### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 21

- 00536

- CR

Stevie Dwayne Williams, Jr. , Appellant

v. The State of Texas , Appellee

FROM THE 428TH DISTRICT COURT OF HAYS COUNTY NO. CR -18-1091-D, THE HONORABLE WILLIAM R. HENRY , JUDGE PRES ID ING

M E M O R A N D U M O P I N I O N
Ap pellant Stevie Dwayne Williams was convicted of capital murder of a child
under ten

- years -old. Tex

. Pen al Code § 19.03(a)(8). He was sentenced to life im prisonment without parole. See i d. § 12.31(a )(2)

. In three appellate issue s he alleges t hat : (1) the evidence was insufficient to prove either that he was the one to inflict the injuries t hat caused his twenty -month-old son’s death or that he worked with his wife to kill their son ; (2) the trial court
abu s ed its d i sc retion when it admitted evidence of a previous child abuse investigation involving
his son ; and (3) the trial cour t abused its discretion when it admitted evidence obtained
from Williams’s and his wife ’ s cellphone s in violation of Miranda

. See Miranda v. Ariz ona , 384 U.S. 436, 467–68 (1966). We affirm the trial court ’s judgment of conviction.2 B A CKGROUND
The Incident
On July 4, 2018, W illiams ’ s wi fe, Dazrine Williams, cal le d 911 and told the operator that their son , Mason, had not wo ken up f rom his nap

. A recording of the call , which
la sted seven minutes, was played for the jury. Durin g t he call Dazrine stated that Mason was unconscious and not breathing

. She explained , unpromp ted by the operator, t hat Mason sometimes woke up with unexplai ned bruisin g in his ear , that a family memb er sugg ested it may
be low iron , and that he had unexpl ained bruises on his body that were not present prior to his
nap
. Th e operator gave Dazrine instru ctions for admi nistering CPR

. Dazrine told the operator
th at Mason ’ s m outh would not ope n. Dazrine asked Williams to help her and told the operator
that sh e was putting the call on speaker. The operator conti nu ed to instruct the parents on how to
administer CPR until instructing them that one of them needed to go meet firs t re sponders a nd
that the other needed to continue CPR. The o perator discontinued the call once the first

r esponders arrived and could be heard over the pho ne
. At trial , the 911 operato r testified t hat in her experience there are certain soun ds she usually he ars over the phone when someone is administering CPR. She te stified that during the call w ith Dazrine she did not he ar any counting
or othe r noise that woul d i ndicate CPR was actually taking pla ce. Fir e fighter Davi d Shultz testified reg ardin g the scene when first responders
arrived and the resuscitation efforts attempted by himself and other first res ponders. W he n first responders arrived on the scene , the y found Willia ms in the bathroom with Mason. Williams appeared to be attem ptin g C P R , h owever, Shul tz e xplained that it would have been “ ver y ineffective ” because he was holding the child in his arms. Williams q uickly handed Mason to
Shultz . Mason had no pulse , was unconscious , an d was not breathing. Shultz began C PR using3 one hand a nd at no point wr appe d his hands around Mason or us ed his thumbs. Schultz noticed bruising on Mason ’ s sides t hat “ wrapped around a little bit ” and a bruise in the cen ter of
his forehead

. Fire fighters and EMS admi ni stered CPR and other life savi n g effort s for f ifteen to
twen ty minutes without getting any vital signs . Once he stopped CPR , Schultz noticed that the
chil d ’ s arm w as stiff , which told him that “ the child ha[d] be en go ne for qu ite a while at that poin t. ” William s told Schultz that he had go tte n Mason up from a nap, rea lized he was not
conscious or breathing , a n d then called 911. Schult z noticed that the child had on a c lean diaper , which he thought was inconsiste nt wi th Williams ’ s stor y
. Shultz repo rted the bruising he s aw on Maso n to a po lic e offic er. A nother f iref ight er on the scene , Johnnie Smith , testified that based on his experience with family members ’ reactions wh ile CPR is being administered, he thought

som ething was off about W i lliams ’ s re action. He explained that Willi a ms “ seem ed more

wor ried about [t hem] fixing the situation. Like if somebody wrecked their car or something

. ” Smith was unable to open Mason ’ s mouth. Smith described Mason ’ s skin and h air as a little wet but not dripping a s if he had just gotten out of t he shower a few minu tes prior. W illi ams mentioned that “ he had given the child a bath at some point

. ” Williams was not visibly wet

. Smith described t he bruises on Mas on ’ s sides as dots , l ike from fi nger s
. H e testified that they could not have been caused by the C PR the y p erformed.
A par amedic who was also present at the scene, Kyle S kinner , explained that the joint stiffness se en in Mason during the resuscitation a ttempts indicates tha t rigor mor tis ha d set in, “which is the first sign of death , ” and that i t can take anywh ere from o ne h our to six hours4 after death for rigor mortis to start. He descri bed the bruising on Maso n ’ s sides as “ fi ngertip type bruising. ”
Police officers a rrived on the scene w hile EMS was att empt ing life saving

meas ures. Officer Jerri tt Bean testi fied regarding phot os o f the crime scene , which in cluded photos of Mas on after lifesaving attempts had stopped and show ed b rui sing on his forehea d , along his sides , and in the center of hi s back

