v. M.D., Matter of

• Decision Date: 27 May 1998
• Docket Number: No. 04-96-00226-CV,04-96-00226-CV
• Citation: 974 S.W.2d 332
• Parties: In the Matter of V.M.D.
• Court: Texas Court of Appeals

Page 332

974 S.W.2d 332

In the Matter of V.M.D.

No. 04-96-00226-CV.

Court of Appeals of Texas San Antonio.

May 27, 1998.

Juan Neri, III, Law Office of Juan Neri, III, Jose M. Guerrero, Law Offices of Jose M. Guerrero, San Antonio, for appellant.

Mary Beth Welsh, Asst. Criminal Dist. Atty., San Antonio, for appellee.

Before RICKHOFF and DUNCAN and ANGELINI, JJ.

OPINION

ANGELINI, Justice.

V.M.D. appeals a judgment finding her to have engaged in delinquent conduct for committing capital murder. In six issues on appeal, V.M.D. contends that the evidence is legally and factually insufficient to support the finding and that the trial court erred in overruling her motion to suppress her written and oral statements, in refusing to charge the jury on lesser included offenses, and in refusing to admit evidence regarding the guilt of a third party. We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On January 6, 1995, two year old Leticia Alicia Gutierrez, also known as Alice or Pequena, and five month old Timothy Gutierrez were found dead in their apartment at 138 East Magnolia in San Antonio, Texas. There was no apparent trauma to either child and the causes of death were unknown. At the time of the deaths, there were at least twelve people living in the two bedroom apartment: Kathleen Dalton; her four children, Victoria, Sara, Nicholas, and Kayla; her boyfriend, Jesse Rios; his sister, Lucy Valdez; her boyfriend, Rene Gutierrez; and their four children, Anthony, Junior, Alice, and Timothy. On occasion, Rene's step-father, Manuel Gonzalez and his two daughters, Becky and Eva, also lived in the apartment.

Ray Aguirre is a paramedic with the San Antonio Fire Department. He was dispatched to 138 East Magnolia on January 6, 1995, around 5:00 p.m. He arrived at the scene and found Jesse Rios at the door, telling him to hurry. Jesse was very distressed. Upon entering the house, Aguirre observed the infant, Timothy Gutierrez, lying on the couch. Aguirre and his partner examined Timothy and determined that he was obviously dead. When a body dies, lividity results, that is, all the blood goes to the lowest point in the body. In this case, the blood had settled in Timothy's face, tongue and chest. Aguirre discovered that Timothy had been in the hospital the previous week for treatment of respiratory difficulty.

When Aguirre went to the ambulance to get a form, he met V.M.D. She told him that she had been with Timothy, patting his back, about two hours prior to the 911 call. The baby had been sleeping and she had noticed that the baby slept "hard." When Aguirre reentered the house, he learned that the body of a two year old child, Alicia Gutierrez, had been discovered in a bedroom. The child was lying face down on the bed, with lividity in her face and vomit aspiration on her mouth. She had no vital signs. Aguirre noticed a nick of blood on her tongue.

Vance Meade is also an EMS technician with the San Antonio Fire Department. He accompanied Aguirre to 138 East Magnolia on January 6, 1995. He confirmed that, when he and Aguirre arrived at the scene, Jesse Rios was in the front yard telling them to go inside the house. Meade found Timothy face-up on the sofa. Timothy's face, chest, and abdomen exhibited lividity. He concluded that Timothy was definitely dead and had been dead for at least an hour.

Approximately twenty-five minutes after they arrived, Meade remembers a male voice saying that someone else was dead. He went to the back bedroom and found Alice's body. It was also in lividity, indicating that she had been lying slightly on her side. He noticed a tiny speck of blood on her tongue.

Meade noted that Jesse Rios refused to come into the house. They had to ask Jesse for information regarding the children three times before he would answer. Meade noted that it was an unusual situation because none of the adults showed much emotion. Aguirre also noted that he was shocked at how no one but Jesse Rios demonstrated any emotion regarding the deaths. Aguirre and Meade had a hard time getting information from anyone at the scene.

Meade noted in his report that V.M.D. told him she had been watching T.V. and patting the baby on the back for about two hours before the 911 call was placed. She also stated that she had said to someone earlier in the day that the baby sleeps a lot. Meade does not recall V.M.D. being very emotional at the scene; however, she was helpful in giving information.

