Damacia Busby v. State ( 2008 )

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  Opinion issued March 13, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01210-CR

DAMACIA DANIELLE BUSBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 978120

MEMORANDUM OPINION

A jury convicted appellant, Damacia Danielle Busby, of injury to a child, found a deadly weapon special issue true, and assessed punishment at 30 years' confinement. On appeal, appellant contends that (1) his confession was involuntary, and (2) the evidence is legally and factually insufficient. We affirm.

BACKGROUND

On February 19, 2004, Latasha Howard woke her young sons, got them ready for school, and took them to meet the school bus. She then woke appellant, her boyfriend, so that he could get ready for a traffic court appearance. Next, Latasha got her four-year-old daughter, Julia, ready for her first day of preschool. Latasha's cousin, Felicity Howard, soon arrived to drive Latasha and Julia to the school. Latasha's four-month-old son, Jeremiah Davis, went with them.

After registering Julia at school, Latasha and Felicity stopped for breakfast at McDonald's. Felicity then took Latasha and Jeremiah home. Latasha visited with neighbors outside her apartment for about an hour before returning to her apartment with Bevery Hutch, her upstairs neighbor and frequent babysitter.

From 10:00 a.m. to 1:30 p.m., Latasha and Beverly visited and watched television. During this time, Jeremiah was in a happy mood. He had a bottle of formula and was laughing and "cooing" with Beverly.

At 12:30 p.m., appellant called Latasha from a car lot where he was looking at cars. He asked Latasha to call his workplace and report that he was still in court and would not be in to work. Beverly soon left Latasha's apartment, and appellant returned.

Latasha's sister, Vickie Battles, came over. Latasha and Vickie walked to the apartment office, and then visited outside until around 2:30 p.m. During the time Vickie was with Latasha, Jeremiah was awake, happy, and comfortable.

After Vickie left, Latasha realized that it was 2:30 p.m. and that she was late picking Julia up from school. She picked up Jeremiah and his car seat, but then decided to ask appellant to watch Jeremiah because she was running late. Appellant told her to take the baby with her. Latasha persisted, explaining that if she had to take Jeremiah she was going to be even later picking up Julia. Appellant said, "It's fine, you can leave him with me, but if he cry, I'm not going to pick him up." Latasha put Jeremiah in a stroller and gave him a bottle. When she left, he was taking his bottle and was not crying.

Latasha stopped to get gas and then picked up Julia and Felicia's son, Calvin, from preschool. She then dropped Calvin off at Felicia's house and went home. She had been away from home for 30 minutes. As she drove up, she saw appellant walking toward the car. Appellant told Latasha, "You have to come on, something wrong with Jeremiah." When she entered the apartment, Latasha did not hear Jeremiah crying. Instead, he was lying still on her bed. She put her hand on Jeremiah's stomach and discovered that he was not breathing. Latasha asked appellant if he had called for help and he said, "No." She then told him to find the telephone, while she began performing C.P.R. on Jeremiah. Appellant called 9-1-1.

After paramedics arrived, they asked who was with Jeremiah. Latasha told them that she was the baby's mother, but that she did not know what had happened to him. Appellant told them that he was the person who was with the baby. While the EMTs were there, appellant told Latasha, "I told you don't leave Jeremiah here with me. Now these people going to think I did something to Jeremiah."

Latasha rode with Jeremiah to the hospital. Appellant followed in his own car. Once at the hospital, Latasha was taken to a nearby room to wait while the doctors worked on Jeremiah. A nurse came and told Latasha that "the baby's father" was there and wanted to speak to her. Latasha explained that appellant was not Jeremiah's father, and that she did not want to speak to him.