. A ph oto of the bathroom sho w ed standing water in
the bathtub. A muted video f rom the o fficer ’ s bodycam footage taken at the scene was played for the jury.
Detective Pedro Carras co testified that he was assigned to the case after lifesaving

me asures were discontinue d

. When he arrived at the scen e , h e noticed in the bathroom tha t th ere

was standing water in the tub , a nebulizer on the sink , soiled diape rs in a trash can , and a wet

t

- shirt

. In the parents’ bedroom, he no ticed wet shorts

. Multiple first r esponder s from the scene testified that Wi lli ams was visibl y upset , crying , h y perventilating, and see med confused and that he was distress ed w hen the paramedics stopped life saving measur es
. T hese witnesses also described Dazrine as “ apathetic ” and calm

.

The I njuries
Dr. Su zanne Dana , a for ensic pa t hologist, testi fied regard ing Mason ’ s injuries
based on the autopsy she pe rform ed on July 6, 2018

. Autopsy ph otos were admitted into

e vide nce. Dr. Dana testified that in her opinion the manner of death was homicid e and the cause of death was “h ypoxic en c ephalopathy, wh ich means swe l ling of the brain due t o lack of oxygen,
and it was caused by chest compression in an infant with prior blunt force traumatic injuries

. ”5 Based on the br u ising to his chest, bac k, and sides, Dr. Dan a believed that Ma son ’ s ch es t was compressed to the point where h e could no t expand his lungs to get enough oxygen

. Mason ha d multiple inju ries over his body that were of various ages

. The injuries
that oc cur r ed w ith in the 24 hours preceding his dea th i nclu ded: bruises to his fa ce , lips, chest,
ba ck, jaw, and his sid es; and internal bleeding of the diaphragm and u nder the sternum

. The
b ruise to his for ehead was caused wit h in the 24 to 48 hours p rio r to his death. Ma s on ’ s older injuries inc lud ed: a healing skull fracture on the le f t occipital bon e , some of the bruising on his back, bruising on his right hand, bruisin g on the right side of his chest , a healing ri b fracture ,

“ some old heal e d rib fr act u res, ” a burn scar on hi s f oot, and scar s on h is buttocks. She also
testified tha t r igor mort i s , or stiff en ing of the joint s after death, starts becoming evident in the
muscles about tw o hours after death and then dissip ates after a bout twenty

- four to thi rty hours after death, mean ing the joints are not stiff anymore.
Dr. Marion Forb es , who had previ ous ly treated Mason, testified that the pro cess of chest compressions causing a de adly la c k of oxygen to the brain is called asphyxia. She compared the force necessary to cause asphyxia to that of a v ery heavy object

— like a car or bookcas e

— f allin g o n the che s t

. Without oxygen to the brain, the p erson would lose
consciousness and die within ab out five minutes. She opined that a reasonable person would

no tice that something significant and life

- threate ning was happening.
Dr. Fo rbes tes ti f ied that she evalua ted Mason ’s nin e - month

- old sister , D.W , after
Mason ’ s death pursuant to CPS protocols

. The parents would not speak wi th her. S h e found
similar bru ising to the baby ’s chest, back, and one of her ear s and similar rib injuries as those
f o und on Mas on. She testified that bruising in the ear s raises concerns of child abuse becau se it
is an a rea that is difficult to b ruise accidentally.6 Benjamin Hollad a y, a foster parent who adopted D.W . after she w as placed in his care following Mason ’ s d eath, test ified th at D.W. had no issues with unexplained bruising and

no additional rib fractur es since s he ha d star ted liv ing with him . He testified that there ha d be en a concern raised regarding a blood disorder that may make her more prone to bruisi ng , but he
had not no tic ed that she bruised m ore easily than his other two children.
Dr. Forb es testi fied that a year and a half before Mason ’ s death, i n January 2017 , the pa rents had brought Ma son i n for severe burns to his feet and gro in area
. B ecause s h e did not believe the p arents ’ story matched the injuries , Dr. Forbes ran additional tests including x

- rays
. T he x - rays revealed rib fractures that raised a concern t hat phy sical child abuse had occurred

. Dr. Forbes testified that Mason ’ s rib fracture s w ere the same type that were d iscovered during
the autopsy

. Mason ’ s med ical records and copi es o f the x

- rays we re entered into evidence

. Dr. Forbes told the parents during a phone conference that the rib fractures wo uld have require d potentially life

- t hr e atening levels of co mpr essive force t o cr eate. Dr. Forbes reported her findings to CPS and law enforcement

