11th Court of Appeals
Eastland, Texas
Opinion
Charles Earl Jackson
Appellant
Vs. No. 11-00-00282-CR B Appeal from Comanche County
State of Texas
Appellee
The jury convicted appellant of murder, and the trial court assessed his punishment at confinement for 45 years. We affirm.
In his eighth issue on appeal, appellant argues that the evidence is factually insufficient to support his conviction. In deciding whether the evidence is factually sufficient to support the conviction, we must review all of the evidence in a neutral light favoring neither party to determine if the verdict is so against the great weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, supra. Due deference must be given to the jury=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, supra; Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 139 L. Ed. 2d 54, 118 S. Ct. 100, 522 U.S. 832 (1997). This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson v. State, supra at 9.
Mark Wayne Sides, the victim=s son, testified at trial that appellant and his mother had lived together for approximately two years. Sides stated that on December 21, 1999, he went to the victim=s house and that she had packed appellant=s clothes. Sides and the victim had planned to put appellant=s clothes in the living room and leave the house. Sides then intended to call appellant when appellant arrived at the house and tell him to take his things and leave. Sides testified that appellant arrived at the house earlier than expected.
Sides stated that, when appellant arrived, Sides told him to get his things and leave. Sides testified that appellant turned and walked out of the house, went to his truck, and got a gun. Appellant put the gun to his head and said that he was Agoing to just end it right there.@ Sides Atried to talk [appellant] out of it@ and told him to put the gun down. Appellant told Sides: A[I]f I can=t have [the victim] there ain=t no - - there=s no other son of a b---- going to have her.@ Appellant then turned the gun on Sides. Sides testified that the victim was standing by the door leading into the house and that appellant began pointing the gun at Sides and the victim. Appellant told the victim that he wanted to get married.
Sides testified that the victim told appellant to put the gun down and to come into the house and talk. Sides stated that he and the victim went into the house and that, when appellant went into the house, he still had the gun. When she saw that appellant still had the gun, the victim told him to get out of the house with the gun. Appellant told the victim Alet=s go get married right now.@ Appellant turned to go out of the door; and the victim followed him, but she did not go out into the garage.
Sides testified that he retrieved a gun that was laying on the bar stool and followed them. When he saw that appellant was out in the garage, Sides went through the door, raised his gun, and pulled the trigger. Sides stated that the gun misfired and that appellant then turned around and shot him. Sides testified that appellant shot him twice in the leg, once in the abdomen, and once in the shoulder. Sides further testified that he saw appellant point his gun toward the door where the victim was standing and shoot in that direction.
Appellant testified at trial that, a few days before the offense, the victim had told him that she was seeing someone else. They agreed that appellant would move out of the house after the holidays. Appellant stated that, on the morning of the offense, he was very upset over the relationship ending and that he felt that Athere wasn=t any - - anything left to live for if [he] didn=t have [the victim].@ Appellant said that he then went out to his pickup, got his pistol, came back into the house, and told the victim that he was going to Aput an end to [his] life.@ The victim told appellant to calm down and that they would have breakfast and talk about the relationship. Appellant and the victim ate breakfast together and planned a birthday celebration for the victim that night. Appellant then left for work.
Appellant testified that he left work early because he was going to Acook out@ for the victim=s birthday. When he arrived at the house, Sides was there. Appellant testified that he entered the house through the garage and that Sides confronted him and told him not to go in the house. Sides told appellant that the victim was packing appellant=s clothes and that appellant would have to leave.
Appellant testified that he went out to his pickup and that, as he opened the door, he decided Ait wasn=t worth living without [the victim].@ Appellant then got his gun and put it to his head. Sides pleaded with appellant not to shoot himself; and appellant told Sides: AThe only thing that=s worth anything is I want to marry [the victim].@ Appellant also told Sides: AIf she doesn=t want me to shoot myself, then that=s what=s going to have to happen. We are going to get married and get on with our life.@ Appellant said that he and Sides started going into the house and that, when the victim saw that he had a gun, she told him he could not come into the house with a gun. Appellant testified that he hid the gun behind his back and that he told the victim: AThe only way we=re not going to do it, we are going to stop all of this nonsense, we are going to go get married now, no more talking, we are going to do it.@ Appellant stated that the victim agreed to marry him and that he turned and walked to the door with the victim following him. As he was walking toward his pickup, appellant heard Aclick, click@ and turned and saw Sides pointing a gun at him. Appellant testified that he then began shooting at Sides and that, while he was trying to get behind a brick wall, he was shot in the shoulder by Sides. Appellant testified that he fired until his gun was empty but that he did not fire shots at the victim.
