Williams v. Thaler, A-10-CA-979-SS

• Decision Date: 20 July 2011
• Docket Number: A-10-CA-979-SS
• Citation: Williams v. Thaler, A-10-CA-979-SS (W.D. Tex. Jul 20, 2011)
• Parties: JESSE WILLIAMS, v. RICK THALER, Director, Texas Department of Criminal Justice Correctional Institution Division
• Court: U.S. District Court — Western District of Texas

JESSE WILLIAMS,

v.RICK THALER, Director, Texas Department of Criminal Justice Correctional Institution Division

A-10-CA-979-SS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

SIGNED: July 20, 2011

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE SAM SPARKS

UNITED STATES DISTRICT JUDGE

The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b)andRule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates, as amended, effective December 1, 2002.

Before the Court are pro se PetitionerJesse Williams's Petition for a Writ of Habeas Corpus(Document 1), Answer with Brief in Support of Respondent, Rick Thaler, Director of the Texas Department of Criminal Justice, Correctional Institutions Division(Document 9), and Williams's Reply (Document 12).For the reasons set forth below, the undersigned finds that Williams's application for writ of habeas corpus should be denied.

Statement of the Case

I.Procedural History

Williams challenges the Director's custody of him pursuant to a judgment and sentence of the 390th Judicial District Court of Travis County, Texas, in CauseNo. 3021005.Ex parte Williams,Application No. 74,675, at 7-9.¹Williams was charged with injury to a child with serious bodily injury, pled not guilty, and was tried by a jury.Id. at 2-3, 7.On October 15, 2004, Williams was found guilty and sentenced to life imprisonment.Id. at 7.

Williams's conviction was affirmed by the Third Court of Appeals of Texas on June 8, 2008.Williams v. State, 257 S.W.3d 426(Tex. App.-Austin2008, pet. ref'd).Williams then filed a petition for discretionary review which was refused by the Texas Court of Criminal Appeals on December 17, 2008.Williams v. State, 272 S.W.3d 614(Tex. Crim. App.2008).Subsequently, Williams filed an application for state writ of habeas corpus challenging his conviction.Ex parte Williams, Application No. 74,675, at 49.The Texas Court of Criminal Appeals denied the application on the findings of the trial court without a hearing on September 29, 2010.Id.at cover.On December 27, 2010, Week's petition in this Court was entered on the docket.Pet.at 1.

II.Factual Background

The court of appeals summarized the evidence presented as follows:

The Events

On May 14, 2002, firefighters responded to a 911 call placed by appellant asking them to come to the aid of an unconscious child.The firefighters found appellant and his mother standing on a street corner.The woman was holding an unconscious infant, later identified as two-and-a-half-year-old D.B., the son of appellant's girlfriend, Eugenie Rochelle Bradshaw.When the firefighters arrived, D.B. was limp and unresponsive to stimuli, including pain.It was immediately apparent to them that something was seriously wrong with the child neurologically.They also saw both recent and older scabs on the boy's chest and what appeared to be deep scratches all over his body.

The firefighters asked appellant what had happened to the child.Appellant said that "this is probably going to be my fault."His mother asked, "What did you do?"Appellant said that D.B. had had a bowel movement in his pants and so he punished him.As the firefighters worked to revive the child, appellant, who smelled strongly of alcohol, "stood around" looking nervous.

Appellant was also questioned at the scene by Police Officer Carlos Vallejo.Appellant told Vallejo that D.B. had been disobedient, so he grabbed him by the arm and spanked him three or four times using the palm of his right hand.Appellant told the officer that D.B. had broken into a "cold sweat" and that he thought he might have given D.B. a "rude awakening."

FN1.Appellant does not question the admissibility of his statements to Vallejo

As the EMS technicians were putting D.B. into the ambulance, his body began "posturing," an indication that his brain was starting to swell.At the hospital, doctors discovered bleeding and swelling throughout the child's brain and indications that he had been violently shaken.He had suffered renal failure.His buttocks were badly bruised and swollen from being beaten with some sort of blunt object.It appeared that the child had been beaten, shaken, and then "left for dead."D.B. survived, but he is disabled for life.

