Matthew McKenzie v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MATTHEW McKENZIE, )

) No. 08-03-00107-CR

Appellant, )

) Appeal from the

v. )

) 168th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20020D00433)

)

O P I N I O N

Appellant was convicted by a jury of two counts of injury to a child and sentenced to 8 and 6 years= imprisonment, respectively. He brings two issues: (1) that the evidence is factually insufficient; and (2) that the trial court abused its discretion in admitting a written statement into evidence. We affirm.

On the afternoon of December 21, 2001, Appellant and his wife took their five-month-old baby girl to see her pediatrician. The infant was suffering from swelling on the left side of her head. The infant was immediately admitted at a nearby hospital and a CAT scan was performed. The next day, a pediatric radiologist determined that the infant had a depressed fracture of the skull and he also noted a series of healed or healing fractures of the ribs. The hospital notified the police. Late that night and continuing into the morning of December 23, the Appellant and his wife were interviewed by Crimes Against Children detectives. The Appellant first gave a written statement that his daughter had hit her head when she flipped out of her car seat when he stopped the car suddenly. A second written statement was made in which he admitted hitting the infant twice with the palm of his hand and, on earlier occasions, squeezing the infants torso in frustration.

In his first issue, Appellant contends that the evidence is factually insufficient to prove that he caused the infant=s injury by Astriking JADE MCKENZIE about the head with Defendant=s hand.@[1] Specifically, he contends that because the State=s expert witness, the pediatric radiologist, testimony that the skull fracture would have been caused by Asomething sharp,@ Asomething hard,@ and Aat an edge,@ contradicted or mutually excluded the Appellant=s admission that he had hit his daughter with the palm of his closed fist as well as the radiologist=s testimony that a grown man=s hand could have cause the injury. It is true, in formal logic, that if two statements are contradictory, they cannot both be true and cannot both be false. In other words, it is one or the other. However, there is no contradiction in the evidence in this case. Closing one=s hand into a fist yields an aspect of the palm that is Asharp,@ Ahard,@ and Aat an edge.@

In considering a factual sufficiency challenge, we will set aside the verdict only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Duffy v. State, 33 S.W.3d 17, 22 (Tex.App.--El Paso 2000, no pet.). In this case, we find there is overwhelming and uncontroverted evidence that Appellant caused injury to his daughter by striking her with the palm of his closed hand. Issue One is overruled.

In Issue Two, Appellant contends that the trial court erred in admitting his second written statement because it was not voluntarily and violated both federal and state constitutions.

In reviewing the voluntariness of a confession, we must give almost total deference to the trial court=s determination of historical facts in a suppression hearing. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Licon v. State, 99 S.W.3d 918, 924 (Tex.App.--El Paso 2003, no pet.). We also review the evidence in the light most favorable to the trial court=s ruling and cannot reverse the trial judge=s decision on the admissibility of evidence absent a clear abuse of discretion. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Licon, 99 S.W.3d at 924.

The primary basis for Appellant=s claim is that his second written statement in which he admitted striking his infant daughter in the head and squeezing her torso to stop her from crying was coerced by threats that his wife would be arrested and their baby taken from them. He also claims for the first time on appeal that the threat was reinforced by his lack of sleep and long duration of the interview through the night and into the morning of the next day.

At the hearing on Appellant=s motion to suppress the second written statement, the detective who took the statement denied that he ever threatened the Appellant. He testified that after the first statement was completed, he confronted the Appellant with the fact that the infant had other healing injuries that had been inflicted and that the infant had only had three caretakers: Appellant, his wife, and a baby-sitter. The Appellant, according to the detective, began crying and readily admitted causing all of the injuries.

The Appellant testified that the detective told him that if he did not make a second statement he and his wife would likely be arrested and their baby taken away from them. He claimed that he did not participate in the preparation of the second statement and simply signed it because he was under the impression that if he did not, Amy wife and I would be arrested.@ He never mentioned being stressed by lack of sleep or otherwise complained about the duration of the interrogation.

Here, we have contradictory statements. The trial court believed the detective and that there were no threats made to coerce the Appellant=s confession. The trial court properly found that the second statement was given voluntarily and admitted it into evidence at trial. We overrule the Appellant=s second issue.

The judgment of the trial court is affirmed.

August 20, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant has not challenged the sufficiency of the evidence to support the jury=s finding in Count 2 of the indictment.