Pearson, Demarcus v. State ( 2002 )

Affirmed and Opinion filed May 16, 2002

Affirmed and Opinion filed May 16, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00478-CR

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DEMARCUS PEARSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 842,197

O P I N I O N

Appellant Demarcus Pearson challenges his conviction for the murder of his mother. Appellant contends the evidence is legally and factually insufficient and the trial court erred in denying his request for a jury instruction on the law of sudden passion.  We affirm.

I. Factual Background

Appellant=s mother, Vanessa Reedy, attended church with her friend, Brenda Pruitt.  After the church services ended around 9 p.m., the friends separated and went home.  Upon returning to her home, Pruitt received a phone call from appellant, who indicated Reedy wanted to talk to Pruitt.  Reedy and Pruitt talked until appellant received another telephone call from Nikia Bundage, Reedy=s daughter and appellant=s half-sister.

Bundage testified that at the time of the offense, appellant was living with Reedy. On the day Reedy was killed, Bundage received a series of telephone calls from appellant, who was at their mother=s home.  The telephone calls, which began around 2:00 p.m., were initially lighthearted and conversational.  During the calls, appellant told Bundage that he planned to kill their mother.  Bundage believed him to be joking.  During the third or fourth telephone conversation, appellant asked Bundage to help him kill their mother.  Again, Bundage did not take appellant seriously and Aplayed along@ with him.  Later that evening around 10:00 p.m., appellant called Bundage, said Alisten to this,@ and placed the telephone receiver down.  Bundage quickly told her roommate to pick up the telephone extension, at which point they heard appellant yell, AMama@ and a few seconds later, a gunshot B the first of two.  Bundage and her roommate both testified that before the first shot they heard Reedy pleading, APlease Marcus, forgive me. It will never happen again.@^[1] After the first shot, Bundage heard their mother say, AI love you and Niki.@ After the second shot, appellant picked up the telephone receiver and told Bundage that he was coming to her house.  Bundage immediately called 9-1-1 and the police.

While Bundage was on the phone with the police, appellant arrived at her house, walked around, and beat on the doors and windows.  Bundage refused to let him enter.  When appellant heard police cars approaching, he fled.  Houston Police Officer D. Delossantos, who was responding to Bundage=s call, arrived at Bundage=s residence just in time to see appellant running away from the house.  Officer Delossantos pursued appellant on foot and eventually caught and arrested him

Meanwhile, Houston Police Officers D.L. Shadden and E. Aguilera arrived at Reedy=s home, and found her lifeless body on the bathroom floor in a pool of blood.  Officer Aguilera stated that Reedy=s brother, Dennis Walker, came out of the house holding a rifle in his hand.  Walker told the police that he had purchased the rifle for Reedy, and that he had found it in Reedy=s room behind clothing in the closet.

Dr. Roger Milton, a Harris County medical examiner testified Reedy had sustained two gunshot wounds, one bullet entering beneath the right eye, and the other entering on the left side the head.  The second bullet penetrated the brain stem, fracturing the base of the skull.  In Dr. Milton=s opinion, Reedy still would have been able to talk after the first bullet, but the second one would have caused almost instant death. 

Appellant testified and presented a completely different version of the events surrounding his mother=s death.  Appellant stated he was not living with his mother, but was at her home to meet with a Navy recruiter.  He specifically denied telling Bundage that he planned to kill his mother.  Appellant also denied talking to Bundage between their first conversation of the day and their conversation immediately after the shooting.  Appellant claimed that when his mother returned home from church, she started an argument with him.  Appellant testified that as the argument escalated, he tried to leave, but saw his mother standing in the bathroom with a gun in her hand.  Appellant testified that his mother then removed the safety and pointed the gun at him.  Appellant claimed that when he tried to take the gun from her, it discharged. According to appellant, he then called Bundage and told her that he and their mother had been arguing, a gun had accidently discharged, and their mother was dead.  Appellant also contends that Bundage told him to come over to her house to discuss what should be done.  Appellant claimed that he did not know how his mother suffered the second gunshot wound, and that after the first shot, he dropped the gun to the ground.

Appellant was indicted with the felony offense of murder.  See Tex. Pen. Code Ann. ' 19.02(b) (Vernon 1994). He pled not guilty.  A jury found appellant guilty as charged and assessed punishment at twenty years= confinement.