. Antonio Zamora, a former CPS caseworker who had worke d on Maso n ’s 2017

case , testified regarding the CPS investiga tion

. The investigation was i n itiated based

on concern s re garding Mason ’s burns and the subsequently discovered skeletal fractures.
Mason w as removed from his parents ’ care and placed in the custody of Dazrin e ’s sister
Amanda Del Cueto until D ecember 2017. CP S retur ned Mason to hi s p arents at that time a nd

t he n monit ored the situation through March 2018

— about three months prior to Mason ’s death

. Zamor a testified that t he 2017 CPS investigation determined th at the burns were acc idental and
the fractures were categorized as “unab le to d etermine, ” mean ing “ eith er there wasn't enou gh7 i nf ormation to determine that abuse and neglect did occur or there [ was] enough information but not enough information to as sess who ’ s responsible. ”

The P olice I nves tigation On July 9, 20 18, Detec tive C a r r asco went to Williams’s gran dmother’s house to
ta lk to Williams. The recording of that interview from Carras co’s body camera was admi tted
into evidence an d played for the jury. During the interview Williams tol d officers his account of events. He st at e d that
he ch ecked in on Mason an hour b efore the in cident a nd he was fine. He told officers that he

w as the one that found Mason, that he would not wake up , and that his m outh woul d n o t open. He said that he r an water ov er Mason in the bathtub . He al so to ld them that he was p umping
Mason ’ s chest and then a b unch of pe ople ran in to the room

. During the interview , Wi lliam s was asked why his father

- in

- law told d etectives
that he thou g ht something may have happened to Mason whi le in Williams and Dazrine ’s care. Williams responded that h e did not know , that h e and Dazrine we re not on speaking terms with him at that point, and that his father

- in

- l aw was the person who was at the home and saw them
with their children t he most

. Williams told the officers t ha t he an d his wife knew “ for

cert a in what happened ” an d tha t “ something other worldly” hurt both his children. When
De tective Carrasco told W i lliams that they coul d not charge a sp i rit and pointed out that the onl y people a t home at the time of his son ’ s d e ath were Williams and his wif e , Williams told the
detecti ve that his father

- in

- law “ i s the only person you guys need to talk to, like I said I have no animosity to wards [him] but t he things that he said in the last few days

— I think someone should
talk t o [ him]

. ” Williams also told offi c ers that there was “ n o wa y anybody near us can hurt our8 babies ” and that neither he nor his wife would ever hurt their children

. W i lliams asked t h e officers to “ fi gure out what happened

. ”
Detective Carrasco testified t ha t aft er his interview with Williams , he interviewed
W illi ams ’s father

- in

- law and ruled him out as a suspect. Detecti ve Carrasco testified that throughout his investigation , no wi t ness had seen any injuries on Mason the week prior, including the day prio r t o Ma son ’s death.
Detective Carrasc o testified that b ot h Wil liams and Dazrine were arrested for the
murder of their son on July 23, 2018. Detective Carrasco des cribe d the ir dem e anor at the time as being “in shock.” Sergeant Daniel Gooding t estified th a t he assisted with the arrest of Willi ams and
Dazrine. Once they reached the jail, Sergeant Gooding asked Williams for the passcode for the ir cell phones . He testified that Willi a ms voluntarily gave him the passcode. He testified that he
did not reme mb e r giving Williams Miranda warnings and was not aware of any one else giving the warnings

.

The Evidence at Trial
Willia ms did not te stify at trial. However , o n July 30, 2018, he h a d t estified in

a CPS pretrial proceeding. Ex cerpts of the trans cript wer e r e ad during the trial by
Detective Carra sco and the prosecutor

. W illiams denied that he or his wife murdered his son o r ever hit ei ther of their children

. He stat ed that neither h e n or Dazrine had ever spanked Mason.
W i lliams said that Mason had woken u p a f ew other times with unexplained bru ising in his ear.
He testified that nothing unusual happened and that he and D azrine were p laying and laughing
with Mason before nap tim e
. H e t estified that he and Dazrine were together with Mason prior to9 putti ng h i m down for a nap and check ed on him mul tiple times together throughout the nap. He

test ified that h e was the one that tried to wake up Mason from the na p and that when he picked
Mason up he was stiff. He too k Mason to the bathroom and ran cold water o ve r him to try t o wake him u p . He also tr ied using Mason ’s nebulizer and attempted chest compressions

