Otha James v. The State of Texas--Appeal from 71st District Court of Harrison County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00156-CR

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OTHA JAMES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No. 03-0356X

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

Otha James appeals his conviction by jury trial for attempted murder. After the jury found him guilty, James pled true to having previously been convicted of a felony, and the jury assessed punishment at eighty years' imprisonment. The trial court sentenced James consistent with the jury's assessment. On appeal, James argues the evidence is legally and factually insufficient. In addition, James argues the sentence of eighty years is illegal and violated James' due process and due course of law rights because the State failed to provide adequate notice of the enhancement allegation. We affirm the judgment of the trial court.

On the evening of February 14, 2003, James stopped a vehicle passing in front of his girlfriend's residence and asked its occupants to call an ambulance because according to him his girlfriend, Maudie Couch, had just attempted suicide. When the police and the emergency crew arrived, they found Couch unconscious with a gunshot wound to the forehead. A .22 caliber rifle was found lying on Couch's hand. The police investigation developed forensic evidence inconsistent with the suicide theory. When Couch regained consciousness several days later, she informed the police that she did not attempt to commit suicide and that James shot her. At trial, Couch testified that she saw James approaching the closet where the gun was located and that she saw him with a gun, but did not remember anything further until she woke up in the hospital. A jury found James guilty of attempted murder.

1) The Evidence is Legally Sufficient

In his first point of error, James contends the evidence is legally insufficient to support the jury's verdict. According to James, a rational juror could not have found him guilty beyond a reasonable doubt because the State did not directly prove he shot Couch. Couch did not testify at trial that she saw James shoot her, James' fingerprints were not found on the gun, and the gunshot residue test was inconclusive. However, when viewed in a light most favorable to the prosecution, a rational juror could have found James guilty beyond a reasonable doubt.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

The State introduced a substantial amount of evidence to dispute the theory that Couch attempted suicide. Couch denied attempting suicide, and the forensic evidence indicated the wound was not the result of a suicide attempt. Couch testified she had no intention of killing herself. The forensic evidence established that Couch could not reach the trigger of the rifle when placed against her forehead the location of the wound and there was no evidence of "blow-back" or powder burns, which would have been found with a close-contact wound.

The investigators concluded that Couch, due to her small size, could not have attempted to commit suicide with the .22 caliber rifle that caused her wound. Detective Chris Jones, a detective with the Marshall Police Department at the time of the offense, testified that the reach of the rifle was twenty-six and one-half inches and that Couch's maximum reach was "right at 26 inches." Jones testified Couch could not reach the trigger of the gun when the muzzle was placed against her forehead in the manner described by James. A video reconstruction of Couch attempting to reach the trigger was introduced into evidence.

If the wound was self-inflicted, there should have been "blow-back" and powder burns, but neither was found by the investigators. Reid McCain, a sergeant with the Crime Scene Unit of the Marshall Police Department, testified that, if Couch had attempted suicide with the rifle, the wound necessarily would have been a close-contact wound. Wade Thomas, a criminalist with the Texas Department of Public Safety, testified that, when a weapon is discharged within six inches of the wound, it is expected that stippling or powder burns will be present. Dr. John McWilliams, who was board certified in emergency medicine and had worked over 100 gunshot wounds, testified there was no soot, stippling, or any kind of powder burns around the gunshot wound. Further, there was no evidence of "blow-back," which was inconsistent with a close-contact wound. Thomas explained there is a vacuum in a gun after it is discharged, which will pull blood back into the barrel, known as "blow-back," when a person is shot at close range. Tests conducted by Thomas detected no "blow-back" in the gun barrel. McCain testified he observed no evidence of "blow-back." Viewed in a light most favorable to the prosecution, a rational juror could have rejected the theory that Couch attempted suicide.

McCain and Jones both testified that, when they interviewed Couch in the hospital, she told them James shot her. At trial, Couch admitted she had given a written statement in which she said she did not remember what happened after James approached the closet where the rifle was located. Her testimony at trial was that James opened the closet where the gun was located and the next thing she remembered was being at the hospital. She later said she saw James "having a gun in his hand stepping out of the closet." Even though Couch's testimony was inconsistent, the State presented sufficient circumstantial evidence for the jury to conclude beyond a reasonable doubt that James was the person who shot Couch. Couch testified that she did not attempt suicide, that she and James were fighting, and that she last saw James next to the closet where the rifle was kept.