II.  Factual And Legal Sufficiency of The Evidence

In first and second points of error, appellant contends the evidence is both legally and factually insufficient to prove he committed the offense of murder.  More specifically, he complains the evidence is insufficient to show that he intended to inflict serious bodily injury or death upon the complainant, an element of the offense of murder.  See Tex. Pen. Code Ann. ' 19.02 (Vernon 1994)

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that the defense=s evidence outweighs the State=s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of witnesses and of the strength of the evidence.@  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of the witnesses= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of Ain the light most favorable to the prosecution@ and set aside the verdict only if it is Aso contrary to the overwhelming weight of the evidence to be clearly wrong and unjust.@  Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).  This concept embraces both Aformulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence.@  Id. at 11.  Under this second formulation, the court essentially compares the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact.  Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  In conducting the factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Id. at 648.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997).

A person commits the offense of murder if he: (1) intentionally^[2] or knowingly ^[3] causes the death of an individual or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.  Tex. Pen.Code Ann. '' 19.02(b)(1) and (2) (Vernon 1994).  The question of intent to kill is a question of fact for the jury.  Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974).  The jury may Ainfer intent and/or knowledge from an accused=s acts, words, and conduct as well as from any facts in evidence which, to the jurors= minds, prove the existence of an intent to kill.@  Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).  The jury may also infer intent to kill from the extent of a victim=s injuries.  Id. at 487.  Moreover, it is not necessary that every fact point directly and independently to appellant=s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.  Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

Appellant argues that the evidence is insufficient to prove that he intended to cause serious bodily injury or death to his mother because (1) he testified his mother=s rifle first discharged while they were in a struggle and (2) his failure to remember the rifle firing a second shot is evidence of a lack of intent to either shoot his mother or cause her death. Appellant=s argument lacks merit.

When viewed in the light most favorable to the prosecution, the evidence clearly shows that appellant, using a deadly weapon, intended to cause serious bodily injury or death to Reedy.  See Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (holding that when a deadly weapon is used in a deadly manner, the inference is almost conclusive of the intent to kill); Flanagan v. State, 675 S.W.2d 734, 744 (Tex. Crim. App. 1984) (holding that the intent to kill may be inferred from the use of a deadly weapon); see also Stallings v. State, 476 S.W.2d, 679, 681 (Tex. Crim. App. 1972) (holding that a shotgun is a deadly weapon per se).  On the day of the incident, appellant placed a series of telephone calls to his half-sister, telling her several times that he intended to kill their mother.  Appellant made a final call to his half-sister immediately before the shooting, stating, AI am going to do it@ and Alisten to this@ as he put the telephone receiver down so that she could hear what was about to happen.  During this telephone call, appellant=s half-sister and her roommate heard appellant call to Reedy, listened as Reedy pled for her life, and then heard two distinct gunshots.  After the second gunshot, appellant picked up the receiver and told his half-sister that he was on his way to her house.  He arrived shortly thereafter but fled as soon as the police arrived.  The medical examiner=s testimony conclusively established that Reedy sustained two gunshots, the second one killing her almost instantly. The evidence showed that neither of the gunshots were from close range, which directly contradicts appellant=s story that the gun discharged while he was struggling with his mother.  Furthermore, appellant=s lack of memory regarding the second shot does not negate his intent to cause serious bodily injury or death to the complainant.

There is ample evidence in the record for a rational jury to have found beyond a reasonable doubt that appellant intentionally and knowingly caused his mother=s death or intended to cause serious bodily injury and committed an act dangerous to human life which caused her death. See Tex. Pen. Code Ann. ' 19.02(b) (Vernon 1994).  Accordingly, we conclude the evidence is legally sufficient to support appellant=s conviction for murder.

Turning now to appellant=s challenge to the factual sufficiency of the evidence, we note that the jury, as factfinder, could believe the State=s evidence and disbelieve appellant=s statements.  See Scott v. State, 934 S.W.2d 396, 399 (Tex. App.CDallas 1996, no pet.). Apparently, the jury did not believe appellant=s version of events.  Given the strength of the evidence in the record, we defer more readily to the jury=s verdict in conducting our factual sufficiency review.  See Johnson, 23 S.W.3d at 8 (holding that the degree of deference a reviewing court provides must be proportionate with the facts it can accurately glean from the trial record).  We conclude the jury=s findings were not so contrary to the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust, and thus we find the evidence is factually sufficient to support appellant=s conviction.

