McAfee v. State

• Decision Date: 12 May 2015
• Docket Number: NO. 01–13–00777–CR,01–13–00777–CR
• Citation: McAfee v. State, 467 S.W.3d 622 (Tex. App. 2015)
• Parties: Kenneth Cooper McAfee, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

467 S.W.3d 622

Kenneth Cooper McAfee, Appellant

v.The State of Texas, Appellee

NO. 01–13–00777–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 12, 2015

Jani Maselli Wood, Asst. Public Defender, Harris County, Houston, for Appellant.

Devon Anderson, Dist. Atty., Jessica A. Caird, Asst. Dist. Atty., Harris County, Houston, for Appellee.

Panel consists of Justices Keyes, Higley, and Brown.

OPINION

Evelyn V. Keyes, Justice

A jury convicted appellant, Kenneth Cooper McAfee, of the murder of his wife, Janet McAfee, and the trial court assessed his punishment at confinement for ninety-nine years and a $10,000 fine.¹ In four issues, appellant argues that (1) the jury erred in rejecting his insanity defense because a preponderance of the evidence supported it; (2) the trial court erred in overruling his objection to the State's definition of “wrong” in the context of discussing the insanity defense during voir dire; (3) the trial court erred in denying his motion to suppress the testimony of Charles Storer, an attorney and friend whom he called in the course of committing the offense; and (4) the consolidated court costs were unconstitutional because they included a crime stoppers fee that does not fund any costs of the court's function.

We affirm.

Background

Appellant and the complainant, Janet McAfee, married in 1991. In 2006, appellant began to suffer from various health problems. These issues led to the breakup of appellant's marriage to Janet, and the two were in the process of getting divorced. The record contains conflicting evidence regarding the nature of appellant's physical and mental health issues and includes testimony that appellant suffered from drug and alcohol abuse, depression, anxiety and panic attacks, degenerative neurological disease, and dementia. It is undisputed that at the time of the offense appellant was living in an assisted living facility.

A. The Commission of the Offense

On May 8, 2010, Janet picked appellant up to attend the Art Car Parade, and the two spent the day together viewing the parade and later returning to the home they had shared and where Janet still lived. That evening, a panic alarm in the home was activated, and Houston Police Officer R. Nellippallil was dispatched to the home to investigate. He was met by appellant, who told Officer Nellippallil that everything was fine and it was a false alarm. Officer Nellippallil testified that appellant, whom he believed to be the homeowner, appeared normal and understood his questions. Officer Nellippallil left the home believing nothing was wrong.

Janet's alarm company also contacted the police regarding the alarm, and a second officer, Officer B. Scott, was dispatched to the home later that evening. As he approached the house, he met one of Janet's neighbors who expressed her concern for Janet, stating that she had also received an alarm call regarding the house. Officer Scott asked the neighbor to call Janet, and he rang the door bell. Appellant eventually answered the door and again told Officer Scott that everything was fine and it was a false alarm. As Officer Scott returned to his vehicle, Janet's neighbor stopped him and explained that she knew Janet and appellant were having marital issues and she was concerned for Janet's safety.

Officer Scott then returned to the door and asked to speak with Janet directly. Appellant showed his driver's license to the officer and claimed that Janet was sleeping and could not come to the door. When Officer Scott insisted on seeing Janet, appellant refused to wake her and refused to allow the officer inside to check on her. Appellant asked if Officer Scott had a search warrant requiring him to give the officer access to the home. As Officer Scott was having this discussion with appellant, he saw Janet come into view from around the corner, and he saw that she was staggering. Officer Scott asked her if she was okay, and she told him that she was not and fell to the floor. At that point, appellant immediately shut the door in Officer Scott's face and locked it. Officer Scott did not see any blood or obvious wounds on Janet at that time, but he informed dispatch of the situation and requested that Officer Nellippallil return to provide backup so that they could investigate further.

While Officer Scott was discussing the situation with dispatch, he observed appellant leave the house with his dog. Officer Scott approached appellant, questioning him about Janet's condition and asking why he shut the door so abruptly. Appellant told him that Janet had been drinking and was feeling sick as a result. Officer Scott believed that appellant initially had planned to leave the home, because he was carrying keys to the vehicle and tried to start the engine, but after Officer Scott approached him, appellant put the dog in the car and then went back inside the house.

