Odel Rodrick Allen v. State ( 2015 )

ACCEPTED
14-14-00708-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/11/2015 2:25:37 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-00708-CR
In the
Court of Appeals
For the FILED IN
14th COURT OF APPEALS
Fourteenth District of Texas HOUSTON, TEXAS
At Houston 5/11/2015 2:25:37 PM
 CHRISTOPHER A. PRINE
Clerk
No. 1324945
In the 351st District Court
Of Harris County, Texas

ODELL RODRICK ALLEN
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
KATIE DAVIS
Assistant District Attorney
Harris County, Texas
State Bar Number: 24070242
JOSEPH ALLARD
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, TX 77002
Telephone: (713) 755-5826
Fax Number: (713) 755-5809
Counsel for Appellee
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral
argument is requested by the appellant.
IDENTIFICATION OF THE PARTIES
Devon AndersonDistrict Attorney of Harris County
Katie DavisAssistant District Attorney on appeal
Joseph Allard  Assistant District Attorney at trial
Appellant or Criminal Defendant:
Odell Rodrick Allen
Counsel for Appellant:
Joan Nwuli—Counsel at trial and on appeal
Trial Judge:
Honorable Mark EllisPresiding Judge for the 351st D.C.
i
TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ........................................................................ 4
REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................ 5
I. Standard of Review and Applicable Law .......................................................7
II. The appellant failed to show that law enforcement made a promise which
induced him to give a false confession. ...........................................................9
REPLY TO APPELLANT’S SECOND POINT OF ERROR ................................. 15
I. Standard of Review .......................................................................................15
II. The trial court did not abuse its discretion in adjudicating the appellant
because the evidence showed that the appellant violated at least one term of
his community supervision. ...........................................................................16
REPLY TO APPELLANT’S THIRD POINT OF ERROR .................................... 21
CONCLUSION ........................................................................................................ 22
CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 23
ii
INDEX OF AUTHORITIES
CASES
Akbar v. State,
190 S.W.3d 119 (Tex. App.—
Houston [1st Dist.] 2005, no pet.) ........................................................................16
Alford v. State,
358 S.W.3d 647 (Tex. Crim. App. 2012),
cert. denied, 133 S. Ct. 122 (2012) ....................................................................7, 8
Apolinar v. State,
155 S.W.3d 184 (Tex. Crim. App. 2005) ...............................................................7
Bearnth v. State,
361 S.W.3d 135 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) ....................................................................18
Bram v. United States,
158 U.S. 532 (1897) ...............................................................................................9
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) .............................................................21
Cardona v. State,
665 S.W.2d 492 (Tex. Crim. App. 1984) ................................................ 15, 16, 22
Chambers v. State,
866 S.W.2d 9 (Tex. Crim. App. 1993) .......................................................... 11, 13
Coleman v. State,
440 S.W.3d 218 (Tex. App.—
Houston [14th Dist.] 2013, no pet.)..................................................................9, 14
Creager v. State,
952 S.W.2d 852 (Tex. Crim. App. 1997) .............................................................12
Drake v. State,
123 S.W.3d 596 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) ..................................................................11
Espinosa v. State,
899 S.W.2d 359 (Tex. App.—
Houston [14th Dist.] 1995, pet. ref’d) ..................................................................10
iii
Garcia v. State,
16 S.W.3d 401 (Tex. App.—
El Paso 2000, pet. ref’d) .......................................................................................18
Garrett v. State,
619 S.W.2d 172 (Tex. Crim. App. 1981) .............................................................20
Guardiola v. State,
20 S.W.3d 216 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d) ....................................................................9
Guzman v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) .................................................................7
Hacker v. State,
389 S.W.3d 860 (Tex. Crim. App. 2013) .............................................................16
Hernandez v. State,
421 S.W.3d 712 (Tex. App.—
Amarillo 2014, pet. ref’d) ....................................................................................13
Herrera v. State,
194 S.W.3d 656 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d) ..............................................................8, 11
Hill v. State,
902 S.W.2d 57 (Tex. App.—
Houston [1st Dist.] 1995, writ ref’d) ....................................................................11
Hollins v. State,
No. 01-13-00129-CR, 2014 WL 768327 (Tex. App.—
Houston [1st Dist.] Feb. 25, 2014 pet. ref’d) .......................................................12
Johnson v. State,
68 S.W.3d 644 (Tex. Crim. App. 2002) ...............................................................10
Johnson v. State,
698 S.W.2d 154 (Tex. Crim. App. 1985) .............................................................13
Johnson v. State,
943 S.W.2d 83 (Tex. App.—
Houston [1st Dist.] 1997, no pet.) ........................................................................21
Kane v. State,