. When asked why he to ok time to change into dry c lothes while attempting to
revi v e Mason, Williams sa id that he had gotten in the bath in a shirt and u nd e rwear, that he was naked when he got out of the bath, that he could not remember why he was nak ed, and that Dazrine brought him dry clo thes and told him EMS was on th e way. He also testified that h e was performing CPR on Mason while Dazrine was on the 91 1 call. He testified tha t he did not
d el a y calling 911 and that the 911 call was “ pre tty immediate ” after getting his son into the
bathtub. He testified that he changed Mason ’s diaper while Dazrine was on the 911 call.
The State presented evidence t ha t was retrie ved from W i lliam s ’s and Dazrine ’ s phones and Facebook accounts through Detective Joseph Swonke. In videos crea ted by
Williams and Da zrine and posted to Facebook soo n after t he CPS case regardin g the 2017 injuries was resolved , the couple ac c us e d the hospi t al of injuring Mason by acciden t and blaming them as part of a cover up
. P hotogra p hs from the phones f rom March 9 , 2018 , through June 27, 2018, showed v a rious visib le injuries on Mas o n
. I n a v ideo from June 2, 2018,
Williams is heard from b ehind the camera and hits both child ren in the forehead with the ph one that is recording th e video

. Detective Swonke testified at trial that he recognized Williams ’ s

v oice on the video from speaki ng to W i lliams previ ously

. In a text message , entered into evidence, D azrine texted Williams t hat Mason had “been telling [her] no all da y, ” and Williams

re p lied that she should “ whoop his little cheeks. ”10 Throug h an employe e of the Hays County Sheriff's Office ’s mail room , the State presented jail mail that Wil liams sent to his grandmother. The l etter inclu ded a copy of a news article ab out people dying in their sleep after having a seizu re a nd included a handwr itten note
t h at read , “ The circled part is m y only worry , b ut j ust because it ’ s more common in older people
doesn ’t mean it ’ s not possibl e for babies , right? ” Multiple family mem bers testified abou t event s leading up to and follow ing the day Mason died. Williams ’s m other testified at the trial that there was a fa mi ly gathering the day prior to Mas o n ’s death and that she did not see any marks or brui ses on either c hild , who were both w earing only a diaper. Williams’s g randmother testified that Williams called her th e day
Mason died an d told he r that Mason was dead and that he had called 911. According to p hone
records entered into evid ence , Williams called his grandmother twelv e minutes prior to t he
911 ca ll.
Dazrine ’s sister , Lindsay Or t iz, t estified that Wil liam s and Dazrine lived with her
father at the time of Mas on ’s death

. Ortiz and her grandmot her stay ed at her father ’ s h ouse the weekend prior to Mason ’s death. A bout four or five d a ys befor e Mason ’s death, Or tiz, her father, and her grandmother all left on a family vacation, whi ch left Dazrine and Willia ms home
alone with their two children. O r tiz testified that she foun d out about Mason ’s de ath the same day it h appened and that she re t u rned to the family home the next day. She descri b ed Williams ’s
behavio r when she saw him as “unusu al. ” Ortiz testified that the next day, July 6, 2018, Dazrin e called her and as ked her, “ I f anyone calls you , would you just say Mason w as a rough boy ? ”
Ortiz could hear W i lliams talking with Dazrine during the call but could n ot hear what he was saying

. She testified that afte r she expresse d concerns about the c ause of Mason ’s death, both11 Wi lliams and Dazrine b locked her on Facebook. S h e was t old, but did not specif y by whom, that
she c ould not attend the funeral because she had doubts about what happ ened to Mason.
Del Cueto , Dazrine ’s sister who had custody o f Mason during the CPS case , testified at trial. Ma son had no bruising and no in juries dur i ng the time he lived with her

. Whi le she had custody of Mason , the visitat i ons with his parents were tense , and Williams told he r that
she would not b e allowed to see Mason after the parents got him back. She testi fied that she

never saw M ason again once h e was returned to his parents beca use “there was always an

excuse ” given b y Dazrine for why Del Cuet o could not visit.
A f t er hearing all the evidence, the jur y found Wi lliams guilty of cap ital m urder.
The S t ate did not seek the death penalty. The t r ial court se ntenced Williams to lif e imprisonment
without parole.

DISCUS S ION
In three issues on a ppeal, Williams alleges th at the evidence was legally
ins uff ic ient to supp ort his conviction and that the trial court erred by admitting the evidence of
the 2017 CPS investigation and by failing to suppress the evidence retrieved from the cellphones

. Sufficiency of the Evi dence
“When ad d ressing a challenge to the sufficien cy of the evide nc e, we con sider whether, after vie wing all of the evidence in the light most favor a bl e t o the v erdict, any rationa l
trier o f fact could have f o und the essential elements of the cri me beyond a reasonable d oubt.” Zuniga v. State , 55 1 S.W.3d 7 29, 7 32 (Tex. Cr im . App. 2 018) (citing J ackson v. Virginia , 443 U .S. 307, 319 (1979); Villa v. St at e , 5 14 S.W.3 d 227, 232 (Tex. Cr im. App. 2017)). “This

st a n dard req uires the appellat e court to defer ‘to the responsibi l ity of the trier of fact t o fairly12 re solve conflic ts i n the t es timony, to we igh the e vidence, and to draw rea sonable infer ences from
bas ic facts to ultimate facts.’ ” Id. (qu oting Jackson , 443 U .S. at 3 19). “We may not re - weigh
th e eviden c e or substitute o ur judgment for that of t he factfinde r.” I d. (c it in g Willi ams v . State , 2 35 S.W.3d 742, 750 (Tex. Crim. Ap p. 2007)). A lthough fac tfi nd e rs “may not speculate about
the mea ning of facts or e vi d ence,” they are permitted to “d raw a ny reason able inferences from the facts so long as e ach inference is suppor te d by th e evidence presen ted at tr i al.” Id. ( citi n g Cary v. State , 507 S.W.3d 750 , 7 57 (Tex. Cr i m. App. 2016); Hooper v. St ate , 214 S.W.3d 9, 1 6

