Alfred Alan Goodemote v. the State of Texas ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
Alfred Alan GOODEMOTE,
Appellant
v.
The STATE of Texas,
Appellee
From the 452nd District Court, Menard County, Texas
Trial Court Nos. 2019-02512, 2019-02513, 2020-02515
Honorable Robert Hoffman, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: June 30, 2021
AFFIRMED
Appellant Alfred Goodemote (“Goodemote”) appeals his convictions for aggravated
assault with a deadly weapon, aggravated assault against a public servant, and retaliation against
a public servant. Goodemote argues the evidence is legally insufficient to support his convictions
on all three counts. Goodemote also argues the trial court abused its discretion when it disqualified
a defense witness who violated Rule 614 of the Texas Rules of Evidence. We affirm the trial
court’s judgments.
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
BACKGROUND
In the early morning of August 20, 2019, law enforcement responded to a 911 call from
Toby Goodemote (“Toby”). Toby and Goodemote were having an argument in their home. Jacy
Overstreet, Toby’s adult daughter who was living with the Goodemotes, overheard the argument
from her room and became involved in the altercation. At some point, the exchange between
Overstreet and Goodemote became physical and escalated, and Overstreet’s head was slammed
into a rock wall inside the home.
Deputy Coy Morales with the Menard County Sheriff’s Department 1 was the first officer
to respond. When Deputy Morales arrived, he discovered Goodemote standing in a dark room by
himself with four or five knives in his hand. Deputy Morales attempted to persuade Goodemote
to put the knives down when Deputy Jose Orsonio arrived to assist Deputy Morales. Shortly
thereafter, Deputy Joseph Sevier and Deputy Connie Baker arrived at the scene to assist the other
deputies. The deputies continued to ask Goodemote to drop the knives and deescalate the situation.
At some point, Goodemote began running the blade over his body, cut his own calf, and pierced
his right foot.
The deputies agreed Goodemote was not going to comply with their requests on his own
volition and decided they would have to use a taser on Goodemote to neutralize the situation.
Deputy Sevier walked into the room and shot his taser at Goodemote. Deputy Morales testified
that only one of the taser prongs made contact and the taser did not take effect. After the first taser
did not take effect, Deputy Orsonio stepped into the room to shoot a second taser at Goodemote.
Deputy Orsonio testified Goodemote threw a knife at him when he stepped into the room. The
thrown knife missed him and he shot his taser, which made contact with Goodemote and took
1
All of the deputies that responded to this incident were with the Menard County Sheriff’s Department.
-2-
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
effect. While Goodemote was subdued from the taser, the deputies moved in and placed him under
arrest. Deputies Morales, Orsonio, and Baker testified that, during the arrest, Goodemote stated
“he knew where all the cops lived[,] and he would kill [them].”
The State charged Goodemote with aggravated assault with a deadly weapon for striking
Overstreet’s head against the rock wall, aggravated assault with a deadly weapon against a public
servant for throwing the knife at Deputy Orsonio, and retaliation against a public servant for
threatening Deputy Baker. A jury convicted Goodemote on all three counts and assessed a
punishment of ten years’ confinement for the aggravated assault against Overstreet, thirty-five
years’ confinement for the aggravated assault against a public servant, and ten years’ confinement
for the retaliation charge.
SUFFICIENCY OF THE EVIDENCE
In his first three issues, Goodemote challenges the legal sufficiency of the evidence to
support each one of his three convictions.
Standard of Review
When reviewing the sufficiency of the evidence, we consider the evidence in the light most
favorable to the verdict and determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Nisbett v. State, 552 S.W.3d 244, 262
(Tex. Crim. App. 2018) (emphasis omitted). Under this standard, “we defer to the responsibility
of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010) (quotations omitted). “Furthermore, the trier of fact may use common
sense and apply common knowledge, observation, and experience gained in ordinary affairs when
drawing inferences from the evidence.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App.
2014).
