      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00343-CR




                             Cesar Carmona Mojica, Sr., Appellant

                                                  v.

                                   The State of Texas, Appellee



      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-07-027, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Cesar Carmona Mojica, Sr., guilty of fourteen counts of

knowingly causing serious bodily injury to a child. See Tex. Penal Code Ann. § 22.04(a)(1), (e)

(West Supp. 2008). The jury assessed punishment for each count at imprisonment for life.

Appellant contends that the trial court erred by overruling his motion to suppress his statement to

the police, by allowing an unfairly prejudicial demonstration during the trial, by allowing a witness

to testify to the contents of hospital records without the required predicate, and by failing to grant

a mistrial when a State witness gave a news interview following his testimony. We overrule these

contentions and affirm the judgments of conviction.
                                         BACKGROUND

               The complainants were appellant’s three children: twins AmM and CM and their

older sister, AnM. In October 2006 when the children were taken from the home by child protective

services workers, AmM and CM were two years and nine months old, and AnM was three-and-a-half

years old. There was testimony that none of the children had been to a hospital or seen a doctor since

their birth.

               The medical evidence showed that AmM had fifty-six documented injuries, including

“multiple skin lesions almost all over her,” several of which were bite marks. She had seven

fractured ribs, one of which had been broken in three places, four broken bones in her hands, and

both of her femurs had been fractured. AmM weighed only nineteen pounds, and she had diminished

muscle mass and brain atrophy resulting from acute and chronic malnutrition. She was not verbal

and could not or would not walk.

               CM had fifty-seven documented injuries. Like his twin sister, CM had “lesions that

appeared to be bite marks, and there were multiple other scratches and scars and so on.” In addition,

he “had patterned bruising that appeared to have been caused by some kind of a looped cord or whip

or some kind of object. And those lesions were very striking.” CM had two broken ribs, three

broken fingers, two fractures in his left foot, and a fractured femur. CM was not as seriously

malnourished as AmM, but he also had diminished muscle mass and weighed only twenty-two

pounds. He, too, was non-verbal and could not or would not walk.

               AnM had twenty-eight documented injuries, including lacerations in her mouth and

a missing tooth. She had bite marks on her abdomen, back, arms, legs, and buttocks. AnM did not



                                                  2
have any skeletal injuries, and her nutritional status was much better than that of her

younger siblings.

               Both in his statement to the police following his arrest and in his trial testimony,

appellant admitted striking and biting the children, but he denied knowing or remembering how their

ribs, fingers, and legs had been fractured. Appellant attributed his poor memory of events to the fact

that he was intoxicated much of the time. Appellant also testified that he was physically abused as

a child, and he explained his treatment of his own children as “the way I was raised. I thought it was

the right thing. And now I know I wasn’t doing the right thing.” A defense psychologist conducted

a “culpability analysis” and testified that, in his opinion, appellant had not knowingly injured his

children, but had instead acted recklessly or negligently.


                                           DISCUSSION

Motion to Suppress

               Appellant gave a video-recorded oral statement to the police following his arrest.1

He contends that the statement should have been suppressed because he was not advised of his rights

in compliance with Miranda and article 38.22. Miranda v. Arizona, 384 U.S. 436, 467-73 (1966);


     1
         The video was introduced in evidence (State’s exhibit 118) but not shown to the jury,
presumably because the interview was conducted in Spanish. Two Spanish-to-English transcriptions
of the interview were introduced in evidence at the guilt stage (State’s exhibits 119 and 209). These
transcriptions are identical except that certain references to extraneous matters were redacted from
exhibit 209. The unredacted transcription was introduced again at the punishment stage (State’s
exhibit 274). The transcriptions introduced at trial differ slightly from the transcription introduced
at the pretrial suppression hearing (State’s pretrial exhibit 2). The primary difference is that in the
trial exhibits, the interpreter added the notations “NVD” (non-verbal denial) and “NVA” (non-verbal
agreement) where appropriate to indicate appellant shaking or nodding his head. In this opinion, all
quotations from the interview are taken from the transcription introduced at trial.