Appellant waited in the family room at the hospital, where he was interviewed by Sergeant M. Peters. Officer F. Gans interviewed Latasha at the same time. After discovering that appellant was the only person with Jeremiah before the ambulance was called, the officers felt that they needed to further question appellant, and they asked if he would come to the police station. The officers told appellant that he did not have to come to the police station, but appellant agreed, so Peters drove appellant downtown to the police station. Once there, the officers took appellant to an interview room and read him his statutory rights. Appellant agreed to talk to the officers and never indicated to them that he wanted to return to the hospital.

Appellant told the police that he did not want to keep the baby that day because he thought the baby would be too fussy. After Latasha left, the baby started crying and would not stop. Appellant did not know what was wrong. Appellant picked up Jeremiah and realized that he was sweating, so appellant took off the baby's clothes and began to rock him and pat him. Appellant noticed that the baby's hair smelled sour, so he started to wash the baby's hair in the sink. While doing so, some water got in the baby's nose and he started choking. Appellant patted the baby on the back to clear his throat, and then Latasha arrived and they called 9-1-1. Gans asked appellant if he understood what happens when a person shakes a baby. He also asked appellant whether he shook Jeremiah. Appellant responded that he knew you were not supposed to shake a baby too hard, and that he had only "bounced [Jeremiah] lightly."

After giving this initial statement, Peters and Gans left the interview room and discussed the information appellant had given them. They agreed that appellant was not telling the truth and that he should be interrogated further. Gans returned to the interview room, while Peters waited outside. Gans told appellant that he did not believe what appellant had told him. Gans told appellant that he believed that, once the baby started crying, appellant "lost it" and started shaking the baby. After telling appellant what he thought had happened, Gans placed a blank, voluntary statement form on the table in front of appellant and asked him, "Do you want to tell the truth about what really happened?" Appellant nodded his head and said, "Yes." The form had appellant's statutory rights written on it, which Gans had appellant read aloud and initial. Appellant then wrote the following statement:

I Damacia Busby were at home with Jeremiah Davis on 2/19/04. Jeremiah were left with me by Latasha Howard his mother so that she could go get our daughter Julia Davis. First, before she left Jeremiah was crying. She asked me could he stay with me till she run and go pick Julia up, I replied that him with you he's already cranky. Latasha responded she would be right back. I said ok. Latasha gave him a bottle and he stopped crying. While she was gone he started back crying. I Damacia Busby then went and made him another bottle. Jeremiah sucked the bottle for a few minutes. Jeremiah started crying again. I then did not know what was wrong with him. All I could think was that he wanted to be held or changed. So I picked him up out of his stroller. Next I discovered he was hot so I took his clothes off. Then I changed his pamper and tried to cool him off. Jeremiah kept crying I didn't know what to do. So I rocked him, patted him. Nothing was working. I was hoping Tasha walked in any minute. She didn't, I did not know what was the problem so I shook him briefly. I did not try to I was just nervous and did not know what was wrong with my baby. I love Jeremiah with all my heart. I was just trying to be the perfect father. I never had a father around so I tried to be better. After I shook Jeremiah he looked kind of woosy. So I gave him his bottle and he threw up. I tried to wash his hair. He slipped out of my arms for a brief moment and started to chock [sic]. I batted him on his back he started throwing up like milk. Jeremiah had a strange look on his face so I did not know what to do. I tried C.P.R. I heard my car pulling up so I ran and got Tasha. She was screaming help and I was trying to help to do C.P.R. and call 911. So when the ambulance got there I ran out to the truck with the baby.

Peters and another officer then came back into the interview room to witness appellant sign his statement. The officers asked appellant several questions about whether he was threatened or coerced into giving his statement. Appellant said that he was not and signed the statement in the presence of all three officers. Gans also recorded appellant reading the statement aloud, including the statutory warnings.

After obtaining appellant's written statement, Gans called the district attorney and asked for charges to be accepted against appellant. Appellant was then arrested and transported to the city jail.

Jeremiah remained on life support at the hospital for three days. When a test showed no brain activity, Latasha agreed to remove Jeremiah from life support and he died soon thereafter.

