Stephen E. Jackson , et al. v. Crowe & Dunlevy, A Professional Corporation--Appeal from 319th District Court of Nueces County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2004 » Stephen E. Jackson , et al. v. Crowe & Dunlevy, A Professional Corporation--Appeal from 319th District Court of Nueces County

State: Texas

Court: Texas Northern District Court

Docket No: 13-03-00763-CV

Case Date: 12/02/2004

Plaintiff: Stephen E. Jackson , et al.

Defendant: Crowe & Dunlevy, A Professional Corporation--Appeal from 319th District Court of Nueces County

Preview:Ingrid Davila v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County
No. 04-99-00334-CR Ingrid DAVILA, Appellant v. The STATE of Texas, Appellee From the175th Judicial District Court, Bexar County, Texas Trial Court No. 99-CR-1078 Honorable Mary Rom n, Judge Presiding Opinion by: Alma L. L pez, Justice Sitting: Tom Rickhoff, Justice Alma L. L pez, Justice Sarah B. Duncan, Justice Delivered and Filed: April 4, 2001 AFFIRMED Ingrid Davila appeals a judgment of criminally negligent homicide, raising issues of custodial interrogation, voluntariness of her confession, hearsay, and an alleged ex parte communication. Background Davila was charged by indictment with capital murder of her infant daughter, Carly, by holding a pillow against her face and blocking the airway of the child. Following a pre-trial evidentiary hearing, the trial court denied a defense motion to suppress several statements given by Davila to police officers during the course of the investigation. (1) A jury found Davila guilty of the lesser included offense of criminally negligent homicide. At the punishment phase the jury made an affirmative finding that Davila used or exhibited a deadly weapon during the commission of the offense, namely the pillow, and sentenced appellant to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court denied a motion for new trial, and Davila filed this appeal. Custodial Interrogation In issues one and two, Davila asserts that she was subjected to custodial interrogation without being apprised of her rights under the Fifth Amendment as required by Miranda v. Arizona, 384 U.S. 436 (1966) and Article 38.22 of the Texas Code of Criminal Procedure. (2) Courts employ a two-step analysis to determine whether an individual is in custody. See In re M.R.R., 2 S.W.3d 319, 323 (Tex. App.-San Antonio 1999, no pet.). In the first step, all the circumstances surrounding the interrogation must be examined to determine whether there was a formal arrest or restraint of freedom of movement to the degree associated with a formal arrest. See Stansbury v. California, 511 U.S. 318, 322 (1994); In re M.R.R., 2 S.W.3d at 323. This initial query focuses on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the individual being questioned. See Stansbury, 511 U.S. at 323; In re M.R.R., 2 S.W.3d at 323. Second, a court considers whether, in light of the given circumstances, a reasonable person would have felt she was at liberty to terminate the interrogation and leave. See Thompson v. Keohane, 516 U.S. 99, 112 (1995); In re M.R.R., 2 S.W.3d at 323. Traditionally, courts considered four factors in making this determination: (1) whether probable cause to arrest existed at the time of

file:///C|/Users/Peter/Desktop/opinions/PDFs1/13939.html[8/20/2013 7:27:42 PM]