Couch testified she had told James he needed to find a job before February 14 or she would no longer allow him to live with her. According to Couch, James had threatened to kill her if she ever tried to "kick him out of the house." Couch testified that she and James had been arguing and that James went to the closet where the rifle was kept. Although Couch stated at one point she did not remember what happened after James approached the closet, she testified she did not shoot herself. In addition, Couch testified she and James were the only persons present in the residence.

Several other witnesses corroborated parts of Couch's story. Mary Smith, Couch's daughter, testified James had threatened several times to kill Couch if she ever left him. Smith testified she had visited Couch earlier that night to ask Couch to go to a club with her and a friend. According to Smith, Couch told her "she couldn't go because she was waiting for Otha James to come back so he could get his clothes and leave." Teresa Torres, who was visiting relatives who live close to Couch and had only met Couch that evening, testified that Couch told her she was going to have to ask James to leave.

Viewed in a light most favorable to the prosecution, a rational juror could have concluded James committed attempted murder beyond a reasonable doubt. A rational juror could have concluded that Couch did not attempt suicide and that James was the person who shot Couch with a rifle. The evidence is legally sufficient.

2) The Evidence is Factually Sufficient

James argues, in his second point of error, that the evidence is factually insufficient to support the jury's verdict of guilty. According to James, the evidence is so weak as to undermine confidence in the verdict because the State's case is based on the theory that the victim could not have shot herself and did not directly prove that James was the attacker. In addition, James argues that the State's witnesses and theories are so weak as to undermine confidence in the verdict. We conclude that the evidence supporting the verdict is sufficient to support the finding of guilt beyond a reasonable doubt and that the evidence contrary to the verdict is not strong enough to prevent the State from meeting its burden of proof.

When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which we may find the evidence to be factually insufficient. Id. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if when we weigh the evidence supporting and contravening the conviction we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. at 484 85. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. at 485. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

In weighing the evidence contravening and supporting the conviction, we find that McCain testified he was unable to collect any fingerprints from the gun, but noted that fingerprints are not always deposited on objects, depending on the texture of the surface of the object and the amount of moisture, or oils, on a person's hand. McCain testified that the barrel of the gun had scratches and a rough finish. The police did not conduct a gunshot residue test // on Couch, since she was already being treated by the time the crime scene unit arrived. The gunshot residue test conducted on James was inconclusive for the right hand and resulted in a negative conclusion for his left hand. However, McCain testified that inconclusive results are not unusual and inconclusive results do not necessarily indicate that James did not fire the gun. Ivan Wilson, a criminalist with the Texas Department of Public Safety, testified that rifles generally deposit less residue than pistols. In addition, the residue can be removed by washing your hands and the residue can be spread by rubbing your hands together. However, as discussed above, the State presented evidence that Couch did not attempt suicide and circumstantial evidence supported the conclusion that James shot Couch. Viewed in a neutral light, the evidence is not so weak that the State could not have met its burden of proof.

James presented some contrary evidence indicating Couch may have attempted suicide. James argued at trial that Couch attempted suicide because he had not married her by the fourteenth. Couch admitted that she had told people that, if James did not marry her by the fourteenth, something was going to happen. Tameka Taylor, James' daughter, testified Couch had told them she would kill herself if James ever left her. Lakesha James, James' sister, testified Couch told her she would kill herself if James left her or if they were not married by Valentine's Day. However, Smith testified that there had never been any discussion of marriage.

At trial, James also argued that the scene was consistent with suicide. Only one used shell was found in the room. The used shell was located on the bed next to a live round. However, McCain testified that the shells were unloaded by "MFD personnel." A fragment of a bullet was found in the ceiling above the bed. McCain testified that, when a bullet strikes a hard object, it will fragment and the fragments may go in different directions.

In addition, some evidence was introduced to impeach Couch's testimony. Couch admitted using crack cocaine on the day of the incident. Dr. McWilliams testified that cocaine may cause a person to become disassociated with themselves or their surroundings and could make a person paranoid. In addition, Couch did attempt suicide eighteen years ago. The contrary evidence, though, is not so strong that the State could not have met its burden of proof.