Appellant stated that, when his gun was empty, he went to his pickup to get away. Appellant said that he was going to Brownwood to see a police officer when he heard a radio broadcast that the police were looking for him and that he was Aarmed and dangerous.@ Appellant then got scared and wanted to get out of the country. Appellant went to Kansas, Nebraska, and then to Florida where he was arrested.
Appellant specifically argues that the evidence is factually insufficient to support his conviction Ain light of the overwhelming evidence of self-defense or manslaughter or criminally negligent homicide.@ The jury heard evidence that appellant went to his pickup, retrieved a gun, and held the gun on Sides and the victim. The jury also heard evidence that, after he shot Sides, appellant raised the gun in the direction of the unarmed victim and fired. The victim was shot twice, once in her neck and once in her stomach, and she did not have a pulse at the time police arrived. After reviewing all of the evidence in a neutral light favoring neither party, we hold that the jury=s verdict is not so against the great weight of the evidence as to be clearly wrong and unjust. Appellant=s eighth issue is overruled.
In his first issue on appeal, appellant contends that the trial court erred in denying his motion for change of venue. We review the trial court's decision denying appellant a change of venue under an abuse of discretion standard, and the trial court's decision concerning venue will not be disturbed so long as it was within the realm of reasonableness given the facts presented to the trial court. Powell v. State, 898 S.W.2d 821 (Tex.Cr.App.1994), cert. den=d, 133 L. Ed. 2d 431, 116 S. Ct. 524, 516 U.S. 991 (1995). A change of venue may be granted if there exists in the county where the prosecution is commenced so great a prejudice against a defendant that he cannot obtain a fair and impartial trial. TEX. CODE CRIM. PRO. ANN. art. 31.03(a)(1) (Vernon 1989).
At the hearing on appellant=s motion for change of venue, appellant presented the testimony of two attorneys who stated that appellant could not get a fair trial in Comanche County. One of the attorneys stated that he had heard talk in the community about the case and that people had formed opinions on appellant=s guilt based upon newspaper reports. Wayne Knowles, a private investigator, also testified at the hearing that appellant would not receive a fair trial in Comanche County. Knowles stated that he had talked to 25 or 30 people in the community about the case and that a majority of them thought appellant was guilty. Knowles supplied the trial court with various newspaper articles covering the case. Appellant also presented the testimony of two other members of the community who believed that appellant would not receive a fair trial.
The trial court also heard evidence from representatives from three local newspapers. The representatives authenticated articles appearing in their respective newspapers concerning the case. Appellant argues that these articles contain misleading or inaccurate accounts about the case. From these representatives, the trial court heard testimony that the case was not a Ahot topic@ at the time and that the articles were not prejudicial toward appellant or intended to be inflammatory. The trial court heard testimony that two of the newspapers were not widely circulated throughout the entire county. One representative testified that she believed appellant could have a fair trial in the county. During voir dire, the trial court excused 24 potential jurors who indicated that they could not render a fair and impartial verdict. The remaining 52 potential jurors were examined extensively about their knowledge of the case and about their ability to render a fair verdict. Although many of the potential jurors were familiar with the case, each one indicated that he or she could render an impartial verdict.
Extensive knowledge in the community of either the crime or the defendant, without more, is insufficient to render a trial unconstitutional. Moore v. State, 935 S.W.2d 124, 129 (Tex.Cr.App.1996), cert. den=d, 137 L. Ed. 2d 835, 117 S. Ct. 1711, 520 U.S. 1219 (1997). Publicity about the case must be pervasive, prejudicial, and inflammatory. Moore v. State, supra. Although the record indicates that the case was discussed in the community and that there were numerous articles covering the case, appellant did not show such a prejudice in the community that he could not receive a fair and impartial jury. Powell v. State, supra. The trial court did not abuse its discretion in denying appellant=s motion for change of venue. Appellant=s first issue on appeal is overruled.
