                                                                                    ACCEPTED
                                                                                01-15-00268-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           10/5/2015 6:22:42 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                    NO. 01-15-00268-CR

               IN THE COURT OF APPEALS                      FILED IN
            FOR THE FIRST DISTRICT OF TEXAS          1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                                                     10/5/2015 6:22:42 PM
                                                     CHRISTOPHER A. PRINE
                       TONI TAVAREZ                          Clerk
                         Appellant

                              v.

                    THE STATE OF TEXAS
                           Appellee


          On Appeal from Cause Number 1450059
     From the 177th District Court of Harris County, Texas


                   BRIEF FOR APPELLANT




ORAL ARGUMENT REQUESTED                  ALEXANDER BUNIN
                                         Chief Public Defender
                                         Harris County, Texas

                                         DAUCIE SCHINDLER
                                         Assistant Public Defender
                                         Harris County, Texas
                                         TBN 24013495
                                         1201 Franklin, 13th Floor
                                         Houston, Texas 77002
                                         Phone: (713) 368-0016
                                         Fax: (713) 368-9278

                                         Counsel for Appellant


                              1
                       IDENTITY OF PARTIES AND COUNSEL


Appellant                                  Ms. Toni Tavarez
                                           TDCJ No. 01985672
                                           William P. HobbyUnit
                                           742 FM 712
                                           Marlin, Texas 76661

Defense Counsel at Trial                   Mr. R.P. “Skip” Cornelius
                                           SBOT No. 04831500
                                           2028 Buffalo Terrace
                                           Houston, Texas 77019

Prosecutor at Trial                        Ms. Keri Fuller
                                           Ms. Sunni Mitchell
                                           Assistant District Attorneys
                                           Harris County
                                           1201 Franklin Street, 6th Floor
                                           Houston, Texas 77002
Presiding Judge                            Honorable Ryan Patrick
                                           177th District Court
                                           1201 Franklin Street, 19th Floor
                                           Houston, Texas 77002
Appellant’s Counsel                        Ms. Daucie Schindler
                                           Assistant Public Defender
                                           Harris County
                                           1201 Franklin Street, 13th Floor
                                           Houston, Texas 77002




                                      2
                                                        TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL ............................................................................... 2

TABLE OF CONTENTS ................................................................................................................. 3

TABLE OF AUTHORITIES ........................................................................................................... 4

STATEMENT OF THE CASE ....................................................................................................... 5

ISSUE PRESENTED ........................................................................................................................ 5

STATEMENT OF FACTS ............................................................................................................... 6

SUMMARY OF THE ARGUMENT ............................................................................................ 17

ISSUE ONE ...................................................................................................................................... 18

           THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN MS.
           TAVAREZ’ CONVICTION FOR THE OFFENSE OF FELONY MURDER WHERE
           THE EVIDENCE FAILED TO ESTABLISH THAT SHE CAUSED THE DEATH OF
           THE COMPLAINANT.

ISSUE TWO ...................................................................................................................................... 21

           THE  TRIAL COURT ERRED IN FAILING TO INCLUDE A GENERAL
           VOLUNTARINESS INSTRUCTION IN THE JURY CHARGE AS REQUIRED BY
           TEX. CODE CRIM. PROC. ART. 38.22§6.

PRAYER ............................................................................................................................................ 25

CERTIFICATE OF COMPLIANCE ........................................................................................... 26

CERTIFICATE OF SERVICE ...................................................................................................... 27




                                                                          3
                                                  TABLE OF AUTHORITIES

Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). ..........................................................23

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). ..............................................................19

Burks v. United States, 437 U.S. 1 (1978). .........................................................................................21

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). ...............................................................19

Contreras v. State, 312 S.W.3d 566 (Tex. Crim. App. 2010) ...........................................................18

Creager v. State, 952 S.W.2d 852 (Tex. Crim. App. 1997) ..............................................................23

Greene v. Massey, 437 U.S. 19 (1978) .................................................................................................21

Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................................... 18, 19

Jackson v. State, 652 S.W.2d 415 (Tex. Crim. App. 1983). .............................................................20

Moore v. State, No. 14-07-00366-CR, 2008 WL 4308424 (Tex. App. -Houston [14th Dist.] Aug.