                                                  3
Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (West 2005). Appellant also contends that

the police continued to interrogate him after he requested counsel. See Edwards v. Arizona,

451 U.S. 477, 484-85 (1981).

                A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion.

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). This means that the ruling will be

upheld if it is reasonably supported by the record and is correct under any applicable legal theory.

Id. 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. Crim. App. 2000); Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give the trial court almost complete

deference in determining historical facts, but we review de novo the trial court’s application of the

law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

                The State contends that appellant did not preserve his contentions for review. First,

the State argues that appellant waived any complaints regarding the admission of the statement by

testifying at trial and admitting his guilt. The only authority cited by the State is a court of appeals

opinion applying the “DeGarmo doctrine.” See Taylor v. State, 819 S.W.2d 248, 249 (Tex.

App.—Waco 1991, no pet.); see also DeGarmo v. State, 691 S.W.2d 657, 660-61 (Tex. Crim. App.

1985). This doctrine has been largely disavowed by the court of criminal appeals. See Leday

v. State, 983 S.W.2d 713, 720-26 (Tex. Crim. App. 1998). A defendant’s admission of guilt at trial

does not estop him from contending on appeal that his custodial statement was inadmissible.

Id. at 725.




                                                    4
               Alternatively, the State complains that appellant’s trial objection did not mention

Miranda or article 38.22, but cited only the Fifth and Sixth Amendments. The objection to which

the State refers, however, was not directed to the admission of appellant’s statement. Moreover,

Miranda and Edwards are Fifth Amendment opinions. See Miranda, 384 U.S. at 467-73; Edwards,

451 U.S. at 480.2 Finally, the contentions appellant now makes were raised at the pretrial

suppression hearing and overruled by the trial court. See Tex. R. Evid. 103(a)(1). Appellant’s

contentions were preserved.

               Following appellant’s arrest, San Marcos police detective Adrian Marin was assigned

to interview him because the officer is bilingual.3 The transcription of the interview reflects that

after entering the interview room and introducing himself, Marin asked appellant a few preliminary

questions in English, to which appellant responded in English. Marin then asked appellant if he

would prefer to be advised of his rights in Spanish or English. Appellant chose Spanish. From that

point forward, the interview was conducted in Spanish.

               Marin advised appellant of his rights by reading from a Spanish-language

admonishment and waiver of rights form then in use by the San Marcos police. It is undisputed that

this document was not a wholly accurate translation into Spanish of the admonishments required by




   2
   In his brief, appellant erroneously states that Miranda and Edwards were based on the Sixth
Amendment.
   3
     Appellant was born in Mexico and moved to the United States when he was twelve years old.
He was twenty-two years old at the time of his arrest. The record reflects that appellant speaks and
understands English. He expressly declined the services of a translator at his trial, and he testified
in English.

                                                  5
Miranda and article 38.22. According to a translation into English that both parties agree is accurate,

the form advised appellant of his rights as follows:


       • You have the right to remain silent and to say nothing and any statement that you
       make may be used against you in your trial.

       • Any statements spoken or written that you make may be used as evidence against
       you in court.

       • You have the right to have your attorney present to notify you before and during
       questions of a policeman or of lawyers representing the state.

       • If you are too poor to obtain the services of an attorney then the court will point one
       out to you free of service and he may give you advise before and during questions.

       • You may decide to talk to whoever you want and you may decide to stop talking
       with it at any time.

       • These rights are continued and may be urgently pressed by you at any time you so
       wish.


               Appellant argues that the fourth admonishment, that “the court will point [an attorney]

out to you free of service,” did not adequately convey the information that, if appellant were unable

to afford an attorney, one would be appointed to represent him. Appellant contends that as a result,

he did not knowingly waive his right to appointed counsel during questioning.

