Honish v. State
| Decision Date | 25 April 2013 |
| Docket Number | NO. 02-11-00407-CR,02-11-00407-CR |
| Parties | MARK HONISH APPELLANT v. THE STATE OF TEXAS STATE |
| Court | Texas Court of Appeals |
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
A jury convicted Appellant Mark Honish of murder, and the trial court sentenced him to fifty years' imprisonment. See Tex. Penal Code Ann. § 19.02(b) (West 2011). In six issues, Appellant argues that the trial court erred by admitting illegally-obtained evidence and by excluding defense evidence, that the evidence is insufficient to support his conviction, that he was denied a speedytrial, and that the State made an incurable improper jury argument. We will affirm.
Appellant and his brother David had been in the process of opening a large indoor gun range. Appellant is a convicted felon. The brothers began feuding about the business, and David threatened to expose Appellant for unlawfully possessing a firearm as a convicted felon.
David was found dead in his truck on the side of a road at 11:30 p.m. on June 21, 2007. He had been shot twice in the left side of his head. Texas Ranger Tracy Murphree investigated the scene; he noticed blood spatter inside David's truck and on the outside driver's side. No gun was found at the scene. David's truck was running, the window was down, and he was buckled into his seatbelt. It had been raining that day, and there were fresh tire tracks in the mud alongside the driver's side of David's truck. Ranger Murphree concluded that the shooter was in another vehicle, probably a large SUV or truck based on the size of the tire tracks, and had pulled up alongside the driver's side of David's truck and shot him. Police found a folder with a copy of an email from David to Appellant inside David's truck. In the email, dated June 6, 2007, fifteen days prior to the shooting, David said Appellant was late paying "the next $1K installment" and threatened to expose Appellant as a convicted felon.2
Ranger Murphree contacted David's ex-wife from the scene, and she confirmed the feud between Appellant and David. Appellant lived ten to twelve miles from the scene, and the tracks in the mud near David's car headed in the direction of Appellant's home. Flower Mound Police Sergeant Colin Sullivan went back to the police department to prepare an affidavit for a search warrant to search Appellant's house and vehicle. Ranger Murphree and Denton County Sheriff's Department Investigator Larry Kish drove to Appellant's house at around 4:30 a.m. and saw a Ford truck in Appellant's driveway. The truck was registered to Appellant. From the street, Ranger Murphree could see mud on the side of the truck. He and Investigator Kish walked into the driveway to get a better look at the truck; they shone a flashlight on the truck and could see freshmud on the passenger side of the truck and that the tire tread pattern and width matched that of the tire tracks at the scene. The officers returned to their squad car and continued conducting surveillance; Ranger Murphree relayed to Sergeant Sullivan what they had seen on Appellant's truck.
At around 6:00 a.m., the officers saw Appellant get in his truck. Ranger Murphree stopped Appellant a few houses down from his house, and when Appellant opened the door to get out, Ranger Murphree saw a wipe mark in an S-pattern on the driver's side door; the truck was covered in road dust except the wipe-marked area. Ranger Murphree also saw a line of mud on the right passenger tire, indicating that it had been in "deep mud," and saw wet mud "sitting pretty loosely" on the running board, indicating that the truck had recently been in mud. Ranger Murphree told Appellant that his brother had been shot and asked if Appellant would move his truck back to his driveway because they were in the middle of the street. Appellant complied. Once in front of the driveway, Ranger Murphree told Appellant that he understood the brothers had been feuding. In response, Appellant said that he and David were trying to open a gun range and that David was trying to blackmail Appellant because he was a convicted felon; he then commented, "I guess you probably know that because of the paperwork in his vehicle."
Appellant, who was a pilot for Dean Foods, asked the officers if he should cancel a flight he was scheduled to make that day. Ranger Murphree said that would be a good idea. Appellant then began making numerous phone calls forabout thirty minutes. As the sun began to rise, Ranger Murphree noticed six drops of blood on the running board and fender well of Appellant's truck, just below the wipe mark that he had noticed earlier. Ranger Murphree relayed what he found on Appellant's truck to Sergeant Sullivan for inclusion in the search warrant affidavit. Police arrived with a cast of the tire tracks from the murder scene; they compared the cast to the tires on Appellant's truck and determined that the two matched. At one point, Appellant licked his thumb and rubbed something on the truck near the driver's door handle. Ranger Murphree instructed him not to touch the truck.
While they were waiting on the search warrant, a sprinkling rain began so Investigator Kish collected samples of blood and dirt from Appellant's truck in order to preserve evidence. Police then covered the door with plastic and a tarp and called for a wrecker. A search warrant issued shortly thereafter, around 8:15 a.m., and officers took guns and clothing from Appellant's house.
At trial, evidence showed that Appellant was on a flight the day of David's murder and arrived back in Dallas at 9:18 that night. Evidence also showed that the alarm at Advanced Gunworks, for which Appellant had security codes to enter, had been disabled at 10:37 that night and that a Bushmaster AR-15 was missing from the business. The drive from the airport to Advanced Gunworks takes about thirty minutes and from the gun business to the murder scene takes about eight minutes. Evidence at trial also showed that Appellant was giving David money and that he would meet David somewhere between Denton—where David lived—and Trophy Club—where Appellant lived—to give David money.
Police found the AR-15 that had been taken from Advanced Gunworks in Appellant's house. Police also found a .357 magnum handgun containing six rounds of .38 special ammunition in Appellant's house. A .38-caliber handgun was found in a creek between the crime scene and Appellant's home; the gun belonged to Appellant's wife. The gun contained four live rounds and two spent rounds of .38 Special P Plus ammunition. A senior firearm and tool mark examiner testified to her opinion that the two bullets recovered from David's body were fired from the .38-caliber handgun found in the creek.
DNA swabs taken from Appellant's truck tested positive for blood and matched David's DNA.3 Soil samples taken from Appellant's truck matched the soil at the crime scene but did not match the soil around Appellant's house.
In his first issue, Appellant argues that the trial court erred by denying his motion to suppress evidence obtained pursuant to a warrantless search in violation of the Fourth Amendment. Specifically, Appellant complains of police going onto his property to look at his truck and, after stopping him in the street but prior to obtaining the search warrant, taking swabs of the mud and blood onhis truck without probable cause and without justification. He also argues that the search warrant's supporting affidavit was insufficient to provide probable cause and contained illegally-obtained evidence—specifically, statements he made to police and the mud and blood on his truck. In his second issue, Appellant contends that statements he made to the officers after he was stopped were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor.Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.
Stated another way, when reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the record is silent on the reasons for the trial court's ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would...
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