Court of Criminal Appeals of Tennessee, Nashville
Session May 15, 2018
from the Circuit Court for Williamson County No. II-CR047916
James G. Martin, III, Judge
Williamson County Circuit Court Jury convicted the Appellant,
Thomas Bethel Hendrix, of two counts of aggravated child
abuse and one count of child abuse, and the trial court
imposed a total effective sentence of twenty-five years in
confinement. On appeal, the Appellant contends that the trial
court erred by admitting certain statements he made to law
enforcement and that the trial court erred by failing to
merge his convictions into a single conviction of aggravated
child abuse. Based upon the oral arguments, the record, and
the parties' briefs, we affirm the judgments of the trial
court but conclude that the Appellant's convictions must
be merged. Accordingly, the case is remanded to the trial
court for merger of the convictions into a single conviction
of aggravated child abuse. We note that merger of the
convictions does not affect the Appellant's
twenty-five-year sentence because the trial court ordered
that he serve the sentences concurrently.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed, Case Remanded
Gregory Burlison, Franklin, Tennessee, for the Appellant,
Thomas Bethel Hendrix.
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Kim R. Helper,
District Attorney General; and Mary Katharine White and Tammy
Rettig, Assistant District Attorneys General, for the
Appellee, State of Tennessee.
McGee Ogle, J., delivered the opinion of the court, in which
Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.
MCGEE OGLE, JUDGE
April 2014, the Williamson County Grand Jury returned an
indictment charging the Appellant in counts one and two with
aggravated child abuse resulting in serious bodily injury and
in count three with child abuse. Each count alleged that the
offense occurred between January 4 and January 8, 2014.
victim of the alleged crimes was the two-month-old son of the
Appellant's then-girlfriend, Jennifer Barnes. Before
trial, the Appellant filed a motion for a bill of
particulars, and the State ultimately responded that count
one referred to "injury to the victim's
ribs/rib," count two referred to "injury to the
victim's brain," and count three referred to
"bruising of the victim's skin."
trial, Barnes testified that she was originally from Detroit,
Michigan, and that she had lived in Dickson, Tennessee, for
approximately three years. She had two sons, WBB,
was ten years old at the time of trial, and the victim, who
was two years old at the time of trial. Barnes'
relationship with the victim's father ended two weeks
after she learned she was pregnant with the victim.
victim was born on October 15, 2013, at twenty-nine weeks
gestation. As a result of his premature birth, he had
pulmonary lung disease, was placed in the Neonatal Intensive
Care Unit (NICU), and was put on a ventilator and a
respirator. Three days after the victim's birth,
Barnes' long-time friend, Andrea Hendrix,  visited Barnes in
the hospital. Andrea, who was married to the Appellant's
brother, Ben Hendrix, brought the Appellant to the hospital
with her, and the Appellant and Barnes met for the first
thereafter, Barnes was released from the hospital, but the
victim remained in the NICU. At that time, Barnes was living
with her friend, Tonya Pezzi, in Pezzi's apartment in
Dickson. Barnes visited the victim in the hospital almost
daily, and the Appellant usually accompanied her. Barnes and
the Appellant quickly developed a romantic relationship, and
they talked about getting married and renting an apartment
together. Barnes spent some nights with the Appellant, who
lived in a house with Ben and Andrea in Fairview.
two days before Thanksgiving, the victim was released from
the hospital after forty-five days in the NICU. The victim
continued to suffer from pulmonary issues, which required
that he have weekly checkups with his doctor. He also had to
be taken to the hospital on several occasions due to
breathing issues. Notably, on December 24, 2013, Barnes took
him to the hospital because he was sick and had labored
breathing. A chest x-ray was taken that day. Barnes thought
another x-ray was taken on January 3, 2014, during a
began working for Dunkin' Donuts in November or December
2013, and she had to leave for work about 4:15 a.m. While she
was at work, WBB stayed with Barnes' father, who had
late-stage cancer. Barnes usually left the victim with
Jennifer Dructor, a babysitter who lived in the same
apartment complex as Pezzi. Dructor's boyfriend, Eric
Newberry, sometimes helped Dructor care for the victim. On
other occasions, Angela or the Appellant watched the victim.
Monday, January 6, 2014, Barnes worked until 4:00 p.m. The
next day, January 7, the victim was ill, and Barnes stayed
out of work to care for him. WBB stayed with Barnes'
father, and Barnes and the victim stayed at Pezzi's
apartment until approximately 6:00 p.m. Before leaving the
apartment, Barnes changed the victim's diaper, dressed
him in a "onesie," and put him in a "sleep
sack." Barnes explained, "You put the baby into the
sleep sack and you zip it up and it has two flaps that kind
of wrap over the sides and kind of swaddle them." Barnes
then retrieved WBB from her father's house and took her
sons to the Appellant's house. The victim was asleep when
they arrived, but he woke a couple of times while Barnes and
the Appellant sat on the couch and watched television. Either
the Appellant or Barnes held the victim when he woke; when he
fell asleep, they put him in his car seat on the floor in
front of the couch. The victim often slept in his car seat
because sleeping at an angle helped his breathing.
11:00 p.m., Barnes went into the bedroom of Angela's son,
Dominic, to sleep, and she put the victim in his car seat
beside the bed. The Appellant stayed in the living room to
sleep on the couch. Barnes changed the victim's diaper
right before she went to sleep and did not see any marks or
signs of injury on the victim. The victim's behavior that
day had been "perfectly fine," despite his illness.
woke around 1:00 or 2:00 a.m. because the victim was crying.
She discovered he was not in his car seat beside the bed but
was in the living room with the Appellant. Barnes called out
and asked the Appellant if everything was okay. The Appellant
sighed and responded, "[Y]eah, he's just having a
really bad night tonight." After a few minutes, the
victim's crying increased, and Barnes asked the Appellant
to bring the victim to her. The Appellant did "a lot of
huffing and puffing and sighing," and Barnes heard
sounds that made her think the Appellant was changing the
mentioned to the Appellant that no lights were on in the
house, which was unusual. The Appellant explained that Ben
and Angela were trying to save money on the electric bill;
however, Barnes had never heard that they wanted to save
money on electricity. Barnes asked the Appellant to turn on a
light and make a fresh bottle for the victim. After
complying, the Appellant brought the victim to Barnes,
"kind of shoved" the victim at her, and said,
"'[H]ere.'" Barnes thought the Appellant
was acting "frustrated and angry." Barnes fed the
victim and rocked him, and he fell asleep while eating.
Barnes put him back in his car seat beside the bed, and she
went back to sleep.
woke about 4:00 or 4:30 a.m. on January 8 to get ready for
work. About 5:30 a.m., she placed the victim in his car seat
beside the couch where the Appellant was sleeping and shook
the Appellant to tell him she was leaving. She took WBB to
her father's house and headed to work.
initially went to the Dunkin' Donuts store in Fairview
but was sent to the store in Dickson. She got off work about
12:00 or 12:30 p.m. and spent "several minutes" in
the parking lot talking with a coworker about wanting to get
a loan so she and the Appellant could rent an apartment.
After the conversation, Barnes went into a nearby loan office
to start the loan process. Upon leaving the loan office,
Barnes went to her father's house, retrieved WBB, and
returned to the Appellant's house.
Barnes arrived around 1:00 p.m., the victim was still wearing
his sleep sack. He was asleep in his car seat beside the
couch; Barnes noted that the victim typically slept a lot
during the day. Ben was home, asleep in his bedroom. Someone
from the loan office called and asked Barnes to return to
sign additional paperwork. Before leaving, Barnes asked if
the Appellant wanted to go with her. He responded that he had
things he needed to do on the computer, so he would stay home
and watch Barnes' sons until she returned to get them for
the victim's pediatrician appointment, which was
scheduled for 4:00 p.m.
return to the loan office took longer than she expected. Upon
leaving the office, she called the pediatrician to advise she
would be a little late for the appointment. She then called
the Appellant and asked him to have the boys ready to go. The
Appellant met her outside with the boys when she arrived. The
Appellant told her that the victim had been "very
agitated" and that he had spent much of the day trying
to keep the victim quiet so the victim would not wake Ben.
After both boys were in Barnes' car, the Appellant kissed
Barnes and told her that he loved her. Barnes thought the
Appellant seemed "rushed," "anxious," and
arriving a few minutes late for the 4:00 p.m. appointment at
Old Harding Pediatrics, a nurse led Barnes and her sons into
an exam room and told Barnes to undress the victim. As Barnes
took the victim out of his sleep sack, she noticed that his
hands were balled into fists and that one of his hands had
what appeared to be marks of dirt or ink across the knuckles.
Barnes licked her thumb and wiped at the marks, but they did
not come off. Barnes picked up the victim, and his fists
opened. On the palm of the marked hand, the victim had
"a perfect circle of the same type of markings [she] had
found on his knuckles." Barnes took the victim into the
hall and summoned a nurse, who then summoned the
pediatrician, Dr. Jennifer Ragsdale. The marks were
determined to be bruises. Barnes had not seen the bruises
before and did not know how they got there. The pediatrician
told Barnes to take the victim to Vanderbilt Children's
in the parking lot of the pediatrician's office, Barnes
sent text messages to the Appellant about the
bruises. In the texts, Barnes asked why the victim
was bruised and noted that the Appellant was the last person
with the victim. The Appellant responded that he did not know
how the victim was bruised, that he did not see bruises on
the victim, and that Barnes forgot to put formula in the
victim's bag. When Barnes specifically asked how the
victim's fingers and palm were bruised, the Appellant
replied that he had seen the bruises but had not drawn
Barnes' attention to them. Barnes asserted that she did
not injure the victim and that the victim was not bruised
when she went to bed or when she fed the victim in the middle
of the night. The Appellant responded, "Baby, [the
bruises were] there when you took him to me in the morning.
Maybe I swaddled him too hard and I won't do it
again." Barnes again asserted that the bruises were not
there when she went to bed and maintained that the victim had
been swaddled the entire time he was at the Appellant's
house. The Appellant insisted that he was 100% positive the
victim had bruises the night before. Barnes responded that
she had changed the victim's diaper before coming to the
Appellant's house and that the victim had no bruises at
that time. She had noticed the bruises immediately when she
removed the swaddling at the pediatrician's office. The
Appellant said, "I know. I didn't see [the bruises]
until this morning." Barnes repeated that the victim was
not bruised the night before and that the victim had been
with only the Appellant. The Appellant responded, "I
understand this. I never accused you." Barnes cautioned
the Appellant that if the victim's bruises had been
caused by child abuse, their relationship was over. At that
point, Barnes stopped sending the Appellant text messages and
drove to the hospital.
arriving at the hospital, the victim was rushed to the
Intensive Care Unit (ICU) where he was completely undressed
and full body x-rays, a CT scan, and an MRI were performed.
In the midst of the testing, Barnes learned the victim had
bruises and bleeding on the brain. Barnes then sent the
Appellant additional text messages. She told the Appellant
that their relationship was over, that she could not risk her
children for the Appellant, that the victim had bleeding on
his brain, that the victim was just a baby, and that bleeding
on the brain did not just happen. The Appellant replied that
he never did anything. Barnes stated, "[Y]ou were the
only one that's been around him since Monday besides
myself and he has blood on his brain now. And there's
these marks that were not here yesterday. And I know I
didn't do anything." Barnes then stopped exchanging
text messages with the Appellant.
called the Appellant's cellular telephone after 10:00
p.m. on January 8 and discovered that his telephone number
had been changed. She said, "I immediately went to
social media because we were friends on Facebook and . . . I
was deleted, I was blocked, I couldn't even find
point on the night of January 8, Detective David Bohler came
to the victim's hospital room. Barnes spoke with him and
showed him the text messages she and the Appellant had
Bohler returned to the hospital the next day, January 9, and
asked if Barnes would make a recorded controlled telephone
call to the Appellant. She agreed, and Detective Bohler
"prompted" her to say certain things to the
Appellant. Because she knew of no other way to contact the
Appellant, Barnes called his workplace, a Sonic restaurant in
Fairview. During the call, the Appellant accused Barnes of
being vindictive, being crazy, and wanting to press charges
against him. Barnes denied his accusations and explained she
only wanted to find out what happened to the victim. The
Appellant said he and Dructor were afraid of Barnes. At
trial, Barnes acknowledged that she was "a northern
girl" who "grew up in Detroit" and that her
tone of voice could come across as "forceful,"
"overbearing," and "loud." However, she
denied ever doing anything to make the Appellant or Dructor
afraid of her.
January 9, Dr. Lowen informed Barnes that the victim had
multiple rib fractures, which shocked Barnes. Barnes told Dr.
Lowen she felt guilty for failing to protect the victim.
Barnes denied injuring the victim, saying that she loved her
children and would never hurt them.
testified that the Appellant never showed her the bruises on
the victim. Additionally, the Appellant did not show any
remorse or concern for the victim during the call. The
Appellant never came to visit the victim during the three or
four days he was in the hospital, and the Appellant did not
ask about the victim's welfare. Contrastingly, Dructor
was upset and concerned about the victim's injuries, did
not cease contact with the victim and Barnes, and continued
to watch the victim for months after his release from the
testified that she was "heartbroken" by the
Appellant's lack of care or interest, especially because
the Appellant had shown interest in being the victim's
"father figure." Barnes continued to take the
victim to all of his doctor's appointments, as she had
since his birth. At the time of trial, Barnes and her sons
were living in an apartment in Dickson.
cross-examination, Barnes acknowledged that her sons did not
have the same father and that she had full custody of both
boys. Barnes had been diagnosed with uterine cancer when she
was twenty-seven years old. She was told she would not be
able to have more children and was surprised when she became
pregnant with the victim.
testified that after meeting the Appellant, their
relationship developed quickly. The Appellant was very fond
of the victim. He also liked WBB, but it "seemed like
there was a bit of jealousy between [them] over [Barnes']
time." The victim required more attention than most
babies because he had medical issues due to his premature
birth. Barnes never saw the Appellant harm the victim and
noted that he volunteered to get up with the victim in the
night so she could sleep.
recalled that sometime between 1:00 and 3:00 a.m. on January
8, she woke because the victim was crying. She thought she
heard the Appellant change the victim's diaper because
she "hear[d] the sounds that a disposable diaper [makes]
when you take off the tabs." After the Appellant brought
the victim to her, she spent twenty or thirty minutes feeding
and rocking the victim before he fell asleep.
stated that she may have gotten off work about 11:00 a.m. and
estimated that she talked with a coworker for twenty or
thirty minutes before going to a nearby loan office. About
1:30 p.m., she was called back to the loan office from the
Appellant's house. Afterward, she picked up her sons and
arrived at the pediatrician's office at 4:05 p.m.
recalled that while at Vanderbilt, she spoke with Detective
Bohler and with an employee of the Department of
Children's Services (DCS) for thirty to sixty minutes.
She thought Detective Bohler arrived at the hospital around
7:00 p.m. At Detective Bohler's request, Barnes agreed to
make a controlled call to the Appellant to find out what
happened to the victim. Barnes acknowledged that Ben was home
that day but stated that he was asleep in his room and hard
thought the issue was important enough to warrant calling the
Appellant while he was working. During the call, the
Appellant said he did not know what happened to the victim
but wished he knew. When Barnes asked the Appellant if the
injuries were the result of an accident, the Appellant denied
"actively" harming the victim. Although the
Appellant had said he loved her and wanted to marry her, he
told her their relationship was over because of her
accusations in the text messages. He did not try to convince
her to work things out.
stated that after she left for work on the morning of January
8, the Appellant was the only person who interacted with the
victim, noting that Andrea was at work, Ben was asleep in his
bedroom, and Dominic was at school.
Jennifer Ragsdale testified that she had been the
victim's doctor since he was discharged from the hospital
after his premature birth. She noted that the victim was born
at twenty-eight weeks gestation and that babies born that
prematurely had problems with lung development. Shortly after
the victim's discharge from the NICU in November, the
victim caught a cold, and he was seen at the Vanderbilt
emergency room two or three times for breathing problems.
Specifically, the victim was seen at Vanderbilt on December
24, 2013. On January 2, 2014, Dr. Ragsdale's partner in
the pediatric practice saw the victim at a follow-up
appointment and ordered x-rays, which were performed the next
day, January 3.
January 8, 2014, Barnes brought the victim to the office
because of "fussiness." She and the victim were led
into the exam room, and she was asked to undress him.
Afterward, she took him across the hall to be weighed and
have his temperature taken. Dr. Ragsdale thought that as the
victim was being weighed, his hand opened, and Barnes and the
nurse "noticed a large purple spot on this hand."
Thereafter, the nurse asked Dr. Ragsdale to look at the
victim's hand. Dr. Ragsdale saw a large purple bruise in
the middle of the victim's palm and a line of bruising
across his knuckles. Because the victim was a "tiny
baby" who was fussy and had multiple bruises, Dr.
Ragsdale was concerned that the victim ...