NO. 07-02-0246 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C JULY 1, 2003

______________________________ JOHN HELTON, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 181 ST DISTRICT COURT OF RANDALL COUNT Y; NO. 13,970-B; H ONORAB LE JOHN B . BOARD , JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
OPIN ION Following appellant John Helton’s plea of no t guilty in a b ench tr ial, the trial co urt found him guilty of the offense of injury to a ch ild and sentenced him to life in pr ison . By thisappeal, ap pell ant contends: (1) the evidence is lega lly and fact ually insufficient to support the co nviction; a nd the t rial court abu sed its disc ret ion in (2) denying the m otion2

to suppress his oral and w ritten statem ents; and (3) sentencing him to life im prisonment in violation of the Eighth Amen dment of the United States

Constitution. Based upon the rationale expressed herein, we affirm.
On August 24, 2001, em ergency personnel transported appellant’s daughter, the two mo nth old vi ctim, to the hospital after appellant reported she was having difficulty breathing. Upon discovering the victimhad a s eve re s ubd ura l hem ato m a, t w o line ar s kull fractures, retinal hemorrhages and a broken rib, doctors diagnosed her condition as Shaken Baby Sy ndrome. The victim’s physicians informed police that S haken Baby Syndr om e resultsfrom“non-ac cidental tra um a.”
Initi ally, appellant denied any knowledge of t he o rigin of the victim ’s injuries. A
cou ple of week

s after the victim was

hospitalized , however, appellant provided police with
a written statem ent in which he adm itted he “ sho ok h er [thevictim ] ha rd a nd h er h ead hit the doorfram e of the bathroomdoor.” Appellant explained he had “never been that m ad in [his] life,” and he “just sna pped.” In addition to the written s tatement, appella nt also made oral stateme nts of varying degrees of incr im inat ion to law

enf orc em ent

per son nel.
In a m otion to suppress his oral and w ritten confessions, a ppellant alleg ed h is statem ents were involuntary and take n in violation of his Sixth Am endme nt r ight to
cou nse l. At a hearing on the m oti on, Detective Higley, a polygraph examiner, test ified appellant voluntarily transported himself to the A marillo Police Departm entfor the purpose1 See Mirandav. Ar izona, 38 4 U.S . 436, 8 6 S.C t. 1602 , 16 L.E d.2d 694(1966). 3 of undergoing a polygraph exam ination. Detective Higley told the court appellant was not under arrest at the time he arrived at the poli ce departm ent, and he never placed appellant under arrest. Detective Higley m aintained appellant was free to leave t he poli ce departm entat any time. Additiona lly, he testifi ed he infor med appellant of hi s Mir anda 1 rights as they appeared on th e top of a formentitled “Amarillo Police Departm ent Polygraph Exam inati on W arning. ” Appell ant acknowledged hi s understandi ng of those rights by signing the form . Then, according to Detective Higley, appellant submitted to a polygraph exam ination. Following the exam , Detective Higleyengaged in a conversation with appellant, in which appellant admitt ed sha king the victim “hard.” A fter the conversati on, Detective Higley escorted appellant to an interrogation room at the poli ce departm entwhe re they wer e me t by Sergeant Jo nes. Detective Higley testified appellant left the police station at the c onc lusio n of his inte rvie w

w ith S erg ean t Jo nes . C hild Protecti ve Services em ployee Shannon Burch testified she observed Detective Higley administer

the polygraph exam ination to appellant. Her testimo ny wasconsistent w ith that of Detective Hi gley. Sergeant

Jones also testified at the hearing on the motion to suppress appell ant’s statements. According to him, appellant was not under arrest at the tim e of the interview and was f

ree to leave at any tim e. Sergeant Jones averred that, not long after arriving at the inte rro gat ion r

oom , ap pella nt a dm itte d, “ I did it.” Prior to the interview, S ergeantJones4

apprised appellant of his statutory and constitutional rights by reading those rights as they appeared on the top of a form entitled “Statem ent.” During the interview, w hich began at 3:10 p.m . an d co nclu ded at 3 :45p.m ., S erg ean t Jo nespre par ed in hi s own handwriting a statem entbased upon appel lant’s o ral statem ents. Sergeant J ones testified he did not threaten appellant nor make an y prom ises of leniency in exchange for appellant providing
a statem ent. Finally, SergeantJones testified that after he finished writing the statem ent, appellant read it, m ade cor rec tion s toit, and sign ed it , th en le ft t he p olicesta tion on h is
own. In addition to Sergeant Jones, Child Protective Services em ployee Phillip Houli han
waspr es en t d ur in g a pp el la nt ’s i nt er vi ew. Houlihan’s testim ony at the suppression hearing mirrors that of

