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Click here for the full text of this decision FACTS:Authorities indicted Kenisha Eronda Berry for the murder of an individual under 6 years of age. The evidence at trial showed that in the early morning hours of Nov. 29, 1998, Roy and Ima Black discovered the victim’s body in a Dumpster at a Beaumont apartment complex. Roy found the deceased male infant inside a trash bag with duct tape over his mouth. His arms were secured across his chest with duct tape and there was fecal matter inside the trash bag. Ima alerted the police. The case remained unsolved until the summer of 2003, when Debbie Beavers of the Jefferson County Sheriff’s Department was investigating another case involving Berry. During the course of the investigation into Berry’s alleged abandonment of another baby, Berry took Beavers to the Dumpster where the Blacks found the victim. Beavers brought this to the attention of Beaumont police officer John Boles, who arranged for Berry’s fingerprints to be compared to those found on the duct tape and trash bag. A latent palm print on the trash bag matched Berry’s right palm. A latent fingerprint on a piece of duct tape matched Berry’s left index finger. DNA testing of the victim’s blood and Berry’s oral swabs indicated a 99.98 percent probability that Berry was the victim’s mother. On June 27, 2003, Child Protective Services worker Tracy Rideaux met with Berry, who was in jail on another charge, to determine placement for Berry’s remaining children, including Paris, an infant who was in the care of CPS, and three other older children. Rideaux testified that Paris, Berry’s infant daughter, was fathered by a man named Leonard Carrier and her three older children were fathered by a man named Joskin Love. Rideaux met with Berry in jail on July 10, 2003, after Berry had been charged with capital murder in the death of her son Malachi, the infant boy found dead in the dumpster. Berry told Rideaux that she knew how to hide a pregnancy and her weight fluctuated a lot. She stated that her family had absolutely nothing to do with Malachi’s death. She revealed that she gave birth to Malachi at home in her apartment, that it was an easy delivery and that he was fine when he was born. Berry said that she went to the store and purchased a bottle and some formula after his birth. Her other children were with a relative at the time of his birth, and when the children returned home, she explained that Malachi was a friend’s baby. She did not confess that she killed Malachi but stated that she borrowed her grandmother’s car, placed the infant, who was already inside the trash bag, in the trunk and transported him to a Dumpster without anyone’s knowledge. She stated that the baby was not kicking or moving when she put him in the Dumpster. Berry testified at trial that she did not kill her baby. Berry testified that Malachi appeared healthy when he was born and she fed him milk from a bottle. His nose started running the next day, and she went to the store that morning to buy milk. When she returned from the store, he was still asleep on the bed in her bedroom. She lay on the couch to watch television and later checked on him, because she was concerned that he had not yet awakened. When Berry went into the bedroom, she said that Malachi was “limp” and was not moving or breathing. She thought that he was dead, but did not call for help because she was scared and did not know “if it was against the law to have a baby at home.” She put duct tape over his arms because they were stiff and sticking out and she “wanted them in front of him.” She put duct tape over his mouth, because it bothered her that his mouth was open. She left her apartment with Malachi in a bag and later placed him in a Dumpster. The prosecutor questioned Berry on cross-examination regarding her infant daughter Paris. Berry acknowledged that she hid her pregnancy with Paris but avoided answering the prosecutor’s questions about whether she had abandoned Paris on the side of a road. Forensic pathologist Tommy Brown had performed the autopsy on Malachi and estimated that he was 2 days to 5 days old. Duct tape had been used to cover his mouth and to constrain his arms around his abdomen, and he had been placed inside a plastic trash bag. His stomach contained a “milk-like product,” which indicated that he had been fed before death, and there was fecal matter inside the plastic trash bag. He had “petechiae of the pleural surfaces of the lung,” which was consistent with oxygen deprivation. The combination of being duct taped and covered with a plastic trash bag was also consistent with oxygen deprivation. Brown observed no indications of an infection or sudden-infant-death syndrome. He determined that the infant “died from asphyxia due to smothering,” and he ruled the death a homicide. Brown opined that the infant was still alive when he was placed in the plastic trash bag, and “as the baby died, then there was a large release of fecal material from the rectum.” Defense expert Stephen Pustilnik, a forensic pathologist, testified that he reviewed Brown’s autopsy report and the photographs and microscopic slides that were taken at the autopsy. Pustilnik could not specifically conclude what caused the death of the infant. He acknowledged the possibility of homicide and asphyxia but testified that the “child could have died naturally prior to being placed in the bag with the tape on it.” He testified that “it’s just as likely that this child died of a natural cause as it is that it died of a homicide.” Defense expert Carl Hunt, a medical doctor specializing in pediatrics and neonatology, testified that “this infant died of natural causes related to birth asphyxia and meconium aspiration syndrome, in other words, lung failure.” The jury convicted Berry of capital murder as defined in Texas Penal Code �19.03(a) in February 2004. Based on the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Art. 37.071, ��2(b) and (e), the trial judge sentenced Berry to death. Berry received an automatic appeal to the CCA. HOLDING:The CCA affirmed the conviction but reduced the sentence to life imprisonment. First, the CCA stated that the experts’ disagreement regarding the cause of death did not make the evidence insufficient in this case. Legally and factually sufficient evidence supported Berry’s conviction, the CCA held. Second, Berry argued that the trial court erroneously admitted the testimony of CPS worker Tracy Rideaux regarding statements that Berry made to her in jail. Berry contended that Rideaux was a state agent and was thus required to warn her in compliance with the U.S. Supreme Court’s 1966 decision Miranda v. Arizona and Texas Code of Criminal Procedure Art. 38.22. The procedural safeguards of Miranda, the CCA stated, apply to custodial interrogation by law enforcement officers or their agents. State employment does not, by itself, make a person an agent of the state for the purpose of defining “custodial interrogation.” Different types of state employees serve different roles. CPS workers, the CCA stated, have a different duty than law enforcement: to protect the welfare and safety of children in the community. On the other hand, the CCA stated, if police and CPS investigate a criminal offense in tandem, Miranda warnings and compliance with Art. 38.22 may be necessary. But the CCA stated that Rideaux was not an agent of law enforcement required to comply with Miranda and Art. 38.22. Rideaux’s purpose, the CCA stated, was to find a placement for Berry’s children. Since a family placement was being considered, Rideaux needed to determine if Berry’s relatives knew about the death of Malachi or the abandonment of Berry’s infant daughter Paris. The CCA found no evidence that the police used Rideaux to gather evidence. The CCA held that the trial court did not abuse its discretion in admitting Rideaux’s testimony regarding Berry’s statements. In points of error three and four, Berry complained about the admission of extraneous offenses at the guilt phase of the trial. She argued that the admission of evidence of her hidden pregnancies and the abandonment of Paris violated Texas Rule of Evidence 404(b). In point of error five, Berry asserted that the admission of this evidence also violated Rule 403, because the prejudicial effect of the evidence outweighed any probative value. The CCA found that Berry waived her Rule 403 complaint by not objecting during the trial. The CCA also found that the trial court did not err in admitting the character evidence regarding Berry’s abandonment of Paris. While evidence of other crimes, wrongs or acts is not admissible “to prove the character of a person in order to show action in conformity therewith,” the CCA noted that it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. For example, the CCA stated, extraneous offense evidence may be admissible when a defendant raises an affirmative defense or a defensive issue that negates one of the elements of the crime. The state argued that the subsequent hidden pregnancy and abandonment of Paris showed that Berry “was keeping the children fathered by Joskin Love, and discarding the children fathered by other men,” thus demonstrating her motive and her intent to kill Malachi. Berry’s intent, the CCA stated, was a disputed issue in this case. Thus, the CCA found that Rideaux’s testimony was admissible to prove Berry’s motive and her intent to kill Malachi. In point of error six, the CCA stated, Berry claimed that the prosecutor misstated the evidence in his closing argument at the guilt phase of the trial by stating that Berry referred to Malachi as “that baby.” The state later admitted its mistake. But the CCA stated that the prosecutor’s statement did not amount to severe misconduct. He did not repeat the statement after Berry objected to it. In point of error seven, Berry again complained of improper jury argument at the guilt phase. Berry asserted that the prosecutor improperly “struck at [Berry] over the shoulders of [her defense attorney]” when he argued that defense counsel told an expert witness that “ we’re looking for a defense.” But the CCA found that the prosecutor’s statement, while aggressive, fell within the bounds of permissible jury argument and did not “strike at Berry over the shoulders of defense counsel.” It was a reasonable deduction from Pustilnik’s testimony as a whole that Berry’s defense attorney told Pustilnik that at least one defensive theory was “that the child was dead prior to being put in the bag” and that Pustilnik looked at the autopsy with this potential alternative in mind. In point of error eight, Berry argued that the legally insufficient evidence supported the jury’s affirmative finding on the future-dangerousness special issue. The CCA held that the state did not meet its burden of proving beyond a reasonable doubt that there was a probability that Berry, if allowed to live, would commit criminal acts of violence in the future so as to constitute a continuing threat, whether in or out of prison. Berry murdered one child and abandoned another, but defense witnesses testified that these two incidents were out of character and that she was a loving and caring mother to her other three children. Berry’s expert witnesses opined that she was depressed and under extreme stress when she killed Malachi and, five years later, abandoned Paris. She had no criminal record, and the state presented no other evidence of violence in her past. All of her offenses involved a pregnancy, but testimony from both defense and state witnesses showed that her potential for becoming pregnant while incarcerated would be extremely low. Moreover, Berry was in her 20s when she was convicted of capital murder. If, the court noted, Berry received a life sentence and was paroled 40 years later, she would be in her 60s, beyond her childbearing years and thus incapable of repeating such an offense. Therefore, because it found that a rational jury would have entertained a reasonable doubt as to the probability of Berry’s future dangerousness, the CCA affirmed the judgment of conviction and reformed the trial court’s judgment to reflect a sentence of imprisonment for life. OPINION:Johnson, J., delivered the opinion of the court in which Price, Womack, Holcomb and Cochran, J.J., joined. DISSENT:Hervey, J., filed a dissenting opinion in which Keller, P.J., and Meyers and Keasler, J.J., joined. “[A] rational jury could have found that there is a probability that appellant would be dangerous”out of prison.’ She cold-heartedly murdered one child and attempted to murder another child on different occasions five years later. She is unremorseful and fails to take responsibility. This evidence satisfies every measure of future-dangerousness that this Court has applied. . . . A rational jury could have found that appellant is the same unremorseful, cold-blooded killer that she was in 1998 when she murdered Malachi and that she was in 2003 when she tried to murder Paris. That appellant might be controlled in prison in no way detracts from this or a rational finding that there is a probability that she would be dangerous to her unwanted children.”

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