When viewed in a neutral light, the evidence is not so weak that a rational juror could not have found James guilty beyond a reasonable doubt. After weighing the evidence supporting and contravening the conviction, we conclude that the contrary evidence is not strong enough to prevent the State from meeting its burden of proof. The State offered explanations for much of the contrary evidence, presented evidence refuting the suicide theory, and introduced circumstantial evidence indicating James shot Couch. Matters concerning an evaluation of credibility and demeanor are the sole province of the jury. Cain v. State, 958 S.W.2d 404, 408 09 (Tex. Crim. App. 1997). The evidence is factually sufficient.

3) Any Error Concerning the Notice of the Enhancements Was Waived

In his third and fourth points of error, James challenges the enhancement of his punishment. James alleges that the sentence is void because it is outside the range authorized by law and that the lack of notice violated his due process and due course of law rights. // According to James, he was only subject to punishment for attempted murder, a second-degree felony, because he received inadequate notice of the State's intent to enhance the conviction. // Since he was sentenced to eighty years' imprisonment and the maximum punishment for a second-degree felony is twenty years, James argues his sentence was unlawful. Because no objection to the reasonableness of the notice was made at the trial court level, James has not preserved this error for our review. The sentence is lawful because James was subject to enhanced punishment due to a prior conviction.

The core of due process includes the right to notice and a meaningful opportunity to be heard. LaChance v. Erickson, 522 U.S. 262 (1998); see U.S. Const. amend. V. The accused has a right to reasonable notice that a greater penalty is to be sought pursuant to an enhancement. Sears v. State, 91 S.W.3d 451, 454 (Tex. App. Beaumont 2002, no pet.). The enhancement notice must be in writing and give the accused notice that the State will attempt to use a specific conviction for enhancement of punishment. Brooks v. State, 921 S.W.2d 875, 878 (Tex. App. Houston [14th Dist.] 1996), aff'd, 957 S.W.2d 30 (Tex. Crim. App. 1997). The allegations should include (1) the court in which the prior conviction was obtained, (2) the time of the prior conviction, and (3) the nature of the prior offense. Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. [Panel Op.] 1981). While ten days is presumptively reasonable, there is no definite time frame required for notice to be timely. Sears, 91 S.W.3d at 455; see Fairrow v. State, 112 S.W.3d 288, 294 (Tex. App. Dallas 2003, no pet.).

The notice of enhancement was filed five days before jury selection and six days before the beginning of evidence. The record contains no evidence of an objection that James had not received reasonable notice of the enhancement. When the State informed the trial court it was going to abandon one of the two alleged enhancements but the punishment range would be the same, James' trial attorney responded, "That is correct." Further, James made no objection to the final charge concerning the range of punishment. James never raised the alleged lack of reasonable notice at any point with the trial court.

In general, the Texas Rules of Appellate Procedure require a timely, specific objection as a prerequisite to presenting a complaint for appellate review, except for fundamental error. Tex. R. App. P. 33.1. Failure to comply with Rule 33.1(a) forfeits all complaints, including constitutional, except for complaints involving systemic requirements or rights that are waivable only. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). An objection was required to preserve error.

We note that, if a punishment is not authorized by law, the sentence is "void" and error need not be preserved at the trial court level. Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994); see Scott v. State, 988 S.W.2d 947, 948 (Tex. App. Houston [1st Dist.] 1999, no pet.). But see Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999) (objections to community supervision must be preserved at trial court level). However, James' sentence was authorized by law because of the enhancement allegation. Attempted murder is a second-degree felony. // Since James had previously been convicted of a felony, the punishment range was enhanced to a first-degree felony. See Tex. Pen. Code Ann. 12.42(b) (Vernon Supp. 2004 2005). The punishment range for a first-degree felony is life or not more than ninety-nine years or less than five years. Tex. Pen. Code Ann. 12.32 (Vernon 2003). James pled true to the enhancement, and the State introduced evidence of the prior felony conviction. At punishment, evidence of a total of six prior convictions were introduced into evidence without objection. Because the offense was enhanced to a first-degree felony, James' sentence was authorized by law.

James was required to object to the alleged lack of reasonable notice in order to preserve the issue for appellate review. Since any error concerning notice was not preserved and the offense was enhanced to a first-degree felony, the sentence was lawful. We overrule James' third and fourth points of error.

For the reasons stated, we affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: March 3, 2005

Date Decided: April 7,2005

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