Molitor v. State

• Decision Date: 18 March 1992
• Docket Number: No. 3-89-247-CR,3-89-247-CR
• Citation: 827 S.W.2d 512
• Parties: James Arthur MOLITOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 512

827 S.W.2d 512

James Arthur MOLITOR, Appellant, v.The STATE of Texas, Appellee.

No. 3-89-247-CR.

Court of Appeals of Texas Austin.

March 18, 1992.

Discretionary Review Granted

June 24, 1992.

Eddie G. Shell, Eddie G. Shell & Associates, Paul Decuir, Jr., Burnet (substituted for Eddie G. Shell), for appellant.

Ken Anderson, Dist. Atty., Williamson County, Sally Ray, Asst. Dist. Atty., Georgetown, for appellee.

Before JONES, SMITH and ONION, ^* JJ.

ONION, Justice(Retired).

A jury convicted appellant, James Arthur Molitor, of murder, Tex.Penal Code Ann. § 19.02(1989), and assessed his punishment at life imprisonment.Tex.Penal Code Ann. § 12.32(Supp.1992).Appellant advances ten points of error.He contends there is no evidence that he intentionally or knowingly killed the deceased as alleged.In other points, appellant claims that the trial court erred in refusing to order disclosure of the content of his oral statements made to a police officer after disclosure had been ordered at a pretrial hearing, erred in allowing irrelevant and prejudicial matters into evidence during the interrogation of the deceased's mother, and erred in refusing Jackson v. Denno ¹ hearings on two occasions.Additional points center on the court's charge.Appellant argues that the trial court erred in refusing charges to the jury on theories of self defense, defense of property and accident, and on the lesser-included offense of criminally negligent homicide.We will affirm the judgment of conviction.

Statement of Facts

We shall commence our discussion with appellant's tenth point of error claiming there was no evidence that he intentionally or knowingly killed Kenneth Dale Wylie, the deceased.The facts are essential to this point and will place the other points of error in proper perspective.

On Sunday afternoon, May 28, 1989, the appellant heard rocks hitting the side of his house.He looked out a window and saw two five-year old boys.The children were Matthew Egloff, who lived next door, and Christopher Wylie, who also lived in the neighborhood.Christopher apparently was not known to appellant.Appellant went outside, and when Christopher started to throw another rock despite his admonishment to stop, appellant grabbed the child's arm and apparently slapped Christopher, who started crying.Both boys ran next door to the Egloff home.

Soon thereafter, Mike Egloff and Kenneth Dale Wylie, the two boys' fathers, went to appellant's home.Wylie's wife, carrying her infant daughter, and Christopher followed them.Wylie went to the front door and began knocking.Egloff was about six feet behind Wylie and to the left.Wylie's wife and the two children were some distance behind the two men.

According to the testimony of Mike Egloff and Wylie's wife, a conversation ensued between Wylie and the appellant after he opened the door.Wylie asked why appellant had struck his son.When appellant related the rock-throwing incident, Wylie advised appellant to come to him, not his son, if the son misbehaved.The witnesses stated that there was then a gun shot, and appellant slammed the door.Neither witness was in a position to see the gun when it fired; they only heard the shot.Both testified that Wylie neither entered appellant's house nor hit appellant in any fashion.

When Deputy Sheriff Mike Locke responded to a call, he found Wylie lying on the ground between two residences.Several people were standing around.When he asked who was involved in the shooting, appellant, standing by his garage door, answered, "I shot him."Appellant later showed Mike Locke the gun inside his house.

The cause of Wylie's death was shown to be a gunshot wound of the abdomen resulting in massive internal bleeding.The medical examiner estimated that the gun had been fired from a distance of six inches to two feet away from Wylie's body.The doctor testified the bullet angle was a "30 degree angle on the horizontal" ... "parallel to the ground," that it was not coming up or going down.The weapon shown to have fired the fatal shot, a double action revolver, has a trigger that when pulled, both cocks and releases the hammer to fire the revolver.

Appellant's version of the facts differs somewhat from the State's version.After the rock-throwing incident with the children, appellant testified that he heard a loud banging at his front door that startled him.When he looked out the peephole in the door appellant saw two individuals whom he did not recognize.He was not well acquainted with his neighbors.The loud pounding continued.Frightened, appellant went to a cabinet near the door and obtained the loaded revolver "in case he needed to scare someone off, or [he] could threaten them to get away."Appellant placed his finger in the trigger guard of the gun and concealed the weapon behind his back with his arm straight down, "hoping it wouldn't be necessary to brandish it."He then opened the door.

According to appellant, when he opened the door he was confronted by a man who was red in the face.The man was Wylie, whom appellant had never met.Appellant testified that Wylie "said something to me, turned--and he turned back and said something else and hit me in the side of the head."The next thing appellant remembered was getting up off of the floor and smelling gun powder.He testified, "I swear to God I do not remember doing it [pulling the trigger]."Appellant never testified that the blow to his head caused him to discharge the revolver, or that in falling the gun went off accidently.Appellant could not remember what occurred.He stated that he did not intend to kill Wylie.

Sufficiency of Evidence

The standard for reviewing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 319 n. 12, 99 S.Ct. 2781, 2789 n. 12, 61 L.Ed.2d 560(1979);Valdez v. State, 776 S.W.2d 162, 165(Tex.Crim.App.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2575, 109 L.Ed.2d 757(1990);Dickey v. State, 693 S.W.2d 386, 387(Tex.Crim.App.1984).The standard for review is the same in both direct and circumstantial evidence cases.Herndon v. State, 787 S.W.2d 408, 409(Tex.Crim.App.1990);Chambers v. State, 711 S.W.2d 240, 244-45(Tex.Crim.App.1986);cf.Geesa v. State, 820 S.W.2d 154(Tex.Crim.App.1991)(abolishing the reasonable hypothesis construct in circumstantial evidence cases with the decision to be applied prospectively).

Appellant urges that there is no evidence to support the culpable mental states of intentionally or knowingly as alleged in the indictment.Proof of a culpable mental state generally relies on circumstantial evidence.Gardner v. State, 736 S.W.2d 179, 182(Tex.App.1987), aff'd, 780 S.W.2d 259(Tex.Crim.App.1989).Intent may be inferred from the acts, words and conduct of the accused.Dues v. State, 634 S.W.2d 304, 305(Tex.Crim.App.1982).Knowledge can also be inferred from the conduct of and remarks by the accused and from the circumstances surrounding the acts engaged in by the accused.SeeDillon v. State, 574 S.W.2d 92, 94-95(Tex.Crim.App.1978);Escanbrack v. State, 646 S.W.2d 480, 481(Tex.App.1983, no pet.).

There is no direct evidence as to appellant's state of mind at the precise time of the shooting; it is clear, however, that he fired the shot that killed the deceased.The intent to commit murder may be inferred from the defendant's use of a deadly weapon per se.Flanagan v. State, 675 S.W.2d 734, 744(Tex.Crim.App.1984);Foster v. State, 639 S.W.2d 691, 695(Tex.Crim.App.1982);Fentis v. State, 528 S.W.2d 590, 592(Tex.Crim.App.1975).The defendant's use of a deadly weapon per se is only a circumstance indicating guilt from which a jury may or may not infer an intent to kill.It is neither conclusive nor burden shifting.Moreno v. State, 755 S.W.2d 866, 868-69 n. 3(Tex.Crim.App.1988).In an appellate review, evidence of "the use of a deadly weapon per se constitutes more than a 'mere modicum' of evidence of an intent to kill," when viewed in the light most favorable to the jury's verdict.Id.

Appellant correctly asserts that this inference of intent to kill can be rebutted.Foster, 639 S.W.2d at 695.In Foster, the inference was rebutted where all the evidence pointed to an accidental shooting, and the court held the evidence was insufficient to prove that the defendant intentionally or knowingly caused the death of the deceased.In the instant case, it is undisputed that the appellant shot the deceased with a double action revolver which was shown to be a firearm.A firearm is a deadly weapon per se.Gomez v. State, 685 S.W.2d 333, 336(Tex.Crim.App.1985).

Unlike Foster, all the evidence in the instant case does not point to an accidental shooting.The appellant acknowledged that he retrieved a loaded gun before he opened the door.He asserted that the deceased struck him and that he fell.Appellant did not remember pulling the trigger.He did not testify directly that the shooting was accidental.The shot was fired parallel to the ground, and not at an angle "coming up."Two eyewitnesses testified that the deceased never hit the appellant.While the members of the jury were free to believe appellant's testimony that he did not intend to kill the deceased, they were also free to reject his version of the facts and reasonably infer that appellant intentionally or knowingly killed the deceased.Jurors are the triers of the facts, the judges of the credibility of the witnesses, and of the weight to be given their testimony.Tex.Code Crim.Proc.Ann. art. 38.04(1979).The jury is entitled to accept or reject all or any part of the testimony by the witnesses for the State and the accused.Beardsley v. State, 738 S.W.2d 681, 684(Tex.Crim.App.1987).Reconciliation of evidentiary conflicts is solely a function of...