-3-
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
Aggravated Assault with a Deadly Weapon
The State charged Goodemote with aggravated assault with a deadly weapon for “striking”
Overstreet’s head into a rock wall during their altercation. The indictment notified Goodemote
that the State intended to seek an affirmative finding that the rock wall was used in a manner that
classifies it as a deadly weapon. In his first issue, Goodemote argues the evidence is insufficient
to support his conviction for aggravated assault with a deadly weapon against Overstreet.
Goodemote also contends the evidence is insufficient to support a finding that the rock wall was a
deadly weapon.
A. Aggravated Assault
A person commits the offense of assault if the person “intentionally, knowingly, or
recklessly causes bodily injury to another . . . .” TEX. PENAL CODE ANN.§ 22.01(a)(1). The
offense is elevated to aggravated assault if the person “(1) causes serious bodily injury to
another . . . ; or (2) uses or exhibits a deadly weapon during the commission of the assault.” Id.
§ 22.02(a).
Here, Overstreet testified that her argument with Goodemote escalated into a physical
altercation. Overstreet testified Goodemote put her in a headlock and, during the struggle, her
head went into the rock wall. When asked whether Goodemote caused her head to hit the wall,
Overstreet—who was compelled to testify under subpoena—initially stated she was unsure
whether Goodemote caused her head to hit the rock wall when they were struggling. But, when
asked again whether Goodemote “either intentionally or recklessly . . . caused [her] head to hit the
wall[,]” Overstreet answered in the affirmative. Overstreet testified she experienced pain when
her head hit the rock wall. The State introduced State’s Exhibits 2, 3, and 5 and all three were
admitted into evidence. Overstreet testified State’s Exhibit 2 was a picture showing the cut she
received on her head when it hit the rock wall. Overstreet testified State’s Exhibit 3 was a picture
-4-
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
showing the red marks she received on her neck from the headlock Goodemote applied on her.
Finally, Overstreet testified State’s Exhibit 5 was a picture depicting the rock wall that her head
hit during the altercation. Moreover, Deputy Morales testified Overstreet was in an excited state
when he arrived at the Goodemote residence and she told him that Goodemote had slammed her
head into the rock wall. Viewing the evidence in the light most favorable to the verdict, a rational
factfinder could have determined that Goodemote intentionally, knowingly, or recklessly caused
bodily injury to Overstreet by putting her in a headlock and causing her head to be slammed into
a rock wall.
B. Deadly Weapon
The Texas Penal Code defines a “deadly weapon” as “anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN.
§ 1.07(a)(17)(B). “Serious bodily injury” is defined as “bodily injury that creates a substantial risk
of death or that causes death, serious permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.” Id. § 1.07(a)(46). The deadly weapon definition
“is exceedingly broad in that a ‘deadly weapon’ may be ‘anything,’ and there is no limitation as to
what type of thing may be considered a deadly weapon.” Prichard v. State, 533 S.W.3d 315, 320
(Tex. Crim. App. 2017) (quoting TEX. PENAL CODE ANN. § 1.07(a)(17)(B)). Therefore, a wall may
be a deadly weapon based on its manner of use or intended use and its capacity to produce death
or serious bodily injury. See, e.g., Hopper v. State, 483 S.W.3d 235, 243 (Tex. App.—Fort Worth
2016, pet. ref’d) (Dauphinot, J., dissenting) (“A body of law has developed that appears to hold
that anything can be a deadly weapon—walls, floors, pillows, water, and body parts.”). “A deadly
weapon finding can be made even in the absence of actual harm or threat.” Prichard, 533 S.W.3d
at 320. In deciding whether an object is a deadly weapon, the jury may consider all of the facts
including the physical proximity between the alleged victim and the object, any threats or words
-5-
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
used by the accused, the size and shape of the object, testimony about the weapon’s potential to
cause death or serious bodily injury, and the manner in which the object was used. Kennedy v.
