Alan Craig Moncrief v. The State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-93-011-CR

ALAN CRAIG MONCRIEF,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # 28658

O P I N I O N

A jury found Alan Craig Moncrief guilty of voluntary manslaughter and assessed punishment at ten years. In seven points Moncrief argues that the evidence is insufficient to sustain the conviction, that his due process rights were violated, and that the court erred in admitting evidence. We affirm.

In the early morning hours of December 2, 1991, Officer Bill Chrusciaki was the first Joshua police officer to answer a call for help at Craig Moncrief's residence. Moncrief met Chrusciaki and told him that he needed an ambulance because "she came after me with a knife and I shot her." Chrusciaki entered the house and found Stacey Tadlock lying face down on the floor of the living room with a single gunshot wound to the neck. He could see that she was still breathing so he did not move her.

Terry Mercer, a volunteer fireman, rendered medical assistance to Stacey at the scene. When he and his partner rolled her over they found a knife under her body. Mercer testified that the knife was not in Stacey's hand. Two deputies testified that they saw the knife under Stacey's body but that they did not see her holding it. A third deputy, James Goodnight, said he was "pretty sure" that a knife was "loosely" held in Stacey's right hand.

Moncrief's home is a small A-frame structure with a living room and kitchen downstairs and a bedroom upstairs. Tissue and blood were found on one of the slanted walls of the house, bone fragments were discovered on the floor, and hair and blood were on a ceiling fan. A child's toy tricycle close to the wall also had a pool of blood on it.

Dr. Nizam Peerwani, the medical examiner, testified that Stacey died from a single gunshot wound entering the front part of her neck and exiting the back of her neck. The gunshot caused a secondary partial transection of her spinal cord. He testified that Stacey was at least four feet away from the weapon when she was shot because there was no gunpowder "tattooing" on her skin and there was a mark caused by the shotgun shell wadding just below the entrance wound. Peerwani stated that Stacey had been moved and that she would not have been able to hold onto the knife because of her spinal cord injury. Officer Chrusciaki also believed that the body had been moved because there were two separate areas of blood, Stacey's shirt and shorts were wrinkled upwards as if she had been dragged by her feet, and he saw "finger impressions" across the carpet.

Several witnesses testified that Moncrief and Stacey had a tumultuous relationship and often engaged in arguments and physical confrontations. Moncrief says that it was during one of these violent episodes that he shot Stacey. According to Moncrief, he was awakened by Stacey throwing something at him. After he woke up, he said, he saw Stacey coming at him with a knife and that he used the shotgun to push her away when the gun went off.

Tammy Adams, a neighbor, testified that she has seen Stacey with two black eyes, a swollen nose, split lip, and bruises on her cheek. She also said that she heard Moncrief scream to Stacey's father that he had "better come get Stacey before I hurt her."

When a person intentionally causes the death of another person, or intends to cause serious bodily injury and commits an act clearly dangerous to human life and causes the death of another person, but does so under the immediate influence of sudden passion arising from adequate cause, he is guilty of voluntary manslaughter. Tex. Penal Code Ann. 19.02, 19.04 (Vernon 1989). In his first two points, Moncrief argues that the evidence is insufficient to support implied jury findings that he intentionally caused Stacey's death and that his acts were committed with the intent to kill or with the expectation that death would result.

In reviewing the sufficiency of the evidence, we consider all the evidence that introduced by the state and the defense in the light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990), cert. denied, 498 U.S. 1301, 111 S. Ct. 2912, 112 L. Ed. 2d 1026 (1991). The Code of Criminal Procedure provides that reconciliation of conflicts and contradictions in the evidence is within the province of the jury. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury may believe some witnesses and refuse to believe others, and it may accept portions of a witness' testimony and reject other portions. Losada, 721 S.W.2d at 309. A reviewing court is not required to determine whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Although faced with conflicting inferences, a reviewing court must presume that the trier of fact resolved any such conflict in favor of the prosecution and must defer to that resolution. Id. On appeal, we will not reverse a conviction because of conflicts in evidence if there is enough credible evidence to support a conviction. See Losada, 721 S.W.2d at 309.

The specific intent to kill may be inferred from the use of a deadly weapon, and a shotgun is a deadly weapon per se. Flanagan v. State, 675 S.W.2d 734, 744 (Tex. Crim. App. 1984) (on rehearing). Moncrief admits that he loaded the shotgun and pointed it at Stacey and shot her. Dr. Peerwani testified that Stacey was at least four feet away from Moncrief when she was shot. There was also testimony that it appeared that Stacey had been moved, that there were two pools of blood, and that if she was holding the knife it was held loosely in her right hand even though she was left-handed. The jury chose to believe the State's witnesses and could have found from the evidence that Moncrief intentionally killed or should have expected that he would kill Stacey when he shot her with the shotgun. Thus, the evidence was sufficient for a rational fact-finder to have found beyond a reasonable doubt that Moncrief intended to kill or could have reasonably expected from his acts that death would occur. We overrule points one and two.