Having found the evidence legally and factually sufficient to support appellant=s murder conviction, we overrule appellant=s first and second points of error.

III.  Sudden Passion Instruction

In his third point of error, appellant contends the trial court erred at the punishment stage of trial in denying his request for a jury instruction on the lesser range of punishment applicable if the murder had been committed in an act of sudden passion.  See Tex. Pen. Code Ann. ' 19.02(d) (Vernon 1994).  Specifically, appellant argues his trial testimony relating to the fight with Reedy included facts sufficient to warrant submission of a Asudden passion@ issue.  A defendant who raises the issue of Asudden passion@ is entitled to a jury instruction that, if the defendant proves by a preponderance of the evidence he acted under the immediate influence of sudden passion arising from an adequate cause, the offense is a second degree felony.  See id. ' 19.02(d).  ASudden passion@ is defined as passion directly caused by and arising out of provocation, by the individual killed or another acting with the person killed, which passion arises at the time of the offense and is not solely the result of former provocation.  Id. ' 19.02(a)(2).  AAdequate cause@ is defined as a cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.  Id.  ' 19.02(a)(1). 

ASudden passion@ is no longer a guilt-innocence issue, but is a mitigating circumstance considered at the punishment phase of a murder trial.  Benavides v. State, 992 S.W.2d 511, 523 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d).  To demonstrate Asudden passion,@ appellant must produce: (1) objective evidence that the victim or someone acting with the victim directly provoked the defendant at the time of the killing; and (2) subjective evidence demonstrating that the defendant killed the victim while in an excited and agitated state of mind arising out of the direct provocation.  Lopez v. State, 716 S.W.2d 127, 129 (Tex. App.CEl Paso 1986, no pet). The defendant must produce evidence that he acted in the Athroes of actual, subjective passion.@  Id. at 129.  A bare claim of fear does not show adequate cause.  Daniels v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983).  The question is whether there was any evidence from which a rational jury could infer such passion.  Moore v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998).

Appellant points to the following examples of testimony that purportedly raised the issue of sudden passion arising from an adequate cause:

(1) his testimony at the guilt/innocence phase that Reedy was shot only after she picked up the rifle, released the safety and provoked him.  [This testimony was not introduced at the punishment phase]; and

(2) Reedy=s spouse=s testimony at the punishment phase that appellant had been subjected to a Abad family environment@ all of his life, and that Reedy was capable of provoking anger from appellant.

Appellant did not testify at punishment about his emotional state at the time of the shooting.  The record contains no evidence that would suggest appellant was emotionally charged or afraid for his life at the time of the shooting. Although there was a great deal of testimony about appellant=s anger or potential for anger, there was no testimony that appellant was in fear or was angry to the degree that he was incapable of cool reflection at the time he fired the rifle.  Moreover, the circumstances surrounding the shooting do not raise an inference that appellant was incapable of cool reflection.  There is no evidence that Reedy screamed, yelled, or provoked appellant at the time of the incident.  In fact, the evidence shows that she made a plea for her life before the first shot was fired.  After the first shot, the only statement Reedy made was an expression of love for her children.  Appellant=s actions after the shooting do not suggest he was acting out of sudden passion either.  According to the two witnesses who heard the shooting over the telephone, after the gunshots, appellant picked up the telephone and continued his conversation, telling his half-sister that he was on his way to her home.

We find no evidence raising an issue that appellant shot Reedy under the immediate influence of a sudden passion arising from an adequate cause.  Viewed favorably to appellant, the evidence does not show that he acted under the requisite immediate influence of sudden passion.  Because the issue was not raised by the evidence, the trial court did not err in denying an instruction on the law of sudden passion in the court=s charge to the jury at punishment.  Accordingly, we overrule appellant=s third point of error.

We affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Opinion filed May 16, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]  Houston Police Officer C. Abbondanolo testified on rebuttal that during his interview, appellant told the officer that after the first shot, his mother said, ADe=Marcus, please help, I love you.@

^[2]  A person acts intentionally with respect to the result of his conduct when it is his conscious objective or desire to cause the result.  Tex. Pen. Code Ann. ' 6.03(a) (Vernon 1994).

^[3]  A person acts knowingly with respect to the result of his conduct when he is aware his conduct is reasonably certain to cause the result.  Tex. Pen. Code Ann. ' 6.03(b) (Vernon 1994)