Brito v. State
| Decision Date | 25 July 2018 |
| Docket Number | No. 08-15-00196-CR,08-15-00196-CR |
| Parties | JOSE MANUEL BRITO, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 384th District Court of El Paso County, Texas
(TC# 20140D05269)
Appellant, Jose Manuel Brito, in four issues, appeals his conviction for recklessly causing serious bodily injury to a child. First, Appellant challenges the trial court's admission of evidence of rib fractures that he alleges are inadmissible, not relevant, and prejudicial which prevented him from receiving a fair trial, thus, requiring reversal. Second, Appellant maintains the trial court erred in denying his motion to quash the indictment coupled with a flawed jury charge and the erroneous admission of the evidence of rib fractures, collectively, allowed the jury to reach a non-unanimous verdict as to which injuries supported his conviction.
Third, he argues the trial court erred in allowing the child/victim to be viewed by the jury in the State's case-in-chief and denying his motion for mistrial after the child/victim was brought into the courtroom during Appellant's closing argument in the punishment phase, because he asserts the physical presence of the child was extremely prejudicial and deprived him of a fair trial. Last, Appellant asserts the trial court abused its discretion in admitting Appellant's video-recorded statements after he had "invoked his Miranda rights." We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Alicia Velazquez and Appellant are the parents of a son, R.B., born July 6, 2011. On September 30, 2011, during a medical check-up, like each one of his prior check-ups, R.B. was found to be a healthy normal baby. However, at three months' old, on October 18, 2011, R.B., was admitted to the hospital in critical condition, because he was not breathing and had no pulse.
Appellant took care of R.B. while Alicia worked. On October 17, Appellant and R.B. were home alone when Appellant called Alicia at work telling her that the baby was having trouble breathing and choking on his milk. Alicia left work early and found R.B. doing well. The following day, when Alicia left for work, R.B. looked normal. Again, Appellant called Alicia at work, stating R.B. was choking and having trouble breathing. She told him to call 911. According to Appellant, he began performing CPR on R.B., saving his son's life, until the paramedics arrived.
Upon arrival of the emergency room, R.B. was breathing with the assistance of a paramedic, without a pulse, not breathing and possibly dead. R.B. was intubated, his chest was x-rayed, and a CT scan performed. The x-ray revealed multiple rib fractures with calluses indicating the rib fractures were three weeks' old and suggested child abuse. The CT scan showed subdural hematoma, which is bleeding on the brain. The doctors concluded that R.B.'s medical condition was due to child abuse not choking.
Video-Recorded Statement
On October 18, 2011, the same day R.B. was admitted to the hospital, El Paso Police Department Detectives Gonzalez and Alvarado met with Appellant at the hospital. They spoke with Appellant alone to ask him what had happened with R.B., given that Appellant and his three-month-old son were home alone when paramedics arrived. Appellant was not arrested and returned to his wife sitting outside in the hospital hallway.
The next day the Detectives encountered Appellant and his wife at the hospital for the second time. They approached Appellant and explained they needed a statement from him. Appellant consented. At the hospital, the Detectives informed Appellant that he was free to leave at any point, however he needed to accompany them to the police station to make his statement, and once the statement was made, Detectives would give him and his wife a ride back to the hospital. The detectives transported Appellant and his wife to the police station because their car had broken down. Appellant was not placed under arrest or hand-cuffed and voluntarily went to the police station with the Detectives to provide a statement.
At the police station, the Detectives first interviewed Alicia, while Appellant waited outside the interview room in a waiting area by himself. Once the interview of Alicia was concluded, the Detectives met with Appellant. Detectives Gonzalez and Alvarado began taping Appellant's statement before he sat down in the interview room. In the video, after Appellant is seated, both Detectives introduce themselves again. Next, Detective Gonzalez explains to Appellant "You are not under arrest, you are free to leave at any time." Further, he instructs Appellant, "You can stop this interview at any time." Detective Gonzalez tells Appellant if he needs water or to use the restroom, to let Detective Gonzalez know. Further, Detective Gonzalez informs Appellant that once his statement is completed, the detectives will transport him and his wife back home.Appellant is not handcuffed, appears to be seated comfortably in a chair and vigorously nods his head assenting to what Detective Gonzalez is telling him indicating Appellant is in agreement and responding "Yes, sir." Next, Detective Gonzalez tells Appellant "under no obligation are you here" to which Appellant replies "I understand."
