*1 LUCIO, Appellant, Elizabeth Melissa
v. of Texas. STATE
NO. AP-76020 of Texas. Appeals of Criminal
Court
Sept. 2011.
Rehearing Nov. Denied *2 the trial and affirm points
these error judgment. court’s *3 in this case presented The evidence that, Saturday, p.m. at about 7:00 on shows 2007, were dis- February paramedics apartment appellant where patched nine of her and an adult lived with children Avarez, who was the male named Robert at least these children father of seven of to as her whom referred and (Nester) One of paramedics husband.1 en- paramedics when the testified apartment, they found Mariah tered the in the on her back lying unattended breathing and with middle of the floor not appel- pulse. Nester no observed “overly distressed” lant’s “distant” not Warner, Larry Harlingen, Appellant. ordinary” was “so far out of the behavior Jr., First Mattingly, E. Chief Charles it Nester “put report.” that he into the McMinn, D.A., Brownsville, Lisa Asst. C. fact also testified that he “noted the Attorney, Austin, for State. State’s even with- [appellant] was not—she wasn’t try- reach of much less arm’s the child [sic], her, trying to do gasp hold
OPINION anything to hold them [sic].” HERVEY, J., of opinion delivered the police paramedics told at Appellant MEYERS, JOHNSON, in which the Court fallen down the scene Mariah had ALCALA, KEASLER, COCHRAN, and transported Mariah to a some stairs. was JJ., joined. emergency where she was hospital room mur- of Mari- charged capital pronounced dead. The condition two-year-old body for the death her indicated had been se- der of ah’s that she in var- daughter, jury appel- verely Mariah. A convicted abused. There were bruises offense, covering body, trial her stages healing lant of this and the court ious back,2 pursuant to death one of sentenced there were bite marks on her jury’s special probably answers issues arms had been about broken death, punishment phase. Appellant raises two to weeks seven before appeal. missing portions her hair where points fourteen error on direct she was error, Finding pulled no we overrule been the roots. The reversible had out gave Appellant, pellant 1. who in June birth in October 2007 was born had to twins previously oth- county jail been married and had several while she was incarcerated during marriage. er children The record for this offense. seems to indicate that had twelve children in all at of Mariah's the time death pathologist, who 2. The forensic conducted February Two-year-old on Mariah autopsy, Mariah's testified that the bite marks youngest was the children. It is not Mariah’s back not be matched could biological clear whether Alvarez fa- dragged anyone their teeth because "someone Mariah, although ther of Child Protective Ser- across it.” Ap- vice records seem that he is. to indicate emergency physician (Vargas) Q. Now, Officer, room testi- you [STATE]: that this was the “absolute in, fied worst” case you went pause waited for a before of child abuse that he had seen in his 30 you you went in and your- introduced years practice. Vargas also testified self? emergency-room
that his visual and manu- Yes, A. [ESCALON]: sir. I did. inspection al of Mariah appar- indicated no Q. Can describe to how ent of a signs injury. head you go doing about that? chief pathologist forensic for Cam- Well, A. my initial observation —that’s *4 Hidalgo (Farley), eron and Counties who when investigation starts, is when I autopsy conducted Mariah’s on Monday, walked into the room and I see the 19, 2007, February testified that Mariah’s investigators interviewing the suspect. cause of death was “blunt force head trau- just now, I’m observing right trying to ma,” which would have occurred within 24 in, have, soak it all and see what we and death, prior hours to her and would have try to get a better idea lady. about this immediately been apparent that Mariah her, And I observe how answering she’s inwas distress and in need of medical demeanor, these questions, her how Farley attention. testified that Mariah she’s standing. All of that telling “multiple suffered contusions” to her head picture, me—it’s like a almost—I’m ob- area and that “blunt force head trauma serving everything, and that is already means, ... basically beat about the head feeding already telling me—that’s me hand, fist, something object, —an what I’m dealing with. Okay? And then Farley or slammed.” testified that these I investigators see the and I’m mak- injuries would not have been caused ing note—I’m am making [sic] note— falling down some stairs and that this was you know: Okay. This is what have. the most severe case of child abuse she Q. type What of demeanor would had ever seen. having? describe her 17, 2007, night February On the sev- in, A. When I walked she was not mak- investigators questioned eral appellant for ing eye contact with investigator. hours, five beginning about at about 10:00 She had her head down. So there right p.m. This interview was videotaped and then, and I knew she something. did was admitted in sepa- into evidence three did, And she was ashamed of what she (State’s 5). Exhibits, 3, 4, rate DVDs and and she had a time admitting hard Appellant initially police told the that Ma- officers what had occurred. That’s what riah had fallen down some on stairs Thurs- my crossed mind. And I knew she was day night, February 2007. For about say beat. I knew—when I she was hours, three denied knowl- giving up. “beat” —she was She wants edge of how badly Mariah became so to tell because giving she’s that slouched suggested bruised and that her older chil- appearance you know: I did it. I’ve — dren could have been responsible. her, given up. I need to interview visit Ranger began
Texas Escalón question with her a little more. That’s what I appellant about two and one-half hours sensed. I get my And that because of interrogation. enforcement, into the experience Escalón testified at in law my and trial while he observed other investi- in experience interviewing people. Ev- her, gators questioning ery similar, he could tell from pretty time it’s much in demeanor, appellant’s demeanor that she was people “beat” and that’s what I and that she was the truth.” “hiding experienced. “day times Mariah several “spank” would experi- types other you had
Q. Have day.” after trooper as a experience your ences interviewing people? investigator Mariah was “sick” stated that Appellant died, but that she was day that she on the most common A. That’s one to the doctor be- to take Mariah afraid you see- call—that you would clues on her. of all the bruises cause down, like head somebody with their would not eat and that Mariah also stated forward, slouched shoulders are their heavy. Appellant breathing that her They’re you. they won’t look February slept day Mariah all said that the truth.3 hiding hiding— teeth 17, 2007, would lock her and that she began to testified Escalón try to feed appellant together when about 20 minutes with him after “open up” force with “blunt her. This was consistent recorded questioning. Appellant’s Farley de- symptoms that head trauma” that she told Escalón reflects statement scribed. she, she, only “spank- had been *5 If child suffers Q. [STATE]: “hitting” Mariah since sometime ing” or you’ve identi- injury type brain that Al- Appellant stated December 2006. exhibit, would this child be on this fied Mariah and “spanked” “hit” or varez never Crisps, and up, eat Cocoa able to sit of most of the was unaware that Alvarez things of that nature? body. Appellant also on Mariah’s bruises hem- Usually with this kind of A. No. the other children that none of stated type of im- orrhage, the child has some except ap- one Mariah and that no “beat” time, they sign. mediate Most also Appellant Mariah. pellant “beat” very They may seize say they’re tired. been in her care that Mariah had stated relax, tense, then and get very and and days. The previous three for at least tense, People relax. very and then get videotape appellant on jury also saw is, what it but some- may not realize a doll how she abused demonstrate with will realize that that’s parents times Mariah. “spanked” seizure, they’re seizing. they’ll say, Yet, before. they’ve never had seizure that she would Appellant also stated do, is, they will to thing The other tend got Ap- mad. “hit” Mariah when the brain because pinched pressure increases how she pellant also described They might start will start to swell. and how she would some- vagina Mariah’s so if an ER doctor sees arm. vomit. And squeeze Mariah’s grab times them, may they gas- think have a they how she bit Mariah Appellant described virus, something. But trointestinal times about twice on the back different pressure they’re vomiting because of the Appel- two weeks before Mariah’s death. seizing lethargy being in the head. So she bit Mari- lant said that on one occasion — very consistent. very tired. Coma is no reason while she was ah on the back for said, breath- respirations they’re “I Abnormal Appellant hair. combing Mariah’s — big funny. They take ing a little it.” stated that she just did also right” by saying what "make it appellant's she needed to review of recorded 3. From our statement, voice is happened we note that Escalon’s Mariah. We note that initially began speak to when he portions lowered critical made no claim at trial that ascertain a appellant and that it is difficult to appellant are inaudi- interview with Escalon’s telling appellant. portion what he is small ble. things appellant like saying Escalón was breath, they then sit. then it trooper, you And DPS did have a suspicion of might go out. And then —ten seconds what that cause of death was?