   28, 2008, pet. dism). ......................................................................................................................23

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005). ..................................................................24

Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008). ................................................. 22, 23

Oursbourn v. State, 288 S.W.3d 65 (Tex. App. -Houston [1st Dist.] 2009, no pet.) .....................24

Schneckloth v. Bustamonte, 412 U.S. 218 (1973). ................................................................................23

Statutes

Texas Code Crim. Proc Art. 38.22 ..................................................................................................21

Texas Penal Code §19.02 ..................................................................................................................18

Texas Penal Code §22.04 ..................................................................................................................18



                                                                       4
                              STATEMENT OF THE CASE

      Ms. Tavarez was charged by indictment with the offense of felony murder on

December 1, 2014. The State alleged three alternative manner and means in the

commission of the offense that was alleged to have occurred on June 18, 2012. (C.R.

at 9). On March 5, 2015, she entered a plea of not guilty and proceeded to trial by jury.

(4 R.R. at 8). On March 11, 2015, the jury found Ms. Tavarez guilty of felony murder

as charged. (C.R. at 329). After a hearing on punishment, the jury sentenced Ms.

Tavarez to serve fifty (50) years in the Institutional Division of the Texas Department

of Criminal Justice. (C.R. at 339). Ms. Tavarez filed timely notice of appeal. (C.R. at

343). Undersigned counsel, Daucie Schindler, of The Harris County Public Defender’s

Office was appointed to represent Ms. Tavarez on March 13, 2015. (C.R. at 345).


                                 ISSUES PRESENTED

                                     ISSUE ONE

      THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN MS.
      TAVAREZ’ CONVICTION FOR THE OFFENSE OF FELONY MURDER WHERE
      THE EVIDENCE FAILED TO ESTABLISH THAT SHE CAUSED THE DEATH OF
      THE COMPLAINANT.

                                     ISSUE TWO

      THE  TRIAL COURT ERRED IN FAILING TO INCLUDE A GENERAL
      VOLUNTARINESS INSTRUCTION IN THE JURY CHARGE AS REQUIRED BY
      TEX. CODE CRIM. PROC. ART. 38.22§6.




                                           5
                                STATEMENT OF FACTS

       Dr. Rebecca Girardet, a child abuse pediatrician and the Director of the Child

Protection Team at Children’s Memorial Hermann Hospital, was working in mid-June,

2012, when Bayshore Medical Center sent a 19 month old patient named Y.T. to

Children’s Memorial Hermann Hospital. (4 R.R. at 13-20). When she arrived, Y.T. was

unresponsive and demonstrating signs of brain death. She was completely dependent

on a respirator to stay alive. Y.T. underwent emergency surgery to relieve pressure on

her brain, but she had multiple severe skull fractures and a lot of blood within the brain

tissue so her condition did not improve and she died on June 20, 2012. (4 R.R. at 21-

26).

       Dr. Girardet obtained a history from the Y.T.’s mother, the Appellant herein,

Ms. Tavarez. Ms. Tavarez indicated that Y.T. had been acting and eating normally

earlier that same day, but after returning from an errand she noticed the child was

rubbing her head and her eye. Thinking that she was tired, Ms. Tavarez rocked Y.T. to

sleep and put her down for a nap. Later, Y.T.’s older sister, A.T., told Ms. Tavaez that

Y.T. was having trouble lifting her head so Ms. Tavarez tried to revive her by putting

her in the shower. Shortly after the shower, Y.T. vomited so Ms. Tavarez placed her in

the shower a second time in order to clean her off. After the second shower they

determined Y.T. was not acting normal so they took her to the hospital at Bayshore. (4

R.R. at 27-28).



                                            6
       According to Ms. Tavarez, Y.T. had run into the corner of a door four days prior

to having been hospitalized and suffered a bruise on her right temple, but she was

unaware of any other trauma suffered by the child. However, the injuries that Y.T.

exhibited were “tremendous” and inconsistent with a normal household injury. The

injuries were consistent with the child’s head having been slammed against a blunt

object such as a table. (4 R.R. at 29-32). Dr. Girardet did not know what caused the

injuries beyond the diagnosis of trauma to the head. (4 R.R. at 34).

       Detective Enrique Guzman, with the Houston Police Department, received a

call during the very early morning of June 19, 2012, to respond to a call at Children’s

Memorial Hermann Hospital. When he arrived he went to the pediatric intensive care

unit and observed an injured child later identified as Y.T.        Detective Guzman

photographed the child (State’s exhibits 1 through 8) and interviewed a nurse while Ms.

