                                   NO. 07-02-0246-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                       JULY 1, 2003

                          ______________________________


                              JOHN HELTON, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                NO. 13,970-B; HONORABLE JOHN B. BOARD, JUDGE

                         _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.


                                         OPINION


       Following appellant John Helton’s plea of not guilty in a bench trial, the trial court

found him guilty of the offense of injury to a child and sentenced him to life in prison. By

this appeal, appellant contends: (1) the evidence is legally and factually insufficient to

support the conviction; and the trial court abused its discretion in (2) denying the motion
to suppress his oral and written statements; and (3) sentencing him to life imprisonment

in violation of the Eighth Amendment of the United States Constitution. Based upon the

rationale expressed herein, we affirm.


      On August 24, 2001, emergency personnel transported appellant’s daughter, the

two month old victim, to the hospital after appellant reported she was having difficulty

breathing. Upon discovering the victim had a severe subdural hematoma, two linear skull

fractures, retinal hemorrhages and a broken rib, doctors diagnosed her condition as

Shaken Baby Syndrome. The victim’s physicians informed police that Shaken Baby

Syndrome results from “non-accidental trauma.”


      Initially, appellant denied any knowledge of the origin of the victim’s injuries. A

couple of weeks after the victim was hospitalized, however, appellant provided police with

a written statement in which he admitted he “shook her [the victim] hard and her head hit

the doorframe of the bathroom door.” Appellant explained he had “never been that mad

in [his] life,” and he “just snapped.” In addition to the written statement, appellant also

made oral statements of varying degrees of incrimination to law enforcement personnel.


       In a motion to suppress his oral and written confessions, appellant alleged his

statements were involuntary and taken in violation of his Sixth Amendment right to

counsel. At a hearing on the motion, Detective Higley, a polygraph examiner, testified

appellant voluntarily transported himself to the Amarillo Police Department for the purpose


                                            2
of undergoing a polygraph examination. Detective Higley told the court appellant was not

under arrest at the time he arrived at the police department, and he never placed appellant

under arrest.      Detective Higley maintained appellant was free to leave the police

department at any time. Additionally, he testified he informed appellant of his Miranda1

rights as they appeared on the top of a form entitled “Amarillo Police Department

Polygraph Examination Warning.” Appellant acknowledged his understanding of those

rights by signing the form. Then, according to Detective Higley, appellant submitted to a

polygraph examination. Following the exam, Detective Higley engaged in a conversation

with appellant, in which appellant admitted shaking the victim “hard.”              After the

conversation, Detective Higley escorted appellant to an interrogation room at the police

department where they were met by Sergeant Jones. Detective Higley testified appellant

left the police station at the conclusion of his interview with Sergeant Jones. Child

Protective Services employee Shannon Burch testified she observed Detective Higley

administer the polygraph examination to appellant. Her testimony was consistent with that

of Detective Higley.


       Sergeant Jones also testified at the hearing on the motion to suppress appellant’s

statements. According to him, appellant was not under arrest at the time of the interview

and was free to leave at any time. Sergeant Jones averred that, not long after arriving at

the interrogation room, appellant admitted, “I did it.” Prior to the interview, Sergeant Jones


       1
           See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                              3
apprised appellant of his statutory and constitutional rights by reading those rights as they

appeared on the top of a form entitled “Statement.” During the interview, which began at

3:10 p.m. and concluded at 3:45 p.m., Sergeant Jones prepared in his own handwriting a

statement based upon appellant’s oral statements. Sergeant Jones testified he did not

threaten appellant nor make any promises of leniency in exchange for appellant providing

a statement. Finally, Sergeant Jones testified that after he finished writing the statement,

appellant read it, made corrections to it, and signed it, then left the police station on his

own. In addition to Sergeant Jones, Child Protective Services employee Phillip Houlihan

was present during appellant’s interview. Houlihan’s testimony at the suppression hearing

mirrors that of Sergeant Jones.


       Appellant testified at the suppression hearing that he arrived at the police

department on September 13, 2001, between 12:45 p.m. and 12:50 p.m., in time for his

polygraph examination scheduled for 1:00 p.m.            Appellant claimed he made no

incriminating admissions to Detective Higley. He also could not remember Detective

Higley reading to him the warnings contained on the Polygraph Examination Warning form.

