Kevin Goodwin v. The State of Texas--Appeal from 102nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

 

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No. 06-03-00089-CR

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KEVIN GOODWIN, Appellant

V.

THE STATE OF TEXAS, Appellee

 

 

On Appeal from the 102nd Judicial District Court

Bowie County, Texas

Trial Court No. 01-F-466-102

 

 

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

Opinion by Justice Carter

 

O P I N I O N

 

Factual and Procedural Background

Kevin Goodwin appeals his conviction for the murder of his nephew, Scott Ford. Goodwin alleged that the shooting was accidental and that he did not intend to kill Ford. The jury found Goodwin guilty of murder and assessed punishment at ninety-nine years' imprisonment. We affirm the judgment of the trial court.

At approximately 9:30 a.m. on September 3, 2001, Goodwin and Ford became involved in an argument on the front porch of Goodwin's home. Ford died of a single gunshot wound that went through his left hand and entered his chest. At the time of his death, Ford was staying with Goodwin at Goodwin's residence in Bowie County, Texas. In his statement to the police, Goodwin claimed the gun unintentionally discharged as Ford lunged at him and the barrel hit Ford's chest. However, forensic evidence indicated that Ford was at least one foot away from the end of the barrel and possibly as much as six feet. The evidence supports the theory that the trajectory of the shot required Ford to be standing on the step of the porch.

The following is a summary of our disposition of Goodwin's six issues:

A) Did the trial judge make an improper comment on the evidence? We conclude the statement was not a comment on the evidence.

B) Did the trial court err in excluding extraneous evidence concerning the victim's prior acts of violence and his alleged homosexuality? Goodwin failed to preserve the alleged error concerning the exclusion of this evidence for our review.

C) Did the State make an improper closing argument? We conclude the State's argument was a reasonable deduction from the evidence.

D) Did Goodwin receive ineffective assistance of counsel? Goodwin has failed to show that his counsel's actions resulted in deficient performance.

E) Was the evidence factually sufficient?; and

F) Was the evidence legally sufficient? We hold that the evidence was factually and legally sufficient to support the verdict.

A. No Improper Comment on the Evidence

Goodwin's first argument is that the trial judge impermissibly commented on the evidence. Goodwin argues, because the alleged impermissible comment was made in the presence of the jury, it constitutes fundamental error. We do not find the judge's statement to constitute a comment on the evidence.

On direct examination by the State, Dr. Ann E. Lopez was being questioned on the trajectory of the shot which killed Ford. Dr. Lopez testified that "the charge traveled . . . pretty much straight forward, nearly horizontal." The State responded: "So by horizontal, we're talking 'horizontal' (indicating)?" During the following questioning, the trial judge commented that "[h]orizontal is horizontal."

The trial judge shall maintain an attitude of impartiality throughout the proceedings in front of the jury. Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000).

A trial court improperly comments on the weight of the evidence if it makes "a statement that implies approval of the State's argument, that indicates any disbelief in the defense's position, or that diminishes the credibility of the defense's approach to its case." Hoang v. State, 997 S.W.2d 678, 681 (Tex. App. Texarkana 1999, no pet.) (citations omitted). The inquiry also requires consideration of "whether the remarks by the trial court were made in the presence of the jury and whether the trial judge's comments, however impartially they may have been made, may have led the jury to infer the judge's own opinion of the merits of the case." Id. (citations omitted).

The statement of the trial court does not indicate that the trajectory of the shot was horizontal, but rather is similar to a definition of horizontal. Such a comment is more akin to judicial notice of a universally recognized fact rather than a comment on the evidence. The comment did not indicate any disbelief in the defense's position or diminish the capacity of the defense's approach to the case. Since the statement is not a comment on the evidence, we decline to determine whether such error would be fundamental error. // We overrule Goodwin's first issue.

B. Exclusion of Extrinsic Evidence Was Not Preserved

Goodwin's second argument is that the trial court erred by excluding evidence concerning Ford's lifestyle and his propensity toward violence. However, the error was not preserved for our review.

During the cross-examination of Carolyn Ford, Ford's mother, Goodwin's attorney asked her about an alleged homosexual relationship of Ford's. The State objected to the question and the trial court sustained the objection. The record indicates that the exchange occurred as follows:

Q[DEFENSE COUNSEL:] Where did your son go to grade school?

