                                   IN THE
                           TENTH COURT OF APPEALS

                               No. 10-12-00287-CR

SAUL ANGEL PEREZ,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                           From the 413th District Court
                              Johnson County, Texas
                              Trial Court No. F46013


                           MEMORANDUM OPINION


      Saul Angel Perez was indicted on one count of murder and one count of injury to

a child. The jury found Perez not guilty on the murder count and guilty of the offense

of injury to a child. The jury assessed punishment at twenty years confinement and a

$10,000 fine. We affirm.

                                  Background Facts

      Perez and Zenaida Flores were the parents of an infant daughter, J.P. Flores also

had two children from a previous marriage. Pursuant to the terms of Flores’s divorce
decree, Perez was not allowed to stay overnight at Flores’s home. Flores would take

Perez to his residence around 9:00 p.m. each night.

        Flores testified at trial that on August 2, she went to her father’s house with her

three children where she spent several hours preparing food. Perez stayed at Flores’s

house during this time. When Flores returned to her house, Perez took J.P. to the back

bedroom, and Flores and her other two children ate dinner. Perez then came out of the

bedroom briefly to eat his dinner, but J.P. stayed in the bedroom. Perez returned to the

bedroom and told Flores to relax and watch television in the living room with the other

two children. Later, Perez came out of the bedroom with J.P., and he told Flores that

J.P. had a bug bite. The left side of J.P.’s face was swollen. Perez and Flores gave J.P.

Tylenol and put a warm rag on her face. The swelling seemed to go down, and Flores

and the children took Perez home around 9:00 p.m. as usual.

        A few hours later, Flores was talking on the phone to Perez when she noticed J.P.

was making a strange noise. Flores checked J.P. and determined that her heart rate was

slow. Perez told Flores to come and get him so they could take J.P. to the hospital.

Flores loaded all three children into her vehicle, and they went to pick up Perez. They

arrived at the hospital around 1:00 a.m., and J.P. was soon after pronounced dead. The

hospital contacted the Alvarado Police Department because the emergency room staff

believed the injuries to J.P. were intentional. Both Perez and Flores were taken to the

Johnson County Sheriff’s Office Detention Center.




Perez v. State                                                                       Page 2
                                              Motion to Suppress

           In the first issue, Perez argues that the trial court erred in denying his motion to

suppress. In reviewing a trial court's ruling on a motion to suppress, appellate courts

must give great deference to the trial court's findings of historical facts as long as the

record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).

Because the trial court is the exclusive fact finder, the appellate court reviews evidence

adduced at the suppression hearing in the light most favorable to the trial court's ruling.

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to

the trial court's rulings on mixed questions of law and fact when those rulings turn on

an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings

do not turn on an evaluation of credibility and demeanor, we review the trial court's

actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844, 847-48 (Tex.App.-

Eastland 1999, no pet'n).            We review questions involving legal principles and the

application of law to established facts de novo. Kothe v. State, 152 S.W.3d 54, 63 (Tex.

Crim. App. 2004).

           Perez was taken to the Johnson County Sheriff’s Office Detention Center for

questioning about J.P.’s death. Perez was interviewed for approximately eleven hours

on August 3, 2010 and for approximately an hour and a half on August 6, 2010. On

August 3, Perez was interviewed by five different law enforcement officers, and the

Miranda1 warnings were read to Perez prior to beginning the interview. The August 3

interview was conducted in fourteen separate segments, and there were breaks between

1   Miranda v Arizona, 384 U.S. 436 (1966).

Perez v. State                                                                           Page 3
each segment. At one point during the interview process, Flores was brought into the

interview room and allowed to talk to Perez.        Perez was again read the Miranda

warnings before the interview began on August 6.

        The trial court held a hearing on Perez’s motion to suppress. During the hearing,

the trial court viewed the videotaped recording of all of the interviews of Perez. The

officers questioned Perez based upon information they had at the time from the medical

examiner’s office and the hospital staff. The record indicates that Perez changed his

story several times on how J.P. sustained her injuries.      The officers used different

interviewing techniques, including an aggressive style of questioning, in an effort to get

a statement from Perez. After hearing all of the evidence presented at the motion to

suppress hearing, the trial court denied the motion to suppress; however, a portion of

the August 6 interview was suppressed by agreement.

        Perez argues that his statement was involuntary because of the coercive conduct

of the officers. When considering whether a statement was voluntarily made, we look

to the totality of the circumstances surrounding its acquisition. Delao v. State, 235

S.W.3d 235, 239 (Tex. Crim. App. 2007). A confession is involuntary if circumstances

show that the defendant's will was overborne by police coercion.          Id. at 237.   A

statement is involuntary if there was official, coercive conduct of such a nature that a

statement from the defendant was unlikely to have been the product of an essentially

free and unconstrained choice by its maker. See Alvarado v. State, 912 S.W.2d 199, 211

(Tex. Crim. App. 1995).



Perez v. State                                                                      Page 4
        Chief Brad Anderson, with the Alvarado Police Department, testified at the

hearing on Perez’s motion to suppress that Perez never asked for food during the

interview. Perez asked for water, and the officers gave him water. Chief Anderson

stated that Perez never said that he was sleepy or asked to stop the interview. At a

suppression hearing, the trial court is the sole judge of the weight and credibility of the

evidence, and the trial court's finding may not be disturbed on appeal absent a clear

abuse of discretion. Alvarado v. State, 912 S.W.2d at 211. The record does not show that

Perez’s will was overborne by coercion. Perez agreed to speak to the officers, and he

never tried to end the interview. The trial court did not abuse its discretion in finding

that Perez’s statements were given voluntarily. We overrule the first issue.

                                   Sufficiency of Evidence

        In the second issue, Perez argues that the trial court erred in denying his motion

for a directed verdict because the evidence was insufficient to support the conviction for

injury to a child. We review an issue complaining about a trial court's failure to grant a

motion for directed verdict as a challenge to the sufficiency of the evidence.                See

Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The Court of Criminal

Appeals has expressed our standard of review of a sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts

Perez v. State                                                                              Page 5
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , 132 S.Ct. 2712, 183

L.Ed.2d 71 (2012).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        The offense of injury to a child is defined in the Texas Penal Code as:

                (a) A person commits an offense if he intentionally, knowingly,
        recklessly, or with criminal negligence, by act or intentionally, knowingly,
        or recklessly by omission, causes to a child, elderly individual, or disabled
        individual:

                 (1) serious bodily injury;
                 (2) serious mental deficiency, impairment, or injury; or
                 (3) bodily injury.

Perez v. State                                                                          Page 6
TEX. PENAL CODE ANN. 22.04 (West Supp. 2013). The jury found that Perez engaged in

the conduct recklessly, making the offense a felony of the second degree. TEX. PENAL

CODE ANN. 22.04 (e) (West Supp. 2013).

        Flores testified that J.P. did not have any injuries when they returned from her

father’s house. Perez took J.P. to the bedroom where he was alone with her for some

time. Perez later came out of the bedroom and the left side of J.P.’s face was swollen.

Perez told Flores that J.P. had a bug bite.

        Perez initially told police that J.P. had a bug bite. He later said that he hit her

head while bending down to get a diaper off the floor. Perez also told officers that J.P.

rolled off the bed and hit her head. Perez further told the officers that he hit J.P.’s head

while swinging her around. The record shows that J.P. died from blunt force injuries to

her head. There were three areas of impact to J.P.’s head, and she suffered a four inch

fracture of her skull. J.P. had a bruise behind her left ear and on the back of her head as

well as hemorrhaging underneath her scalp. The injuries were not consistent with

falling off a bed.

        There was evidence that Perez was alone with J.P. prior to her injuries. Perez

gave several different accounts of how J.P. was injured. The jury is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties.     Chambers v. State, 805 S.W.2d at 461.      We find that the

evidence is sufficient to support the conviction for injury to a child. We overrule the

second issue.

Perez v. State                                                                        Page 7
                                       Conclusion

        We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 26, 2014
Do not publish
[CR 25]




Perez v. State                                          Page 8