               The Spanish-to-English transcription of the recorded interview reflects that as Marin

was advising appellant of his right to have counsel present during questioning, appellant interrupted

to ask, “But I don’t have money?” Marin responded, “Wait, wait, OK?” After completing the third

admonishment and confirming appellant’s understanding of his right to have a lawyer present, Marin,




                                                  6
referring to the fourth admonishment, told appellant, “What does it say? Read it for me.”4 Appellant

replied, “What it says is that if you’re too poor to obtain the services of a lawyer . . . then the court

will point you a free lawyer of service and he can give advice before and during questions.”

Appellant added, “That means that you can give me the lawyer . . . because I don’t have money.”

Marin responded, “And that is the question that you . . . asked me, right?” Appellant answered,

“Yes.” Marin asked, “OK. Do you still have questions or not?” Appellant answered, “No.”

                In overruling appellant’s motion to suppress, the trial court acknowledged that “it [the

admonishment form] may not be a perfect translation.” But the court continued, “[T]he places that

have been pointed out where it is not exactly right, if you listen to the conversation afterwards

between the two in the colloquy, it is clear to me that the defendant did understand what rights he

was waiving and made a voluntary waiver.”

                Appellant did not testify at the suppression hearing, and whether he fully understood

his rights must be deduced from his words and actions at the time he gave his statement. With

respect to his right to appointed counsel, the transcription confirms that appellant understood that

“you can give me the lawyer . . . because I don’t have money.” The trial court did not abuse its

discretion by concluding that, when appellant waived his right to counsel during questioning, he did

so with the understanding that counsel would be appointed for him if he wished.

                Appellant also contends that he asked for counsel, but Marin did not honor this

request and continued his questioning. When a suspect asserts his right to counsel, all interrogation




   4
    Marin testified, and the transcription confirms, that appellant was reading the admonishments
as Marin read them to him.

                                                   7
must cease until counsel is provided or until the suspect personally reinitiates the conversation.

Edwards, 451 U.S. at 484-85; Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). A

suspect’s request for counsel during questioning must be clear and unambiguous. Davis v. United

States, 512 U.S. 452, 459 (1994). Whether the mention of a lawyer constitutes a clear invocation

of the right to counsel will depend on the statement itself and the totality of the surrounding

circumstances. Id. at 461-62. The suspect must articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the circumstances would understand the

statement to be a request for an attorney. Id. at 458-59.

               The record shows that after advising appellant of his rights, Marin read the waiver

of rights to appellant and showed him where to sign. This exchange followed, as shown in the

Spanish-to-English transcription:


       [Appellant:] Then, if, if I sign that, I’m renouncing all of these?

       [Marin:] Yes . . . .

       ...

       [Appellant:] If I also don’t want to give up the service of the lawyer?

       [Marin:] Pardon me?

       [Appellant:] I don’t want to give up the service of the lawyer.

       [Marin:] Then you want your lawyer present here?

       [Appellant:] Not right now. But for court and all that.

       [Marin:] Yes, they can give you a lawyer. . . . This only says that I want to talk to
       you without your lawyer present. Do you understand?



                                                 8
[Appellant:] Oh, OK. . . .

...

[Appellant:] But, I still keep on having my rights with a lawyer?

[Marin:] You have your rights.

[Appellant:] Just that those rights, right now, just here with us?

[Marin:] Yes. Those are continued.

[Appellant:] OK. [NVA]

...

[Marin:] But I want to talk to you without your lawyer.

[Appellant:] OK. [NVA]

[Marin:] Do you understand?

[Appellant:] Yeah. [NVA]

[Marin:] OK. And you’re fine with that or, or do you want your lawyer present? It’s,
we need to make it very clear here.

[Appellant:] And is there a lawyer right now?

[Marin:] No, right now there’s no lawyer. Right now there’s not a lawyer here with
you. You don’t have a lawyer. But, if you want to wait, I want to know right now.
Because I want to talk to you right now. And right now you don’t have. We need to
be very clear here.

[Appellant:] Then, let’s do it without a lawyer.