– 1 7 (T ex. Cr im. App. 20 0 7)). “W e p resume tha t the factfind er resolved any conflicting inferences
from the evi de nc e in fa vor of the verdi ct, and w e defer to t hat r esolu tion.” Id. (ci ti ng Mer ritt

v. S tate , 368 S.W.3d 516, 525 (Tex. Cri m. App. 2012)). Th i s is be cause factfi nd ers are “t h e exclusiv e judges of th e facts, the credibility of the witnesses, and the we ig ht to b e given to the

t estimony .” I d. (citing Brook s v. State , 323 S.W.3 d 8 93, 8 99 ( Tex. Crim. App. 2010) ). “Direct

ev idence a nd circu mstantial e vidence are equa ll y probative , and circ umstantial evi dence
alone may be sufficient to uphold a convictio n so long a s the cumulative force o f all the
incrim in atin g circumstances is suf fi cient to support the conviction.” Id. (citi ng Rams e y v . Sta te , 473 S.W

. 3d 805, 809 (Te x. Crim. App. 20 15); Ho oper , 214 S.W. 3d at 13).

“ [ J ] uries are n ot p ermitted to co me to concl usions based on mere spe culation or factually unsupported inference s or presu mption s
. ” Hooper , 214 S.W.3d at 1 5 ; s ee also Win f

re

y v. State , 323 S.W.3d 875, 882 (Tex. Crim. App. 20 10) ( “[ I ]f the evidence at trial ra ises only a
susp ic ion of guilt, even a strong one , then that e vide nce is ins u fficien t

. ” ) ; Swearingen v. State , 1 01 S.W.3d 89 , 95 (Tex. Crim. App. 2003) ( “ I f, given all of the eviden ce, a rational jury would necessarily enterta in a rea sonable doubt as to th e defenda nt ’ s gu ilt, the d ue process guarant ee requires that w e reverse and o rder a judgment of a cquittal.” )

. “Speculation i s me re theoriz ing or13 guessing about the po s sible meaning of facts and evidence presented.” Hooper , 2 14 S.W.3d

at 16

. A pers on com mits capital mur der if the person intenti onally or knowingly causes the deat h o f an individual under ten years of age. T ex
. P ena l C ode § 19.02(b)(1 ) , .0 3(a )(8)

. “ A
p erson is c riminally responsible as a party to an offe nse if the offense is committed by h is own

co nduct, by the conduct of anot he r for which he i s criminally res pon sibl e, or by both.” Id. § 7.01(a). “ A per s on is criminally responsible fo r an offense com m itted by the conduct of
another if

. . . acting with intent to promote or assist the comm ission of the of fense, he sol ic its,

encour ages, directs, aids, or attempt s to a id the other person to commit the offen s e[.] ” Id

. § 7.02(a)(2).
The State ’s theory o f the case was that Ma son was killed by his chest bein g
compress ed to the point that Mason could not get o xygen to his brain , which was caused by someone wrapping their ha nds around Mason ’ s chest and sides an d squeezing hard ; that Mason

was then placed in h is cri b and left there to die ; and that Williams either caused the injury or

a ided Dazrin e in causing the injury

. W illiams alleges that the evi dence was not sufficient to prove who murdered
Mason. William s concedes that t he evidence is sufficient to pr o ve that either he or Dazrine knowingly or intentionally k illed their son but contends it is not sufficien t to prove that he did so
either a l one or together with Dazrine. H e a rgues that the jurors would hav e necessarily had a

reason able doubt regarding hi s guilt because finding that he was th e one that killed Mason would require speculation. We disagree. T he evidence was sufficient to show that Williams either intentionally or knowingly killed Mason himse l f or was a par ty to the offense. See Leza v. St a te ,14 351 S.W.3d 34 4, 357 (T ex. Crim. App. 2011) ( holding that jury is not re quired to unan imously agree wh ether defendant was principal actor or party). Williams test ified at the prior CPS proceeding that h e and Dazrin e were together with Mason immediatel y before they p ut him
down for a nap , that nothing unusual happened , and that he check ed o n him multiple t imes. However, Dr. For bes testified th at the force needed to cause M ason ’ s injuries was significant , that death would have occur red within five minut e s, and that a reason able p erson would have noticed that something life

- threatening had oc c urred

. It woul d be a reasonable inference for the jur y to make that Mason was kille d during the time that Williams t estified to being with Mason
and t hat Williams w a s the one who injur ed him either alone o r aiding Dazrine. S ee Keith

v. State , No. 09

- 16

- 00166

- CR, 2017 W L 6210865, at * 6

– 8 (Tex. App.