State, 402 S.W.3d 796, 802 (Tex. App.—Fort Worth 2013, pet. ref’d) (citing Brown v. State, 716
S.W.2d 939, 946–47 (Tex. Crim. App. 1986)). “No one factor is determinative, and each case
must be examined on its own facts.” Bailey v. State, 46 S.W.3d 487, 491–92 (Tex. App.—Corpus
Christi-Edinburg 2001, pet. ref’d) (citing Brown, 716 S.W.2d at 946–47).
As mentioned above, the jury heard testimony that the rock wall was used by Goodemote
to slam Overstreet’s head into it. The jury was shown State’s Exhibit 5, depicting the rock wall,
so they may consider whether the rock wall was capable of causing death or serious bodily injury.
The jury was also shown pictures of Overstreet’s injuries resulting from the headlock and her head
being slammed into the rock wall. After testifying a deadly weapon was anything capable of
causing death or serious bodily injury, Deputy Morales testified the rock wall could be a deadly
weapon. The jury was free to draw reasonable inferences from these basic facts to form an ultimate
conclusion that the rock wall was used in a manner that rendered it a deadly weapon. See Isassi,
330 S.W.3d at 638 (holding a reviewing court defers to the factfinder’s drawing of reasonable
inferences from basic facts to ultimate facts in a legal sufficiency review); see also Acosta, 429
S.W.3d at 625 (“[T]he trier of fact may use common sense and apply common knowledge,
observation, and experience gained in ordinary affairs when drawing inferences from the
evidence.”). Viewing the evidence in the light most favorable to the verdict, we conclude a rational
jury could have determined the rock wall is a deadly weapon in this case because it is capable of
causing serious bodily injury when someone strikes a person’s head into it. Therefore, we hold
the evidence in this case is sufficient to sustain Goodemote’s conviction for aggravated assault
with a deadly weapon against Overstreet. Accordingly, we overrule Goodemote’s first issue.
-6-
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
Aggravated Assault Against a Public Servant
The State charged Goodemote with aggravated assault against a public servant for throwing
a knife at Deputy Orsonio when he stepped into the room to fire his taser at Goodemote. The
indictment notified Goodemote that the State intended to seek an affirmative finding that the knife
was used in a manner that classifies it as a deadly weapon and that Deputy Orsonio was a public
servant lawfully discharging his official duty when Goodemote threw the knife at him. In his
second issue, Goodemote argues the evidence is insufficient to support his conviction for
aggravated assault against Deputy Orsonio. Goodemote also argues the evidence is insufficient to
support a finding that the knife was a deadly weapon. 2
“Ordinarily, to sustain a conviction for aggravated assault of a public servant the evidence
must demonstrate that:” (1) “the person intentionally or knowingly threatened another with
imminent bodily injury,” (2) “the person used or exhibited a deadly weapon during the commission
of the assault, and” (3) “the offense was committed against a person the actor knew was a public
servant while the public servant was lawfully discharging an official duty.” Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007); see also TEX. PENAL CODE ANN. § 22.01(a)(2), 22.02(a)(2),
(b)(2)(B).
“[A] knife is not a deadly weapon per se . . . .” Rivera v. State, 271 S.W.3d 301, 304 (Tex.
App.—San Antonio 2008, no pet.). However, a knife can qualify as a deadly weapon “through
the manner of its use, its size and shape[,] and its capacity to produce death or serious bodily
injury.” Id. “But if a knife did not cause serious bodily injury or death, to qualify as a deadly
weapon the evidence must prove ‘the actor intended a use of the knife in which it would be capable
of causing death or causing serious bodily injury.’” Id. (alterations omitted) (emphasis in original)
2
Goodemote does not contest Deputy Orsonio’s status as a public servant in his brief; therefore, we do not address
that element here.
-7-
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
(quoting McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000)). “[W]hether a particular
knife is a deadly weapon depends upon the evidence.” Rivera, 271 S.W.3d at 305. “The State
may establish the knife was capable of causing death or serious bodily injury through witnesses’
descriptions of the knife’s size, shape, and sharpness; testimony of the knife’s life-threatening
capabilities; the manner in which the knife was used; the words spoken by the defendant; the
physical proximity between the victim and the knife; and the nature of any wounds caused by the
knife.” Id. at 304.