later, maybe another breath. So the Yes, A. sir. I did. breathing starts to also be affected as the brain starts to swell. Q. What had suspected occurred Q. type injury, Like on this how far here to the child? back would those symptoms had [sic] A. Head trauma. somebody been known to that watch- incep- child? At least since the tion, Q. And I think at point one or when? she admits to all of the injuries except [visible] A. usually fairly quickly It’s after the the scratch on the face and one on the they’ll fatal blow occurs that start heel? symptoms. have the And the first is,
symptom they’re usually, they’re A. Yes. They can’t keep
tired. awake. That’s lethargy. They get can’t them Q. video, Now in the there is no actu- up get They them awake. won’t —can’t actually say al—she doesn’t that she in drink, do, usually. they eat or ifAnd blow, shot, one direct or one direct hits they vomit it. head, Mariah on the or the head area Q. they Do ever suffer a condition general other than spanking. Is that where can’t open their mouth— true? *6 jaws where their are locked? Yes, A. sir. locked, A. If jaws proba- are that’s bly a seizure. things tighten Because Q. Okay. [DEFENSE]: But the head up you and have tight- muscles here that you until, trauma you didn’t learn when relax, relax, tighten en and and but it went into the autopsy, you when found stay way, indefinitely. shouldn’t that hemorrhage, out there was brain Escalón also testified when he that’s what killed this child. Not the know, questioned appellant, he not did but beatings, and the black and blue marks suspected, he that Mariah had died from a body? all over her fractured skull. Escalón can be seen and A. Again, when she [ESCALON]: was heard on the videotape informing appellant child, telling me what she did to that led autopsy that an be performed on upon my expe- me to believe based [sic] asking Mariah and “if appellant they’re rience the very suspi- head trauma was going to find a skull.” Appellant fractured cious in this case. replied that an autopsy would show that skull, Mariah did not have a fractured
appellant hitting denied Mariah in the doctor, Q. emergency yester- room head. Escalón also testified at trial: day, you that stated couldn’t see that
Q. you’re going Now when there hemorrhage, [STATE]: was brain and that her, through the interview you hemorrhage did the brain something was know the cause of death —the exact that wasn’t noticeable until later on. point? cause of death at that A. signs There’s other of trauma that No, A. I [ESCALON]: sir. did not. bleeding can cause of the brain. inside Q. upon your experience Based of be- It have doesn’t to be visible. Other police a officer or a ranger, signs shaking hitting. and a of — (Villarreal) only guilty that because appellant officer testified she was police
A inju- cell-phone “injury make a to a child” the nonfatal appellant allowed for he transporting was Mariah before upon call to her sister while he ries that she inflicted injuries a for a dental suffered appellant to dental office the fatal that Mariah for appellant that testified responsibility. mold. Villarreal which disclaimed he heard agitated to be and that appeared that The defense also claimed call, “Don’t say during telephone only “injury to a child” for guilty it. So This me. I did blame Robert. failing get medical attention these Robert.” don’t blame thus injuries.4 fatal The defense claimed did cause of Mari- that not presented testimony The defense injuries. fatal The defense also ah’s (Kuri), expert who seemed to medical questioned whether the State’s evidence testify injuries fatal could Mariah’s possibility excluded the these fatal by have been caused a fall down stairs. injuries by falling were caused Mariah testimony, Q. your And [DEFENSE]: down stairs. basically, falling is down Now, opening in the re- [DEFENSE]: just as consis- stairs is consistent with— beginning marks that we made tent with the of this child cause of death here, you the trial after were all seated trying suggest as what the State is you my up told client not for “Mother is beating? my The Year.” I you Of told client Well, body A. we a patient received —a injury She is guilty to a child. injury. It [sic] severe head question she has admitted that. The simple was not caused force. It or not here before is whether by a what was caused serious force. So 17, 2007, February Melissa Lucio inten- type of serious force? But she—the tionally knowingly killed Mariah Al- against mother hit her the wall or some- varez. That’s That’s the the issue. is- I am body saying else? not the mother. sue. Not whether she beat her. Not *7 any person But have that would caused she her arm. whether broke Not her, fell, okay, or trauma. See? that’s lousy whether she’s a mother or didn’t pro- There’s trauma on the head. What not provide for children. That’s an duced it? I don’t know. I don’t think— or not issue. issue is whether head, it is specific. There is no February, killed Mariah on the 17th of that she the hem- doubt died because of orrhage produced by that was the trau- Now, you
ma. if question: ask me the type Which would be the of trauma? This whole around case revolves So, rolling, if she fell from the stairs important. This video. video is real If if that’s how she be died? That could you all, it you have—if cannot remember Hitting against one. the board? Yes. play again. long, long It’s video. by strong Hit force? Too. It could be. sorry is And I’m for that. But this key everything in this case.5 During closing jury the de- arguments, argued jury acquit fense should not
4. The instructed that it could 5. This is the video that claims in capital convict under murder points of error three two and is inaudible. theory example, omission —for failing get caused Mariah's death medical care. Folks, you the State wants to believe argued The State that the evidence and that that’s a Does the inferences from confession. State the evidence appel- video, lant know at the time of abused Mariah show that it was appel- lant who inflicted injuries. caused of death of Mariah? No. Mariah’s fatal [sic] They don’t know the cause of death of What injuries [STATE]: did the child Mariah until day they go have, the next when if Well, not a brain injury? do the autopsy. They learn after the tried to Well, differentiate you between: autopsy that Mariah died from brain know may what? I have caused 110 hemorrhage. Blunt force trauma to the bruises. I may have caused two or head. That’s when they first know three bites on the body. may I about it. twisted the arm you and broken it. But know what? I never hit her on the She confessed to what? She confessed head. Is that reasonable? Is that rea- bruising that child from head to foot. sonable? That child was slapped, ac- neglect. She confessed to She didn’t cording to Dr. Farley, that child was hit confess to murder. across the head and that’s what caused * * * the brain hemorrhage. It wasn’t. Be- But I go want back to the video cause the evidence was inconsistent be- says because the video a lot. The video cause of the abuse that this child had very important. Study is that video be- taken. cause that’s where the all key [sic] * * * is things. [sic]. Melissa Lucio said She But the bottom line is she committed the didn’t attorney. Nobody have an is acts which led to the cause of [Mariah’s] there to coach her and tell her what to death. This kidneys, child had bruised say say or how to it. She’s there on her spinal bruised cord and lungs. bruised Salinas, Cruz, Banda, own. She has got mean, How do do that? what Villarreal, and Escalón. Five law en- force does it take somebody to cause forcement throwing questions officers such devastating injuries to a child and her. She’s there on her Nobody own. say: then You know what? I never helping her. touched her across the head. That’s And she has told this fell down the stairs. What evidence rhage? Fell down the stairs. She fell pen? They kill her. this child. I us down the stairs. Melissa Lucio So how did does the State have to prove *8 much: I nobody is not possible, I didn’t hit her in the head. don’t have beat this child. I neglected is listening. she hurt get everything my that the brain hemor- child, anything. it didn’t hap- She is but I didn’t she knows says you telling that just totally totally unbelievable. with You can draw inferences from the evi- may have been a fall. inference is clear that she caused those this child. If this child had tent with her injuries because it’s consistent. might have said: You know what? It sistent with her behavior. dence, ladies a head — injury pattern and [*] gentleman. and [*] n of conduct towards nothing just It’s consis- else, And the It’s con- come
The State presented evidence at the doubt, And there’s a punishment phase reasonable and that appellant pri- has a possibility is the of falling down the driving-while-intoxicated conviction. stairs. The presented State also evidence that Merrillet on from disciplinary several from cross-examination committed
appellant fight- as county jail such violations which a could conclude there disagreements having with and verbal probability would be a low statistical a inmates, of possession contra- with other danger- be life-sentenced band, with unauthorized communication prison. ous in being disrespectful person, another and testimony also presented The State a The defense characterized these guard. Estrada, who a Protective was Child pre- minor. The State also incidents as (CPS) Testifying worker. Services case criminal testimony of a investi- sented grant immunity under a transactional Merrillet) (A.P. for the State Tex- gator “[tjhere about [CPS] because was talk be- Office, Special as Prosecution who testified death, as a Mariah’s ing indicted” result of a opportunities about life-sen- Estrada testified that removed Mari- CPS appellant would have to commit tenced living all ah and other children with prison. acts of Merril- criminal violence physi- from home for appellant’s prosecuted testified had let also that he neglect negligent supervision cal and many prison guards having consensual 6, September Mariah was after born on female and nonconsensual sex with in- 2004, placed The care.6 testimony Ap- mates. defense elicited and them in foster statement, old) years her was with recorded told observed a bite mark shoulder, police quarters that CPS removed the children the size of two on his left on (De September specialist multiple multiple face and 2004. A CPS La scratches on his Garza) (State’s legs. executed bites on an affidavit exhibit insect his arms and Adriana 41) 22, 2004, (2 old) describing September years on observed with one-inch was top conditions in home at this time. linear scab on the of her head and arms, back, part, multiple This affidavit recites in insect bites on her and body legs. very dirty, Her was dried September On I made a second (1 genital year feces on her areas. Sara home visit at the to address residence old) was observed to have a half-inch cold allegations report. on At the second lip multiple sore on bottom of her time, the home was found to be unsafe for arms, legs, body. on insect bites her crawling the children. Ants were seen an open She also had circular mark on the the floor mattress where the newborn right leg appeared side of her to be Mariah, baby, sleeping. There was was pus. infected with Sara was observed be cover, fan in the had no window that wearing diaper. neither underwear nor a leaving exposed. the blades Inside the re- body very dirty Her with dried feces on frigerator, only there head rotten genital areas. Mariah was observed to lettuce, eggs plastic a carton of and a con- every have tremors in a while. once She mayonnaise. refrigerator tainer of light was also observed to have a small spoiled pantry had an odor of food. The green right bruise on foot. No other corn, contained one small can of a box of visible marks were seen. All of the children salt, sauce, a of infant small box mixed appeared if they had not been bathed. cereal, empty condiment containers. appeared dirty. Their hair matted and to be through- strong There was a urine odor of appeared dirty Their bodies to be and all of out the house. *9 strong body children had odor. 21, 2004, September On I made contact Robert, Gabriel, Adrianna, with Sara and 2004, 21, September Mariah Alvarez at their residence. Robert On I made contact (4 old) years drug was with a dime observed size with Melissa A test was ad- Lucio. stomach, on his braise an old scratch on ministered at time. Ms. Lucio his this tested cocaine, longs positive deny stomach that was about 3 inches for but continued [sic] Lucio, legs. using drugs. According and insect bites on his arms and He to Ms. Alvarez, staples going get was also observed to have 2 husband his Roberto head, reportedly injury groceries day. from an he some sus- time that She stated (3 falling family goes tained from the bed. Gabriel that sometimes to eat off
