March 5, 2015, she entered a plea of not guilty and proceeded to trial by jury.
(4 R.R. at 8). On March 11, 2015, the jury found Ms. Tavarez guilty of felony murder
as charged. (C.R. at 329). After a hearing on punishment, the jury sentenced Ms.
Tavarez to serve fifty (50) years in the Institutional Division of the Texas Department
of Criminal Justice. (C.R. at 339). Ms. Tavarez filed timely notice of appeal. (C.R. at
343). Undersigned counsel, Daucie Schindler, of The Harris County Public Defender’s
Office was appointed to represent Ms. Tavarez on March 13, 2015. (C.R. at 345).
ISSUES PRESENTED
ISSUE ONE
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN MS.
TAVAREZ’ CONVICTION FOR THE OFFENSE OF FELONY MURDER WHERE
THE EVIDENCE FAILED TO ESTABLISH THAT SHE CAUSED THE DEATH OF
THE COMPLAINANT.
ISSUE TWO
THE TRIAL COURT ERRED IN FAILING TO INCLUDE A GENERAL
VOLUNTARINESS INSTRUCTION IN THE JURY CHARGE AS REQUIRED BY
TEX. CODE CRIM. PROC. ART. 38.22§6.
5
STATEMENT OF FACTS
Dr. Rebecca Girardet, a child abuse pediatrician and the Director of the Child
Protection Team at Children’s Memorial Hermann Hospital, was working in mid-June,
2012, when Bayshore Medical Center sent a 19 month old patient named Y.T. to
Children’s Memorial Hermann Hospital. (4 R.R. at 13-20). When she arrived, Y.T. was
unresponsive and demonstrating signs of brain death. She was completely dependent
on a respirator to stay alive. Y.T. underwent emergency surgery to relieve pressure on
her brain, but she had multiple severe skull fractures and a lot of blood within the brain
tissue so her condition did not improve and she died on June 20, 2012. (4 R.R. at 21-
26).
Dr. Girardet obtained a history from the Y.T.’s mother, the Appellant herein,
Ms. Tavarez. Ms. Tavarez indicated that Y.T. had been acting and eating normally
earlier that same day, but after returning from an errand she noticed the child was
rubbing her head and her eye. Thinking that she was tired, Ms. Tavarez rocked Y.T. to
sleep and put her down for a nap. Later, Y.T.’s older sister, A.T., told Ms. Tavaez that
Y.T. was having trouble lifting her head so Ms. Tavarez tried to revive her by putting
her in the shower. Shortly after the shower, Y.T. vomited so Ms. Tavarez placed her in
the shower a second time in order to clean her off. After the second shower they
determined Y.T. was not acting normal so they took her to the hospital at Bayshore. (4
R.R. at 27-28).
6
According to Ms. Tavarez, Y.T. had run into the corner of a door four days prior
to having been hospitalized and suffered a bruise on her right temple, but she was
unaware of any other trauma suffered by the child. However, the injuries that Y.T.
exhibited were “tremendous” and inconsistent with a normal household injury. The
injuries were consistent with the child’s head having been slammed against a blunt
object such as a table. (4 R.R. at 29-32). Dr. Girardet did not know what caused the
injuries beyond the diagnosis of trauma to the head. (4 R.R. at 34).
Detective Enrique Guzman, with the Houston Police Department, received a
call during the very early morning of June 19, 2012, to respond to a call at Children’s
Memorial Hermann Hospital. When he arrived he went to the pediatric intensive care
unit and observed an injured child later identified as Y.T. Detective Guzman
photographed the child (State’s exhibits 1 through 8) and interviewed a nurse while Ms.
Tavarez, the child’s mother, was on the phone. After the nurse explained the child’s
injuries, Detective Guzman took Ms. Tavarez to an interview room and spoke to her
for about twenty minutes. He thought that Ms. Tavarez seemed disconnected from
what was going on. Ms. Tavarez told him that she had been alone with her children at
her boyfriend’s house when Y.T. awoke from a nap all sweaty and crying. Ms. Tavarez
gave her a bath and she seemed better until about an hour later when she began crying
again. At this point her boyfriend had returned home and he suggested they take the
child to the hospital. (4 R.R. at 39-51).
