Ronny Howard Moore v. State

Opinion issued December 16, 2010.

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-01018-CR

RONNY HOWARD MOORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1186868

MEMORANDUM OPINION

          A jury convicted Ronny Howard Moore of the first-degree felony offense of murder and, after finding the allegations in two enhancement paragraphs true, assessed punishment at forty-five years’ confinement. See Tex. Penal Code Ann. §19.02(b) (Vernon 2003).  On appeal, Moore contends that the State failed to present legally and factually sufficient evidence that he (1) caused the death of his girlfriend, Portia Hosea, and (2) possessed the requisite culpable mental state to support a murder conviction.  We hold that the State presented legally and factually sufficient evidence of both elements, and therefore affirm.

Background

On October 25, 2007, Harris County Deputy Constable Oliver went to Moore’s house to serve a writ of possession in an eviction proceeding.  When he arrived, Oliver noticed that the mailbox was full, and nobody answered the door when he knocked.  Oliver discovered an unlocked window at the back of the house.  When he raised it, he immediately noticed an overwhelming smell that “smelled like something dead.”  Oliver looked inside the window and saw a bed with a pillow and head of hair lying on the bed.  After no one responded in the house when he identified himself, he called the Houston Police Department (“HPD”) dispatch.

HPD Homicide Crime Scene Unit Officer Verbitskey and Homicide Detective Miller both testified that the house looked abandoned and was in “deplorable” condition, with no electricity, and water soaking the floor.  Inside the house, HPD investigators discovered a “severely decomposed” body on a bed in the living room, covered in maggots and at least two generations of flies.  According to Detective Miller, the decomposition was so severe that he could not readily determine the identity or the sex of the deceased.  Dr. Paul Stimson, chief dental consultant for the Harris County Medical Examiner’s Office, later matched radiographs of the deceased’s teeth to the dental records of Portia Hosea, Moore’s girlfriend. Me-Sheila Duncan, Portia’s daughter, testified that she last saw her mother at Moore’s house in late September.

Larry Williams, a local real estate agent, sold the house to Moore’s mother in 2006.  In the year before Portia’s death, Williams became good friends with Moore and acquainted with Portia, who also lived at the house.   Williams testified that on October 7, 2007, he received two phone calls from Moore.  In the first call, which lasted about a minute, Moore asked Williams for his mother’s phone number.  Moore stated that he was currently at the bus station and, according to Williams, Moore seemed nervous, anxious, and panicked, and he expressed remorse. Shortly thereafter, Moore called back, and he and Williams had the following exchange:

Moore:        Man, I really do need Mama’s telephone number because I think I done messed up.

Williams:    You think you done messed up?

Moore:        Yes, I think I might have killed somebody. 

Williams did not get a chance to ask about any details, but he testified that he was worried about Portia, so he immediately went to Moore’s house after the phone call.  Williams knocked on the front door and did not receive a response.  His attempt to enter the house proved unsuccessful, so he called HPD and later contacted Missing Persons, but was unable to get the authorities involved.   

After the police discovered Portia’s body on October 25, Williams gave a statement to Detective Miller.  On November 4, Williams received a third phone call from Moore, who asked Williams to go to his house and pick up his social security check.  Williams informed Detective Miller of this conversation, and on December 4 HPD later arrested Moore at a social security office. 

          The trial court admitted an audio recording of Moore’s statement, given in an interview with Detective Miller after his arrest. Miller stated that, during the interview, Moore appeared “sort of resigned, somber, not aggressive, not standoffish, sort of matter of fact[].”  In the statement, Moore explained that he and Portia lived together for about four or five months before her death, and they had talked about getting married.  On the night of the murder, Portia was upset that he had been drinking and wanted to go buy more beer, so while Moore was in the bathroom, she hid his money in her purse.  When Moore grabbed her purse to retrieve his money, Portia hit him “upside the head” with a can of beer.  Moore became angry and started hitting Portia all over her body.  Portia tried to fight back, but Moore stated that the more she fought back, the “angrier [he] would get and the more [he] would hit.”

During the “tussling and fighting,” Portia fell and hit the bed frame, which extended past the mattress.  At this point, Portia stopped fighting back and, although she was still conscious and able to talk, she said that she could not move.  Moore could tell that she “was really hurt” so he helped her into the bed. Portia stopped yelling and talking, went to sleep, and started “breathing funny.”  Later, Moore did not hear Portia breathing, so he checked her eyes and her pulse and started shaking her.  Moore noticed blood on the mattress, and he used a towel to wipe Portia’s face to clean off the blood, but he never determined from where the blood came. He started to gather “that bloody stuff up to throw it away,” but he instead left the bloody towel and sheets on the bed.  Moore “laid there with [Portia] all night, hoping she’d shake, come up out of it.” Moore admitted that he called Williams two or three days later and told him that he thought he killed somebody.

