Wanda Blackwelder v. The State of Texas--Appeal from 3rd District Court of Anderson County

NO. 12-06-00192-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WANDA BLACKWELDER, APPEAL FROM THE THIRD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Wanda Blackwelder appeals from her conviction for murder. In two issues, she argues that the evidence is factually insufficient to support her conviction and that the court improperly instructed the jury. We affirm.

Background

Fred Hayes married Appellant when he was eighty two years old. His health had declined, and he needed someone to care for him. Appellant, who was in her fifties, agreed to move in with him and care for him. They married, in part, because Hayes believed that he should not live with a woman unless he was married to her. Shortly after they were married, the two had a will drafted in which they left their property to one another. Less than a year later, Appellant killed Fred. The assault that ended in his death was particularly brutal. An expert who examined his body testified that Hayes had fifty eight separate and unique impact sites on his head, the result of blows from a hard object, as well as numerous other injuries. Appellant told the police that she hit Hayes with a metal peacock to knock some sense into him. Hayes also had human bite marks on his arm, back, and the back of his knee. The bites were inflicted shortly before he died, and an expert testified that Appellant is the one who bit Hayes on the back. At some point after the assault, Appellant dragged Hayes to the bathroom where she attempted to clean him up. She took a shower herself, and called the police. The police arrived and found Hayes dead and blood throughout the home, including on the ceiling of the living room.

An Anderson County grand jury indicted Appellant for murder. A trial was held, and she was convicted of murder. In the punishment phase of the trial, the jury considered whether she acted in sudden passion, determined that she did not, and assessed punishment at thirty years of imprisonment. This appeal followed.

Factual Sufficiency of the Evidence

  In her first issue, Appellant argues that the evidence is factually insufficient to support the verdict.

Standard of Review and Applicable Law

We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury s verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414 15, 417 (Tex. Crim. App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the Jackson v. Virginia1 standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When we review the factual sufficiency of the evidence, we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict. See Clewis, 922 S.W.2d at 133. But our evaluation should not substantially intrude upon the jury s role as the judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164.

As charged in the indictment, the State was required to prove either that Appellant intentionally or knowingly caused the death of Fred Hayes by striking him with a deadly weapon or, with the intent to cause serious bodily injury, committed an act clearly dangerous to human life that caused Fred Hayes s death. Tex. Penal Code Ann. 19.02(b)(1), (b)(2) (Vernon 2006).

Analysis

Appellant does not argue that she did not kill Hayes. Rather she argues that she did not have the intent to cause his death or to cause serious bodily injury. The theory she presented at trial and on appeal is that she simply snapped and that she therefore acted without intent. She offers the following evidence in support of this theory.

1) Appellant did not flee the scene and called 911.

2) Appellant told law enforcement officers that she simply wanted to get away from Hayes and did not intend to cause him serious harm.

3) A nurse who examined Appellant thought her story was plausible when she first heard it.

4) A former sheriff s deputy, who assisted in the investigation, testified that it was possible that Appellant s version of events was correct and possible that she did not intend to harm Fred.2

Generally speaking, intent is a matter of fact to be determined from all of the circumstances surrounding an action. See Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998). A defendant s intentions or mental state can be inferred from circumstantial evidence, such as his words, acts, and conduct. See id.; Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Indeed, it is often the case that there is not a statement of intent, and so the finder of fact is guided principally by the inferences drawn from the actions of the defendant. In this case, there is a statement of intent, or rather a statement of a lack of intent. Appellant told several people that she did not intend to hurt Fred or to kill him. She stated that she just snapped.

A person acts intentionally if it is her conscious desire to engage in certain conduct or to cause a certain result. See Tex. Penal Code Ann. 6.03(a) (Vernon 2006). A person acts knowingly if she is aware of the nature of her conduct and is aware that her conduct is reasonably certain to cause a certain result. See id. 6.03(b). Assuming that it is possible for a sane person3 to strike a man more than fifty times with a heavy metal statue without being aware of the nature of the conduct or the likely result, we are not persuaded that there is any failure of proof on the issue of intent.