VOLUNTARINESS OF CONFESSION

In his first point of error, appellant contends his confession was involuntary and the trial court erred by admitting it into evidence. Specifically, appellant contends that "he was compelled to make a statement after indicating to the officer that he wished to know the health and medical status of the child and after not being provided any critical updates as he was held in a locked and secured room at the hospital."

When a defendant makes a pretrial challenge to the voluntariness and admissibility of his confession, the prosecution bears the burden of proving voluntariness by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 627 (1972); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). The court, outside the presence of the jury, must conduct a hearing to determine whether the statement was voluntarily given. Tex. Code Crim. Proc. Ann. art. 38.22 section 6 (Vernon 2005); see Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964) (establishing procedure for voluntariness hearing). Voluntariness is determined by considering the totality of the circumstances. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). We do not disturb the trial court's ruling unless there was a clear abuse of discretion. Alvarado, 912 S.W.2d at 211. When, as here, the determination revolves around historical facts and witness credibility, we give the court almost total deference. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

Because appellant argued that his statement was involuntary, the trial court held a hearing outside the presence of the jury to determine whether the statement was voluntarily given. Sergeant Peters and Officer Gans testified for the State and appellant testified on his own behalf. At the hearing, the trial court heard two different versions of the events leading up to appellant's written statement.

Appellant testified that Sergeant Peters approached him at the hospital and took him into a locked room for questioning. In contrast, Peters testified that appellant had been put in the room by hospital personnel, and that Peters had to get someone to unlock the door to let him in. Gans testified that the doors were locked from the outside, but that they opened from the inside. Appellant testified that he never made any attempt or request to leave the room.

Appellant spoke with Peters at the hospital for less than five minutes. Gans and Peters then requested that appellant come to the police station to answer more questions. Appellant testified that he was never told that he had the right to refuse to come to the station. This, however, is contradicted by Gan's testimony that he specifically told appellant that he did not have to go to the police station.

Peters drove appellant and Gans to the police station. Appellant was not under arrest and was not handcuffed. He rode in the backseat with Gans while Peters drove. The officers offered to stop and buy appellant some food, but he refused.

Once at the station, appellant was escorted to an interview room on the 6th floor. The officers testified that they immediately read appellant his statutory warnings from a "blue card." Appellant, however, testified that the officers were lying and that they never read him his rights.

During the initial questioning, appellant told the officers a version of the events that they did not believe. Appellant admitted to "bouncing" the baby and washing the baby's hair to get a sour smell off him, during which water caused the baby to begin choking. Appellant, however, did not mention shaking the baby. The officers then left appellant in the room and went outside to discuss their next move. They agreed that Gans would return and accuse appellant of shaking the baby to see how appellant responded.

Gans testified that he returned to the room and told appellant that he believed that appellant had shaken the baby to stop the baby from crying. He explained that retinal hemorrhaging would show if the baby had been shaken and that there were very few things that would cause retinal hemorrhaging. Appellant testified that he tried to tell Gans that he wanted to leave and go back to the hospital to check on the baby, but that Gans would put up his hand and stop appellant from talking. Gans admitted that he cut off appellant several times when he tried to interrupt Gans's accusations, but Gans testified that he did so because appellant had not yet been given his statutory warnings again. Gans further testified that once he stopped talking, appellant had ample opportunity to end the questioning, but never made such a request.

Gans testified that after he accused appellant of shaking the baby, he asked appellant if he was ready to tell the truth. Appellant said yes, and Gans placed a voluntary statement form in front of him. Gans testified that he had appellant read each of his statutory warnings, including one that stated, "I have the right to terminate this interview at any time." Appellant read and initialed his statutory rights, then wrote out his written statement, in which he mentioned for the first time that he shook the baby.