Moreover, appellant claimed that following the polygraph examination, Detective Higley

squeezed his knee so forcefully the officer left red marks on his skin. Appellant testified,

“he [Detective Higley] was wanting me to confess.” With respect to the written statement

that was attributed to him, appellant denied knowing its contents, and claimed he signed

the document to protect his family. Finally, appellant averred he requested the assistance


                                             4
of an attorney during his interview with Sergeant Jones, but that Jones “said it was too

late.” At the conclusion of the hearing, the trial court found appellant’s oral and written

statements 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 sufficiency of the evidence turns upon the propriety of the trial

court’s ruling on the motion to suppress the written and oral statements, we initially

address appellant’s third point of error. By that point, appellant specifically contends the

trial court abused its discretion by denying the motion to suppress because his oral and

written statements were involuntary. We disagree.


       The standard of review for the trial court’s ruling 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, the trial court is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855

(Tex.Cr.App. 2000). Thus, the trial court is entitled to believe any or all of a witness’s

testimony. Id. The evidence should be viewed in the light most favorable to the trial

court’s ruling. See State v. Ballard, 987 S.W.2d 889, 891 (Tex.Cr.App. 1999). Moreover,

we should afford almost total deference to the trial court’s determination of historical facts

that the record supports, especially when the fact findings are based upon an evaluation

of the witness’ credibility and demeanor. Ross, 32 S.W.3d at 856 (citing Guzman v. State,

955 S.W.2d 85, 89 (Tex.Cr.App. 1997)).

                                                5
       Voluntary, noncustodial statements are exempt from the requirements of Miranda

and article 38.22 of the Code of Criminal Procedure. Cf. Holland v. State, 770 S.W.2d 56,

58 (Tex.App.–Austin 1989), aff’d, 802 S.W.2d 696 (Tex.Cr.App. 1991). Therefore, we

begin our analysis with the trial court’s finding that appellant’s statements were not the

product of custodial interrogation.


       Custodial interrogation is questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom in any significant

way. Cannon v. State, 691 S.W.2d 664, 671 (Tex.Cr.App. 1985) (citing Miranda v Arizona,

384 U.S. 436, 86 S.Ct.1602, 16 L.Ed.2d 694 (1966). In determining whether an individual

was in custody, the court must examine all of the circumstances surrounding the

interrogation, but “the ultimate inquiry is simply whether there was a formal arrest or

restraint of movement of the degree associated with formal arrest.” California v. Behler,

463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279 (1983).


       The Court of Criminal Appeals has outlined some general situations that may

constitute custody, including the following: (1) when the suspect is physically deprived of

his or her freedom of action in any significant way; (2) when a law enforcement officer tells

the suspect he or she cannot leave; (3) when law enforcement officers create a situation

that would lead a reasonable person to believe his or her freedom of movement has been

significantly restricted; and (4) when there is probable cause to arrest and law enforcement

officers do not tell the suspect he or she is free to leave. Dowthitt v. State, 931 S.W.2d

                                             6
244, 255 (Tex.Cr.App. 1996). In short, we must look at the totality of the circumstances

and determine whether appellant’s freedom of movement was restrained to a degree

associated with a formal arrest.        See Rathbun v. State, 96 S.W.3d 563, 566

(Tex.App.–Texarkana 2002, no pet.).


       Having conducted a thorough review of the record, we find present none of the

situations delineated above in the events leading to appellant’s written and oral statements

on September 13, 2001. Indeed, appellant voluntarily transported himself to the police

station on September 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 examination

and interview. Moreover, there is no evidence officers restricted appellant’s movements

at the police station. We conclude a reasonable person in appellant’s position would not

have believed he was restrained to the degree associated with formal arrest.


       Nothwithstanding the lack of custodial interrogation, appellant maintains his

statements were not voluntary. 2 Appellant claims the following circumstances rendered

the statements involuntary: (1) law enforcement officers failed to visually or aurally record

them; (2) Detective Higley squeezed his knee during their conversation; (3) Detective

Higley “pressed” him into giving a statement after he began to hyperventilate; (4) Sergeant

Jones denied him the opportunity to complete his own written statement; (5) appellant did


       2
       Under the circumstances presented in this case, we assume without deciding that
a statement not the product of custodial interrogation may still be involuntary.

