King v. State
| Decision Date | 28 October 2021 |
| Docket Number | 01-19-00793-CR |
| Parties | TERRY WAYNE KING II, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 371st District Court Tarrant County, Texas Trial Court Case No. 1588183R [1]
Panel consists of Justices Kelly, Landau, and Hightower.
Appellant Terry Wayne King II was charged in a two-count indictment with the offenses of injury to a child causing serious bodily injury[2] and attempted aggravated kidnapping.[3] A jury found King guilty of both offenses. The jury also made an affirmative deadly-weapon finding for each offense. King pleaded true to a felony-enhancement allegation contained in the indictment. The jury assessed King's punishment at life in prison for each offense. On appeal, King raises seven issues.
Relating to the guilt-innocence phase of trial, King's first six issues contain two issues challenging the sufficiency of the evidence, three issues contending that the jury should have been charged on lesser-included offenses, and one issue challenging the trial court's denial of King's motion to suppress DNA evidence. In his seventh issue, King contends that the trial court erred during the punishment phase by denying his motion to suppress and admitting into evidence for the jury's consideration in assessing his punishment photographs discovered on his cell phone containing child pornography.
Because we conclude that the trial court erred in denying the motion to suppress the photographs containing child pornography, and such error was harmful, we reverse the portions of the judgment sentencing King to life in prison for each offense, and we remand the case to the trial court for a new sentencing hearing. But, because King's first six issues pertaining to the guilt-innocence phase of trial are without merit, we affirm the remaining portions of the judgment.
On the morning of April 19, 2018, 12-year-old Jane (a pseudonym) was walking to her school bus stop at the corner of Calumet Avenue and Laredo Street in Fort Worth, Texas. As she was walking, she was approached on foot by King. He told Jane that he needed help and asked her to come with him. Jane agreed and walked with King, turning from Calumet onto Laredo Street.
Initially King was nice to Jane, but after they had walked a distance, King hit Jane on her cheek with his hand. He then put his hands around Jane's neck, forced her to the ground, and kicked her. King squeezed Jane's neck, and Jane fought back using her hands. Jane could not breathe and eventually lost consciousness for a while. When a school bus stopped nearby, King ceased strangling Jane and ran away. A short time later, Jane got up, stumbled a bit, and walked to her bus.
T. Dover, Jane's school bus driver, noticed that Jane was approaching the bus from Laredo Street, rather than walking down Calumet as she normally did. When Jane arrived at the bus's door, Dover saw that Jane was covered in grass and had blood coming from her nose and mouth. Dover called 9-1-1.
When paramedics arrived, Jane was scared and shaking. They determined that her oxygen levels were slightly below normal. She had dried blood in and around her nostrils, a swollen lower lip, bruises on her back, and a bruise on her neck consistent with being choked. To the paramedics, Jane's condition initially did not appear life threatening. The paramedics transported Jane to the emergency room by ambulance. During the trip to the hospital, Jane's condition deteriorated.
When she arrived at the emergency room, Jane was considered a "trauma stat," meaning that she was having difficulty maintaining life-sustaining functions. Jane's oxygen levels were low, and she was struggling to breathe. The emergency room physician determined that Jane had a negative pressure pulmonary injury, an injury which may result from strangulation. The negative pressure caused Jane's lungs to fill with fluid, a condition known as pulmonary edema. The medical staff intubated Jane to help her breathe by putting a tube down her throat and then forcing air in and out of her lungs. Jane needed more help than the emergency room could provide, and she was transferred to the hospital's intensive care unit. There, Jane was placed on an ECMO, a machine that took over Jane's heart and lung functions by pumping her blood for her heart and oxygenating her blood for her lungs. Jane ultimately survived her injuries.
Detective P. Henz of the Fort Worth Police Department's Major Case Unit was assigned to the case. Detective Henz went to the hospital to meet with Jane, but because of her condition, he was unable to speak with her. At that point, he had no suspects. Detective Henz, along with other detectives and officers, began their investigation by obtaining surveillance video from ten businesses in the general area of Calumet Avenue and Laredo Street.
