Michael Lee Smith v. The State of Texas--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00051-CR

Michael Lee Smith,

Appellant

v.

The State of Texas,

Appellee

From the 82nd District Court

Falls County, Texas

Trial Court No. 8325

MEMORANDUM Opinion

Smith appeals his conviction for manslaughter. See Tex. Penal Code Ann. 19.04(a) (Vernon 2003). We affirm.

In two issues, Smith contends that the evidence of recklessness was insufficient. The Texas Penal Code creates the offense of manslaughter in the following terms: A person commits an offense if he recklessly causes the death of an individual. Tex. Penal Code Ann. 19.04(a). Because manslaughter is a result-oriented offense, the definition of the culpable mental state is limited to the result of the conduct. Perez v. State, 216 S.W.3d 855, 857 (Tex. App. Corpus Christi 2006, pet. ref d). Penal Code Section 6.03 describes the culpable mental state of recklessness in the following terms:

A person acts recklessly . . . with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor s standpoint.

Tex. Penal Code Ann. 6.03(c) (Vernon 2003). [A]t the heart of reckless conduct is conscious disregard of the risk created by the actor s conduct[.] Williams v. State, 235 S.W.3d 742,751 (Tex. Crim. App. 2007) (quoting Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975)) (2nd alteration in orig.).

[I]n addressing the culpable mental state of recklessness under section 6.03(c), the factfinder (and a reviewing court) must examine the defendant s conduct to determine whether

(1) the alleged act or omission, viewed objectively at the time of its commission, created a substantial and unjustifiable risk of the type of harm that occurred;

(2) that risk was of such a magnitude that disregard of it constituted a gross deviation from the standard of care that a reasonable person would have exercised in the same situation (i.e., it involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others )[;]

(3) the defendant was consciously aware of that substantial and unjustifiable risk at the time of the conduct; and

(4) the defendant consciously disregarded that risk.

Williams, 235 S.W.3d at 755-56 (internal footnotes omitted) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994)) [(quoting Tex. Penal Code Ann. 6.03(c))]; see Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005) (quoting Lewis, 529 S.W.2d at 553). Recklessness requires the defendant to actually foresee the risk involved and to consciously decide to ignore it. Williams at 751. Recklessness is a devil may care or not giving a damn attitude toward the risk. Id. at 751-52. A defendant need not be aware of the specific risk of another s death in order to commit manslaughter. Trepanier v. State, 940 S.W.2d 827, 829 (Tex. App. Austin 1997, pet. ref d); accord In re K.W.G., 953 S.W.2d 483, 487 (Tex. App. Texarkana 1997, pet. denied) (juvenile adjudication).

[P]roof of a culpable mental state generally relies on circumstantial evidence. Lopez v. State, 630 S.W.2d 936, 942 (Tex. Crim. App. [Panel Op.] 1982) (quoting Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978)); see In re S.S., 167 S.W.3d 108, 111 (Tex. App. Waco 2005, no pet.) (juvenile adjudication); Gahagan v. State, No. 01-06-00062-CR, 2007 Tex. App. LEXIS 7842, at *11 (Tex. App. Houston [1st Dist.] Sept. 27, 2007, no pet.). The issue is not one of theoretical possibility, but one of whether, given all the circumstances, it is reasonable to infer that the particular individual on trial was in fact aware of the risk. Lopez at 942 (quoting Dillon at 94); see In re E.U.M., 108 S.W.3d 368, 370 (Tex. App. Beaumont 2003, no pet.) (juvenile adjudication).

Legal Sufficiency. In Smith s first issue, he argues that the evidence was legally insufficient.

In assessing the legal sufficiency of the evidence . . . , we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Williams, 235 S.W.3d at 750 (internal footnote omitted) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); cf. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002); Gollihar v. State, 46 S.W.3d 243, 257-58 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). [C]ourts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review. Evans v. State, 202 S.W.3d 158, 165 n.27 (Tex. Crim. App. 2006) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 821 (Tex. 2005)). A legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence. Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (quoting Cardenas v. State, 30 S.W.3d 384[, 389] (Tex. Crim. App. 2000)); McIntyre v. State, No. 10-06-00196-CR, 2007 Tex. App. LEXIS 2350, at *2 (Tex. App. Waco Mar. 21, 2007, pet ref d) (not designated for publication) (mem. op.).

Under a legal sufficiency review, our role is not to become a thirteenth juror. This Court may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder. Williams, 235 S.W.3d at 750 (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)); see Reeves v. State, 145 Tex. Crim. 208, 211, 167 S.W.2d 176, 178 (1942) (op. on orig. submission). Thus, reviewing courts give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Williams at 750 (quoting Hooper, 214 S.W.3d at 13) (internal quotation marks omitted); accord Clewis v. State, 922 S.W.2d 126, 152 (Tex. Crim. App. 1996); see Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

The State points primarily to the following evidence. The victim, Hilda Hodges, was 83 years of age at the time of her death and in poor health. Hodges had an enlarged heart, hardening of the arteries, and bad knees, and used a walker. Smith sometimes lived, and frequently visited Hodges s granddaughter Gabriael Watkins, in Hodges s house, where Watkins lived, and was able to observe Hodges s condition. When Smith repeatedly assaulted Watkins and Watkins s infant child, Hodges, cripp[l]ed . . . over, attempted to intercede. (State s Br. at 3 (quoting 2 R.R. at 210) (alterations added).) Smith pushed Hodges to the ground so that her head hit Watkins s leg. Hodges was then unconscious, and never regained consciousness. The physician who examined Hodges s body testified that she died from cardiac arrest sustained during a physical assault. (Id. at 7 (quoting 3 R.R. at 97) (emphasis added in State s Br.).) Concerning Smith s actions causing Hodges s death, the physician testified: When you feel your life is threatened, it s a rush of adrenaline. It s going to cause the heart to to finally stop. (Id. at 8 (quoting 3 R.R. at 99).)

Smith argues generally that [t]he State failed to show that Mr. Smith had a reckless mental state. (Br. at 10.) Smith s specific arguments, however, appear to concern causation.[1] Smith argues:

Here, the contact leading to the allegations was a push that caused the alleged victim to fall straight back. 2 RR 196. According to [Smith] s former girlfriend [Watkins], it was at this time that Ms. Hodges suffered the heart attack. 2 RR 213. However, medical testimony showed that it was not the push, but the excitement and fear surrounding the incident that lead [sic] to the heart attack. 3 RR 99; see 5 RR State s Ex. 14.

(Br. at 10-11.)

Viewing the evidence in the light most favorable the verdict, we hold that a rational juror could have found beyond a reasonable doubt that Smith was aware of the risk to Hodges and caused her death. The evidence was legally sufficient. We overrule Smith s first issue.

Factual Sufficiency. In Smith s second issue, he argues that the evidence was factually insufficient.

Evidence may be factually insufficient if: 1) it is so weak that the verdict is clearly wrong and manifestly unjust or 2) the adverse finding is against the great weight and preponderance of the available evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); see Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). [T]he evidence . . . is factually insufficient if it is so weak that the jury s verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury s verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry at 854 (citing Watson at 414-15); see Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Such a factual sufficiency review requires the reviewing court to consider all of the evidence. Berry at 854 (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007)). [T]he evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007) (citing Johnson, 23 S.W.3d at 7). A clearly wrong and unjust verdict occurs where the jury s finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Berry at 854 (citing Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003)); accord Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). [A]n appellate court must first 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 before it is justified in reversing for factually insufficient evidence. Watson at 417 (emphasis in orig.).

Smith does not point to any evidence contrary to the verdict. Smith argues that the evidence shows that the heart attack brought on by the excitement of the alleged assault was not the result of a conscious decision by Mr. Smith to ignore the risk, and that the record fails to establish under factual sufficiency grounds that Mr. Smith knew or had reasonable cause to apprehend that his actions might endanger the life of Ms. Hodges. (Smith Br. at 12, 13.) The State adds that Smith pushed Hodges [h]ard, and adds details of the violence of Smith s assaults on Watkins and Watkins s child. (State Br. at 13 (quoting 2 R.R. at 196); see Br. at 9-13.)

Considering all the evidence in a neutral light, we hold that the jury s finding that Smith was aware of and disregarded the risk to Hodges is not clearly wrong or manifestly unjust, and is not against the great weight and preponderance of the evidence. The evidence was factually sufficient. We overrule Smith s second issue.

Conclusion. Having overruled Smith s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 27, 2008

Do not publish

[CR25]

[1] The Penal Code describes causation in the following terms: A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex. Penal Code Ann. 6.04(a) (Vernon 2003). An accused may be exonerated under the statute only if his conduct alone was clearly insufficient to produce the result and the concurrent cause clearly sufficient, operating alone, to do so. Felder v. State, 848 S.W.2d 85, 90 n.1 (Tex. Crim. App. 1992) (quoting Branch v. State, 774 S.W.2d 781, 784-85 (Tex. App. El Paso 1989, pet. ref d)); see McFarland v. State, 928 S.W.2d 482, 516 (Tex. Crim. App. 1996). [I]t is a jury, not a reviewing court, that accepts or rejects reasonably equal competing theories of causation. Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004), overruled in part on other grounds, Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006) (Zuniga quoting Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001)).