Sergeant Jones. Appellant testifi ed at the suppressi on heari ng that he arri ve d at the poli ce departm enton Septem ber 13, 2001, betw een 12:45 p.m . an d 12: 50 p .m ., in tim e fo r his polygraph exam ination s che duled for 1:00 p.m . Appellant claimed he m ade no incriminating adm issions toDetec tive Higley. He also could not re memb er Detective Higley re ad i ng to hi m th e wa rn i ng s c on ta i ne d o n t he Po l yg ra ph Exa mi na ti on W ar ni ng fo rm. Moreo ver, appellant claimed that following the po lygraph exam ination, Detective Higley squeezed his knee so forcefully the officer left red m arks on his skin. Appellant testified, “he [Detective Higley] was wanting m e to confess.” W ith respect to the w ritten statem ent thatwasat tr i bu te d t o h i m, appellant denied knowing its contents, and c laimed he signed the document to protect his family. Final ly, appell ant averred he requested the assi stance5

of an at torney during his interview with S ergeant Jones, but that Jones “said it was too late.” At th e conclus ion of thehearing, t he trial cour t found appellant’ s oral and wri tte n statem ents were knowing and voluntary and not the product of custodial interrogation. The trial court reduced those findings to written findings of fact and conclusions of law. Concluding the suffici ency of the evide nce turns u pon the propriety of the trial court’s ruling on the motion to sup press the w ritten and oral statem ent s, we initia lly address appellant’ s third po int of erro r. By that point, appellant specificall y contends the trial court abused its discretion by denying the m otion to suppress because h is oral and written statem ents were involuntary. W e disagree.
The standard of

review for the tri al court’s ru ling on a motion to suppress is abuse of discretion. See Oles v. State, 993 S.W.2d 103, 106 (Tex.Cr.App. 1999 ). In a suppression hearing, t he trial cour tis the sole trier of fact and j udge of the credibility of the witnessesand the weight to be gi ven their te stimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Cr.A pp. 20 00 ). Th us , th e t ri al cou rt is en ti tl ed to be li ev e a ny or al l o f a wi tness ’s testimony. Id . T he evi de nc e sh ou ld be vi ewe d in the light mo st favorable to the trial court’s ruling. SeeState v. B allard, 987 S. W .2d 889, 891 (Tex .Cr.A pp. 1999 ). More over, we should afford almos t total deference to the trial court’s determ ination of historical facts thatthe record supports, es pecially when the fact findings are based upon an evaluation of the witness’ credibili tyand dem eanor. Ross , 32 S.W.3d at 856 ( citi ng Guzm an v. State, 955 S. W .2d 85, 89 (Tex .Cr.A pp. 1997 )).6

Voluntary, noncustodial statem ents are exempt from the requirementsof Miranda and article 38.22 of the Code of Crim inal Procedure. Cf . Holland v. State, 770 S .W .2d 56, 58 (Tex.App. –Austin 1989), aff’d , 802 S .W .2 d 6 96 (T ex. Cr .Ap p. 19 91 ). Th er ef or e, we beg in our analysis with the trial court’s finding that appellant’s state ment s were not the product of custodial interrogation. Custodial interrogation is questioning i nitiated by law enforcem entofficersafter a person has been taken into custody or otherw ise deprived of his freedom in any significant way. Cannon v. State, 691 S .W .2d 664, 671 (Tex .Cr.App. 1985) (citing Miranda v A rizona, 384 U.S. 436, 86S.Ct.1602, 1 6 L.Ed.2d 694 (1966). In determ ining whether an individual
wasin custody, the cou r t m ust exam ine all of the circumstances surrounding the interrogation, but “the ultimate inq uiry i s si mply w hether there was a form al arrest or restraint of m ovem ent of t he degre e assoc iated w ith form al arrest. ” California v . Behler, 463 U.S . 1121, 1125, 1 03 S.C t. 3517 , 3520, 77 L.E d.2d 127 5, 1279 (1983).
The Court of Crim inal Appeals has outlined some ge neral situ ations that m ay constitute custody, incl uding the fo llowing : (1) when the suspect is physically deprived of his or her freedom of action in anysignificant way; (2) w hen a law enforcem entoff icer tells the suspect he or she cannot leave; (3) w hen law enforcem ent officers create a situation thatwould lead a reasonable person to believe his or her freedom of mo vem ent has been sign ific ant lyres tric