7
Kimberly Deese, a registered nurse at Children’s Memorial Hermann Hospital,
was working in the pediatric intensive care unit in mid-June when Y.T. was admitted to
the hospital. Y.T. was very sick with no purposeful movements and dependent on a
respirator to breath. Ms. Deese introduced herself to Ms. Tavarez and inquired about
what had happened to the child. Ms. Tavarez indicated that Y.T. had been running
through the house a few days prior and hit her head on a door frame, but she seemed
okay after wards and continued to play. Ms. Deese did not think that hitting her head
on a doorframe seemed consistent with the injuries Y.T. had sustained. (5 R.R. at 6-
17). Ms. Deese’s notes indicated that:
Mom stated that she laid down to take a nap at approximately 5:30 mp.m. and
mom stated that her daughter came into the room and said the baby doesn’t want
to sit up. And mom said the patient had been up since 7:00 a.m. The patient ate
breakfast but had not taken a nap all throughout the day. Mom stated that the
patient looked exhausted and looked so hot, so I gave her a shower to cool her
off and redressed her.
Mom stated that she was holding her like a newborn, the patient, because she
had no strength. Mom states that the boyfriend helped me. He got there to help
me. Mom states that the boyfriend said let’s take her to the hospital. Mom states
that the patient was throwing herself back as if she was having a temper tantrum.
Mom states that the boyfriend made the patient a bottle and gave it to her and
she couldn’t suck on it but states that she could hold it.
Mom stated that last Thursday she was running with her brothers and hit the
frame of the door. Mom stated hit the door, stepped back and then ran off.
Mom states that on Saturday there was a barbecue to celebrate Father’s Day early.
Mom states the patient was fine. She was walking around okay. She was perfectly
fine until Monday when my daughter brought her to me.
8
(5 R.R. at 22-24). Ms. Tavarez seemed unemotional until about noon when she
was told by the doctors that Y.T. was declared dead at 8:27 that morning. Hearing that
her daughter had been declared dead, Ms. Tavarez threw her head and fists down on
the table and went out the door. (5 R.R. at 28). Ms. Tavarez remained at the hospital
for approximately five hours following her notification of Y.T.’s death. (5 R.R. at 33).
Maria Tavarez testified that she met Toni Tavarez in middle school. Her brother,
George, and Toni began a dating relationship and ultimately married. They have four
children together, the youngest of which was Y.T.. However, her brother returned to
Mexico when the children were very young. Maria had a birthday party for her son on
June 15, 2012, and Toni agreed to drop off her children, including Y.T., for the party.
Maria noticed that Y.T. had a bruise near her left eye, but she seemed fine otherwise
and was acting normal. (5 R.R. at 37-44). Y.T. took a nap and ate food and cake that
afternoon. Around 11:00 that night, Toni picked up her kids and Maria did not see or
hear from her or he kids again until the following Monday when Toni called to tell her
Y.T. was in the hospital. (5 R.R. at 55-58). Toni called back later to tell her Y.T. had
blood on her brain and was being transferred to Texas Children’s Hospital. Maria
agreed to watch the other three children if Toni needed her to do so. When Toni told
her that Y.T. was in a coma they both cried. Maria went to the hospital the next day
and was there with other family members when the doctors informed them that Y.T.
had died. (5 R.R. at 59-65).
9
Officer Brooke Taylor, with the Houston Police Department, was assigned to
the Child Abuse Unit on June 19, 2012, when she received a call from Child Protective
Services directing her to the pediatric ICU at Memorial Herman Hospital. After
speaking with a few administrators and social workers at the hospital she went to see
Y.T. According to Officer Taylor, Y.T. was intubated, wearing only a diaper and a
bandage wrapped around her head. Ms. Tavarez, another female family member, and
a nurse were all in the room with Y.T. at that time. Ms. Tavarez was standing at the
head of the bed while the other female was crying and speaking Spanish. Ms. Tavarez
agreed to an interview so Officer Taylor escorted her to an interview room where she
recorded Ms. Tavarez’ statement. (State’s Exhibit 15). During the interview, Officer
Taylor framed her questions in order to earn Ms. Tavarez’ trust. Officer Taylor
described Ms. Tavarez as unemotional and “matter-of-fact” in her responses to
questioning. (5 R.R. at 76-94).
Ms. Tavarez indicated that she wanted to go to her boyfriend’s house to take a
shower. Officer Taylor, wanting to get into the residence to investigate, agreed to escort
her there. Ms. Tavarez’ boyfriend, Marc Teal, met them at his residence where Ms.
