### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00242-CR
Larry D uarte, Appellant

v. The State of Texas, Appellee

FROM THE

DISTRICT CO URT OF TRAV IS COUNTY, 147 TH J

UDICIAL DISTRICT NO. 0992326, HONORAB LE WILFORD FL OWERS, JUDGE PRESIDING

A ju ry f ou nd ap pe ll an t L arry Duarte guilty of inten

tionally or knowi

ngly inflicting serious bodily injury or serious mental de ficiency, impairment, or injur y to a child. See Tex. Penal Code An n. § 2 2. 04(a)(1), (2) (West Supp. 2000). The jury assessed punishment at imprisonment for life. Appellan t contend s the ev

idence i s legal l y and fact u ally ins ufficient to susta inthe guilty verdict and that his videotaped statement to the police should have been suppress ed. We will ov errule these cont entions and affirm. OnJanuary 14, 1999, appellant’s wife, Rebecca Duarte, took theirtwo-week

-old da ug ht er, Vi ctori a, to h er p edi atrician’s offic e for a schedu led well-b aby che ckup. Duarte repor ted that Victoria had been coughing and wheezing, and a chest X-ray revealed that the child had pneumonia. The physician’s assistant who c onduct ed the examination also noticed bruises
near the child’s

left eye and ear which caused him to be concerned thatshe had been mishandled.2

Victoria was ordered hospitalized for treatment of the pneumonia and for fur ther evaluation of her head injur ies. Tests at the hospital disc lose d tha t Vic toria ha

d a linear sku

ll fractu re on the left side of her cr anium with related bleeding between the skull and brain. Doctor s also found a metaphysealfracture of the left leg. Doctors testifie d that su ch a fracture resultswhen the leg is violently twisted and is “ highly specific for child abuse. ”

When interviewed at the hos p ital about Victoria’s injur ies, Rebecca Duarte and
a ppellant reported that Victoria an d her eleven-month-old brother, Fr ank, had bee n left wit h appellant while Re

becca a nd her parents wen

t shopp ing. Dur ing this time, appellant and the children napped on a mattress on the floor. Appellan

t said that when he awakened, F rank had turned on the mat

tress so that his fee

t were by Victoria’s head. Appellan t said that he saw Fr ank kick Victoria’s head. Doctor s testified that an eleven-month-old child could not have kicked with sufficientforce to fr acture Victor ia’s skull. They hypothesized that Victoria had been picked up by the l e g a

nd shak en , ca us in g t he le g f ractu re. At s om e p oint , he

r he ad had s tru ck

a h ard surface, causing the skull fracture and br uising.

Detective B rett Wilson int erviewed app ellant an

d his wife

at the ch il d protective services office. Appellant repeated his story about F rank kicking Victor ia. When Wil son sa id that he did not

believe this, appellant

told the officer that he had accidentally dr opped Victoria. Wilson told appellant that

this would n ot explain the ser iousness of the c hild’s in jur ies. Appellant the n ex pl ai ne d t ha t a ft er h e d

rop pe d V ic to ria , sh e w ould

no t s to p c ryi

ng . Appe ll an

t t hre w he r3

onto the bed, then picked her up and threw her onto the floor. Appellant admitted knowing that the child was seriously injured.

Inhis point s of err or challenging the sufficiency of the evidence, appellant does not denythat he was shown to have intentionally or knowingly injur ed his infant daughter. Appellant contends only that the State failed to prove that the injuries wer e of the degree neces sary to
su pp ort a first degr ee felony conviction. See id . § 22. 04(e). He contends in two points of err or that the evide

nce is l egally a

nd factua lly insuffic ient t o suppo rt a finding that Victor ia suffered serious mental deficiency, impairment, or injur y. See id
. § 22. 04(a)(2). In a third point , appellant contends the evidence

is factually insufficient to support a finding that the child r eceived a serious bodily injury. See id
. § 22. 04(a)( 1).

A factual sufficiency challenge presupposes that the evidence is legally sufficient to sust ain the ve rdict. Clewis

v. State , 922 S
. W. 2d 126 , 134 (Tex. Crim. App. 1996) ; Stone v. State , 823 S. W. 2d 375, 381 (Tex. App.

— Austin 1 992, pet. ref' d untimely fi le d). B ec ause app ellant does not challenge the legal sufficiency of the evidence to support a finding that he caused se rio us bo di ly in ju ryto the child, and because suc h a finding is alone sufficient to sust ain the ju ry’ s v erd ic t, we n ee d n ot

ad dre ss hi s e vi dent ia rycontenti ons. Points of err or one, two, and three ar e overr uled.

A videotape of appellan t’s interview with Dete ctive Wil son was introduced in evidence ov er a

pp el la nt ’sob je ct io n. In p oint s o f e rror f ou r an d five, appellant contends the confession

was ta ken in violation of his rights under federal and state law. Specifically, appellant urges that he was not

advised of h is rights pr ior to questioning, and as a conseque nce did not4

knowingly

a nd v oluntarily waiv e those rights before making

his sta tement. See Miranda v. Arizona , 384 U. S. 436, 478-79 (1966); Tex. Code C rim
. Pr oc. Ann. art. 38. 22, § 3(a)( 2) (West Supp. 2000). The dist

rict cou rt overruled a

ppel lant’ s objectio n on the ground th at he wa s not in custody when the statement was made. Mir anda an d article 38. 22 apply only to statements resulting from custodial interr ogation. Rodri

guez v . State , 939 S. W. 2d 211, 215 (Tex. App.