Appellant testified that everything in the written statement was true, except the statement that he shook Jeremiah. He testified that he felt that he had to include that in the statement because Gans had told him that if he did not, they were going to come after him "with a hard ball." Appellant testified that he gave the statement so that he could go back to the hospital to check on Jeremiah. Appellant testified that he told the officers that his statement was not true, but he was told that if he wrote it then "they would not come down on [him] with hard ball." In contrast, Gans testified that he encouraged appellant to show some remorse and write a statement, but he denied telling appellant what to put in the statement.

After appellant finished writing his statement, Peters and another officer came in the room and Peters asked appellant questions about whether the statement was made voluntarily. Appellant replied that it was and then signed the statement in the presence of the officers. Appellant then read his statement aloud, while the officers recorded it on an audiotape. At the end of the tape, Officer Gans asked appellant if the statement was voluntary, and appellant replied that it was.

Appellant concluded his testimony at the hearing by stating that he was coerced into giving the statement because he wanted to go back to the hospital and because he thought the police would go easier on him if he gave the statement. However, he admits that he never asked the police to stop the interview and to take him back to the hospital. Officer Gans denied ever telling appellant that if he did not say he shook the baby they "would come at him with a hard ball."

In light of the conflicting testimony given at the hearing, the trial court was entitled to believe the officers and disbelieve appellant. As such, the trial court's denial of appellant's motion to suppress his written statement was not an abuse of discretion.

Accordingly, we overrule point of error one.

SUFFICIENCY OF THE EVIDENCE

In points of error two and three, appellant contends the evidence was legally and factually insufficient to prove that he intentionally and knowingly caused injury to a child. A person commits injury to a child if he unlawfully, intentionally or knowingly causes serious bodily injury to a child younger than 14 years of age. Tex. Pen. Code Ann. § 22.04(a)(1); 22.04 (c)(1) (Vernon Supp. 2007). Serious bodily injury means bodily injury that creates a substantial risk of death or that causes death. Tex. Pen. Code Ann. § 1.07(46) (Vernon Supp. 2007).

We review the   legal   sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a   legal   sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
   In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). A jury is in the best position to evaluate the credibility of witnesses, and we are required to give "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

Legal Sufficiency

The evidence, viewed in the light most favorable to the verdict, shows that Jeremiah died as a result of blunt force head injuries. Doctors Ada Earp and Morna Gonsoulin testified regarding Jeremiah's injuries. Horizontal, linear marks on Jeremiah's body appeared to have been caused by separated fingers "squeezing" him. Retinal hemorrhages, which would have been caused by having been violently shaken, covered 90% of Jeremiah's retinas. He also suffered an extensive subarachnoid hemorrhage, consistent with trauma to the head, such as being slammed or thrown on a table or wall. There was an abrasion and contusion to Jeremiah's scalp in a "V" band-like pattern, which was consistent with his head being struck against an object with a corner. Jeremiah also suffered a subdural hemorrhage, which can be caused by a rapid acceleration and deceleration of the head, such as shaking.

The evidence showed that appellant was the only person with Jeremiah at the time he fell ill. There was testimony that the injuries that Jeremiah suffered would have caused him to lose consciousness immediately. After suffering the injuries, Jeremiah would not have been able to laugh, smile, cry, or suck a bottle. The evidence shows that, when he was left in appellant's care, he was able to interact, laugh and smile. In fact, Jeremiah was drinking a bottle when Latasha left him with appellant. Appellant admitted that he "shook" Jeremiah and that after he did so, Jeremiah looked "woosy."

Viewing this evidence in a light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant caused Jeremiah's serious bodily injuries.

Factual Sufficiency

Appellant argues that the evidence is factually insufficient because there was no evidence that he was entirely alone with the child throughout the day, and that other people had access to the child during the day.

Appellant correctly points out that Jeremiah was not in his care for most of the day. The evidence shows that during the day, Jeremiah was in the presence of Latasha, Felicity, Beverly, and Vickie during various times of the day. However, the evidence also shows that, during those times, Jeremiah was responsive and healthy. Jeremiah did not show signs of injury until after he had been alone with appellant. Doctors Earp and Gonsoulin testified that the extent of Jeremiah's injuries would have caused him to lose consciousness immediately.