A[CAROLYN FORD:] He went to grade school in Malta.

QDo you remember the name John Joe Allen?

AYes, I do.

QOkay, do you remember his lifestyle and your son's lifestyle together?

AYes.

[PROSECUTOR]: Well, Judge, excuse me. This is clearly under 608. This is clearly improper. We have had this discussion.

THE COURT: Sustained.

[PROSECUTOR]: Ms. Allen knows this.

THE COURT: Sustained.

Q[DEFENSE COUNSEL:] Your Honor, we're not talking about anything other than his lifestyle and what he did with his time, and I'm asking about the problems that he had.

THE COURT: Let's have the next question.

Goodwin's trial counsel did not make an offer of proof concerning what Carolyn Ford's testimony would have been.

Error was not preserved for review. To preserve the record for appeal, the party offering the excluded evidence may make an offer of proof in the form of a concise statement, or in question and answer form. Tex. R. Evid. 103(b). If the party requests permission to make a bill of exceptions, the trial court is required to direct the making of the offer of proof in question and answer form. Id.; Kipp v. State, 876 S.W.2d 330, 334 (Tex. Crim. App. 1994); Callahan v. State, 937 S.W.2d 553, 557 (Tex. App. Texarkana 1996, no pet.); Flores v. State, 920 S.W.2d 347, 352 (Tex. App. San Antonio 1996, no pet.). In this case, the record is devoid of any reference to what, if anything, the witness would have testified. In the absence of such information, any claim of error is not preserved for appellate review. Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998); Greenwood v. State, 948 S.W.2d 542, 549 (Tex. App. Fort Worth 1997, no pet.); see Tex. R. Evid. 103(a)(2) ("Error may not be predicated upon a ruling which . . . excludes evidence unless a substantial right of the party is affected, and . . . the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.").

C. The State's Argument was a Reasonable Deduction from the Evidence

In his third point of error, Goodwin contends that the trial court erred by allowing the State to argue outside the evidence during closing argument. We find the argument was a reasonable deduction from the evidence.

During closing argument, the State suggested that the argument on the front porch concerned methamphetamine. Specifically, the prosecutor argued the following:

[PROSECUTOR]: That argument out on that porch, ladies and gentlemen, was about some methamphetamine. It was about somebody's methamphetamine.

[DEFENSE COUNSEL]: Your Honor, I'm going to object. There has been no testimony as to any argument over methamphetamine.

THE COURT: Overruled. This is closing argument and can be argued with the record and what can be deduced therefrom. All right, Mr. Smith, continue.

[PROSECUTOR]: It was about an argument over somebody taking somebody's methamphetamine, somebody's drugs. Now Scott Ford had come Wednesday, before the Monday when he was murdered by Kevin Goodwin. He hadn't been working, didn't have any money, had been living in his mom's house. He stays at Kevin Goodwin's house and the last thing that Kevin Goodwin says to Carolyn Ford is, "Don't worry, I'll give him some drugs for help."

Kelsey told you folks no problem that night, no problem the next night, no problem the next night, no problem the next night. He's there every night. Sunday, we know that the defendant had in his possession methamphetamine. We know Monday morning when Scott Ford is killed, he has methamphetamine in his system. Whose was it? Where did it come from? That was the argument. That's what the argument was about.

Goodwin contends that, although there was some evidence at trial that he and Ford were arguing, there was no evidence the argument concerned methamphetamine. According to Goodwin, this argument was outside the evidence and the objection should have been sustained.

Permissible jury arguments fall within one or more of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997); see Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999); Alejandro v. State, 493 S.W.2d 230, 231 32 (Tex. Crim. App. 1973). The trial court abuses its discretion if it permits argument outside these four areas. See Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995) (en banc).

The argument was a reasonable deduction from the evidence introduced in this case. Bret Goodwin, Goodwin's nephew, testified that Goodwin had methamphetamine in his possession the day before the shooting. Carolyn Ford testified that Goodwin told her that he would give Ford some drugs for helping clean up the house. The autopsy detected methamphetamine and metabolites of marihuana in Ford's blood. Ford and Goodwin had argued the previous night. Carol Ann Goodwin and Danielle Goodwin, Goodwin's nieces, testified that Goodwin asked Danielle to search the room in which Ford had been staying for any drugs he may have had before the police had arrived. From this evidence, the conclusion that the argument was about a dispute over drugs is a reasonable deduction from the evidence.

