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 2002-11

MacKey, Donald Eugene v. State ( 2002 )


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  • Opinion issued November 14, 2002

















    In The

    Court of Appeals

    For The

    First District of Texas



    NO. 01-01-00276-CR



    DONALD EUGENE MACKEY, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the 337th District Court

    Harris County, Texas

    Trial Court Cause No. 810934



    O P I N I O N



    A jury found appellant, Donald Eugene Mackey, guilty of capital murder committed during a robbery. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 1999). The jury found that appellant would not constitute a continuing threat to society, which required the trial court to assess punishment at life in prison. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(g) (Vernon Supp. 2002). We address (1) whether the evidence is legally sufficient to prove appellant intentionally caused the victim's death; (2) whether the trial court erred by not submitting a felony-murder instruction that applied the law to the facts of the case; and (3) whether any error in excluding testimony concerning a videotape, found in the victim's residence, depicting interracial sex, was harmful. We affirm.

    Facts



    In 1996, Vicky Cooper hired appellant to transport cars between automobile dealers and auctions. Besides her driving business, Cooper was also responsible for a ministry, the purpose of which was to assist those in need. Cooper's efforts within the ministry helped appellant get into a work program. Also, Cooper personally assisted appellant in purchasing a car, with the agreement that appellant would repay her for the car.  

    Cooper's daughter, C.E., assisted in both the business and the ministry. Besides working together, the mother and daughter were neighbors; the two lived in separate residences at 88 White Road in Harris County.

    Cooper found C.E. naked, bloody, surrounded by vomit, and near death in C.E.'s home on the morning of March 5, 1999. C.E. was transported to Hermann Hospital and was in a coma when she was admitted. An examination revealed she had suffered a gunshot wound to the palm and little finger of her left hand. Gunpowder residue indicated the back of C.E.'s left hand had been in contact with the barrel of a gun when it was fired. She also had a puncture gunshot wound in the back of her head, forcing a piece of bone into her brain and causing bleeding. A CAT scan showed that she had brain damage and was experiencing pressure from the fluid around her brain.

    A nurse at Hermann Hospital performed a rape-kit examination. The nurse collected pubic hair and debris from under C.E.'s fingernails. The nurse also performed rectal and vaginal swabs. DNA analysis determined that appellant's semen and spermatozoa were on the vaginal smear.

    C.E.'s condition improved briefly, but because she had breathed vomit into her lungs, her lungs became inflamed, impairing her breathing. C.E. died approximately one month later in the hospital. She never regained consciousness to the degree necessary to have a conversation with anyone. The cause of death was the gunshot wound to her head.

    According to the medical examiner, it was possible for only one bullet to have caused the injuries to C.E.'s hand and head. Both the State's explanation of the injury and appellant's statement about it were consistent with the injuries. The State argued at trial that the wound resulted when C.E. was in a submissive position with her hand on the back of her head. The State insisted that the evidence of contact between C.E.'s hand and the gun's barrel indicated appellant had placed the gun against C.E.'s hand as he fired. Appellant's statement indicated C.E. struck the gun and caused him to fire the round that entered her hand and head.

    An investigation of C.E.'s home on March 5 revealed that an exterior screen had been removed from a porch window. Another window, between the porch area and the residential portion of the home, had been broken. Besides the broken window in the porch area, the residence did not appear to have been disturbed. A crime-scene investigator found a nine-millimeter bullet on the bed and a nine-millimeter casing under the bed. Additionally, the crime-scene investigator secured a bra, a t-shirt, and two videotapes from the residence. C.E. typically wore several pieces of jewelry, which were missing. Her billfold was also missing.

    Elsewhere that morning, appellant was arrested by a Fort Bend Independent School District police officer for truancy. After he was processed, appellant spontaneously told the police officer that he had raped and robbed a white woman at 88 White Road and that she might be dead. Appellant also told the officer that he had tossed the weapon in the bayou somewhere off Almeda Road.