ted ; an d (4 ) w hen the re isprobable cause to arrest and law enforcem ent officersdo not tell the suspect he or she is free to leave. Dow thitt v. State, 931 S.W.2d2 Under thecirc um sta nce s pr

ese nte d in t his ca se , we as su me without deciding that a statem ent not the product of custodial interrogation may still be involuntary. 7 244, 255(Tex .Cr.A pp. 1996 ). In short, w e m ust look at the totalityof the circum stances and determ ine whether appellant’s free do m o f m ovem ent was restrained to a degree associated with a form al arrest. See Rathbun v. State, 96 S.W.3d 563, 5 6 6 (Tex. App.–

Texa rkana 20 02, no p et.). Having conducted a t horough revi ew of th e record, wefind present none of the situations delineated above in the events leading to appellant’s written and oral statem ents
on September 13, 2001. Indeed, appel lant vol untaril y transported hi mself to the poli ce station on Septem ber 13, 2001, he was never placed under arrest prior to or on that date, and he was free to, and, in fact, did, leave the station following the polygraph exam ination and inte rvie w . M ore ove r, t her e is no evidence officers restricted appellant’s m ovem ents atthe police station. W e conclude a reasonable person in appellant’s position would not have believed he was res trained to the degree associated w ith formal arrest. Nothwithstanding the l ack of cus tod ial interr

oga tion , ap pella nt m aintainshis statem ents were not voluntary. 2 Appellant claims the follow ing circumstance s rendered the statements involuntar y: (1) law enforc em ent off

icers failed to visually or aurally reco rd th em; (2) Detective Higley squ eezed his knee during the ir conversa tion; (3) Detective Higley “pressed” him into giving a statement after he began to hyperventilate; (4) Sergeant Jones den ied h im theopp ort unit y tocom plete hisown w ritten statem ent; (5)app ellan t did8

notinital any of the Mirandawarnings; and (6) he w as denied the right to counsel during the interview w ith law enforcem ent.
In reviewing the voluntariness of a conf ession, we look at t he totality of the circumstances. See Barefiel d v. State, 784 S .W .2d 38, 41 (Tex. Cr.App. 1989). Relevant circumstances to evaluate if a defendant’ s will has been overborne include: [ L]ength of detention, incom municado or prolonged interrogation, d eny in g a fam ily access to a defendant, refusing a defendant’ s request to telephone a la wy er o r family, and physi cal brutal ity . . . [and] a defe ndant’s characteristics and status, as well as the conduct

of the police.
See King v. State, 831 S.W.2d 891, 894 (Tex.App.–Hous ton [14 th ] Dist. 1992, no pet.) ( citi ng Arm strong v. State, 718 S.W.2d 686, 693 (Tex.Cr.A pp. 1985)).
After exam ining the relevant circumstancesin this case, we find no error in the trial court ’s con clu sion that appellant’s statem ents were knowing and voluntary. Assum ing without deciding that appellant was“detained” at the police station, we find the length of detention was not

undue. Indeed, the record reveals appellant arrived at the police station atapp rox im ate ly12:45 p.m . for a 1:00 scheduled polygraph ex amination and left

sho rtly after com pleting a written statement at 3:45 p.m . Further, the preparation of the statement lasted a m ere 35 m inutes. Moreover, there is no evidence i n the record to esta blish that anyof appellant’s fam ily mem bers were de nied access to him or th at police exercised physical bru talit

y du ring the ir co nta ct with a ppe llant . A nd w hile a ppe ll ant testi fied he9

requested an attorney, three other witnesses to the events of Septem ber 13, 2001 averred
no such request w

as m ade. Finally, with respect to appellant’s hyperventilation episode, the record reveals Detective Higley asked appellant not once, but tw ice, if he desired an ambulance. On both occasion s, appell ant denied such ass ista nceand app ear ed to “c alm dow n.”
Moreo ver, as noted above, appellant’s statem ents wer e not the product of c ustodial interrogation; therefore, the requirem ent that state ment s be visually or aurally recorded does not apply. See generally Tex. Code C rim. Proc. Ann. art. 38. 22 (Ver non Su pp. 2003 ). In addition, nothing in the Code of Criminal Procedure requires even individu als w ho are in custody to initial each of the Mirandawarnings on a statem ent form . Nor does the Code pro hibit a po lice off

