COUFT

FILED IN

Ul-CRIMINAL APPEALS

APR 13 2015

RECEIVED IN 40

COURT OF CRIMINAL APPEALS

ffl 13 2015

(Pause in proceedings . ) jkftAl

THE COURT: Anything further, Ms. Massey?

MS. MASSEY: Not from the State, Your

THE COURT: Anything further, Mr. Ritchie?

MR. RITCHIE: None from the Defense, Your

Honor.

• THE COURT: I'm slightly perplexed about

why this occurred. I mean, a person of average

intelligence or even diminished intelligence should know

better than to do this. And there's an indication in

Exhibit 2 that you always did that. So it was not an

isolated incident.

Ms. Massey, do you have any closing

arguments you'd like to make?

MS. MASSEY: Yes, Your Honor.

Based on the severity of this case, the

••te.fact that it's not an isolated incident, and his

*explosive personality disorder that he admits that he

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Abel Acosta, Clerk

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Honor

has, that he does have tendencies towards anger and

interest of the community that he be sentenced to the

Institutional Division of TDCJ.

But if the Court chooses not to do that,

we would ask that he be at least required to do an anger

/ ELIZABETH BOURQUIN, CSR

/" ^ 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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management class and not be near his wife or child, if

that's what they ask, and it's my understanding they

have asked, for at least two years.

THE COURT: Well, let me just ask you

that. I mean, that's -- can that be imposed -- you're

saying that can be imposed as a term and condition of

probation?

MS. MASSEY: It can be a condition of

probation that he not be near his wife and child for as

long as the Court deems proper.

THE COURT: But that would not be

enforceable like a protective order would be, though.

MS. MASSEY: No. It would be a violation

of probation if he did that.

THE COURT: All right.

MS. MASSEY: This would just be extra

protection for the family.

THE COURT: Right. Okay.

All right. Can you speak to the mindset

of this offense, though, that I was alluding to? Why

would this occur? I mean, based upon — what's your

position in that regard?

MS. MASSEY: Based on the evidence, the

only conclusion" that I can come up with is that he was

angry with the child for whatever reason, whether it was -"-'.. y*rj;. £ -,i_o: ;'-.^J^

" ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS /\j-'~eAj &JS

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(.*C/because he dirtied his diaper or__because he wasn't being

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THE COURT: Okay.

MS. MASSEY: -- and did this out of anger.

THE COURT: Okay.

All right, Mr. Ritchie.

MR. RITCHIE: My take on the actual

incident is -- give me a second to articulate what I

really think about what the evidence shows, Judge', is

that when you first look at it in a vacuum, it's — you

think, well, who would do that conduct?

But then you go, how can a three-year-old

having a diaper changed and wiggling around and. doing

certain things? I mean, it's just — you go, wow, how

can that happen?

I think you get into inadvertence; I think

you get to recklessness, which is also part of that

statute. And, you know, there's a 1esser*. incTud^gd^gc^irig^

down. That's a state jail felony offense. But — andi

don't think that's what the Court is asking about.

But I don't — to me, ,,t'his evidence is"""%

that Johnny did not do it.a nume:rous number of times or

probably the same result would have happened because of ^ ^-^•sp—"-?^^~~^?'Ktt&v$&rj-,—^tr??""*^ j•- r" ^< ^-'j5^^-«^r^^-s:rr-:'"~"""'*" "^s"T7*' ""•to'JSg&S

Athe finqernails or whatever^*) But I think it was a — it

happened spur of the minute A The child's wiggling :-^-s-—.;jV^:-^>- Vf;

.^r^esOT!''"'?8^^*^^

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS

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around, going around, maybe not behaving.

And so, Judge, it is what it is. I think

your perception is the same as everybody else's. But I

think the practicalities of this happening in the -- in

the near future are just -- I mean, I don't think ""

there's any threat to society about Johnny going around

changing diapers on kids, okay, number one.

•—— ' "I^niean, it's -- the kid is bound to be old

enough, since he's going to be five, where the same kind

of conduct wouldn't occur. Maybe other conduct would

occur. I mean, that's always a concern for us. But

that conduct can't '-- surely wouldn't.

I don't know -- I honestly don't know

where the CPS case is in this system. I'm assuming --

and the Court may know -- if it's in this court, then it

certainly would be supervised visitation, and he

wouldn't have the opportunity to be around the kid, kind

of like a protective order, without supervision. And I

don't know that.