questioning; (2) the subjective intent of the police; (3) the focus of the investigation; and (4) the subjective belief of the defendant. In re M.R.R., 2 S.W.3d at 323. Under Stansbury, however, the subjective intent of both the police and the defendant are irrelevant except to the extent that they may be manifested in the words or actions of the investigating officials. Id. The custody determination is based entirely upon objective circumstances. Id. Stationhouse questioning does not, in and of itself, constitute custody. Id. Neither does being the focus of the investigation. Stansbury, 511 U.S. at 324; Snow v. State, 994 S.W.2d 737, 741 (Tex. App.-Corpus Christi 1999, no pet.). Even a clear statement by an officer that the person under interrogation is the prime suspect is not in itself dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. Id. at 324-26; Snow v. State, 994 S.W.2d at 741. Rather, a person is considered in custody only if, based upon the objective circumstances, a reasonable person would believe he was restrained to the degree associated with a formal arrest. Id. at 322-24; Snow v. State, 994 S.W.2d at 741. The Texas Court of Criminal Appeals has noted four situations which may constitute custody: (1) when the suspect's freedom of action is physically deprived in any significant way; (2) when a law enforcement officer tells the suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App.1996). In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of historical facts and view the evidence in the light most favorable to the trial court's ruling; however, we review the trial court's application of the law to the facts de novo. Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App.1997). Davila was interviewed by police officers on at least three occasions in connection with the death of her child, Carly. Her oral statement, taken at the hospital immediately following the death, was incorporated into the investigating officer's offense report. A week later, following the autopsy, detectives went to the Davila home to further question the family members. Davila, her husband, Henry, and his parents all voluntarily went to the police station where detectives conducted individual interviews and took written statements. Of the several statements taken on that day and on the subsequent day of Davila's arrest, it is the second written statement given on March 23, 1998 that is at issue in this appeal. Davila's first written statement discussed the earlier death of her infant son, Andrew Curry, her relationship with her husband and his parents. She then described events leading up to Carly's death - how she had given the child a bottle of milk and put her down for a nap, that she had turned the heart monitor off because Carly had been very fussy and was repeatedly setting it off with her kicking and crying. And that Davila later awoke from her own nap and noticed that the child was not breathing. Following the completion of Davila's first statement, the detective asked her to wait and he went out of the room to confer with his partner who was taking Henry's statement. The detectives noted inconsistencies in the two versions and decided to question Davila further. They then told her that the coroner had concluded that Carly had died by suffocation and that they felt that she was not telling them everything that had happened. Davila suggested that perhaps Carly suffocated on her own, and Detective Matjeka responded that she had earlier stated that Carly was lying with her face to the side and not face down. Matjeka asked if she had put her hand over Carly's face and suffocated her. Davila replied, "That's not how it happened." Detective Gonzales asked Davila whether she "put anything over Carly's face?" Davila then admitted that she had placed a pillow over Carly's face. Davila then gave a second written statement: After I gave my first statement to Det. Matjeka he came back into the room with Det. Gonzales and told me he wanted to tell me what the Medical Examiner said about Carly's death. Det. Matjeka told me the medical examiner told him that Carly died from being suffocated. Det. Matjeka said he thought since I was awake and found Carly that I knew more than I was telling him. Det. Matjeka asked me to tell him everything about what happened when Carly died. I didn't tell you everything. I didn't because I didn't think my actions contributed to Carly's death. I love my baby more than anything and I would never do anything on purpose to hurt her. What I left out was while Carly was laying in her crib she was kicking and screaming. I turned the monitor off like I said. Carly woke me up, I was in the middle of

file:///C|/Users/Peter/Desktop/opinions/PDFs1/13939.html[8/20/2013 7:27:42 PM]

sleep and I had worked the night before until about 12:00am or 1:00 am that day. After I turned the monitor off Carly was still fussing and screaming and there was a pillow already in front of her. I put my hand on the pillow and I pushed the pillow up against her face, lightly, until the noise stopped. I never did it out of anger or anything. I just wanted her to calm down because she was really, really crying and I just wanted to keep the noise down. I kept the pillow against Carly's face for about two minutes, until she stopped crying. After she stopped crying I just let the pillow go and it fell back into place where it was. When Carly stopped crying I got up to put the monitor on her. When I got up and looked at her I noticed she wasn't breathing. I had no idea that would have happened. That's when I called Henry. I never thought that I did that. Later on I started thinking that maybe what I did caused Carly's death. I was really hoping that Carly died from SIDS like my first baby. I had done that to Carly before to keep her quiet, but it never hurt her so I didn't think much of it. I had kept the pillow on her that long before too and nothing happened. It wasn't very often that I did that but once and a while I had to, usually when Carly was hysterical. Carly knew how to pull your strings, she was that type. That's all I want to say. I just want to reiterate I had no idea, I never wanted to hurt Carly. Following this interview, Davila went home with her family, and was subsequently arrested following her indictment several months later. Davila asserts that these statements were taken in the context of a custodial interrogation and without the benefit of a Miranda warning, and, therefore, the court erred in admitting the second, inculpatory statement. However, Detective Matjeka testified at the suppression hearing that as each of the two interview sessions began, he expressly told her that she was not under arrest, that she did not have to talk to him, and that she was free to leave at anytime. The appellant acknowledged that she understood and agreed to the interviews. She never stated that she did not want to talk, or that she wanted to leave, or that she did not understand the circumstances under which she was being interviewed. Matjeka testified that he never made any promises or threats to her. He stated that he typed her statement directly into the computer while she was speaking, using her own words as much as possible, interjecting questions for purposes of clarifying points as she talked. When she finished, the statement was printed and she was given the opportunity to read it carefully, to make any changes, additions or deletions necessary, and chose to sign it as printed. Davila's interviews lasted approximately two hours. Detective Matjeka told Davila he would be filing charges with the district attorney's office and, at Davila's request, agreed not to say anything about it to her family so that she could tell them in her own way. Following the March 23, 1998 interview, Davila returned home with her husband and in-laws. Charges against Davila were filed on May 20, 1998, and she was arrested on November 17, 1998. The trial court found that both statements were given voluntarily and there was "no evidence of undue and/or illegal coercion used to obtain" these statements. The court further concluded that the statements were not the product of custodial interrogation and that Article 38.22 warnings were not required. Davila asserts that Detective Matjeka's conduct during the second interrogation conveyed to Davila that she was the primary suspect and that, at that point, no reasonable person would have believed she was free to leave. The record contains no evidence of Davila's subjective belief of her status at the time of the interview. The objective circumstances of the interrogation, however, indicate that Davila submitted to the interview voluntarily. Secondly, she was apprised of her ability to terminate the interview and leave the station on more than one occasion, but chose to remain and give two written statements. When the interviews terminated approximately two hours later, she left the station and returned home with her family. These circumstances support the trial court's determination that she was not subjected to a custodial interrogation. Davila's first two issues are overruled. Voluntariness of Written Statement In her third and fourth issues, Davila asserts error in the trial court's failure to instruct the jury on the voluntariness of her written confession. The jury heard testimony from Dr. Kelly Cowan, a psychiatrist who treated Davila for severe depression following Carly's death. Three days prior to the stationhouse interview, Dr. Cowan prescribed antidepressants and tranquilizers, and testified that these drugs may cause confusion and cloudiness and may induce difficulty in decision making or concentrating on tasks. An instruction on voluntariness is required when the defendant's statement is the product of custodial interrogation. See Land v. State, 943 S.W.2d 144, 149 (Tex. App.file:///C|/Users/Peter/Desktop/opinions/PDFs1/13939.html[8/20/2013 7:27:42 PM]