Detective Henz contacted the school district to determine whether there were surveillance videos from any school buses that had been in the area. He was provided a video from Bus 200.
Bus 200 was not Jane's school bus. It was another school bus that had been parked on Laredo Street, waiting to start its route that morning. While parked on Laredo Street next to the back parking lot of the Knights Inn Motel, Bus 200 had faced the intersection with Calumet. In front of the bus, on the right, the bus's video showed a wood fence bordering a commercial lot. Detective Henz determined that the business that had been on the lot was no longer operating. His testimony at trial indicated that business was vacant, stating there was "no sign of business there," and it was "closed up." On the other side of the lot was an iron fence. A building stood at the back of the lot. He stated that the only way in an out of lot was on Laredo Street.
As Bus 200 waited to start its route, the bus's video showed a white, bearded man-wearing a hat and a backpack, and carrying an item of dark clothing-come from behind the wood fence bordering the vacant business lot and run toward Bus 200. The man ran into the parking lot of the Knights Inn Motel. About six minutes later, the bus's video showed Jane come into view in the vacant business lot from which the man had run earlier. She stumbled a bit and stood still for about 20 seconds. She then walked toward her school bus on the other side of Calumet Avenue. Detective Henz testified that, based on Bus 200's video, the police believed that the vacant business lot was where Jane had been attacked.
Surveillance video from the Knights Inn Motel also showed the man run around the wood fence of the vacant business lot and through the motel's parking lot. The man then walked through the motel's courtyard, swimming pool area, and another parking lot. He put on a sweatshirt as he walked. Surveillance video from Moritz Kia, a car dealership next to the motel, showed the man cross the motel's property and walk along the service road of the freeway.
A Days Inn was located on the other side of the freeway in the direction the man had walked. The Days Inn surveillance video showed the man enter its lobby and talk to the clerk. Detective Henz testified that the man asked the clerk for a public restroom, and after the clerk told him that there were no public restrooms, the man left.
Surveillance video showed the man enter a nearby Waffle House. The time stamp on the video indicated that the man was in the Waffle House for 15 minutes. Although not shown in the portion of the surveillance video admitted into evidence, Detective Henz testified that video from inside the Waffle House showed the man enter the restroom. When he came out of the restroom, the man's appearance had changed.
Video from outside the Waffle House also showed that, when he left the restaurant, the man's appearance was different than it had been when he had entered the restaurant. He had shaved his beard, put his hair up in a bun, taken off his hat and sweatshirt, and changed his shirt. But the man appeared to be wearing the same jeans, backpack, and tennis shoes-which had distinctive white trim-as the person had been wearing in the earlier surveillance videos.
From the Waffle House, the man walked to a nearby Jack in the Box restaurant. Video from the restaurant showed him entering the restroom and then sitting at a table for about five minutes where he appeared to make a phone call. He then went to the parking lot where he was picked up by a white SUV. Detective Henz used registration records to trace the vehicle to King's wife, Whitney. Detective Henz obtained photographs of King and noticed "a lot" of resemblance between King and the man seen in the surveillance videos. Detective Henz also noted that King had distinctive tattoos on his neck and his arm, which are seen on the man in the videos. Detective Henz also obtained cell tower records, indicating that King and his wife were near the Jack in the Box on that day.
King and his wife moved to Oklahoma in May 2018. Detective Henz obtained a warrant for King's arrest on July 12, 2018. King worked as a semi-truck driver, and he was arrested near his truck in Oklahoma City by the U.S. Marshal's Service on July 17, 2018, at a truck stop. King was initially held by authorities in Oklahoma City, and the Oklahoma City Police Department assisted with the investigation.
Detective Henz traveled to Oklahoma City where he interviewed King. During the interview, Detective Henz showed King still images taken from the surveillance videos. King acknowledged that he was the person in the images from the Days Inn, Waffle House and Jack in the Box videos, but he denied that he was the person in a still image taken from Bus 200's video, showing the man running from behind the wood...
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