Tavarez, the child’s mother, was on the phone. After the nurse explained the child’s

injuries, Detective Guzman took Ms. Tavarez to an interview room and spoke to her

for about twenty minutes. He thought that Ms. Tavarez seemed disconnected from

what was going on. Ms. Tavarez told him that she had been alone with her children at

her boyfriend’s house when Y.T. awoke from a nap all sweaty and crying. Ms. Tavarez

gave her a bath and she seemed better until about an hour later when she began crying

again. At this point her boyfriend had returned home and he suggested they take the

child to the hospital. (4 R.R. at 39-51).



                                            7
      Kimberly Deese, a registered nurse at Children’s Memorial Hermann Hospital,

was working in the pediatric intensive care unit in mid-June when Y.T. was admitted to

the hospital. Y.T. was very sick with no purposeful movements and dependent on a

respirator to breath. Ms. Deese introduced herself to Ms. Tavarez and inquired about

what had happened to the child. Ms. Tavarez indicated that Y.T. had been running

through the house a few days prior and hit her head on a door frame, but she seemed

okay after wards and continued to play. Ms. Deese did not think that hitting her head

on a doorframe seemed consistent with the injuries Y.T. had sustained. (5 R.R. at 6-

17). Ms. Deese’s notes indicated that:

      Mom stated that she laid down to take a nap at approximately 5:30 mp.m. and
      mom stated that her daughter came into the room and said the baby doesn’t want
      to sit up. And mom said the patient had been up since 7:00 a.m. The patient ate
      breakfast but had not taken a nap all throughout the day. Mom stated that the
      patient looked exhausted and looked so hot, so I gave her a shower to cool her
      off and redressed her.

      Mom stated that she was holding her like a newborn, the patient, because she
      had no strength. Mom states that the boyfriend helped me. He got there to help
      me. Mom states that the boyfriend said let’s take her to the hospital. Mom states
      that the patient was throwing herself back as if she was having a temper tantrum.
      Mom states that the boyfriend made the patient a bottle and gave it to her and
      she couldn’t suck on it but states that she could hold it.

      Mom stated that last Thursday she was running with her brothers and hit the
      frame of the door. Mom stated hit the door, stepped back and then ran off.

      Mom states that on Saturday there was a barbecue to celebrate Father’s Day early.
      Mom states the patient was fine. She was walking around okay. She was perfectly
      fine until Monday when my daughter brought her to me.




                                          8
      (5 R.R. at 22-24). Ms. Tavarez seemed unemotional until about noon when she

was told by the doctors that Y.T. was declared dead at 8:27 that morning. Hearing that

her daughter had been declared dead, Ms. Tavarez threw her head and fists down on

the table and went out the door. (5 R.R. at 28). Ms. Tavarez remained at the hospital

for approximately five hours following her notification of Y.T.’s death. (5 R.R. at 33).

      Maria Tavarez testified that she met Toni Tavarez in middle school. Her brother,

George, and Toni began a dating relationship and ultimately married. They have four

children together, the youngest of which was Y.T.. However, her brother returned to

Mexico when the children were very young. Maria had a birthday party for her son on

June 15, 2012, and Toni agreed to drop off her children, including Y.T., for the party.

Maria noticed that Y.T. had a bruise near her left eye, but she seemed fine otherwise

and was acting normal. (5 R.R. at 37-44). Y.T. took a nap and ate food and cake that

afternoon. Around 11:00 that night, Toni picked up her kids and Maria did not see or

hear from her or he kids again until the following Monday when Toni called to tell her

Y.T. was in the hospital. (5 R.R. at 55-58). Toni called back later to tell her Y.T. had

blood on her brain and was being transferred to Texas Children’s Hospital. Maria

agreed to watch the other three children if Toni needed her to do so. When Toni told

her that Y.T. was in a coma they both cried. Maria went to the hospital the next day

and was there with other family members when the doctors informed them that Y.T.

had died. (5 R.R. at 59-65).



                                            9
      Officer Brooke Taylor, with the Houston Police Department, was assigned to

the Child Abuse Unit on June 19, 2012, when she received a call from Child Protective

Services directing her to the pediatric ICU at Memorial Herman Hospital. After

speaking with a few administrators and social workers at the hospital she went to see

Y.T. According to Officer Taylor, Y.T. was intubated, wearing only a diaper and a

bandage wrapped around her head. Ms. Tavarez, another female family member, and

a nurse were all in the room with Y.T. at that time. Ms. Tavarez was standing at the

head of the bed while the other female was crying and speaking Spanish. Ms. Tavarez

agreed to an interview so Officer Taylor escorted her to an interview room where she

recorded Ms. Tavarez’ statement. (State’s Exhibit 15). During the interview, Officer

Taylor framed her questions in order to earn Ms. Tavarez’ trust. Officer Taylor

described Ms. Tavarez as unemotional and “matter-of-fact” in her responses to

questioning. (5 R.R. at 76-94).

      Ms. Tavarez indicated that she wanted to go to her boyfriend’s house to take a

shower. Officer Taylor, wanting to get into the residence to investigate, agreed to escort

her there. Ms. Tavarez’ boyfriend, Marc Teal, met them at his residence where Ms.

Tavarez and her children had been living for the previous six months or so. Ms. Tavarez

went inside with Marc while Officer Taylor waited outside for another patrol unit to

arrive. Once the patrol officer arrived, they obtained consent and performed a video

walk through of the residence. (State’s Exhibit 18). Ms. Tavarez pointed out the door

frame where Y.T. had hit her head a few days prior. Officer Taylor obtained a statement
                                           10
from Ms. Tavarez’ boyfriend, Mr. Teal, as well. Officer Taylor left Ms. Tavarez at Mr.

Teal’s residence. The next day, she was informed that the case had become a homicide

so she turned over the proceeds of her investigation to the homicide unit assigned to

the case. (5 R.R. at 95-105).

         On June 27, 2012, the homicide officers contacted Officer Taylor and

requested her assistance with the investigation. Ms. Tavarez had volunteered to come

into the station so Officer Taylor went to assist with the interview. When she arrived

at the station, Ms. Tavarez and Mr. Teal were already there. The two were separated

and Officer Taylor watched on a monitor as other officers began to question Ms.

Tavarez. Ms. Tavarez was sobbing. At one point, Officer Taylor was asked to assist

with the interview so she entered the interrogation room and reintroduced herself to

Ms. Tavarez. Unbeknownst to Officer Taylor, the video recording system was not

operational during the first statement so she requested a second statement from Ms.

Tavarez. Ms. Tavarez agreed and gave basically the same statement a second time, but

this time with the video recording system in operation. (5 R.R. at 106-116; State’s

Exhibit 17).

      Dr. Jennifer Love was working for the Harris County Institute of Forensic

Sciences when she was asked to consult in an anthropological capacity in the death of

Y.T. During the autopsy, she noticed that the skull was fractured. Some of the fractures

appeared acute and others appeared to be older. The acute fractures were seen in the

occipital area and through the base of the skull. The older fracture was of the mandible.
                                           11
(6 R.R. at 6-12). The acute fractures were likely sustained no longer than about 48 hours

before the time of death and appeared consistent with an impact to the back of the

head. (6 R.R. at 26-27). The older fracture to the mandible was two to twelve weeks

old. (6 R.R. at 29-32).

       Officer Peg Jewel, with the Homicide division of the Houston Police

Department, was involved in the investigation of the death of Y.T.                Officer

Jewel reviewed the interviews conducted by Officer Taylor and she attended the

autopsy. Based on that information, Officer Jewel decided to continue the investigation

into the child’s death because the explanations given for how the injuries occurred were

inconsistent with the injuries themselves. On June 27, 2012, Officer Jewel conducted

further interviews of Ms. Tavarez and Mr. Teal. Ms. Tavarez and Mr. Teal came

voluntarily to HPD headquarters to be interviewed. Officer Jewel described Ms.

Tavarez as cooperative and friendly, but with a flat affect. (6 R.R. at 54-68).

      The first statement that Ms. Tavarez gave was inadvertently unrecorded so she

voluntarily gave a second statement. The two interviews were very similar. After the

second interview, both Ms. Tavarez and Mr. Teal were allowed to leave the station. (6

R.R. at 85-89). There was no further action taken in this case until February, 2014,

when Mr. Teal came to the District Attorney’s Office with his daughter and Ms.

Tavarez’ older daughter. Separate interviews of Mr. Teal and Ms. Tavarez’ older

daughter were conducted at the District Attorney’s Office. (6 R.R. at 90-93).



                                           12
         Mr. Marc Teal testified at trial that he met Ms. Tavarez around October, 2011,

when he was working as a recruiter for a staffing company and she came in seeking

employment. About one month after they met, they began to date and about three

months later, Ms. Tavarez moved in with him. Ms. Tavarez’ four children moved in

with him as well. At that time, the children ranged in age from about thirteen (13)

months to seven (7) years of age. Y.T. was the youngest and A.T. was the oldest. Ms.

Tavarez did not work outside of the house at that time. Mr. Teal supported Ms. Tavarez

and her family by working long hours at a temporary agency as a recruiter. (7 R.R. at

5-12).

         Mr. Teal was rarely alone with Ms. Tavarez’ children and he did not believe it

was his responsibility to discipline them. Although his work schedule kept him busy,

they did occasionally go out without the children. When they went out, Ms. Tavarez’

sister would baby-sit. On the Friday evening before Father’s Day, 2012, the children

went to their aunt’s house for a party. After she dropped the children off that day, Ms.

Tavarez picked him up at work. They did not pick the children up again until almost

midnight that night, but they remained nearby in anticipation of being called to get

them. While they waited to pick up the kids, they ate at Waffle House and went to Wal-

Mart. When they finally picked them up, the kids were sleepy, but they seemed

otherwise fine. (7 R.R. at 13-17).

         The following day, they went to a barbecue at one of Mr. Teal’s friend’s house.

The kids played outside and they seemed happy and healthy. On Sunday, Mr. Teal
                                            13
wanted to rest so Ms. Tavarez took the children to her parents’ house, but he stayed

home. Ms. Tavarez and her children returned home in time for dinner. The children,

including Y.T., seemed fine. Mr. Teal left for work around 4:00 in the morning the

following Monday and returned home around 2:00 in the afternoon. When he returned

home, Y.T. was taking a nap. Ms. Tavarez went to the store and he remained home

with her children. Ms. Tavarez was only gone about thirty-minutes and when she

returned home from the store, he went back to work. Mr. Teal returned home from

work around 4:30 that afternoon. When he arrived, Ms. Tavarez was asleep on the

couch in the living room and Y.T. was asleep in a bedroom. The three older children

were playing with water guns in the house. He helped them refill the water guns and

took them outside to play. (7 R.R. at 17-30).

      While he was outside playing with the two boys, A.T. told him there was

something wrong with Y.T.. He rounded up the boys and walked toward the front

door. Ms. Tavarez was standing at the door holding Y.T. and patting her. Y.T. seemed

overheated and unable to fully wake from sleep. Mr. Teal suggested giving her some

Powerade, but Ms. Tavarez thought she might be having a seizure. Y.T. vomited up a

brown substance all over them. They washed her off in the shower and decided to take

her to the hospital. He and Ms. Tavarez loaded all of the children into the car and took

Y.T. to Bayshore Hospital. After Mr. Teal dropped Ms. Tavarez and Y.T. off at the

hospital and he took the other three children to their aunt’s house nearby. (7 R.R. at

30-37).
                                          14
       Mr. Teal returned to the hospital and learned a CAT scan had revealed that Y.T.

suffered a skull fracture and was going to be transferred to Children’s Memorial

Hermann Hospital by Life Flight.     Mr. Teal and Ms. Tavarez drove to the hospital

together. Mr. Teal remained at the hospital until late that Monday, but he returned to

work the following Tuesday. At some point that Tuesday, he met Ms. Tavarez and

Officer Taylor at his house. After another patrol officer arrived, Officer Taylor

performed a walk-through of his house. During the walk-through, Ms. Tavarez pointed

out a door frame and indicated that Y.T. had hit her head there a few days prior.

Mr. Teal gave Officer Taylor a brief statement after the walk-through. (7 R.R. at 38-

41).

       A few days later, Mr. Teal went with Officer Peg Jewel to HPD headquarters to

give another statement. At some point during his statement he became ill and had to

go the restroom where he threw-up. He left HPD headquarters about twenty minutes

later by himself because he needed some space to process what was happening. Ms.

Tavarez went to her sister’s apartment. Later that night, he went to her sister’s

apartment as well. There were several family members there. Although Ms. Tavarez

lived with her sister for a while, he continued to date her and he eventually asked her

to marry him. (7 R.R. at 42-47).

       Sergeant J.C. Padilla, with the Houston Police Department, was a detective in

the homicide division in June of 2012 when he was assigned to investigate the death of

Y.T. First, he and detective Mike Miller met with Officer Taylor about the extent of
                                          15
her investigation. Then, they interviewed Ms. Tavarez’ sister, Maria Tavarez, at her

residence. A few days later, he interviewed Ms. Tavarez at HPD headquarters. Before

he interviewed her, Officer Peg Jewel interviewed her. Sergeant Padilla did not record

his interview of Ms. Tavarez because he didn’t want to intimidate her. Ms. Tavarez was

polite and cooperative. At times, she was emotional, but he encouraged her to be

truthful. Ms. Tavarez did not admit to knowing anything that may have caused Y.T.’s

injuries. (7 R.R. at 89-108).

       Dr. Sara Doyle, with the Harris County Institute of Forensic Sciences, did not

perform the autopsy on Y.T., but she reviewed her case in order to testify at trial. Based

on her review of the autopsy report, Dr. Doyle testified that Y.T. had a contusion on

the right side of her forehead and multiple bruises on the left side of her head in the

temple area and in front of her left ear. (7 R.R. at 127-137). Y.T. had three scars over

her right cheek and multiple irregular scars on the surface of her arms. She had two

scars on the front of her left leg one scar on the front of her right leg. Tissue samples

taken of the bruises indicated that they were approximately two days old. (7 R.R. at

138-146).

       The internal evaluation revealed that Y.T. had multiple skull fractures. Some of

the skull fractures were acute, meaning that they had not yet begun to heal, while others

were resolving, meaning that they had begun to heal. The set of fractures to the back

of the head appeared to be resolving while the acute fracture, a basilar skull fracture,

extended forward from that same area to the middle portion of the skull. According to
                                           16
Dr. Doyle, a fracture through the basilar skull would require a significant amount of

force. An examination of her brain revealed multiple hemorrhages to the external

surface surrounding the brain in the areas where the skull fractures were as well as

bleeding on the inside of the tissue surrounding the brain and bleeding of the brain

tissue itself. Some of the injuries were consistent with the two-day time frame and

others appeared several days older. (7 R.R. at 147-156). Dr. Doyle could not determine

how the injuries were caused, but she concluded that the injuries Y.T. suffered were

consistent with the back of her head being hit against a blunt object and that the cause

of death was blunt trauma with skull fractures and subdural hemorrhage. The manner

of death was deemed homicide. (7 R.R. at 164-168).

                           SUMMARY OF THE ARGUMENT

      In her first issue, Ms. Tavarez argues that her conviction should be reversed

because the State’s evidence was legally insufficient to support a verdict of felony

murder. The evidence failed to establish beyond a reasonable doubt that Ms. Tavarez

committed the conduct alleged in the indictment and caused the death of the

complainant.

      In her second issue, Ms. Tavarez argues that the trial court erred in denying her

requested instruction with regard to the voluntariness of her statement because jurors

could not believe beyond a reasonable doubt that the statement was voluntary after

police interrogated her for nearly ten hours. Without the statement, there was no

evidence to support a finding that Ms. Tavarez caused the death of the complainant.
                                          17
                                     ISSUE ONE

      THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN MS.
      TAVAREZ’ CONVICTION FOR THE OFFENSE OF FELONY MURDER WHERE
      THE EVIDENCE FAILED TO ESTABLISH THAT SHE CAUSED THE DEATH OF
      THE COMPLAINANT.

                                     Standard of Review

      The Texas felony murder statute provides that a person commits the offense of

felony murder if he “commits or attempts to commit a felony, other than manslaughter,

and in the course of and in furtherance of the commission or attempt, or in immediate

flight from the commission or attempt, he commits or attempts to commit an act clearly

dangerous to human life that causes the death of an individual.” See Tex. Penal Code

§19.02(b)(3). The State must therefore prove: (1) commission or the attempt to commit

the underlying felony; (2) commission of an act clearly dangerous to human life; (3) the

death of an individual; (4) causation (the dangerous act caused the death); and (5) proof

that the commission of the dangerous act was “in the course of and in furtherance of

…or in immediate flight from” the underlying felony. Contreras v. State, 312 S.W.3d 566,

584 (Tex. Crim. App. 2010) cert. denied, 131 S. Ct. 427 (2010)..

      A person commits the felony offense of injury to a child if he intentionally,

knowingly, recklessly, or with criminal negligence by act or omission causes serious

bodily injury or injury to a child. Tex. Penal Code § 22.04.

      Sufficiency of the evidence is measured by the standard enunciated by the United

States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979); “whether, after viewing

                                           18
the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

      In Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) overruling Clewis v. State,

922 S.W.2d 126 (Tex. Crim. App. 1996) the Texas Court of Criminal Appeals

announced that the Jackson v. Virginia legal-sufficiency standard is the only standard that

a reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.     The Court noted that it bears emphasizing that a rigorous and

proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a

standard as any factual-sufficiency standard (especially one that is “barely

distinguishable” or indistinguishable from a Jackson v. Virginia legal-sufficiency

standard).

      In her concurring opinion in Brooks, Judge Cochran noted that the Jackson Court

stated the correct standard must incorporate the prosecution’s burden of proof –

beyond a reasonable doubt- in a due-process review. The Court noted that a reasonable

doubt has often been described as one based on reason which arises from the evidence

or lack thereof. A reasonable doubt might arise because the verdict is manifestly against

the great weight and preponderance of the credible evidence or because there is nothing

more than a mere scintilla of evidence to support some element of the offense. Judge

Cochran, cited Black’s Law Dictionary, which states that legal sufficiency of the

evidence is a test of adequacy, not mere quantity. Sufficient evidence is “such evidence,
                                            19
in character, weight, or amount, as will legally justify the judicial or official action

demanded.” Judge Cochran went on to state that in criminal cases, only that evidence

which is sufficient in character, weight, and amount to justify a fact finder in concluding

that every element of the offense has been proven beyond a reasonable doubt is

adequate to support a conviction.

      In the instant case, the evidence presented was insufficient to support the jury’s

necessary finding beyond a reasonable doubt that the death of Y.T was caused by Ms.

Tavarez striking her with either her hand, striking her with a blunt object, or striking

her against a blunt object. (C.R. at 9). Viewing the evidence in the light most favorable

to the verdict, the evidence is far from sufficient to support a rational finding beyond a

reasonable doubt that the death of Y.T. was caused in that manner. When the State

alleges a specific cause of death, it must prove beyond a reasonable doubt that the act

alleged did, in fact, cause the death. Jackson v. State, 652 S.W.2d 415, 419-420 (Tex.

Crim. App. 1983)(The evidence was insufficient to support the allegation that the

mother had caused the death “by striking the child on the head with her elbows”). Her,

the jury’s determination was irrational. In Jackson, the Court determined the State failed

to prove that the elbow blows confessed to by the mother caused the hemorrhage which

caused the child’s death.

      Ms. Tavarez first denied that she could have hurt her child, but after nearly nine

hours of interrogation by law enforcement, she stated that she “must have done it”

because she was the “only one there.” Ms. Tavarez never mentioned Y.T. hitting her
                                            20
head on a table, but Officer Peg Jewell suggested that scenario and told Ms. Tavarez

that she must have snapped and hurt her baby. It is only then that Ms. Tavarez replied

that she “snapped and hurt [her] baby.” (State’s Exhibit 19).

      After describing the various injuries on Y.T., Dr. Sara Doyle, a forensic

pathologist who reviewed the autopsy, testified that although she could not determine

how the injuries were caused, she concluded that the injuries Y.T. suffered were

consistent with the back of her head being hit against a blunt object and that the cause

of death was blunt trauma with skull fractures and subdural hemorrhage. (7 R.R. at

164-168). The observations DR. Doyle are not conclusive enough to establish beyond

a reasonable doubt that Y.T. died as a result of Ms. Tavarez banging her head against a

table as alleged. At best, any conclusion that the death was caused by Ms. Tavarez

hitting her head against a table or with her hand was speculation. Speculation does not

equate to a finding beyond a reasonable doubt and Ms. Tavarez’ conviction should be

reversed and the judgment reformed to reflect an acquittal. See Burks v. United States,

437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978).

                                      ISSUE TWO

      THE  TRIAL COURT ERRED IN FAILING TO INCLUDE A GENERAL
      VOLUNTARINESS INSTRUCTION IN THE JURY CHARGE AS REQUIRED BY
      TEX. CODE CRIM. PROC. ART. 38.22§6.

      A statement of an accused may be used in evidence against him if it

appears that the same was freely and voluntarily made without compulsion or

persuasion. Tex. Code Crim. Proc. Art. 38.21. A defendant may claim that her
                                           21
statement was not freely and voluntarily made and thus may not be considered

against her under several theories: (1) Article 38.22, §6- general voluntariness; (2)

Miranda v. Arizona as expanded in Article 38.22, §§2 and 3 (the Texas confession

statute); or (3) the Due Process Clause. It may be voluntary under one, two or

all three theories. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008).

Section 6 of Article 38.22 applies to both an accused’s custodial and non-

custodial statements. Id. at 171. Article 38.22 §6 provides that despite a finding

by the trial court that a statement is voluntary “evidence pertaining to such matter

may be submitted to the jury and it shall be instructed that unless the jury believes

beyond a reasonable doubt that the statement was voluntarily made, the jury shall

not consider such statement for any purpose nor any evidence obtained as a

result thereof.”

       During the charge conference trial counsel specifically requested a general

voluntariness instruction which the trial court denied. (8 R.R. at 137-138).