Tavarez and her children had been living for the previous six months or so. Ms. Tavarez
went inside with Marc while Officer Taylor waited outside for another patrol unit to
arrive. Once the patrol officer arrived, they obtained consent and performed a video
walk through of the residence. (State’s Exhibit 18). Ms. Tavarez pointed out the door
frame where Y.T. had hit her head a few days prior. Officer Taylor obtained a statement
10
from Ms. Tavarez’ boyfriend, Mr. Teal, as well. Officer Taylor left Ms. Tavarez at Mr.
Teal’s residence. The next day, she was informed that the case had become a homicide
so she turned over the proceeds of her investigation to the homicide unit assigned to
the case. (5 R.R. at 95-105).
On June 27, 2012, the homicide officers contacted Officer Taylor and
requested her assistance with the investigation. Ms. Tavarez had volunteered to come
into the station so Officer Taylor went to assist with the interview. When she arrived
at the station, Ms. Tavarez and Mr. Teal were already there. The two were separated
and Officer Taylor watched on a monitor as other officers began to question Ms.
Tavarez. Ms. Tavarez was sobbing. At one point, Officer Taylor was asked to assist
with the interview so she entered the interrogation room and reintroduced herself to
Ms. Tavarez. Unbeknownst to Officer Taylor, the video recording system was not
operational during the first statement so she requested a second statement from Ms.
Tavarez. Ms. Tavarez agreed and gave basically the same statement a second time, but
this time with the video recording system in operation. (5 R.R. at 106-116; State’s
Exhibit 17).
Dr. Jennifer Love was working for the Harris County Institute of Forensic
Sciences when she was asked to consult in an anthropological capacity in the death of
Y.T. During the autopsy, she noticed that the skull was fractured. Some of the fractures
appeared acute and others appeared to be older. The acute fractures were seen in the
occipital area and through the base of the skull. The older fracture was of the mandible.
11
(6 R.R. at 6-12). The acute fractures were likely sustained no longer than about 48 hours
before the time of death and appeared consistent with an impact to the back of the
head. (6 R.R. at 26-27). The older fracture to the mandible was two to twelve weeks
old. (6 R.R. at 29-32).
Officer Peg Jewel, with the Homicide division of the Houston Police
Department, was involved in the investigation of the death of Y.T. Officer
Jewel reviewed the interviews conducted by Officer Taylor and she attended the
autopsy. Based on that information, Officer Jewel decided to continue the investigation
into the child’s death because the explanations given for how the injuries occurred were
inconsistent with the injuries themselves. On June 27, 2012, Officer Jewel conducted
further interviews of Ms. Tavarez and Mr. Teal. Ms. Tavarez and Mr. Teal came
voluntarily to HPD headquarters to be interviewed. Officer Jewel described Ms.
Tavarez as cooperative and friendly, but with a flat affect. (6 R.R. at 54-68).
The first statement that Ms. Tavarez gave was inadvertently unrecorded so she
voluntarily gave a second statement. The two interviews were very similar. After the
second interview, both Ms. Tavarez and Mr. Teal were allowed to leave the station. (6
R.R. at 85-89). There was no further action taken in this case until February, 2014,
when Mr. Teal came to the District Attorney’s Office with his daughter and Ms.
Tavarez’ older daughter. Separate interviews of Mr. Teal and Ms. Tavarez’ older
daughter were conducted at the District Attorney’s Office. (6 R.R. at 90-93).
12
Mr. Marc Teal testified at trial that he met Ms. Tavarez around October, 2011,
when he was working as a recruiter for a staffing company and she came in seeking
employment. About one month after they met, they began to date and about three
months later, Ms. Tavarez moved in with him. Ms. Tavarez’ four children moved in
with him as well. At that time, the children ranged in age from about thirteen (13)
months to seven (7) years of age. Y.T. was the youngest and A.T. was the oldest. Ms.
Tavarez did not work outside of the house at that time. Mr. Teal supported Ms. Tavarez
and her family by working long hours at a temporary agency as a recruiter. (7 R.R. at
5-12).
Mr. Teal was rarely alone with Ms. Tavarez’ children and he did not believe it
was his responsibility to discipline them. Although his work schedule kept him busy,
they did occasionally go out without the children. When they went out, Ms. Tavarez’
sister would baby-sit. On the Friday evening before Father’s Day, 2012, the children
went to their aunt’s house for a party. After she dropped the children off that day, Ms.