Houston [1st Dist.] 1997, no pet.); Tex. Code Crim. Proc. Art. 38.22, 7 (Vernon 1979). We find no error, however, because the statement was obtained in a non-custodial interview. Hearsay In a fifth issue, Davila complains that the testimony of the emergency room physician, Dr. Adrianne Strickland Smith, contained seven instances of inadmissible hearsay. In two of the seven instances, error, if any, was waived. Dr. Smith was in radio contact with the paramedics who were dispatched to the Davila home with the ambulance, and she also attended the child in the emergency room. She was unable to identify the paramedic whom she stated told her he thought the baby had been dead longer than its mother had told him. Davila's counsel did not object to this statement until after the question had been asked and answered. In the absence of a timely objection, error, if any, is not preserved. See Guzman v. State, 521 S.W.2d 267, 269 (Tex. Crim. App. 1975); Tex. R. App. P. 33.1(a)(Vernon Pamph. 2000); Tex. R. Evid. 103(a)(1). Dr. Smith also testified that "the paramedics were following proper treatment" to no objection. Thus, the matter is not preserved for review here. See Ybarra v. State, 890 S.W.2d 98, 114 (Tex. App.San Antonio 1994, pet. ref'd); Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1). The five remaining instances of hearsay concerned evidence that was also admitted without objection by other means. The improper admission of evidence in violation of the rules of evidence is subject to harm analysis under appellate rule 44.2(b). See Lam v. State, 25 S.W.3d 233, 237-38 (Tex. App.--San Antonio 2000, no pet.). Evidentiary error is reversible only if the error had a substantial and injurious effect or influence on the jury's verdict. See King v. State, 53 S.W.2d 266, 271 (Tex. Crim. App. 1997); Lam, supra; Tex. R. App. P. 44.2(b). Dr. Smith recounted that the paramedics described the bedroom where they found Carly seemed like "a morgue" and had found the baby "propped up. It's almost like we are going to a funeral in here." Paramedics Faunce and Lozano also testified without objection to a funeral-like scene. Likewise, her testimony that other members of the household were unaware of the child's condition and need for medical care was also brought forward through these other witnesses without objection. Under these circumstances, if the admission of Dr. Smith's testimony constituted error, it was harmless error. Davila's fifth issue is overruled. In her seventh and eighth issues, Davila asserts that the trial court erred in admitting portions of the medical records. Specifically, she asserts that some handwritten notes made by Dr. Smith and a Suspected Child Abuse or Neglect Report were inadmissable. The medical records were offered as one exhibit. Defense counsel made a general objection that the document contained hearsay within hearsay. A general, conclusory objection of hearsay is not sufficient to preserve error. See Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980)(op. on reh'g). Moreover, Dr. Smith's testimony referencing these notes did not draw an objection from the defense. The same is true for Dr. Smith's testimony concerning her suspicions of potential child abuse which a social worker ultimately filed in a report. Any error in admitting these portions of the medical record were waived. Davila's seventh and eighth issues are overruled. Deadly Weapon In a sixth issue, Davila complains that the court erred by allowing the prosecution to mislead the jury of the burden of proof required to find a deadly weapon was used. An affirmative finding on the deadly weapon issue in this case enhanced the offense from a misdemeanor to a third degree felony. The prosecutor told the jury in his opening statement during the punishment phase of the trial that following their verdict of guilty, the deadly weapon finding would be "a ministerial act." Defense counsel did not object, but instead told the jury during his statement that "you must be convinced beyond a reasonable doubt that she used a deadly weapon." The court sustained the prosecutor's objection to this statement as not conforming to the court's instruction. During closing argument, the prosecutor again characterized this as a ministerial act, stating that the guilty verdict dealt with Davila's culpable mental state and had already determined that the pillow caused the death. The trial court submitted a definition of beyond a reasonable doubt and further instructed the jurors that: Having found the defendant, Ingrid Davila, guilty of criminally negligent homicide, you will next determine whether the pillow used during the commission of the offense is a deadly weapon. "Deadly weapon" means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

