Modified and Affirmed as Modified; Opinion Filed November 29, 2017.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01184-CR
KARL DAVIS BARNES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1524402-Q
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Stoddart
Opinion by Justice Stoddart
Karl Davis Barnes pleaded guilty to the offense of continuous sexual assault of a child.
The jury assessed punishment at ninety-nine years in prison. Barnes contends the trial court
erred by denying his pretrial motion to suppress evidence obtained at the scene of his attempted
suicide and in his later police interview. He also claims he received ineffective assistance of
counsel, the trial court erred by overruling his hearsay objections to medical records, and the
judgment should be reformed to reflect his plea of guilty.
We conclude any complaint about the trial court’s ruling on the motion to suppress is not
preserved for appeal, the record does not establish a claim of ineffective assistance of counsel,
and the trial court did not abuse its discretion by overruling the hearsay objections. We modify
the trial court’s judgment to reflect that appellant pleaded guilty and affirm the judgment as
modified.
BACKGROUND
In August 2015, the nine-year old complainant, M.S., told his mother that Barnes, a
friend who lived with the family, had sexually assaulted him. Detective Mark Sims was assigned
to the case and arranged for a forensic interview of the child. Sims observed the interview in
which M.S. described several incidents of sexual assault against him by Barnes over a period of
several months. Sims then contacted Barnes for a voluntary interview. Barnes agreed and went
to the interview on the morning of August 19, 2015. Sims obtained basic background
information, then asked Barnes about the allegations of sexual assault by M.S. Barnes denied
engaging in any criminal or inappropriate behavior. After about an hour, Barnes ended the
interview and left voluntarily.
That afternoon, Sims obtained a warrant for Barnes’s arrest and went to serve it at
Barnes’s parent’s house, where Barnes was staying. In the meantime, Richardson police officers
and firefighters had been called to the house because Barnes attempted to commit suicide by
cutting his wrist. Barnes testified he also took six Tramadol pills during the attempt.
Officers found Barnes standing in the backyard of the house with family members. He
was bleeding at the wrist but able to walk to the front yard where he received treatment from
paramedics. The officers asked Barnes where the weapon he used was located. Barnes said he
threw it in the bushes. The backyard was large and only partially fenced. Officer Buckland went
into the backyard to secure the weapon and look for a suicide note, which was standard practice
in apparent suicide cases. She found a chair, a pool of blood, and other items on the ground next
to the chair. She also found a box cutter and medical shears, both of which had blood on them.
She saw a folded piece of paper with the word “sin” written on it, apparently in blood, and an
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open Bible with some loose paper “sticking out.” She could see handwriting on the loose paper
and started reading. It appeared to be a suicide note. She could not recall if any of the pages of
the Bible were covering the note. Buckland read the first page of the note, then flipped it over to
read the back of the page. She did not remove the note from the Bible and turned it over after
reading the back. She concluded the note was more than a suicide note. In the note, Barnes
admitted sexually assaulting M.S. and four other young boys. He addressed his family and asked
for forgiveness. He also apologized to Sims for lying to him and wasting his time. A crime
scene investigator took photographs of the scene, then removed the note from the Bible and
photographed each page of the note. He then collected the items.
Barnes had been transported to the hospital when Sims arrived. Sims sent an officer to
the hospital and instructed him to arrest Barnes when he was released. After his release, Barnes
was arrested and taken to jail.
Later that day, Sims interviewed Barnes for the second time. Before warning him of his
Miranda1 rights, Sims asked Barnes some questions to determine his state of mind and whether
he was under the influence of medications or substances that would prevent him from speaking
or understanding the discussion. Sims testified Barnes did not appear to be under the influence
of medications or other substances that would prevent him from understanding their discussion.
Sims asked Barnes what happened after he left the police department that morning.
Barnes responded that he was tired of having “these thoughts.” He’s had “these feelings and
urges” since he was seven and tried to kill himself so he “wouldn’t be a strain on society. Even
going to jail, I’m not afraid of going to jail, I’m, it’s more or less being a strain on society,
taxpayers, money. I don’t want that.” Sims then moved on to other topics and requested a DNA
1
Miranda v. Arizona, 384 U.S. 436, 479 (1966).
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sample. Sims asked him what types of urges he was having. Barnes explained they were sexual
urges with males. Barnes agreed to give a DNA sample and Sims took a buccal swap of his
cheek.
