     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                    NO. 03-00-00242-CR




                                  Larry Duarte, Appellant

                                              v.

                                The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
        NO. 0992326, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING




              A jury found appellant Larry Duarte guilty of intentionally or knowingly inflicting

serious bodily injury or serious mental deficiency, impairment, or injury to a child. See Tex.

Penal Code Ann. § 22.04(a)(1), (2) (West Supp. 2000).         The jury assessed punishment at

imprisonment for life. Appellant contends the evidence is legally and factually insufficient to

sustain the guilty verdict and that his videotaped statement to the police should have been

suppressed. We will overrule these contentions and affirm.

              On January 14, 1999, appellant’s wife, Rebecca Duarte, took their two-week-old

daughter, Victoria, to her pediatrician’s office for a scheduled well-baby checkup. Duarte

reported that Victoria had been coughing and wheezing, and a chest X-ray revealed that the child

had pneumonia. The physician’s assistant who conducted the examination also noticed bruises

near the child’s left eye and ear which caused him to be concerned that she had been mishandled.
Victoria was ordered hospitalized for treatment of the pneumonia and for further evaluation of her

head injuries.

                 Tests at the hospital disclosed that Victoria had a linear skull fracture on the left

side of her cranium with related bleeding between the skull and brain. Doctors also found a

metaphyseal fracture of the left leg. Doctors testified that such a fracture results when the leg is

violently twisted and is “highly specific for child abuse. ”

                 When interviewed at the hospital about Victoria’s injuries, Rebecca Duarte and

appellant reported that Victoria and her eleven-month-old brother, Frank, had been left with

appellant while Rebecca and her parents went shopping. During this time, appellant and the

children napped on a mattress on the floor. Appellant said that when he awakened, Frank had

turned on the mattress so that his feet were by Victoria’s head. Appellant said that he saw Frank

kick Victoria’s head. Doctors testified that an eleven-month-old child could not have kicked with

sufficient force to fracture Victoria’s skull. They hypothesized that Victoria had been picked up

by the leg and shaken, causing the leg fracture. At some point, her head had struck a hard

surface, causing the skull fracture and bruising.

                 Detective Brett Wilson interviewed appellant and his wife at the child protective

services office. Appellant repeated his story about Frank kicking Victoria. When Wilson said

that he did not believe this, appellant told the officer that he had accidentally dropped Victoria.

Wilson told appellant that this would not explain the seriousness of the child’s injuries. Appellant

then explained that after he dropped Victoria, she would not stop crying. Appellant threw her




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onto the bed, then picked her up and threw her onto the floor. Appellant admitted knowing that

the child was seriously injured.

               In his points of error challenging the sufficiency of the evidence, appellant does not

deny that he was shown to have intentionally or knowingly injured his infant daughter. Appellant

contends only that the State failed to prove that the injuries were of the degree necessary to

support a first degree felony conviction. See id. § 22.04(e). He contends in two points of error

that the evidence is legally and factually insufficient to support a finding that Victoria suffered

serious mental deficiency, impairment, or injury. See id. § 22.04(a)(2). In a third point,

appellant contends the evidence is factually insufficient to support a finding that the child received

a serious bodily injury. See id. § 22.04(a)(1).

               A factual sufficiency challenge presupposes that the evidence is legally sufficient

to sustain the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); Stone v.

State, 823 S.W.2d 375, 381 (Tex. App.—
                                     Austin 1992, pet. ref' d untimely filed).               Because

appellant does not challenge the legal sufficiency of the evidence to support a finding that he

caused serious bodily injury to the child, and because such a finding is alone sufficient to sustain

the jury’s verdict, we need not address his evidentiary contentions. Points of error one, two, and

three are overruled.

               A videotape of appellant’s interview with Detective Wilson was introduced in

evidence over appellant’s objection. In points of error four and five, appellant contends the

confession was taken in violation of his rights under federal and state law. Specifically, appellant

urges that he was not advised of his rights prior to questioning, and as a consequence did not


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knowingly and voluntarily waive those rights before making his statement. See Miranda v.

Arizona, 384 U. S. 436, 478-79 (1966); Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (West

Supp. 2000). The district court overruled appellant’s objection on the ground that he was not in

custody when the statement was made.

               Miranda and article 38. 22 apply only to statements resulting from custodial

interrogation. Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.—
                                                                 Austin 1997, no pet.).

Whether a statement is the product of custodial interrogation must be determined on an ad hoc

basis after considering all of the objective circumstances. Dowthitt v. State, 931 S.W.2d 244, 255

(Tex. Crim. App. 1996). “A person is in ‘custody’ only if, under the circumstances, a reasonable

person would believe that his freedom of movement was restrained to the degree associated with

a formal arrest. ” Id. at 254 (citing Stansbury v. California, 511 U. S. 318, 322 (1994)). The

district court’s conclusion that appellant was not in custody when he made the statement presents

a mixed question of law and fact that we review de novo. See Hernandez v. State, 957 S.W.2d

851, 852 (Tex. Crim. App. 1998).

               Wilson testified that after being assigned to investigate the Duarte matter as a

possible child abuse case, he went to the child protective services office to speak to the case

worker. Appellant and his wife came to the office while Wilson was there to bring toys and

clothes to their two children, who had been taken from their home the previous day. Wilson

spoke privately to each. He told appellant when his interview began that he was not under arrest

and was free to go at any time. Appellant indicated that he understood. In the course of the




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subsequent interview, appellant made the statements previously discussed. Appellant then left the

office, and was not arrested until three days later.

               Appellant concedes that he was not in custody when the interview began. He

argues, however, that custody began when he admitted to Wilson that he had dropped the baby.

Appellant urges that his situation was like that of the defendant in Dowthitt, in which the court of

criminal appeals concluded that a suspect’s custody began when he told officers during a voluntary

station-house interview that he had been present when the murders under investigation had been

committed. See Dowthitt, 931 S.W.2d at 256-57. The court wrote:


               While [the defendant] did not admit to committing the offenses, his
       admission that he was present during the murders was incriminating, and a
       reasonable person would have realized the incriminating nature of the admission.
       Given the length of the interrogation, the existence of factors involving the exercise
       of police control over [the defendant] (accompanying [defendant] at restroom
       breaks, ignoring requests to see his wife), and [the defendant’s] damaging
       admission establishing probable cause to arrest, we believe that “custody” began
       after [the defendant] admitted to his presence during the murders.


Id. at 257.

               While Dowthitt shows that a crucial admission may turn a noncustodial encounter

into a custodial one, it is clear that the admission was not the only factor considered by the court.

Dowthitt’s admission to being present at the murders was made at 1:00 a.m., after twelve hours

of more-or-less continuous questioning at the police station. See id. at 256. Officers ignored two

requests by Dowthitt to see his wife. See id. Officers accompanied Dowthitt during restroom

breaks, and it was clear at least six hours before the admission that Dowthitt was a suspect. See



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id. As the quoted passage makes clear, all of these circumstances contributed to the conclusion

that custody began when Dowthitt made his crucial admission.

                 Wilson’s interview with appellant did not take place at the police station, but at the

offices of child protective services. Appellant was told repeatedly during the interview that he was

not under arrest and could leave at any time. Appellant admitted dropping Victoria thirty minutes

after the interview began. This admission may have caused Wilson to focus on appellant as a

suspect, or even given Wilson probable cause to arrest, but there is no showing that the officer’s

subjective intent or belief was conveyed to appellant. See Dowthitt, 931 S.W.2d at 254 (custody

determination based entirely on objective circumstances; subjective intent of police irrelevant

except to extent it may be manifested in words or actions). While it is apparent from watching

the videotape that appellant understood he was a suspect in the ongoing investigation, this is not

in itself determinative of the custody issue. See Rodriguez, 939 S.W.2d at 217. Appellant left

Wilson’s office fifty minutes after the interview began and went home with his wife. Considering

all these circumstances, we conclude that a reasonable person in appellant’s position would not

have believed that his freedom of movement had been restrained to the degree associated with a

formal arrest.

                 Because appellant was not in custody, it was not necessary for Wilson to advise him

of his rights before questioning him. Miranda and article 38.22 were not violated. Points of error

four and five are overruled.




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              The judgment of conviction is affirmed.




                                          __________________________________________

                                          J. Woodfin Jones, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed: December 21, 2000

Do Not Publish




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