[Marin:] Pardon me?

[Appellant:] Let’s talk without a lawyer.

[Marin:] Without a lawyer?



                                            9
       [Appellant:] Yes. [NVA]

       [Marin:] OK. Because you have the right, you, you asked me: “Well, I don’t have a
       lawyer.” Then I’m tellin’ you, the court will point it a free lawyer for ya if no, if you
       don’t have . . . if you’re very poor. It says here, right?

       [Appellant:] Uh-huh.

       [Marin:] But I want, I want to be very clear that you want to talk to me. And uh, uh,
       talk to me about this case without your lawyer.

       [Appellant:] [NVA]

       [Marin:] But I need to say, if you want to wait, it’s, it’s your right, like it says here.

       [Appellant:] Nah.

       [Marin:] OK. We need to be very clear here. What do you want to do?

       [Appellant:] Let’s talk without a lawyer.


               Appellant urges that he unambiguously invoked his right to counsel during

questioning when he said, “I don’t want to give up the service of the lawyer,” and again when he

asked, “And is there a lawyer [here] right now?” But when these statements are considered in the

context of all that was said by both appellant and Marin, we agree with the trial court’s conclusion

that appellant did not clearly invoke his right to counsel during questioning. To the contrary, the

record as a whole shows that appellant knowingly waived that right with the understanding that he

retained his right to appointed counsel at trial. No Edwards violation is shown.

               Appellant’s contention that his oral statement to the police was inadmissible and

should have been suppressed is overruled.




                                                  10
Demonstration

               There was evidence that appellant struck CM with a looped electrical cord. During

her testimony, Detective Jeri Skrocki, one of the investigating officers and a certified police

instructor in family violence and child abuse cases, conducted a demonstration in which she struck

a table in the courtroom with an electrical cord found in appellant’s residence. The record reflects

that Skrocki took the cord and looped it “very similar to what we saw in the pictures of [CM’s]

back.” She then demonstrated as follows:


               Basically, what I do when I instruct officers is I’ll pick up an object . . . .
       Oftentimes it’s an extension cord or something like that. And then I’ll explain to
       them if I hit somebody, I can hit (indicating)—that’s not using a whole lot of force,
       as you-all saw. I barely even hit. That’s going to leave a big sting.

               If you have somebody who’s angered, in a frenzy, and you take a little bit
       more of a strike to it (indicating), that’s going to give you a whole lot more. And just
       by virtue of the sound, you can hear the difference between the impacts of what
       you’re seeing.

               The same, of course, would be true if you’re—if you’re using this
       (indicating). You’ve got that (indicating). It’s a big difference.


               Appellant contends that the trial court erred by permitting this demonstration over his

timely objection. He urges that the demonstration was unfairly prejudicial and that the prejudice

outweighed any probative value the demonstration might have had. See Tex. R. Evid. 403. We

review the trial court’s ruling for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1991) (op. on reh’g). We consider the probative value of the evidence, the

potential to impress the jury in some irrational but indelible way, the time needed to develop the




                                                 11
evidence, and the proponent’s need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.

Crim. App. 2004).

                The State had little need for Skrocki’s demonstration, which in itself had minimal

probative value. Several medical witnesses described the looped lesions, and the State introduced

a number of photographs showing the looped marks of varying ages on CM’s body. This evidence

was far more probative of the nature of appellant’s abusive conduct than the officer’s hitting the table

with the electrical cord. Moreover, it did not require a demonstration for the jury to understand that

if a person strikes a child with a looped electrical cord, the child is likely to be injured, and that the

degree of injury will increase the harder the child is hit.