Dr. Jennifer Love, a forensic anthropologist with the Harris County Medical Examiner’s Office, testified that, during the autopsy, the forensic pathologist noticed multiple rib fractures and called Love to reconstruct the ribs and interpret the fracture pattern.  Love found that Portia had twenty-three total rib fractures, as well as internal trauma to the sternum.  Love discovered a complex fracture pattern, consistent with receiving at least three blows from a broad object, such as a foot, knee, or a large fist. Love stated that, because not every blow breaks or fractures bones, she could not determine a maximum number of blows that Portia received.  Love also testified that this number of fractures would be caused by “significant force,” and she did not find any previous or “healing” fractures.  In Love’s opinion, the fractures probably occurred at the same time, because the force caused the ribs to bend in the same direction.  According to Love, the fracture pattern was not consistent with a fall, which would generally cause a localized, linear fracture and not the complex fracture pattern Love discovered in Portia’s ribs.

Assistant Harris County Medical Examiner Dr. Mary Anzalone testified that, although she could not determine the exact time of death, the autopsy findings were consistent with a date of death in early October.  In conducting the autopsy, Anzalone found evidence of a head injury, but Portia did not have any skull fractures or bleeding inside the brain, so the head injury was not fatal.  Anzalone also found soft tissue injuries on Portia’s torso, in the same area as her rib fractures.  Anzalone classified the injuries as blunt force injury, caused by an unknown object and in a manner clearly dangerous to human life.  Anzalone testified that Portia died from respiratory decomposition, which could have been caused by either (1) the rib fractures tearing the pleura lining over the bones, which would compress the lungs and impair Portia’s ability to breathe, or (2) the rib fractures causing substantial pain when Portia tried to breathe, which would impair respiratory efforts.  According to Anzalone, anything that impairs a person’s ability to fully breathe in could cause respiratory decomposition, which would then lead to organ and tissue death.  Essentially, Portia slowly suffocated.  Anzalone noted that Portia likely did not die immediately, and medical intervention may have saved her life.  Anzalone opined that the extent of Portia’s injuries implied intent to do harm, and she officially ruled Portia’s cause of death as “blunt force injury with extensive bilateral rib fractures” and the manner of death as homicide. 

Discussion

Standard of Review

Moore contends that the State failed to present legally and factually sufficient evidence that he (1) possessed the requisite culpable mental state for murder, and (2) caused Portia’s death.  An appellate court reviews both legal and factual sufficiency challenges using the same standard of review.  Brooks v. State, PD-0210-09, 2010 WL 3894613, at *14, 21–22 (Tex. Crim. App. Oct. 6, 2010); Ervin v. State, No. 01-10-00054-CR, 2010 WL 4619329, at *2–4 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet. h.) (construing majority holding in Brooks).  Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances:  (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt.  See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11, 2789; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.  An appellate court presumes that the fact finder resolved any conflicting inferences in favor of the verdict and defers to that resolution.  See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  An appellate court may not re-evaluate the weight and credibility of the record evidence and thereby substitute its own judgment for that of the fact finder.  Williams, 235 S.W.3d at 750.

Culpable Mental State

          Based on the indictment, the State had to prove that Moore (1) intentionally or knowingly caused Portia’s death by striking her with a deadly weapon, either a hand or an unknown object, or (2) intended to cause serious bodily injury to Portia and caused her death by striking her with a deadly weapon, either a hand or an unknown object.  See Tex. Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2003).  When the indictment and charge authorize the jury to convict on more than one theory, we uphold the guilty verdict if the evidence is sufficient on any one of the theories.  Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).  A person acts intentionally with respect to the nature of his conduct or a result of his conduct when “it is his conscious objective or desire to engage in the conduct or cause the result.”  Tex. Penal Code Ann. § 6.03(a) (Vernon 2003).  A person acts knowingly “with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist,” or if he “is aware that his conduct is reasonably certain to cause the result.”  Id. § 6.03(b).  Intent or knowledge is a fact question to be determined from the totality of the circumstances.  Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998); Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003) (“[I]n homicide prosecutions, the defendant’s state of mind is a question of fact that must be determined by the jury.”).  A jury may infer intent to kill from the use of a deadly weapon.  Brown, 122 S.W.3d at 800.  The jury may also infer intent to cause serious bodily injury from “the acts and words of the defendant, the manner in which the offense was committed, the nature of the wounds inflicted, and the relative size and strength of the parties.” Nickerson v. State, 69 S.W.3d 661, 667 (Tex. App.—Waco 2002, pet. ref’d) (citing Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995)); see also Payne v. State, 194 S.W.3d 689, 694 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).  The Penal Code defines “serious bodily injury” 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.”  Tex. Penal Code Ann. § 1.07(a)(46) (Vernon 2003).