THE COURT: I don't know — I don't know

the answer. I have so many of them I can't --

MR-. RITCHIE: I understand, Judge. And

I -- but I would -- we both know -- CPS is in it

somewhere, I believe.

And as a condition of probation, I

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
jfS^^yor $ko^ tu,k£ bj

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would -- I would think that this Court could just make

it an order of the Court for him not to be around, until

further order, and let him amend his conditions of

probation through a lawyer, if the Court felt

comfortable about that. And certainly, anger management

and those kind of things.

But I don't think Johnny is a threat to

society. I think he's genuinely concerned about the ...-^sz^taM'SBii&i ^,,^,.^111 iiilir<1f'^*,a''l*J'**!^-'*'^^',***iaiWllr*rt'llTITtHTWi'j-irTrfrTf*Tr*rH6'*rHWmTrV1* •"W*-"¥r*'.fVi'|-<rlYTrrr' mr„-;-«<r"r^'**-TMti'r'''»l»''tf

damage that he did to the marriage and still wants to

get back with her, but I don't -- I don't believe he

is a -- I don't think the evidence shows that this is a

violent predator like that. „

I think it was a total lapse of judgment,

to even attempt to change a diaper that way. I mean, I

r 4-k,4- I n 4-1 J-l-J think that's -- that's true

THE COURT: Well, I mean, the pictures are

very serious to me. I mean they depict very serious

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MR. RITCHIE: Yes, sir.

THE COURT: Almost shocking of the

conscience really is the way I see it. And I just --

that's why I say, I just don't understand how a human

being can do that to their own son. That's really

troubling to me.

MS. MASSEY: Your Honor, actually, his

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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caseworker is here in the gallery today, and she's

advising that it is open simply for the fact that he has

been in jail pending this outcome. But the child's been

reunified, and services have been worked by the mother.

(Pause in proceedings.)

THE COURT: Mr. Davis, could you stand,

please.

THE DEFENDANT: (Complies.)

THE COURT: All right, Mr. Davis. You've

come before the Court today, and you entered a plea of

guilty to the offense alleged in the indictment in this

case .

You were duly admonished by the Court

about the consequences of that plea. You've asked the

Court to consider to give you -- to put you on

probation, but I told you, prior to accepting your plea,

that you were not going to be allowed to withdraw that

even if I rejected what you were asking me to do.

I found that your plea was knowingly,

intelligently, freely, and voluntarily given, and I

accepted that plea of guilty. And you -- there's been

evidence presented, which goes to the effect of

punishment or sentence or what to do with you in this

case .

So, first of all, I'm going to find you

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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guilty of the offense alleged in the indictment in this

case, sir.

THE DEFENDANT: If it would make you -- if

it could speed it up, could I speak, please?

THE COURT: What?

THE DEFENDANT: Could I please speak to

the Court, please?

THE COURT: I'll give you just a second.

THE DEFENDANT: Sorry.

THE COURT: No. I want you to go ahead

and speak to the Court now before I assess punishment.

THE DEFENDANT: Okay. In 2007 or 2008, I

was — I went to MHMR with my — me and last wife was

getting a divorce. I was still • • I had the explosive

temperament disorder and depression, and that was it.

He just, you know, let me go.

"" And then I went -- just started recently

going back to..and getting -- through MHMR in

Weatherford, I was talked to -- I was mentioned that

word to — "explosive" to my counselor, and she said

bipolar.

And I had an appointment, I think, for

October 2nd or October 4th, I was supposed to go back to

MHMR, and I was going to request to be put. oh medication

for it.

-,- .'«WTO»w»7Mejss,,.

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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Q. Okay. And what did you determine from

discussions with the mother?

A. She told me that she didn't know of any foul

play or wrongdoing, that she just assumed that he had

fell off, and this conversation that she had with the

defendant. That's what the defendant told her, that he

had fell and hurt himself that wa'

Q. And did you have -- did you interview the

defendant?

A. Yes, I did.

Q. And what did you find out from the interview of

the defendant?

A. He told me that -- oh, I spoke with him for

quite a while about the whole incident, and towards the

interview (sic), he said that the injury happened when

he was actually changing his diaper.

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He was moving around -- the kid was moving

around while he was changing his diaper, and in order to

get him to be still, he lifted him up by the base_of his

penis and that in turn, that caused the injury.