    On the evening of March 5, appellant told a Harris County Sheriff's Officer that "those people did nothing but help him." On March 6, appellant gave the officer a written statement, in which he told the officer the following:

    I went to the front door and [C.E.] opened the door for me. She and I drank ice tea in the living room and we chit chat like we always do. We tossed it up. That just means to kick it and chill. Then we went to the bedroom and [had] sex like we always do. She is always trying to hurry up before her mother comes home. I then got dressed. I asked [C.E.] for some money, but she said she was tired of giving me money. I then smoked half a stick I had in the car and tripped out. I broke the window of her bedroom with the pistol. I did that just to scare her. She said I needed to stay off that shit. I climbed in through the window. She was screaming that I should stop the nonsense. I said, '[C.E.], just give me the money.' I had the gun pointed at her and she hit my hand with her hand and the gun went off. I had my finger on the trigger. I got scared and went out the door by the kitchen through the screen door. I then drove off in my car on Almeda towards downtown. I threw the pistol out of my car into the bayou by Hermann Park on Almeda. The gun was a black 9 millimeter. I drove to where I parked my car.



    Based on this statement, the police located appellant's car. Inside the car, the crime-scene investigator found a pistol holster and what appeared to be a spot of blood.

    Intentional Killing

    In his first point of error, appellant contends that the evidence is legally insufficient to establish beyond a reasonable doubt that he intentionally caused the death of C.E. because the circumstances give equal or near equal support to a theory of an accidental or unintentional shooting. The standard of review for legal sufficiency is to view the evidence in the light most favorable to the conviction and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993).

    Appellant contends that the evidence is not legally sufficient to show that he intentionally caused the death of C.E. because there are other plausible theories about precisely how the fatal shot was fired. Appellant argues that, because the pathologist agreed that more than one scenario could explain C.E.'s injuries, and because the autopsy findings support either theory, the jury could not have found beyond a reasonable doubt that the appellant intentionally caused C.E.'s death.

    Appellant relies on Wright v. State, 603 S.W.2d 838 (Tex. Crim. App. 1980). The Wright court held that, when circumstances do not exclude every other reasonable hypothesis except guilt, the conviction cannot be sustained. Id. at 841. The Texas Court of Criminal Appeals has long since abandoned this "other reasonable hypothesis" construct, however. See Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). When faced with a record that supports conflicting inferences, we must presume that the trier of fact resolved such conflicts in favor of the conviction and must defer to that resolution. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991); Tippitt v. State, 41 S.W.3d 316, 327 (Tex. App.--Fort Worth 2001, no pet.).

    Appellant's written statement indicated that he pointed the gun at C.E., with his finger on the trigger, while he demanded that she give him money. Use of a deadly weapon implies specific intent to kill, unless in the manner of use it is reasonably apparent that death or serious bodily injury could not result. Godsey v. State, 719 S.W.2d 578, 580-81 (Tex. Crim. App. 1986). Testimony of the pathologist at trial indicated that C.E. could have had her hand against the back of her head in a submissive position and that the gun's barrel could have been in contact with her hand when the weapon was fired. Further, appellant's statement indicates that he quickly left the scene without rendering aid or making an effort to get help for C.E. See Brooks v. State, 822 S.W.2d 765, 767 (Tex. App.--Houston [1st Dist.] 1992) (immediately fleeing scene suggests guilty mind), pet. granted on other grounds and cause remanded, 854 S.W.2d 659 (Tex. Crim. App. 1992); Tezino v. State, 765 S.W.2d 482, 485 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd) (failure to render aid known to be needed supports inference that injuries were intentionally inflicted).

    Viewing the evidence in the light most favorable to the conviction, any reasonable trier of fact could have found appellant intentionally caused C.E.'s death. We hold that the evidence is legally sufficient to support the jury's finding that appellant intentionally caused the death of C.E.

    We overrule appellant's first point of error.

    Jury Charge

    In his second point of error, appellant contends that the trial court committed reversible error by not submitting a felony-murder instruction that applied the law to the facts of the case. The jury charge read as follows:



    A person commits the offense of felony murder if he commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.



    Therefore, if you find from the evidence beyond a reasonable doubt that on or about the 5th day of March, 1999, in Harris County, Texas, the defendant, Donald Eugene Mackey, did then and there unlawfully, while in furtherance of the commission of the felony of robbery of [C.E.], or in immediate flight from the commission or attempted commission of the felony of robbery of [C.E.], commit an act clearly dangerous to human life that caused the death of [C.E.], namely, by shooting [C.E.] with a deadly weapon, namely a firearm, then you will find the defendant guilty of felony murder.



    Appellant proposed a jury instruction, which was denied, that contained the following language: "committed an act clearly dangerous to human life that caused the death of C.E., by pointing a loaded firearm at [her] and accidentally shooting her, then you will find the defendant guilty of felony murder." Appellant then suggested another jury instruction, which was also rejected, that contained the following alternative language: "by unintentionally shooting C.E. with a deadly weapon . . . ."

