Kelso v. State
| Decision Date | 28 September 2018 |
| Docket Number | No. 06-17-00183-CR,06-17-00183-CR |
| Citation | 562 S.W.3d 120 |
| Parties | Miranda Renea KELSO, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Kristin Brown, The Law Office of Kristin R. Brown, PLLC, Dallas, TX, for Appellant.
Andrea L. Westerfeld, Assistant District Attorney, Patrick M. Wilson, Ellis County District Attorney, Waxahachie, TX, for Appellee.
Before Morriss, C.J., Moseley and Burgess, JJ.
After viewing videos obtained from Miranda Renea Kelso’s cell phone, which depicted sexual acts committed by Kelso with three-year-old Hansel,1 an Ellis County jury found her guilty of indecency with a child by contact.2 Kelso was sentenced to three years' imprisonment and was ordered to pay $413.00 in court costs.3 At trial, Kelso argued that the video recordings should have been suppressed because the contents of her cell phone were illegally accessed by her husband, in violation of Article 38.23 of the Texas Code of Criminal Procedure. On appeal, Kelso argues that the trial court erroneously (1) rejected her request to include an Article 38.23 instruction in the jury charge, (2) rejected her requested jury instruction on the defenses of duress and necessity, (3) denied her a suppression hearing, (4) denied her motion to suppress the video recordings, (5) admitted communications she had with her husband over her objections of spousal privilege and relevance, and (6) excluded evidence demonstrating that her husband had a bias and motive to testify against her.4
We conclude that there was no jury charge error and that the trial court did not abuse its discretion in denying Kelso’s motion for a suppression hearing in the middle of trial. We further find that the trial court properly denied Kelso’s suppression motion and did not abuse its discretion in making the evidentiary rulings which were preserved for our review. Accordingly, we affirm the trial court’s judgment.
Kelso decided to leave her husband, Michael Hanington, while pregnant with his second child. She took Hansel and his half-brother with her. Hanington testified that when Kelso left their apartment on August 28, 2015, the front door was ajar, clothing and toys had been taken, and Kelso had reported to family that she was ending the marriage. In an effort to expose any infidelity, Hanington testified that he went through a cell phone that Kelso had left on a table in plain sight. Two months after Kelso disappeared, Hanington located another cell phone in a closet, guessed Kelso’s password to obtain its contents, and uncovered video recordings depicting Kelso engaging in sexual acts with Hansel. Over objection, Hanington testified, "I found some videos of her masturbating in front of and around and letting [the] child touch her." Hanington said that he called Child Protection Services (CPS) to report the abuse so he could obtain an advantage in divorce proceedings, which were still pending at trial.
Talitha Cochrane, a CPS investigator, received Hanington’s report, found Kelso living in a domestic violence shelter with the children, and confronted her about the allegations of sexual abuse with Hansel. According to Cochrane, Kelso admitted to sexually abusing Hansel multiple times and described the acts in detail. However, Kelso told Cochrane that she had only engaged in the acts at Hanington’s request and was afraid to refuse him.
According to Cochrane, Kelso and Hanington engaged in a "[b]ondage, discipline, dominance, submission, [and] sadomasochism" (BDSM) lifestyle, in which Hanington would dominate Kelso through violent acts during sex. While Kelso was initially a willing participant in BDSM, Cochrane testified that Kelso halted consent to Hanington’s increasingly violent acts of physical abuse and rape. According to Cochrane, Kelso left Hanington to escape the abuse. After speaking with Kelso, Cochrane classified Hanington as a perpetrator.
Elizabeth Glidewell, a detective with the Waxahachie Police Department, conducted an audio/video-recorded interview of Kelso at the shelter. In the interview, which was admitted into evidence without objection, Kelso confessed that she had engaged in sexual acts with Hansel, but only because Hanington was interested in incest and directed the acts. Kelso said she was scared to refuse her husband because he abused her physically and sexually. Kelso told Hanington that she would try incest because she was tired of fighting him. Kelso’s interview and Cochrane’s testimony both established that some of these acts occurred during a time when Hanington was not living with Kelso and Hansel.