173 S.W.3d 589 (Tex. App.—
Fort Worth 2005, no pet.) .....................................................................................14
iv
Kizee v. State,
01-14-00190-CR, 2015 WL 1061136 (Tex. App.—
Houston [1st Dist.] Mar. 10, 2015, no. pet. h.) ....................................................21
Lynumm v. Illinois,
372 U.S. 528 (1963) ...............................................................................................8
Martinez v. State,
127 S.W.3d 792 (Tex. Crim. App. 2004) ...............................................................9
Mason v. State,
116 S.W.3d 248 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) ......................................................... 8, 9, 12
Mayfield v. State,
821 S.W.2d 357 (Tex. App.—
Houston [14th Dist.] 1991, no pet.)......................................................................14
Miller v. Fenton,
796 F.2d 598 (3d Cir. 1986) .............................................................................8, 12
Muniz v. State,
851 S.W.2d 238 (Tex. Crim. App. 1993) .............................................................10
Ramirez v. State,
76 S.W.3d 121 (Tex. App.—
Houston [14th Dist.] 2002, pet. ref’d) ..................................................................10
Reyes v. State,
01-09-01043-CR, 2011 WL 286131 (Tex. App.—
Houston [1st Dist.] Jan. 27, 2011, no pet.)...........................................................22
Rickels v. State,
202 S.W.3d 759 (Tex. Crim. App. 2006) ...................................................... 15, 16
Sanchez v. State,
603 S.W.2d 869 (Tex. Crim. App. 1980) .............................................................16
Shah v. State,
403 S.W.3d 29 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d) ....................................................................20
Shepherd v. State,
273 S.W.3d 681 (Tex. Crim. App. 2008) ...............................................................7
Smith v. State,
790 S.W.2d 366 (Tex. App.—
Houston [1st Dist.] 1990, writ ref’d) ....................................................................16
v
State v. Duran,
396 S.W.3d 563 (Tex. Crim. App. 2013) ...............................................................8
State v. Melcher,
153 S.W.3d 435 (Tex. Crim. App. 2005) ...............................................................7
State v. Ross,
32 S.W.3d 853 (Tex. Crim. App. 1997) .................................................................7
State v. Saenz,
411 S.W.3d 488 (Tex. Crim. App. 2013) ...............................................................7
United States v. Fraction,
795 F.2d 12 (3rd Cir.1986)...................................................................................10
Valtierra v. State,
310 S.W.3d 442 (Tex. Crim. App. 2010) ...............................................................7
Will. v. State,
294 S.W.3d 674 (Tex. App.—
Houston [1st Dist.] 2009, pet. ref’d) ....................................................................19
STATUTES
TEX. PENAL CODE § 22.04(a) (West supp. 2014).....................................................16
TEX. CODE CRIM. PROC. ANN.
art. 38.21 (West 2005) ............................................................................................8
TEX. CODE CRIM. PROC ANN.
art. 57.01 (4) (West 2010) ......................................................................................2
TEX. CODE CRIM. PROC. ANN.
art. 57.02(h) (West supp. 2014) .............................................................................2
TEX. CODE CRIM. PROC. ANN.
art. 57.03(d) (West 2010) .......................................................................................2
RULES
TEX. R. APP. P. 39....................................................................................................... i
TEX. R. APP. P. 44.2(a) .............................................................................................14
vi
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State charged the appellant with possession of a controlled substance
with intent to deliver, committed on October 26, 2011, during which he used or
exhibited a deadly weapon (CR – 6, 10). He pled guilty to the charge in exchange
for six years of deferred adjudication, and the trial court followed that plea
agreement on July 19, 2012 (CR – 19-32). The State filed a motion to adjudicate
on September 16, 2013 (CR – 34-35). The trial court found the appellant guilty,
found the deadly weapon paragraph true, and sentenced him to thirty years
confinement in the Texas Department of Criminal Justice, Correctional Institutions
Division (CR – 95-96; 3 RR 12). The appellant filed timely notice of appeal and
the trial court certified that he had the right to appeal (CR—101-2; CR Supp.—4).
STATEMENT OF FACTS
The appellant received deferred adjudication for possession of a controlled
substance, with intent to deliver, on July 19, 2013 (CR – 19-20; 2 RR 51-2). See
(St. Exs. #1-2). One of the terms of his community supervision was he commit no
further violations against the laws of Texas (CR – 21). And he was aware of that
condition (CR – 23). The appellant understood the terms of his probation by
agreeing to abide by them with the understanding that if he did not, his community
supervision could be revoked (CR – 19-23). The appellant did not present any
evidence that he misunderstood the terms of his probation, nor did he claim the
terms had changed.
After the appellant had been placed on deferred adjudication, he started a
romantic relationship with Joneisha Bobb (2 RR 103). In June 2013, Joneisha and
her children, Jane1 and Joseph, moved in with the appellant (2 RR 103). Bobb
would leave 20-month-old Jane in the care of La Quinta Shelton and Alean Joseph
most of the time, but on occasions the appellant would watch her kids (2 RR 93).
