Norris v. State

• Decision Date: 01 March 1995
• Docket Number: No. 69,856,69,856
• Citation: 902 S.W.2d 428
• Parties: Michael Wayne NORRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 428

902 S.W.2d 428

Michael Wayne NORRIS, Appellant, v. The STATE of Texas, Appellee.

No. 69,856.

Court of Criminal Appeals of Texas,

En Banc.

March 1, 1995.

Rehearing Denied May 17, 1995.

Randy Schaffer, Wendell A. Odom, Jr., Cynthia Henley, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., & Timothy G. Taft, Ira Jones & Debbie Mantooth, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

A jury convicted appellant of capital murder under V.T.C.A., Penal Code, Section 19.03(a)(6)(A). ¹ The trial court sentenced him to death after the jury affirmatively answered the special issues. Appellant presents nineteen points of error. We affirm.

Appellant challenges the sufficiency of the evidence to support his conviction; therefore, we set out the relevant evidence from the guilt-innocence stage. The evidence shows Georgia Rollins and appellant were romantically involved. Appellant sometimes babysat Georgia's two-year old son (the baby). On the evening of the offense, Georgia would not allow appellant to babysit the baby while Georgia attended church, as they previously had agreed. Georgia took the baby to church with her. Appellant appeared at the church during the services to get the baby, and had some type of confrontation with Georgia during which a security guard had to intervene. Appellant became angry, went home without the baby, and took a nap. Appellant lived a short distance from the mother's apartment.

Appellant claimed he attempted to contact Georgia by telephone later that night but she would hang up the phone each time he called. Appellant took a high-powered deer rifle to Georgia's apartment, which she shared with other members of her family who were home at the time, and shot the baby and Georgia (the mother) at close range inside the mother's bedroom. The baby was killed instantly, and the mother died later that night at a local hospital.

The mother's family members, none of whom were in a position to see the entirety of the events occurring inside the mother's bedroom, provided testimony that appellant appeared outside the mother's bedroom window, broke the glass and fired a shot into her bedroom. The mother was talking to someone on the telephone when appellant broke the glass in her bedroom window. Appellant climbed into the bedroom and said to the mother, "I hate to do this Georgia, but I told you. I told you you couldn't mess me over. I told you you couldn't leave me." He then fired several shots in the mother's direction. He left the room, turned the doorknob on another bedroom door in the apartment, and returned to the mother's bedroom. He then told the mother he hated to see her suffer and fired a couple of more shots in her direction. The mother's family members testified they heard about five shots but they could not be sure. The mother's sons saw appellant leave the mother's bedroom with the rifle. Appellant said to them, "Y'all get out of my way. Let me go out. I done come and do what I come to do. Just let me go out."

Appellant returned home, where he lived with his mother, told her he had killed the mother and the baby, and he was sorry. Appellant's mother testified appellant was sobbing. Appellant also called his pastor and the police to turn himself in. The police arrested appellant shortly thereafter at his home without incident and seized the rifle. Later that night, appellant confessed to the police he had killed the mother and the baby, and he was sorry.

The police quickly arrived at the mother's apartment and secured the scene. Officer Gafford testified he found three spent rifle casings inside the mother's bedroom and one outside her bedroom window. Another spent casing was found in appellant's rifle. Gafford testified he observed five total wounds on the baby. Several crime-scene photographs, showing multiple wounds on the baby, were admitted into evidence. ²

The State presented other evidence showing the baby suffered four initial entry wounds: two to the head, one to the chest, and one to the right leg or thigh, which was nonfatal. The gunshot wounds to the head and chest were fatal. The mother suffered three "irregular gunshot wounds" to the head and chest and fragment wounds to her face, neck, chest, and left arm going into the chest. The gunshot wound to the chest and the gunshot wound to the left arm going into the chest were fatal. Most of the wounds the mother suffered were from fragments of bullets that first hit the baby. ³

The State's evidence also showed that when appellant fired the first shot from outside the mother's bedroom the mother was sitting or kneeling on the floor next to her bed, and the child was lying on the bed. The first shot hit the baby in the right leg or thigh, and the mother picked up the nonmortally wounded baby and held him to her breast crying, "my baby, my baby." Appellant climbed into the mother's bedroom and fired another shot. This shot entered the baby's forehead and fragmented; the fragments came out of the back of the baby's head in three places and hit the mother in the face and neck, fracturing her jaw and exiting through her tongue. The medical examiner testified the mother's wounds from this shot were nonfatal. ⁴ Thereafter, appellant shot the baby and the mother several more times.

"Q. Doctor, I want to pose a hypothetical to you. Just assume certain facts; and then I will ask you to render a medical opinion, just assuming these facts; all right?

"I'm going to show you what's been marked as State's Exhibit 2; all right? Assume, if you will, that this diagram, State's Exhibit 2, is an apartment floorplan--okay--and that you have a chair, a bathroom, a closet, a television, a bed, a dresser, and a rug upon the floor here. These will be pillows. And this rectangular object will be a bed; okay? Assume, also, if you will, that a woman with the same size and shape body figure as [the mother] were (sic) sitting on the floor about right here, in State's Exhibit 2, on her knees, talking on the phone, possibly leaning on the bed; okay?

"Assume, also, a child about the size of [the baby], approximately twenty-nine pounds, is lying on the bed, within a foot or two of this woman, with its head facing toward the pillows.

"Assume, also, that some person sticks a 30-30-caliber rifle through this window and fires one shot, which goes and clips the right leg of the child and then fragments and strikes [the mother] who is leaning forward, talking on the phone, facing the bed in the left side.

"Would the wound to the [child's] right leg and the wound to the left chest [of the mother]--the fragmented area that you've described--be consistent with such a wound?

"A. Yes, sir, because the--it is consistent with the missile hitting the thigh and hitting something else upward.

"Q. Assume, further, that after that happened, the [mother] picks up the baby and holds it to her chest and that a person comes and stands at the foot of the bed and fires shots at her, while she is holding the baby in front of her or to the side of her.

"Are the wounds upon the [baby's] body consistent with that?

"A. Yes, sir, especially the one on the head with the three exits and then those--some laceration on this part (indicating). As I said earlier, there was some laceration, as I see, over here. Those could be done by fragment of bone--flying fragment of missile. An intact missile would not produce those small lacerations. It's like something shattered and hit the person. That's why I formed my opinion that on the mother--my opinion that something hit first before it hit and made this form of injury on this part of the mother.

"Q. From the angle of the bullets that struck [the baby] and the angle of the bullets and the fragments which struck [the mother], would they be consistent with a person standing about right here, firing at a downward angle?

"A. It could be consistent with many directions, provided you align the--

"Q. But assume that [the mother]--let's say it's not [the mother] but a woman of her size and shape--is possibly wounded while holding the child to her.

"Are the wounds to the front of the child's head, fragmenting out the back, and to [the mother's] chest and face consistent with a downward shot of a person standing here, firing downward at her while she is holding the child?

"A. It could be.

"Q. Is it consistent with it?

"A. If it's lined up in that direction, yes, sir.

"Q. Assume, also, that the person here fires two shots and he goes out this door and does something for a few minutes and comes back and then fires two more shots.

"Are your findings consistent with a woman--who still holding the child--possibly now lying against the bed or on the floor?

"A. Yes, sir, provided the alignment of the wound is in the line--you see, the direction of the missile--we call it opposite where the gun coming from."

Appellant testified at the guilt-innocence stage that he did not intend to use the rifle when he went to the mother's apartment, and that he took the rifle with him for protection from the mother's sons in case there was any trouble. He testified he wanted to talk to the mother about why she was treating him badly, but she refused to answer the door. ⁵ Appellant testified he was emotionally distraught because the mother embarrassed him at the church, hung up the phone when appellant tried to call her and refused to talk to him when he came to her apartment. Appellant also testified he was depressed because of the problems in their relationship.

Appellant testified he intended to kill only the mother when he shot the baby. Appellant also testified that when he fired the first shot from outside the mother's bedroom window the mother was kneeling by the side of the bed holding the baby against her left breast. ⁶ He said he aimed away from the baby, and fired in the direction of the mother's right breast but the...