Gilmore v. State

• Decision Date: 11 April 2013
• Docket Number: No. 02–11–00273–CR.,02–11–00273–CR.
• Citation: 397 S.W.3d 226
• Parties: William GILMORE, Appellant v. The STATE of Texas, State.
• Court: Texas Court of Appeals

397 S.W.3d 226

William GILMORE, Appellant

v.The STATE of Texas, State.

No. 02–11–00273–CR.

Court of Appeals of Texas,

Fort Worth.

Dec. 21, 2012.

Rehearing Overruled April 11, 2013.

Steven S. Poston, Law Office of Steven S. Poston, PC, Denton, TX, for Appellant.

Paul Johnson, Criminal District Attorney, Charles E. Orbison, Assistant Criminal District Attorney, Chief, Appellate Division, Matthew J. Whitten, Ryan Calvert, and Richard Jackson, Assistant Criminal District Attorneys for Denton County, Denton, TX, for State.

Panel: GARDNER, WALKER, and MEIER, JJ.

OPINION

ANNE GARDNER, Justice.

I. Introduction

A jury convicted Appellant William Gilmore of aggravated assault with a deadly weapon and assessed his punishment at twenty years in prison.¹ On appeal, Appellant challenges the admission of two witnesses' identifications, the sufficiency of the evidence, and the trial court's jury instructions. We affirm.

II. Procedural and Factual Background

The State charged Appellant with aggravated assault with a deadly weapon, alleging that he had intentionally, knowingly, or recklessly caused bodily injury to Kimberly Boggs by shooting her with a deadly weapon.

At trial, Kimberly testified that at approximately 11:00 a.m. on June 22, 2009, she and her husband Tracy walked to their neighborhood park with their two children, six-year-old G.B. and two-month-old S.B. Kimberly pushed S.B. in a stroller, and Tracy walked next to G.B., who was riding in an electric toy “Jeep.” When they arrived, the only other person at the park was a man with a black backpack who was sitting on a park bench and reading a book. Kimberly made eye contact with the thin, gray-haired man, whom she identified in court as Appellant.

Kimberly and Tracy sat down at a picnic table with their daughter, and G.B. rode his Jeep around the park. After a few minutes, the battery in G.B.'s Jeep went dead, and Appellant commented, “I think he's stuck.” Tracy left the park and walked home to retrieve another battery, and Kimberly and the two children remained at the park.²

After a few minutes, Kimberly held S.B. on her knee. Around that same time, she saw Appellant walk toward the only car in the parking lot, leaving his backpack near the bench. Appellant then walked back toward the park, came within two to five feet of Kimberly, and began questioning her about her son's Jeep. As they talked, Kimberly got a good look at Appellant's face; she noticed he had “really blue” eyes, gray scraggly hair, and was approximately sixty years old. Then, without warning or provocation, Appellant shot Kimberly in the right side of her face, just below her temple. Kimberly, who testified that she did not see the gun and did not remember seeing Appellant after he shot her, picked up her daughter, who had fallen on the ground, placed her in the stroller, and ran to a nearby home to get help. Amy Storey answered the door, called 911, and followed Kimberly back to the park to attend to the children, who were scared but physically unharmed. Officers with the Corinth Police Department arrived, and Kimberly described Appellant to them before being airlifted to Parkland Hospital.³

When officers arrived at the scene at approximately 11:45 a.m., the only vehicle in the parking lot was an SUV, and the owner Evelia Lopez and her family were playing in the park, unaware of the shooting. Lopez told the officers that she had driven past the parking lot a few minutes earlier on her way to pick up her nephew at school at 11:30 a.m. and that she had noticed a green four-door car with tinted windows in the lot. When she pulled into the same lot immediately after picking up her nephew, the car was gone.

Kim Hollar testified that she was an administrative assistant with the Corinth Police Department and that at approximately 2:45 p.m. the day of the offense, a man walked into the police department's lobby and stated that he had some property to turn in. When Hollar asked for additional information about the property, the man stated it was “complicated.” Hollar then retrieved a supervisor. Hollar identified Appellant in court as the man who came to the police department that day.

