Zuliani v. State, 03-92-00110-CR

• Citation: 903 S.W.2d 812
• Decision Date: 12 July 1995
• Docket Number: No. 03-92-00110-CR,03-92-00110-CR
• Parties: Gerald Christopher ZULIANI, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 812

903 S.W.2d 812

Gerald Christopher ZULIANI, Appellant, v. The STATE of Texas, Appellee.

No. 03-92-00110-CR.

Court of Appeals of Texas Austin.

July 12, 1995.

Rehearing Overruled Aug. 16, 1995.

Christopher P. Morgan, Austin, for appellant.

Ronald Earle, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, for appellee.

Before ABOUSSIE, B.A. SMITH and ONION ^*, JJ.

ONION, Justice (Assigned).

Appellant Gerald Christopher Zuliani was charged by indictment with intentionally and knowingly causing serious bodily injury to a child younger than fourteen years. See Act of May 29, 1989, 71st Leg., R.S., ch. 357, § 1, 1989 Tex.Gen.Laws 1441 (Tex.Penal Code § 22.04(a), since amended) (hereinafter "former section 22.04"). ¹ Under the evidence and the trial court's jury charge, the jury found appellant guilty of recklessly ² causing serious bodily injury to a child. Because the jury found the offense was committed with the culpable mental state of "recklessly," the offense became a third degree felony rather than a first degree felony as originally charged. Id.; former section 22.04(e), since amended. The jury assessed punishment at ten years' imprisonment and a fine of $10,000.

The conviction resulted from appellant's second trial on the indictment. The first trial ended in a mistrial after it was discovered, by virtue of a note from the jury, that certain items which had not been introduced into evidence, including appellant's confession, had been inadvertently sent to the jury room with the exhibits properly admitted into evidence.

Appellant advances thirty-four points of error, some of which involve serious legal questions. Appellant contends, among other things, that the trial court erred in overruling the motion to suppress his taped confession which he contends was obtained by coercion, threats, physical violence, and egregious police action. He claims further that at the time of the confession he was being illegally restrained by virtue of an unlawful warrantless arrest. Appellant urges that the admission of the illegally obtained confession into evidence before the jury was reversible error.

In addition, appellant contends that he was unfairly prejudiced when his former girlfriend testified to extraneous offenses over timely objection. The witness was allowed to detail various acts of violence committed on her by appellant over a two-year period. Appellant urges that he was tried for being a criminal generally rather than on the pending charge. Appellant also argues that his second trial violated the double jeopardy provisions of both the federal and state constitutions. In light of the trial court record before us, we have no recourse under the law but to reverse the conviction due to the errors in overruling the motion to suppress the confession and in improperly admitting extraneous offenses into evidence. Therefore, we need not reach the other points of error except the double jeopardy issue.

The sufficiency of the evidence to sustain the conviction is not challenged. The record shows that the two-year-old victim was The State offered, inter alia, appellant's confession, Boutwell's testimony about appellant's actions toward the child on the night in question and about injuries suffered by the child on other occasions when he had been alone with appellant, and the testimony of a jail counselor that he overheard appellant's telephone conversation with his grandmother in which he expressed sorrow for having hurt the child.

Christopher Wohlers, the natural child of Robbi Boutwell Zuliani (hereinafter Boutwell) ³ by a previous marriage. Appellant and Boutwell were married less than a month before the victim's death on January 2, 1990. Boutwell and her two children had lived with appellant several weeks before the marriage. In the late evening of January 2, 1990, the victim was rushed by E.M.S. from the Zuliani home to Brackenridge Hospital. Emergency personnel were informed that there had been an accidental drowning. A clinical diagnosis at the hospital indicated a closed head injury and the possibility of child abuse. Drowning was ruled out as a cause of the injuries. The child was placed on life support equipment, but later died. Contusions of various colors were observed on the body. The autopsy report showed blunt trauma to the head and that death resulted from a bilateral subdural hemorrhage with marked edema of the brain.

THE CONFESSION

In his first three points of error, appellant contends that the trial court erred in overruling his pretrial motion to suppress his confession because it was not shown to have been voluntarily given and was inadmissible under the Fifth and Fourteenth Amendments to the United States Constitution, article I, sections 10 and 19 of the Texas Constitution and articles 38.21 and 38.22 of the Texas Code of Criminal Procedure. U.S. Const.Amends. V, XIV; Tex. Const. arts. 10 & 19; Tex.Code Crim.Proc.Ann. arts. 38.21, 38.22 (West 1979 & Supp.1995).

