Howard Joseph Holmes v. The State of Texas--Appeal from 208th District Court of Harris County

Opinion issued April 10, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00975-CR

HOWARD JOSEPH HOLMES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1051573

MEMORANDUM OPINION

A jury found appellant, Howard Joseph Holmes, guilty of the offense of capital murder. See Tex. Penal Code Ann. 19.02(b)(1), 19.03(a)(7)(A) (Vernon 2003 & Vernon Supp. 2007). The State did not seek the death penalty, and the trial court assessed punishment at life imprisonment without parole. Appellant raises four issues on appeal: (1) the Penal Code definition of an "individual" as including an unborn child violates the Establishment Clause of the United States Constitution; (2) the Penal Code definitions of an "individual" as including an unborn child and "death" to include the failure of an unborn child to be born alive violates the Eighth Amendment to the United States Constitution; (3) the evidence was factually insufficient to prove that appellant knew his conduct was reasonably certain to prevent his pregnant wife's unborn child from being born alive; and (4) the trial court erred by denying appellant's requested jury charge on voluntary conduct.

We affirm.

Just after midnight on December 28, 2005, Sherry Arnold, who was married to appellant and was about 20 weeks pregnant, called 9-1-1. Although Arnold was unable to ask for help, the line remained open and recorded an altercation between Arnold and appellant. On the audiotape recording, Arnold repeatedly pleaded with appellant saying, "Let me go," and "Stop it, Howard." Appellant repeatedly shouted at Arnold to "Shut up" and said, "You don't listen to me," and "You're dead." After what sounded like a hit or a slap, Arnold cried, "Ow . . . I'm listening. Stop it Howard. You said no violence tonight. You promised. Please, no more." Appellant responded, "I'll leave you alone when you shut up . . . ." Then a gunshot is heard. After the gunshot, appellant is heard saying, "Sherry! No, please! Sherry!" over and over again.

Harris County Sheriff's Deputy Robert Sanchez was dispatched to the house based on this 9-1-1 call. When he arrived, appellant met him at the door. Appellant's hands and face were covered in blood. (1) Appellant led Sanchez to the master bedroom, where Arnold lay bleeding from the top of her head and from a wound to her upper left cheek. Sanchez testified that he heard Arnold "gurgling" when he arrived. Appellant attempted cardiopulmonary resuscitation on Arnold until the paramedics arrived. He told Deputy Sanchez that Arnold was three months pregnant and asked for help. While in the master bedroom, Sanchez noticed a gun on the bed, which he moved to the floor, out of appellant's reach.

After the paramedics and another sheriff's deputy arrived, Sanchez led appellant into the living room, where appellant sat on the floor talking to Sanchez about what had happened. Deputy Sanchez testified that appellant seemed coherent and was able to communicate and answer questions but that his behavior was consistent with someone being in shock. Sanchez put bags over appellant's hands, and Deputy Glover later took samples for gunshot residue testing.

Appellant consented in writing to a search of his house and was handcuffed and placed in the back of a patrol car. While searching the house, Deputy Roy Glover, a crime scene investigator, found a fragment of a bullet in a wall between the living room and the kitchen, behind a storage cabinet. Glover testified that it appeared that the bullet had passed through the storage cabinet before striking the wall. He found a spent shell casing in a trash can in the kitchen. In the master bedroom, Glover saw blood smeared on the light switch and on the bed, the pillow, the telephone, the carpet beside the bed, the night stand, and the desk area. He found a bullet with hair fibers beneath a pillow on the bed, a spent shell casing, and the automatic handgun that Deputy Sanchez moved from the bed to the floor earlier. The handgun had one bullet in the chamber and two in the magazine.

Deputy Sanchez took appellant to the Harris County Sheriff's Office Homicide Division, where appellant met with Detective Tracy Shipley. Shipley advised appellant of his Miranda rights, which he waived. (2)

She took a statement from him, which he read and corrected. In his statement, appellant said:

I am giving this statement to Detective Shipley at her request regarding the shooting of my wife. I was at home today and my wife and I began arguing. I rented some movies and bought some rum and Coke at a liquor store near my house. I was going to watch some movies and have a few drinks since I was not working and just have some quiet time. My wife, Sherry Arnold, has a lot of credit card debt and we were arguing about her getting a job and paying off some of the debt. Sherry is a pharmacist technician and we are both in the army reserves together. Sherry has about forty-five thousand dollars in credit card debt and I told her I was not going to pay it off.

About 5:00 PM she left the house and said she was not coming back tonight. Sherry was mad at me for something I said which is she has no job skills. I told her she couldn't get a job with the skills she has and she should go back to school to get more skills. She was gone for about four hours and she came home about 9:00 or 9:30 PM. I had locked the door because I thought she wasn't coming back. I guess she just drove around for a couple of hours. All she took was her car keys and wallet. When she came home she said we needed to talk but I didn't want to talk. I turned the TV off at some point and I guess she thought that meant I was ready to talk but I still didn't want to talk. I told her I was ready to play a video game and she wanted to be left alone. Sherry wanted me to go back to work because I was off for five days.

I told her we needed to start selling some of the stuff we had to get rid of our debt. Sherry's father and grandfather died and willed her some guns. I got one of the guns to start cleaning it so we could sell it. The gun is usually kept at the headboard of the bed on my side. I thought it was unloaded but it went off when I was in the living room. A round popped off. I thought the clip and gun were empty until it went off.

I was trying to get back to the bedroom to put the gun up when Sherry told me to give her the gun so she could unload it and clear it. I told her I could do it and when we were in the bedroom I backhanded her with my left hand, which was holding the gun, and it went off. My finger was on the trigger guard not the trigger. I didn't mean to backhand her and swung at her to make her get away from me. I didn't know she was that close. My right hand is my usually strong hand.

Detective Shipley asked me if I threatened Sherry. I did not threaten Sherry. I threatened to leave and threatened myself but I didn't threaten Sherry. Detective Shipley asked me if there was any physical confrontation between me and Sherry. I pushed her away because she was being clingy, telling me "Don't go" and things like that. I had gotten some of my clothes out of the closet to take with me when I left and laid them on the foot of the bed on my side.

Meanwhile, the paramedics attempted CPR and then took Arnold to the emergency room. Deputy Chester Smith went to the hospital and collected samples from Arnold's hands for gunshot residue testing. Arnold was pronounced dead shortly after 1:00 a.m. Marissa Feeney, a Harris County medical examiner, testified that Arnold had been 20-21 weeks pregnant. She said that when maternal circulation ceased, a fetus at that stage of gestation would no longer get oxygen and nutrients from the mother and would die. She said Anrold's unborn child could not have survived because "a fetus at that gestational age is considered too young to be viable outside the mother's womb."

Feeney also testified that in addition to the gunshot wound, Arnold had bruises on her nose, chest, and shoulders. Feeney said that although bruising from CPR is not unusual, some of the bruises appeared old and some appeared new. Feeney said that there was no gunshot residue or stippling on or around the gunshot wound. James Jackson, a forensic chemist, testified that the samples taken from Arnold's right hand palm, and back and palm of her left hand were consistent with being in close proximity of a firearm during discharge.

Deputy Bradley Bruns, who works for the Harris County Sheriff's Department's Regional Firearms Lab, testified that the weapon used in the shooting was an AMT brand, .45 caliber, semi-automatic pistol. He testified that he fired the gun three times, and it was working properly. He said that for this gun to go off twice accidentally, the shooter's finger would have to be on the trigger, not the trigger guard, and the safety would have to be down. He said that in general, stippling would be present around a gunshot wound if a victim were shot from close range, but it would not be present if the victim were shot from farther away. Finally, he said that, normally, a person would make sure a gun was not loaded before cleaning it.

Lastly, James Holmes, appellant's brother, testified for the defense. He said that he had heard the 9-1-1 tape and his brother sounded intoxicated. He also testified that appellant had been a military nurse and spent twenty or thirty years--most of his adult life--in the military. Finally, he testified that he and the rest of the family knew that Arnold was pregnant.

At the charge conference, appellant requested the following instruction regarding voluntary conduct be included in the court's charge.

A person commits an offense only if he voluntarily engages in the conduct including an act or omission. However, conduct is not rendered involuntary merely because the person does not intend the results of his conduct. Therefore, if you believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant, Howard Joseph Holmes, did cause the death of Sherry Holmes [sic] by shooting her with a gun, as alleged in the indictment, but you further find from the evidence or have a reasonable doubt, thereof, that the shooting was the result of an accidental discharge of the gun and was not the voluntary act or conduct of the defendant, you will acquit the defendant and say by your verdict not guilty.

The trial court denied his requested instruction.

In his first issue, appellant argues that the Penal Code definition of an individual as "a human being who is alive, including an unborn child at every stage of gestation from fertilization to birth" violates the Establishment Clause of the United States Constitution. Tex. Penal Code Ann. 1.07(a)(26) (Vernon Supp. 2007). The Court of Criminal Appeals recently held that it does not. Flores v. State, 245 S.W.3d 432, 441 (Tex. Crim. App. 2008). We overrule appellant's first issue.

Eighth Amendment

In his second issue, appellant asserts that "expanding the former Penal Code definition of an 'individual' as 'a human being who has been born and is alive,' to include 'an unborn child at every stage of gestation from fertilization until birth' and adding a corresponding definition of 'death' that 'includes, for an individual who is an unborn child, the failure to be born alive' violates the Eighth Amendment to the United States Constitution because it expands those cases which can be prosecuted for capital murder in an arbitrary and capricious manner."

The Eighth Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. When we consider the constitutionality of a statute, we begin with the presumption that the legislature has not acted unconstitutionally. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007); also Tex. Gov't Code Ann. 311.021(1) (Vernon 2005). The party challenging the constitutionality of the statute bears the burden of establishing its unconstitutionality. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). In addition, he must show that it is unconstitutional as applied to him, not as to others. Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992).

The legislature is vested with the power to define crimes and prescribe penalties. Willis v. State, 192 S.W.3d 585, 596 (Tex. App.--Tyler 2006, pet. ref'd). A person commits capital murder if he intentionally or knowingly causes the death of "more than one person . . . during the same criminal transaction." Tex. Penal Code Ann. 19.02(b)(1), 19.03(a)(7)(A). A "person" includes an "individual." Id. 1.07(a)(38) (Vernon Supp. 2007). An "individual" is "a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth." Id. 1.07(a)(26). Therefore, a person who intentionally or knowingly causes the death of a woman and her unborn child, at any stage of gestation, commits capital murder. Lawrence, 240 S.W.3d at 915. The statute exempts conduct committed by a woman who chooses to terminate her own pregnancy or a health care provider performing an abortion on a consenting patient. Id.; Tex. Penal Code Ann. 19.06 (Vernon Supp. 2007). The Court of Criminal Appeals has previously rejected an Eighth Amendment challenge to the statute defining capital murder as the murder of more than one person in the same criminal transaction, holding that the statute did not fail to sufficiently narrow the class of persons subject to the death penalty. Vuong, 830 S.W.2d at 941.

Appellant challenges the statute based on the potential imposition of the death penalty. The State did not seek the death penalty. Appellant does not challenge his sentence. He has not shown that the challenged sections of the Penal Code are unconstitutional or unconstitutional as applied to him. We overrule his second issue.

Factual Sufficiency

In his third issue, appellant argues that the evidence was factually insufficient to prove that he acted with actual awareness that his conduct was reasonably certain to cause his wife's unborn child to fail to be born alive. In particular, appellant asserts that the State did not introduce evidence relating specifically to Arnold's unborn child.

Sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).

Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).

As charged in the indictment, the State was required to prove that on or about December 28, 2005, appellant intentionally or knowingly caused the deaths of both Sherry Arnold and her unborn child by shooting Sherry Arnold with a firearm. See Tex. Penal Code Ann. 19.02(b)(1), 19.03(a)(7)(A). Appellant specifically argues that the State did not prove beyond a reasonable doubt that appellant actually knew that shooting Arnold would cause the death of her unborn child.

On the night of the shooting, appellant stated more than once that Arnold was pregnant, specifically three-months pregnant. In addition, appellant's brother testified that he and the rest of the family knew Arnold was pregnant. Appellant's brother further testified appellant had been a military nurse for twenty or thirty years. The medical examiner testified that Arnold was 20-21 weeks pregnant and that a fetus at that gestational age could not survive outside the womb. Specifically, the prosecutor asked, "At the age that you observed the fetus to be at the time of autopsy, would there have been any way that, that child could have been--could have been, I guess, taken from the mother and survived? Would it have been at a viable point?" Feeney responded, "That gestational age is considered too young to be viable outside the mother's womb." By referring to the autopsy and "that child," the prosecutor and, therefore, Feeney, were referring to Arnold's unborn child, not a hypothetical unborn child.

After considering all of the evidence in a neutral light, we conclude that the jury was rationally justified in finding beyond reasonable doubt that appellant actually knew that shooting Arnold would cause the death of her unborn child. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). We overrule appellant's third issue.

Charge Error

In his fourth issue, appellant complains that the trial court reversibly erred by denying his requested charge on voluntary conduct. Appellant contends that he did not voluntarily shoot his pregnant wife, but rather that the gun accidentally fired when he "backhanded" her.

Involuntary conduct is a defense to prosecution. Trujillo v. State, 227 S.W.3d 164, 169-70 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd); see Tex. Penal Code Ann. 6.01(a) (Vernon 2003) ("A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession."). A defendant is entitled to an instruction regarding the voluntariness of his actions when he timely requests an instruction on the issue and it is raised by the evidence. Brown v. State, 955 S.W.2d 276, 278-79 (Tex. Crim. App. 1997). "Voluntariness," refers only to one's physical bodily movements. Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003). "If those physical movements are the nonvolitional result of someone else's act, are set in motion by some independent non-human force, are caused by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or other nonvolitional impetus, that movement is not voluntary." Id. The issue of voluntariness of one's conduct, or bodily movements, is separate from the issue of one's mental state. Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993). But "involuntary act" is not the same defensive theory as "accident." Rogers, 105 S.W.3d at 639.

In his statement appellant said, "I back-handed her with my left hand, which was holding the gun and it went off . . . I didn't mean to back-hand her, and swung at her to make her get away from me." The voluntariness of his actions was not raised by his statement to police or any other evidence. His statement raised only the question of his intent. The court did not err in denying his requested jury instruction. We overrule appellant's fourth issue.

Conclusion

We affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

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

1. Deputy Glover testified that the blood on appellant was consistent with appellant having given Arnold CPR after the shooting.

2. See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694 (1966).