In his second issue on appeal, appellant argues that the trial court erred in denying his motion for funds for an expert witness. Appellant sought an expert to survey the community and to provide additional evidence in support of his motion for change of venue.
The record shows that the trial court authorized funds for an investigator to assist in appellant=s defense. Knowles testified at the hearing on appellant=s motion for change of venue that he discussed appellant=s case with members of the community to assess their feelings about the case. Appellant also offered numerous newspaper articles about the case, as well as testimony from members of the community. Statistical surveys concerning community sentiment are not required to be introduced at a hearing on a motion to change venue, and the expense for a survey is not required to be paid for by the State. Wyle v. State, 777 S.W.2d 709 (Tex.Cr.App.1989). The trial court did not abuse its discretion in denying appellant=s request for funds for an expert. Wyle v. State, supra. Appellant=s second issue on appeal is overruled.
In his third issue on appeal, appellant complains that the trial court erred in denying his challenge for cause for Venireperson Darren Smith. A trial court's decision regarding a challenge for cause will not be disturbed absent an abuse of discretion. Ladd v. State, 3 S.W.3d 547 (Tex.Cr.App.1999), cert. den=d, 146 L. Ed. 2d 487, 120 S. Ct. 1680, 529 U.S. 1070 (2000). The trial court is able to gauge a venireperson's sincerity and demeanor; therefore, we give great deference to the trial court's decision concerning a challenge for cause. Ladd v. State, supra.
Venireperson Smith stated during voir dire that he knew the assistant district attorney. Venireperson Smith said that he believed the assistant district attorney was an honest person and that he would not Aget up there and tell me something that in his mind is dishonest.@ Venireperson Smith further stated that he might be inclined to Alean toward believing something [the assistant district attorney] said.@ However, Venireperson Smith also stated that he would not feel uncomfortable disagreeing with the assistant district attorney=s position and that there was nothing in his relationship with the assistant district attorney that would cause him to be unfair or impartial in the case. Appellant has not shown that the trial court abused its discretion in denying his challenge for cause for Venireperson Smith. Appellant=s third issue on appeal is overruled.
In his fourth and fifth issues on appeal, appellant complains that the trial court erred in overruling his hearsay objections to testimony by Sides and in denying his motion for mistrial. Prior to trial, appellant filed a motion in limine to prevent Sides from relating statements the victim had made to Sides on the day of the shooting. The trial court instructed the State to approach the bench before offering the testimony.
At trial during the direct examination of Sides, the State asked if he had had a conversation with the victim about A[appellant] and his status - - and packing of his clothes?@ Sides responded that he had. Appellant objected that the victim=s statement would be hearsay. The State indicated that it was not offering the testimony for the truth of the matter asserted but to show Awhat the activities were at that point.@ The trial court allowed the testimony. Sides then responded to the question, A[s]he told me he had pulled a gun on her that morning and held it to her head - -.@ The trial court sustained appellant=s objection and instructed the jury to disregard the statement.
Generally, harm from improper testimony is cured by an instruction to disregard, except in extreme cases where it appears the evidence is clearly calculated to inflame the minds of the jurors and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Cr.App.), cert. den=d, 98 L. Ed. 2d 206, 108 S. Ct. 248, 484 U.S. 905 (1987); McKay v. State, 707 S.W.2d 23, 36 (Tex.Cr.App.1985), cert. den=d, 93 L. Ed. 2d 164, 107 S. Ct. 239, 479 U.S. 871 (1986). The State informed the trial court that Sides= answer was nonresponsive and was not the anticipated response. Moreover, appellant later testified that on the morning of the offense he retrieved his gun from his pickup and held it to his own head. We find that the testimony was not clearly calculated to inflame the minds of the jurors. The trial court did not err in denying appellant=s request for a mistrial. Appellant=s fourth and fifth issues on appeal are overruled.