          A deadly weapon is anything “that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17).  A defendant’s hands are not deadly weapons per se, and they “‘can become such only in the manner used depending upon the evidence shown.’” Slaton v. State, 685 S.W.2d 773, 775-76 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d) (quoting Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983)).  If the State alleges the use of a deadly weapon which is not deadly per se, it must prove beyond a reasonable doubt that the defendant used the weapon in a manner capable of causing death or serious bodily injury.  Jefferson v. State, 974 S.W.2d 887, 892 (Tex. App.—Austin 1998, no pet.).  Here, Moore acknowledges that the State presented evidence that he beat Portia with his fists, and he does not contend that he used his fists in a manner incapable of causing death or serious bodily injury. See Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (“[A]nything . . . which is actually used to cause the death of a human being is a deadly weapon.  This is necessarily so because a thing which actually causes death is, by definition, ‘capable of causing death.’”).  Rather, he contends on appeal that the State failed to prove the requisite criminal intent.

Intent

          Moore notes several cases that stand for the proposition that a defendant may use a deadly weapon, but the facts of the particular case may nonetheless rebut the presumption of intent to kill.  See, e.g., Foster v. State, 639 S.W.2d 691, 694-95 (Tex. Crim. App. 1982) (holding evidence insufficient to establish intentionally or knowingly when evidence presented that defendant and deceased were in a loving relationship, gun was defective, defendant immediately called for medical assistance, and defendant appeared distraught).  In this case, the State indicted Moore under two different subsections of section 19.02(b):  (1) subsection 19.02(b)(1), which requires the State to prove that Moore intentionally or knowingly caused Portia’s death, and (2) subsection 19.02(b)(2), which requires the State to prove that Moore intended to cause serious bodily injury to Portia.  See Tex. Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2003). The State was not required to prove an intent to kill under the second subsection, but instead must prove an intent to cause serious bodily injury.  See Medina v. State, 7 S.W.3d 633, 638 n.4 (Tex. Crim. App. 1999); Ortiz v. State, 651 S.W.2d 764, 767 (Tex. Crim. App. 1983) (In a prosecution under section 19.02(b)(2), an intent to kill is not required.).

          In similar cases, courts have found sufficient evidence of intent.  In West v. State, for example, the Beaumont Court of Appeals upheld a section 19.02(b)(2) conviction, although West testified that he did not intend to seriously injure his wife, but admitted that he slapped her two or three times across the mouth with his open hand and he forced her onto a bed by her neck.  846 S.W.2d 912, 914–15 (Tex. App.—Beaumont 1993, pet. ref’d).  The Dallas Court of Appeals reached a similar conclusion in Brown v. State.  704 S.W.2d 506, 507–08 (Tex. App.—Dallas 1986, pet. ref’d).  Brown, who was over a foot taller and approximately ninety to one hundred pounds heavier than the victim, admitted “to striking the deceased several times, knocking her to the floor, and then dragging her into the closet.”  Id. at 507.  The Dallas Court held that, considering the extent of the victim’s injuries and the “relative size and strength of the parties,” a rational jury could have found intent beyond a reasonable doubt.  Id. at 507–08.

In his statement after arrest, Moore admitted that he became angry with Portia and then hit her all over her body.  Every time she tried to fight back, “the angrier [Moore] would get and the more [he] would hit.”  Moore stopped hitting Portia only after she fell and hit the bed frame and told him that she could not move.  According to Moore, he then said “Man, go on get up in the bed, go on.  Get up in the bed.  You just trying to . . . you want to talk[,] you want to stop now you see I’m up on your ass.  Get on, get up in that bed.  And go to sleep.”  Although Moore could tell that Portia was in serious pain and having difficulty breathing, and she ultimately stopped breathing while Moore was present, he did not seek medical assistance.

