Case Information

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$\mathrm{P}\mathrm{D}-0128-15$

RECEIVED IN COURT OF CRIMINAL APPEALS FILED IN COURT OF CRIMINAL APPEALS 1 APR 1320 i5 2 Abel Acosta, Clerk

3 4 Honor.

5 6 7 Honor.

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why this occurred. I mean, a person of average intelligence or even diminished intelligence should know better than to do this. And there's an indication in Exhibit 2 that you always did that. So it was not an isolated incident.

Ms. Massey, do you have any closing arguments you'd like to make?

MS. MASSEY: Yes, Your Honor.

Based on the severity of this case, the fact that it's not an isolated incident, and his explosive personality disorder that he admits that he has, that he does have tendencies towards anger and violence, the State believes that it's in the best interest of the community that he be sentenced to the Institutional Division of TDCJ.

But if the Court chooses not to do that, we would ask that he be at least required to do an anger

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS

*2 management class and not be near his wife or child, if that's what they ask, and it's my understanding they have asked, for at least two years.

THE COURT: Well, let me just ask you that. I mean, that's -- can that be imposed -- you're saying that can be imposed as a term and condition of probation?

MS. MASSEY: It can be a condition of probation that he not be near his wife and child for as long as the Court deems proper.

THE COURT: But that would not be enforceable like a protective order would be, though.

MS. MASSEY: No. It would be a violation of probation if he did that.

THE COURT: All right.

MS. MASSEY: This would just be extra protection for the family.

THE COURT: Right. Okay.

All right. Can you speak to the mindset of this offense, though, that I was alluding to? Why would this occur? I mean, based upon -- what's your position in that regard?

MS. MASSEY: Based on the evidence, the only conclusion that I can come up with is that he was angry with the child for whatever reason, whether it was

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because he dirtied his diaper or because he wasn't being

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS

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*6 caseworker is here in the gallery today, and she's advising that it is open simply for the fact that he has been in jail pending this outcome. But the child's been reunified, and services have been worked by the mother. (Pause in proceedings.) THE COURT: Mr. Davis, could you stand, please.

THE DEFENDANT: (Complies.) THE COURT: All right, Mr. Davis. You've come before the Court today, and you entered a plea of guilty to the offense alleged in the indictment in this case.

You were duly admonished by the Court about the consequences of that plea. You've asked the Court to consider to give you -- to put you on probation, but I told you, prior to accepting your plea, that you were not going to be allowed to withdraw that even if I rejected what you were asking me to do. I found that your plea was knowingly, intelligently, freely, and voluntarily given, and I accepted that plea of guilty. And you -- there's been evidence presented, which goes to the effect of punishment or sentence or what to do with you in this case.

So, first of all, I'm going to find you

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*8 Q. Okay. And what did you determine from discussions with the mother? A. She told me that she didn't know of any foul play or wrongdoing, that she just assumed that he had fell off, and this conversation that she had with the defendant. That's what the defendant told her, that he had fell and hurt himself that way. Q. And did you have -- did you interview the defendant? A. Yes, I did. Q. And what did you find out from the interview of the defendant? A. He told me that -- oh, I spoke with him for quite a while about the whole incident, and towards the interview (sic), he said that the injury happened when he was actually changing his diaper. He was moving around -- the kid was moving around while he was changing his diaper, and in order to get him to be still, he lifted him up by the base of his penis and that in turn, that caused the injury. And he -- Q. Go ahead. A. He told me at that time -- that's when we knew that injury had occurred, because he said that he did cry a little bit and that he went ahead and put the

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diaper on and kissed him and went on. Q. And based on your investigation, who caused the injuries to the victim? A. Johnny Davis, Sr.

MS. MASSEY: I'll pass the witness.

CROSS-EXAMINATION BY MR. RITCHIE: Q. Jeremy, as you know, I represent the defendant. I'm Richard Ritchie. And you and I have never talked about this case before today, have we? A. No, we have not. Q. And you -- actually, you interviewed Darlene Davis, which is Johnny's wife; is that correct? A. Yes. Q. And let's establish the age of that child backwards in there about September. I think his date of birth was '09 -- A. Okay. Q. -- in September, so he would have been about three? A. Uh-huh. That's correct. Q. Three years -- I believe four. I believe he would have been four. A. He had just turned. Q. Just turning four about that time; is that

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1 correct?