Tavarez picked him up at work. They did not pick the children up again until almost
midnight that night, but they remained nearby in anticipation of being called to get
them. While they waited to pick up the kids, they ate at Waffle House and went to Wal-
Mart. When they finally picked them up, the kids were sleepy, but they seemed
otherwise fine. (7 R.R. at 13-17).
The following day, they went to a barbecue at one of Mr. Teal’s friend’s house.
The kids played outside and they seemed happy and healthy. On Sunday, Mr. Teal
13
wanted to rest so Ms. Tavarez took the children to her parents’ house, but he stayed
home. Ms. Tavarez and her children returned home in time for dinner. The children,
including Y.T., seemed fine. Mr. Teal left for work around 4:00 in the morning the
following Monday and returned home around 2:00 in the afternoon. When he returned
home, Y.T. was taking a nap. Ms. Tavarez went to the store and he remained home
with her children. Ms. Tavarez was only gone about thirty-minutes and when she
returned home from the store, he went back to work. Mr. Teal returned home from
work around 4:30 that afternoon. When he arrived, Ms. Tavarez was asleep on the
couch in the living room and Y.T. was asleep in a bedroom. The three older children
were playing with water guns in the house. He helped them refill the water guns and
took them outside to play. (7 R.R. at 17-30).
While he was outside playing with the two boys, A.T. told him there was
something wrong with Y.T.. He rounded up the boys and walked toward the front
door. Ms. Tavarez was standing at the door holding Y.T. and patting her. Y.T. seemed
overheated and unable to fully wake from sleep. Mr. Teal suggested giving her some
Powerade, but Ms. Tavarez thought she might be having a seizure. Y.T. vomited up a
brown substance all over them. They washed her off in the shower and decided to take
her to the hospital. He and Ms. Tavarez loaded all of the children into the car and took
Y.T. to Bayshore Hospital. After Mr. Teal dropped Ms. Tavarez and Y.T. off at the
hospital and he took the other three children to their aunt’s house nearby. (7 R.R. at
30-37).
14
Mr. Teal returned to the hospital and learned a CAT scan had revealed that Y.T.
suffered a skull fracture and was going to be transferred to Children’s Memorial
Hermann Hospital by Life Flight. Mr. Teal and Ms. Tavarez drove to the hospital
together. Mr. Teal remained at the hospital until late that Monday, but he returned to
work the following Tuesday. At some point that Tuesday, he met Ms. Tavarez and
Officer Taylor at his house. After another patrol officer arrived, Officer Taylor
performed a walk-through of his house. During the walk-through, Ms. Tavarez pointed
out a door frame and indicated that Y.T. had hit her head there a few days prior.
Mr. Teal gave Officer Taylor a brief statement after the walk-through. (7 R.R. at 38-
41).
A few days later, Mr. Teal went with Officer Peg Jewel to HPD headquarters to
give another statement. At some point during his statement he became ill and had to
go the restroom where he threw-up. He left HPD headquarters about twenty minutes
later by himself because he needed some space to process what was happening. Ms.
Tavarez went to her sister’s apartment. Later that night, he went to her sister’s
apartment as well. There were several family members there. Although Ms. Tavarez
lived with her sister for a while, he continued to date her and he eventually asked her
to marry him. (7 R.R. at 42-47).
Sergeant J.C. Padilla, with the Houston Police Department, was a detective in
the homicide division in June of 2012 when he was assigned to investigate the death of
Y.T. First, he and detective Mike Miller met with Officer Taylor about the extent of
15
her investigation. Then, they interviewed Ms. Tavarez’ sister, Maria Tavarez, at her
residence. A few days later, he interviewed Ms. Tavarez at HPD headquarters. Before
he interviewed her, Officer Peg Jewel interviewed her. Sergeant Padilla did not record
his interview of Ms. Tavarez because he didn’t want to intimidate her. Ms. Tavarez was
polite and cooperative. At times, she was emotional, but he encouraged her to be
truthful. Ms. Tavarez did not admit to knowing anything that may have caused Y.T.’s
injuries. (7 R.R. at 89-108).