Here, Deputy Orsonio testified Goodemote threw a knife at him when he stepped into the
room to fire the taser at Goodemote. Although Deputy Orsonio was not able to identify the exact
knife that was thrown at him—because “[t]he incident happened quick” and Goodemote held five
different knives in his hand prior to the throw—Deputy Orsonio did testify that it was one of the
two larger knives held in Goodemote’s right hand. State’s Exhibit 6, depicting three small knives
and two larger knives, was admitted into evidence and published to the jury. All five knives were
also admitted into evidence so the jury could assess the size, shape, and sharpness of the two larger
knives to determine whether they were capable of causing death or serious bodily injury. Deputy
Morales testified Goodemote was “very angry” and “very agitated.” Deputy Morales further
testified that all five knives held by Goodemote were capable of causing death or serious bodily
injury and were, therefore, deadly weapons. Defense counsel argued in closing that the knife left
Goodemote’s hand involuntarily after he was tased, but Deputy Orsonio testified Goodemote
purposefully threw the knife at him like a dart. Deputy Sevier, who fired the first taser and was in
the room with Deputy Orsonio, testified he saw Goodemote throw the knife at Deputy Orsonio.
Deputy Sevier further testified he believed Goodemote purposefully threw the knife at Deputy
Orsonio and Deputy Orsonio had to dodge the knife to avoid being struck by it.
-8-
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
Based on this evidence, a rational factfinder could have found beyond a reasonable doubt
that Goodemote used either one of the larger knives in a way that would be capable of causing
serious bodily injury. Further, when we view the evidence in the light most favorable to the
verdict, we conclude a rational jury could have found Goodemote intentionally or knowingly
threatened Deputy Orsonio with imminent bodily injury by throwing a knife at him while he was
discharging his official duty as a Menard County Sheriff’s Deputy. Therefore, we hold the
evidence in this case is sufficient to sustain Goodemote’s conviction for aggravated assault against
a public servant. Accordingly, we overrule Goodemote’s second issue.
Retaliation Against a Public Servant
In his third issue, Goodemote contends the evidence is insufficient to support his conviction
for retaliation against a public servant under Subsection 36.06(c) of the Texas Penal Code.
Goodemote argues Subsection 36.06(c) of the Texas Penal Code only pertains to victims that are
jurors, or when the retaliation resulted in injury to a public servant or a member of her family.
Goodemote’s argument follows that the evidence is legally insufficient to support a conviction
under this statute because neither situation occurred in this case. However, Goodemote’s
arguments are without merit. Subsection 36.06(c) simply designates retaliation as a third-degree
felony and enhances the crime to a second-degree felony if the retaliation was against a juror or
the retaliation resulted in an injury to a public servant or a member of the public servant’s family.
TEX. PENAL CODE ANN. § 36.06(c). Here, the State indicted Goodemote under Subsection
36.06(a)(1) of the Texas Penal Code, not Subsection 36.06(c). Subsection 36.06(a)(1) states: “A
person commits an offense if the person intentionally or knowingly harms or threatens to harm
another by an unlawful act[] in retaliation for or on account of the service or status of another as
a[] public servant . . . .” Id. § 36.06(a)(1)(A). The State’s indictment charged Goodemote as
follows:
-9-
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
ALFRED ALAN GOODEMOTE, hereafter styled the Defendant, heretofore on or about
August 20, 2019, did then and there intentionally or knowingly threaten to harm another, to-wit:
Connie Baker, by an unlawful act, to-wit: threaten to kill the said Connie Baker, in retaliation for
or on account of the status of Connie Baker as a public servant, to-wit: a Menard County Sheriff’s
Deputy.
Because Goodemote was charged and convicted of the third-degree felony of retaliation under
Subsection 36.06(a)(1), Goodemote’s sufficiency arguments under Subsection 36.06(c) are
inapplicable.