— Beaumont Dec. 6, 2017, pet. ref’d) (mem . op., no t designate d for publication) ( finding evidence sufficient to supp o rt

ca p ital murder con viction when defendant interacted with chil d vict im around time of deat h e ven though he wa s not only person at home and there was possibility that someone coul d have
in teracted with child after he did )

. W h en reviewing the sufficienc y of t h e ev idence, appellate courts loo k at “events occurring b efore, durin g and after the commi ssion of the off ense and may rely on actions of the
defendant which show an understandi ng and comm on design to do the prohibited act.” Hooper , 214 S.W

. 3d at 13 . Spe c ifically, “[a]ttempts to conce al inc riminating evidence, inconsistent statements, and imp lausible explana tions to the police are probative of wrongful cond uct and are
also circ umstances of guilt. ” See Guevara v. Stat e , 152 S.W.3 d 45, 50 (Tex. Crim. App. 2 004).
Here , first respo nders notice d that Mason was in a clean diaper and had wet hair

. Williams testi fied at the prior proceeding that he had r u n water over Mas on to try to w ake him
up. There was a twelve

- minute d elay betwee n when Williams call ed his grandmother and when15 Dazrine plac ed th e 911 c all . And Dazrine ’ s sister testified that Da zrine called her two days after
Mason ’ s death , with W i lliams heard in the background of t he call, to ask her , “ If anyone calls
you , woul d you just say Mason was a rou g h boy ? ” I t would be reasonable for the jury to infer
that Wil liams had en gaged in attemp ts to conce al in criminating evidence

. See id.
Wi lliams test ified at the CPS proceeding t hat neither he nor Daz r ine ever hit or spanked their child. However, Willi a ms texte d Dazrine , “ whoop his little cheeks , ” and a video recorded on his phone contained his voice while the phone was used to hit each child on the
forehead

. 1 It would be reason able for the jury to infer that Willia m s ’ s statements were inconsistent. S e e id.
Will iams pointed police to “ otherworldly ” entities and to his father

- in

- law

. T h e jury reasonably could have believed that, b ased on th e timeline established by the evidence,
Ma son ’ s fatal injuries were cause d about five minutes b efor e h e di ed , wh i ch according to the responding paramedic ’ s and Dr. Dana ’ s testimon ies would have been one to thirty hours before first responders arrived. W illiam s ’ s father

- in

- law had been out of t o wn for four or five days prior to Mason ’ s death. W i ll iams also t estifie d at the prior proceeding that Dazrine brought him a change of c lothes and to ld him EMS wa s on the way and that he changed Mason ’ s diaper whi le
Dazrine was on the 911 call

. It would be reasonable for the jury to infer that Williams ’ s explanations w ere imp l ausible

. See id

.

1 Williams chall enges t he admissibility of the evidence obta ined from his a nd Dazri n e ’ s cell phones in his third issue. As we address below, we fi nd the evidence admissible. We address his suff iciency of the evidence issue fi rst because “ if meri torious, it would afford him greater relief than his other issue [s] .” Medina v. Sta te , 565 S .W.3d 868, 873 (Tex. App.

— Houston [14th Dist.] 2018, pet. ref’d) ; see also Demon d v. State , 452 S.W .3d 435, 445 (Tex. App.

— Austin 2014, pet. re f ’ d) (noting that in sufficiency re view, appe l l ate courts consider “ all evidence that the trier of fact w as permitted to consider, regardless of whether it was rightly or wrongly adm itted ” )

.16 Further, Williams ’ s actions b efore and after Mason ’ s d eath includ e Will iams telling Del Cueto that she would n e ver see Maso n a gain after he was returned to them , no t inviting Ortiz to Mason ’ s funeral after she expressed co ncerns about Ma s on ’ s death to Dazrine, and blocking family members on F acebook who expressed concern or s uspicion regardi ng Mason ’ s death . These actions support a reasonabl e inference t hat Williams had “ an under s tanding and common design to do the prohibited act.” Hoop e r , 214 S.W.3d at 13

. Williams argues that Walker v. State , No. PD

- 1429

- 14, 2016 WL 609 2523, at *1 (Te x. Crim. App. Oct. 19, 2016) (op., not designated for publication) , suppor ts hi s insufficiency
claim. I n Walker , th e Court of Cri m inal Appeals found t h at the evidence was insufficient to show that either grandparent caused burns to a s mall child . The evi dence showed that if the
burns were intent ional , they would h ave req uired the d isabled grandparents to h old the chil d suspended in hot water for twenty seconds while holding her legs straight down

. There was also

a nother child in the home t ha t had a viole nt history and could have been in the room with the injured c hild. Walker is d istinguishable from the c ase before u s . Here, the e vidence that
Mason ’ s injuries were intentional and not accidental w as overwhelming . Further, Williams and
Daz rine were alone i n the home with Mason, except for baby D.W , and there was n o evide nce present ed t hat W i lliams was phy s ical ly unabl e to c ause the injur ies to Mason. F urthermore , Walker has no precedential valu e because it is an unpublished opinion. See T ex. R. App. P. 77.3.
We overrule Williams ’ s sufficiency of the evidence claim.