See (Def. Exs. #1-3).
On August 2, 2013, the appellant watched Jane while Bobb was at work (2
RR 96). When she returned from work, Bobb noticed that Jane’s stomach started
swelling (2 RR 95). And the following day Jane was whiney and could not sleep
on her stomach (2 RR 94-5). The appellant told Bobb that Jane had fallen down the
stairs chasing her brother and hurt her knee (2 RR 96-7). Bobb took Jane to the
doctor on August 3 because she was not eating, had used the restroom only one
1
A person “who has access to or obtains the name, address, telephone number, or other
identifying information of a victim younger than 17 years of age may not release or disclose the
identifying information to any person who is not assisting in the investigation, prosecution, or
defense of the case.” TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (West supp. 2014). The term
“victim” means a person who was the subject of: “(A) an offense the commission of which leads
to a reportable conviction or adjudication under Chapter 62; or (B) an offense that is part of the
same criminal episode, as defined by Section 3.01, Penal Code, as an offense described by
Paragraph (A).” TEX. CODE CRIM. PROC. ANN. art. 57.01 (4) (West 2010). The release or
disclosure of such information to any person is a class C misdemeanor. TEX. CODE CRIM. PROC.
ANN. art. 57.03(d) (West 2010). Therefore, the pseudonym “Jane” will be used for the victim in
this case.
2
time, and started vomiting (2 RR 95). The doctor checked Jane’s knee and
prescribed her some antibiotics (2 RR 96).
The following day, Bobb took Jane to stay with Shelton (2 RR 81-2, 89, 97).
Jane stayed with Shelton for about a week (2 RR 98). During that time, Shelton
noticed that Jane was clingy to her, very quiet and would barely eat anything (2 RR
82). Bobb picked Jane up on August 9, and she noticed that though she was still ill,
Jane appeared better (2 RR 98). When Bobb left Jane with the appellant again on
August 10 and 11, her condition got worse (2 RR 99-100). Bobb stayed home with
Jane on August 12 and noticed that she could not sleep, was in pain, and her
stomach was swollen (2 RR 99-100). Finally, on August 13, Jane’s condition
worsened, and the doctor told her to go to the hospital (2 RR 101).
At the hospital, doctors discovered that Jane had lacerations on her pancreas
and spleen, nine fractured ribs, and a cracked breastbone (2 RR 56-63, 101). On
August 14, Dr. Rebecca Giradet, the medical director of the division of child
protection pediatrics at the University of Texas Medical School, examined Jane (2
RR 52). Giradet reviewed Jane’s radiographic images, medical records, as well as,
spoke to the social worker and her mother (2 RR 55). Giradet found that Jane’s
injuries were life-threatening (3 RR 56). She also discovered that a cyst had
developed on Jane’s pancreas laceration (2 RR 55).
3
Giradet believed based on her training and experience that these injuries
were caused by abuse from an adult (2 RR 57-63, 77). Based on the number of
injuries and the different levels of healing, Giradet determined that Jane had
suffered two to three severe episodes of trauma (2 RR 63). She determined that the
rib fractures were about three weeks old, but the other injuries were more recent (2
RR 58-63). Based on the cyst and symptoms Bobb described, Giradet believed that
the pancreas and spleen injuries occurred around August 2 (2 RR 57).
Patrick Robinson with the Houston Police Department (HPD) interviewed
the appellant regarding his role in causing Jane’s injuries (2 RR 9-10). Although he
did not admit to causing her injuries, the appellant stated that one time he did
throw Jane from the bed to her brother who was on the floor. See (St. Ex. #3). The
appellant was charged with causing serious bodily injury to a child committed on
August 2, 2013 (CR – 34).
SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion in admitting the appellant’s
statement because the officer’s predictions or opinions that an explanation would
help the appellant in the future did not render the statement involuntary.
The trial court did not abuse its discretion in revoking the appellant’s
community supervision because while under supervision the appellant committed
4
serious bodily injury to a child under the age of fifteen. Therefore, his conviction
and sentence should be affirmed.
REPLY TO APPELLANT’S FIRST POINT OF ERROR
In the appellant’s first point of error, he argues that the trial court erred in
denying his motion to suppress his statement. (App’nt Brf. 4-26). The appellant
filed a motion to suppress his statements to law enforcement because they were not
voluntarily given (CR – 53-6, 75-94). The trial court heard the appellant’s motion
to suppress in a hearing prior to the motion to adjudicate (2 RR 4-5).