In his third point Moncrief contends the State's investigative procedure violated his due process rights because the State failed to preserve evidence that might have played a significant role in his defense. He argues that the blood gathered at the scene for testing was lost and that Stacey's blood was not tested until after her death and three days after the incident. In addition, according to Moncrief, photographs of blood splatters were lost, Stacey's clothing was lost, and it was impossible to positively identify the fingerprints on the knife because of the Johnson County investigators' previous attempt to "lift" the prints.

To determine if his right to due process of law was violated, we look to the totality of the circumstances of the investigation. See Ex parte Brandley, 781 S.W.2d 886, 892 (Tex. Crim. App. 1989), cert. denied, __ U.S. __ , 111 S. Ct. 61, 112 L. Ed. 2d 35 (1990). Absent a showing of bad faith, failure to preserve potentially useful evidence does not, in and of itself, result in the denial of due process of law. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988). Such a failure, however, in combination with other factors, can create the cumulative effect of a denial of a defendant's due process rights. Gilbert v. State, 840 S.W.2d 138, 142 (Tex. App. Houston [1st Dist.] 1992, no pet.).

Moncrief does not allege that the State acted in bad faith in failing to preserve, collect, or photograph some evidence. Nor is there any evidence of bad faith on the State's part. Moncrief's conviction was based on scientific evidence, the testimony of several witnesses, physical items collected at the scene, and Moncrief's own testimony that he loaded the shotgun and pointed it at Stacey. By looking at the totality of the circumstances of the investigation, we hold that Moncrief's rights to due process were not violated. We overrule his third point.

Moncrief contends in points four and five that the court erred in admitting the testimony of Gina Kirkpatrick and Larry Tadlock about Moncrief's extraneous conduct. Kirkpatrick testified that she saw Moncrief threaten to hurt Stacey, act as if he was going to hit her, raise a piece of lumber as if he was going to hit her, and put his hands on her throat and force her against a wall. She also saw him point a shotgun at Stacey's face and threaten to shoot her. Kirkpatrick also said that he told her he was going to kill Stacey. Tadlock testified that he saw Moncrief point a pellet rifle at Stacey, hold her against a tree, and threaten to kill her.

Moncrief argues that the probative value of their testimony was substantially outweighed by its unfair prejudice. See Tex. R. Crim. Evid. 403. He waived this complaint because he did not object and obtain a ruling on this ground. See Tex. R. App. P. 52(a). However, even if the complaint were preserved, we would hold that any unfair prejudicial effect of the evidence did not substantially outweigh its probative value. We overrule the fourth and fifth points.

In his sixth point Moncrief argues that the court erred in admitting a photograph of Stacey, her daughter, and her father because its probative value was substantially outweighed by its unfair prejudice. Outside the presence of the jury the State sought a ruling on the admissibility of the family portrait. Moncrief objected on the ground that the photograph was irrelevant, immaterial, and prejudicial. The court overruled the objection. When the prosecution offered the photograph in front of the jury, Moncrief said "no objection."

When the court hears objections to offered evidence out of the presence of the jury and rules that the evidence is admissible, such objections shall be deemed to apply to the evidence when it is admitted before the jury without the necessity of repeating those objections. Id. 52(b); Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985). However, when the accused affirmatively asserts during trial he has "no objection" to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the previous ruling. Gearing, 685 S.W.2d at 329. Thus, Moncrief waived his complaint about the family portrait. However, even if the complaint were preserved, we would hold that its probative value outweighed any unfair prejudice. We overrule the sixth point.

Moncrief complains in point seven that the court erred in admitting his arrest photograph. Moncrief testified that Stacey cut him on his neck with a knife. Tammy Collier, Moncrief's sister, testified that when she visited her brother the day after the offense she noticed "about a two-inch cut" on his neck. However, in the arrest photographs taken of Moncrief on the night of the offense, there was no sign of a cut on his neck.

Generally, all relevant evidence is admissible. Tex. R. Crim. Evid. 402. "Relevant evidence" means evidence that has a tendency to make the existence of any material fact that is in dispute more or less probable than it would be without the evidence. Id. 401. Clearly, the photograph tends to show that the existence of the cut on Moncrief's neck is less probable than it would be without the photo; thus, the picture is relevant. See id.

However, the court must exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992), cert. denied, U.S. , 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993). Moncrief's defense centered on the proposition that Stacey was the aggressor and that he acted in self-defense. When Collier and Moncrief testified that he had a cut on his neck the arrest photos became probative evidence. The prejudicial value of the photo was not great because the jury was aware that Moncrief was arrested for the offense. We find that its probative value was not substantially outweighed by its prejudicial effect. We overrule point seven and affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 6, 1994

Do not publish