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Paz v. State

Court of Appeals of Texas, First District

August 3, 2017


         On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1296569

          Panel consists of Justices Higley, Bland, and Brown.


          Laura Carter Higley Justice.

         The State charged Appellant, Milton Rolando Paz, with capital murder.[1]Appellant pleaded not guilty. The jury found him guilty, and an automatic life sentence was assessed. In three issues on appeal, Appellant argues (1) the trial court abused its discretion by denying his motion to suppress; (2) he suffered egregious harm when the trial court failed to sua sponte include a jury instruction on voluntariness; and (3) the trial court abused its discretion by admitting certain autopsy photographs.

         We reverse and remand.


         In February 2011, Appellant was the father to two young children, a thirteen-month-old girl and a one-month-old girl. During that month, Appellant's wife had to leave town for work. A friend agreed to care for the infant while the wife was away. The wife's work trip got extended. The friend caring for the infant had to return her to Appellant because the friend also had to go out of town. The infant was in good health when returned to Appellant's care other than an upset stomach. Appellant was bothered that he had to care for his infant daughter.

         When the friend returned, she drove by Appellant's house to see if Appellant's wife had returned. She saw several men drinking on Appellant's patio but did not see Appellant or his wife.

         The next day, Appellant called his wife. He told her the infant was dead, describing her as cold and purple. The wife told him to call 911. Appellant called 911, and an ambulance arrived. The infant was taken to the hospital but could not be revived.

         The infant had bite marks on her cheeks and extensive bruising across her body, both internal and external. Each of her limbs were fractured. Four ribs were fractured. She had multiple, severe fractures on her skull with hemorrhaging around her skull, brain, and optic nerves. A medical examiner later testified that the skull fractures and hemorrhaging played the primary role in the infant's death.

         Lieutenant O. Chandler and Sergeant R. Figueroa first encountered Appellant at the hospital when the medical staff was attempting to revive his daughter. They spoke with Appellant for about 30 minutes, when Appellant agreed to go with them to his apartment. Appellant allowed them to search his apartment. Afterwards, Appellant agreed to go with the officers to the police station. Lieutenant Chandler drove him to the police station. While there, police photographed Appellant. The officers then took Appellant to a holding facility.

         The next day, Lieutenant Chandler and Sergeant Figueroa removed Appellant from the holding facility, and a patrol officer transported him back to the police station. They transferred Appellant to Officer R. Montoya and watched the interaction in another room.

         Appellant spoke with Officer Montoya and agreed to provide a voluntary statement. Their conversation was recorded. Near the beginning of the four-hour conversation, Appellant told Officer Montoya that Sergeant Figueroa had called him a "fucking ho." Then the following exchange occurred:

[Appellant]: And then later I was handcuffed for no reason. And then the guy came at me like this (demonstrating}, you know, as if he wanted to hit me.
[Montoya]: Uh-huh.
[Appellant]: Thi -- this dude that was [there] right now . . . .
[Montoya]: Uh-huh.
[Appellant]: And then he says to me, "Do you want trouble with me? Do you want trouble?" And he got in my face. So I said "No" to him. Then I was handcuffed and put in the can, in jail.

         Officer Montoya followed this up by asking Appellant if he knew why he was being investigated. Appellant acknowledged that it was because he was the only one with the girls at the time of his infant daughter's death. Officer Montoya then asked Appellant if he wanted to voluntarily discuss what happened with him. Appellant said yes and discussed another way in which he had cooperated with the investigators to aid the investigation.

         During the conversation, Officer Montoya described the process of taking a polygraph test. Officer Montoya talked about people trying and failing to lie and cheat during the test.

[Montoya]: What- what is the investigator going to say if I say, "Look, so-and-so came to cheat and to do tricks on the- on the test."
[Appellant]: Uh-huh.
[Montoya]: The investigator, he or she is going to imagine the worst, right?
[Appellant]: They will beat him up.
[Montoya]: No, because we already know that people come to cheat and trick or fraud-
[Appellant]: Uh-huh.
[Montoya]: . . . because they're only lying.
[Appellant]: I'm think they- because over there they tell me they wanted to beat me up for not wanting to talk. Can you imagine if someone throws me in there and I get beat up . . . .

         About three hours into the conversation, Appellant took a polygraph test. As Officer Montoya began the test, Appellant told him, "You're really good people. I have more trust in seeing you than . . . . I'm saying that you're the only trustworthy person that I've seen for a while. That's why I trust you."

         Officer Montoya had some difficulty getting Appellant to follow the instructions for the polygraph test. The following exchange occurred:

[Montoya]: I'm going to tell you something and I'm going to say it really sincerely. And ta- don't take it as me scolding you, but take it the right way.
[Appellant]: Okay.
[Montoya]: If the investigat- investigators[2] see this video right now. . . it's enough. It's enough evidence for them to see that you are not co-operating.
[Appellant]: No, I'm just-
[Montoya]: I just need to go out right now and make the call and tell them, he's not co-operating. . .
[Appellant]: Okay.
[Montoya]: . . . and you already know what they're going to do with you.
[Appellant]: Yes.
[Montoya]: Okay?
[Appellant]: I apologize.
[Montoya]: No-no-no. You keep telling me the same thing: "Forgive me. I'm sorry."
[Appellant]: Yes.
After a short break, Appellant continued to argue that he had not hurt his infant daughter.
[Appellant]: That's what I did and --
[Montoya]: You want --
[Appellant]: . . . I remember all of that well.
[Montoya]: Okay. Okay.
[Appellant]: I got up, I laid her down --
[Montoya]: Okay, Milton. You want me to go out right now and give them --
[Appellant]: How are you going to tell me that I hit her --
[Montoya]: Wait. Let me talk. Milton.
[Appellant]: . . . if I didn't hit her. Understand me.
[Montoya]: Milton, calm down. Calm down. We're men.
[Appellant]: Yes, but I didn't (unintelligible}.
[Montoya]: We're men. Calm down, Milton. Let me talk. Listen to me. It's very important that I want you to listen to me. It's very important, listen to me. Look, Milton. I go out there right now, and I tell these investigators that you . . . don't care. You don't want to explain anything. Do you ...

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