A. That is correct. Q. So coming up in September this year, he'd be five? A. Yes. Q. All right. And you interviewed --1 and I think that injury was on the Saturday prior to Labor Day.

Does that sound correct? A. Yes, that is correct. Q. All right. And as you stated, I mean, everybody -- that -- all of the reports indicate that it was sometime on a Saturday evening, and Johnny was in charge. Is that your understanding of the changing diapers, taking care of the kid? A. Yes, that is my understanding. Q. And they call him J.D.; is that correct? A. Yes. Q. And all of these interviews were voluntary; they came in, correct? A. It was voluntary. Q. All right. And you actually interviewed him, I believe, on the 9th of September maybe -- no. 19th.

I'm sorry. A. Yes, the 19th. Q. The 19th of September. But the actual event

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS

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*12 Giles Have Been Sex, and to Create the PESSENTITANT HAY. As a member of the gals. I mean, the kid returned to school. Head Start gets -- I mean, gets upset when they have to change a three-year -- the kid's diaper, and they find it, and they're kind of shocked, right? A. Yes, they were. Q. I understand.

As a matter of fact, Johnny, the defendant, came to get the kid from school that very Tuesday, I believe; is that accurate? A. After the -- yes, after they found the injury. Q. After they found it, he came. A. He did come. Q. And then some days later, he comes in to interview with you when you call him, right? A. Yes, he did. Q. Okay. And both parents are treating this child with Neosporin, and they don't call law enforcement. I'm talking about Johnny or Darlene or anybody. They

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS

*13 system, or is it even in the system yet, or do you know? A. It should -- Investigator Henard -- yes, it should be in the system. I don't know the status of their case, though.

MR. RITCHIE: I pass the witness.

REDIRECT EXAMINATION BY MS. MASSEY: Q. Just clear up one little thing.

When Mr. Davis went and picked up the child from Head Start, did he tell them what happened? A. He told them -- he told them a story of what happened. Q. Okay. And what did he tell them? $\infty$ A. He told them about the fall. 138 A 18 S 3 Q. And when you interviewed him, did he immediately tell you what had occurred? A. No, he did not. Q. And did he tell you the story of him falling also? A. I believe in the beginning of it, he did. We did speak about that. 140 A 170 S 3 Q. But he did eventually tell you what happened? 24 A. In the end, yes, he did.

MS. MASSEY: No further questions. MR. RITCHIE: I have no further questions.

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS

*14 A. No, sir. Q. Did you graduate from Springtown? A. Yes, sir. Q. And that's high school, correct? A. Yes, sir. Q. Do you have any other education at all besides that? A. No, sir. Q. And you've got some physical disabilities; is that right? A. Yes, sir. Q. Can you name some of those? A. I've got a partially fused -- partially fused left hip, and I've got the beginning stages of degenerative disc disease in my back. Q. Okay. You walk with a pretty noticeable limp; is that correct? A. Yes, sir. Q. You're in pain a lot; is that right? A. Yes, sir. Q. Okay. And have you been diagnosed with things going on in --mentally? A. Yes, sir. Q. Bipolar? A. Bipolar, yes, sir.

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS

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New states that

Do you understand all of that? A. Yes, ma'am. Q. And you thoroughly believe that you can and will do all of that? A. Yes, ma'am. Q. Even though you don't have a car and a ride? A. I'd find a ride with a friend of mine. I'll just have to -- you know... Q. And if I told you that your wife didn't want you back in the house, would you be accepting of that, if she told you that? A. It'd hurt, but I -- I want to be back with her.

This was an accident. I didn't do this. I want to stop any disability, stop and go back to work and learn how to be a better father and husband. Q. Now, in the medical records that I introduced earlier, there's a statement from your wife that you had been diagnosed with an explosive personality? A. Yes, ma'am. Q. And that means that you're prone to anger and

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