In the hearing, Robinson testified that he conducted an interview and
administered a polygraph exam to the appellant on August 26, 2014 (2 RR 9). He
testified that the appellant was provided his statutory warnings; he was advised of
his right to have an attorney, advised that he could have an attorney provided to
him, advised that he had the right to remain silent, and advised that anything he
said could be used against him (2 RR 12-13). See (St. Ex. #3). The appellant
indicated that he understood these rights and waived them (2 RR 12-13). The
appellant agreed to speak with Robinson (2 RR 12-14).
Robinson testified that he neither threatened nor promised the appellant
anything in exchange for his statement during the interview (2 RR 14). Robinson
stated that the door was unlocked; he was not armed, and there was no armed
officer outside of the room (2 RR 12-14). He stated that he offered the appellant
5
something to eat and drink, and he did not deprive the appellant of the opportunity
to use the restroom (2 RR 14-16). He indicated that although the appellant was
calm during the interview, he appeared to have something on his mind and
appeared relieved after he provided his statement (2 RR 15-17). Robinson
explained that he attempted to build rapport with the appellant to make the
conversation more comfortable by explaining that he thought the appellant was a
good guy (2 RR 15-16).
The appellant testified at the hearing that he provided the officer an
explanation to not go to jail (2 RR 40-42). The appellant stated that Robinson
promised him that he could leave if he gave an explanation for Jane’s injuries (2
RR 42). He testified that Robinson threatened him with not being able to see his
children anymore unless he provided him an explanation (2 RR 42). The appellant
explained that after Robinson’s example of a different defendant accidentally
hurting his girlfriend’s child, the appellant felt that he had no choice but to tell
Robinson a similar story (2 RR 42-3). The appellant stated he was tired during the
interview (2 RR 44). Although the appellant stated that he felt he had no alternative
except to tell the officer a story that was not true, he testified that prior to the
interview he was provided his rights and that he understood them (2 RR 44-6). The
trial court denied the appellant’s motion to suppress (2 RR 47).
6
I. Standard of Review and Applicable Law
A challenge of a trial court’s denial of a motion to suppress evidence on
appeal will be evaluated for abuse of discretion. Shepherd v. State, 273 S.W.3d
681, 684 (Tex. Crim. App. 2008); Apolinar v. State, 155 S.W.3d 184, 186 (Tex.
Crim. App. 2005). An abuse of discretion occurs when the trial court acts
arbitrarily or unreasonably without reference to any guiding principles. State v.
Melcher, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A reviewing court views
the evidence in the light most favorable to the trial court’s ruling. Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court is the sole fact-
finder and judge of the witnesses’ credibility and the weight to be assigned to their
testimony. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 1997); Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
A reviewing court gives almost total deference to a trial court’s findings of
historical facts as well as mixed question of law and fact if the question turns on
the credibility and demeanor of the witnesses. Alford v. State, 358 S.W.3d 647, 653
(Tex. Crim. App. 2012), cert. denied, 133 S. Ct. 122 (2012); State v. Saenz, 411
S.W.3d 488, 494 (Tex. Crim. App. 2013); see also Guzman, 955 S.W.2d at 89.
(finding a trial court’s custody determination is reviewed using a bifurcated
standard of review). But when there is a recorded statement with an uncontroverted
version of events, credibility and demeanor are not necessary to the resolution, and
7
the court applies a de novo standard of review. Alford, 385 S.W.3d at 653; see also
Herrera v. State, 194 S.W.3d 656, 658 (Tex. App.—Houston [14th Dist.] 2006,
pet. ref’d) (finding when the court had a videotape of the confession and an
uncontroverted version of events, it should review the trial court’s ruling on an
application of law to facts de novo); State v. Duran, 396 S.W.3d 563, 570–71 (Tex.
Crim. App. 2013) (noting a videotape can present indisputable evidence that is
reviewed de novo).
A defendant’s statement may be used as evidence against him if it appears
that it was freely and voluntarily made without compulsion or persuasion. TEX.
CODE CRIM. PROC. ANN. art. 38.21 (West 2005). Psychological tactics are allowed
during interrogations. Mason v. State, 116 S.W.3d 248, 260 (Tex. App.—Houston
[14th Dist.] 2003, pet. ref’d) (citing Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.
1986)). An officer “may play on a suspect’s sympathies or explain that honesty
might be the best policy for a criminal who hopes for leniency.” Id. It is only when
these ploys are so manipulative or coercive that they deprive the suspect of his
ability to make an unconstrained, autonomous decision, and not merely because
they caused the confession. Id.
A statement is involuntary if the record reflects that the statement was
induced by a promise of a benefit. Mason, 116 S.W.3d at 257-60 (citing Lynumm v.