And he --

Q. Go ahead.

A. He told me at that time — that's when we knew

that injury had occurred, because he said that he did

cry a little bit and that he went ahead and put the

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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diaper on and kissed him and went on. * w * W1

Q. And based on.your investigation, who caused the

injuries to the victim?

A. Johnny Davis, Sr.

MS. MASSEY: I'll pass the witness.

CROSS-EXAMINATION

BY MR. RITCHIE:

Q. Jeremy, as you know, I represent the defendant.

•"vC 'm Richard Ritchie. And you and I have never talked ?a»&±&%m&Mx«!

about this case before today, have we?

A. No, we have not.

Q. And you -- actually, you interviewed Darlene

Davis, which is Johnny's wife; is that correct?

A. Yes.

Q. And let's establish the age of that child

backwards in there about September. I think his date of

birth was '09 —

A. Okay.

Q. -- in September, so he would have been about

three?

A. Uh-huh. That's correct.

Q. Three years -- I believe four. I believe he

would have been four.

A. He had just turned.

Q. . Just turning four about that time; is that

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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correct?

A. That is correct.

Q. So coming up in September this year, he'd be

five?

A. Yes.

Q. All right. And you interviewed --i and I think

that injury was on the Saturday prior to Labor Day.

Does that ind correct?

A. Yes, that is correct

Q. All right. And as you stated, I mean,

everybody -- that -- all of the reports indicate that it

was sometime on a Saturday evening, and Johnny was in

charge. Is that your understanding of the changing

diapers, taking care of the kid?

A. Yes, that is my understanding.

Q. And they call him J.D.; is that correct?

A. Yes.

Q. And all of these interviews were voluntary;

they came in, correct?

A. It was voluntary.

Q. All right. And you actually interviewed him, I

believe, on the 9th of September maybe -- no. 19th.

I'm sorry.

A. Yes, the 19th.

Q. The 19th of September. But the actual event

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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happened sometime before that, correct?

A. Yes.

Q. All right. And I notice on there that there's

no sjer)i,o,u»s«-b.odily inj,ury. As a matter of fact, ..the

child was back in school.-.I believe, on the following

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Monday after Labor Day, right?

A. I believe that's when he went back, yes.

Q. The child missed about a week of school; is

that correct?

A. Yes.

Q. And so -- and so if the injury happened on

Saturday of Labor Day weekend,.I believe the parents

were treating the laceration with Neosporin. fvvf£ ^

A. Yes, that'swhatthey said. ^.W^ ,7 "l

~ —" ClriWWt) Q. Is that basically right? '^ '

A. (Nods head affirmatively.)

Q. In fact, I think that's what Stephanie Giles

said when you interviewed her, right?

A. Yes, that's correct.

Q. And the child is — certainly, the child has

.. recovered now, correct? ~^

( A. I believe so. ^

"'/'Q."~ Right. It's not serious bodily injury, in your

^'opinion, is it?„

(A,

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No, it's not.

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ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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Okay. Isn't it fair to say, based upon all of

your interview and all of your investigation, that the

parents didn't attempt to hide this injury from the

^school system or HeadJtMt? Right?

A. They did^jen_d^hiijm to school --

A Q' * A.

Q.

I'll give you that.

-- so . . .

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I mean, the kid returned to school. Head Start

gets -- I mean, gets upse,t jwhen they have to change _a_

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three-year -- the kid's diaper, and they find it, and

they're kind of shocked, right?

A. Yes, they were.

Q. I understand.

As a matter of fact, Johnny, the defendant,

came to get the kid from school that very Tuesday, I

believe; is tha.t_acc,ur,ate.?.

A After the — yes, after they found the injury^

Q."~~-After they found it, he came;

A. He did come.

Q. And then some days later, he comes in to

interview with you when you call him, right?

A. Yes, he did.

Q. Okay. And both parents are treating this child

wit! iosporin, and they don't call law enforcement.

I'm talking about Johnny or Darlene or anybody. They

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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system, or is it even in'the system yet, or do you know?

A. It should — Investigator Henard -- yes, it

should be in the system. I don't know the status of

their case, though.

MR. RITCHIE: I pass the witness.

REDIRECT EXAMINATION

BY MS. MASSEY:

Q. Just clear up one little thing.

When Mr. Davis went and picked up the child

from Head Start, did he tell them what happened?

A. He told them — he told them a story of what

happened.

Q. Okay. And what did he tell them? «»

A. He told them about the fall. I ^:

Q. And when you interviewed him, did he

immediately tell you what had occurred?

