PD-0128-15
RECEIVED IN 40
COURT OF CRIMINAL APPEALS
FILED IN ffl 13 2015
COUFT
Ul-CRIMINAL APPEALS
i APR 13 2015 (Pause in proceedings . ) jkftAl
2 THE COURT: Anything further, Ms. Massey?
Abel Acosta, Clerk
3 MS. MASSEY: Not from the State, Your
4 Honor
5 THE COURT: Anything further, Mr. Ritchie?
6 MR. RITCHIE: None from the Defense, Your
7 Honor.
• THE COURT: I'm slightly perplexed about
why this occurred. I mean, a person of average
intelligence or even diminished intelligence should know
better than to do this. And there's an indication in
Exhibit 2 that you always did that. So it was not an
isolated incident.
Ms. Massey, do you have any closing
arguments you'd like to make?
MS. MASSEY: Yes, Your Honor.
17 Based on the severity of this case, the
••te.fact that it's not an isolated incident, and his
* explosive personality disorder that he admits that he
has, that he does have tendencies towards anger and
interest of the community that he be sentenced to the
Institutional Division of TDCJ.
But if the Court chooses not to do that,
we would ask that he be at least required to do an anger
/ ELIZABETH BOURQUIN, CSR
/" ^ 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
41
1 management class and not be near his wife or child, if
2 that's what they ask, and it's my understanding they
3 have asked, for at least two years.
4 THE COURT: Well, let me just ask you
5 that. I mean, that's -- can that be imposed -- you're
6 saying that can be imposed as a term and condition of
7 probation?
8 MS. MASSEY: It can be a condition of
9 probation that he not be near his wife and child for as
10 long as the Court deems proper.
11 THE COURT: But that would not be
12 enforceable like a protective order would be, though.
13 MS. MASSEY: No. It would be a violation
14 of probation if he did that.
15 THE COURT: All right.
16 MS. MASSEY: This would just be extra
17 protection for the family.
18 THE COURT: Right. Okay.
19 All right. Can you speak to the mindset
20 of this offense, though, that I was alluding to? Why
21 would this occur? I mean, based upon — what's your
22 position in that regard?
23 MS. MASSEY: Based on the evidence, the
***"
/2 4 only conclusion" that I can come up with is that he was
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2*5 angry with the child for whatever reason, whether it was
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29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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3 THE COURT: Okay.
4 MS. MASSEY: -- and did this out of anger.
5 THE COURT: Okay.
6 All right, Mr. Ritchie.
7 MR. RITCHIE: My take on the actual
8 incident is -- give me a second to articulate what I
9 really think about what the evidence shows, Judge', is
10 that when you first look at it in a vacuum, it's — you
11 think, well, who would do that conduct?
12 But then you go, how can a three-year-old
13 having a diaper changed and wiggling around and. doing
14 certain things? I mean, it's just — you go, wow, how
15 can that happen?
"Ttr I think you get into inadvertence; I think
17 you get to recklessness, which is also part of that
S 18 statute. And, you know, there's a 1esser*. incTud^gd^gc^irig^
II 19 down. That's a state jail felony offense. But — andi
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J20 don't think that's what the Court is asking about.
I21 But I don't — to me, ,,t'his evidence is"""%
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122 that Johnny did not do it.a nume:rous number of times or
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23 probably the same result would have happened because of ^
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1 25 happened spur of the minute A
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ELIZABETH BOURQUIN, CSR
29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
43
; l around, going around, maybe not behaving.
I And so, Judge, it is what it is. I think
1
3 3 your perception is the same as everybody else's. But I
think the practicalities of this happening in the -- in
the near future are just -- I mean, I don't think ""
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there's any threat to society about Johnny going around
changing diapers on kids, okay, number one.
•—— ' "I^niean, it's -- the kid is bound to be old
9 enough, since he's going to be five, where the same kind
10 of conduct wouldn't occur. Maybe other conduct would
11 occur. I mean, that's always a concern for us. But
12 that conduct can't '-- surely wouldn't.
13 I don't know -- I honestly don't know
14 where the CPS case is in this system. I'm assuming --
15 and the Court may know -- if it's in this court, then it
16 certainly would be supervised visitation, and he
17 wouldn't have the opportunity to be around the kid, kind
18 of like a protective order, without supervision. And I
19 don't know that.
20 THE COURT: I don't know — I don't know
21 the answer. I have so many of them I can't --
22 MR-. RITCHIE: I understand, Judge. And
23 I -- but I would -- we both know -- CPS is in it
24 somewhere, I believe.
