Cody Davis v. The State of Texas--Appeal from 86th District Court of Kaufman County

   NUMBER 13-00-395-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

CODY DAVIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 86th District Court

of Kaufman County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Castillo

   Opinion by Chief Justice Valdez

Appellant, Cody Davis, was found guilty of capital murder and sentenced to life imprisonment. On appeal, appellant raises the following issues: (1) the evidence was legally and factually insufficient to support the conviction on the element of intent; (2) the State committed reversible error by (a) suppressing evidence favorable to appellant, (b) using perjured testimony, and (c) misleading jurors; (3) appellant received ineffective assistance of counsel; (4) the trial court erred in ignoring appellant=s complaints about his counsel; (5) the trial court erred in refusing to appoint a different counsel on appeal; (6) the trial court erred in admitting certain State exhibits; (7) the trial court erred in not correcting the State=s misstatements to the jury; and (8) the trial court erred in admitting autopsy photos. We affirm.

I. BACKGROUND

Appellant was indicted for the offense of capital murder of a child younger than six years of age. At the close of evidence, the jury returned a verdict of guilty on the charge of capital murder, and the judge assessed a life sentence. Counsel for appellant filed a motion for new trial and an appellate brief. Appellant then filed a motion, which this Court granted, allowing appellant to dismiss his attorney and proceed pro se. We also granted appellant=s motion to disregard previous counsel=s brief and file his own pro se appellate brief. We now consider the issues raised in appellant=s pro se brief only.

II. SUFFICIENCY

In his first issue, appellant contends the evidence was both legally and factually insufficient to support the verdict. Specifically, appellant contends the evidence did not establish the requisite culpable mental state and no evidence was introduced showing that he B and not the medical care administered by the paramedics B caused the fatal tear in the victim=s heart.

The standard of review for legal and factual sufficiency in criminal cases is well-settled. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (explaining the two different standards of review). Therefore we will not recite it here. See Tex. R. App. P. 47.4.

Appellant was charged with the murder of his daughter, Allison Cook, under section 19.03(a)(8) of the penal code which states a person commits capital murder if he commits murder as defined under section 19.02(b)(1) and the victim is under six years of age. SeeTex. Pen. Code. Ann. ' 19.03(a)(8) (Vernon 2003). Under section 19.02(b)(1), a person commits murder if he intentionally or knowingly causes the death of an individual. Id. ' 19.02(b)(1). To prove the requisite mental state, the State must establish that the defendant=s conscious objective or desire was to cause the result or that the defendant was aware that his conduct was reasonably certain to cause such result. Tex. Pen. Code Ann. ' 6.03(b) (Vernon 1994). Mental culpability generally must be inferred from circumstances of the act. Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998). The requisite mental state to commit capital murder can be inferred from acts, words, and conduct of an accused, as well as from any facts in evidence which, in the jurors' minds, prove the existence of knowing conduct or an intent to kill. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). A defendant's mental state may be inferred from the extent of injury and the relative size and strength of the parties. Id.

We first review the relevant evidence for legal sufficiency. Brenda Zepeda, the dispatch supervisor at the Kaufman Sheriff=s Department, testified a 911 call came in at about 12:33 a.m. on August 27, 1999. The recording of that call was played for the jury, who heard appellant tell the dispatcher he was performing CPR on his daughter and that she had fallen in the tub and hit her head. Zepeda then transferred the call to East Texas Medical Service (ETMS).

Three paramedics testified at trial that they were dispatched to appellant=s home on August 27, 1999, as a child had fallen in a bathtub and was not breathing, and CPR was being administered. Upon arrival they saw the child on the floor with no one administering CPR. Appellant was speaking with a police officer at that time. The child had no pulse, no blood pressure, and was not breathing. The paramedics testified that they saw vomit on the side of the child=s cheek and mouth and numerous bruises covering her body. They also said her rib cage felt Amushy@ and appeared to be fractured, as it gave way under the pressure of administering CPR.

The paramedics observed the child=s heart had some electrical activity, although it was not beating, and administered epinephrine and atropine, which stimulate the heart and increase the pulse rate. They also inserted a breathing tube, performed CPR, and transported the victim to the hospital, where she later died. The paramedics testified that the medical treatment administered to the child would not have caused the injuries observed on her body and that the drugs administered to her would not have caused her any harm.

Mike Williams, a sergeant for the Forney Police Department, testified that when he arrived at the scene, appellant began Asimulating@ CPR on the victim although he never touched her mouth. Williams moved appellant aside and began performing CPR. As he performed compressions, he felt the left side of the victim=s chest Acaving in.@ Williams observed vomit and blood in various parts of the home.