Officer Scott testified that appellant seemed normal and spoke to him calmly, trying to convince him that everything was okay and that he could leave. However, Officer Scott remained concerned about Janet's safety and waited outside the house for backup to arrive. When Officer Nellippallil arrived, they once again rang the door bell. Appellant did not answer the door. However, one of the officers spoke to appellant by phone while the other walked around the outside of the house and was able to see of Janet through a bedroom window. He saw that she was lying on her side, unmoving, and the officer observed blood stains. Appellant continued to insist that Janet was fine and that she was just sleeping, and he refused to allow the police to enter. At one point, appellant also told the officers that he wanted to kill himself, but Officer Scott testified that he seemed calm, even while making his suicide threat.

Eventually, the police dispatched a SWAT team and a Crisis Intervention Response Team (“CIRT”) to the home. Michael Hawkins, a clinician with the CIRT, attempted to communicate with appellant. Hawkins testified that his training and experience as a licensed professional counselor and his crisis intervention training equipped him to recognize people suffering from psychosis, hallucinations, and other acute mental illness. He stated that when he arrived on the scene, he spoke with appellant over the phone and attempted to get appellant to exit the house. Hawkins testified that while he was speaking with appellant, he noticed that appellant seemed sad and depressed. In fact, appellant told Hawkins that he was depressed, and Hawkins understood from his discussion with appellant that the problems had something to do with money. However, Hawkins did not observe any speech or behavior that indicated that appellant was suffering from psychosis or hallucinations.

Rather, appellant was communicating clearly and his thoughts and words seemed to be “in order” and made sense in context.

Hawkins also testified that, while he was on the phone with appellant, appellant asked to speak with his attorney. Appellant initially indicated that he would come out of the home after his attorney arrived, and appellant later stated that he would hurt himself if the police entered the home. Appellant's attorney, Charles Storer, arrived on the scene at some point and spoke to appellant on the phone.

While Hawkins was talking with appellant, the SWAT team arrived and Officer M. Scales used a magnification scope to look into the bedroom where Janet was lying on the bed. Officer Scales did not observe any signs of life from Janet, but he saw appellant come into the room and lie down next to his wife. He saw appellant raise one of Janet's legs and let it fall back onto the bed, and Officer Scales stated that appellant appeared resigned at that point. As the other members of the SWAT team entered the home, Officer Scales saw appellant shoot himself in the head. Appellant was taken to a local hospital for treatment of his gunshot wound, but Janet was declared dead at the scene. An autopsy later revealed that she had been shot four times, and physical evidence in the house indicated that she had been shot somewhere outside the bedroom, had at one point been walking around after being shot, and had been dragged through the kitchen and into the hallway. Detectives also discovered bloody towels in a clothes hamper concealed by the shower curtain.

Houston Police Officer T. Moore was assigned to guard appellant while he was at the hospital, and he testified that he heard a nurse ask appellant why he was in the hospital. Appellant told the nurse he was there because he shot his wife. An HPD homicide investigator likewise visited the hospital to get appellant's statement. Appellant asked him how much time he could get for murder and then decided to wait to give a statement until his attorney was present. As part of the investigation, the officer requested to view appellant's mail while he was confined in the Harris County Jail. A few days after appellant arrived at the jail, he sent a letter to his ex-wife, Brenda McAfee, in which he wrote, “I'd say that insanity will be an interesting angle in the trial.”

Appellant was tried for Janet's murder, and he asserted the affirmative defense of insanity.

B. Facts Relevant to Voir Dire

During its voir dire examination of the venire, the State explained the elements of the affirmative defense of insanity in an attempt to ascertain whether the potential jurors would properly apply the law. The prosecutor explained that there were essentially three prongs to the insanity defense and stated that a defendant asserting the insanity defense would be required to establish that he was suffering from a severe mental disease or defect and that there was a causal connection between the mental illness and the crime. Finally, the prosecutor stated, “Third prong[:] Did the defendant know that his conduct was wrong? Wrong is defined as legally, socially or morally impermissible.” Appellant objected, stating, “There is no legal definition for wrong, and I...