Evidence of 201 7 CPS Investigation In his second issue, Williams alleges that the t rial court abused its d iscre t ion b y allowing evidence of the 20 1 7 CPS case t o be presente d ; specifically , Williams challenges the17 evidence of Mason ’ s r i b fractures in 2017 and evidence of his removal and later reunification with his parents

. We review a trial court ’ s admissio n of evidence for an abuse of discretion.
Sandoval v. State , 409 S.W.3d 259, 2 97 (Tex. App.

— Austin 2013, no pet.)

. A trial court abuses
its d i scretion only if its r uling lies outside the zone of reasonable disagreement. Id

. Rev e r sal
under t his standard r e quir es more than solely disagreeing with the trial court ’ s ruling. Powell

v. State , 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)

. An evidenti a ry ruling will be uphe ld if it is correct on any the ory of law applicable to the case. S andoval , 40 9 S. W.3d at 29 7

. W i lliams argues that the jur y could not have found that Williams caused t he 2017 rib fractures beyond a reasonable doubt. See Harrell v

. State , 884 S.W.2d 154 , 160 (Tex. Crim. App. 1994) ( “ We therefore hold that in deciding w hether to a dmit extraneou s offense evidence in the guilt/innocence phase of trial, the trial court must , under rule 104(b), make an initial
determination

. . . that a jury could reasonably find beyond a reasonable doubt that the defendant
committed the e x t raneous off ense
. ” ) ; see a l so T ex. R

. Ev id . 104(b) ( “ When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a
f inding that the fact d oes exist

. ” ).
T he State argu es that the evidence was admitted u nd er Texas Cod e o f Criminal Procedure Article 38.36, which provides:
In all prosecutions for murder, the st ate or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relati on ship existin g b etween the accused and the deceased, together with all relevant facts and circumstances go ing to show the condition of the mind of the accused at the t i me of the offense.18 Tex. Code Crim. Proc. art. 38.36. Spe cifically, the State argues th a t t he relationsh ip evidence
was pr es ented to sho w the tim elin e of when Mason lived with his parents and wh en his injuries
occurred and to show that at the time of the o ffense Williams knew that if Mason was injured in the same way ag ain it could result in d eath

. Based o n the Stat e ’ s reasons for admitting the evidence, the dependent fact s that
the relevance of the evid ence relies on is not whether W i lliams caused the 2 0 17 fractures, but rather, whet her child a buse occurred , whether the child was removed fro m and returned to his parents , whether he suffered injuries while away from his parents, and whether W i llia ms had
b een informed that whatever had caused the 2017 rib f ractures coul d cau se death. T he t estimo n y

o f Dr. F o rbes and the CPS caseworker were suff icient to prove all the se facts.
Williams also argues that the evi dence should have been excluded under R u le 40 3 because the probative value was low , i t c reated a danger of unfai r prejudice , it had a tendency to confuse or distract the jury , and it too k up an inordin ate amount of time. Tex . R

. Ev id . 403 ( “ The court may exclude relevant evidence if its probat ive value is substantially outweighed by a danger of one o r more of the following: unfair prejudice, confusing the issues, misleading the jury, und ue delay, or ne edlessly presenting cumulative evidence. ” )

. A Rule 403 analysis generally balances four non - e xclusive factors : “ (1) how probative the evidence is, (2) the potential of the evidence to impress the jury in some irrational, but nevertheless in delible way; (3 ) the time the propon ent needs to develop the evidence; and (4) the proponent ’ s need for the
evidence

. ” Colone v. State , 573 S.W.3d 249, 266 (Tex. Crim . A pp. 2019)

. W i lliams ar gues that the CPS report that determined that the burns were

a ccidental and t hat CPS could not determine the cause of t he fractures renders the proba tive
value of the evide nce low and renders the State ’ s need for the evidence low

. However,19 W illiams ’ s knowledge regarding t he potentially fatal effect of the injuries g oes to the mate rial
issue of intent as it shows a lack of mistake or accident. The timelin e created by the ev idence is
relevant to establish the nature o f the relatio nsh ip between Williams and Mason a t the time o f the
offense