                                             7
not inital any of the Miranda warnings; and (6) he was denied the right to counsel during

the interview with law enforcement.


      In reviewing the voluntariness of a confession, we look at the totality of the

circumstances. See Barefield 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, incommunicado or prolonged interrogation, denying
      a family access to a defendant, refusing a defendant’s request to telephone
      a lawyer or family, and physical brutality . . . [and] a defendant’s
      characteristics and status, as well as the conduct of the police.


See King v. State, 831 S.W.2d 891, 894 (Tex.App.–Houston [14th] Dist. 1992, no pet.)

(citing Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Cr.App. 1985)).


      After examining the relevant circumstances in this case, we find no error in the trial

court’s conclusion that appellant’s statements were knowing and voluntary. Assuming

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

at approximately 12:45 p.m. for a 1:00 scheduled polygraph examination and left shortly

after completing a written statement at 3:45 p.m. Further, the preparation of the statement

lasted a mere 35 minutes. Moreover, there is no evidence in the record to establish that

any of appellant’s family members were denied access to him or that police exercised

physical brutality during their contact with appellant. And while appellant testified he


                                            8
requested an attorney, three other witnesses to the events of September 13, 2001 averred

no such request was made. Finally, with respect to appellant’s hyperventilation episode,

the record reveals Detective Higley asked appellant not once, but twice, if he desired an

ambulance. On both occasions, appellant denied such assistance and appeared to “calm

down.”


       Moreover, as noted above, appellant’s statements were not the product of custodial

interrogation; therefore, the requirement that statements be visually or aurally recorded

does not apply. See generally Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2003).

In addition, nothing in the Code of Criminal Procedure requires even individuals who are

in custody to initial each of the Miranda warnings on a statement form. Nor does the Code

prohibit a police officer from preparing in his own handwriting a statement based upon the

oral statements of a suspect. Finally, though appellant makes much ado about Detective

Higley squeezing his knee during their conversation, other witnesses testified that Higley

merely patted appellant’s knee in an apparent effort to console him.


      In addition, other factors surrounding the taking of appellant’s statement support a

finding that it was voluntary. Detective Higley, Sergeant Jones, and CPS employees

Phillip Houlihan and Shannon Burch each testified that appellant came to the police station

on his own. He was never handcuffed, never told that he was under arrest, or never told

that he was not free to leave. He was not denied any basic necessities, and was not

promised anything in exchange for his statement.         In short, except for appellant’s

                                            9
assertions that he was “pressed” into giving a statement and denied the right to counsel,

there is no evidence his statement was involuntary. And, the determination of whether

appellant was “pressed” into giving a statement or denied the right to counsel was a

determination for the trial court to make based upon an evaluation of the credibility and

demeanor of the witnesses. See Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.

1998).


         At oral arguments, appellant urged this Court to hold that if a criminal defendant is

subject to the death penalty or life imprisonment, and law enforcement has the capability

to visually or aurally record his statement, it must do so before the statements will be

admissible at trial against him. According to appellant, the foregoing procedure is the only

reliable method for testing the voluntariness of a criminal defendant’s statement. While

such a procedure may be advisable, appellant does not cite, and we have been unable to

find, any cases imposing the requirement on law enforcement. We decline appellant’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

factually insufficient to support his conviction.       We disagree.     Evidence is legally

insufficient if, viewed in the light most favorable to the prosecution, no rational jury could

find the defendant guilty beyond a reasonable doubt. Bustamante v. State, No. 74, 079,

2003 Tex. Crim. App. Lexis 103 (Tex.Cr.App. June 4, 2003) (citing Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)). Evidence is factually

                                              10
insufficient if, viewed without the prism of “the light most favorable to the verdict,” the

evidence supporting the verdict is so weak or so against the overwhelming weight of

contrary evidence as to render the verdict clearly wrong and manifestly unjust. Id. (citing

Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000)).


       Before determining whether the evidence is legally sufficient to sustain the

conviction, we must review the essential elements the State was required to prove. A

person commits the offense of injury to a child, inter alia, if he intentionally or knowingly,

by act, causes serious bodily injury to a child 14 years of age or younger. Tex. Pen. Code

Ann. § 22.04(a)(1) (Vernon 2003). Here, it is undisputed that the two-month old victim

suffered serious bodily injury. Having found appellant’s written and oral confessions to

have been properly admitted, we conclude there is evidence from which a rational trier of

fact could have found beyond a reasonable doubt that appellant caused the injury. As a

result, we conclude the evidence is legally sufficient to support the trial court’s finding that

appellant committed the offense of injury to a child.