Brad Starkes, the captain of the Criminal Investigation Division of the Kaufman County Sheriff=s Department, testified appellant was brought to the department where Starkes interviewed him after advising him of his Miranda rights. Starkes noticed that appellant=s knuckles were red. Appellant was cooperative and agreed to take a polygraph test. During the two-hour interview, appellant dictated and signed a statement in which he said that for disciplinary purposes, he had whipped the victim on her bottom, arms, legs, and hands with a red plastic pipe and hit the victim with his fist three or four times in the back and once on the side.

Robert Harris, the Sheriff of Kaufman County, testified appellant was brought to his office for the purpose of providing a second voluntary statement. After advising appellant of his Miranda rights, Harris took appellant=s statement, which appellant read out loud and signed. In the statement, appellant said the victim was a disciplinary problem and he had no control over her. He attempted to punish the victim by using a stick to hit the victim on the buttocks and the tender part of her legs. When the victim started to struggle, appellant told her resisting would only make matters worse. He hit her in the back, stomach, sides, and neck. He also hit her on the back and sides with his closed fist. Later that night, when the victim spilled juice in the kitchen, appellant said he Acompletely lost it@ and hit her with his fist.

Jonie McClain, the medical examiner, testified she performed the autopsy on the victim. She observed blunt force trauma injuries on the victim=s chest, abdomen, and face, multiple broken ribs, as well as irregular contusions on the body consistent with being struck by a stick or pipe. She removed and dissected the victim=s heart and found a laceration or tear on the septum of the heart. She testified that the victim=s injuries could not have been the result of someone performing CPR on her or the result of the child falling in the bathtub, and that, in her opinion, the cause of death was trauma from multiple blunt force injuries. Her testimony was accompanied by photographs of the victim before and during the autopsy, which showed extensive bruising all over the victim=s body as well as internal injuries.

After reviewing the evidence in support of the verdict, we conclude that the evidence did support a rational conclusion that the defendant was aware that his conduct was reasonably certain to result in death. See Johnson, 23 S.W.3d at 7. Appellant admitted to purposely striking his daughter, who weighed less than forty-five pounds, all over her body using both his hands and a plastic pipe until her body was covered in extensive bruises. She died within hours of this beating.

Appellant also asserts that the evidence is factually insufficient to support the verdict. In this review, we consider all evidence raised at trial. See id.

The remaining relevant evidence was as follows. Appellant testified on his own behalf at the trial. He said that on the day in question, he and the victim had spent the day playing video games, and he had become angry at the victim when she soiled herself and then lied about doing so. He told the victim to take a shower and, in order to punish her for lying about the incident, spanked her with a plastic PVC pipe. Because the victim resisted the spanking, which he had originally intended to only consist of Athree paddles,@ appellant ended up hitting her all over her body, both front and back, with the pipe. He also testified that he hit the victim with his open hand because of her resistance.

Appellant then stated that later that evening, he found the victim sitting at a counter in the kitchen with her face and hair down in a puddle of spilled juice. He Apopped her in the back, with the back of [his] hand@ and again sent her to bathe. He testified that he then heard her fall while in the shower and noticed that she had cut the back of her head in the fall. However, he did not think the fall had been serious until later that night, when he observed the victim having a seizure. Appellant testified that he began to perform CPR and called an ambulance, continuing to perform CPR until help arrived. He stated that once Officer Williams arrived on the scene, appellant was prevented from continuing CPR by the officer and no efforts were made to help the victim until the ambulance arrived.

Appellant described being taken to the police station and giving statements to Captain Starkes and Sheriff Harris. He denied various portions of the typed and signed statements made to the officers relating to the beating of the victim. He also denied ever reading the statements that the officers had typed up before he signed them, saying that he was too emotionally exhausted to do so. When questioned by counsel, appellant said he did not intend to kill his daughter, and only intended Ato make her understand what was right and what was wrong.@ He also denied having awareness or knowledge that his conduct might cause injury or death.

In light of all evidence, we conclude that the evidence, viewed in a neutral light, does not undermine the jury=s finding that appellant was aware that his conduct was reasonably certain to cause serious injury, given that mental culpability can be inferred from the circumstances of the act. Lack of a specific intent to kill on the part of appellant does not render the evidence insufficient to reverse the verdict when the jury could reasonably find that appellant acted with awareness of the potential result of his actions. See Ybarra v. State, 890 S.W.2d 98, 109-10 (Tex. App.BSan Antonio 1994, pet. ref=d). Appellant=s first issue is overruled.