D. No Showing of Ineffective Assistance of Counsel

Goodwin's fourth point of error alleges that he received ineffective assistance of counsel. The alleged ineffectiveness focuses on two main alleged deficiencies: (1) failing to object to the photographs of the victim and the crime scene, and (2) failing to ask for jury instructions on lesser-included offenses, necessity, self-defense, and sudden passion arising from adequate cause. Goodwin also asserts that, if error was not preserved regarding Ford's lifestyle and propensity to violence, it was ineffective assistance of counsel not to make an offer of proof. None of Goodwin's arguments, though, overcome the presumption that his trial counsel's actions were reasonable.

Both the United States and the Texas Constitutions confer a right to effective representation by counsel. U.S. Const. amend. VI; Tex. Const. art. I, 10. If counsel's performance is ineffective, the conviction cannot stand. The Texas Court of Criminal Appeals has held that the Texas Constitution does not impose a higher standard than the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez v. State, 726 S.W.2d 53, 56 57 (Tex. Crim. App. 1986). The Sixth Amendment standard, established by Strickland, requires a defendant alleging ineffective assistance of counsel to show that counsel's performance at trial was deficient and prejudiced the defense. See Strickland v. Washington, 466 U.S. 668 (1984); see also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). An ineffective assistance of counsel claim cannot be based on a difference of opinion concerning strategy. "[T]he defendant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836. Various factors should be considered in determining whether counsel was effective, including pretrial motions, voir dire examination, cross-examination, production of defense witnesses, objections, final argument, posttrial procedure, and the degree of counsel's knowledge of the facts surrounding the case. Moya v. State, 661 S.W.2d 325, 328 (Tex. App. Corpus Christi 1983, no pet.).

To satisfy the deficiency prong of the test, Goodwin must prove by a preponderance of the evidence that his counsel's representation fell below the objective standard of professional norms. Bone, 77 S.W.3d at 833. There is a strong presumption that counsel's performance was adequate. Id. The reason for this presumption is that counsel at trial is better positioned to judge matters of strategy than an appellate court reviewing a cold record. An appellate court should not "conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

1. Failure to Object to Photographs

First, Goodwin argues that his trial counsel's performance was deficient in failing to object to the introduction of the photographs of the victim and the crime scene. A succinct summary of Goodwin's complaints is that the photographs are overly gruesome, larger than life size, cumulative of other testimony and other photographs, and irrelevant. A failure to object to inadmissible evidence is an act of omission that may give rise to ineffective assistance of counsel. Alvarado v. State, 775 S.W.2d 851 (Tex. App. San Antonio 1989, pet. ref'd).

All relevant evidence is admissible at trial unless otherwise barred by constitution, statute, or rule. Tex. R. Evid. 401. Relevant evidence is that which tends to make a fact at issue more or less probable. Id. A trial court should exclude evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403; Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).

The trial court is required to perform the Rule 403 balancing test when the offering party makes the appropriate objection. Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997). Trial judges are required to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (op. on reh'g). In making this determination, the trial judge should "consider the inherent tendency that some evidence may have to encourage resolution of material issues on an inappropriate basis and should balance carefully against it the host of factors affecting probativeness, including relative weight of the evidence and the degree to which its proponent might be disadvantaged without it." Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992). A trial court's decision in balancing these factors is reviewed under the abuse of discretion standard and is disturbed on appeal only when the trial court's decision falls outside the zone of reasonable disagreement. Mozon v. State, 991 S.W.2d 841, 846 47 (Tex. Crim. App. 1999); Montgomery, 810 S.W.2d at 391 92 (op. on reh'g); Manning v. State, 126 S.W.3d 552, 555 (Tex. App. Texarkana 2003, no pet.).