icer fro m pre par ing in his own handwriting a statem ent based upon the oral statements of a suspect. Final ly, though ap pell ant makes m uch ado about Detective Higley squeezing his knee during their conversation, other witnesses testified that Higley merely patte d appellant’s knee in an apparent effort to console him.
In addition, other factors surrounding the taking of appe llan t’s statem ent support a finding that it was voluntar y. De tec tiv e Higley, Sergeant Jones, and CPS em ployees Ph illip Houlih an and Shannon Burch each te st i fi ed th at ap pe l l an t c ame to the police station
on his own. H e was ne ver handcuffed, never told that he was under arrest, or nev er told thathe was not fre e to leave. He w as not denied any basic necess ities, and was not promised anything in exchange for h is stat ement . In short, except for appel lant’s10

assertions tha t hew as “ pre sse d” in to g iving a s tatem ent and den ied t he r ight

to coun sel, there is no evidence his statem ent was involuntary. And , t he determ ination of whether appellant w as “ pre sse d” in to givin g a statement or denied the r ight to counse l was a determ ination for

thetria l cou rt to m akebas ed u pon an e valu atio n of thecre dibilit

y a nd demea nor

of the w itnesses. See Loserth v . State, 963 S .W .2d 770, 773 (Tex .Cr.App. 1998).
Atoral arguments , appellant urged this Court to hold that if a crim inal d efe nda nt is subject to the death penalty or life imprisonm ent, and law enforcem ent has the capability to vi su al l y o r a ur al l y r ec or d h i s s ta te me nt , i t mu st do so before the s tatem ents will be adm iss ible attrial against him. Ac cor ding to a ppe llant , th e fo reg oing pro ced ure is t he o nly relia ble method for testing the vol untarin ess of a criminal de fendant’s sta tem ent . While such a procedure m aybe advisable, appellant does not cite, and we havebeen unable to find, any ca ses imposing the requ irement on law enforcement. W e decli ne appell ant’s invitation to create a new rule of law . Appellant’s third point of error is overruleld. By his first and second points of error, appellant claims the evidence is legally and fac tua lly insufficient to support his conviction. W e disagree. Evidence is legal l y insufficient if, viewed in the light m ost favora ble to th e pr

ose cut ion, no r

atio nal j ury

cou ld find the defendant

guilt y beyond a reasona ble doubt. Bustamante v. State, No. 74, 079, 2003 Te x. Cr i m. App. Lex is 103 (Tex .Cr.A pp. Jun e 4, 200 3) ( citi ng Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 , 57 3 (1 979 )). Ev iden ce is fac tua lly11

insufficient if, view

ed w itho ut t he p rism

of “ thelight

m ost favora ble to the ver dict,” the evidence supporting the verdict is so weak or so against the overw helming weight of contrar yevidence as to render the verdict clearly wrong and m anifestly unjust. Id . ( citi ng Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.A pp. 2000)).
Beforedeterm ining whether the eviden ce is legally sufficient to sustain the
co nviction, we m ust review the essential elements the State w as required to prove. A person com m its the o ffenseof inj uryto a child, int er alia , if he in tentiona lly or knowingly, byact, causes s erious bodily injury to a child 14 years of age or younger. Tex. P en. Code Ann. § 22.04(a)(1) (Vernon 2003). H ere, it is undisputed tha t the tw o-m ont h old victim suffered serious bodily injury. Having found appe llan t’s written and oral confessions to have been pro perly adm itted, w e conclud e there is evidence from which a rational trier of fact could have found beyond a reasonable doubt that a ppellant caused the injury. As a result, w e co nclu de t he e vide nceis legally sufficient to support the trial court’s finding that appellant comm itted the offense of inj ury to a child. Next, we consider the factual sufficie ncy of the eviden ce to support appe llan t’s conviction. The crux of appellant’s argumen t un der this poin t is tha t th e tw

o-m ont h old victimwas readm itted to the hos pital on tw o occasions after he w as incarcerated for causing the August 24, 2001 injury. B ecause the victim continued to suffer injuries after he was d enied access to her, it follows, claims appellant, that another individual caused the original injury. W e disagree.3 The medical testim ony at trial w as copio us. While it is undisputed appellant had