25 And as a condition of probation, I
ELIZABETH BOURQUIN, CSR
29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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1 would -- I would think that this Court could just make
2 it an order of the Court for him not to be around, until
3 further order, and let him amend his conditions of
4 probation through a lawyer, if the Court felt
5 comfortable about that. And certainly, anger management
6 and those kind of things.
7 But I don't think Johnny is a threat to
8 society. I think he's genuinely concerned about the
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1 correct?
2 A. That is correct.
3 Q. So coming up in September this year, he'd be
4 five?
5 A. Yes.
6 Q. All right. And you interviewed --i and I think
7 that injury was on the Saturday prior to Labor Day.
8 Does that ind correct?
9 A. Yes, that is correct
10 Q. All right. And as you stated, I mean,
11 everybody -- that -- all of the reports indicate that it
12 was sometime on a Saturday evening, and Johnny was in
13 charge. Is that your understanding of the changing
14 diapers, taking care of the kid?
15 A. Yes, that is my understanding.
16 Q. And they call him J.D.; is that correct?
17 A. Yes.
18 Q. And all of these interviews were voluntary;
19 they came in, correct?
20 A. It was voluntary.
21 Q. All right. And you actually interviewed him, I
22 believe, on the 9th of September maybe -- no. 19th.
23 I'm sorry.
24 A. Yes, the 19th.
25 Q. The 19th of September. But the actual event
ELIZABETH BOURQUIN, CSR
29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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i happened sometime before that, correct?
2 A. Yes.
O
Q. All right. And I notice on there that there's
4w no sjer)i,o,u»s«-b.odily inj,ury. As a matter of fact, ..the
child was back in school.-.I believe, on the following
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Monday after Labor Day, right?
A. I believe that's when he went back, yes.
Q. The child missed about a week of school; is
9 that correct?
10 A. Yes.
11 Q. And so -- and so if the injury happened on
12 Saturday of Labor Day weekend,.I believe the parents
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were treating the laceration with Neosporin. fvvf£ ^
14 A. Yes, that'swhatthey said. ^.W^ ,7 "l
Q.
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Is that basically right?
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16 A. (Nods head affirmatively.)
17 Q. In fact, I think that's what Stephanie Giles
18 said when you interviewed her, right?
19 A. Yes, that's correct.
20 Q. And the child is — certainly, the child has
21 . recovered now, correct? ~^
22 ( A. I believe so. ^
23 "'/'Q."~ Right. It's not serious bodily injury, in your
24 ^'opinion, is it?„
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25 A, No, it's not.
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ELIZABETH BOURQUIN, CSR
29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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1 Okay. Isn't it fair to say, based upon all of
v> your interview and all of your investigation, that the
parents didn't attempt to hide this injury from the
M^M'vK 4,^school system or HeadJtMt? Right?
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fit- lC T * f A. They did^jen_d^hiijm to school --
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, H 6 I'll give you that.
A Q'
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Q. I mean, the kid returned to school. Head Start
9 gets -- I mean, gets upse,t jwhen they have to change _a_
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10 three-year -- the kid's diaper, and they find it, and
11 they're kind of shocked, right?
12 A. Yes, they were.
13 Q. I understand.
14 As a matter of fact, Johnny, the defendant,
15 came to get the kid from school that very Tuesday, I
16 believe; is tha.t_acc,ur,ate.?.
17 A After the — yes, after they found the injury^
18 Q."~~-After they found it, he came;
19 A. He did come.
20 Q. And then some days later, he comes in to
21 interview with you when you call him, right?
22 A. Yes, he did.
23 Q. Okay. And both parents are treating this child
24 wit! iosporin, and they don't call law enforcement.
25 I'm talking about Johnny or Darlene or anybody. They
ELIZABETH BOURQUIN, CSR
29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
24
1 system, or is it even in'the system yet, or do you know?
2 A. It should — Investigator Henard -- yes, it
3 should be in the system. I don't know the status of
4 their case, though.
5 MR. RITCHIE: I pass the witness.
6 REDIRECT EXAMINATION
7 BY MS. MASSEY:
8 Q. Just clear up one little thing.
9 When Mr. Davis went and picked up the child
10 from Head Start, did he tell them what happened?
11 A. He told them — he told them a story of what
12 happened.
13 Q. Okay. And what did he tell them? «»
14 A. He told them about the fall. I ^:
15 Q. And when you interviewed him, did he
16 immediately tell you what had occurred?
17 A. No, he did not.
18 Q. And did he tell you the story of him falling
19 also?