At this point, Detective Gonzalez requested Appellant read the Miranda card warnings, because it is their policy he do so. Gonzalez instructs Appellant to read the Miranda card out-loud in either Spanish or English whichever language he is more comfortable in. Appellant, haltingly in English reads the complete Miranda warnings to the Detectives. Gonzalez asks him if he understands what he has read, Appellant responds, "yes, so I'm waiving my rights reading this?" Gonzalez replies that is "something we need to advise you of." Appellant states "I'll tell you what happened, but I'm not waiving my rights . . . I already did the interview with you, but this?" The detectives attempt to explain this is the policy that they need to follow in order to speak with Appellant. Appellant said, "But I'm waiving my rights, this is not good." Appellant asserts that he has already spoken with the Detectives. The Detectives explain that the previous interview was an informal one and this is their formal interview with him. Gonzalez tells Appellant that they are just going to go over with Appellant what they had already discussed in their informal interview the day before. Appellant assents by stating Gonzalez says "Yes." Appellant replies "Alright, that's fine" nodding his head yes. Gonzalez asks Appellant if he understood everything he read, Appellant responds "Yes, sir." Gonzalez then turns to what had been discussed with Appellant in the prior interview.
Appellant explained that he was feeding R.B. his bottle when the baby started choking. He called 911 and began administering CPR. In the panic of performing CPR on the baby, Appellant admitted he accidently bumped R.B.'s head on the arm of the couch.
After Appellant completed his statement, Detective Gonzalez informed Appellant that R.B. has two skull fractures with head trauma, nine broken ribs in different stages of healing, and the baby is fighting for his life unable to breathe on his own. Detective Gonzalez further explains that the baby's injuries are not the result of choking or a bump on the head, stating "It is a severe, severe fracture." Gonzalez asks Appellant "Now, what do you have to say?" Appellant replies Gonzalez explains that the baby's injuries are "inflicted trauma" and "somebody did it." Gonzalez states that it has to be either Appellant or Alicia, and Alicia has vehemently denied she did anything to the baby. Appellant sarcastically tells Gonzalez "It's me of course . . . that's crazy." Appellant finally tells Gonzalez, "This is going to end here, because you are trying to push it on me." Appellant then stood up and walked out of the interview room.
At Trial
In November 2014, Appellant was indicted on four counts of injury to a child. Count I alleged Appellant intentionally and knowingly caused serious bodily injury to R.B. Count I included five alternate paragraphs detailing the manner and means injury to a child could have been committed. Paragraph A alleged injury to a child occurred by striking R.B.'s head with an unknown object; Paragraph B alleged it occurred by striking R.B.'s head against an unknown object; Paragraph C alleged by then and there shaking R.B.'s body; Paragraph D alleged by striking R.B.'s head with an unknown object and shaking R. B.'s body; and Paragraph E alleged by strikingR.B.'s head against an unknown object and shaking R.B.s body.
Count II alleged Appellant intentionally and knowingly caused bodily injury to R.B.'s finger. Count III alleged Appellant intentionally and knowingly caused bodily injury to R.B.'s leg. The trial court granted Appellant's motion to sever Court IV which alleged Appellant caused bodily injury by squeezing R.B. with Appellant's hands.
During the State's case-in-chief, the State requested the trial court allow R.B. to be present during the testimony of his caregiver and grandmother, Carmen Velasquez. R.B. at the time of trial was wheelchair bound and severely disabled. The State argued that the sight of R.B. and his physical conditions were relevant in proving the serious bodily element of the indictment. Appellant objected that the jury's viewing of R.B. in the courtroom was more prejudicial than probative, inflammatory, cumulative and an effort to manipulate juror's sympathies. The trial judge overruled the objection and allowed the State to bring R.B. into the courtroom, introduce him to the jury, and then take him back out.
Velasquez began to testify while R.B. was present in the courtroom. R.B. started crying and was removed. Velasquez testified R.B. was her grandson, soon to be four years' old, that had just left the courtroom....
To continue reading
Request your trial