This first incident occurred when Kelso and Hansel were living with Kelso’s parents.5 Kelso stated that she encouraged Hansel to touch her breast with Hanington present, but did not remember Hanington having a camera or cell phone to record the first incident. Kelso also stated that Hanington made the child touch her vagina. She told Glidewell that Hanington occasionally videoed the abuse, but also admitted that she took two videos while Hanington was not present because he had instructed her to do so. Kelso told Glidewell and Cochrane that she took the first indecent video with Hansel while she was living in her own apartment because Hanington was sending text messages requesting that it be sent to him. Kelso, who did not work, told Glidewell that she continued her relationship with Hanington because he provided financial support for her, Hansel, and Hansel’s half-brother.
Glidewell noted that during the interview, Kelso never claimed that Hanington had threatened her with serious bodily injury or death. She obtained 1,559 pages of text messages between Hanington and Kelso and saw nothing in those messages indicating that Kelso was being abused. Glidewell concluded that the text messages revealed that Kelso had no issues standing up to Hanington. In contrast to the statements Kelso made during her interview, Glidewell discovered that Hanington never texted Kelso regarding an attempt to have her engage in inappropriate activity with Hansel or any other child, causing Glidewell to conclude that Kelso had lied to gain sympathy and had consented to Hanington’s violent BDSM acts in writing. The text messages and Kelso’s handwritten consent to various acts of BDSM were admitted into evidence.
Troy William Bryan, who had previously worked with Hanington, testified that Hanington would brag about "beat[ing] the hell out of [Kelso]." He added that Hanington was six-feet tall and weighed 250 pounds. Hanington’s ex-girlfriend, Jessica Lopez, who had a young son, testified that Hanington had a "horrible" reputation for peacefulness and abiding by the law. She testified that Hanington had a bad general reputation and that she was still afraid of him.
Hanington admitted both that he engaged in violent sexual behavior with Kelso and that it gave him pleasure to cause Kelso pain in sexual situations. Hanington further admitted that he punished Kelso if she did not comply with his requests, but averred that these vicious punishments, bordering on torture, were done by prior consent of both parties. Hanington testified that he never asked Kelso to make video recordings of sexual abuse of Hansel and did not record any such videos.
As a result of Kelso’s allegations against him, Hanington had also been indicted for sexual performance by a child, but the charges were later dismissed. Hanington testified that he wanted payback against Kelso because he had spent eight and one-half months in jail after she had claimed he was involved in Hansel’s abuse.
Kelso testified on her own behalf during guilt/innocence. She told the jury that Hanington created the opportunity to control her by taking advantage of her lack of self-confidence and isolating her from her family and friends. She said that Hanington directed her how to dress, would prevent her from showering as punishment, would not allow her to seek medical treatment when needed, and instructed her to write down BDSM terms and describe what she liked about them. According to Kelso, Hanington stalked her when they were not together by logging into her Facebook and Yahoo accounts without her permission. Kelso testified that Hanington hit her "[a]lmost every day," raped her as punishment, and would choke her until she passed out, which placed her in fear of death. Kelso testified that Hanington did not leave bruises because he was a smart abuser. She added that Hanington still choked and spit on her while she was pregnant and that she feared retribution if she left the house.
Kelso testified that Hanington kept asking her about having sex with Hansel to the point that it "[wore] her down." She told the jury that Hanington also controlled whether Hansel and his half-brother would be allowed to eat because he was her sole source of income and would withhold money from her if she was not nice to him. She said that while Hanington never actually said he was going to take Hansel and his half-brother away from her, he warned her that he would obtain custody of the children if she left him because she was unemployed and would have no place to live. Kelso admitted that she acquiesced to Hanington’s demand for her to engage in sexual activity with Hansel because she was trying to appease him.
While Kelso admitted that she made two video recordings during the interview with Glidewell, she told the jury, who saw eight videos, "I don't remember it being me, and I don't remember it was me filming them." With respect to the first video, which was filmed at her parent’s house, Kelso claimed that Hanington was in the room and that she was scared to tell her parents about the abuse because she did not want to disappoint them. Kelso admitted that she video recorded Hansel touching her breast on her own, but added that Hanington requested the video when he was working two minutes...
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