Viewing all the evidence in a neutral light, it is not so obviously weak as to undermine confidence in the jury's determination, nor is the verdict against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d at 414-15.

Deadly Weapon

In points of error two and four, appellant argues that there is legally insufficient evidence to show that he used a deadly weapon. When the State alleges the use of a deadly weapon that is not deadly per se, as here, the State must prove beyond a reasonable doubt that the weapon was used in a manner capable of causing death or serious bodily injury. Hill v. State, 913 S.W.2d 581, 583-844 (Tex. Crim. App. 1996). Texas Penal Code Section 1.07(a)(17)(B) provides, in relevant part, 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." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2007). Texas Penal Code Section 1.07(a)(46) provides that " 'serious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2007).

The Court of Criminal Appeals has recognized that a hand may be a deadly weapon within the meaning of section 1.07(a)(17), "depending upon the evidence shown." Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983). To determine whether something is a deadly weapon, the jury may consider all the surrounding facts, including the defendant's words. Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). The State needed to prove only that appellant's hands were capable of causing serious bodily injury in the way that they were used or intended to be used. See Hill, 913 S.W.2d at 584.

Viewed in the light most favorable to the verdict, the evidence presented at trial established that Jeremiah's head injuries were caused by violent shaking. In this case, Jeremiah had marks on his body that indicated that he had been "squeezed." He also had severe retinal hemorrhaging, which is consistent with shaken baby syndrome. The hemorrhages would have been caused by being violently shaken, causing the head to go back and forth, injuring the brain, and causing the blood vessels in the retina to tear and bleed. The evidence also showed that Jeremiah had been struck with a blunt object such as a wall or table. These injuries would have immediately caused Jeremiah to lose consciousness, and the child showed signs of injury only after he had been alone with appellant. Appellant admitted shaking Jeremiah.

From this evidence, the jury could have rationally concluded that appellant's hands, in the manner used, were capable of inflicting serious bodily injury to Jeremiah. See Villanueva v. State, 194 S.W.3d 146, 159 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (holding evidence sufficient to support deadly weapon finding when evidence showed that defendant used his hands to shake child, causing head injuries); Morales v. State, 792 S.W.2d 789, 790-91 (Tex. App.--Houston [1st Dist.] 1990, no pet.) (holding evidence sufficient to support deadly-weapon finding when evidence showed that defendant used his hands to suffocate victim). We hold that the evidence was legally sufficient to show that appellant used a deadly weapon during the commission of the offense alleged.

We overrule points of error two, three, and four.

REFORMATION OF JUDGMENT

We note that, even though the jury answered the special issue regarding use of a deadly weapon to be true, the trial court did not enter an affirmative finding of such in the judgment. Instead, the trial court marked "n/a."

"An appellate court has the power to correct and reform a trial court judgment 'to make the record speak the truth when it has the necessary data and information to do so. . . .'" Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 529-31 (Tex. App.--Dallas 1991, pet. ref'd)); see Tex. R. App. P. 43.2(b). This power includes adding a deadly weapon finding to a judgment that erroneously omitted a factfinder's deadly weapon finding and deleting a deadly weapon finding that was erroneously entered in the judgment without a factfinder's first having made the finding. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (adopting Asberry's reasoning to add such finding); Ex parte Nino, 659 S.W.2d 436, 437 (Tex. Crim. App. 1983) (deleting finding); Polk v. State, 693 S.W.2d 391, 395-96 (Tex. Crim. App. 1985) (deleting finding); Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (adding finding); Asberry, 813 S.W.2d at 529 (adding finding).

Accordingly, we reform the judgment to include an affirmative deadly weapon finding.

CONCLUSION

The judgment of the trial court, as hereinabove reformed to include a deadly weapon finding, is affirmed.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. Tex. R. App. P. 47.2(b).