Dr. Sara Doyle, with the Harris County Institute of Forensic Sciences, did not
perform the autopsy on Y.T., but she reviewed her case in order to testify at trial. Based
on her review of the autopsy report, Dr. Doyle testified that Y.T. had a contusion on
the right side of her forehead and multiple bruises on the left side of her head in the
temple area and in front of her left ear. (7 R.R. at 127-137). Y.T. had three scars over
her right cheek and multiple irregular scars on the surface of her arms. She had two
scars on the front of her left leg one scar on the front of her right leg. Tissue samples
taken of the bruises indicated that they were approximately two days old. (7 R.R. at
138-146).
The internal evaluation revealed that Y.T. had multiple skull fractures. Some of
the skull fractures were acute, meaning that they had not yet begun to heal, while others
were resolving, meaning that they had begun to heal. The set of fractures to the back
of the head appeared to be resolving while the acute fracture, a basilar skull fracture,
extended forward from that same area to the middle portion of the skull. According to
16
Dr. Doyle, a fracture through the basilar skull would require a significant amount of
force. An examination of her brain revealed multiple hemorrhages to the external
surface surrounding the brain in the areas where the skull fractures were as well as
bleeding on the inside of the tissue surrounding the brain and bleeding of the brain
tissue itself. Some of the injuries were consistent with the two-day time frame and
others appeared several days older. (7 R.R. at 147-156). Dr. Doyle could not determine
how the injuries were caused, but she concluded that the injuries Y.T. suffered were
consistent with the back of her head being hit against a blunt object and that the cause
of death was blunt trauma with skull fractures and subdural hemorrhage. The manner
of death was deemed homicide. (7 R.R. at 164-168).
SUMMARY OF THE ARGUMENT
In her first issue, Ms. Tavarez argues that her conviction should be reversed
because the State’s evidence was legally insufficient to support a verdict of felony
murder. The evidence failed to establish beyond a reasonable doubt that Ms. Tavarez
committed the conduct alleged in the indictment and caused the death of the
complainant.
In her second issue, Ms. Tavarez argues that the trial court erred in denying her
requested instruction with regard to the voluntariness of her statement because jurors
could not believe beyond a reasonable doubt that the statement was voluntary after
police interrogated her for nearly ten hours. Without the statement, there was no
evidence to support a finding that Ms. Tavarez caused the death of the complainant.
17
ISSUE ONE
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN MS.
TAVAREZ’ CONVICTION FOR THE OFFENSE OF FELONY MURDER WHERE
THE EVIDENCE FAILED TO ESTABLISH THAT SHE CAUSED THE DEATH OF
THE COMPLAINANT.
Standard of Review
The Texas felony murder statute provides that a person commits the offense of
felony murder if he “commits or attempts to commit a felony, other than manslaughter,
and in the course of and in furtherance of the commission or attempt, or in immediate
flight from the commission or attempt, he commits or attempts to commit an act clearly
dangerous to human life that causes the death of an individual.” See Tex. Penal Code
§19.02(b)(3). The State must therefore prove: (1) commission or the attempt to commit
the underlying felony; (2) commission of an act clearly dangerous to human life; (3) the
death of an individual; (4) causation (the dangerous act caused the death); and (5) proof
that the commission of the dangerous act was “in the course of and in furtherance of
…or in immediate flight from” the underlying felony. Contreras v. State, 312 S.W.3d 566,
584 (Tex. Crim. App. 2010) cert. denied, 131 S. Ct. 427 (2010)..
A person commits the felony offense of injury to a child if he intentionally,
knowingly, recklessly, or with criminal negligence by act or omission causes serious
bodily injury or injury to a child. Tex. Penal Code § 22.04.
Sufficiency of the evidence is measured by the standard enunciated by the United
States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979); “whether, after viewing
18
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
In Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) overruling Clewis v. State,
922 S.W.2d 126 (Tex. Crim. App. 1996) the Texas Court of Criminal Appeals
announced that the Jackson v. Virginia legal-sufficiency standard is the only standard that
a reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove beyond a
reasonable doubt. The Court noted that it bears emphasizing that a rigorous and
proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a
standard as any factual-sufficiency standard (especially one that is “barely
distinguishable” or indistinguishable from a Jackson v. Virginia legal-sufficiency
standard).
In her concurring opinion in Brooks, Judge Cochran noted that the Jackson Court
stated the correct standard must incorporate the prosecution’s burden of proof –
beyond a reasonable doubt- in a due-process review. The Court noted that a reasonable
doubt has often been described as one based on reason which arises from the evidence
or lack thereof. A reasonable doubt might arise because the verdict is manifestly against
the great weight and preponderance of the credible evidence or because there is nothing
more than a mere scintilla of evidence to support some element of the offense. Judge
Cochran, cited Black’s Law Dictionary, which states that legal sufficiency of the
evidence is a test of adequacy, not mere quantity. Sufficient evidence is “such evidence,
19
in character, weight, or amount, as will legally justify the judicial or official action
demanded.” Judge Cochran went on to state that in criminal cases, only that evidence
which is sufficient in character, weight, and amount to justify a fact finder in concluding
that every element of the offense has been proven beyond a reasonable doubt is
adequate to support a conviction.
In the instant case, the evidence presented was insufficient to support the jury’s
necessary finding beyond a reasonable doubt that the death of Y.T was caused by Ms.
Tavarez striking her with either her hand, striking her with a blunt object, or striking
her against a blunt object. (C.R. at 9). Viewing the evidence in the light most favorable
to the verdict, the evidence is far from sufficient to support a rational finding beyond a
reasonable doubt that the death of Y.T. was caused in that manner. When the State
alleges a specific cause of death, it must prove beyond a reasonable doubt that the act
alleged did, in fact, cause the death. Jackson v. State, 652 S.W.2d 415, 419-420 (Tex.
Crim. App. 1983)(The evidence was insufficient to support the allegation that the
mother had caused the death “by striking the child on the head with her elbows”). Her,
the jury’s determination was irrational. In Jackson, the Court determined the State failed
to prove that the elbow blows confessed to by the mother caused the hemorrhage which
caused the child’s death.
Ms. Tavarez first denied that she could have hurt her child, but after nearly nine
hours of interrogation by law enforcement, she stated that she “must have done it”
because she was the “only one there.” Ms. Tavarez never mentioned Y.T. hitting her
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head on a table, but Officer Peg Jewell suggested that scenario and told Ms. Tavarez
that she must have snapped and hurt her baby. It is only then that Ms. Tavarez replied
that she “snapped and hurt [her] baby.” (State’s Exhibit 19).
After describing the various injuries on Y.T., Dr. Sara Doyle, a forensic
pathologist who reviewed the autopsy, testified that although she could not determine
how the injuries were caused, she concluded that the injuries Y.T. suffered were
consistent with the back of her head being hit against a blunt object and that the cause
of death was blunt trauma with skull fractures and subdural hemorrhage. (7 R.R. at
164-168). The observations DR. Doyle are not conclusive enough to establish beyond
a reasonable doubt that Y.T. died as a result of Ms. Tavarez banging her head against a
table as alleged. At best, any conclusion that the death was caused by Ms. Tavarez
hitting her head against a table or with her hand was speculation. Speculation does not
equate to a finding beyond a reasonable doubt and Ms. Tavarez’ conviction should be
reversed and the judgment reformed to reflect an acquittal. See Burks v. United States,
437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978).
ISSUE TWO
THE TRIAL COURT ERRED IN FAILING TO INCLUDE A GENERAL
VOLUNTARINESS INSTRUCTION IN THE JURY CHARGE AS REQUIRED BY
TEX. CODE CRIM. PROC. ART. 38.22§6.
A statement of an accused may be used in evidence against him if it
appears that the same was freely and voluntarily made without compulsion or
persuasion. Tex. Code Crim. Proc. Art. 38.21. A defendant may claim that her
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statement was not freely and voluntarily made and thus may not be considered
against her under several theories: (1) Article 38.22, §6- general voluntariness; (2)
Miranda v. Arizona as expanded in Article 38.22, §§2 and 3 (the Texas confession
statute); or (3) the Due Process Clause. It may be voluntary under one, two or
all three theories. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008).
Section 6 of Article 38.22 applies to both an accused’s custodial and non-
custodial statements. Id. at 171. Article 38.22 §6 provides that despite a finding
by the trial court that a statement is voluntary “evidence pertaining to such matter
may be submitted to the jury and it shall be instructed that unless the jury believes
beyond a reasonable doubt that the statement was voluntarily made, the jury shall
not consider such statement for any purpose nor any evidence obtained as a
result thereof.”