Illinois, 372 U.S. 528, 534 (1963) and Bram v. United States, 158 U.S. 532, 542
8
(1897)). A promise renders a confession involuntary under Article 38.21 when it is
“positive, made or sanctioned by someone in authority, and of such an influential
nature that it would cause a defendant to speak untruthfully.” Coleman v. State,
440 S.W.3d 218, 224 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing
Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004)). A reviewing
court looks to the totality of circumstances and determines whether the defendant’s
will was “overborne” by police coercion. Mason, 116 S.W.3d at 257 (citing
Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d)).
II. The appellant failed to show that law enforcement made a
promise which induced him to give a false confession.
The appellant argues that his statements were not voluntarily given because
the police made false promises of leniency and threats of consequences he would
face without an explanation. (App’nt Brf. 25). Specifically, the appellant points to
several of Robinson’s statements in his “post-test” interview: that he would talk to
the investigators about how the appellant is a good person, that he would not be
able to help him once he leaves, and that it could be harder for him without an
explanation for Jane’s injuries. (App’nt Brf. 22-23). But Robinson informing the
appellant that it would be better if he provided an explanation was merely his
opinion or prediction about a future event, and not a promise to perform an action
within his control. See (St. Ex. #3); Mason, 116 S.W.3d at 260-61 (noting that a
9
promise is an offer to perform or withhold some future action within the control of
the promisor) (citing United States v. Fraction, 795 F.2d 12, 15 (3rd Cir.1986)).
This Court has consistently held that opinions or predictions about what may
happen if the suspect does or does not cooperate do not render confessions
involuntary. See id. (holding that an officer’s statements that the situation would
“go better” for appellant by giving a confession was a prediction about a future
event did not amount to a promise); Espinosa v. State, 899 S.W.2d 359, 362–63
(Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (finding the officer’s
statements, “Go ahead and tell us what happened. Everything will be better for
you. You will get less time” did not render the defendant’s statement involuntary);
Ramirez v. State, 76 S.W.3d 121, 126 (Tex. App.—Houston [14th Dist.] 2002, pet.
ref’d) (holding that an officer’s statement that “typically juries and the court
system sometimes favor people [who] tell the truth” was simply a statement of
opinion and not a promise to perform); see also Muniz v. State, 851 S.W.2d 238,
254 (Tex. Crim. App. 1993) (holding that an officer’s statement that leniency was
sometimes shown when a defendant confessed was a statement of fact and failed to
rise to the level of a promise).
Additionally, general promises of leniency and general offers to help do not
render a confession involuntary. See Johnson v. State, 68 S.W.3d 644, 654 (Tex.
Crim. App. 2002) (providing that an officer’s representation that the appellant’s
10
cooperation would be conveyed to the trial court was not a promise inducing a
confession); Herrera, 194 S.W.3d at 660 (holding that the statement, “We can talk
to the D.A., get you an offer, if you can help us,” was not specific enough to
influence appellant to speak untruthfully); Drake v. State, 123 S.W.3d 596, 603
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding that an officer’s
general, non-specific statement that an appellant “could help herself did not render
appellant’s statement involuntary”).
The appellant points to no other evidence to show a causal connection
between Robinson’s expectation and the appellant’s decision to confess. See Hill v.
State, 902 S.W.2d 57, 59 (Tex. App.—Houston [1st Dist.] 1995, writ ref’d) (noting
that a positive promise need not be unequivocal, but it must “carry the suggestion
of a quid pro quo.”); Chambers v. State, 866 S.W.2d 9, 20–21 (Tex. Crim. App.
1993) (characterizing a positive promise as one that denotes an “if-then
relationship” that induces the appellant to confess by implicitly or explicitly
suggesting a “deal, bargain, agreement, exchange, or contingency.”). Therefore,
the appellant failed to demonstrate that his will was “overborne” by the comments
from Robinson.
Moreover, there is no evidence that Robinson had the apparent authority to
make an offer. In fact, he told the appellant that he could not make him any
promises and that he could not help him once he left the room. See (St. Ex. #3);
11
Hollins v. State, No. 01-13-00129-CR, 2014 WL 768327, at *7 (Tex. App.—
Houston [1st Dist.] Feb. 25, 2014, pet. ref’d) (mem. op., not designated for
publication) (holding that the appellant could not have been induced to give a false
confession based on alleged promises of a bond or leniency from the interviewing
officer because the officer repeatedly informed the appellant that he did not have
the authority to make any deals).
The appellant appears to argue that Robinson’s example of an analogous
accidental injury to a child coerced him into providing his statement. (App’nt Brf.
23-25). But, as stated previously, psychological tactics are allowed during
interrogations. Mason, 116 S.W.3d at 260. Robinson’s tactic of playing on the
appellant’s sympathies by letting him know that he was not a bad person and that
it could have been an accident was not improper questioning (2 RR 28). See Miller,
796 F.2d at 605; see also Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App.
1997) (“Trickery or deception does not make a statement involuntary unless the
method was calculated to produce an untruthful confession or was offensive to due
process.”). There is no evidence that Robinson’s alternative scenarios of what may
have occurred caused him to make a statement, overcoming his free will. See (St.
