Goodwin v. State

• Decision Date: 21 February 1985
• Docket Number: No. 13-84-185-CR,13-84-185-CR
• Citation: 694 S.W.2d 19
• Parties: Ira Marshall GOODWIN, Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 19

694 S.W.2d 19

Ira Marshall GOODWIN, Jr., Appellant, v. STATE of Texas, Appellee.

No. 13-84-185-CR.

Court of Appeals of Texas Corpus Christi.

Feb. 21, 1985.

Rehearing Granted March 7, 1985.

Rehearing Overruled March 28, 1985.

J. Manuel Banales, Corpus Christi, for appellant.

Grant Jones, Corpus Christi, for appellee.

Before BISSETT, ¹ UTTER and KENNEDY, JJ.

OPINION

BISSETT, Justice.

This is an appeal from a conviction for voluntary manslaughter under an indictment charging murder. We affirm the conviction, but set aside the punishment assessed and remand the cause to the trial court for the assessment of proper punishment and pronouncement of sentence.

Appellant was indicted for murder and as a habitual felony offender for having caused the death of Warren James Durkee, Jr., by kicking him in the head. Appellant elected to have his punishment fixed by the court rather than by the jury. Trial commenced on April 2, 1984, and on April 4, 1984, appellant was convicted by the jury of the lesser included offense of voluntary manslaughter. Thereafter, on April 5, 1984, the trial court, finding the enhancement allegations charged in the indictment to be true, sentenced appellant to thirty years' confinement in the Texas Department of Corrections and imposed a fine of $5,000. Appellant has timely perfected an appeal to this Court.

Appellant, in his first ground of error, contends that "the evidence is insufficient to support the conviction based on the jury's verdict of guilty of voluntary manslaughter." In particular, he contends that there was no evidence that he was in an excited state of mind and that he was motivated by terror due to the deceased's actions but, on the other hand, contends that he struck the deceased only as a preventative measure. He argues that he is entitled to an appellate acquittal.

The indictment, in pertinent part, provides:

that IRA MARSHALL GOODWIN, JR., hereinafter styled Defendant, on or about the 1st day of October A.D.1983, and before the presentment of this indictment, in the County and State aforesaid, with the intent to cause serious bodily injury to Warren James Durkee, Jr. do the act of kicking Warren James Durkee, Jr. in the head; that such act was clearly dangerous to human life; and that such act caused the death of Warren James Durkee, Jr.

The indictment alleged the offense of murder under TEX.PENAL CODE ANN. §§ 19.02(a)(2) (Vernon Supp.1985).

The Court properly charged the jury on the offense of murder and the included lesser offenses of voluntary manslaughter, involuntary manslaughter, criminally negligent homicide, aggravated assault, and assault.

The record reveals that sometime during the late evening of September 30, 1983, or during the early morning of October 1, 1983, appellant arrived at the Indian Acres Lounge in Corpus Christi, Texas, where he greeted some friends and ordered a "wine cooler". He took a seat on a stool at the bar. Shortly thereafter, Warren James Durkee Jr., also known as "Dirk", the deceased, entered the Lounge. He was intoxicated at the time, walked unsteadily, toppled several chairs, bumped into a couple of people and took a position between Rene Rodriguez, a patron of the Lounge, and appellant. Durkee then commenced yelling at Rodriguez and, apparently, spat in Rodriguez's face. Rodriguez ignored him and Durkee then turned to appellant and said something to him. Several remarks passed between appellant and Durkee and then, according to appellant's testimony, Durkee took a swing at appellant. While still sitting at the bar, appellant hit Durkee with his left hand causing the latter to fall backwards into a table. When Durkee attempted to get up, appellant stood up and hit him again causing Durkee to land on his rear on the floor. Appellant testified that he then kicked Durkee in the stomach and, as he was again getting up, appellant kicked him in the face "in the area of the chin."

Brandy Sunshine Johnson, a State's witness, was also in the Lounge at the time of the confrontation between Durkee and appellant. She testified that she was sitting at a table when someone told her "to watch out". She looked around and saw Durkee "come flying over a table". She then saw appellant kick Durkee "under the chin" and, after that, saw him "apply more kicks, one towards the head and the rest towards the rest of his body." Johnson further testified:

I tried to give him CPR (Cardio-Pulmonary Resuscitation). I don't know whether he was breathing on his own or what I was doing, but every time he would breathe blood would gush out of his mouth.