    A jury charge is adequate if it contains an application paragraph that (1) specifies all of the conditions to be met before a jury may convict under the applicable theory; (2) authorizes the jury to convict under conditions specified by other paragraphs of the charge, to which the application paragraph necessarily and unambiguously refers; or (3) contains some logically consistent combination of those paragraphs. Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled on other grounds, Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).

    The jury charge contained abstract definitions for "attempt," "robbery," "deadly weapon," and "felony murder," which definitions comported with the terms' statutory definitions. See Tex. Pen. Code Ann. §§ 1.07(a)(17), 15.01, 19.02(b)(3), 29.02 (Vernon 2001). The felony-murder application paragraph unambiguously referred to those abstract definitions and specified the conditions to be met to authorize a felony-murder conviction. Thus, the felony-murder instruction was adequate. See Plata, 926 S.W.2d at 304.

    Appellant argues that the application paragraph should have contained the words "accidentally" or "unintentionally." The Texas Code of Criminal Procedure prohibits the trial court from submitting a written charge to the jury that either expresses an opinion as to the weight of the evidence or sums up testimony. Tex. Code Crim. Proc. Ann. § 36.14 (Vernon 2001). A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986). Appellant's requested application-paragraph language would have suggested to the jury that the trial court thought appellant had accidentally or unintentionally shot C.E. Appellant's mental state was a controverted issue to be resolved by the jury, and appellant's requested charge language would have amounted to a comment on the weight of the evidence. If submitted, appellant's proposed language would have resulted in an erroneous charge.

    Because appellant's requested instructions were not proper and the charge given was adequate, the trial court did not err. Accordingly, we overrule appellant's second point of error.

    Exclusion of Testimony Concerning Videotapes

    In his third point of error, appellant contends that the trial court erred in excluding testimony concerning images of interracial sex on two videotapes found in C.E.'s residence. Appellant asserts the testimony was relevant and would have shown jurors that C.E. found the notion of sex between black men and white women acceptable. Also, appellant believes this testimony would have created some doubt about whether a rape had occurred. Appellant argues that the exclusion was a constitutional error that denied him the right to put on a defense and deprived him of a fair and impartial trial.



    At trial, a Harris County Sheriff's deputy stated that two pornographic videotapes were removed from C.E.'s home. Appellant's attorney asked, "What did it [the tape] show?" The trial judge sustained the State's objection as to relevance. Outside the presence of the jury, appellant made an offer of proof, during which he asked the deputy, "What was the race of the male and what was the race of the female?" The deputy went on to testify that the tape "starts out with a black male and a white female."

    Although we find the admissibility of the excluded testimony a close question, we will address the issue of harmlessness as if it had been error for the trial court to exclude the evidence. We must first determine whether the error is constitutional or other error. A. Constitutional or Other Error

    Appellant argues that the trial court's erroneous exclusion of this evidence prevented appellant from effectively presenting a defense to the rape allegation and thus amounted to a constitutional error. Appellant relies on Crane v. Kentucky and Brazelton v. State. Crane, 476 U.S. 683, 106 S. Ct. 2142 (1986); Brazelton, 947 S.W.2d 644 (Tex. App.--Fort Worth 1997, no pet.).

    In Crane, the defendant spontaneously confessed to murder after his arrest for an unrelated offense. Id., 476 U.S. at 684, 106 S. Ct. at 2143. In a pretrial hearing, the defendant moved to have the confession suppressed, alleging that the confession had been coerced. Id., 476 U.S. at 684, 106 S. Ct. at 2143-44. The trial court denied the defendant's motion. Id., 476 U.S. at 685, 106 S. Ct. at 2144. During trial, the trial court ruled that the defendant could not present evidence that went to the voluntariness of the confession, as that issue had been previously determined as a matter of law. Id., 476 U.S. at 686, 106 S. Ct. at 2144. In Crane, the United States Supreme Court specified that evidence about the manner in which a confession is obtained will often be germane to the confession's probative weight. Id., 476 U.S. at 688, 106 S. Ct. at 2145. The Supreme Court reversed, holding that the blanket exclusion of testimony concerning the circumstances of the defendant's confession deprived the defendant of a fair trial. Id., 476 U.S. at 690, 692, 106 S. Ct. at 2146-47.  

    In Brazelton, the defendant was convicted of a state-jail felony for the possession of marihuana. Id., 947 S.W.2d at 646. The defendant relied on the defense of necessity, asserting that, in the midst of a heated custody dispute, she was attempting to dispose of marihuana that her ex-husband had hidden in her home. Id. at 647. The trial court excluded character evidence that the defendant was not known to sell or use marihuana. Id. at 650. The Second Court of Appeals held that "evidence that the appellant did not use or sell drugs is a pertinent trait and an essential element" of the defense of necessity. Id.



    In both Crane and Brazelton, the excluded evidence deprived the defendant of the ability to put on a defense. Appellant argues that one piece of excluded evidence, which very indirectly indicates consent, deprived him of the ability to put on a defense. We disagree. Appellant was not subjected to a "blanket exclusion" that prevented him from putting on a defense, nor was the testimony an "essential element" of the defense of consent. Therefore, Crane and Brazelton are distinguishable.

    The appropriate standard of review for determining whether an error is of constitutional magnitude was recently assessed by the Court of Criminal Appeals. Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). The court held "that the exclusion of a defendant's evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Id.

    In Potier, the trial court erroneously excluded, as hearsay, evidence that further established the defendant's reasonable belief that he was acting in self-defense when he killed a neighborhood bully. Id. at 658, 665. The trial court excluded testimony that "on the day of the shooting 'the whole neighborhood' told [defendant] that the victim had come looking for him" and "that the victim was trying to kill him." Id. at 665. The trial court also excluded testimony indicating the victim had robbed the defendant two months before the homicide. Id. at 666. However, other evidence of the reasonableness of the defendant's belief that he was acting in self-defense was admitted. Id. at 665. Testimony indicated that everyone in the neighborhood was afraid of the victim and that, earlier in the day, the victim had told the defendant that he was going to kill him. Id. Also, there was testimony indicating that the victim had previously beaten up the defendant. Id. The Potier court concluded that the exclusion of the evidence was not constitutional error because the defendant had not been prevented from presenting a defense. Id. at 666.

    In the instant case, there was testimony indicating that there were no signs of a struggle at C.E.'s residence: her t-shirt was neatly folded, and the broken window was the only area of the house in disarray. The nurse who performed the rape kit did not testify to any evidence of force. This evidence still allowed the appellant to argue that C.E. had consented to sex. Unlike the excluded evidence in Potier, which strongly indicated that the defendant had acted in self-defense, the testimony here was, at most, a slight suggestion that the victim had approved of interracial sexual relationships. If the exclusion of stronger defensive evidence did not rise to constitutional error in Potier, then neither does the exclusion of the weaker defensive evidence offered here. We conclude that any error in excluding the testimony was not constitutional error.



    B. Applying Other-Error Analysis

    Any other error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial or injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Beal v. State, 35 S.W.3d 677, 685 (Tex. App.--Houston [1st Dist.] 2000, pet. granted). To determine whether the error had a substantial or injurious effect, the appellate court should review the record as a whole. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001). The review should include "everything in the record, including testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence." Id. A reviewing court should let a conviction stand if, after examining the record as a whole, it has fair assurance the error did not influence the jury or had but a slight effect. Id.

    Appellant asserts that the testimony would have created some doubt as to whether a rape had occurred. The record contains appellant's conflicting statements: one statement indicates that the sex was consensual, while the other statement confesses to rape. The rape kit indicated that appellant had some sexual contact with C.E., but there was no testimony from the nurse indicating that sex was not consensual. With the abundance of contradictory or ambiguous evidence that was admitted, it is doubtful that this single piece of testimony would have caused the jury to conclude that the sex was consensual. This is especially true because there was no way to know whose videotapes these were and whether C.E. watched the videotapes voluntarily, if she even watched them at all. Even if the jury had determined the sex was consensual, however, the evidence remained overwhelming that appellant murdered C.E. in the course of robbing her. Thus, after examining the record as a whole, we conclude that the error did not influence the jury or had but a slight effect at the guilt stage. As for punishment, there can be no harm at all because appellant received the minimum punishment for capital murder, life in prison. Accordingly, we must disregard any error. See Tex. R. App. P. 44.2(b).

    We overrule appellant's third point of error.



    Conclusion

    We affirm the judgment of the trial court.

      







    Tim Taft

    Justice



    Panel consists of Justices Taft, Alcala, and Price. (1)  



    Do not publish. Tex. R. App. P. 47.4.

    1.

    The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.