Ex. #3). Furthermore, the appellant’s statement, that he intentionally threw a 20-
month-old child from the bed to the floor, was not equivalent to Robinson’s
12
example of “accidental” injury caused by playing football wrapped in comforters.
See (St. Ex. #3).
Although the appellant does not contend that the physical circumstances of
the interrogation were unduly coercive, he appears to complain that the fact that he
was tired caused him to make a false statement. (App’nt Brf. 26). But the lack of
sleep alone will not render a confession involuntary. Chambers, 866 S.W.2d at 20
(quoting Johnson v. State, 698 S.W.2d 154, 159 (Tex. Crim. App. 1985)). Looking
at the totality of the interview, the appellant still had the ability to make a free and
rational choice of whether to answer or remain silent. The appellant was read and
understood his rights, he did not have any medical conditions, he slept six to seven
hours the night before the interview, and was not intoxicated (2 RR 12-16). See (St.
Ex. #3 at 6:49). The appellant was not under arrest and was free to leave after the
interview. See (St. Ex. #3).
State’s Exhibit 3 shows that Robinson attempted to facilitate communication
by being friendly and supportive throughout the entire interview. See (St. Ex. #3).
His post-test statements were not threats to punish him for a failure to cooperate;
rather they were accurate representations of his situation. See Hernandez v. State,
421 S.W.3d 712, 721 (Tex. App.—Amarillo 2014, pet. ref’d) (holding that an
officer’s statement emphasizing to Hernandez that she faced separation from her
children “were not threats of governmental action to punish a failure to cooperate
13
but were accurate representations of her predicament.”). Therefore, the appellant
failed to show that his statement was involuntary.
Finally, a reviewing court defers to a trial court’s determination of
credibility. Although the appellant testified to the contrary, Robinson testified that
he did not threaten or promise the appellant anything in exchange for his statement
(2 RR 15). The trial court implicitly chose to believe Robinson’s testimony over
the appellant’s, and this Court should defer to that finding (2 RR 47). See Coleman,
440 S.W.3d at 224 (deferring to the trial court’s determination of credibility and
demeanor and concluding that the trial court did not abuse its discretion by finding
the appellant’s statement voluntary when there was no evidence to support the
appellant’s allegation of a promise). Thus, the trial court did not err in admitting
the appellant’s statement.
Even if the appellant’s statement were involuntary, the appellant was not
harmed by its admission. See TEX. R. APP. P. 44.2(a); Kane v. State, 173 S.W.3d
589, 595 (Tex. App.—Fort Worth 2005, no pet.) (applying the standard for
constitutional error in admitting involuntary statement); see also Mayfield v. State,
821 S.W.2d 357, 358 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (“Reversal
of a judgment for failure to conduct a voluntariness hearing is not constitutionally
required.”). First, the appellant’s explanation does not match all of Jane’s injuries.
Giradet testified that Jane suffered two to three episodes of severe trauma
14
including blunt force trauma, like direct punches or kicks to her breastbone and
abdomen, and compression force to her ribs (2 RR 61-4). Giradet explained that
the injuries were not caused by a minor fall or play (2 RR 63-4). Second, the State
did not rely on the statement or mention the statement in closing argument (2 RR
171-72). Finally, there appears to be some confusion on whether the trial court
even considered the statement in adjudicating the appellant. See (App’nt Brf. 6).2
Therefore, the appellant’s first point of error should be overruled.
REPLY TO APPELLANT’S SECOND POINT OF ERROR
In the appellant’s second point of error, he argues that the evidence
presented in his case was legally insufficient to show that he violated the terms of
his deferred adjudication. (App’nt Brf. 26-50). This argument lacks merit because
there was evidence showing the appellant violated his community supervision.
I. Standard of Review
A trial court’s decision to revoke community supervision is reviewed under
an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.
App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.
1984)). To revoke community supervision, the State must prove by a
preponderance of the evidence that the appellant violated any one condition of
2
After finding it true that the appellant violated a condition of his deferred adjudication, the trial
court stated that it in no way took into account the answers the appellant provided during the
polygraph or the results (2 RR 173).
15
community supervision. Cardona, 665 S.W.2d at 493; Hacker v. State, 389 S.W.3d
860, 865 (Tex. Crim. App. 2013); Smith v. State, 790 S.W.2d 366, 367 (Tex.
App.—Houston [1st Dist.] 1990, writ ref’d). When several violations are found by
the trial court, a reviewing court will affirm an order revoking community
supervision if the State proved any one violation by a preponderance of the
evidence. Sanchez v. State, 603 S.W.2d 869, 870-71 (Tex. Crim. App. 1980);
Akbar v. State, 190 S.W.3d 119, 122-23 (Tex. App.—Houston [1st Dist.] 2005, no
pet.). As long as this burden is met, the trial court will not abuse its discretion in
revoking supervision. Rickels, 202 S.W.3d at 763-64. The trial court is the sole
judge of the credibility of the witnesses and the weight to be given to their
testimony. Cardona, 665 S.W.2d at 493; Hacker, 389 S.W.3d at 865. Thus, the
evidence is reviewed in the light most favorable to the trial court’s ruling. Id.
II. The trial court did not abuse its discretion in adjudicating the
appellant because the evidence showed that the appellant violated
at least one term of his community supervision.
In the present case, the trial court adjudicated the appellant because he
committed the offense of injury to a child (CR – 34; 2 RR 172-3). To establish that
the appellant committed a new offense, the State had to prove by a preponderance
of the evidence that the appellant intentionally or knowingly caused serious bodily
injury to Jane, a child younger than fifteen years of age (CR – 34). See TEX. PENAL
CODE § 22.04(a) (West supp. 2014). The State alleged six alternative manner and
16
means of committing this injury3 (CR – 34). Based on the evidence presented, the
trial court found that the appellant caused serious bodily injury to Jane by causing
her to strike a blunt object (CR – 34; 2 RR 172-3).
The evidence supported this conclusion. Giradet testified that Jane suffered
two to three severe episodes of trauma, including blunt force, that caused a life-
threatening laceration to her pancreas, laceration to her spleen, and fractures to her
ribs and breastbone4 (2 RR 61, 65, 103). She concluded based on the combination
of these injuries that Jane was abused by a person with adult strength and
coordination (2 RR 66, 75). Giradet provided a timeline for the injuries that
matched dates when Jane was alone in the appellant’s care according to Bobb’s
testimony (2 RR 56-7, 61, 96-106). See (Def. Exs. #1-3). Therefore, the trial court
did not abuse its discretion in adjudicating the appellant.
The appellant does not dispute that Jane suffered serious bodily injury (2 RR
66). (App’nt Brf. 44). Rather, he complains that the evidence was insufficient to
establish that he caused that injury. (App’nt Brf. 44, 46). But evidence that the
3
The alternative manner and means were: (1) by striking Jane with his hands; (2) by squeezing
Jane with his hands; (3) by throwing Jane to the floor; (4) by shaking Jane with his hands; (5) by
striking Jane with a blunt object; and (6) by causing Jane to strike a blunt object (CR – 34).
4
Although the appellant does not complain that the evidence was sufficient to prove Jane
suffered serious bodily injury, Giradet’s testimony that these injuries were life-threatening and
that she could have died without medical treatment supports the trial court’s finding (2 RR 56-
61). See TEX. PENAL CODE § 1.07(46) (West supp. 2014) (defining serious bodily injury to mean
bodily injury that creates a substantial risk of death, serious permanent disfigurement, or
protracted loss or impairment of bodily function).
17
appellant had sole access to Jane at the time she sustained the injuries was
sufficient to support the trial court’s finding. Bearnth v. State, 361 S.W.3d 135,
140 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). “Texas case law is replete
with holdings that when an adult defendant has had sole access to a child at the
time its injuries are sustained, the evidence is sufficient to support a conviction for
injury to a child.” Id. (quoting Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El
Paso 2000, pet. ref’d)).
In the present case, the State’s showed that the appellant had sole access to
Jane on the dates her stomach was swollen, and the dates matched the timeline of
when Jane’s injuries likely occurred. Giradet testified that the injuries to Jane’s
pancreas and spleen5 would have occurred around August 2 or 3 (2 RR 57).
Giradet explained that the cyst on Jane’s pancreas laceration would have taken at
least a week to form, which corresponded with when the symptoms of her
abdominal trauma began (2 RR 57). Bobb testified that she noticed Jane’s stomach
was swollen on August 2, and that the following day she began vomiting. (2 RR
94-6). See (Def. Ex. #3). Bobb testified that Jane stayed with the appellant on
August 2 (2 RR 94-6). She stated that the appellant told her that Jane fell down the
stairs and injured her knee that day (2 RR 96-7). Bobb testified that she took Jane
to the doctor, but he only provided antibiotics and looked at Jane’s knee (2 RR 96).
5
Although Giradet testified that it was hard to date the spleen injury, it was her opinion that it
occurred at the same time as the pancreas injury (2 RR 61).