The Interviews

The following day, May 15, Detective Robert Merrill interviewed appellant in an interview room at the police station.Appellant was brought to the station in handcuffs, but he was not cuffed or restrained during the interview.At the beginning of the interview, Merrill advised appellant of his Mirandarights, and appellant said that he understood.SeeMiranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694(1966).The interview continued as follows:

FN2.The State initially stipulated at the pretrial hearing that appellant was in custody.The State later argued that appellant was not in custody because the handcuffs were removed and appellant was told that he was not under arrest.

Q.Do you have any questions about those rights?

A.I want to terminate everything right now.

Q.You want to terminate . . .

A. You're telling me that I'm under arrest.

Q.No, you're not.

A. (Inaudible).

Q. They-they cuffed you up.

A.Yes, they did.They claim I was being detained.

Q.Right.And I'm gonna protect me and you.Now, you know your rights.You-you don't have to talk to me if you don't want to.

A.That's the only reason why I came down here was to comply with-with whatever his name was, the other detective.

Q.Detective Faithful?

A. Uh-huh.

Q.Okay.We would like to have an idea so we can tell the doctor what happened, give him an idea of how to treat your boy, but that's your decision to make.You said you want to terminate it.Do you want to terminate or do you want to talk to me?

A.No, I want to help to comply-to help-to help my son, uhh-

Q.To help your son?

A.Yes, I do.

Without further hesitation, appellant began to answer Merrill's questions.Appellant talked about the days before the 911 call in great detail, describing how he had cared for D.B., where he went with him, what D.B. did and ate, D.B.'s general health, and who else cared for him.Appellant also described some of his disciplinary measures, including a brief spanking on the night of the 911 call, after which D.B. fell and hit his head on the floor.Appellant said that he spanked D.B. no more than once per day.Often, he would put D.B. in a particular position with his hands on the ground or have him stand in the corner with his hands up for time out, instead of spanking him.Appellant denied pushing D.B. or doing anything that could cause a brain injury.Appellant admitted having about three beers on the night he called 911.He said he was not drunk and had not smoked any marihuana.Appellantemphasized that D.B. had suffered numerous falls: backwards onto the floor, off of the front porch steps, at the gym, in the bathtub, and from a swing.

Appellant was allowed to leave the police station after the May 15 interview, and a police officer gave him a ride to the hospital.Appellant was arrested for injury to a child with serious bodily injury two days later, on May 17.After his arrest, he was interviewed by Merrill a second time.He was again advised of his rights and agreed to waive those rights.In this May 17 interview, appellant initially stated that he used only periodic spankings and time-outs in certain positions to discipline the child.As the interview continued, appellant admitted shaking D.B. on two separate occasions, once on the night of the 911 phone call and once a week before that call.He said that when he shook D.B., the child's head swung all the way back and all the way forward.Appellant said that he knew he"went overboard" but that he was not trying to injure D.B., only to rear him properly.

On May 18, appellant called the police station from jail wanting to speak to Merrill.Merrill returned appellant's call and, without appellant's knowledge, recorded the conversation.Appellant told Merrill that on the night the boy was injured, he"may have went a little bit overboard."He explained that he had been smoking marihuana that may have been laced with PCP and may have consumed three or more beers.

The Pretrial Hearing

Following a hearing, the trial court overruled appellant's motion to suppress the videotapes and transcripts of the May 15 and May 17 interviews.With respect to the May 15 interview, the court determined that appellant's statement that he wanted to "terminate everything right now," considered in the context of the total conversation and appellant's demeanor as shown on the videotape, did not amount to an unambiguous assertion of his right to terminate the interview.The court said:

The court finds that after reading all of the transcript and watching the video that the defendant did not unambiguously assert his right to terminate the interview, and I made this determination by considering the conversation between the defendant and the Detective Merrill. . . .And it's clear to this court that the defendant was attempting to clarify what Detective Merrill meant and that was, he was trying to clarify whether he was in custody . . . .

Also considering the entire conversation, it's clear that Detective Merrill never uses coercion or tries to-he tries to clarify for the defendant to see if he is actually terminating everything.He's trying to clarify whether he's in custody.And you have to take in thetotality of the conversation and also the tape and the demeanor of the witnesses.

I do understand that just on its face from what the defendant says, "I want to terminate everything," it seems like it's clear.However, if you look at the entire interaction between the two, it's clear that the defendant was confused and that Detective Merrill

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