no access to the victim after Septem ber of 2001, he vehem ently challenged the m edical evidence. The reco rd rev ealsthevictimwas adm itted to the hospital in Novem ber of 2001, and again in Decembe r. Appellant claimed thesub seq uen t ad m iss ionsw ere theres ult of additional shaking episodes. In contrast , the State m aintained th e victim , w ho was m ore sus cep tibleto head injur ybecause of the previous traum a, m erely suffered re-bleeds from the origi nal in jury. Because we decide appell ant’s w ritt en s tatem ent is le gally and fac tua lly sufficient to sup por

t his con viction for

cau sing thevictimser iousbod ilyinjury on August 24, 2001, we need not review t he trial court’s resolution of that conflicting evidence. 12 Even if the victim w

as subj ected to subsequent shaki ng inci dents after the August 24, 2001 episode, appellant may still be held cri minally respo nsibl e for the ori ginal injury. 3 Thisis so because his sta tem ent cor rob ora testhem edical ev iden ce e licit ed a t tr ial. The neurosurgeon who treate d the victim du ring her August 24, 2001 adm ission, Dr . Banis ter, testified that the victi m ’s in juries were caused by som eone shaking her, then hitting her head against a hard obj ect. After rev iewing appellant’s written sta t ement , Dr. Banister agreed appell ant’s actions were c onsistent with the mechanism of the victim’s injuries. Furthermore, two other physi cians testi fied that the victim’s injuries were cons istent with the mechanism of

injury describ ed by appell ant. W ith respect to the timing of the vi ctim’s injuries, appellant explained in his written statem ent that the shaking and impact e pisode occurred at ap pr ox i mat el y 8 :3 0 p .m. on August 24, 2001. He also ack nowledged he had soleaccess tothe victim f rom 6: 15 p.m .or 6:20 until he re po rt ed hi s d au gh te r’ s s ymp to ms to em ergency personnel. Based upon the CT scan that was perf ormed upon the victim at approx imately 10:45that evening, Dr

. Ban is te r o pi ne d t ha t th e i nju ry occ ur re d a bo ut two hours earlier. Having conducted a neutral re view of all of the evidence, both f or and13

against thefind ing o f gu ilt, w e co nclu de t he p roo f of guilt is not so obviously weak as to undermine our confidence in the factfinder’s determ ination. Johnson v. State, 23S.W.3d at11. Neither do we find that the proof of guilt, although adequ ate if ta ken alon e, is gre atly outweighed by contrar

yproof or is clearly wrong and unj ust. See Ortiz v. State, 93 S.W.3d 79, 87 (Tex.C r.App. 2002). A s a result, appell ant’s first and second points of error are overruled. Byhis fourth point of error, appellant maintains the trial court abused its discretion in sentencing him to life imprisonmen t in violation of the Eighth Am endme nt of the United States Constitution . S pec ific ally, app ellan t cl aim s th e lifesen ten ce is gro ssl y disproportionate to the offense for w hich he was tried. We disagree.
Texas courts have tradi tional ly held that as long as the punishment is withi n the rang e of p unis hment

established by the Legislature in a valid statute, the punishm ent assessed doe s no t vi olate eit her thefed era l or T exas p roh ibitio ns against cruel and unusual punishment

. See Jordan v. State, 49 5 S.W.2d 949, 9 52 (Tex .Cr.A pp. 1973 ); Sam uel v . S tate, 477 S.W.2d 611, 614 (Tex.Cr.A pp. 1972); Rodriguez v. S tate, 917 S.W.2d 90, 92 (Tex.A pp.–Am arillo 1996, pet. ref’d); Robinson v. State, 90 6 S.W.2d 534, 536 (Tex.App.–Tyler 1995, no pet.). Th e trial court’s assessm entof life imprisonm ent was
w ithin the range of punishm entauthorized by the Legislature. See Tex. P en. Code Ann. § 12.32(a).14

Moreo ver, because appellant did not ob je ct in the trial court to the alleged disproportionality of the sentence, his fourth pointof er ro r p re se nt s no th in g f or ou r r ev ie w. See Solis v. State, 945 S .W .2d 300, 301 (Tex .App.–Houston [1 stDis t. ] 1997, pet. re f’d). Appellant’s fourth point of error is overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice Do not publish.