          Dr. Love testified that Portia had twenty-three distinct rib fractures, consistent with receiving, at a minimum, three forceful blows from a broad object, such as a foot, knee, or large fist.  The complexity of the fracture pattern was inconsistent with her fall onto the bed frame as the cause of her injuries.  Love opined that “significant” force, “above your normal, everyday interaction,” caused this number of fractures.

Moore observes that he hit Portia in response to her throwing a beer can at him and continued to hit her because she fought back.  Although Moore may have been motivated to hit Portia because she threw a beer can at him, Moore confessed that he hit Portia numerous times, hit her even more when she fought back, and continued hitting her until she fell down and told him that she could not move.  We hold that, based upon Moore’s statement and the physical evidence of Portia’s extensive injuries, a rational jury could have found beyond a reasonable doubt that Moore intended to cause serious bodily injury to Portia; therefore, legally and factually sufficient evidence supports the jury’s determination that Moore possessed the requisite culpable mental state. See Brooks, 2010 WL 3894613, at *14, 21–22; Ervin, 2010 WL 4619329 at *2–4.

Causation

          Moore further contends that the State failed to present legally and factually sufficient evidence that he caused Portia’s death.  A person is criminally responsible if “the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”  Tex. Penal Code Ann. § 6.04(a) (Vernon 2003).  The State must establish a “but for causal connection” between the defendant’s conduct and the resulting harm.  Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986); see also Williams v. State, 235 S.W.3d 742, 755 (Tex. Crim. App. 2007) (noting that defendant’s conduct must be a direct cause of the harm suffered).  If the evidence presented at trial “leaves uncertain the means used or the precise cause of the death of the deceased but creates no doubt that the deceased was killed by the acts of the accused,” then the State has sufficiently proved causation.  See Reeves v. State, 969 S.W.2d 471, 479 (Tex. App.—Waco 1998, pet. ref’d) (citing Clark v. State, 208 S.W.2d 637, 638 (Tex. Crim. App. 1948)).

          Although Dr. Anzalone could not pinpoint an exact date of death due to the advanced decomposition of the body, she reported that the stage of decomposition was consistent with a date of death in early October, around the time that Moore called Williams.  The autopsy revealed a bruise on Portia’s scalp, likely caused by her falling onto the bed frame; however, Dr. Anzalone testified that Portia had no skull fractures, no bleeding in her brain, and the scalp bruise was not fatal.  Dr. Love testified that Portia had twenty-three distinct rib fractures, consistent with receiving at least three blows from a broad object, such as a foot, knee, or wide fist.  According to Love, a fall onto the bed frame would probably not cause the complex fracture pattern that Portia’s ribs exhibited.  Love determined that Portia had no “healing” fractures, and a “significant” amount of force was needed to cause the number of fractures Portia had.

          Moore responds that, although Anzalone testified that Portia suffered respiratory decomposition and suffocated, she also admitted that this was one of “several possibilities” regarding the mechanism of death, and therefore her testimony on causation was speculative.  In the official autopsy report, Anzalone stated that Portia died from a blunt force injury with extensive bilateral rib fractures. In Anzalone’s opinion, Portia died of respiratory decomposition, although she did give two possibilities for the precise mechanism of death:  (1) the rib fractures tore the pleura lining of the rib cage, which compressed the lungs and impaired Portia’s ability to breathe, or (2) the multiple rib fractures caused substantial pain when breathing, which also impaired respiratory efforts.  In both of these circumstances, it was the extensive rib fractures that impaired her breathing, and lead to suffocation.  It is unnecessary for the circumstances to exclude every feasible hypothesis, if a cause of death can be determined with reasonable medical certainty. See Turro v. State, 950 S.W.2d 390, 397 (Tex. App.—Fort Worth 1997, pet. ref’d) (citing Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983)).

The evidence presented at trial supports a finding that Portia suffocated after Moore’s blows caused twenty-three rib fractures.  We hold that a rational jury could have found beyond a reasonable doubt that Moore caused Portia’s death; therefore, legally and factually sufficient evidence supports the jury’s finding that Moore’s conduct caused Portia’s death.  See Brooks, 2010 WL 3894613 at *14, 21–22; Ervin, 2010 WL 4619329 at *2–4.

Conclusion

We hold that the State presented legally and factually sufficient evidence that Moore (1) possessed the requisite culpable mental state, and (2) caused the death of Portia Hosea.  We therefore affirm the judgment of the trial court.

                                                Jane Bland

                                                          Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).