“A person commits the felony offense of retaliation if he intentionally or knowingly harms
or threatens to harm another by an unlawful act in retaliation for the service or status of another as
a public servant . . . .” Cada v. State, 334 S.W.3d 766, 770 (Tex. Crim. App. 2011); see also Doyle
v. State, 661 S.W.2d 726, 727–29 (Tex. Crim. App. 1983) (holding evidence was sufficient to
convict defendant for the offense of retaliation under Section 36.06 where defendant verbally
threatened to kill a judge); Rudolph v. State, 70 S.W.3d 177, 179 (Tex. App.—San Antonio 2001,
no pet.) (affirming conviction for retaliation where defendant verbally threatened to kill a
prospective witness); Helleson v. State, 5 S.W.3d 393, 394–95 (Tex. App.—Fort Worth 1999, pet.
ref’d) (determining evidence that defendant verbally threatened to kill police officer was sufficient
to convict defendant for the offense of retaliation under Section 36.06). The State had the burden
to prove beyond a reasonable doubt that Goodemote intentionally or knowingly threatened to kill
Deputy Baker in retaliation for, or on account of, her service or status as a public servant. Cada,
334 S.W.3d at 770.
Here, Deputy Morales testified Goodemote was resisting arrest as the deputies were trying
to put handcuffs on him, and—during the struggle—Goodemote said to the deputies: “I know
where all of y’all live, and I’m going to come kill y’all.” Deputy Orsonio corroborated Deputy
Morales’s testimony. Deputy Orsonio testified, “after [Goodemote] was subdued and placed in
handcuffs, he [said] he knew where all the cops lived and he would kill us.” Deputy Baker testified
- 10 -
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
she heard Goodemote say, “I know where you—all you cops live, and I’m going to kill you all.”
Deputy Baker further testified that she took the threat seriously because Goodemote “has a history
of assaultive nature” and Goodemote likely did know where Deputy Baker lived. There was no
evidence presented at trial that controverted the deputies’ testimony regarding Goodemote’s
statement. Finally, Deputy Baker also testified that she was a Menard County Sheriff’s Deputy—
a public servant—on August 20, 2019, and still holds that position.
The jury was entitled to believe the deputies’ testimony, which was consistent in all
important respects. Based on this evidence, a rational factfinder could have found that
Goodemote’s statement was a threat to harm Deputy Baker. Further, the jury heard testimony that
Goodemote aimed this threat directly to the “cops.” A rational jury could have drawn the
reasonable inference that the threat was made to the “cops” in retaliation for or on account of
Deputy Baker’s service as a public servant. Viewing the evidence in the light most favorable to
the verdict, we conclude a rational factfinder could have found the essential elements of retaliation
under Subsection 36.06(a)(1) beyond a reasonable doubt. See TEX. PENAL CODE 36.06(a)(1); see
also Nisbett, 552 S.W.3d at 262. Therefore, we conclude the evidence in this case is sufficient to
support Goodemote’s conviction for retaliation. Accordingly, we overrule Goodemote’s third
issue.
DISQUALIFICATION OF A DEFENSE WITNESS
In his fourth issue, Goodemote alleges the trial court abused its discretion when it
disqualified his wife, Toby, from being a witness because she violated Rule 614 of the Texas Rules
of Evidence (the “Rule”). The Rule provides for the exclusion of witnesses from the courtroom
during trial. See TEX. R. EVID. 614. “The purpose of the Rule is to prevent corroboration,
contradiction, and the influencing of witnesses.” Jimenez v. State, 307 S.W.3d 325, 334 (Tex.
App.—San Antonio 2009, pet. ref’d). “When the Rule is invoked, a witness should not hear
- 11 -
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
testimony in the case or talk to any other person about the case without the court’s permission.”
