Mary Alvis Johnson v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00235-CR

______________________________

MARY ALVIS JOHNSON, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 102nd Judicial District Court

Bowie County, Texas

Trial Court No. 01-F-152-102

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Mary Alvis Johnson was convicted by a jury of murdering her husband, Jerry Wayne Johnson, and punishment was assessed at life imprisonment. She appeals the judgment alleging that the evidence is legally and factually insufficient to support the conviction. We affirm the judgment of the trial court.

            Jerry Wayne Johnson, his wife, Mary Alvis Johnson, and his son, Jerry Wayne Johnson, II (Jerry II), were at home together when Jerry was shot and killed. Mary has given several explanations of what occurred. She told the first person to arrive at the scene, Gary Courtney, a member of the volunteer fire department, that Jerry shot himself. Later, she told a deputy sheriff at the scene that she did not know who shot him, but "they must have been waiting on him when he came back in from outside." During the formal investigation, she gave three different statements to Investigator Sherrie Pappas, wherein she alleged different factual scenarios leading to an accidental shooting. Finally, at trial, she suggested that her son, Jerry II, killed his father and that she had been protecting him by telling other versions of the occurrence. Jerry II testified that his mother told him the shooting was an accident.

            1.         Is the evidence legally sufficient to support a jury determination that Mary Alvis Johnson committed murder?

            In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).

            Mary was charged with murder by intentionally or knowingly causing the death of Jerry by shooting him with a deadly weapon, a firearm, or by intentionally, with the intent to cause serious bodily injury, committing an act clearly dangerous to human life, namely shooting him with a firearm, which caused his death.

            It is undisputed that Jerry was killed by a .25 caliber handgun at his home on a night when only he, his wife, and son were present. The scientific evidence is that the shot was fired from three feet or further away from the deceased and no firearm residue was associated with the entrance wound, all of which is incompatible with suicide. The handgun was fully functional and had a trigger pull of seven and one-half to eight pounds. Immediately after the shooting, Mary told her son that she obtained the gun at her husband's request and, when she sat down in the recliner by him, the gun went off. She told Courtney that "Jerry has shot himself." Later that same morning, she told Deputy Vic Thornburg she did not know how he got shot, but "they must have been waiting on him when he came back in from outside." She told Deputy Thornburg that she had been firing a gun a day or so earlier and inquired as to the length of time that gun residue would remain. Mary gave three different statements to deputy Investigator Pappas, first saying that she heard a gunshot and then found her husband shot. Second, Mary said she took the gun into the room because she thought her husband had requested her to do so, and she put the gun by the loveseat arm by his head and then saw a flash of light. She then told her son to call 9-1-1 because his father had accidentally shot himself. Several days later, Mary made another statement to Investigator Pappas that her husband told her to get the gun, and as she had the gun in her left hand and attempted to sit down, she fell and the gun went off. At trial, Mary told a completely different version of that night's events. Before the jury, Mary testified that Jerry II awakened her with the handgun in his possession and showed her where the safety was located on the pistol, at which time she looked at him and said, "Son, what do you want me to do? You want me to kill your daddy?" According to Mary, Jerry II then said, "Now would be as good [sic] time as any." Mary then told her son, "I can't do this." She further stated she took the gun into the front room where her husband was and put it on the floor. After falling asleep in the chair, she was startled and saw her son pick up the gun and then saw a flash. Her son then said to her, "Go back to sleep. You're only dreaming," and tossed the gun to her.

            A few months before Jerry's death, Mary had a very unusual conversation. Thomas Joe Blake, an acquaintance of Jerry and Mary, testified that, during one occasion when he was drinking coffee with Jerry and Mary, and after Jerry went to the restroom, Mary stated to him, "[I]f Jerry died, I would come into a bunch of money" and it would be worth $10,000.00 to her if he died. This occurred two or three months before Jerry's death. Later, she again made the same comment to Blake. Blake told Jerry that he needed to be "real careful."