It is true that Appellant stated after the fact that she did not intend to kill or injure Hayes and that there was not evidence of premeditation or an attempt to escape the jurisdiction. But the jury was not required to believe Appellant s account of her mental state. The physical evidence provides another reasonable inference. The jury reasonably concluded that a person who hits a frail, eighty three year old man in the head with a metal statue more than fifty times either intended that person s death or would be aware that such conduct could cause death or serious bodily injury. See Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003) (jury could infer the intent to kill from the use of the deadly weapon). Additionally, the examining nurse testified that while Appellant s story sounded plausible when she first heard it, she eventually concluded that the story had too many gaps in the time line for her to completely believe Appellant s account. The sheriff s deputy testified that he did not believe Appellant intended to kill Fred, just that there was an altercation and she lost control.

Given the severity of the beating, the length of time it would have taken to administer, and the sheer gore of the crime scene, at least some of which would have been present before the beating was completed, coupled with the age and infirmity of the victim, there is sufficient evidence for the jury to conclude that Appellant acted with intent to kill or seriously injure Hayes when she assaulted him. We overrule Appellant s first issue.

Jury Charge

In her second issue, Appellant argues that the trial court committed egregious error in its charge to the jury.

Standard of Review

When there is no objection to a jury charge, we review any error for egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In evaluating that question, we consider 1) the charge itself, 2) the state of the evidence, including contested issues and the weight of the probative evidence, 3) the arguments of counsel, and 4) any other relevant information. See Martin v. State, 200 S.W.3d 635, 642 (Tex. Crim. App. 2006). The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm is a difficult standard to meet and must be determined on a case by case basis.Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).

The Charge

The relevant part of the charge is as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 18th day of May 2004 in Anderson County, Texas the defendant, Wanda Blackwelder, did then and did then and then and there [sic] intentionally or knowingly cause the death of an individual, Fred Marion Hayes, by causing blunt sharp force injuries by striking Fred Marion [Hayes] with an object or objects including a statue that in the manner of its use or intended use was capable of causing death or with the intent to cause serious bodily injury to Fred Marion Hayes, commit an act clearly dangerous to human life, namely by striking Fred Marion Hayes with an object or objects including a statue that in the manner of its use or intended use was capable of causing death or serious bodily injury then you will find the defendant guilty of murder . . . .

Analysis

  The relevant statute provides that a person is guilty of murder if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. 19.02(b)(2). The underscored words are not in the quoted passage of the jury charge. They were present, however, in the beginning part of the jury charge where the trial court instructed the jury that a person commits murder if she intends to cause serious bodily injury and intentionally or knowingly commits an act clearly dangerous to human life that causes the death of an individual.

Appellant argues, citing Johnson v. State, 770 S.W.2d 72, 75 (Tex. App. Texarkana 1989), aff d on other grounds, 815 S.W.2d 707 (Tex. Crim. App. 1991), that the trial court s instructions erroneously permitted the jury to convict her without finding that she had killed Fred Hayes. In Johnson, the trial court gave a very similar instruction, and the Sixth Court of Appeals found that it erroneously permitted a conviction without proof that the defendant caused the death. Id.

We agree with the State that it is possible to read the quoted passage and not conclude that a conviction is authorized without proof that Appellant killed Hayes.4 Nevertheless, Johnson is directly on point and, therefore, we will assume that there was error. Because there was no objection to the jury charge, the question is whether Appellant suffered egregious harm. See Almanza, 686 S.W.2d at 171.

Appellant suffered no harm, and certainly did not suffer the kind of harm that went to the very basis of the case, vitally affected her defensive theory, or otherwise denied her a fair trial. See id. at 174; Martin, 200 S.W.3d at 640. The jury was instructed properly on the definition of murder in an earlier part of the charge. Furthermore, no party argued that Appellant did not kill Hayes or that a conviction was appropriate without proof that she killed him. Appellant did not argue that she did not kill Hayes, and she admitted that she had killed him to several witnesses. The harm in this case was purely hypothetical, and we perceive no danger that the jury concluded they could convict Appellant of murder even if they did not find that she caused his death. We conclude, as did the court in Johnson, that Appellant did not suffer egregious harm. We overrule Appellant s second issue.

Disposition

Having overruled Appellant s two issues, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered July 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

2 Appellant also directs our attention to the testimony of Dr. David Self. Dr. Self testified in the punishment phase of the trial, and so we do not consider his testimony for purposes of the factual sufficiency of the evidence supporting the guilty verdict.

3 Appellant did not interpose an insanity defense.

4 The State argues that, properly read, the court authorized a murder conviction if the jury found that Appellant caused Hayes s death 1) by intentionally killing him or 2) by committing an act clearly dangerous to human life with the intent to cause serious bodily injury. This is a plausible reading of the charge, but it differs from the earlier rendition of the law in the charge.