Generally, autopsy photographs are admissible unless they depict mutilations of the victim due to the autopsy itself. See Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). Photographs showing a victim's wounds may be admitted to clarify and support observations about the victim's injuries and to reveal the manner of death. See Moss v. State, 860 S.W.2d 194, 196 (Tex. App. Texarkana 1993, no pet.). While many of these photographs are cumulative of the testimony by the State's witnesses, the general rule is that a trial court does not abuse its discretion where pictorial evidence will aid the jury in understanding verbal testimony. Harris v. State, 661 S.W.2d 106, 107 (Tex. Crim. App. 1983); see Williams v. State, 937 S.W.2d 479, 488 (Tex. Crim. App. 1996). Even when two or more pictures depict the same scene but from different perspectives, the trial court does not necessarily abuse its discretion in admitting the photographs because "the jury can gain information it might not otherwise have when viewing other pictures from other perspectives." Bacey v. State, 990 S.W.2d 319, 326 (Tex. App. Texarkana 1999, no pet.); Troncoso v. State, No. 06-03-00065-CR, 2004 Tex. App. LEXIS 2578 (Tex. App. Texarkana Mar. 24, 2004, no pet.) (not designated for publication). A trial court is given wide discretion when deciding admissibility of photographs. Sonnier, 913 S.W.2d at 519. Rule 403 carries with it a presumption that the evidence will be more probative than prejudicial. Tennison v. State, 969 S.W.2d 578, 580 (Tex. App. Texarkana 1998, no pet.). We find the photographs were admissible; therefore, trial counsel was not ineffective in failing to object to them.

2. Failure to Request Defensive Instructions

Goodwin alleges that his attorney's performance at trial was deficient because counsel failed to request instructions on lesser-included offenses, necessity, self-defense, and sudden passion arising from adequate cause. At oral argument, Goodwin alleged that the failure to request an instruction concerning self-defense requires a reversal. In support of this argument, Goodwin cited Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992). In Vasquez, the Texas Court of Criminal Appeals found that the failure to request an instruction on necessity constituted ineffective assistance of counsel. Id at 951.

Vasquez is distinguishable from the current situation. In Vasquez, necessity was the only defense available to the defendant. Id. at 951; see Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999). In addition, Vaquez's trial attorney failed to conduct any independent investigation, adequately research the law, and failed to re-urge evidence of his alleged kidnapping after the State had "opened the door." Vasquez, 830 S.W.2d at 951 n.4.

This record does not contain evidence of the reasons for trial counsel's conduct. Ineffective assistance of counsel claims "must be firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813 14 (Tex. Crim. App. 1999). "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88 89 (Tex. Crim. App. 2002); see Jackson, 877 S.W.2d at 771.

Strategical considerations provide a reasonable explanation for the decision not to request instructions on necessity, self-defense, and lesser-included offenses. The defense argued at trial that the shooting was accidental and that Goodwin did not have the requisite intent to commit murder. The decision to pursue this theory rather than self-defense, necessity, or include the lesser-included offenses concerned a matter of strategy. It is a valid strategic decision to focus on a single exculpatory theory rather than to present the jury with every possible theory of the crime. If the reasons for counsel's conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal. Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003); Ortiz, 93 S.W.3d 88 89. Because Goodwin's trial counsel's reasoning for not pursuing the self-defense theory are not contained in the record and the decisions could have been strategic, we will defer to counsel's decisions concerning whether to request additional instructions. Goodwin had claimed in his original statement that the shooting was unintentional, allowing the defense to pursue the defense of accident. The decision not to switch theories or to add alternative theories was a strategic decision, which requires deference to the trial counsel's decision. This Court should not consider the wisdom of such a strategy, since ineffective assistance of counsel claims cannot be "built on retrospective speculation." Bone, 77 S.W.3d at 835. "[T]he defendant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a specific act or omission." Id. at 836. Since there are plausible professional reasons for such conduct, Goodwin has failed to show that trial counsel's performance was deficient.

While trial strategy explains the failure to request issues of self-defense, necessity, and lesser-included offenses at the guilt stage, a further reason must be presented concerning issues arising during the punishment phase. At the punishment stage of a trial for murder, "the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree." // "Sudden passion" is defined as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Tex. Pen. Code Ann. 19.02(a)(2) (Vernon 2003). "Adequate cause" means "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Pen. Code Ann. 19.02(a)(1) (Vernon 2003). If a defendant presents evidence raising the issue of sudden passion, he or she is entitled to an instruction on this mitigating circumstance, even if the evidence raising such an issue is contradicted, weak, impeached, or unbelievable. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003).

The question is whether there was any evidence from which a rational jury could infer such passion. Moore v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a sudden passion instruction at punishment. See Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). Finally, we note there is no requirement that evidence admitted at the guilt/innocence phase of trial be reoffered to be considered at punishment. Trevino, 100 S.W.3d at 238. Evidence on a punishment issue will often come out in the course of the State's own evidence regarding the circumstances of the offense itself, at the guilt/innocence phase of trial. Id.

Goodwin did not present any evidence which would raise the issue of sudden passion. Evidence of fear alone, or self-defense, is not sufficient evidence to raise sudden passion. The record must show some evidence of all the elements of Tex. Pen. Code Ann. 19.02(d) (Vernon 2003). An actor who fears for his or her life may coolly and deliberately dispatch his or her assailant without panic or hysteria. See Fry v. State, 915 S.W.2d 554, 559 (Tex. App. Houston [14th Dist.] 1995, no pet.). Evidence of fear is not enough unless the cause of the accused's fear could produce fear that rises to a level of terror which makes a person of ordinary temper incapable of cool reflection. Merchant v. State, 810 S.W.2d 305, 310 (Tex. App. Dallas 1991, pet. ref'd) (citing Daniels v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983)). Testimony that the defendant became enraged, resentful, or terrified immediately before the shooting adequately indicates such a state of mind. Havard v. State, 800 S.W.2d 195, 217 (Tex. Crim. App. 1989) (op. on reh'g) (holding appellant's testimony he was "emotionally hurt and mad at the time he raised his rifle" and feared for his life when he "saw two men with weapons drawn coming toward him" was sufficient to require sudden passion instruction). Since there is no evidence raising the issue of sudden passion, we cannot conclude that trial counsel's performance was deficient for failing to request such an instruction.

3. Failure to Offer Proof of Lifestyle and Violence

Goodwin also argues that the failure to make an offer of proof concerning the extraneous evidence of Ford's lifestyle and past violent acts rendered his attorney's performance ineffective. We disagree.

Goodwin's argument fails because the record does not indicate what such testimony would have been. Ineffective assistance of counsel claims "must be firmly founded in the record." Thompson, 9 S.W.3d at 813 14. There was no motion for new trial or other hearing which could have introduced evidence of such testimony. Since the record does not indicate what the testimony would have been, we do not know what evidence could have been presented raising this issue. Without knowing what evidence was sought, we cannot determine whether it would have been admissible. Not all acts of violence would be admissible only the acts which would demonstrate that Ford was the aggressor or that would illustrate Goodwin's reasonable apprehension would have been admissible. Direct appeal is a poor vehicle to bring an ineffective assistance of counsel claim. Direct appeals often present a limited record for review of the typical issues raised in an ineffective assistance point. // One way to get evidence of counsel's trial strategy or other matters in the direct appeal record is through a motion for new trial. Another way to develop a proper record is through a hearing in a habeas corpus collateral attack. See generally Tex. Code Crim. Proc. Ann. art. 11.01 .65 (Vernon 1977 & Supp. 2004).

Further, ineffective assistance of counsel claims must be based on the totality of the circumstances. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Although a defendant is entitled to effective assistance of counsel, the accused is not entitled to errorless or perfect counsel. Id. When considered in the totality of the circumstances, Goodwin has not shown that his trial counsel's performance was deficient. Because Goodwin has failed to show that his counsel's performance at trial was deficient, there is no need to examine the second prong of Strickland.

E. Legally Sufficient Evidence Supports the Verdict

In his fifth point of error, Goodwin alleges that the evidence was legally insufficient to support the jury's verdict. Specifically, Goodwin argues the State failed to prove that he intentionally or knowingly caused serious bodily injury and committed an act clearly dangerous to human life that caused Ford's death. We conclude there is sufficient evidence to support the jury's verdict.

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); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).

Goodwin argues that the evidence is insufficient to prove that he intentionally shot Ford. The State proved the requisite intent through circumstantial evidence. Proof of a culpable mental state generally relies on circumstantial evidence. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). Intent and knowledge can be inferred by the conduct of, the remarks of, and the circumstances surrounding the acts engaged in by the accused. Ybarra v. State, 890 S.W.2d 98, 109 (Tex. App. San Antonio 1994, pet. ref'd); Parramore v. State, 853 S.W.2d 741, 745 (Tex. App. Corpus Christi 1993, pet. ref'd). The State introduced sufficient circumstantial evidence that Goodwin acted intentionally or knowingly when he pulled the trigger. The shotgun was a 20 gauge pump action shotgun with no defects that would cause it to fire without the trigger being pulled. The shotgun had a four and one-half pound trigger pull, which is not a "hair trigger," but not extremely heavy. Lastly, Carol Ann Goodwin testified that, after Ford had been shot, Goodwin would not let her go outside to help Ford because the "S-O-B needed to die."

When viewed in a light most favorable to the prosecution, sufficient evidence exists that a rational juror could have concluded that Goodwin was guilty beyond a reasonable doubt. Ford died from a single shotgun wound to the chest. Goodwin admitted to shooting Ford. The forensic evidence was inconsistent with Goodwin's story. Bill Eubanks, an investigator with the Bowie County District Attorney's Office, testified that, based on the blood spatter, Goodwin had been sitting on the chair on the porch close to the wall of the house. Based on the combination of the height of the victim, the height of the porch, the trajectory of the shot as horizontal, and the blood spatter, Investigator Eubanks concluded that Ford had been standing on the concrete step in front of the porch. The front porch was seven feet nine inches from the front door to the edge of the porch. No soot or stippling were discovered on Ford's hands, although traces of antimony, barium, and lead, which are found in gunshot residue, were detected on his hands. Stippling is an abrasion on the skin caused by hot gunpowder. Soot or stippling should have been found on Ford's hands if they were within a foot of the barrel. The spreading of the shotgun pellets indicated that Ford's left hand was greater than one foot, but less than six feet away from the shotgun. The gunshot residue and lack of soot and stippling indicated that the hand was three to four feet from the shotgun. Because gunshot residue was also found on Ford's right palm, the right hand was up as well. Because a rational juror could have found Goodwin guilty beyond a reasonable doubt, legally sufficient evidence exits.

F. Factually Sufficient Evidence Supports the Verdict

Goodwin's sixth point of error contends the evidence was factually insufficient to support the jury's verdict. Specifically, Goodwin argues that the State failed to prove that he intentionally or knowingly caused serious bodily injury and committed an act clearly dangerous to human life that caused the death of Ford. There is sufficient evidence to support the jury's verdict.

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, No. 539-02, slip op. at 8, 2004 Tex. Crim. App. LEXIS 668, *20 (Tex. Crim. App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. 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. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. 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).

Goodwin's factual insufficiency argument focuses on whether the evidence showed he possessed the required culpable mental state to commit the murder as alleged in the indictment. Goodwin was charged with murder by (a) intending to cause Ford serious bodily injury, and (b) by pointing a gun at Ford, an act that is clearly dangerous to human life, and that act resulted in Ford's death. See Tex. Pen. Code Ann. 19.02 (a)(2). Goodwin contends that merely pointing a loaded shotgun at the victim is not, in and of itself, an act clearly dangerous to human life, and that the evidence does not show he intended to cause Ford serious bodily injury.

Goodwin argues that several pieces of evidence support his theory that the evidence is factually insufficient. First, Goodwin told police that he had wanted Ford to leave the house because Ford had apparently coerced Goodwin's daughter and nieces into smoking marihuana for the first time. Second, Goodwin told police that he had only displayed the weapon so as to intimidate Ford, but that Goodwin never intended to shoot Ford. Third, there was evidence that Ford had previously attacked Goodwin, who suffered from multiple sclerosis and was thereby unable to adequately defend himself. And, finally, the autopsy results confirmed Ford had used methamphetamine and marihuana before his death, a fact which tends to support Goodwin's theory that he wanted Ford to leave because of the drug use.

We have stated the facts of this incident in detail in the previous discussion of the legal sufficiency of the evidence. Among other things, this evidence shows that the firearm did not have a hair trigger; the blood spatter evidence indicating that the gun was from one to six feet from Ford when it discharged, refutes the contention that the gun was fired during a hand-to-hand struggle; and Goodwin showed no remorse.

When viewed in a neutral light, the evidence is factually sufficient. The credibility of the witnesses is within the province of the jury. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The jury was entitled to believe the State's version of the events. The evidence supporting the verdict, considered alone, is not too weak to support the jury's finding of guilt beyond a reasonable doubt. After weighing the evidence supporting and contravening the conviction, we conclude that the contrary evidence is not strong enough that the State could not have met its burden of proof.

We affirm the judgment of the trial court.

 

Jack Carter

Justice

Date Submitted: July 1, 2004

Date Decided: July 23, 2004

 

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