Sims read and gave Barnes a written copy of the Miranda warnings approximately ten
minutes into the interview. Barnes stated he understood each of his rights and signed a form
indicating his understanding. Afterwards, Barnes spoke with Sims for over two hours. He never
requested an attorney or to end the interview. Sims testified that Barnes did not exhibit any
mental instability or indication he was under the influence of any substance. After giving the
Miranda warnings, Sims did not re-ask the questions from before the warnings. After receiving
the warnings, Barnes discussed several specific acts of sexual assault of M.S. and other underage
boys.
With one exception, the trial court denied Barnes’s motion to suppress the suicide note
and the recording of his second interview.2 The trial court signed a written order and findings on
the voluntariness of Barnes’s statement in the second interview as required by section six of
article 38.22 of the code of criminal procedure. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6
(requiring independent finding of voluntariness by court in all cases raising a question of
voluntariness of defendant’s statement).
Before voir dire and following arraignment, Barnes pleaded not guilty. When the jury
was seated two days later, Barnes changed his plea to guilty. After admonishing him as to the
consequences of his plea, the trial court found the evidence sufficient to prove his guilt beyond a
reasonable doubt and accepted the guilty plea. Trial on punishment then began before the jury.
2
The trial court sustained the motion to suppress as to the discussion of Barnes’s Gmail account during the
unwarned portion of the second interview. This portion of the recording was not shown to the jury.
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During trial, the State offered the suicide note and recording of the second interview.
Barnes’s counsel stated they had “no objections” to either exhibit. M.S. testified about several
incidents of sexual abuse by Barnes. The State also presented evidence of incidents of sexual
abuse by Barnes against other young boys. Evidence was admitted of Barnes’s juvenile history
involving aggravated sexual assault and various treatment programs in which he participated
while on juvenile probation for that offense.
Barnes testified about his attempts over many years to find an effective treatment for his
sexual urges regarding young boys, but nothing worked. Barnes also testified he was sexually
abused as a child by family members and others. He testified he pleaded guilty because he was
guilty, not because he knew the suicide note and second interview would be admitted. He
testified he sees himself as a predator and cannot forgive himself.
The jury assessed punishment at ninety-nine years in prison. The trial court rendered
judgment and sentenced Barnes in accordance with the verdict.
ANALYSIS
A. Preservation of Error
In his first three issues, Barnes challenges the trial court’s denial of his motion to
suppress the suicide note and his second interview. Barnes sought to suppress the suicide note
because it was found inside his Bible, he had a reasonable expectation of privacy in the Bible,
and no exceptions to the warrant requirement applied. Barnes moved to suppress the second
interview because the detective engaged in an improper “question first, warn later” technique by
asking questions before giving Barnes Miranda warnings and because the State failed to show he
intentionally and knowingly waived his Miranda rights due to ingesting Tramadol during his
suicide attempt. The trial court overruled the motion to suppress after an evidentiary hearing.
In addition to responding to these arguments, the State contends Barnes waived any
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challenge to the trial court’s ruling on the motion to suppress when he affirmatively stated “no
objection” to the evidence as it was offered at the punishment trial.
Generally, an adverse ruling on a pretrial motion to suppress evidence will suffice to
preserve error for appeal, and a defendant need not specifically object to the evidence when it is
later offered at trial. Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013). However, a
defendant must take care not to affirmatively state he has “no objection” to the evidence when
offered at trial or he will have waived his complaint about previously preserved error. Id.
Application of this “no objection” waiver rule is not inflexible or automatic, but depends on the
context. Id. at 885; see Stairhime v. State, 463 S.W.3d 902, 906 (Tex. Crim. App. 2015). When
assessing whether a statement of “no objection” waives a previously preserved error, we first ask
whether “the record as a whole plainly demonstrates that the defendant did not intend, nor did
the trial court construe, his ‘no objection’ statement to constitute an abandonment of a claim of
error that he had earlier preserved for appeal.” Stairhime, 463 S.W.3d at 906 (quoting Thomas,
408 S.W.3d at 885). If after reviewing the entire record, “it remains ambiguous whether waiver
was intended, the court should resolve the ambiguity in favor of a finding of waiver.” Id. Under
those circumstances, “the affirmative ‘no objection’ statement will, by itself, serve as an
unequivocal indication that a waiver was both intended and understood.” Thomas, 408 S.W.3d
at 885–86.
When the State offered the suicide note and recording of the second interview in
evidence, Barnes’s attorneys affirmatively stated they had “no objections.” The evidence was
admitted and published to the jury. Barnes used portions of both the suicide note and his
interview to argue he took responsibility for his conduct, was forthcoming about assaults on
other children, and wanted all the children to get help for what he had done to them. In closing
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argument, his attorneys argued this was mitigating evidence the jury should consider in setting
punishment. At no time after he stated “no objections” to the evidence, did Barnes indicate he
did not intend to waive his complaint about the ruling on the motion to suppress. Nor is there
any indication in the record that the trial court considered that Barnes’s complaint had not been
abandoned. See Thomas, 408 S.W.3d at 879–80 (noting trial court’s statements after rendering
judgment that defendant had right to appeal both ruling on motion to suppress and assessment of
punishment). After reviewing the entire record, we conclude it does not “plainly demonstrate”
that waiver was not intended or understood. Barnes’s statement of “no objection” served as an
unequivocal abandonment of his complaint. Thomas, 408 S.W.3d at 885–86. We overrule
Barnes’s first three issues.
B. Ineffective Assistance of Counsel
In his fourth and fifth issues, Barnes argues that he received ineffective assistance of
counsel when his attorneys affirmatively stated “no objections” to the offer of the suicide note
and recording of the second interview at the punishment trial.
To successfully assert an ineffective assistance of counsel claim on direct appeal,
appellant must show that (1) counsel’s representation fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced him; that is, but for the deficiency,
there is a reasonable probability that the result of the proceeding would have been different. See
Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). The “claim must be firmly
founded in the record and the record must affirmatively demonstrate the meritorious nature of the
claim.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Absent an
opportunity for trial counsel to explain the conduct in question, an appellate court should not find
deficient performance unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Id. Appellant has the burden to prove his claim by a
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preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
We indulge in a strong presumption that counsel’s conduct was not deficient. Nava v. State, 415
S.W.3d 289, 308 (Tex. Crim. App. 2013). Failure to make the required showing of either
deficient performance or sufficient prejudice defeats an ineffective assistance claim. See
Andrews, 159 S.W.3d at 101.
Barnes filed a motion for new trial stating only that the verdict was contrary to the law
and evidence. He did not assert a claim of ineffective assistance of counsel and there is no
record of an evidentiary hearing addressing the issue. Thus, there is no record of trial counsel’s
strategies or reasons for the allegedly ineffective conduct. Because there is no evidence as to
trial counsel’s strategy, we cannot determine on this record whether counsel’s performance fell
below the standard of reasonable assistance. See Menefield v. State, 363 S.W.3d 591, 593 (Tex.
Crim. App. 2012) (court could not know on silent record whether counsel had a good or bad
reason for failing to raise Confrontation Clause objection).
Barnes argues no legal strategy could support the failure to object to the suicide note and
interview after counsel took efforts to suppress them. The State responds that after the ruling on
the motion to suppress, Barnes changed his plea to guilty and “at that moment [] the State’s best
evidence of guilty became Appellant’s best evidence in mitigation.” According to the State,
there is nothing outrageous about trial counsel changing strategy once guilt was no longer at
issue. The State contends that portions of the suicide note and the interview showed Barnes
accepted responsibility for his conduct, which was part of the defense’s mitigation strategy. The
State also notes that Barnes specifically testified he pleaded guilty because he was guilty, not
because he knew the suicide note and interview would come into evidence.
We agree with the State. On this silent record, we cannot say that counsel’s conduct was
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“so outrageous that no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d
at 392. Therefore, the record does not rebut the strong presumption that counsel rendered
effective assistance. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003);
Thompson, 9 S.W.3d at 814 (appellant failed to rebut presumption of reasonable assistance
because record was silent as to “why appellant’s trial counsel failed to object to the State’s
persistent attempts to elicit inadmissible hearsay”). Barnes has failed to establish his claims of
ineffective assistance of counsel. We overrule Barnes’s fourth and fifth issues.
C. Ruling on Hearsay Objections
Barnes argues in his sixth and seventh issues that the trial court abused its discretion by
overruling his hearsay objections to certain statements contained in his and the complainant’s
medical records, which were offered in evidence as business records.
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We
reverse only when the trial court’s decision was so clearly wrong as to fall outside the zone of
reasonable disagreement. Id. We uphold the trial court’s ruling if it was correct on any theory
reasonably supported by the evidence and applicable to the case. See Willover v. State, 70
S.W.3d 841, 845 (Tex. Crim. App. 2002).
State’s Exhibit 11, Barnes’s medical records from the suicide attempt, includes a
comment section by a social worker at Medical City Hospital. The comment recites statements
Barnes made to the social worker in connection with his discharge planning and need for
psychiatric placement. The social worker noted that Barnes reported he has a fascination with
younger males, stated “I have an attraction to everything but animals,” and expressed frustration
with his inability to control his desire to engage in sex with younger males. The social worker
wrote that she spoke to the nurse and physician about Barnes’s concerns. The trial court
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overruled Barnes’s hearsay objection to this portion of the medical records and granted a running
objection.