On cross examination, Johnson, in response to certain questions asked by appellant's counsel, testified:

Q All right. When do you say that you saw him, that you saw Mr. Goodwin kick Dirk in the chin? When did that happen?

A As Dirk was going through the air over the table he come up along the side and kicked him and caught him in the chin.

Q Had he already hit the ground?

A No. He hadn't gone clear down to the floor, yet.

* * *

* * *

Q Okay. You say that after Dirk landed on the floor that Mr. Goodwin kicked him several times, is that right?

A Yes, sir.

Q And he kicked him, did you say once in the head?

A Yes, sir.

Q And the rest on the body?

A Yes, sir.

Q All right. You didn't see Dirk make any move to get up?

A No, sir. He never moved, except his head rolled whenever Mr. Goodwin kicked him. Other than that he didn't move.

Johnson also testified that Durkee, whom she knew as "Dirk," was then carried outside by several men and that in doing so they dropped him and his right shoulder "hit the floor".

Betty Larson, also a State's witness, was in the company of Johnson during the confrontation between appellant and Durkee. She testified that she did not see what occurred, if anything, at the bar between Durkee and appellant. She first became aware of the altercation when Durkee fell on the floor in front of her table. She testified that she saw appellant kick Durkee about four or five times "all over Durkin's (sic) body." However, she could not say that appellant ever kicked Durkee in the head.

It is undisputed that appellant was wearing boots at the time of the incident. They were introduced into evidence.

Nancy Kreger, a witness for the defense, testified that she did not see the appellant kick Durkee. However, she did testify that when some people were carrying him out, they dropped him and "he landed on his head, the back of his head."

Michael Joe Brown, a witness for the defense, testified that he heard some noise "to his back" and when he turned around he saw appellant hit the deceased with his fist and that the deceased, who was trying to fight, fell back onto the floor and that he fell on his right shoulder and back. While he could not see clearly what was going on because there were people in front of him he said that after the deceased landed on the floor "it looked like a kicking action to his stomach." He further stated that he could not see the deceased's head "really good."

Rene Rodriguez, another witness for the defense, testified that when he was in the Lounge appellant came in, and they commenced a conversation at the bar. Rodriguez stated that, while he was talking to appellant, the deceased came up to appellant and said something to him; appellant pushed the deceased who then "came back at appellant" and started yelling at him. Rodriguez did not know what the deceased said to appellant, but he did say that appellant took a swing at the deceased. He did not remember where appellant hit the deceased.

Dr. Joseph C. Rupp, the Nueces County Medical Examiner, testified for the State. On direct examination, he stated that the deceased died as a result of a lacerated vertebral artery with hemmorage into the brain. In describing the area of the laceration, Rupp said that the artery is unprotected for a very short distance and if that area is injured by a kick, a sharp blow, or a punch to the back of the head, it can tear because it is unprotected by bone. Rupp further stated that, as a result of such trauma, the blood then bleeds into the skull and produces a tremendous amount of pressure around the brain which causes a very rapid incapacitation and death. Dr. Rupp stated that his examination of the deceased showed a large amount of hemmorage in the brain, with the bleeding coming from the base up. There were marks in the mastoid area of the deceased's head which indicated that there had been a trauma to that particular area. In addition to the trauma in the mastoid area of the deceased's head, Dr. Rupp testified that the deceased had a large laceration of the lower lip and it appeared that the lower lip had been "nearly bitten through." Also, he observed a bruise on the right side of his head, and that the upper right eyelid and the lower left eyelid were black. He also noted abrasions along the left side of the jaw, on the tip of the chin, and on the curved portion of the left ear. There were scratches on the deceased's left arm and a rectangular abrasion about four inches by two inches in size on the left upper abdomen and abrasions in the left anterior area below the nipple level. Dr. Rupp further testified that the deceased, at the time of his examination, had a blood alcohol level of 0.346 percent. He said that the alcohol content of the deceased's bloodstream was the equivalent of a pint of whiskey or of fifteen or sixteen beers, and that the deceased was approaching a lethal level of alcohol.

On cross examination, Dr. Rupp testified that alcohol produces changes in personality, but the changes vary from person to person. He also testified that he could not imagine anyone hitting another person with enough force to knock them across a table without touching the table. Dr. Rupp explained that the vertebral artery in the mastoid area of the head can be severed by a blow to that particular area of the head, but the blow does not have to be delivered to that...