Anderson v. State, No. 01-09-00108-CR (Tex. App. 5/6/2010)
| Decision Date | 06 May 2010 |
| Docket Number | No. 01-09-00108-CR.,01-09-00108-CR. |
| Court | Texas Court of Appeals |
| Parties | DAVID FRANCIS ANDERSON, Appellant, v. THE STATE OF TEXAS, Appellee. |
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 1152878.
Panel consists of Justices JENNINGS, HANKS, and BLAND.
DO NOT PUBLISH. TEX.R.APP.P. 47.2(b)
A jury found appellant, David Francis Anderson, guilty of the offense of murder1 and assessed his punishment at confinement for seventy-nine years and a fine of $10,000. In ten points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction and the trial court erred in admitting certain hearsay and irrelevant evidence, permitting the State to make improper jury arguments, and instructing the jury that it could consider the prior relationship, if any, between appellant and Amy Smith, the complainant.2
We affirm.
In State's Exhibit No. 3, a recording of a telephone call made by appellant to an emergency assistance operator on February 7, 2008 at approximately 5:00 a.m., appellant exclaimed,
Somebody came in our house and I wasn't around and my girlfriend is laying on the ground with a bullet in her head. I don't know what . . . happened . . . The door is unlocked . . . There was like three or four black males . . . it happened about ten minutes ago . . . Someone tried to come in here and rob us . . . I don't know if she got shot . . . I'm not [there] . . . if they're robbing her, they'll kill everyone . . . Four nights ago, they kicked in my door . . . and . . . they pointed shot guns at us. . . [the robbers] took off running . . . [The victim's] name is Amy and she has a very, very, very, very, . . . bad temper.
Houston Police Department ("HPD") Officer K. Montague testified that on February 7, 2008, he was dispatched to appellant's apartment in response to the emergency assistance call. As he approached the apartment, he noted that the windows were undamaged and the door "appeared intact" and "secure" but "unlocked." Montague opened the door, walked into the living room, and saw "narcotics on the coffee table," including marijuana and "some pills." He then went into the bedroom, where he found the complainant, barely breathing, with a gunshot wound to her head. Although there were no firearms in the apartment, Montague found "a nylon holster" for a pistol in the couch. Neighbors gave Montague the description of "David," who lived in the apartment.
At approximately 6:52 a.m., Officer Montague saw appellant, who matched the description given to him, walking in the parking lot. After appellant tried to avoid him, Montague called out, "come here," and appellant did. Appellant, who was "rather calm," asked Montague what had happened. Montague responded that appellant's girlfriend had been shot, but appellant did not seem surprised. Montague then patted appellant down for weapons, "not knowing if he was [a] suspect," and put him in the back of his patrol car "not handcuffed."
HPD Homicide Investigator R. Swainson testified that he was dispatched to the apartment complex to investigate the complainant's death. When he arrived, Swainson approached appellant, who was waving at him from the back of Montague's patrol car. After appellant asked Swainson if his girlfriend was "okay," he stated "they kicked in the door" and "she was shot in the head." Appellant told Swainson that he had some firearms located at the apartment of Kelly Kelso, an acquaintance. Swainson subsequently recovered from Kelso's apartment appellant's assault rifle, .22 caliber semi-automatic pistol, and .38 caliber revolver loaded with five chambered rounds.
Kelly Kelso testified that on February 7, 2008, at approximately 6:00 a.m., appellant came to her apartment, "banged" on the door, and "asked to drop something off." Appellant, who appeared "very nervous and kind of freaked out," brought into her apartment "a large object." Appellant left and immediately returned carrying something that appeared to have "the end of a gun" sticking out of it. Upon examining the items, Kelso discovered "two guns" and a third "big gun," which were later recovered by Investigator Swainson.
HPD Crime Scene Investigator L. Verbitskey testified that the jamb and locking mechanism for the front door of appellant's apartment were intact and the windows were unbroken. He opined that there did not appear to have been a forced entry. In the pantry, Verbitsky found seventeen live bullets, including some .38 caliber. In the living room, he found a "green leafy substance," which appeared to be marijuana, on the coffee table, and additional live bullets.
Harris County Medical Examiner Dr. Pramod Gumpeni, who performed the autopsy of the complainant's body, testified that the complainant suffered from an "entrance gunshot wound" just over her left eye with evidence of "stippling" on her "left forehead, part of her nose and her eye." He explained that "stippling," or "burns," are caused by gunpowder when a firearm is discharged within four to eighteen inches of a target. Dr. Gumpeni opined that the stippling was inconsistent with "a self-inflicted gunshot wound" because most self-inflicted gunshot wounds are "close contact, where the gun is placed directly against the skin." He recovered a "bullet and jacket fragments" from the complainant's brain. On cross-examination, Dr. Gumpeni conceded that he could not exclude to a "reasonable medical certainty" that the complainant's death was not a suicide or an accident.
HPD firearms analyst Donna Eudaley testified that the .38 revolver recovered from Kelly Kelso's apartment fired the bullet fragment that Dr. Gumpeni recovered from the complainant's brain. She noted that the revolver's "hammer block" and "rebound safety," which prevent it from "discharging accidentally," were in working order and would prevent it from accidentally discharging if the trigger was "accidentally knocked." On cross-examination, Eudaley conceded that a person could accidentally discharge the revolver if he had "his finger on the trigger" or "the hammer engaged and [attempted] to disengage the hammer." Eudaley could not determine whether the complainant's shooting was "unintentional," and she noted that evidence of only one fired cartridge "could be consistent with suicide."
In his first and second points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction because the
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). In doing so, we give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. Id. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.
In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Although we should always be "mindful" that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is "the very nature of a factual-sufficiency review that . . . authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called `thirteenth juror.'" Watson, 204 S.W.3d at 414, 416-17. Thus, when an appellate court is "able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict[,] . . . it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. at 417.
A person commits the offense of murder when he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003).
In support of his legal sufficiency challenge, appellant asserts that the evidence is "wholly circumstantial" and no evidence shows that he "engaged in any act for which he could be held criminally responsible." He emphasizes that Dr. Gumpeni and Donna Eudaley could not rule out suicide and accidental discharge of the weapon and appellant's "unusual behavior [near the location of the complainant's death] . . . adds nothing to this Court's evaluation of this Point of Error."
Viewing all of the evidence in the light most favorable to the verdict, appellant, on February 7, 2008, at about 5:00 a.m., called for emergency assistance and told the operator that "three or four black males" had "tried to come in here and rob us" and the robbers had shot his girlfriend "Amy" in the head. However, Officer Montague testified that when he arrived at appellant's apartment shortly thereafter, he found numerous valuable electronics and narcotics...
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