In his sixth and seventh issues on appeal, appellant argues that the trial court erred in denying his motion for new trial. A trial court's ruling denying a defendant's motion for new trial is reviewed under an abuse of discretion standard. We do not substitute our judgment for that of the trial court but simply determine whether the trial court's analysis was arbitrary or unreasonable. Salazar v. State, 38 S.W.3d 141 (Tex.Cr.App.), cert. den=d, __ L.Ed.2d __, 122 S. Ct. 127, __ U.S. __ (2001). There are four requirements for obtaining a new trial based upon newly discovered evidence: (1) the newly discovered evidence was unknown to the movant at the time of trial; (2) the movant's failure to discover the evidence was not due to his want of diligence; (3) the evidence would probably bring about a different result in another trial; and (4) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching. Moore v. State, 882 S.W.2d 844, 849 (Tex.Cr.App.1994), cert. den=d, 130 L. Ed. 2d 791, 115 S. Ct. 909, 513 U.S. 1114 (1995).
Appellant first argues that the trial court erred in denying his motion for new trial on the ground of juror misconduct during voir dire. Appellant filed a motion for new trial in which he alleged that Juror David Kendall Terry failed to respond appropriately to questions concerning his bias against appellant. During voir dire, Juror Terry stated that he had not formed an opinion about appellant=s guilt, that he could set aside any information he had heard prior to trial, and that he could base his decision only on the evidence heard in the courtroom.
At a hearing on the motion, appellant introduced the affidavit of Elizabeth Till in which she stated that, prior to appellant=s trial, she had had a conversation with Juror Terry in which he stated that appellant could not get a fair trial in Comanche County and that Ahe either could even pull the plug or throw the switch.@ Till stated in her affidavit that she understood Juror Terry=s statement to mean that he could support the death penalty in appellant=s case.
Juror Terry testified at the hearing that he did not recall any question that he failed to answer appropriately during voir dire and that he did not feel he violated the oath he took as a juror. Juror Terry stated that, when he told Till he did not believe appellant could get a fair trial in Comanche County, he was not expressing his personal opinion about appellant=s guilt and that he was not indicating that he had already formed an opinion as to appellant=s guilt. Juror Terry testified that nothing he heard prior to trial influenced his decision in reaching a verdict. Juror Terry further testified that he supported the death penalty when someone was found guilty of murder but that he had not reached an opinion on punishment in appellant=s case.[1] Appellant has not shown that Juror Terry engaged in misconduct during voir dire.
Appellant next argues that the trial court erred in denying his motion for new trial based upon the newly discovered evidence of Connie Massingill, a nurse at the hospital where Sides was brought for treatment after the shooting. Appellant introduced Massingill=s affidavit in which she stated that, when Sides= wife arrived at the hospital, Sides told her that A[he] would have killed that son-of-a-b---- if [his] gun had not jammed.@ Massingill=s affidavit states that she consulted with hospital representatives about reporting the statement but was told that it was not necessary. After learning of the guilty verdict against appellant, Massingill became concerned and felt that she should have come forward with the information.
The jury heard evidence that Sides first shot at appellant but that his gun misfired. Sides testified that he intended to shoot appellant. The trial court found that, had Massingill=s testimony been admitted at trial, Ait would have opened the door to testimony that [it] had excluded at [appellant=s] request.@ Appellant did not show that the trial court abused its discretion in denying his motion for new trial. Appellant=s sixth and seventh issues on appeal are overruled.
In his ninth issue on appeal, appellant contends that the trial court erred in charging the jury. The trial court included the following instruction in its charge to the jury:
You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, an omission or possession. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct.
Appellant argues that the instruction Atransfers the theory of the case to a conduct crime rather than a result crime as alleged in the Indictment.@ Appellant also argues that the instruction confuses the jury regarding his arguments on self-defense and lesser included offenses and that it authorizes a conviction on a theory not alleged in the indictment. We disagree.
The charge stated that Aa person commits the offense of murder if he knowingly causes the death of an individual.@ The charge further stated that a person acts knowingly Awith respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.@ The charge instructed the jury to find that appellant committed the offense of murder only if it found, Asubject to the law of self defense,@ that he knowingly caused the death of the victim. We do not find that the trial court erred in charging the jury. See Adanandus v. State, 866 S.W.2d 210 (Tex.Cr.App.1993), cert. den=d, 127 L. Ed. 2d 686, 114 S. Ct. 1338, 510 U.S. 1215 (1994). Moreover, appellant has not shown that he was harmed by the trial court=s charge. Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985). Appellant=s ninth issue on appeal is overruled.
The judgment of the trial court is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
December 20, 2001
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]We note that the State did not seek the death penalty in this case.