887 pellant visited Mariah while she was in through Estrada, its cross-examination of care. returned foster CPS Mariah and that CPS should not have returned the other eight appellant’s children home on parent children “to a positive who tested 21, November told the drugs for negative times and drugs for statement, during her police, recorded that 11 times.”8 was not close to Mariah she because CPS Estrada also testified that appellant Mariah removed from her home three negative tested drug two tests that weeks after she was born. were offered between November 2006 and Estrada also about the testified various 17, February 2007. In her recorded state- contacts that CPS had with be- ment, appellant police told the that she 1995, 21, tween December and Mariah’s had not used drugs February since February death on 2007. Estrada tes- but that recently Alvarez had begun using that investigated tified CPS various crack cocaine. The police found parapher- allegations, usually involving allegations of nalia for smoking crack cocaine in a search neglect neglectful supervision, appellant’s apartment after Mariah’s 1996, 1998, 2000, 2001, 2002, 2003, and Farley death. that testified Mariah had 2004. Estrada testified that appellant of- cocaine in her blood at the time of her positive ten tested for cocaine and that two death. Other presented evidence was positive newborns tested for $5,000 appellant received about per month during period cocaine this of time.7 Estra- in welfare benefits most of which [appellant] da testified “since '04 the State had positives about or 18 claimed and about 11 used to co- negatives.” suggested, defense caine habit.9 gets Loaves and Fishes because she tired they that CPS "failed to do what were cooking. having Ms. Lucio admitted to supposed During closing punish- to do.” its previous history involving drug CPS use ment-phase jury arguments, the defense stat- participated and stated that she services going "complain ed that it was not about through Department. Ms. Lucio indi- Child Protective Services” because "that’s not any cated that family she did not have ... excuse for Melissa Lucio’s actions.” members who could take care of her chil- dren. She stated that the father to her during 9.The State commented on this its Houston, Texas, older children resided in closing jury arguments: willing respon- and that he would be to take guaranteed You know what the children sibility for them. Ms. stated Lucio Alvarez, stamp money you them? The food can youngest Roberto father to her 7 drugs, children, convert to and the AFDC check that worked late and could not make you dmgs. can convert to what the contact with That’s this worker. Mr. Alvarez has represented children to them. not made contact with worker at Because this they feeding provide time. sure as heck weren’t them. Ms. Lucio was not able to placement They caring They this worker with viable weren't for them. wer- taking her children. en’t them to the doctor. why you So want 13 children testimony 7. The seemed to conflict on wheth- you? gives Because the State of Texas positive er Mariah tested for cocaine when money. And because—and that's was born. Estrada testified that evident the fact that were evicted positive tested for cocaine when Mariah was investigation pay under the for failure to born, but that Mariah not tested. One their pigpen rent. That the house was a however, appellant’s mitigation experts, testi- according reports. Why? to some of the If positive fied that Mariah tested for cocaine $2,500 month, you’re getting 24 or when she was bom. *10 they’re working, why do not have the Appellant buy groceries? testimony resources to also elicited from one It's bad for (Villanueva) mitigation experts suggest- of her cocaine. reported that I my in observations testimony of and the presented (Villanueva and earlier. experts mitigation
two testified, Pinkerman). experts These her, what diagnosis assigning In statements primarily based presentation had a is that she identified case had charges in this after the to them depression with major consistent filed, depressed was been in re- which was substance abuse prior and woman was a battered and that she importantly most maybe But mission. a child. For sexually abused as had been in how stress disorder post traumatic testi- and Pinkerman example, Villanueva she, orga- was psychologically I guess, fied, major the three And those are nized. there Was she—is Q. [DEFENSE]: her. I saw with of concern that areas abused she was ever indication also, acknowledged it I also She was young child? as a prior the victim report, in a different Yes, was. A. [VILLANUEVA]: as an abuse both physical and sexual her sexually by abused one of She a child. adult and as lover, lovers, and it a live-in mother’s also testified that Villanueva years, two the for approximately lasted at all as a history aggression “has no he in the home. duration that was child, entire through or her adolescent n ‡* part of her history, good which was a CPS any kind of Is there Q. [DEFENSE]: there life.” Pinkerman testified adult marriage? first abuse her appellant is risk probability is a low Yes. Her first A. [VILLANUEVA]: setting.” “in prison to reoffend husband, mar- only legal which was what did Q. And [DEFENSE]: Lucio, an alcoholic. Mr. he was riage, conclusion, [sic]. use to reach verbally emotionally and And he was presentation Her A. [PINKERMAN]: physically most of the time abusive interview, history that I had in the being But when he was drunk. abusive me, description of the histo- before alcoholic, active. quite that was testings like I’d ry, psychological very rela- manipulative There was also a my psychologi- formal done with her Syl- with her sister-in-law tionship there evaluation, large body and then the cal via, She introduced her to cocaine. who psychological of literature both years old. Department in the State literature and * * * that talks about literature Corrections your findings And Q. [DEFENSE]: for offenders levels of risk different this case? Because prison population. within a part A. [PINKERMAN]: risks, I’m not looking when I’m at the test, intelligence with the assessment considering getting parameters personality of a part the other is more any issue of present circumstances my general diagnostic test to determine often community. That is risk to my general diagnostic And impressions. my assessment. part not a that she was impressions of her were sir, then, is what? Q. your opinion And and de- overutilizing repression a lot of where, there’s—okay. try I’ll A. Her repression point nial. And risk — your question. There’s thoughts between answer again, a disconnect a risk to reof- low that she’s feelings. probability feelings experiences fend— her test behavior And I saw that both
Q. Okay. The nature of this crime speaks for it- self. She was beaten to prison setting. A. —in a death. This is acts, over, not one time. Deliberate During closing jury arguments, its initial over, poor on this girl. little This is a emphasized the State the “horrific” cir- crime of hatred. A crime of violence. offense, appellant’s cumstances of this Not one time. Not an accident. Mariah, “history” against of violence The manner of death of which this little county jail misbehavior in the girl died is also tragic. It’s also horrific. “[tjhis arguing going isn’t end going with Mariah. This is to continue.” many you There’s of on this argued The defense at the [STATE]: work the medical field and can under- beginning of this trial that Mariah died suffering stand the that she endured of injury to the child. She was beaten. from her little swelling. brain Dr. Far- Now, expert you the first told that the ley you told that brain swelling inside history defendant —there is no of ag- head, went into spinal cavity, gression obviously wrong. at all. She’s she would have suffered. She would you. That’s not what the defense told breathing. trouble She would have That’s not what the [police] video shows. seizures just lay there. She let her And she demonstrates that video how lay there and suffer. girl she hit that little time and time again. history very painful There A aggression. is of cruel death. That is proof Mariah’s death is of that. case, What what is so horrific about this you can conclude expert’s from the first girl this little laid there in that bed when testimony? simply wrong. She is She she simply could have help, called for got it wrong. doctor, taken her to the something done expert you: history The next tells No to protect girl. this little The manner of Again, violence. remember what [appel- death in this is case so horrific because lawyer] you? lant’s told guilty She’s she suffered for long, baby so this little injury guilty beating to a child. She’s girl. It simply torture and cruel. Well, girl. obviously that little this ex- * * * pert got wrong, it too. you jail And want to look at her record
* * * jail speaks you because this record you What can conclude? Look at Mari- type person about the that she is. ah. photographs. You’ve seen the No inAnd the short time that she’s been in history Really? of violence? Are we altercations, jail she has physical had talking person, about the same the same altercations, verbal been in possession of They defendant? got wrong. contraband, unauthorized communica- I want you to talk to about Mariah and tion, riot, inciting a and confrontational the nature of against this crime her. towards the staff. What that tell does photographs. Because we’ve all seen the type person about the she Vargas We heard from Dr. who told us only jail. now? And that’s here in our it’s the worst he’s ever seen in his 30 Imagine going what she’s to be like years. Farley Dr. told us the thing. same gets when she to Huntsville or wherever Worst case of child abuse ever in our records, up. community. Look at ends Look at these girl. this little defenseless, Look at her. She because speak inno- records [sic] cent. Her daughter. themselves. *12 in in one of the got punches that bites a blocked dog is like a
This defendant bites, one, girl The hit her. dog fights. Once that other person. human always not a scintilla of evi- always have—there will Please. There’s they will again. dangerousness, much that it will bite dence future probability abe beyond a doubt. defendant. Her less reasonable thing this Same you: going to speaks This isn’t record they bring else do here future What This to end with going here. isn’t end question dangerousness? To answer going This is to continue. Mariah. one, past history, a got number she’s A history. criminal What was that? argued during closing its The defense poll people that DWI. If we this court- arguments the State did not here, today throughout sitting as to room this present “one scintilla of evidence good be a num- courtroom there would dangerousness.” future It gotten of folks who’ve DWI. ber has question first [DEFENSE]: they mean are a future doesn’t that dan- dangerousness. with future What do ger. heard one of evidence have we scintilla per- dangerousness to future of this they you? They didn’t show What