            Mary also appeared to be urgently interested in Jerry's life insurance proceeds. Gena Marie Bragg, an employee benefits specialist at Red River Army Depot, testified Jerry was an employee there and had a life insurance benefit totaling $174,000.00. Three days after the death of her husband, Mary came to Bragg's office and wanted to obtain the life insurance proceeds. She asked Bragg to "write her a check" and became upset when the funds were not readily available.

            It also appears that some attempt was made to have the scene appear as a suicide. Courtney testified that, when he arrived after being told "Jerry has shot himself," he found the firearm underneath the deceased's hand with the hand over the gun and the fingers over the trigger.

            David Spence, the supervisor of the trace evidence unit at the Southwest Institute of Forensic Science, testified he analyzed handwiping kits from Jerry, Mary, and Jerry II. In doing so, he was looking for three elements: antimony, barium, and lead, which originate from the primer of a cartridge case. All three people tested negative for gunshot residue, but there was an elevated level of barium found on Mary's left palm. Further tests revealed that, when the weapon in question was fired with the left hand, it did not deposit a sufficient quantity of the chemicals to determine scientifically who shot the gun.

            The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jurors are also entitled to draw reasonable inferences from basic facts to ultimate facts. Kapuscinski v. State, 878 S.W.2d 248, 249 (Tex. App.—San Antonio 1994, pet. ref'd) (citing Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.—Dallas 1991, pet. ref'd)). The standard of review is the same in both direct and circumstantial evidence cases. See Geesa v. State, 820 S.W.2d 154, 156 (Tex. Crim. App. 1991). Intent is a fact issue for the jury to resolve. Intent and knowledge can be inferred by the conduct of, the remarks of, and the circumstances surrounding the acts engaged in by the accused. Ybarra v. State, 890 S.W.2d 98, 109 (Tex. App.—San Antonio 1994, pet. ref'd); Parramore v. State, 853 S.W.2d 741, 745 (Tex. App.—Corpus Christi 1993, pet. ref'd). A culpable mental state generally must be established by circumstantial evidence and may be inferred from the acts, words, and conduct of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982).

            In this case, Mary has given numerous accounts concerning the death of her husband. In at least two of these statements, Mary admits being in possession of the firearm when it discharged. At one time, she was quoted as saying that he shot himself. When Courtney arrived, the gun appeared to be positioned near the hand and fingers of the deceased. Suicide is contradicted by the scientific evidence that the shot was fired more than three feet away from the deceased into the back of his head, resulting in no firearm residue at the wound entrance. There is strong evidence Mary had previously discussed killing her husband. One witness reports that she indicated his death would result in a large financial gain for her and that it would be worth $10,000.00 to her if he died. She attempted to claim the rather large life insurance proceeds within three days of his death and became upset when that was impossible. While the handwiping tests could not positively identify her as firing the shot, it did show residue of barium on her left palm. The fact that she reported the incident in so many differing ways provided to the jury a major issue as to her credibility.

            The possibility of an accidental shooting is diminished, as laboratory testing revealed the handgun in question required seven and one-half to eight pounds of pull on the trigger before it would fire. After carefully reviewing the evidence in this case, we believe a rational trier of fact could have reasonably concluded beyond a reasonable doubt that Jerry died as a result of a gunshot wound intentionally and knowingly inflicted by Mary.

            2.         Is the evidence factually sufficient to support a jury determination that Mary Alvis Johnson committed murder?

            When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if—when we weigh the evidence supporting and contravening the conviction—we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

            We have previously detailed the evidence supporting the conviction. Mary urges that contravening evidence is that Jerry II committed the offense. There is evidence from Mary given at trial indicating Jerry II shot his father. Of course, this evidence is directly contradicted by Mary's many previous accounts of the events of that night, attributing her husband's death to suicide, accident, or third persons, in addition to the contrary testimony of Jerry II. Mary urges that all her other reports were given to protect her son.