18
Shelton testified that she watched Jane for a week after that August 3
doctor’s appointment (2 RR 81). Although Jane barely ate anything at the
beginning of the week, Shelton stated that Jane appeared to be getting better by the
end of the week (2 RR 81-3). Bobb also stated that Jane appeared better after
staying with Shelton for the week, but that Jane’s stomach began swelling again on
August 10 and 11 after she had stayed with the appellant (2 RR 98-9). On August
13, Bobb took Jane to the hospital because she would not eat, her stomach hurt,
and she had not had a wet diaper (2 RR 100-101). Giradet explained that Jane’s
stomach swelling going up and down could have been caused by her injury being
“re-aggravated.” (2 RR 76). Therefore, the evidence was sufficient to establish by a
preponderance of the evidence that the appellant caused serious bodily injury to
Jane. See Williams v. State, 294 S.W.3d 674, 683 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d) (holding evidence was sufficient in injury to child case when
medical examiner testified that child’s injuries could not have occurred as
defendant described and were sustained by violent physical abuse at time when
defendant was alone with child).
Additionally, the State showed that the age of Jane’s nine rib fractures
coincided with another time Jane stayed with the appellant. Bobb testified that Jane
stayed with the appellant three weeks prior on July 24, coinciding with Giradet’s
determination of when the rib fractures occurred (2 RR 61, 103). See (Def. Ex. #2).
19
Moreover, the appellant admitted in his statement that he intentionally threw Jane
from the bed to her brother on the floor and that she whined afterward; he indicated
that this occurred before her stomach began swelling. See (St. Ex. #3). And he
admitted that, on a different occasion, he lifted her in the air to scold her and shook
her. See (St. Ex. #3). Thus, the trial court did not abuse its discretion in
adjudicating the appellant based on committing a new offense.
The appellant argues that other adults had access to Jane in addition to the
appellant during the time-period Giradet established for when her injury occurred.
(App’nt Brf. 46-49). But the mere existence of alternative theories or explanations
for a child’s injuries does not render the evidence insufficient. See Shah v. State,
403 S.W.3d 29, 34 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d)
(“Reconciliation of conflicts and contradictions in the evidence was within the
province of the trial court, and such conflicts will not call for reversal if there was
enough credible testimony to support the conviction.”). As the exclusive judge of
the credibility of the witnesses, the trial court could determine whether the
allegations in the motion to adjudicate were sufficiently demonstrated. Canseco v.
State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
Moreover, the evidence on appeal must be viewed in the light most favorable to the
trial court’s ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).
20
Viewing the evidence in the light most favorable to the trial court’s decision,
it is sufficient to support a rational finding that the appellant caused serious bodily
injury to Jane. See Kizee v. State, 01-14-00190-CR, 2015 WL 1061136, at *4 (Tex.
App.—Houston [1st Dist.] Mar. 10, 2015, no. pet. h.) (mem. op., not designated for
publication) (holding that the trial court had the discretion to believe a victim,
despite the appellant’s assertions that she was intoxicated during the assault, as the
sole trier of fact, judge of the credibility of the witnesses and weight to be given
particular testimony in a probation revocation hearing). Thus, the appellant’s
second point of error should be overruled.
REPLY TO APPELLANT’S THIRD POINT OF ERROR
In the appellant’s third point of error he argues that the evidence presented in
his case was factually insufficient to show that he violated the terms of his deferred
adjudication. (App’nt Brf. 42). But this argument is without merit because factual
sufficiency review is inapplicable to revocation proceedings. Johnson v. State, 943
S.W.2d 83, 85 (Tex. App.—Houston [1st Dist.] 1997, no pet.); see also Brooks v.
State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). Instead, as previously stated,
appellate review of an order revoking probation is limited to abuse of the trial
court’s discretion; the evidence is examined in the light most favorable to the trial
court’s order to determine whether the State proved, by a preponderance of the
evidence, that appellant violated the terms of his community supervision. Id.
21
(citing Cardona, 665 S.W.2d at 493–94); see also Reyes v. State, 01-09-01043-CR,
2011 WL 286131, at *3 (Tex. App.—Houston [1st Dist.] Jan. 27, 2011, no pet.)
(mem. op., not designated for publication) (noting that a factual sufficiency review
is inapplicable to revocation hearings). Therefore, a separate analysis is not
required and the appellant’s third point of error should be overruled.
CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/S/ __ Katie Davis ____
KATIE M. DAVIS
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-5826
Fax Number (713) 755-5809
Davis_Katie@dao.hctx.net
State Bar Number: 24070242
22
CERTIFICATE OF SERVICE AND COMPLIANCE
This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 5,405 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:
Joan Nwuli
10203 Birchridge Dr., Ste 320
Humble, TX 77338
P: 713-222-9200
F: 281-441-4200
Ujulaw5@yahoo.com
/S/ __ Katie Davis____
KATIE M. DAVIS
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-5826
Fax Number (713) 755-5809
Davis_Katie@dao.hctx.net
State Bar Number: 24070242
Date: May 11, 2015
23