Lieutenant Lance Stacy testified that on the afternoon of the offense, Hollar came to his office and told him that there was a gentleman in the lobby who needed to speak with an officer. Lieutenant Stacy identified Appellant in court as the man in the lobby and testified that Appellant said, “Come out here. It's out here.” According to Lieutenant Stacy, Appellant then said something to the effect of “I know I'm not allowed to have it here in Texas. It's loaded.” Appellant led Lieutenant Stacy outside to a small green, four-door Ford Focus, and stated, “[I]t's back here,” and “I know I'm not allowed to have it loaded in Texas and it's not registered here....” At the car, Appellant invited Lieutenant Stacy to retrieve a black backpack from the back seat. At Appellant's direction, Lieutenant Stacy unzipped the backpack and pulled out a .44 Magnum revolver. After ejecting the six live rounds from the weapon, Lieutenant Stacy asked Appellant about the significance of the weapon, to which Appellant responded, “Oh, she didn't tell you? ... It's about the incident in the park.” ⁴ Lieutenant Stacy testified that at some point—either after saying he had a loaded gun or after referring to the “incident in the park”—Appellant stated, “ ‘I'm pleading not guilty.’ ” As soon as Lieutenant Stacy realized that Appellant was a possible suspect in the park shooting, he notified officers at the scene. Lieutenant Stacy then asked Appellant if he had any other weapons, and Appellant turned around and put his hands on his car. Lieutenant Stacy conducted a pat down, and after finding no other weapons, he led Appellant back into the police station, after allowing him to retrieve a book from the car and some contact lens solution.⁵ As they waited for other officers to arrive, Appellant produced three microcassette tapes and, according to Lieutenant Stacy, stated, “[O]nce you listen to these, then you'll know or then you'll understand, something to that effect.” ⁶

At approximately 5:00 that afternoon, officials asked Tracy to come to the police station to look at a photographic lineup. Tracy testified that Captain Gregg Wilkerson presented him with a six-picture photo spread, that he chose Appellant's picture, and that he told Captain Wilkerson he was “70–30 percent sure,” meaning seventy percent sure. Captain Wilkerson testified for the defense that Tracy said he was “about 30 percent” sure.

The afternoon of the shooting, a police officer went to Kimberly's hospital room, showed her a one-sheet photo lineup containing six pictures, and asked her if she recognized anyone. Kimberly, who was still under the influence of her medications, looked at the photographs for approximately ten minutes. She narrowed her choices down to two similarly-looking men, one of whom was Appellant. When the officer asked her to make her selection, however, she identified the other individual as the shooter.

That evening, Kimberly and Tracy watched the nightly newscast, which aired a story about the shooting. Kimberly testified that when the newscast displayed a picture of Appellant, she stated, “[T]hat's him.” She further testified that, regardless of seeing a photograph of Appellant on television, seeing Appellant in the courtroom left her no doubt that he was the shooter. Tracy testified that even if he had not seen Appellant's picture in the photo lineup or Appellant's picture on the newscast, he still would have been able to recognize Appellant as the man who was in the park.

Margaret Wagner testified that she worked at a warehouse near the park and that at 11:39 a.m. on the day of the offense, she looked at her clock and decided to take her lunch break. As she walked outside, she heard what sounded like a gunshot. She saw a man walking slowly through the park toward the park's parking lot, carrying what looked like black trash bags wadded up in front of him at waist level. She described the man as approximately five foot eight in height, thin, and wearing pants, a shirt, and a baseball cap. Because the man appeared to be picking up trash, Wagner did not investigate the situation any further.⁷ Wagner testified that she could not identify the man.

Officers did not find a weapon, shell casings, bullets, or any other physical evidence at the scene.⁸ Officers also determined that the .44 Magnum revolver Appellant brought to the police station in the backpack was not used to shoot Kimberly. Additionally, officers executed search warrants on Appellant's storage unit, a truck, and an abandoned house with which he was associated. They found several weapons in each location. Officers seized approximately 1500 rounds of ammunition from the three locations. Officers never found the weapon used to commit the offense.

Appellant testified on direct examination from his counsel to the following:

Q. Let's cut to the chase. Were you at the park on June 22nd, 2009?

A. No, I wasn't.

Q. Were you at the Corinth Police Department on June 22nd, 2009?

A. Yes, I was.

Q. What did you go to the police station for, [Appellant]?

A. Basically to goad them into a hasty and presumptuous arrest.

Q. Was this on your own or was it pursuant to a plan?

A. Pursuant to a plan.

Q. How many people?

A. Me and four other individuals.

....

Q. Could you answer any and all questions concerning this plot or plan?

A. Except for the identities of my fellow political activists. I will not reveal those identities.

....

Q. Did you shoot Kimberly Boggs?

A. No, I did not.

Q. Was shooting Kimberly Boggs a part of the plan or doing injury to anybody a part of this plan you speak of?

A. That would be counterproductive to the plan.

Q. Do you even know Kimberly Boggs?

A. Never even met her nor heard the name.

On cross-examination, Appellant explained that he and the four other individuals (“the group”) establis...