son? you past physical show one act of didn’t Merrillet, or what- guy, We had the Mr. They abuse to Not one. children. was, you his name If ever from Conroe. you past show act where didn’t one she’s statistics, spoke own he never take his charged ever been with a crime involv- specifically. about Melissa Never once any physical anyone harm to else. fact, about he did he talk her. came you, going here and told I’m not up probability continuing there a acts Is her. I know her life. talk about don’t Probably not. of violence? We’ve gives heSo statistics. main person heard from the State’s gave are the he us
What statistics about they bring who down because from dangerousness the future of criminals in statistics, probability. no there’s 12,000 He told are general? us there it heard from Dr. Pinkerman who We Department female inmates the Texas very probability also said there’s little 12,000. as of of Corrections 2007. That’s anything that she ever do of vio- would many there in How assaults were lence. That population? Seventeen. one During closing jury arguments, its final of a percent. one-hundredth emphasized State behavior bring you they What else do here? county jail and her abuse of Mariah you the They bring jail records. This is period over of time of its thing where I with the agree one State. argument already “has Please, jail look at records. Melissa’s a tendency shown to be violent ... to be you them. They bring Look at abusive, injure to be aggressive and in a eight people she was dorm with people.” innocent equipment tattooing found above None ad- lights. girls This wasn’t isolated inci- [STATE]: having mit to been the owner of it. dent where she lost it and she So killed dangerous- is evidence of future child. She this child suffer. Ev- made Oh, fight. ery injured ness? but she was in a Look time she this child she had fight. gotten pleasure at the You all look at them. to have some from it looking saw all at the records. She because she didn’t do one time. She period proba- two, it over a of weeks and In point did of error *13 bly months. claims that she is entitled to a new trial under Appellate Texas Rule of Procedure you a that person Is this want out there 34.6(f)(4) because the “audio of the defen society prisoners? in a of She has al- dant’s statement to the police is inaudible.” violent, ready tendency shown a to be (setting See id. when appellant out is abusive, gentlemen, ladies and to be to entitled to a new trial when a reporter’s aggressive injure be to innocent record is lost or destroyed). Appellant people. likely She’s to go after argues, individuals, the innocent—other innocent people may be within prison The audio of the defendant’s statement system. Because Mr. Merrillet has told to the police is inaudible. ob- Counsel classify by don’t them jected at trial. The reporter said the capital They put murder. can him [sic] audio was inaudible.10 The trial judge burglar, in with a with somebody who’s included the discs the record. Appel-
writing hot checks. She can victimize lant timely requested reporter’s rec- other individuals. ord. moved the of Court Appeals
Criminal to reporter direct the Try marginalize to jail her behavior in to transcribe the audio on the videodiscs now. That’s what we’re being accused of defendant’s police; statement to the of. We’ve looked at the little things to the Court denied the motion.11 The pattern. show a consistent Even now portion inaudible significant, is since it is trial, caught jail, when she’s awaiting the audio of the defendant’s statement. break, whatever rules she can still she’s The audio necessary appeal’s to the still breaking them. resolution; appellant maintains evidence people say, legally factually Her own is both history has going that. She’s not insufficient to sustain change the verdict of stripes. going guilty Is she to do that and that it legally auto- is both matically you spared factually because her? No. insufficient to sustain the “Yes” She’s going changer response query never to the danger- re future ousness, stripes. resulting penalty of death. record, support 10. We do not read the record ap- this State’s failure to do so. On this complained assertion. When the defense pellant preserve any failed to error in the reporter trial that the court was not transcrib- reporter’s appel- court failure to transcribe statement, ing appellant’s recorded the trial lant's recorded statement or to the State's replied reporter court the court provide failure to with a certified defense time, "having making transcrip- a difficult transcription appellant’s recorded state- reporter tion” that the court would "at- 33.1(a). Tex.R.App. ment. See P. copy videotape tach a and write down ” Played.’ 'Video After some discussion about 25, 2009, August 11. On filed a mo- quality, the audio the State indicated that it requesting tion in this Court this Court "to provide the defense with a certified reporter provide direct the court an official transcription appellant’s recorded state- transcription of the defendant’s oral state- ment. The defense seemed satisfied with this played ment recorded on video and before the request and made no trial court order motion, jury.” of this reporter appellant's court to transcribe incomplete claimed that the record is without recorded statement. The record does not re- transcription. This Court denied the mo- provided flect that the State the defense with September tion on transcription a certified record- objected ed statement or that to the There was no warrant. There was no statement agree cannot Counsel Tex.R.App.P.34.6(f).12 probable no There was probable cause. the audio. being about the defendant’s plus cause present “that responds State person would A reasonable escape. anything has in which is not one situation having after free to leave not have felt instead, where lost; this is a situation been station “brought” police been is; record- an audio what the evidence is testimony that was no police. There hear, effort to require some *14 which does ing she rights before understood The State audible.” nevertheless but is the gave statement. 34.6(f) apply does not Rule argues that the state- nothing missing finding court’s is The trial “there here because in unjustified voluntary re- was Record—the same ment was Reporter’s the from Ms. Lucio the evidence that light which the of statement cordings Appellant’s 3, 4, by police to the station “brought” exhibits State’s were introduced as taken before trial, recordings was never police, are the same the and 5 at hours. interrogated for judge, and included and was copied have been which 3, 4, and 5.” Record as exhibits Reporter’s that cer- Appellant’s claim agree. We of the cannot tell from the audio We appellant’s of the audio of portions
tain
the
gave Ms. Lucio
police
that the
video
police
to the
are inau-
statement
recorded
and Tex.Code
Miranda14
required
portions
these
not mean that
dible does
cannot tell be-
warnings. We
Crim.P.
are “lost or
record
reporter’s
the court
not tran-
reporter did
cause the court
34.6(f).
Rule
destroyed”
purposes
he could not
the audio because
scribe
report-
from the
nothing missing
There is
po-
“brought”
A person
hear it.
two is over-
record. Point of error
er’s
police
interroga-
by
lice station
ruled.13
by
police
station
police
ted at the
felt free to leave.
would not have
three, appellant
point
of error
erred to admit
claims that the trial court
illegal arrest
presumptively
aWith
Ap
into evidence.
her recorded statement
warrant, no evidence of
made without a
argues,
pellant
escape,
the defendant
being about
by the
to the station
admitting
being “brought”
The trial court erred
tape
Her
no evidence on
Lucio’s statement.
police,
videodisc of Ms.
much
warnings given,
involuntary. The state’s
any
there were
statement
Miranda and Tex.Code
Lucio was
required
said Ms.
less
own witness
the trial court abused
police.
warnings,
“brought” to the station
Crim.P.
inaudible,
might
we do not find
be
any part
appel-
or there
disputes
The
State
12.
portion
appellant’s
recorded statement is inaudible.
recorded
any
lant's
inaudible
while "the audio volume did
State asserts that
necessary
of this
to the resolution
statement
drop
low in some
off and was somewhat
understanding
context
appeal
of the
or to
statement,
problem was
places of the
appellant and the
exchange
between
by raising
easily remedied
the volume
appellant’s
quality of
re-
police. The audio
listening closely
The State also
to the audio.”
Court to
is sufficient for this
corded statement
through
"[l]istening
to the audio
asserts
fairly
appeal.
resolve this
through
earphones,
speak-
set of
rather than
ers,
helpful.”
was also
Arizona,
86 S.Ct.
384 U.S.
14.Miranda v.
(1966).
these exhibits [State’s com- 5] Proceed. comply because don’t *15 (Video 1 exhibit [State’s continues to 3] the statute. a.m) Play paused and at 10:40 Padilla, [TRIAL Mr. COURT]: 3822 all requires voices on the record- you stop please? it identified, they’re be and not. appears It to me that [appellant] under- There people walking are that are in and rights, stood her and that it was volun- out. People yelling things, talking— are So, tary. unless any evidence they’re and not They identified. are not duress, to show anything or like even shown—some of them. And—ac- that, going I’m to allow played it to be 3822, cording they got to be—it’s to— the jury. got to be in compliance. right. All my [DEFENSE]: Note ex-
ception. though Even I don’t think it’s in compliance with the statute. my But main [TRIAL COURT]: con- record, On this we decide that ap cern recording is whether or not the pellant’s objection that not all voices and of voluntary. itself shows that it’s recording could be pre identified failed to After voluntary, it’s then the other con- any voluntariness, serve lack-of-warning, cern is whether or not the voices can be illegal-arrest or relating claims to the ad identified. Whether are included missibility of her recorded statement. We statement, not, within the copy of the or further clearly note that a listener can So, is a separate going issue. I’m hear on State’s Exhibit 3 appellant being look at the part recording first Miranda n withregard to the voluntariness of it— informed of her rights appel them, stating
lant that she understood appellant signing see a “waiver” of these (Videotape Played with Officer in- rights Cruz police began question before the terviewing the and stopped defendant her.16 Appellant’s subsequent course of a.m.) 10:37 conduct is also consistent with a waiver of 38.22, 3(4) 1, § 15. See TexCode Crim. Proc. art. 16. This is also reflected in State’s Exhibit (providing sign language that no oral or state- appellant, writing, which informs of her ment of an accused made aas result of custo- rights. right She initialed each to acknowl- interrogation against dial shall be admissible edge that she understood it and also waived proceeding the accused in a criminal unless rights. each of those identified”). recording "all voices on the are 894 convict State, allegations, authorized 309 Joseph v. See rights.
these
if,
found
things,
other
it
among
20,
(Tex.Crim.App.2009)
24-26
S.W.3d
“by
Mariah’s death
caused
express
in absence
(stating
Al-
Mariah
shaking,
throwing
striking,
to-
rights, the
Miranda
waiver of
explicit
or foot or
with defendant’s hand
voluntary
varez
may show
tality of circumstances
Jury.”
(Cochran,
to the Grand
object unknown
at 29
other
rights) and
waiver of these
(“Under
circum-
J.,
some
concurring)
the evi
determining whether
In
fully
stances,
been
warned
suspect
if a
has
legally
sufficient
dence
he
has indicated
rights
his
conviction,
court must consider
reviewing
a course of con-
rights,
those
understood
favor
light
most
all of the evidence
‘may’ support
with waiver
duct consistent
whether,
and determine
able to
verdict
suspect
he
has waived
the conclusion
in
reasonable
on that evidence and
based
rights.”).
Miranda
his
therefrom,
fact finder
a rational
ferences
addition,
re-
having thoroughly
after
elements of
the essential
could have found
statement, we
recorded
viewed
a reasonable doubt.
beyond
the crime
the trial court’s
supports
decide that
318-19,
Virginia, 443 U.S.
v.
Jackson
voluntary. Appellant’s
finding that it was
(1979);
Hoo
of capi- a child is not a Injury to offense. acquitting her. 22.04(e) § <& tal offense. Tex.Pen.Code portions out brief sets Appellant’s par- during which ffi. charge conference whether the trial court discussed
ties and
argument
no
brief contains
Appellant’s
injury-to-a-
to an
was entitled
might
authority that
or citation
brief
Appellant’s
jury
child
instruction.
guilty,
that if she is
argument
preserved
the “defense
also asserts that
injury to a child. See
guilty only
is
she
proposed
instruction
by submitting
error
Hall,
(stating that the
897 (internal omitted)); Cardenas quotes ord” note [punishment- Ms. Villanueva’s State, (Tex.Crim. v. (RR 30 S.W.3d 393-94 phase] 37/216-18).22 testimony at App.2000) (deciding in a case capital The defense summarized testimony points, complaining the defendant’s exceptions the bill of at guilt/inno- jury lack of a instruction on (RR 145)23 the voluntari cence. 35 The Court now ness of the defendant’s statements importance should consider the of such police, inadequately “by were briefed ne testimony on the voluntariness of her glecting present argument and authori statement and should order a new trial. them). in support ties” Point of error
eleven is overruled.21 The error was beyond not harmless nine, point
In of error reasonable doubt because the jury need- claims that the trial court abused its dis ed this information to decide if Ms. Lu- cretion “in overruling the tender of Ms. cio’s statement voluntary or not. an expert guilt Villanueva as witness at judge The they told them that were to Appellant argues, innocence.” disregard her statements they unless excluding trial court erred in benefi- were beyond convinced a reasonable cial testimony, defensive Norma Villa- doubt the statements were volun- testimony nueva’s being tary.24 about how Had the had Norma Villar- woman ability battered affects one’s testimony real’s at guilt/innocence, [sic] give give or not a voluntary statement. would have had a reasonable doubt testimony This was not admitted at the about the voluntariness of the state- innocent/guilt ments, stage. The Court will them, would have disregarded 1995) possible 21.We (Tex.Crim.App. note that is that a rational (determining jury could find from the State's evidence that that that fact that a lesser included offense is knowingly did not cause Mariah’s raised the evidence but not included in the only death and intended to cause serious bod jury charge applicable is sufficient to meet the ily injury to Mariah when she struck the fatal harm jury's only options standard "where the death, blows that caused Mariah’s which ar greater are to convict for the offense or ac guably ap would raise the issue whether quit”). pellant guilty only of some lesser-included State, Mays offense. See v. 318 S.W.3d summary, portion this cited of Villa- (Tex.Crim.App.2010) (noting any if punishment-phase testimony nueva's was that evidence, regardless strength of its or credi police "blank stare ... at the sta- bility, raises the issue that the defendant is symptom tion” is "a classic of individuals that offense, guilty only of the lesser then the might explain why appel- are abused” which believe, however, charge given). must be We hovering” lant "was not over Mariah when respon would have had to take EMS arrived. sibility injuries the fatal that caused Mari- death in ah’s order for there to be realis *19 portion guilt-phase 23. This cited record jury tic chance that the would have convicted proffered testimony contains no of Villanueva any her of lesser-included offense. And with at all. appellant having responsibility disclaimed injuries, these we do not believe that a ration any portions does not cite to jury any al would have convicted her of less provided the Williams, record where the trial court er-included offense. See jury. such an to the instruction We further (deciding S.W.3d at 681 that defendant’s testi jury charge murder, note that the did contain not a mony capital that she did not commit voluntariness instruction or other instruc- jurors, sup if believed the would have relating appellant’s ported only acquittal, tion to recorded state- an not a conviction for the injury lesser-included offense of to a ment. We also note that did not child). State, request But v. see Saunders 913 S.W.2d a voluntariness instruction. on the case COURT]: with [TRIAL have been left not would —and chief, a hard time under- having I am rationally guilt to find enough evidence get can that in. standing how doubt. beyond a reasonable Well, we have heard also [DEFENSE]: testimony Ranger, ad- the Texas testimony been from Villanueva’s Had Ms. phase of and could tell guilt the innocence walk into a room mitted at he could trial, it to my could have used client want- jury by “body language” woman vol- the battered Norma whether And decide make a statement. ed to the sta- untarily gave the statement talking about going to be Villanueva is judge excluded police. tion to her during Melissa body language of excep- made a bill it. Trial counsel to be going She’s also video statement. testimony The essence of tions. to happened the—what’s talking about woman and was a battered that Melissa Pro- the authorities Child her and what- police tell the have and did that has a and how tective Services they say. her to ever wanted Lucio. bearing on Melissa And I understand We, therefore, COURT]: to understand [TRIAL in terms regard punishment to erroneously ex that with that the trial court claim litigation, I am testimony at that are proposed of factors cluded Villanueva’s how it understanding time being having a a hard phase appellant’s guilt guilt vol the case in chief as to ability affects battered woman affected police, innocence. untarily a statement give jury could have used deter which goes to whether Judge, [DEFENSE]: mining statement type personality she or not she—what involuntary a matter of state police was as Is aggressive person? an has. Is she State, 259 v. S.W.3d law. See Oursbourn Whether nonaggressive person? she (discuss (Tex.Crim.App.2008) 169-76 that she things or not she admits claims under state ing that involuntariness says or did do? Whether didn’t do be, be, predicated law “can but need not men, another to wom- thing to one involve overreaching, could police to be going what she is en? This is into the state of ‘sweeping inquiries testifying to. who has con mind of a criminal defendant ” which, proper with a “vol- fessed’ armed go How does COURT]: [TRIAL instruction, is entitled untariness” body language? consider). that Villa- The record reflects she has seen the Judge, [DEFENSE]: “a a clinical social worker with nueva is video. “the degree master’s in social work” and I understand. COURT]: [TRIAL clinical license to allow highest national reviewed the And she has [DEFENSE]: diagnosis and treatment to do [her] records, with that— mental health disorders.” of edu- What kind COURT]: [TRIAL admissibility of hearing on the During have to training does she cation and/or testimo- proposed guilt-phase Villanueva’s that? interpret ny, appellant proffered Villanueva as *20 amount— same [DEFENSE]: fact, “why, [appellant] in expert explain to a Hold on. Just COURT]: infor- [TRIAL officer’s given police [sic] would have sorry. regards to the minute. I’m With mation in that statement [recorded] there I don’t think mitigation, factors of was not correct.” any question body that Mrs. Villanueva is with language, you if do solely overly qualified testify to as to that. the basis-for example, if all I had done regards guilt With to the issue of or watch that videotape testimony, innocence, having try- I am a hard time me, statement, or excuse then I figure that out. So I welcome shouldn’t be sitting up here. consideration because I do not see how you But interview the person. You look going Mrs. Villanueva is to talk about background. at their You look at their mean, things personal unless she has —I interactions with other figures of author- knowledge something regards ity. put You pool whole of informa- facts, how is she— tion together you because cannot know a * * * person DVD, based on watching one Mrs. Villanueva is here [DEFENSE]: investigator by as an having them with fact, testify why, as to in she would you instance, in that one which is an given police officer’s informa- [sic] instance of duress. You have to look at tion in that statement was not cor- them span. across life rect, and she’s going to base that testi- expanded Villanueva proposed on her mony on the information that she has guilt-phase testimony upon further ques- seen from social— tioning by the defense. Villanueva also testified at the admissi- Q. if you [DEFENSE]: And are al- 103(b) bility hearing. See Tex.R. Evid. testify case, lowed to particular (providing proof for an offer of “in ques- going are to testify as to what? form”). tion and testifying answer After going A. I was to testify about three training to her “that helps dealing [her] separate issues. The first issue was (cid:127)with people trying and what are patterns about of behavior with Mrs. convey” by body their language, Villanueva Lucio which strongly influenced her be- testified on direct examination the de- during havior that videotaped statement patterns fense that of [appel- “[s]everal process with the investigators emerged” behavior have lant’s] based on night. “espe- examination CPS documents cially from '04 to the present.” Q. That video statement that inis evi- dence in this case?
The State’s cross-examination of Villa- nueva appar- established that Villanueva A. That is correct. ently to provide guilt-phase intended some I going testify was also that the pat- testimony appellant’s body about language terns of behavior as seen in the Child during her recorded statement. records, Protective patterns Services
Q. you’re testifying [STATE]: And as family, in her how that influenced her expert, you as mental health can sit making decision and how she felt with there and look at person just by investigators, different male and fe- body demeanor in the face or their de- male, and also how she makes her life meanor, person telling you is either decisions. It influenced her behavior truth, telling you or not the truth? that —how she felt with the different Oh, no, sir, A. investigators male [VILLANUEVA]: and female and how is, say that. saying, didn’t What I’m in answering made decisions that it questions has to be a combination of fac- during process. And you’re tors. When judging somebody’s lastly, looking history, at her how— CPS behaviors, especially when it history, has to do and also her social how she
900 witness was clear whether the It is not people levels different
deals with truthfulness of testify about the going to how that influenced authority, and also proposed by police to the as her statement body how lan- body language, and counsel, to going she was trial whether if ways in different interpreted guage is being a bat- testify about the effects history of behavi- not have her you do tell the ability and her tered woman or her of behavior patterns ours or [sic] say, her to as they whatever wanted police history. social counsel, or whether by appellate claimed proposed guilt- excluding Villanueva’s testify body about lan- going trial court “did not testimony, the phase actually as patterns of behavior guage on wheth- expert to be an find [Villanueva] admissibility witness in the by stated was true [appellant’s] or not statement er Therefore, claim on appellant’s hearing. factored, true, or or not manufactured — testimony to what Villanueva’s appeal as by ques- responded whatever.” comport does not would have been expertise Escalon’s tioning Ranger Texas testimony at trial. proffered Villanueva’s his observations of when he testified about State, v. S.W.3d See Dixon during her re- body language appellant’s that, (noting pre- (Tex.Crim.App.1998) corded statement. review, point appellate error for serve with the appeal comport error on must Judge, brings the State [DEFENSE]: trial). record, we objection at On this Well, says: and he Ranger
in a Texas preserve decide that failed And, body tells me this. body language appeal. that she raises on claim expertise me that. language tells What guilt- also believe that Villanueva’s We have, any? if did he testimony actually prof that was phase him He could have asked [STATE]: little, any, jury’s to a fered had if relevance there on the Your Honor. He was under state voluntariness determination subject to cross witness stand and was Oursbourn, at 172-73 law. See 259 S.W.3d examination. (“Under and 38.22 and their Articles 38.21 can raise fact scenarios that predecessors, (even claim of involuntariness a state-law you asking are What [TRIAL COURT]: raise a federal constitu though do not give person evidence from a to do is to (1) claim) following: tional include the expert holding themselves out as was ill and on medication and suspect why that statement is or is not true or in may fact have rendered his confession think, produced. Again, what was (2) mentally voluntary; suspect Villanueva, imminently qualified Mrs. may ‘knowingly, retarded and not But, mitigation. on the issue of waived his intelligently voluntarily’ know, I am familiar with clinical social (3) ‘lacked the mental rights; suspect workers. (4) the capacity rights’; to understand his very intoxicated, It is not clear from the record and he ‘did not suspect was testi- exactly guilt-phase thought what Villanueva’s signing know what he was been, (5) mony suspect before the would have report’; was an accident rele- testimony how that would have been the brother-in-law of his was confronted (6) beaten; suspect vant to the victim and voluntariness murder upon he broke into police, recorded statement or was returned to the store armed questioning by persons ‘for several theory admissibility what trial counsel omitted). six-shooters.’”) (footnotes ‘with appellate counsel relies. *22 We, therefore, cannot conclude that the it. blame for She takes the blame for trial court abused its discretion to exclude everything goes that on in the house. proposed guilt-phase Villanueva’s testimo- We believe that the record reflects that ny purposes. for “voluntariness” not, Pinkerman was claims on appeal, offering any guilt-phase any testimony
We further decide that error evidence, which, best, “since she was an excluding this abused woman [appellant] would may marginally agree anything have been relevant to the with appellant’s policeman say.” issue of the voluntariness of would Dr. Pinkerman ac- statement, tually recorded was harmless. See testified that he intended provide to 44.2(b) Tex.R.App. (providing ap P. that following guilt-phase testimony: pellate courts disregard must non-constitu Q. your And testimony [DEFENSE]: errors that tional do not affect substantial during guilt and stage innocence rights). Point of error nine is overruled.25 would be what? you going What were to testifying be to in the guilt or inno- ten, point of error stage? cence that the trial claims court “erred exclud A. On the basis of testimony, [PINKERMAN]: beneficial defensive Dr. my information, review of testimony consultation Pinkerman’s that since she was with experts, additional and the agree abused woman she would evalua- tion that I have done anything a with the defendant policeman say.” would Lucio, Mrs. I was going testify record reflects that the trial court would about Pinkerman, permit not Dr. who is a clinical makeup characteristics and of her psychologist, testify psychological at the guilt phase. functioning. I was also Appellant represented going demeanor, to the trial court to address how her provide that Pinkerman would the follow immediately both after the incident and ing guilt-phase testimony: during interrogation, may be under- by understanding appreciating stood Part testimony
[DEFENSE]:
of his
psychological
functioning.
signs
that Mrs. Lucio has all
of
demeanor,
going
also
to address how her
being a battered woman.
And as bat-
woman,
immediately
both
after the incident
every-
tered
she takes blame for
during
interrogation, may
be under-
thing
goes
family.
that
on in the
And if
dealing
by
with a
stood
figure
understanding
appreciating
male
such as a
any-
husband she doesn’t find fault with
psychological
previous
elements and
does,
thing
history
that a husband
she takes the
background
that she has
appears
appel
25. We
appellant's body language
greatly
further note that it
about
may
lant
have intended to use Villanueva’s
diminished and rendered harmless the exclu
testimony
respond
testimony
any testimony
by
to Escalon’s
sion of
Villanueva to re
appellant’s body language during
spond
her re
to this evidence. And to the extent that
may
corded statement indicated
him that
testify
Villanueva
have intended to
“hiding
appellant may
telling
"did it” and that she was
the truth.”
have been
the truth
Mariah,
appears
may
initially
It
abusing
Villanueva
have intended
when she
denied
this
testify
appellant's body language
testimony
did
would not
been admissible for
State,
purpose.
not so indicate. The exclusion
such
See Yount v.
872 S.W.2d
1993) ([D]irect
testimony
purpose
(Tex.Crim.App.
for this
would have been
708-09
light
appellant's subsequent
testimony
credibility
harmless in
as to a witnesses’
is inad
during
admission
her recorded statement that
missible under
702 because it
[Tex.R.
Evid.]
Mariah,
subject upon
she abused
followed
demon
does not concern a
which the
strating
light
testimony
expert
such abuse with the doll. In
of an
the trier
assist
this,
fact”).
any importance
testimony
of Escalón's
*23
Berry
to ad-
this
decision
through.
going
also
issue under
Court’s
lived
was
State,
might
(Tex.Crim.App.2
difficult
233
the notion of how
v.
S.W.3d 847
dress
007).27
into some of
step
Berry,
for her to
In
have been
the evidence showed
treatment,
mini-
though it was
the
even
her
that the defendant murdered
new-born
high-
are the
mally offered. And those
by
him and that
the
suffocating
infant
lights.26
attempted
murder another
defendant
to
infant
later
aban
years
new-born
five
Therefore,
appeal
claim on
appellant’s
doning her in a
location where it
remote
testimony would have
to what Pinkerman’s
unlikely that
have been
was
she would
comport
does not
with Pinkerman’s
been
alive.
Id. at 863-64. This Court
found
Dixon,
testimony
2
at trial. See
proffered
legally
that the
in
decided
evidence was
comport
at 265.
does it
with
S.W.3d
Nor
support
jury’s
to
the
affirmative
sufficient
he
attorney
the trial
claimed that was
what
future-dangerousness
spe
record,
answer
it for. On
we decide
offering
this
because a
not rational
jury
cial issue
could
the claim
appellant
preserve
failed to
ly
dangerous
that the
find
defendant
appeal.
that she raises on
anyone other
own new-born
to
than her
prof
also believe that Pinkerman’s
We
children,
defendant,
the
which
if assessed
little,
guilt-phase testimony had
if
fered
sentence,
parole-eligible
a
life
would not
to
any,
jury’s
relevance
a
voluntariness
years
during
child-bearing
law.
determination
under
state
See
and which
not bear
prison
she would
Oursbourn,
We,
259
at 172-73.
S.W.3d
to if she
give birth
was ever released from
therefore, cannot conclude that
the trial
prison
parole
her child-bearing
after
court abused its
to exclude
discretion
this
years.
Id. at 863-64.28
testimony
purposes.
for “voluntariness”
further decide
error in
We
ex
evi-
Appellant appears
argue
to
that the
evidence,
may
cluding this
which at best
legally
Bemj
is
under
dence
insufficient
marginally
have been
relevant to the issue
support
jury’s
affirmative answer to
voluntariness of
recorded
future-dangerousness
be-
special
issue
statement, was harmless.
See Rule
cause this evidence
that she is dan-
shows
44.2(b). Point of error ten is overruled.
children,
gerous only to her own
which
four,
would
to if
point
In
of error
not have access
that the
legally
parole
claims
evidence is
insuffi was sentenced
life without
jury’s
spent
prison.
cient to
affirmative an
the rest of
life in
We
special
to the future-dangerousness
argue
swer
understand
that Berry
argues,
probability
26. The State
defendant would commit
criminal acts
violence that would constitute
proof
gen-
The offer of
herein is broad
continuing
society.”
threat
Tex.Code
subjects
eral and refers
such as "the
37.071, 2(b)(1).
§
Crim. Proc. art.
[Appellant's]
makeup
characteristics and
psychological functioning,”
Appellant’s
applicable
provided
Berry
28.The
law
categories
"demeanor.” These broad
fail
capital
life-sentenced
defendant’s minimum
rele-
to demonstrate how this evidence is
2005,
parole eligibility
years.
40
Appellant's
guilt/innocence;
vant to
case
Legislature
pro-
Article 37.071 to
amended
categories
beyond
do
but
these
not
capital
vide that a life-sentenced
defendant
give this Court
to de-
sufficient information
See,
longer
eligible
parole.
no
would
be
termine how
exclusion of this evidence
37.071,
2(g);
§
e.g., Tex.Code Crim.
art.
Proc.
have been
harmful.
R.S.,
Leg.,
ch.
see also Acts
79th
7, 8, 9,
(SB 60),
future-dangerousness
page
September
§§
special
27.
issue
eff.
asks
to determine "whether there is a
Further,
life-without-parole
the 2005
legislative
Berry
distinguishable
from
In Berry,
case.
the defendant was
amendments to Article 37.071
be
should
charged
having
asphyxiated her new-
support construing
statutory
read to
baby,
born
who was between two and five
future-dangerousness special issue to ask a
old,
days
and there were
allegations
no
jury to
capital
determine whether a
defen-
*24
that the defendant had terrorized the vic-
dant
to life
parole
sentenced
without
would
tim over an extended amount of time. We
dangerous only
prison society.
be
in
held that the defendant was dangerous to
rejected
reading
We have
such a
some,
of Ber
only
all,
but not
of her own newborn
children,
ry
being
which she
prior
likely
inconsistent with
case
would not
during her child-bearing years in prison,
construing
law
the statutory future-dan
jury
so the
rationally
could not
find that
gerousness special
jury
issue to ask a
to
the defendant
danger.
future
In
determine whether a capital defendant
contrast to Berry, the evidence in this case
dangerous
would be
in
“whether
or out of
supports
finding
that appellant is dan-
prison”
regard
without
long
to how
this
gerous to a broader
range
potential
actually spend
defendant would
in
if
prison
victims both inside and
prison.
outside of
State,
sentenced to life. Martinez v.
