Davis, Johnny Eugene Sr.

Opinion

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 »?^ 2*5 angry with the child for whatever reason, whether it was -"-'.. y*rj;. £ - ,i_o: ;'-.^J^

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(.*C /because he dirtied his diaper or__because he wasn't being *2 ) still —

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 | J20 don't think that's what the Court is asking about.

I21 But I don't — to me, ,,t'his evidence is"""% i 122 that Johnny did not do it.a nume:rous number of times or v

23 probably the same result would have happened because of ^ ""•to'JSg&S ^-^•sp—"-?^^~~^?'Ktt&v$&rj-,—^tr??""*^ j •- r" ^< ^-'j5^^-«^r^^-s:rr-:'"~"""'*" "^s"T7*'

Athe finqernails or whatever^*) But I think it was a — it 24 I 1 25 happened spur of the minute A :-^-s-—.;jV^:-^>- Vf; The child's wiggling .^r^esOT!''"'?8^^*^^

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 "" i'5 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 jfS^^yor $ko^ tu,k£ bj *LjN.(> C,A,JJ^ >J'h 44

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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 ...-^sz^taM'SBii&i ^,,^,.^111 iiilir<1f'^*,a''l*J'**!^-'*'^^',***iaiWllr*rt'llTITtHTWi'j-irTrfrTf*Tr*rH6'*rHWmTrV1* •"W*-"¥r*'.fVi'|-

11 is a -- I don't think the evidence shows that this is a '•gSSBSPW!®*****'**9^^ 12 violent predator like that. „

13 I think it was a total lapse of judgment, 14 to even attempt to change a diaper that way. I mean, I

15 thinkr 4-k,4- that's I n -- 4-1 J-l-J that's true ^^BSSKsisi^21- 16 THE COURT: Well, I mean, the pictures are

17 very serious to me. I mean they depict very serious 18

19 MR. RITCHIE: Yes, sir.

20 THE COURT: Almost shocking of the

21 conscience really is the way I see it. And I just --

22 that's why I say, I just don't understand how a human

23 being can do that to their own son. That's really

24 troubling to me.

25 MS. MASSEY: Your Honor, actually, his

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1 caseworker is here in the gallery today, and she's

2 advising that it is open simply for the fact that he has

3 been in jail pending this outcome. But the child's been

4 reunified, and services have been worked by the mother.

5 (Pause in proceedings.)

6 THE COURT: Mr. Davis, could you stand,

7 please.

8 THE DEFENDANT: (Complies.)

9 THE COURT: All right, Mr. Davis. You've

10 come before the Court today, and you entered a plea of

11 guilty to the offense alleged in the indictment in this

12 case .

13 You were duly admonished by the Court

14 about the consequences of that plea. You've asked the

i;5 Court to consider to give you -- to put you on

16 probation, but I told you, prior to accepting your plea,

17 that you were not going to be allowed to withdraw that

18 even if I rejected what you were asking me to do.

19 I found that your plea was knowingly,

20 intelligently, freely, and voluntarily given, and I

21 accepted that plea of guilty. And you -- there's been

22 evidence presented, which goes to the effect of

23 punishment or sentence or what to do with you in this

24 case .

25 So, first of all, I'm going to find you

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS ,, I-1

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l guilty of the offense alleged in the indictment in this

2 case, sir.

3 THE DEFENDANT: If it would make you -- if

4 it could speed it up, could I speak, please?

5 THE COURT: What?

6 THE DEFENDANT: Could I please speak to

7 the Court, please?

8 THE COURT: I'll give you just a second.

9 THE DEFENDANT: Sorry.

10 THE COURT: No. I want you to go ahead

11 and speak to the Court now before I assess punishment.

12 THE DEFENDANT: Okay. In 2007 or 2008, I

13 was — I went to MHMR with my — me and last wife was

14 getting a divorce. I was still • • I had the explosive

15 temperament disorder and depression, and that was it.

16 He just, you know, let me go.

17 "" And then I went -- just started recently

18 going back to..and getting -- through MHMR in

19 Weatherford, I was talked to -- I was mentioned that

20 word to — "explosive" to my counselor, and she said

21 bipolar.

22 And I had an appointment, I think, for

23 October 2nd or October 4th, I was supposed to go back to

24 MHMR, and I was going to request to be put. oh medication -,- .'«WTO»w»7Me jss,,. 25 for it.

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS 1 Q. Okay. And what did you determine from

2 discussions with the mother?

3 A. She told me that she didn't know of any foul

4 play or wrongdoing, that she just assumed that he had

5 fell off, and this conversation that she had with the

6 defendant. That's what the defendant told her, that he

7 had fell and hurt himself that wa'

8 Q. And did you have -- did you interview the

9 defendant?

10 A. Yes, I did.

11 Q. And what did you find out from the interview of

12 the defendant?

13 A. He told me that -- oh, I spoke with him for

14 quite a while about the whole incident, and towards the

15 interview (sic), he said that the injury happened when

16 he was actually changing his diaper. v

17 He was moving around -- the kid was moving

18 around while he was changing his diaper, and in order to

19 get him to be still, he lifted him up by the base_of his

20 penis and that in turn, that caused the injury.

21 And he --

22 Q. Go ahead.

23 A. He told me at that time — that's when we knew

24 that injury had occurred, because he said that he did 25 cry a little bit and that he went ahead and put the

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS \J I 0 L^ f C /- PAr I 1 /3W ;'.h 19 (.;

i .H e!« \V *\' diaper on and kissed him and went on. * w * W1 2 Q. And based on.your investigation, who caused the

3 injuries to the victim?

4 A. Johnny Davis, Sr.

, 5 MS. MASSEY: I'll pass the witness.

6 CROSS-EXAMINATION

BY MR. RITCHIE: & Q. Jeremy, as you know, I represent the defendant. .V ti •JC4L~ §9 •"vC 'm Richard Ritchie. And you and I have never talked ?a»&±&%m&Mx«!

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A. No, we have not.

12 Q. And you -- actually, you interviewed Darlene

13 Davis, which is Johnny's wife; is that correct?

14 A. Yes.

15 Q. And let's establish the age of that child

16 backwards in there about September. I think his date of

17 birth was '09 —

18 A. Okay.

19 Q. -- in September, so he would have been about

20 three?

21 A. Uh-huh. That's correct.

22 Q. Three years -- I believe four. I believe he

23 would have been four.

24 A. He had just turned.

25 Q. . Just turning four about that time; is that

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS * c - - • 1,f A A »^ t j*-- --' ••'- «>* ,.•«! ^

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 <-'-» 4-t j^ p.|vM./viC. / o. *:' Vr-f

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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 i^r^3" Bgg»'<»j«W-«gwy"-"wf**'* >--

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 •i •j. j -~> were treating the laceration with Neosporin. fvvf£ ^ 14 A. Yes, that'swhatthey said. ^.W^ ,7 "l Q. ~ Is that basically right? —" ClriWWt) '^ ' 15

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?„ ' """ " '. ..;.*~-<*V*-1"'-*5a«,i 25 A, No, it's not. ( ifJ f.dft^-^-1^, ;-

ELIZABETH BOURQUIN, CSR 29TH JUDICIAL DISTRICT COURT, PALO PINTO COUNTY, TEXAS :> 4^'Vv

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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? n..JaCT.iA.-:i- •--C

fit- lC T * f A. They did^jen_d^hiijm to school -- f\m* ? ^

, H 6 I'll give you that. A Q' K7 * A. -- so . . . */•• "\

Q. I mean, the kid returned to school. Head Start

9 gets -- I mean, gets upse,t jwhen they have to change _a_ -""""wesaaraBsfrawn.-

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 V/A ^ A'-T f- ''> * 22 Q. But he did eventually tell you what happened? AS 23 A. In the end, yes, he did. $\ ft A-OC 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.. _,u,.«« i...i..^i.. -^-.tfp^-cr-rn;':s-w --j^v.v.v.»•• •:••;: -. - n< •*-'• **->•*• - 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. -7,"5

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

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 tf^&zexzzxSt^ju^M^ 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? "•}f -.;'?' 'It"' 'r'i'.i"*V\ ,V,WM : n 9 A. Yes, ma'am. - ,j*r*M,'

''<2 0 Q. And that means that you're prone to anger and ,'i>*"'^'';^- I'21 )violence.

^'2 2 A. Yes, ma'am. But at the time, I was unaware k'>~\ 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 .'._._" .?"''&♦ •;*-. ^«yr.y ^ t -• a ^ AAiAC ^L/7i f\ ^5vLIZABETH BOURQUIN, CSR \ /' y tcV\ V /" ^OTB? J^e^4^T.R0:GTjt©^^J^%pNTfe>epUNTY, TEXAS 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