file:///C|/Users/Peter/Desktop/opinions/PDFs1/13939.html[8/20/2013 7:27:42 PM]

Therefore, if you further find beyond a reasonable doubt that the defendant used a deadly weapon, as that term has been defined above, to-wit: a pillow during the commission of the offense, you will so state in your verdict . . . . Any error attached to the prosecutor's reference to "ministerial act" was waived when defense counsel failed to make a timely objection and obtain an adverse ruling. See Ibarra v. State, 11 S.W.3d 198, 197 (Tex. Crim. App. 1999); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The issue of culpable mental state with regard to use of a deadly weapon is clearly relevant during the guilt/innocence phase of a trial. The court of criminal appeals, however, recently clarified that during the punishment phase, it is not the intent of the actor, but the capacity of the instrument used to cause death or serious bodily injury that is at issue, stating: [T]he statute provides that a deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." . . . The provision's plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Tex. Penal Code 1.07(a)(17)(B). Davila fails to cite to and distinguish McCain in pursuing this issue. To counter the prosecutor's ministerial act argument, defense counsel stated during his closing argument, "you must be convinced beyond a reasonable doubt that she used a deadly weapon." The prosecutor objected and stated, "that is not the Court's instruction." The trial court erroneously sustained the objection. Nevertheless, the court properly instructed the jury on the burden of proof. There is a rebuttable presumption that jurors follow the court's instructions. See Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1987)(op. on reh'g 1988). The jury's affirmative finding on the deadly weapon issue is consistent with its earlier finding of guilt which identified the pillow as the instrument used to suffocate the child. Thus, without evidence that the jury failed to follow the court's instruction, we find the error in sustaining the prosecutor's objection harmless. Davila's sixth issue is overruled. Ex Parte Communication In her ninth and final issue, Davila complains that she and defense counsel were absent from the courtroom during a critical stage of the prosecution in violation of Article 33.03 of the code of criminal procedure. Following the noon recess and before the jury returned to the courtroom, prosecutor Catherine Babbitt brought to the court's attention the fact that the testifying witness, Fireman Edward Lozano, had never been sworn in. The record is unclear as to the presence or absence of Davila. The following exchange, however, implies that defense counsel, Robert Barrera, had been apprised of the situation but was not before the bench at the time of the following exchange: Ms. Babbitt: We have one matter that came to my attention about five minutes ago, that Fire Fighter Lozano was not sworn prior to his testimony. The Court: Oh, you are absolutely right. Lozano was not. Ms. Babbitt: I told Mr. Barrera that. The Court: You are absolutely right. Ms. Babbitt: He's not going to have any objection to you swearing him. ***** The Court: Why don't you bring him in and I'll get him sworn right now. The trial court then asked Lozano to confirm that his previous testimony had been the truth, and she proceeded to administer the oath to the witness.

file:///C|/Users/Peter/Desktop/opinions/PDFs1/13939.html[8/20/2013 7:27:42 PM]

Davila argues that this communication was a critical stage because it ultimately permitted the jury to consider the previously heard unsworn testimony. However, it is undisputed that Davila and her counsel also heard that same unsworn testimony and never raised any objection to it. Under the narrow circumstances presented here, the administration of the oath outside Mr. Barrera's presence, when he had been informed by the prosecutor that this needed to be done, does not amount to absence during a critical stage of the trial. Any error that occurred as a result was waived. Davila's ninth issue is overruled. Conclusion Davila's nine issues are overruled and the judgment of the trial court is affirmed. ALMA L. L PEZ, JUSTICE DO NOT PUBLISH 1. The court did, however, suppress Davila's oral statements made following her arrest. 2. The concept of custodial interrogation under Article 38.44 is analyzed under the same principles as under the Fifth Amendment, and we will treat them as such below. See Wicker v. State, 740 S.W.2d 779, 785 (Tex. Crim. App. 1987); Bass v. State, 723 S.W.2d 687, 691 (Tex. Crim. App. 1986).

file:///C|/Users/Peter/Desktop/opinions/PDFs1/13939.html[8/20/2013 7:27:42 PM]

Download 13939.pdf