Claims of involuntariness under Article 38.22 can be, but need not be, predicated

on police overreaching, and they could involve the “sweeping inquiries into the

state of mind of a criminal defendant who has confessed” found in Connelly that

are not of themselves relevant to due process claims.” Oursbourn, 259 S.W.3d at

172.    While “article 38.22 is aimed at protecting suspects from police

overreaching …Section 6 of that article may also be construed as protecting

people from themselves because the focus is upon whether the defendant
                                            22
voluntarily made the statement.       Period.” Id.      A statement is rendered

involuntary if by the coercive conduct of law enforcement a person’s will is

overborne and her capacity for self-determination critically impaired. Schneckloth

v. Bustamonte, 412 U.S. 218, 225-26 (1973); Creager v. State, 952 S.W.2d 852, 856

(Tex. Crim. App. 1997).

      Entitlement to an instruction pursuant to article 38.22 §6 “does not

require a factual dispute, and similarly, a defendant need not request the jury

instruction.” Moore v. State, No. 14-07-00366-CR, 2008 WL 4308424, 6 (Tex.

App. –Houston [14th Dist.], Aug. 28, 2008 pet. dism. as untimely filed)(mem. op.

not designated for publication). If a reasonable jury could find that the facts,

disputed or undisputed, rendered her unable to make a voluntary statement, she

is entitled to a general voluntariness instruction. Oursbourn at 176.

      In this case, Ms. Tavarez raised the question of general voluntariness at the

charge conference and counsel specifically argued that the statement was the result of

prolonged questioning by police. (8 R.R. at 137-138). Because trial counsel objected

to the exclusion of a general voluntariness instruction “reversal is required if the error

is ‘calculated to injure the rights of [the] defendant,’” meaning that there must be “some

harm to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985). Under this standard, any harm, regardless of degree, is sufficient to require

reversal. Id. The actual degree of harm must be assayed in light of the entire jury charge,

the state of the evidence, including the contested issues and the weight of probative
                                            23
evidence, the argument of counsel and any other relevant information revealed by the

record of the trial as a whole. Id.

       The only evidence to support the verdict is the statement of Ms. Tavarez that

was obtained after nearly ten hours of questioning by law enforcement; several hours

of which was unrecorded. There was no portion of the instruction in the charge that

could have corrected or ameliorated the lack of the general voluntariness instruction.

See Ngo v. State, 175 S.W.3d 738, 752 (Tex. Crim. App. 2005). The charge was utterly

silent on the voluntariness of Ms. Tavarez’ statement.

       Had the instruction not been refused, the jury would have been authorized to

disregard Ms. Tavarez’ statement if it felt it was involuntary. Because the instruction

was absent, the jury was unaware it could find the statement to be involuntary of “of

the effect of an involuntariness finding; that is, it was unaware that it could not consider

the statement for any purpose if it found the statement to be involuntary. Oursbourn v.

State, 288 S.W.3d 65, 70 (Tex. App. –Houston [1st dist.] 2009, no pet.). If the jury had

been properly instructed and found the statement involuntary there was no evidence

whatsoever to support the conviction. Because Ms. Tavarez suffered “some harm”

from the trial court’s refusal to include the instruction, this Court should reverse for a

new trial.




                                            24
                                        PRAYER

       Ms. Tavarez asks this Court to reverse and order an acquittal as to the conviction

for felony murder. In the alternative, Ms. Tavarez asks this Court to remand the case

for a new trial.

                                                Respectfully submitted,

                                                Alexander Bunin
                                                Chief Public Defender


                                                /s/ Daucie Schindler
                                                Daucie Schindler
                                                State Bar No. 24013495
                                                Public Defender’s Office
                                                Harris County, Texas
                                                Assistant Public Defender
                                                1201 Franklin, 13th Floor
                                                Houston, Texas 77002
                                                Daucie.Schindler@pdo.hctx.net
                                                Tel: 713-274-6717
                                                Fax: 713-368-9278




                                           25
                         CERTIFICATE OF COMPLIANCE

      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief

complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.      Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 6,165 words printed in a proportionally spaced typeface.

2.     This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 13 point font in footnotes produced by Microsoft

Word Software.

3.   Undersigned counsel understands that a material misrepresentation in completing

this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),

may result in the Court's striking this brief and imposing sanctions against the person

who signed it.




                                       /s/ Daucie Schindler
                                        DAUCIE SCHINDLER




                                           26
                          CERTIFICATE OF SERVICE

      I certify that on the 5th day of October, 2015, a copy of the foregoing

instrument has been electronically served upon the Appellate Division of the Harris

County District Attorney’s Office.




                                               /s/ Daucie Schindler
                                               DAUCIE SCHINDLER




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