. Regarding the effect on the jur y, t he reco rd does not indicate that the ju ry ha d a

rea sonable doubt that Williams murder ed Mason but c o nv icted him anyway based on the
evide nce of the 2017 CPS ca se. See Garcia v. State , 201 S.W.3d 695, 70 4 (Tex. Crim. App. 2006) (holding that probat ive value was n o t substantially outwei ghed by danger of unfair prejudice when court had no reaso n to believe t hat jury had reasonable doubt that Appellant
murdered vic tim but conv icted him anyway based on evidence of prior violence against victim).
Furthe r , “ any potenti a l prejudice was dimini shed by the trial court ’ s limiting instruc tion

. ” 2 Id. Williams argues that the presentation of the challenged evidence took up an i nordinate amount of
time becau se it too k up almost as much time as the evidence prese nted regarding the charged
offense . Assuming without deciding that W i lliams ’ s calculation is correct, we do n ot view that

as an “ inordinate ” amount of time in this ca se c onsidering the importance of the evidence to
show lack of mistake or a ccident , to est ablish the time line, and to establish the nature o f the
relationsh ip between Williams and Mason a t the time o f the offense

. C ons idering the balance of
the Rule 403 fa ctor s, w e cannot conclude that the trial court abused its discretion by admitting
the cha llenged evidenc e. See Gigliobianco v. State , 210 S.W.3d 637, 642 (Tex. Crim. App. 2006) (hol ding that trial c ourt did not abuse its discretion when it could have reas onab ly
concluded that probative value of challenged evidence was not substantially outwei ghed by Rule
40 3 factors ).

2 The trial court g ave a limiting instruction to the jury that if they heard evid ence o f extran eous offenses committed by Williams, the y could not consi der it unless t hey found he had committe d it beyond a reasonable doubt.20 We overrule Williams ’ s second issue

.

Evidence Collected From Cell Phones
Willia m s argues that the evidenc e that was obtained from his and Dazrine ’ s cellphones should have b e en suppressed becaus e he was asked for , and gave , the passcode t o the phone s whil e he was in police custody and without being given Miranda warnings. See 384 U.S

. at 467

– 68

. The State does not argue that a Miranda viol ation did not occur
. Inst e ad, it argues that because there is no evidence in the rec ord th a t Willia ms was coer c ed into giving the passcode, the evidence that was col lected as a result of that infor mation is admissible.
The trial court ’ s ruling on a m o tion to suppress is revi ewed under a bifurcated
standard of review. State v. Ruiz , 5 77 S.W

. 3d 543, 545 (Tex. Cr im. App. 2019). A lmost total
deference is given to th e trial cour t ’ s determination of h istorical facts

. Id. T he trial court ’ s application of the law to the facts is reviewed d e novo. Id. We view the record in the light most
favora b le to th e trial cour t ’ s ruling and will uphold the ruling if it is support ed by the re cord and
is correct un der any theory of the law applicable to the case. I d.
The Texas exclusionar y rule requires that “ evidence obtained by an officer or
othe r pers o n in vio lation of an y provisions of the Constitution or laws of the State of Texas, or o f
the Constitution or laws of the United States of America ” be suppresse d

. Tex. Code Crim. Pro.
art. 38.23

. However, “ mere violations of the Miranda rule are no t covered by the stat e exclusionary rule contained in Article 38.23. ” Baker v. State , 95 6 S.W.2d 19, 24 (Tex. Crim. App. 1997)

. Specifically , t he “fruit of the po i sonous tree” doctrine do es not apply to mere violations of the prophylactic requireme nts in Miranda

. Id. at 22

. The statement itself must be suppressed , but evidence subsequently obtained be cause of that s tatement does not require21 suppression un less the statement was obtained t hrough actual coercion

. State v. Pena , 581 S.W.3d 467, 478 ( Tex. A p p.

— Austi n 2019, pet. ref’d)

. During the trial, Sergeant Gooding t estified that Willi ams voluntarily gave him
the passcode. No allegations of coercion wer e mad e during the suppression hearing , in the
written suppression motion, or in William s ’ s appell a te brief

. Viewing t he record in the lig ht
most favorable to the trial court ’ s ruling, we conclude that th ere is no e vidence of coercion

. See
Ruiz , 577 S.W.3d at 5 45

. Thus, t he t rial court did not err by allowing the admission of the
evidence obta ined from the c ellphone s
. See Pena , 581 S .W.3d at 478 (holding that evidence of drugs found in car after officer asked de fe ndant if there were drugs in car without gi ving
Mira nda warning s was admissible because record did not reflect that stateme nt was co erced ).
We ov errule W i lliams ’ s third and final issue.

CONCLUSION
Because we ove r rule d all of Will iams ’ s is sue s , we aff irm th e trial court ’ s judgment of convi ction

.

_ _

_

_____ ___________ ____________________ ___ Gisela D. Triana , Justice
Before Chief Justi ce Byrne, Just ices Triana and Theofanis
A ffir med
Filed: June 28, 2023
Do No t Publish