       Next, we consider the factual sufficiency of the evidence to support appellant’s

conviction. The crux of appellant’s argument under this point is that the two-month old

victim was readmitted to the hospital on two occasions after he was incarcerated for

causing the August 24, 2001 injury. Because the victim continued to suffer injuries after

he was denied access to her, it follows, claims appellant, that another individual caused

the original injury. We disagree.

                                              11
       Even if the victim was subjected to subsequent shaking incidents after the August

24, 2001 episode, appellant may still be held criminally responsible for the original injury.3

This is so because his statement corroborates the medical evidence elicited at trial. The

neurosurgeon who treated the victim during her August 24, 2001 admission, Dr. Banister,

testified that the victim’s injuries were caused by someone shaking her, then hitting her

head against a hard object. After reviewing appellant’s written statement, Dr. Banister

agreed appellant’s actions were consistent with the mechanism of the victim’s injuries.

Furthermore, two other physicians testified that the victim’s injuries were consistent with

the mechanism of injury described by appellant. With respect to the timing of the victim’s

injuries, appellant explained in his written statement that the shaking and impact episode

occurred at approximately 8:30 p.m. on August 24, 2001. He also acknowledged he had

sole access to the victim from 6:15 p.m.or 6:20 until he reported his daughter’s symptoms

to emergency personnel. Based upon the CT scan that was performed upon the victim at

approximately 10:45 that evening, Dr. Banister opined that the injury occurred about two

hours earlier. Having conducted a neutral review of all of the evidence, both for and



       3
        The medical testimony at trial was copious. While it is undisputed appellant had
no access to the victim after September of 2001, he vehemently challenged the medical
evidence. The record reveals the victim was admitted to the hospital in November of 2001,
and again in December. Appellant claimed the subsequent admissions were the result of
additional shaking episodes. In contrast, the State maintained the victim, who was more
susceptible to head injury because of the previous trauma, merely suffered re-bleeds from
the original injury. Because we decide appellant’s written statement is legally and factually
sufficient to support his conviction for causing the victim serious bodily injury on August
24, 2001, we need not review the trial court’s resolution of that conflicting evidence.

                                             12
against the finding of guilt, we conclude the proof of guilt is not so obviously weak as to

undermine our confidence in the factfinder’s determination. Johnson v. State, 23 S.W.3d

at 11. Neither do we find that the proof of guilt, although adequate if taken alone, is

greatly outweighed by contrary proof or is clearly wrong and unjust. See Ortiz v. State, 93

S.W.3d 79, 87 (Tex.Cr.App. 2002). As a result, appellant’s first and second points of error

are overruled.


       By his fourth point of error, appellant maintains the trial court abused its discretion

in sentencing him to life imprisonment in violation of the Eighth Amendment of the United

States Constitution.     Specifically, appellant claims the life sentence is grossly

disproportionate to the offense for which he was tried. We disagree.


       Texas courts have traditionally held that as long as the punishment is within the

range of punishment established by the Legislature in a valid statute, the punishment

assessed does not violate either the federal or Texas prohibitions against cruel and

unusual punishment. See Jordan v. State, 495 S.W.2d 949, 952 (Tex.Cr.App. 1973);

Samuel v. State, 477 S.W.2d 611, 614 (Tex.Cr.App. 1972); Rodriguez v. State, 917

S.W.2d 90, 92 (Tex.App.–Amarillo 1996, pet. ref’d); Robinson v. State, 906 S.W.2d 534,

536 (Tex.App.–Tyler 1995, no pet.). The trial court’s assessment of life imprisonment was

within the range of punishment authorized by the Legislature. See Tex. Pen. Code Ann.

§ 12.32(a).




                                             13
       Moreover, because appellant did not object in the trial court to the alleged

disproportionality of the sentence, his fourth point of error presents nothing for our review.

See Solis v. State, 945 S.W.2d 300, 301 (Tex.App.–Houston [1st Dist.] 1997, pet. ref’d).

Appellant’s fourth point of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                           Don H. Reavis
                                             Justice

Do not publish.




                                             14