A. No, he did not.

Q. And did he tell you the story of him falling

also?

A. I believe in the beginning of it, he did. We

A'-T V/A<?? did _spea^ about that. s^> ^ f- ''> <A '>*

Q. But he did eventually tell you what happened?

A. In the end, yes, he did. $\

MS. MASSEY: No further questions

MR. RITCHIE: I have no further questions.

ft

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS

AS

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1 A. No, sir.

2 Q. Did you graduate from Springtown?

3 A. Yes, sir.

4 Q. And that's high school, correct?

5 A. Yes, sir.

6 Q. Do you have any other education at all besides

7 that?

A. No, sir .

9 /qV^ And you've got some physical disabilities; is

10 that right?

11 A. Yes, sir.

12 Q. Can you name some of those?

13 A. I've got a partially fused — partially fused

14 left hip, and I've got the beginning stages of..

_,u,.«« i...i..^i.. -^-.tfp^-cr-rn;':s-w --j^v.v.v.»•• •:••;: -. - n< •*-'• **->•*• -

15 "degenerative disc disease' in my back.

16 " Q. Okay. You walk with a pretty noticeable limp;

17 is that correct?

18 " A. Yes, sir.

19 Q. You're in pain a lot; is that right?

20 A. Yes, sir.-7,"5

21 *Q""f'"* Okay. And have you been diagnosed with things

22 going on in -- mentally?

2 3 'A. Yes, sir.

24 '"''"q7 Bipolar?

25 A. Bipolar, yes, sir.

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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Okay. Certainly depression and anxiety over

) the years; is that right

Yes, sir.

Q. And you've off and on taken medicine for that

for a long period of time; is that right?

A. Yes, sir.

Q. Sometimes you get it -- get the medicine

9 correc tly; sometimes you don't, right?

A. Yes, sir.

Q'."K' Today, as we're sitting here, since you've been

in custody, there's nothing that the jail has given you

that causes you not to understand what we're doing

today, though, is it?

A. No, sir.

Q. You totally understand, and you understand what

I'm talking about, what the Court's talking about, and

nothing about medication is keeping you -- hindering you

in any way of communicating --

A. No, sir.

Q. -- is that right?

A. Yes.

Okay. Do you know what your IQ level has been

established at? *£f.r- .'\l- * 0*f.A$N.VQ A/

A. No, sir.5 ""'' .?»• ***

Q. We're going to get to the night — or the

£) / ELIZABETH BOURQUIN, CSR

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I ff fefli ^JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS

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Do you understand all of that?

A. Yes, ma'am.

Q. And you thoroughly believe that you can and

will do all of that?

A. Yes, ma'am.

Q. Even though you don't have a car and.a ride?

A. I'd find a ride with,a friend of mine. I'll

just have to -- you know...

Q. And if I told you that your wife didn't want

you back in the house, would you be accepting of that,

if she told you that?

A. It'd hurt, but I — I want to be back with her.

'This was an accident*?9' ^

stop any disability, stop and go back to work and learn

how to be a better father and husband.

Q. Now, in the medical records that I introduced

earlier, there's a statement from your wife -that you ,had

been diagnosed with an explosive personality?

A. Yes, ma'am.

Q. And that means that you're prone to anger and

I didn't do thisj^- I want to

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)violence.

A. Yes, ma'am. But at the time, I was unaware

what that meant.,, " "•--><;..

Q. But you admit that you do have that?

That's one reason I'm trying^to

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get the prescription to get the. medicitn^J.to.„.g.e,t..,this

condition under control.

MS. MASSEY: I'll pass the witness.

REDIRECT EXAMINATION

BY MR. RITCHIE:

Q. And, Johnny, that's why, if you get placed on

probation, you can get some anger management and some

help; is that correct?

Yes, sir.

j Q. Because you donft want anything bad to happen

to your son. This has — this has been very difficult

-on you, hasn't it? ~" *-'"KCCT=*OTrwc--t-r"-'

'A. Yes, sir.

Mi?. RITCHIE: I pass the witness, Your

Honor.

MS. MASSEY: Your Honor, may I have a

moment?

THE COURT. Yes. Can I have that exhibit,

Exhibit 2?

(Pause in proceedings.)

THE COURT: Ms. Massey?

I'm sorry. I didn't -- is that all you

have, Mr. Ritchie? Did you rest?

MR. RITCHIE: I had passed the witness,

Your Honor.

ELIZABETH BOURQUIN, CSR

29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS