Wanda Goodwin McDonald v. The State of Texas--Appeal from 337th District Court of Harris County

Opinion issued November 3, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01152-CR

WANDA GOODWIN MCDONALD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 985456

MEMORANDUM OPINION

A jury found appellant, Wanda Goodwin McDonald, guilty of murder and assessed her punishment at confinement for 60 years. Appellant contends that the evidence is factually insufficient to support her conviction of murder. We affirm.

BACKGROUND

After appellant, a tenant of complainant Rafael German, fell thousands of dollars in arrears for rent owed to German, she invited him over to her house to discuss a mutually agreeable method of repayment. The situation at that point had grown tense between German and appellant because German had begun forcible eviction proceedings against appellant, and she had retaliated by calling the Harris County Public Health and Environmental Services department to report problems with mosquitoes in the back yard of the rental property. It is undisputed that (1) German arrived at appellant s house in response to her request to discuss the rent owed; (2) they talked shortly in appellant s kitchen, and (3) appellant fired four shots from a .38 caliber revolver, of which three struck German, killing him.

At trial, appellant testified that German angry about the thousands of dollars owed him and her complaint to the public health officials suddenly jumped out of his chair during the discussion in the kitchen and said You bitch. You turned me in to the environmental people. At this point, according to appellant, German began advancing toward her while she leveled the revolver at him and told him to leave. However, German just responded, You bitch. I m going to kill you. Appellant testified that she fired the gun twice, with one shot striking German in the chest; the two began to struggle; and appellant managed to shoot German twice more at close range.

The State s forensic, physical, and testimonial evidence contradicted appellant s testimony. That evidence showed that appellant shot at German twice while he sat at the kitchen table, one of which struck German in the chest. German then walked away from the table, regurgitated a large amount of blood on the kitchen floor, and fell over in the adjoining hallway. The State s evidence showed that appellant then shot German two more times as he lay prone on the floor.

The evidence further showed that (1) appellant could not have shot German at close range as she claimed because the State s firearms expert could find no gun-powder on his shirt; // (2) the kitchen showed no signs of a struggle; and (3) appellant had no injuries from the struggle that she testified to. Finally, the State called four character witnesses who testified that German was a peaceful and law-abiding person. No weapon other than appellant s .38 caliber revolver was found at the scene.

STANDARD OF REVIEW

In her sole point of error, appellant contends that the evidence is factually insufficient to support her conviction. In Zuniga v. State, the Court revised the standard for factual sufficiency challenges, // and held that:

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004) (emphasis added). In Escamilla v. State, the Court of Criminal Appeals, reaffirmed that Zuniga lays out the correct standard of review for factual sufficiency challenges, stating, [I]n a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d at 484-85). When a jury finds the defendant guilty, there is an implicit finding against the defensive theory presented at trial. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).

DISCUSSION

On appeal, appellant claims that her testimonial evidence was enough to create reasonable doubt in a rational juror, thereby rendering the evidence factually insufficient. A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. 9.32(a) Vernon 2004). The Texas Penal Code further states that a person is justified in using deadly force against another:

(1) if he would be justified in using force against the other under Section 9.31;

(2) if a reasonable person in the actor situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other s use or attempted use of unlawful deadly force; or

(B) to prevent the other s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Id. 9.32(a).

Appellant s sole evidence in support of her self-defense theory is her own testimony. Appellant contends that the new factual sufficiency standard elucidated in Zuniga means that, while the State marshaled a substantial amount of evidence that preponderates in favor of guilt, a neutral review of the evidence, viewed from the standpoint of Appellant at the time . . . [is] too weak to support the finding of guilt beyond a reasonable doubt. This is not what the Zuniga standard says. We ask only whether, [c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga, 144 S.W.3d at 484-485.

We answer in the affirmative. The State introduced in contrast to appellant s version of events an imposing amount of physical, forensic, and testimonial evidence that, when viewed in a neutral light, a rational juror could have found guilt beyond a reasonable doubt. Appellant s challenge to the jury s implicit rejection of her claim of self-defense fails.

Accordingly, we overrule appellant s sole point of error and affirm the judgment.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

Do no publish. Tex. R. App. P. 47.2(b).