In his motion to suppress the confession, appellant contended that the confession was the result of custodial interrogation following an illegal arrest and that it was obtained "by coercion and threats by law enforcement personnel without the proper warnings of his constitutional and statutory rights after he had attempted to terminate the questioning." At the suppression hearing (conducted prior to the first trial), it was shown that Sergeant Bruce Boardman of the Austin Police Department received a telephone call and then assigned Sergeants Michael Huckabay and Hector Polanco to investigate a possible child abuse case. Upon arrival at Brackenridge Hospital, Huckabay and Polanco viewed the injured child, who was in critical condition, and were informed by Dr. Jaffe that the injuries were not the result of a drowning. The officers went to the hospital's family room where they encountered appellant, Boutwell, appellant's mother, a neighbor, and a social worker. Since appellant and Boutwell were the only adults present at the time of the injuries, the officers requested that they come to the police station to give statements. They agreed. Polanco testified that at this point, the officers did not have sufficient information about the cause of the injuries to view appellant and Boutwell as suspects or to conclude that a criminal act had occurred.

Upon arrival at the police station at about 1:00 a.m. on January 3, 1990, Boutwell was placed in one interview room and appellant in another. Sergeants Huckabay and Polanco commenced their investigation by interviewing Boutwell. At first, she persisted in repeating the drowning story. When her interrogators said that they did not believe her, Boutwell began to yell and scream at the officers. At this point, Sergeant Mark Rush was asked by the officers involved to move appellant so that he could not hear Boutwell. Rush placed appellant in a lobby near the elevators. Later, Boutwell incriminated appellant, accusing him of causing the injuries to her two-year-old son.

At about 3:00 a.m., Huckabay went to the lobby area and returned appellant to an interview room. There, Huckabay and Polanco Sergeant Boardman, who was still working on another case, heard the yelling and went to the interview room. As Huckabay opened the door to leave, appellant asked if he could talk to Boardman. The officer entered the room and shut the door. Appellant continued to protest his innocence. Boardman explained that the child had not drowned, that there was a subdural hematoma, and that the child was now brain dead. Boardman also informed appellant that the police knew the victim had been admitted to the hospital two or three weeks earlier. He rejected each explanation appellant made. The interrogation continued. Boardman described appellant's attitude and demeanor as being inappropriate under the circumstances; he was cocky, unfeeling, uncaring, and had a smirk on his face. When appellant stated that Boardman was saying the same things as Huckabay, Boardman got up to leave. Before leaving, Boardman, a weightlifter, suddenly grabbed appellant by the lapels of his jacket. Boardman described what happened next:

                reintroduced themselves and asked appellant what had happened to the child.  Appellant repeated the drowning story.  Huckabay told appellant "to think about it, get it straight."   The officers left the room.  Sometime later, Huckabay returned to the room where appellant was seated.  Sergeant Huckabay administered the Miranda 4 warnings to appellant and informed him that Boutwell was now blaming appellant for the child's injuries.  Appellant maintained his innocence, although Huckabay told him that the child's injuries were not consistent with appellant's story and that appellant was lying.  Huckabay reported that appellant became angry and began debating with him;  he also recalled that appellant had a smirk on his face.  Huckabay lost his composure and yelled at appellant, "[T]o hell with you."   When Huckabay got up to leave, appellant asked the officer to wait, but Huckabay told appellant that he did not "want to hear what you've got to say."
                

I shoved him against the wall and I told him that if he didn't take that shit-eating grin off his face, that I was going to pull his head off and shit down his throat. I then told him that he was--several different things about what I thought about him. Then I asked how it felt--'How do you think little Christopher felt to have someone your size throwing him around?' I said 'How does it feel to be scared?'

Boardman denied that his motive was to obtain a statement. He claimed that he only wished to get appellant's "attention" and change his "attitude" towards the investigation. He thought that appellant "was more stunned than anything" about what happened. The record further reflects on cross examination:

[DEFENSE COUNSEL]: In retrospect you were trying to intimidate him.

A: In retrospect, I was trying to get his attention, make him...