III. PROSECUTORIAL ERRORS

By his second issue on appeal, appellant asserts that the prosecution made several reversible errors by (1) suppressing evidence favorable to the defense, (2) improperly using false testimony and (3) making improper jury arguments.

Appellant argues in his first sub-issue that the prosecution erred by suppressing the transcript or recording of the 911 call made to ETMS. At trial, the prosecution played a 911 tape of the call received by the Kaufman County Sheriff=s Department. Because the call involved a medical emergency, it was then transferred to ETMS. The prosecution did not obtain or provide a copy of the conversation that then ensued between ETMS and appellant. Appellant argues that this recording would have shown that he was attempting to perform CPR on his daughter and would have therefore been exculpatory, making its suppression at trial a violation of his due process rights.

A due process violation occurs if (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to the defendant; and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002); see also Brady v. Maryland, 373 U.S. 83, 87 (1963). The prosecution has no duty to turn over evidence not in its possession or not known to exist. State v. Blanco, 953 S.W.2d 799, 802 03 (Tex. App.BCorpus Christi 1997, pet. ref'd) (citing Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex. Crim. App. 1990)).

Appellant cannot show that had the ETMS tape been obtained by the prosecution and subsequently turned over to the defense, the outcome of the trial would have been different. Appellant wanted to use the tape to show that he was performing CPR on his daughter and therefore lacked the requisite mental intent to kill her. The jury had already heard the recording of the first 911 call between Zepeda and appellant, in which he stated AI=m performing CPR on my daughter right now.@ The jury also heard testimony from the paramedic who reported being told ACPR was in progress@ by the dispatcher as well as appellant=s own testimony recounting how he performed CPR. Therefore, evidence that appellant performed CPR on his daughter was already available for the jury=s consideration, and appellant has failed to show that the addition of the ETMS recording would have affected the outcome of the trial. See Ex parte Richardson, 70 S.W.3d at 870.

By his second sub-issue, appellant complains that the prosecutor committed error by using false testimony. Specifically, he alleges that had the ETMS recording been produced, the prosecutor would have known that appellant was actually performing CPR, in direct contradiction to testimony from Sergeant Williams, who testified Ait looked like he was simulating it, but he wasn=t trying to perform CPR.@ Appellant also argues that the prosecutor erred by allowing Williams to testify that he observed vomit and blood in a bathroom, given that a forensic report failed to mention the collection of vomit or blood at the scene.

Due process prohibits prosecutors from presenting testimony that any member of the "prosecution team," including both investigative and prosecutorial personnel, knows to be false. Ex Parte Castellano, 863 S.W.2d 476, 485 (Tex. Crim. App. 1993); Ex Parte Adams, 768 S.W.2d 281, 292 (Tex. Crim. App. 1989). It is reversible error if a prosecutor presents a false picture of facts by failing to correct the State's testimony when it becomes apparent that it is false. Garcia v. State, 704 S.W.2d 495, 498 (Tex. App.BCorpus Christi 1986, no writ).

There is nothing in the record to indicate that Sergeant Williams was testifying falsely. The ETMS tape was not introduced at trial. Even if it had been, it would not have proven that appellant actually performed CPR; it would have only shown that he discussed it with the ETMS dispatcher. Furthermore, the forensic report describing the analysis of hair samples and other evidence does not conclude that no other fluids were found at the scene, and there is no evidence to suggest that Williams was testifying falsely when he described seeing vomit and blood in the bathroom.

Appellant also argues that Captain Starkes committed perjury when he testified that only one tape was used to record his interview with appellant and that only a portion of the interview had been recorded, and further, that the prosecutor knew this was perjury because the prosecutor had two tapes available at the hearing on defense=s motion to suppress. However, appellant does not point to any evidence in the record to show that there were two tapes at any earlier point. Assertions in an appellate brief unsupported by evidence cannot be accepted as fact. Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996); Davila v. State, 651 S.W.2d 797, 799 (Tex. Crim. App. 1983). Furthermore, there is no evidence in the record to indicate that Captain Starkes was lying about the recording of the interview. In the absence of record evidence in support of appellant's claim, we cannot sustain his point of error.