— Austin 199 7, no pe t. ). Whether a state

ment is the product of custodial in te rro gation must be determined on an ad hoc basis after conside

ring all of the obj ective cir cumstances. Dowthitt v
. State , 931 S. W. 2d 244, 255 (Tex. Crim. App. 1996)
. “ A person is in ‘cus tody’ only if, under the circumst ances , a reasonab le person would believe that his freedom of movement was restr ained to the degree ass ociated with
a formal arrest. ” Id
. at 254 (citing Stans bury v. Califor nia , 511 U. S. 318, 322 (1994)). The district court’s concl

usion tha t appella nt was n ot in cus tody when

he made t

he stat ement prese

nts a mixed question of

law and fact that

we review de novo
. See Her nandez v. State , 957 S. W. 2d 851, 852 (Tex. Crim. App. 1998)
.

Wilson testified that after being assigned to investigate the D uarte mat ter as a possib le child abu se cas e, he went to the child prote ctive se rvi ces office t o speak to the case
wo rk er. Appell ant and his wife came to the office while Wilson was there to bring toys and clothes to their two childr en, wh o had been taken from their home the previous day. Wilson spoke privately to ea

ch. He told appel lant when his interview began that h e was not under arr est and was free to go at any time. Appellant indicated that he understood. In the course o f th e5

subsequent

interview, appellant made the sta tements previously discussed. Appellant then left the of fi ce , and w as

no t a rres te d u ntil th ree da ys la ter. Appellant co nc ed estha

t he wa s n ot i

n c us tod y w he n th e i nte

rvie w b eg an . He argues, however, that custody began when he admitted to Wilson that he had dropped the baby. Appellant urges that his situation was like that of the defendant in Dowthitt , i n which the court of criminal appeals concluded that a s uspect’s custody

began wh en he to ld of fi ce rs du ring a vo lu nt ary station-h ouse interview that he had been present when the murder s under investigation had been committed. See Dow thitt , 931 S. W. 2d at 256-57. The court wr ote:

While [the defendant] did not adm it to committin g the offens es, his admission

that he was present during the mur ders was incriminating, and a reasonable person would have realized the incrim inating nature of the admission. Giventh e l engt

h o f t he in terrog at io n, the ex is tenc e o f f

ac to rs involving the exer cise of po lice con trol over [the defendant] (accompanying [defendant] at restr oom break s, ignoring r equests to see his wife), and

[the d efendant’s] damaging admission establ ishing pr obable cause to arrest, we believe that “ custody” began after [the def

endant] ad mitted to his pr esence dur ing the mu rder s. Id
. at 257. While Dowthitt shows that a crucial admissionmay turn a noncustodial encounter into a custodial one, it is clear that the admissionwas not the only factor considered by the court. Dowthit t’s admission

to being pre se

nt at th e m urders wa s made a

t 1 :00 a
. m., af

ter tw el ve ho urs of more-or -less continuous questioning at the police s tation. See id
. at

25 6. Off ic ers ignored two requestsby Dowthitt to see his wife. See id
. Officers acc ompanie d Dowthitt dur ing restr oom break s, and it

was clear at leas

t six hours be fore the admiss ion that Dowthi tt was a suspe ct. See6

id
. As the quoted

passage makes

clear, all of these circumstances contributed to the conclusion that custody began when Dowthitt made his crucial admission.

Wils on’sinterview with appellant did not take place at the police station, but at the offices of child protective ser vices. Appellant was told repeatedly during the inter view that he was notunder ar rest and could lea ve at any time. Appellan

t admitted dropping Victoria thirty

minutes after the interview began. This admissi on may have cau sed Wilson to f ocus on appell ant as a suspe ct, or even given Wilson probable caus e to arrest, but there is no showing that t he offi cer’s subjective intent or belief was conveyed

to appell ant. See Dow thitt , 931 S. W. 2d at 254 (custody determination based entirely on objective circumstances; subjective intent of police irr elevant except t o extent it may be man

ifested i n words or actions). While it is apparent fr om watching the videotape that appellant understood he

was a s uspec t in the ong oing inves tigation, this is

not initself determinative of the custody issue. See Rodriguez , 939 S. W. 2d at 21 7. Appe llant

left Wils on’soffice fifty

minutes after the inter view began and went home with his wife. Considering all these c ircumstance s, we conc lude that a reasonab le person in appellant’s position would not have be lieved th at his freedom of movement had been r estrained to the degree associated with a formal arrest. B ecause appellant was notin custo dy, it was no t neces sary for Wilson to a dvise hi m of his rights be fore questioni ng him. Miranda and article 38. 22 were not violated. Points of err or four and five ar e overr uled.7 The judgment of conviction is affir med.

__________________________________________ J. Woodfin Jones, Justice B efore Justices Jones, Kidd and Yeakel Affirm ed F iled: December 21, 2000 Do N ot Pu blish