State’s Exhibit 27 contains a portion of M.S.’s medical records and includes statements
by his mother. The mother told medical providers that M.S. complained of pain during
urination. She went to the bathroom to check on him, and noticed he was not wearing
underwear. When she asked him about it, M.S. said that Barnes told him he did not have to wear
underwear. She asked if Barnes had ever done anything to him. M.S. started to cry and asked if
she would be mad at Barnes or M.S. She assured him she would not be mad. M.S. then
described the details of oral and anal sexual abuse by Barnes. She thought it happened at least
five or six times and M.S. told her it last happened on Thursday. She explained that Barnes was
a family friend and moved into their home in March as a babysitter and housekeeper. She also
stated that Barnes moved out the day of the outcry due to an unrelated altercation. The trial court
overruled Barnes’s hearsay objection to these statements and granted a running objection.
The State maintains the medical records contained in State’s Exhibits 11 and 27 were
admissible business records under rule 803(6). See TEX. R. EVID. 803(6). While the records
themselves qualify as business records of the hospitals, “[w]hen a business receives information
from a person who is outside the business and who has no business duty to report or to report
accurately, those statements are not covered by the business records exception.” Garcia v. State,
126 S.W.3d 921, 926 (Tex. Crim. App. 2004). When business records contain “hearsay within
hearsay,” the proponent must establish that the multiple hearsay statements are independently
admissible. See TEX. R. EVID. 805 (“Hearsay within hearsay is not excluded by the rule against
hearsay if each part of the combined statements conforms with an exception to the rule.”);
Sanchez v. State, 354 S.W.3d 476, 485–86 (Tex. Crim. App. 2011) (“When hearsay contains
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hearsay, the Rules of Evidence require that each part of the combined statements be within an
exception to the hearsay rule.”).
Regarding Barnes’s statements in State’s Exhibit 11, the State argues the statements are
admissible as admissions by a party opponent under rule 801(e)(2). TEX. R. EVID. 801(e)(2).
We agree. Rule 801(e)(2) provides that a statement is not hearsay if it is offered against a party
and is the party’s own statement. Id. 801(e)(2)(A). The statements were Barnes’s own and were
offered against him. Therefore, they were not hearsay. See Trevino v. State, 991 S.W.2d 849,
853 (Tex. Crim. App. 1999) (“Rule 801(e)(2)(A) plainly and unequivocally states that a criminal
defendant’s own statements, when being offered against him, are not hearsay.”). The trial court
did not abuse its discretion by overruling the hearsay objection.
Regarding the mother’s statements in State’s Exhibit 27, the State contends the
statements were made for and pertinent to M.S.’s medical diagnosis or treatment and admissible
under rule 803(4). See TEX. R. EVID. 803(4). We agree. Certain statements made for and
reasonably pertinent to medical diagnosis or treatment are excepted from the hearsay rule. Id.
(including statements describing medical history, past or present symptoms or sensations, their
inception, or general cause). Texas courts have held that statements by a suspected victim of
child abuse as to the causation and source of the child’s injuries are admissible under rule 803(4).
Gregory v. State, 56 S.W.3d 164, 183 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d);
Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d). “[U]nlike
ordinary medical problems, the treatment of child abuse includes removing the child from the
abusive setting. Thus, the identity of the abuser is pertinent to the medical treatment of the
child.” Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.—Austin 2001, pet. ref’d). Further,
statements made by the parent of an injured child for purposes of diagnosing or treating the child
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qualify as an exception under rule 803(4). Sandoval v. State, 52 S.W.3d 851, 856–57 (Tex.
App.—Houston [1st Dist.] 2001, pet. ref’d); Ponce v. State, 89 S.W.3d 110, 120 (Tex. App.—
Corpus Christi 2002, no pet.). Therefore, the trial court did not abuse its discretion by overruling
the hearsay objection.
We overrule Barnes’s sixth and seventh issues.
D. Modification of the Judgment
In his last issue, appellant contends the judgment incorrectly states he pleaded not guilty
to the offense and should be modified to reflect his plea of guilty. The State agrees. The record
shows that appellant affirmatively pleaded guilty in open court and the trial court accepted his
plea. Accordingly, we modify the section of the judgment titled “Plea to Offense:” to reflect that
appellant entered a plea of “Guilty.” See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,
27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas
1991, pet. ref’d).
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed as modified.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
161184F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KARL DAVIS BARNES, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-16-01184-CR V. Trial Court Cause No. F-1524402-Q.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices Bridges and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section of the judgment titled "Plea to Offense:" is modified to state "Guilty."
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 29th day of November, 2017.
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