            Also, there was antagonism between Jerry II and his father. This home was not one displaying a great deal of family unity and support. Jerry II had written some checks on his father's account and pawned some personal property of his parents, which led to physical confrontations between Jerry II and his father. At one time, the father had broken the son's nose.

            Jerry II asked two persons how long gunpowder residue could be detected on a person's hands. He also told his cousin that his mother was "going down for something that she didn't do."

            Finally, it is conceded that, if Mary is convicted, Jerry II will obtain the life insurance proceeds.

            Our role is to determine if Mary's conviction can stand in light of the contravening facts. Or is this contravening evidence strong enough that the State could not have met its burden of proof?

            Mary's own testimony presents conflicting evidence to which we are normally to defer to a jury's determination. The jury chose not to believe her. In this instance, the jury had a solid rationale for finding her testimony not to be credible, given her many contradictory statements.

            While the antagonism between Jerry II and his father reached the physical confrontation level at times, a jury was justified in concluding that this prior conduct never indicated that a threat of death was involved.

            The question of Jerry II concerning the length of time gunpowder residue would remain on the hands is somewhat inculpatory. However, it is not of such magnitude as the much more damaging evidence against Mary.

            The statement of Jerry II to his cousin that his mother was "going down for something that she didn't do" could be construed as his acceptance of her version of the events—that he believed the shooting was accidental—as she reported to him and as he recounted on every occasion.

            It is true that Jerry II will recover the life insurance benefits if his mother is convicted. However, to conclude Jerry II was motivated to kill his father by the allure of life insurance proceeds requires a determination that Jerry II concocted and implemented a scheme not only to kill his father, but also to assure that the legal system convicted his mother—which we believe a jury could find to be a highly unlikely occurrence. In fact, Jerry II has never testified that his mother committed this murder, but has repeatedly stated she told him it was an accident.

            After considering all the evidence in a neutral light, we find a jury could have reasonably concluded beyond a reasonable doubt that Mary was guilty of the murder of her husband.

            We affirm the judgment of the trial court.

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          July 15, 2004

Date Decided:             August 12, 2004

Do Not Publish

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00126-CV

                                                ______________________________

 

 

 

                                                      IN RE:  SCOTT D. MARTIN

 

 

                                                                                                  

 

                                                                                                                            

                                                     Original Mandamus Proceeding

 

                                                                                                  

 

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                        Opinion by Justice Moseley

                                                                             

                                                                             

                                                                   O P I N I O N

 

            Scott D. Martin (Scott) seeks mandamus relief from this Court, arguing to us that the trial court has erroneously refused to either abate or dismiss a suit in Gregg County which Scott contends is inherently interrelated to a suit previously filed by him in Harris County.  We deny relief. 

Procedural History

            This application for mandamus relief represents only one battle in the power struggle war between Scott and his brother, Ruben Martin (Ruben), involving their family’s company, Martin Resource Management Corporation (M.R.M.C.) and other related persons.  See, e.g., In re Brown, 06-10-00108-CV, 2010 Tex. App. LEXIS 9421 (Tex. App.—Texarkana Nov. 30, 2010, orig. proceeding) (mem. op.).^[1]  M.R.M.C. was founded by the brothers’ father, shares of which were apparently issued to various family members or to trusts for their benefit.  In September 2008, Scott filed suit in Harris County against M.R.M.C., Ruben, and several other individuals, wherein he alleged that Ruben and some of the other defendants wrongfully issued shares in M.R.M.C. with the aim of increasing the holdings and voting power of these parties, to the detriment of Scott and others.  That chapter in the war was followed in May 2010, when M.R.M.C. filed suit against Scott in Gregg County, claiming that Scott had engaged in various conduct which interfered with M.R.M.C.’s contract to refinance existing indebtedness.  The allegations were founded on Scott’s act of filing the Harris County lawsuit and upon allegations that Scott had committed slander by issuing disparaging statements regarding M.R.M.C. and its management.  M.R.M.C. subsequently abandoned all causes of action in that lawsuit except for a claim of a breach of fiduciary duty.  Part of the alleged breach of fiduciary duty was Scott’s filing of the Harris County lawsuit; M.R.M.C.’s petition claimed that the filing of the Harris County suit was prompted by an intention on Scott’s part to interfere with a specific business project which was being pursued by M.R.M.C. at the time the suit was filed.

            In the fall of 2010, Scott filed a plea in abatement in the Gregg County suit, seeking to have that trial court abate its proceedings in favor of the proceeding in Harris County.  The trial court denied that plea, and we denied Scott’s petition for writ of mandamus to compel the Gregg County court to abate.  Id.  In denying mandamus relief, we pointed out the record did not indicate any interference by the Gregg County trial court on the actions of the Harris County trial court; thus, we found the relators had an adequate remedy by appeal. 

            In November 2011, Scott re-urged his plea for abatement or dismissal to the trial court, which denied the motion once again.  Scott now seeks mandamus relief from this Court, claiming that the Gregg County trial court has interfered with the Harris County court’s suit and requesting us to mandamus the Gregg County court to abate its case.             

Standard for Mandamus Relief

           

            Mandamus is an extraordinary remedy that issues only to correct a clear abuse of discretion or violation of a duty imposed by law when no other adequate remedy by law is available.  In re Ford Motor Co., 988 S.W.2d 714, 725 (Tex. 1998) (orig. proceeding) (citing State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)).  “Absent extraordinary circumstances not present here, a denial of a motion to dismiss or a plea in abatement is a ruling incident to the ordinary trial process which will not be corrected by mandamus, but by the legal remedy of the ordinary appellate process.”  Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991) (orig. proceeding) (citing Abor v. Black, 695 S.W.2d 564, 566–67 (Tex. 1985) (“This court has consistently held that it lacks jurisdiction to issue writs of mandamus to supervise or correct incidental rulings of a trial judge when there is an adequate remedy by appeal,” including inter alia, pleas in abatement.)).

The Present Case

            Scott has presented this Court with nothing to show the matter in the Gregg County lawsuit before the trial court is any different than it was a year ago. 

The two suits are related in that they both involve MRMC and the two major shareholders, Scott and Ruben.  But the basic dispute in the Harris County case is that MRMC and Ruben improperly issued additional shares of stock in MRMC, resulting in damage to Scott, whereas the Gregg County case alleges that Scott’s actions, including filing the Harris County suit and making disparaging statements, interfered with MRMC’s business relationship and damaged the company.

 

Brown, 2010 Tex. App. LEXIS 9421, at **4–5.  In the previous incarnation of this request for mandamus, we went on to reiterate that even if controversies in two separate legal actions are interwoven, mandamus was not the proper remedy where the second suit did not “interfere with the exercise of jurisdiction to decide the ultimate issues in the first suit.”  Id. at *5 (citing Morris v. Legatt, 877 S.W.2d 899, 901 (Tex. App.—Texarkana 1994, orig. proceeding)).  Scott directs us to the trial court’s issuance of a temporary injunction, which enjoined Scott (or any party acting on his behalf) from taking any action to prevent M.R.M.C.’s prosecution of the Gregg County case, to prevent M.R.M.C. from participating in the Gregg County trial, or interfering with the Gregg County trial.  We point out the trial court’s injunction cited Scott’s attempts to have the Harris County court enjoin M.R.M.C. from proceeding with the Gregg County case,^[2] and the Gregg County trial court’s specific finding that the Harris County trial court did not have dominant jurisdiction over the issues pending in the Gregg County trial court.^[3] 

            We do not find the trial court’s injunction against Scott amounted to interference on the part of that trial court with the Harris County trial court’s proceedings. 

            We further do not find the Gregg County trial court could have reached only one conclusion as to the issue of whether the two suits are inherently interrelated.  See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988) (plea in abatement in second-filed suit must be granted where inherent interrelation exists between two cases; exact issues and all parties need not be included in first action before second is filed if claim in first suit can be amended to bring in all necessary and proper parties and issues; rules of compulsory counterclaims and joinder of parties to guide determination of presence of inherent interrelation).  Despite M.R.M.C.’s having abandoned some of its causes of action, its last-filed petition alleged several acts which occurred subsequent to the filing of the Harris County suit as grounds for M.R.M.C.’s contention of breach of fiduciary duty.  However, aside from his arguments that M.R.M.C.’s cause of action was a compulsory counterclaim,^[4] Scott offers nothing upon which he seeks relief but a conclusory assertion the suits are inherently interrelated.  As we said in our 2010 opinion, the two cases are related.  However, the interrelation of the two lawsuits is not such that would mandate they be tried together; as we also pointed out above, there are several allegations in M.R.M.C.’s petition which post-date the filing of the Harris County suit. 

No Compulsory Counterclaim

            Scott complains of the trial court’s conclusion that M.R.M.C.’s petition did not allege a compulsory counterclaim against Scott.^[5]  Based on the parties’ pleadings and the record supplied us, we do not find the trial court erred in its conclusion.  First, it has not been demonstrated that M.R.M.C.’s cause of action (alleging Scott breached his fiduciary duty to M.R.M.C.) was mature at the time that M.R.M.C. filed its answer to Scott’s suit.  For example, M.R.M.C. alleges several acts subsequent to Scott’s suit which it alleges amount to breaches of fiduciary duty, citing  several actions taken by Scott throughout 2009 and 2010.  While it is true that Scott’s earlier-filed suit in Harris County is part of M.R.M.C.’s allegation, it is not the sole basis of its claim.  Thus, we cannot say with certainty that Scott has demonstrated the maturity of M.R.M.C.’s claim at the time it filed its response to the Harris County lawsuit. 

            Similarly, we cannot conclude that M.R.M.C.’s action arose solely out of the occurrence or transaction which is the subject of Scott’s suit.  Again, M.R.M.C.’s suit alleged several other instances of conduct on the part of Scott other than filing of the Harris County lawsuit.  To the extent that the two lawsuits are related, it has not been demonstrated that M.R.M.C.’s suit came out of the same events comprising Scott’s claim for relief in the Harris County lawsuit.

            In sum, the record does not establish M.R.M.C.’s action as a compulsory counterclaim to Scott’s suit; the trial court did not clearly err in rejecting Scott’s argument. 

            Having found the two suits are not inherently interrelated, the Gregg County court has neither acted to interfere with the jurisdiction or actions of the Harris County court, nor is  M.R.M.C.’s cause of action a compulsory counterclaim to Scott’s suit.  Accordingly, we find Scott has not shown himself entitled to the requested relief.  See Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).  

            We deny his petition. 

 

 

                                                                        Bailey C. Moseley

                                                                        Justice

 

Date Submitted:          January 12, 2012

Date Decided:             January 12, 2012

 

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^[1]At this writing, there are also two other pending appeals before this Court, Scott Martin v. Martin Resource Management Corp., bearing this Court’s cause number 06-11-00125-CV; and another case bearing the same style, numbered 06-10-00005-CV.  See also Martin v. Martin, 326 S.W.3d 741 (Tex. App.—Texarkana 2010, pet. ref’d).

^[2]The Harris County court denied Scott’s request for a temporary injunction.

 

^[3]The trial court’s injunction is the subject of a separate appeal before this Court in cause number 06-11-00125-CV. 

^[4]Which is not itself determinative of an inherent interrelation between suits.  See Wyatt, 760 S.W.2d 245. 

 

^[5]“[A] counterclaim is compulsory only if:  (1) it is within the jurisdiction of the court; (2) it is not at the time of filing the answer the subject of a pending action; (3) the claim is mature and owned by the defendant at the time of filing the answer; (4) it arose out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; (5) it is against an opposing party in the same capacity; and (6) it does not require the presence of third parties over whom the court cannot acquire jurisdiction.”  Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex. 1999); see Tex. R. Civ. P. 97(a).