                But if the trial court abused its discretion by permitting the demonstration, the

error did not affect appellant’s substantial rights under the circumstances of this case. See

Tex. R. App. P. 44.2(b). Appellant admitted biting and striking his children. The State introduced

dozens of photographs showing that the complainants’ bodies were literally covered with scars and

lesions. In addition to seeing the photographs depicting the complainants’ external injuries, the jury

heard medical testimony describing the complainants’ many broken bones, the complainants’

malnutrition, and the adverse physiological and psychological consequences, some of them

permanent, suffered by the complainants as a result of their abuse at appellant’s hand. We find no

subsequent mention of the demonstration during the arguments of counsel. We are satisfied that the

relatively brief demonstration by the officer did not significantly contribute to either the finding of

guilt or the punishment. No reversible error is presented.




                                                   12
Hospital Records

               During her testimony, Skrocki was asked if the use of a looped electrical cord to hit

CM was consistent with the medical findings. Appellant objected that this was a matter outside of

the witness’s knowledge. The objection was sustained. The prosecutor then established through a

series of questions that, in the course of her investigation, the officer reviewed the medical records

and conferred with the doctors and nurses. Following this, the prosecutor again asked Skrocki if

“those marks [were] consistent with the medical findings of Brackenridge Hospital.” Appellant

objected that the question called for hearsay. After receiving the prosecutor’s assurance that

“someone from Brackenridge” was going to testify, the objection was overruled. Skrocki testified

that the use of an electrical cord was consistent with the medical findings.

               Appellant now contends that trial court erroneously permitted the introduction of the

hospital records through Skrocki without the proper predicate. This is not the objection appellant

made at trial, nor is it what happened at trial. The hospital records were admitted in evidence later

in the trial after the proper predicate was laid and without objection by appellant. In addition, one

of the examining physicians testified without objection that CM “had patterned bruising that

appeared to have been caused by some kind of looped cord or whip or some kind of object.” No

error is presented.


Mistrial

               Finally, appellant asserts that the trial court should have granted his motion for

mistrial after a State witness gave an interview to the press. Alternatively, appellant urges that the

court should have granted his motion to strike the witness’s testimony.


                                                 13
               The witness was Stefan Bjes, an Addison, Illinois, police officer, who testified at the

punishment stage regarding appellant’s involvement in gang-related criminal activities in that city.

At the conclusion of his testimony, the officer was released to return to Illinois. The court told him,

“I don’t think you’re going to be seeing anybody to discuss your testimony with, so we don’t have

to explain the witness rule to you.” The prosecutor then indicated to the court that the rule had been

explained to the officer.

               When trial resumed the next day, appellant moved for a mistrial complaining that as

Bjes left the courthouse, he gave an interview that had been broadcast on television in which he

stated that appellant was a violent gang member. The court replied, “That was his testimony, I think,

wasn’t it?” Counsel did not deny this, but said, “The fact is the witnesses have been instructed not

to speak with anyone. He could have had an influence on all other witnesses.” The court corrected

counsel, “No. They have been instructed not to . . . the witness rule does not include the press that

I’m aware of. They’re not to talk to other witnesses. And the witnesses are not supposed to be

watching—I don’t know what—go ahead and finish your objection.” Counsel then moved for a

mistrial “on grounds of prosecution misconduct.” The motion was denied. Counsel asked that

Bjes’s testimony be stricken from the record. This was also denied.

               Appellant asserts that the prosecutors “were under a duty as officers of the Court to

instruct their witnesses to avert their comments from the press. The State however breached this

duty . . . .” There is no support for this assertion in the record. The record does reflect that

appellant’s trial attracted a good deal of media attention, and the trial court repeatedly admonished




                                                  14
the jurors to avoid all news accounts of the trial. However, there was and is no evidence that any

other witness or any juror saw or heard Bjes’s televised statements.

               Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable

errors. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Whatever the propriety of

Bjes’s decision to speak to the press following his testimony, appellant’s motion for mistrial was not

supported by any showing of prejudice, much less incurable prejudice, arising out of the officer’s

conduct. The trial court did not abuse its discretion by overruling the motion for mistrial or by

refusing to order Bjes’s testimony stricken from the record.

               The judgments of conviction are affirmed.




                                               ___________________________________________

                                               Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 8, 2009

Do Not Publish




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