Police officer Miguel Juarez responded to a sudden death call at 138 East Magnolia on January 6, 1995. When he arrived at the scene, Jesse Rios and Kathleen Dalton were inside the house. V.M.D. was not in the house. The emergency medical technicians notified him that there were two dead children involved. He saw Timothy's body in the living room and Alice's body in the bedroom. He began to isolate witnesses so officers could get statements from them all. After Officer Juarez had been at the scene approximately 30 minutes, he saw V.M.D. on the porch outside the house with several small children. He was notified by another officer that V.M.D. had been at the house when the children were sleeping. Juarez spoke with V.M.D. and asked her what had happened. V.M.D. stated that she had put the children to sleep by patting them on their backs and then she watched T.V. V.M.D. showed no emotion while speaking with Juarez.

Officer Robert Ramos also testified that he responded to a call regarding the deaths of two infants at 138 East Magnolia on January 6, 1995. He helped secure the scene. When Ramos asked V.M.D. if she knew anything about what had happened, she told him that the children's parents had been gone for about three hours looking for a new apartment. She told Ramos that she had put the children to sleep and that they were alive when she put them to sleep. Ramos believed that, under the circumstances, V.M.D. was very unemotional. When the parents arrived at the scene, they became hysterical.

Detective Timothy Rupp was dispatched to 138 East Magnolia on January 6, 1995, based on an EMS report of two deaths under suspicious circumstances. He inspected the scene and noted that the house was filthy. He remembers that the parents of the deceased children returned home and approached the house with urgency. When the parents were told that the children were dead, they became hysterical.

Detective James Holguin was also dispatched to 138 East Magnolia on January 6, 1995. He began speaking with witnesses and officers at the scene. He took V.M.D. to the bedroom to get her shoes so she could be taken to the police station to be interviewed. She got her shoes, sat down and put them on. Holguin thought it strange that V.M.D. didn't take the shoes and put them on outside, since the dead child was still lying in the bedroom.

Holguin remembers that the parents of the children became hysterical when they returned home and discovered that their children were dead. Holguin transported them to the police station, and they cried during the trip. They repeatedly asked what had happened and if it was really true. Lucy, the mother of the children, threw up in the police car.

Detective Leslie Speiss was working at the police station on January 6, 1995. A group of people were brought in as witnesses in a case regarding the deaths of two children. He was asked to help interview them. He interviewed V.M.D. V.M.D. gave Speiss the following statement:

I want to say that today, Friday the 6th of January, I woke up about 11:00 in the morning. I got up and ate breakfast. After breakfast I started cleaning the house. Lucy, Rene, Timothy, Alice, Anthony, Kayla, me and Junior were all at the house. Timothy, Alice, Anthony, and Junior are all kids. Timothy, Alice and Junior are Rene and Lucy's children. Anthony is Lucy's son from another guy. Me, Lucy and Rene were cleaning and the kids were just wandering around, except Timothy, he was sleeping. Timothy was sleeping a lot today. Rene left, I don't know where he went. About an hour after Rene left Timothy woke up. He has had bronchitis for about two weeks. He was crying and fussy, so I put him back to sleep on the couch. He had a bottle before I put him to sleep. Lucy fixed it for him. Alice, Junior, Kayla, and Anthony were in the backyard playing. Timothy was asleep on his stomach. Jesse came home and Lucy left with her sister-in-law. After Lucy left, Alice started pouting and calling for her mommie, Lucy. I put her to bed in our bedroom. She sleeps in the same bedroom with me. Then I went back to the livingroom and started watching a movie on HBO called "Take This Job and Shove It." It was on channel 14. Timothy was still asleep on his stomach on the couch with us. During the movie, my mom came home. Me and Jesse were watching the movie. After the movie, I went to the bathroom and when I came out of the bathroom Jesse said, "Oh, Kathy, look at him." He was talking about Timothy. Timothy was all purple. I didn't see anything around his mouth. Jesse called 911. I told Jesse during the movie that Timothy was sleeping a lot. Jesse said that he knew. Timothy is usually a quiet baby and I didn't hear him make any noise during the movie. After the ambulance came, my mom went into the bedroom to check on Alice. I was outside when this happened. A couple of weeks ago Rene and Lucy were arguing and I heard Rene say that he would claim the kids. I heard Lucy say that she didn't want to be with Rene anymore. Lucy and Rene have been staying with us for about two months. Rene found out that Lucy had been going out with this guy named Adam and that's when they started fighting....

Detective Rupp returned to the police station from the scene and began to review the statements that had been given. The mother of the children had indicated that Alice was clothed when she left her, but the body was found wearing nothing but a diaper. Because V.M.D. appeared to be the last witness to see the children...