327
The evidence demonstrates that the abuse
727,
S.W.3d
735 (Tex.Crim.App.2010); Es
against
the victim was not a one-time
State,
274,
v.
trada
313
280-82
S.W.3d
event; rather, over the
course
several
—
denied,
(Tex.Crim.App.2010),cert.
U.S.
months,
weeks or
the victim suffered from
-,
905,
131 S.Ct.
because the relief incarcerated in the those cases was while she was coun- trial, ty charge. opposed acquittal. jail capital-murder to an new on this therapeutic who provided the CPS and county jail appellant services to Melissa’s “defense” was that she was February May or June
between 2008 and sexually physically verbally apparently Appellant’s counsel age abused from 14. Beto Juarez said during any counseling not of these present him jury told she was not. The sessions. knew a “No” answer mitiga- [to Villanueva and Pinkerman testified on special tion meant death because issue] direct examination the defense at the the judge They told them so. answered punishment phase had been “No”. Admitting might Juarez’ evidence physically sexually abused from the prejudiced jury’s have consideration age Referring of fourteen. to Juarez’s Indeed, of the other surely evidence. notes, impeached testimony the State their did, directly since Juarez’ evidence con- by pointing cross-examination out that tradicted Melissa’s evidence on sexual appellant made no such claim of abuse and other abuse and the answered during counseling sessions with Jua- mercy “No” on the question.
rez. portions We set out the of the record We understand to claim that points relevant to these of error. The counsel present during should been punishment-phase record reflects the fol- counseling Juarez’s sessions lowing during the State’s cross-examina- and that the State’s use of information tion Villanueva. counseling impeach from these sessions to Exhibit 44 are [STATE]: [State’s] ther- punishment-phase testimony of Villa- apy prepared notes in this case nueva and Pinkerman violated provided part— counsel, Sixth Amendment right Sixth right Amendment to be confronted therapy pre-
this information undermined her claim at I’m it. going dant. offer punishment phase that she had been physically sexually abused. objec- [TRIAL What’s the COURT]: argues appeal, tion? Had counsel been at the “coun- present hearsay. It’s all part It’s [DEFENSE]: sessions, seling” he could have told Ms. Bring of the record. What do I do? in say Lucio to nothing. protect To got the entire set of records that I’ve
rights to a fair trial on the issue of Services, from Child Protective and then dangerousness, future he have could told go the Court didn’t allow the book to in. n * n say anything prior her not to about sex- physical ual and and verbal abuse or not going I’m to sustain [TRIAL COURT]: to be embarrassed to it. admit Since objection hearsay. to the motion on significant part this abuse was a of her court, absence, “defense” in again appel- counsel’s The trial court sustained gathering knowledge hearsay objection and Juarez’ lant’s admission Lucio, from Ms. affected Ms. Lucio’s State’s Exhibit when the State offered right during to fair trial and to the assistance this exhibit later on its cross-exami- of counsel. nation of Villanueva. notes? any of the Well, Q. you in Did review you recall do
Q. [STATE]: in back the summaries your review of No, sir. A. Mrs. Lucio de- year that March of this Mr. anything with Q. you discuss Did sexually abused as a being nied ever Juarez? child? No. A. not in That was A. [VILLANUEVA]: you learn that surprise it Q. Would summaries. February year— of this Juarez and you had called Mr. Q. So if Your Honor. Objection, [DEFENSE]: would that him about asked about asking And I want them be case? opinion in this changed your is not somebody else notes from deep- made me delve A. It would have in court appearing [sic]. even here er. objection as your Is [TRIAL COURT]: you Q. Okay. And saw— on a that document to the admission of I offer the re- At this time [STATE]: hearsay basis? Honor. port, Your Yes, sir. [DEFENSE]: to ob- Again, going I’m [DEFENSE]: (Court Sustained. COURT]: [TRIAL isn’t here.
ject. Judge, Mr. Juarez Monitor) “However, it sur- Reads dates. There’s a number of different proper to learn that.” That’s prise you legal ob- What’s COURT]: [TRIAL cross-examination. jection? surprise you Q. Would [STATE]: hearsay. It’s [DEFENSE]: in her February of 2008 know that Sustained. [TRIAL COURT]: him, physical no history to she claimed Juarez is told Q. So if Mr. or sexual abuse? [STATE]: that she had not been by Mrs. Lucio No, A. it wouldn’t. child, how would sexually as a abused Q. Why is that? your changed opinion? that have my previous A. As I said some deep- have made me delve A. It would statements, history being she has a er. She ob- very suspicious distrustful. telling me is that Q. So what are viously opportunities hasn’t had the evi- your is based on insufficient opinion trusting relation- develop that kind of a dence; isn’t that correct? maybe and with ship agency with the A. That’s incorrect. him. * * * record reflects punishment-phase *29 following during the State’s cross-ex- that it would be Q. You don’t think
amination of Pinkerman. story her once she changing defendant that it is to her benefit figures out Doctor,
Q. are aware of [STATE]: physical claim and sexual abuse? with a Jesus Jua- meeting the defendant rez? I’m think what? sorry. A. I’m don’t losing it. trying not to be—I’m A. I don’t recall the [PINKERMAN]: —I’m name. in-
Q. therapist Or the while she was it a Q. asking: I’m Is question carcerated? say one ver- possibility that she would change the version or- with sion and then A. I heard that she had contacts trial? help der to herself this someone. Yes, A. sir. error twelve Appellant and thirteen. ar- gues, This record reflects that Juarez’s notes appel-
were not admitted into evidence as Ms. Lucio’s “defense” to danger- future in point lant seems to claim of error ousness was that she had been sexually twelve.34 This record also reflects that abused physically abused since the appellant objected only to the admission of age notes, of fourteen. Beto Juarez’ used (State’s 44). Juarez’s notes Exhibit She witnesses, to cross-examine defense said objection using made no to the State this that Ms. Lucio denied such abuse. Had impeach information to Villanueva and the defense had the material in advance Pinkerman. To the extent that trial, prepared could have for this may objected to the using State this adverse evidence. information for impeachment purposes, The record reflects that on Wednesday, objected only hearsay. on the basis of 25, 2008, June the trial court ordered the objections way Her in no alerted the trial produce State to copies of CPS records any court to claim that the State’s use of “that produced yet had not been from this information violated her Sixth Amend- February on.” replied [of 2007] counsel, right ment her Sixth Amend- that the defense ready would be to go to right ment to confront the witnesses trial following Monday if it received against any her or other of her constitu- the CPS records no later than the follow- rights. therefore, tional Appellant, failed ing day. began Trial on Monday, June to preserve appellate these claims for re- any without objection from appellant 33.1(a). view. See Rule Points of error that she had not had sufficient time to twelve thirteen are overruled. review the CPS records. fourteen, point of error Appellant’s brief does not cite to claims that the State’s “failure comply portion of the record showing that she timely with the trial court’s order on dis- objected timing of the covery pro- State’s liberty denied Ms. Lucio her duction of the CPS records. Nor have we process Appel- life without due of law.” been able to locate a argument point portion lant’s focuses on the of the record timeliness of where appellant objection. the disclosure of Juarez’s made such an notes, subject points which is the portions We also note that the of the rec- (State's 44) counseling Juarez’s notes Exhibit are not third session with Juarez was on 14, 2008, part appellate appellant’s record. We March and it do note refers to fight jailed a defense with “another inmate” and exhibit that was admitted into evi- [appellant’s] punishment "scratches on face” and it fur- phase dence at the as Defendant’s Timeline,” ther recites “now claims that Exhibit 25 contains "CPS Case stepdad sexually abused her when she which contains references to Juarez's coun- years was 7 old.” This exhibit also recites that seling appellant. sessions with exhibit This during appellant’s counseling fifth session compiled by attorney’s the district office April with Juarez on 2008: based on CPS records. This exhibit recites counseling first session [Appellant] goes day into detail of the 14, 2008, February during Juarez was on say child’s "accident”: she that after her *30 appellant which stated that Mariah "fell down fell, nothing child she was still awake and story apartment her, the stair from their 2nd really wrong seemed so instead of died.” appel- This exhibit also recites that getting hospital, her to the she wanted to counseling lant’s second session with Juarez say anything not because she was afraid 5, 2008, husband, during appel- was on March which that if she told her he would at- lant "still that verbally (saying good claimfed] child's death was an tack her she was not a mother)[.] accident.” This exhibit recites that
910 following only to the points of points of in our discussion out
ord set support witness in testimony by a State’s ap- that indicate and thirteen error twelve “guilty meets the claim that she that the State of her objection no made pellant records, only” prong: the CPS timely produced had not We decide notes. Juarez’s particularly me, is, her grab she would What she told any claim preserved has not that said, she then she by the arm. And timely the produce failed that the State she steps, the would take her down 33.1(a). Point of records. See Rule CPS raga doll. her around like would move overruled. error fourteen is other —other one. And the That was af- the trial court is judgment of striking you know—was ways that — head, striking firmed. in back of the the body. P.J., KELLER, except points for joined only testimony shows portion This 11, in which she concurs. 4 and in- guilty separate P.J., KELLER, concurring a filed prior that occurred of child abuse stances opinion. the child’s incident that caused defendant, State, not the death. It is COCHRAN, J., concurring a filed a seeking it is which acts decides JOHNSON, J., joined. opinion in which cannot foist A defendant conviction for. WOMACK, JJ., concurred. PRICE did not the State a crime the State upon KELLER, P.J., concurring. gain in prosecute intend to order eleven, appellant claims point of error offense.2 instruction on lesser-included jury to a instruction by appellant that she was entitled of abuse cited The instances such, to a child as a lesser-included these injury As are extraneous offenses. prong of the test for The second are not less- offense. of conduct separate instances determining when a defendant is entitled charged offense offenses of er-included of- to an instruction on lesser-included capital murder.3 evidence must exist fense is that “some if the record did contain evidence Even permit that would ration- the record showing that be construed as could guilty, if ally to find that the defendant injuries with- inflicted the fatal only of the lesser offense.”1 guilty he is mental state for requisite culpable out blunt- in this case was The cause death murder, entitled she would not be capital Although appel- force trauma to the head. to a offense instruction lesser-included statement, admitted, in her recorded lant by the Court its the reasons stated injuries upon inflicting numerous other died, child twenty. Because the footnote instances, denied prior child least, felo- guilty, at appellant would be Appellant’s hitting the child on head. ny murder. beaten the theory at trial was she had four, agree point of error had not commit- As to past, child in the but she the evidence is sufficient that caused the child’s death. ted the act State, State, Campbell 149 155 v. S.W.3d v. 855 S.W.2d 673 3.See 1. Rousseau (a criminal act (Tex.Crim.App.2004) distinct 1993). (Tex. App. Crim. charged a lesser- cannot be from the offense (“an offense); n. 1 extra- included id. State, (Tex. v. 207 S.W.3d 2. Bufkin logically be a lesser- neous offense cannot Crim.App.2006). offense”). included
911 case, jury’s probability present decision that there is a In the appellant’s criminal that would commit criminal acts history is not extensive. I do not consider of violence that would constitute a continu- negligence of her other children to be society. analyze threat to I would particularly probative tendency of a to- differently question somewhat from the violence, ward criminal acts of but she did Court. treat brutally. indeed Mariah The jury justified finding was in that her abuse of case, Berry
In the
that
this Court held
Mariah indicated that
dangerous,
she was
jury
was irrational
to conclude that
just
and not
to her own children. But the
probability
Berry
there was a
that Kinesha
in
jury Berry
equally
justified in view-
ways,
a future
danger.4
would be
some
ing Berry’s horrific and callous treatment
heinous,
Berry’s crime was
and her
more
of her own children as evidence of a defi-
worse,
history
appellant’s.