20 A. I believe in the beginning of it, he did. We
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22 Q. But he did eventually tell you what happened? AS
23 A. In the end, yes, he did. $\
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24 MS. MASSEY: No further questions
25 MR. RITCHIE: I have no further questions.
ELIZABETH BOURQUIN, CSR
29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
28
1 A. No, sir.
2 Q. Did you graduate from Springtown?
3 A. Yes, sir.
4 Q. And that's high school, correct?
5 A. Yes, sir.
6 Q. Do you have any other education at all besides
7 that?
A. No, sir .
9 /qV^ And you've got some physical disabilities; is
10 that right?
11 A. Yes, sir.
12 Q. Can you name some of those?
13 A. I've got a partially fused — partially fused
14 left hip, and I've got the beginning stages of..
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15 "degenerative disc disease' in my back.
16 " Q. Okay. You walk with a pretty noticeable limp;
17 is that correct?
18 " A. Yes, sir.
19 Q. You're in pain a lot; is that right?
20 A. Yes, sir.
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21 *Q""f'"* Okay. And have you been diagnosed with things
22 going on in -- mentally?
23 'A. Yes, sir.
24 '"''"q7 Bipolar?
25 A. Bipolar, yes, sir.
ELIZABETH BOURQUIN, CSR
29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
29
1 Okay. Certainly depression and anxiety over
) the years; is that right
'3 Yes, sir.
4 Q. And you've off and on taken medicine for that
5 for a long period of time; is that right?
S3"
6 A. Yes, sir.
'< 7 Q. Sometimes you get it -- get the medicine
ST correc tly; sometimes you don't, right?9
A. Yes, sir.
10 Q'."K' Today, as we're sitting here, since you've been
11 in custody, there's nothing that the jail has given you
12
13
that causes you not to understand what we're doing
today, though, is it?
\
14 A. No, sir.
15 Q. You totally understand, and you understand what
16 I'm talking about, what the Court's talking about, and
17 nothing about medication is keeping you -- hindering you
18 in any way of communicating --
19 A. No, sir.
20 Q. -- is that right?
21 A. Yes.
,22 Okay. Do you know what your IQ level has been
23 established at? *£f.r- .'\l- * 0*f.A$N.VQ A/ V
24 A. No, sir.5 ""'' .?»• ***
25 Q. We're going to get to the night — or the
£) / ELIZABETH BOURQUIN, CSR
I ff fefli ^JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS
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1 Do you understand all of that?
2 A. Yes, ma'am.
3 Q. And you thoroughly believe that you can and
4 will do all of that?
5 A. Yes, ma'am.
6 Q. Even though you don't have a car and.a ride?
7 A. I'd find a ride with,a friend of mine. I'll
just have to -- you know...
9 Q. And if I told you that your wife didn't want
10 you back in the house, would you be accepting of that,
11 if she told you that?
12 A. It'd hurt, but I — I want to be back with her.
1.13j ^ 'This was an accident*?9' I didn't do thisj^- I want to
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14 stop any disability, stop and go back to work and learn
15 how to be a better father and husband.
/l6 ' Q. Now, in the medical records that I introduced
f 17 ,. earlier, there's a statement from your wife -that you ,had
c been diagnosed with an explosive personality?
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n 9 A. Yes, ma'am.
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''<2 0 Q. And that means that you're prone to anger and
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I'21 )violence.
^'2 2 A. Yes, ma'am. But at the time, I was unaware
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f 23 what that meant.,, " "•--><;..
;- 2 4 Q. But you admit that you do have that?
/ .2 5 A. fes , ma ' am . That's one reason I'm trying^to
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38
get the prescription to get the. medicitn^J.to.„.g.e,t..,this
condition under control.
MS. MASSEY: I'll pass the witness.
REDIRECT EXAMINATION
BY MR. RITCHIE:
Q. And, Johnny, that's why, if you get placed on
probation, you can get some anger management and some
help; is that correct?
Yes, sir.
j Q. Because you donft want anything bad to happen
to your son. This has — this has been very difficult
-on you, hasn't it? ~" *-'"KCCT=*OTrwc--t-r"-'
'A. Yes, sir.
14 Mi?. RITCHIE: I pass the witness, Your
15 Honor.
16 MS. MASSEY: Your Honor, may I have a
17 moment?
18 THE COURT. Yes. Can I have that exhibit,
19 Exhibit 2?
20 (Pause in proceedings.)
21 THE COURT: Ms. Massey?
22 I'm sorry. I didn't -- is that all you
23 have, Mr. Ritchie? Did you rest?
24 MR. RITCHIE: I had passed the witness,
25 Your Honor.
ELIZABETH BOURQUIN, CSR
29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS