Page 78 - Texas police Association Peace Officer Guide 2017

I have listened to the audio recording a number of times. It reflects a pause before the “right to
terminate” warning is read, and it shows that the warning was read very quickly. The warning is
difficult to make out on the recording, but at least some sense of the wording is conveyed—
enough for someone who knows what to look for to recognize it and possibly enough for
someone who heard it live, and had the benefit of watching the speaker’s lips, to understand it.
Appellant acknowledged that he understood the warnings, and said “yes” when the officer
double-checked on what appellant’s nod meant. The officer could have, and presumably would
have, read the warnings again more slowly if appellant had not said that he understood them. If
the trial court had ruled that the warning was unintelligible, I would not be inclined to disturb
that ruling, but the trial court ruled in favor of the State, and it does seem like the court of
appeals has failed to appropriately defer to that ruling.
I respectfully dissent.

th
Baiza v. State, Cr. Crim. Appeals No. PD-0470-16, Sept. 14 , 2016. Dissent by J. Keller, joined
by J. Newell.

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3. Evidence:

EVIDENCE – STATEMENT OF MINOR VICTIM.

Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to
care for her two young children while she was out of town. A day later, teachers discovered red
marks on her 3-year-old son, and the boy identified Clark as his abuser. The question in this case
is whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing
those statements when the child was not available to be cross-examined. (emphasis by editor)
Because neither the child nor his teachers had the primary purpose of assisting in Clark’s
prosecution, the child’s statements do not implicate the Confrontation Clause and therefore were
admissible at trial.

Clark took L. P. to preschool. In the lunchroom, one of L. P.’s teachers, Ramona Whitley, ob-
served that L. P.’s left eye appeared bloodshot. She asked him “‘[w]hat happened,’” and he
initially said nothing. Eventually, however, he told the teacher that he “‘fell.’” When they moved
into the brighter lights of a classroom, Whitley noticed “‘[r]ed marks, like whips of some sort,’”
on L. P.’s face. She notified the lead teacher, Debra Jones, who asked L. P., “‘Who did this?
What happened to you?’” According to Jones, L. P. “‘seemed kind of bewildered’” and “‘said
something like, Dee, Dee.’” Jones asked L. P. whether Dee is “big or little,” to which L. P.
responded that “Dee is big.” Jones then brought L. P. to her supervisor, who lifted the boy’s
shirt, revealing more injuries. Whitley called a child abuse hotline to alert authorities about the
suspected abuse.

A grand jury indicted Clark on five counts of felonious assault (four related to A. T. and one
related to L. P.), two counts of endangering children (one for each child), and two counts of
domestic violence (one for each child). At trial, the State introduced L. P.’s statements to his

A Peace Officer’s Guide to Texas Law 73 2017 Edition