In his third sub-issue, appellant argues that the prosecutor misstated the law regarding intent during the jury arguments and misled the jurors regarding the facts. Appellant did not object to any of the complained of jury arguments at trial and has therefore forfeited his right to raise any alleged error on appeal. See Tex. R. App. P. 33.1; Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003). We conclude that appellant failed to demonstrate that the prosecution committed any reversible errors in its presentation of the evidence and accordingly, we overrule his second issue on appeal.

IV. INEFFECTIVE ASSISTANCE

Appellant asserts in his third issue on appeal that he was denied effective assistance of counsel, based on counsel=s failure to (1) obtain the ETMS 911 call transcript, (2) sufficiently challenge the admissibility of his two signed confessions, (3) digitally enhance the audio recording taken by Captain Starkes during appellant=s questioning, (4) question three jurors as to whether they had seen any media coverage regarding the case, (5) correct misstatements made by the prosecutor, (6) adequately present evidence at the hearing on appellant=s motion to change venue, (7) call various defense witnesses who would testify as to appellant=s character and to his relationship with his daughter, and (8) remove autopsy photographs from the presence of the jury. Appellant also alleges he received ineffective assistance when his attorney quoted from appellant=s interview with Captain Starkes in which he admits to the offense.

We examine ineffective assistance of counsel claims by the well-established standard set out in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (en banc); see also Mallett v. State, 65 S.W.3d 59, 62 63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814.[1]

In the instant case, the record does not contain any evidence of the strategy and methods involved concerning counsel's actions at trial. Thus, we must assume that trial counsel's actions fell within the wide range of reasonable professional assistance and sound trial strategy. See id. We also note that, in regard to appellant=s concerns about his counsel quoting from appellant=s confession, appellant has misstated the circumstances in which that statement was made; his attorney was attempting to show the jury that appellant=s statements had not been made voluntarily. We therefore overrule appellant's third issue.

V. NEW COUNSEL

By his fourth issue, appellant complains that the trial court ignored his request that new trial counsel be appointed and, as a result, he was forced to go to trial with an ineffective attorney. When a defendant voices a seemingly substantial complaint about counsel, the trial judge should make a thorough inquiry into the reasons for the defendant's dissatisfaction. Melendez v. Salinas, 895 S.W.2d 714, 715 (Tex. App.BCorpus Christi 1994, no pet.). However, the defendant carries the burden of proving that he is entitled to a change of counsel. Malcolm v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. 1982). In reviewing this type of allegation, we must examine the record to determine if the relationship between appellant and his defense counsel had a negative impact on the representation afforded to appellant. Id. at 792; see Reddic v. State, 976 S.W.2d 281, 283 (Tex. App.BCorpus Christi 1998, pet. ref=d). We have reviewed the record and evaluated counsel=s representation, which was complete and vigorous. Counsel filed numerous motions on his client=s behalf and conducted a fair defense, rigorously cross-examining all prosecution witnesses and presenting his own witnesses to testify in favor of appellant. Appellant has not demonstrated there was any negative impact to him in the court's denial of his pro se request to substitute counsel. See Malcolm, 628 S.W.2d at 791. We overrule his fourth issue on appeal.

VI. APPELLATE COUNSEL

By his fifth issue, appellant asserts that the trial court erred in refusing to replace appellant=s attorney on appeal with new counsel. Appellant=s trial attorney was court-appointed to again represent appellant in his appeal. Appellant then filed a motion requesting the dismissal of his attorney on appeal. This Court abated the appeal and ordered that a hearing be conducted to determine whether appellant desired to proceed pro se. The hearing was held and appellant was admonished extensively regarding the consequences of representing himself on appeal. Appellant stated to the trial court that he desired to represent himself unless different counsel was appointed on appeal. The trial court ruled that appellant had knowingly and intelligently waived his right to counsel on appeal and ordered appellant to proceed pro se.

The court of criminal appeals has determined that it is not unfair for a trial court to require a defendant to choose between going to trial with appointed counsel or proceeding pro se, so long as the court is satisfied the defendant is competent to make the choice and does so knowingly and intelligently. See Burgess v. State, 816 S.W.2d 424, 428 29 (Tex. Crim. App. 1991). Here, the trial court conducted a careful examination and concluded that appellant had knowingly and intelligently waived his right to appellate counsel. The trial court was under no further obligation to appoint new appellate counsel in this case. We overrule appellant=s fifth issue on appeal.

VII. ADMISSION OF STATEMENTS

By his sixth issue on appeal, appellant argues that the trial court erred in admitting into evidence two written statements made by appellant to police, arguing that the statements were not made voluntarily and were therefore inadmissible.

A statement is "involuntary" for due process purposes only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); Zayas v. State, 972 S.W.2d 779, 791 (Tex. App.BCorpus Christi 1998, pet. ref=d). At a hearing on a motion to suppress a statement based on its involuntariness, the trial court is the sole judge of the weight and credibility of the evidence, and its finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado, 912 S.W.2d at 211. The burden of proof at the hearing on admissibility is on the prosecution, which must prove by a preponderance of the evidence that the defendant's statement was given voluntarily. Zayas, 972 S.W.2d at 791.

During the hearing on the motion to suppress, appellant stated that he knew he was under investigation for homicide. He stated that he did not read the written statements before signing them. He did, however, admit that the signatures were his own and that no one forced him to sign anything. He also admitted that he was not tricked or lied to about the statements. The police officers who took the two statements in dispute also testified as to the voluntariness of the statements, noting that appellant seemed competent to give a statement, was read his Miranda rights repeatedly, and voluntarily waived his rights and signed the statements. The officers admitted telling appellant he would be given a polygraph test and then never performing the test. Lying to a defendant, however, about a polygraph test has not been shown to affect the voluntariness of a statement made to police. See Gomes v. State, 9 S.W.3d 373, 378 (Tex. App.BHouston [14th Dist.] 1999, pet. ref=d); see also Mason v. State, 116 S.W.3d 248, 259 (Tex. App.BHouston [14th Dist.] 2003, pet. ref=d). There was insufficient evidence in support of appellant=s claim that he had not signed the statements voluntarily, and the trial court did not abuse its discretion by allowing the statements to be considered by the jury. We overrule appellant=s sixth issue on appeal.

VIII. JURY ARGUMENT

In his seventh issue, appellant argues that the trial court committed reversible error by failing to correct the prosecutor=s misstatements to the jury. In this section of his brief, appellant fails to advance new arguments and simply refers back to his second point of error, which alleged that the prosecution committed reversible error by making misstatements to the jury. As we have previously concluded that appellant waived his right to complain about any alleged misstatements, see Tex. R. App. P. 33.1, we accordingly overrule appellant=s seventh issue on appeal.

IX. AUTOPSY PHOTOGRAPHS

In his eighth issue on appeal, appellant alleges that the trial court erred in admitting into evidence photographs of the victim taken before and during her autopsy. Appellant alleges that these photographs were gruesome and therefore had a prejudicial effect.

An appellate court reviewing a lower court's ruling on the admissibility of evidence must apply an abuse of discretion standard of review and must examine the trial judge's ruling in the context of the other evidence presented at trial. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A gruesome photograph of a victim of a violent crime is not rendered inadmissible as evidence simply because of its gruesomeness and accompanying emotional effect on the jury; instead, the controlling factor on admissibility is whether the probative value of the photograph as evidence outweighs its potentially prejudicial effect, which the trial judge has the discretion to determine. Tex. R. Evid. 403; Fuentes v. State, 846 S.W.2d 527, 529 (Tex. App.BCorpus Christi 1993, pet. ref'd). Probative value is established if the photograph is needed to support the observations and conclusions of medical examiners or to otherwise corroborate evidence presented at trial. Lewis v. State, 505 S.W.2d 603, 604 (Tex. Crim. App. 1974); see Ward v. State, 787 S.W.2d 116, 120 (Tex. App.BCorpus Christi 1990, pet. ref'd).

Here, numerous color photographs of the victim=s body were admitted into evidence during the testimony of the medical examiner who performed the victim=s autopsy. The photographs were used to establish the cause of death by blunt force trauma causing a tear in the victim=s heart. The photographs and accompanying evidence were used to rebut defense theories that the victim=s death could have been caused by improper performance of CPR or improper administration of drugs by paramedics. While the photographs were prejudicial due to their graphic nature, we do not find that this prejudice outweighs their probative value in establishing cause of death. See Tex. R. Evid. 403. The trial court did not err in allowing submission of these photographs to the jury. Accordingly, appellant=s eighth and final issue is overruled.

X. CONCLUSION

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 23rd day of June, 2005.

[1]A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is generally underdeveloped and cannot adequately reflect the failings of trial counsel. McCullough v. State, 116 S.W.3d 86, 92 (Tex. App. Houston [14th Dist.] 2001, pet. ref'd.). Therefore, it is critical that the defendant make the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic. Id. This kind of record is best developed in a hearing on a motion for new trial, or by application for a writ of habeas corpus. Id.; see Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam).