In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-04-00166-CR
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JAMES CALVIN TEMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 31101-B
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
James Calvin Tems appeals from his conviction by a jury for the offense of endangering a child. Three cases were tried together. The jury assessed his punishment at 180 days' imprisonment for the count in this case. The trial court sentenced Tems consistent with the jury's verdict. The cases have been appealed separately, but have been briefed together.
Because the briefs and arguments raised therein are identical in all three appeals, for the reasons stated in Tems v. State, No. 06-04-00164-CR, we likewise resolve the issues in this appeal in favor of the State.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: July 26, 2005
Date Decided: August 30, 2005
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nce 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
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