Id. “[T]he court’s decision regarding a witness who has violated the Rule is discretionary.” Id.“[W]hen the Rule is violated, the trial court may, taking into consideration all of the circumstances,
allow the testimony of the potential witness, exclude the testimony, or hold the violator in
contempt.” Id.When the trial court decides to exclude a defense witness for violating the Rule, we apply
the following analysis:
(1) [I]f the [R]ule was violated and the witness disqualified, were there particular
circumstances, other than the mere fact of the violation, which would tend to show
the defendant or his counsel consented, procured or otherwise had knowledge of
the witness’s presence in the courtroom, together with knowledge of the content of
that witness’s testimony; and (2) if no particular circumstances existed to justify
disqualification, was the excluded testimony crucial to the defense.
Webb v. State, 766 S.W.2d 236, 244–45 (Tex. Crim. App. 1989); see also Jimenez, 307 S.W.3d at334–35 (applying Webb analysis when trial court disqualified witness for discussing case with
defendant prior to testimony); Brumbelow v. State, 10 S.W.3d 685, 687–88 (Tex. App.—Tyler
1994, pet. ref’d) (undergoing Webb analysis when violation of the Rule was due to two witnesses
discussing the case outside of court). We review the trial court’s ruling to disqualify a defense
witness for an abuse of discretion. Webb, 766 S.W.2d at 244.
Here, the Rule was invoked before opening statements and the trial court admonished the
witnesses, including Toby, that they “may not be present in the courtroom while testimony is being
taken” and “must not speak . . . with any other person” about the case except the attorneys
involved. The trial was conducted over two days, and the State presented all its witnesses on the
first day of trial. On the second day of trial, the State presented the trial court with an audio
recording of a jailhouse call between Goodemote and Toby where they were discussing details of
the testimony presented the day before. Specifically, Toby and Goodemote discussed details about
- 12 -
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
Overstreet’s testimony and each of the deputies’ testimony. It is apparent from the recording,
which was admitted into evidence, that Toby had already discussed the case with Overstreet and
Goodemote’s father. Overstreet was one of the State’s witnesses who was also under the Rule,
and Goodemote and his father were present during the State’s case in chief the day before.
Goodemote also told Toby several times not to forget to mention the “noose” when she testifies.
The State objected to Toby’s appearance as a witness because she “flagrantly” violated the Rule
by speaking with Goodemote, Goodemote’s father, and Overstreet about the case. After hearing
arguments, and considering other alternatives to disqualifying the witness, the trial court sustained
the State’s objection and disqualified Toby from testifying in the guilt/innocence phase of the
trial. 3
The trial court acknowledged Goodemote and Toby were both aware of Toby’s obligations
under the Rule and Toby affirmed her understanding of her obligations when questioned by the
trial court. Even though Toby knew the Rule precluded her from speaking to anyone about the
trial, she discussed the case with Goodemote, Overstreet, and Goodemote’s father. Toby clearly
and knowingly violated the Rule by speaking with these people about the trial.
In sum, “particular circumstances” existed, other than the mere fact of the violation, to
justify Toby’s disqualification as a witness. Goodemote consented, procured, and had knowledge
that Toby was violating the Rule. Goodemote knew Toby was under the Rule but called Toby to
discuss the case and was, therefore, a crucial proponent to Toby’s violation of the Rule. Moreover,
Goodemote instructed Toby that she should discuss the “noose” in her testimony. Therefore, the
trial court did not abuse its discretion by disqualifying Toby as a witness because Goodemote
consented to or procured Toby’s violation of the Rule. See Jimenez, 307 S.W.3d at 334–35
3
Toby was permitted to testify at the punishment phase of the trial.
- 13 -
04-20-00209-CR, 04-20-00210-CR, 04-20-00211-CR
(holding defense witness was properly excluded when the State presented a recording of the
defendant and witness discussing the trial while the Rule was invoked). Accordingly, we overrule
Goodemote’s fourth issue.
CONCLUSION
The judgments of the trial court are affirmed.
Irene Rios, Justice
DO NOT PUBLISH
- 14 -