### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-05-00084- CR

Edwin G ar c ia, App e lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT

NO. 90441 48, H ONO RAB LE JON N. WIS SER, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N A j ur y c on vic te d E dw in G a rc ia

of inj ur y to a c hil d in c on ne c tio n wi th the de a th of his twenty -one- month-old child. Find ing that he used a blunt object as a de adly wea pon, the cour

t
a s s e s s e d s e n te n c e a t tw e n ty
- tw o y e a r s in p r is o n . G a r c ia c o n te n d s th a t th e d is tr ic t c o u rt erre d by admitting into e vidence a transcr ipt a nd a television news repor t of a custody

h ea ri n g co n cerning child protec tive service s (CPS ) re taining c ustody of his y oung er c hild. Both excerpts show him at the he a ri nga dmi tti ngthat he int e nti on a lly inj ur e d th e c hil d. We a ff ir m th e jud g me nt. On Dec ember

13, 2001, emer g ency

worke rs re sponded to a 911 c all repor ting that
a child was having difficulty breathing. The child was Gar cia’ s son and wa s in Garc ia’s ca re w hen
e me rg e nc y

wo rk e rs a rr ive d. Th e c hil d w a s take n to the ho sp ita l and die d th e ne xt day . T he c hil d exhibi ted no external injuries, but doc tors told the child’s mother that the child had inter nal injuries consistent with shaken ba

by sy ndrome. While the pare nts were g iving state ments to police, CPS took2

c us tod y of the vic tim ’s y oung e r sis te r. Ga rc ia wa s ar

re ste d, a nd

wa s a pp oin te d a

n atto rn e y in t his
case on Dec ember

17, 2001. Be fore Gar cia met with his attorney in this case , a civil court on De cembe r 21, 2001, held a he aringabout custody of the victim’s y oung er sister. S ee Tex. Fam. Code Ann. § 262.201 (West Sup p . 2 0 0 6 ). Neither Gar cia nor

Yese nia Campuzz ano, the c hildren’s mother, w as repr esente d by co u n s el at t he custody hear ing. T he CPS casewor ker, Shannon D avis, and the prosec utor both stated at the outset of the hear ing that they believed that G arc ia was re sponsible for the victim’s death. The judge conducte d the hea ring based on that underlying pr esumption. W hen Ga rc ia ra ise d h is h a nd

to m a ke a

state me nt, the c ourt

c a uti on e d h im:
Ob vio us ly , c ha

rg e s h a ve be e n f

ile d a g a ins t y ou . You a

bs olute ly have the ri g ht t o rema in silent. You do not have to say any thing. An y

thing you say

may be used ag ainst y ou. There ’s a r ecor d made of ever y statement that y ou make. You have the right to an attorney , and I ’m appointing an attorney to repr esent y ou. Th a t a tto rn e y , ob vio us ly is no t he re y e t. On e wi ll b e a pp oin te d f

or y ou . Y ou

sh ou ld ta lk t o a n atto rn e y be fo re y ou

make a ny

state me nt.
Gar c ia r e s p o n d e d , “ Iw is h to ta lk r ig h t n o w . ” L a te r , w h e n h e r e qu e s te d to s p e a k a g a in , th e court reminded him of his rig hts. Gar cia ne verthe less made damag ing statements, including an asse rtion that the victim fell ac ci d en t all y , and a later de clar ation that he killed the child on purpose . The pa rt ie s a g re e that a

vid e o r e c or din g of

the la tte r s ta te me nt w a s sh ow n o n a te le vis ion

ne ws re po rt
. Be fore the trial in this cause, G arc ia moved to s uppress the te levision news clip and the t ransc ript of t he custody hear ing. T he cour

t overrule d the motions and, over r eurg ed objec tions3

during trial, admitted the evide nce with some of the text and some of the video re dacte d. The jury did not reac h a ver dict on capital murde r, but found Ga rcia g uilty of injury to a child. Gar cia c ontends that his statements made dur i n g the custody hear ing w ere inadmissible because he neve r validly waived his right to rema in silent or his right to counse l. He argues t hat t he custody hear ing was coercive and complains that those statements were made without the ben ef i t o f the advice and pre sence of counse l. He conte nds that the admission of the custody he a ri ngtr a ns c ri pt a

nd the vid e o ne ws c lip a t th e c ri min a l tr ia l vi olate d h is r ig hts to c ouns e l and to
rema in silent under the Fif th, Six th, and Four

teenth Amendme nts to the United States Consti tution. We find no err or in admitting the evidenc e beca use essentially the same evidenc e wa s admitted throug h other witnesse s without objection. “ [O] verr uling an objection to evidenc e will not result i n reve rsal when other such evidenc e was rec eived without obj ection, either befor e or a fter the complained- of ruling .” Le da yv . S tat e , 9 83 S.W. 2d

71 3, 71 8 ( Te x. Cr im. Ap p. 19 98 ); see a lso Ba rn es v. S

tat e , 165 S.W .3d 75, 81 (Tex. App.—Austin 2005, no pet.). Campuzz ano testified, without objection, reg ardingvarious stories she he ard f rom Gar cia a

bout the events leading up to the victim’s death. She said he told her that they wer e wr estling a

nd the child fe ll, and later told her that he acc identally dropped the child while bathing him. She testified that she rec alled Ga rcia telling the judg e at the custody hear ing that he killed the victim on purpose. Campuzz ano also testified that Gar cia late r told her that he had the victim on a c ountertop for a haircut, went to check on a young er sib lin g wh o w a s cr

y ing , the n he a rd the vic tim hit the fl oo r. CPS ca se wo rk e r Davis a lso te sti fi e d th a t, at the custody

hear ing, G arc i a re p ea t edly raised his ha

nd reque sting to speak. Davis testified that the jud g e re min de d G a rc ia re pe a te dly

of his ri g ht t o r e ma in s ile nt
. S he te sti fi e d th a t G a rc ia fi rs t4

explained that his son accidenta lly fell while Ga

rcia was bathing him. S he said he later told the court, “I did it on purpose.” Davis desc ribed the f ollowing e x chang e betwe en the c ourt and Ga rcia
. She testified that the court asked, “[U]nderstanding that y ou don’t have to spe ak, what did y ou do
on purp os e [? Ga

rc ia ] sa id k ill my

ow n s on , o ka

y .” Th e tr a ns c ri pt o f t

he he a ri nga nd

the vid e o c lip impart the same inf

ormation, albeit fr om Garc ia himself. Even if the admission of a transc ript of the hear ing a nd the vi deo clip in which Ga rcia makes the same statements wa s err or, it does not provide a basis for

reve rsal bec ause the same info rm at i o n wa s admitted throug h other witnesse s without objection. See Leday , 983 S.W .2d at 718.

Affir med.

G. Alan Waldrop, Just ice Be fore J ustices Patterson, Pury ear and Waldrop Affir med Filed: September

29, 2006 Do No t Pu

bli sh