During the charge conference trial counsel specifically requested a general
voluntariness instruction which the trial court denied. (8 R.R. at 137-138).
Claims of involuntariness under Article 38.22 can be, but need not be, predicated
on police overreaching, and they could involve the “sweeping inquiries into the
state of mind of a criminal defendant who has confessed” found in Connelly that
are not of themselves relevant to due process claims.” Oursbourn, 259 S.W.3d at
172. While “article 38.22 is aimed at protecting suspects from police
overreaching …Section 6 of that article may also be construed as protecting
people from themselves because the focus is upon whether the defendant
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voluntarily made the statement. Period.” Id. A statement is rendered
involuntary if by the coercive conduct of law enforcement a person’s will is
overborne and her capacity for self-determination critically impaired. Schneckloth
v. Bustamonte, 412 U.S. 218, 225-26 (1973); Creager v. State, 952 S.W.2d 852, 856
(Tex. Crim. App. 1997).
Entitlement to an instruction pursuant to article 38.22 §6 “does not
require a factual dispute, and similarly, a defendant need not request the jury
instruction.” Moore v. State, No. 14-07-00366-CR, 2008 WL 4308424, 6 (Tex.
App. –Houston [14th Dist.], Aug. 28, 2008 pet. dism. as untimely filed)(mem. op.
not designated for publication). If a reasonable jury could find that the facts,
disputed or undisputed, rendered her unable to make a voluntary statement, she
is entitled to a general voluntariness instruction. Oursbourn at 176.
In this case, Ms. Tavarez raised the question of general voluntariness at the
charge conference and counsel specifically argued that the statement was the result of
prolonged questioning by police. (8 R.R. at 137-138). Because trial counsel objected
to the exclusion of a general voluntariness instruction “reversal is required if the error
is ‘calculated to injure the rights of [the] defendant,’” meaning that there must be “some
harm to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985). Under this standard, any harm, regardless of degree, is sufficient to require
reversal. Id. The actual degree of harm must be assayed in light of the entire jury charge,
the state of the evidence, including the contested issues and the weight of probative
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evidence, the argument of counsel and any other relevant information revealed by the
record of the trial as a whole. Id.
The only evidence to support the verdict is the statement of Ms. Tavarez that
was obtained after nearly ten hours of questioning by law enforcement; several hours
of which was unrecorded. There was no portion of the instruction in the charge that
could have corrected or ameliorated the lack of the general voluntariness instruction.
See Ngo v. State, 175 S.W.3d 738, 752 (Tex. Crim. App. 2005). The charge was utterly
silent on the voluntariness of Ms. Tavarez’ statement.
Had the instruction not been refused, the jury would have been authorized to
disregard Ms. Tavarez’ statement if it felt it was involuntary. Because the instruction
was absent, the jury was unaware it could find the statement to be involuntary of “of
the effect of an involuntariness finding; that is, it was unaware that it could not consider
the statement for any purpose if it found the statement to be involuntary. Oursbourn v.
State, 288 S.W.3d 65, 70 (Tex. App. –Houston [1st dist.] 2009, no pet.). If the jury had
been properly instructed and found the statement involuntary there was no evidence
whatsoever to support the conviction. Because Ms. Tavarez suffered “some harm”
from the trial court’s refusal to include the instruction, this Court should reverse for a
new trial.
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PRAYER
Ms. Tavarez asks this Court to reverse and order an acquittal as to the conviction
for felony murder. In the alternative, Ms. Tavarez asks this Court to remand the case
for a new trial.
Respectfully submitted,
Alexander Bunin
Chief Public Defender
/s/ Daucie Schindler
Daucie Schindler
State Bar No. 24013495
Public Defender’s Office
Harris County, Texas
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
Daucie.Schindler@pdo.hctx.net
Tel: 713-274-6717
Fax: 713-368-9278
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CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 6,165 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 13 point font in footnotes produced by Microsoft
Word Software.
3. Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),
may result in the Court's striking this brief and imposing sanctions against the person
who signed it.
/s/ Daucie Schindler
DAUCIE SCHINDLER
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CERTIFICATE OF SERVICE
I certify that on the 5th day of October, 2015, a copy of the foregoing
instrument has been electronically served upon the Appellate Division of the Harris
County District Attorney’s Office.
/s/ Daucie Schindler
DAUCIE SCHINDLER
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