criminal
than
ciency
likely
of character
to manifest itself
Berry
days-old
did not
suffocate her
in criminal acts of
against
violence
others.
baby
duct-taped
Malachi. She
his mouth
arms, put him—alive—into a garbage
comments,
With these
I concur in the
him
bag,
dumpster.5
and threw
in a
A few disposition
points
of error four and elev-
later,
years
daughter
she left her infant
en,
join
and I
opin-
otherwise
Court’s
naked in ditch fifteen feet off the side of
ion.
road,
chance,
by
where she was found
in
spite
covered
fire-ant bites.6 In
of cit
COCHRAN, J., concurring in which
review,
ing the correct
standard
JOHNSON, J„ joined.
explicitly
put
Court relied
on evidence
join
majority
opinion and write
in
finding
the defense
the evidence of
separately only
explain
to further
how the
dangerousness
future
(E.g.,
insufficient.
in
reasoning
this case is consistent with
“[Berry’s] expert
opined
witnesses
that
prior opinion, Berry
our
v. State.1 In Ber-
depressed
she was
and under extreme
ry,
legally
we held that the evidence
stress;”
“[Berry]
one
murdered
child and
insufficient
establish that there was a
another,
abandoned
but defense witnesses
probability that the defendant —a mother
testified
these two incidents were to
who had killed one new-born child and
tally
loving
out of character and she was a
abandoned a second one—would commit
caring
mother
her other three chil
7
dren.”)
concluded,
criminal
acts of violence that would consti-
Court
then
essence,
continuing
society.2
that it
tute a
is irrational to believe that
threat
We
subjecting
baby
explained
precedent
own
suffering
one’s
states
“[o]ur
37.071,
trying
clearly
‘society,’
death and
to kill another could indi
as used in Art.
callous,
lacking
cate a character so
so
prison
includes both
and the ‘free world’
feeling
judgment,
common human
dangerousness
and the
must consider
likely
it was
Using
legal
manifest itself
criminal
in that context.”3
stan-
dard,
against
acts of violence
we
others.
held that
State,
(Tex.
Berry
(Tex.Crim.App.2007).
4.
v.
233 S.W.3d
860-64
1.
the state a that led to any a reasonable doubt other stimulus beyond prove that proving if appellant, that con- probability any a act in other dangerous there is or violent live, commit criminal allowed to “rarely reverse noted that we text.” We future so as in the acts of violence evi- of insufficient judgment a on a claim threat, whether continuing a constitute finding that the defen- dence murdered prison. Appellant in or out of future, we in the and danger will be a dant another, but one child and abandoned case, In this we lightly. so do not do that these testified defense witnesses response in jury’s decision understand of character and were out two incidents infant and the aban- death of one caring mother loving that she was another, is even if that decision donment Appellant’s her three children. other in law.”6 supported not that she was opined witnesses expert Berry case problem Part of the extreme stress depressed and under and, closing argu- years five prosecutor, killed Malachi was that the when she later, no ment, “clearly Paris. She had asked abandoned the law and misstated record, presented and the state criminal defendant] that jury [the to assume past. in her no other evidence of violence The in the free world.”7 living would be a pregnancy, All of her offenses involved to as- explicitly asked prosecutor testimony both defense and but from for future potential sess the defendant’s poten- state witnesses showed that assump- based on the false dangerousness while incar- becoming pregnant tial for among her out and she’s tion that “she was “extremely low.” Fur- cerated would be another child.” We children or she has ther, was in her twenties when “future jury’s finding of noted that murder. If capital she was convicted of by this dangerousness” likely .affected and were she received a life sentence misstatement, that the evidence was later, forty years she would be paroled unre- legally upon insufficient based likely beyond her sixties and butted facts that thus could not childbearing years and (cid:127) record had no criminal defendant an offense.4 repeat such kind; any explained although the State We (cid:127) harmed or physically She had never keeping, proved pattern of the defendant two any other than the person abused loving, caring for her three children by men other the two new-born babies sired discarding sired one man while us, omitted). (internal today, among if she was out as she sits 4. Id. at 863-64 citations children, among dan- other is she a future ger. Everything Gripon based Dr. said was explained that the 5. Id. at 864. We further up premise, on one that she’s locked "did had harmed or State not show her, else, somebody, somebody not children, attempted any to harm of her other protect child. Re- would intervene to child, any person” an unrelated other un- member, up. locked he said that she'll be Id. der circumstances. Well, system locking her is assumes up. locked up_That assumes that she’s 6. Id. way you you the answer this I submit to among question and she's she was out if alia, stated, prosecutor Id. The inter child, has another do her children or she you’re asking you, danger And we all when to that child.... asked think she’s a future yourself question, you people have to are evil. assume Some original). (emphasis danger sitting at 862-63 whether a future there Id. she’s *33 than the father of her three other chil- complaints about her home and children dren; since 1995.
(cid:127) loving caring “She was a and mother sum, the Court holds that the evi- children”; to her other three dence in this case is legally sufficient to (cid:127) killing The defendant’s conduct in one support finding dangerousness, future abandoning
infant and the other was as we held in Berry that the evidence character,”8 “totally out of according legally sufficient to future witnesses; to three dangerousness. and Both eases are entirely consistent. Each is correct. (cid:127) Expert opined witnesses that the de- depressed fendant was and under ex- comments, With these I join majori- treme stress when she killed Malachi ty opinion. and, later, years five abandoned Paris.9 majority
As the in the present aptly case
notes, the facts and circumstances Ber-
ry nothing are at all like those Here,
present case. the State did not argue
misstate the law and then that the
jury should find dangerousness” “future Here, upon premise.
based that mistaken RAMOS, Appellant, Daniel ample there was evidence of appellant’s v. character abiding for violence and sad- repeatedly sys- Texas, ism because she had Appellee. and STATE tematically tortured and brutalized her No. 07-11-0041-CR. two-year-old ap- child over the course of Texas, proximately Appeals Court of two months. This is a woman Amarillo, who repeatedly bit her defenseless child “for Panel B. “pinched” no reason” and her vagina “just two-year-, because.” “hit” Oct. 2011. if old Mariah as she were a punching bag when got jail mad. And when in trial,
awaiting her appellant still could not
control her violent temper; she had “ver- disagreements”
bal prisoners with fellow
and was disrespectful guard. to a For
more than a gener- decade she had been a
ally neglectful mother who used cocaine filthy whose home was and unsafe for
children. investigating CPS had been Id. at 861. specialist 10.The 2004 affidavit of the CPS neglected indicates that also professionals 9. Two mental-health testified abused at least three of her other children. defendant, that the at the time she discarded them, Gabriel, three-year-old One of had a babies, just given both had birth to them and quarters "bite mark the size two on his left suffering postpartum depression from —a dirty shoulder.” All of the children were judgment condition that could cloud her scabs, scars, bruises, had and insect bites. decision-making process. affect her documents are notes her, with the witnesses against possi- pared for Mrs. Lucio by gentlemen bly several other rights. constitutional ... and those are his notes [sic] Appellant argues that the State’s use of concerning the interview with the defen-