Robert Everett Winsett v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00325-CR
No. 02-18-00326-CR
___________________________
ROBERT EVERETT WINSETT, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court Nos. 1488017D, 1488018D
Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Robert Everett Winsett appeals from his two convictions for
aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2). He
argues that the evidence was insufficient to support the jury’s deadly-weapon findings
and that he was harmed by the trial court’s failure to include a mistake-of-fact
instruction in one of the jury charges. Because Winsett’s sufficiency arguments go to
credibility issues, which is not a proper inquiry in a sufficiency review, and because he
was not entitled to a mistake-of-fact instruction, we affirm the trial court’s judgments.
I. BACKGROUND
Amy Miller, her adult daughter Amber, and Amy’s boyfriend Winsett lived
together in Winsett’s home. On February 17, 2017, at around 3:00 a.m., Amber was
awakened by Winsett, who was being loud because he was “very drunk” and angry.
Amber asked Amy to do something to calm Winsett down. According to Amber,
Winsett overheard her and angrily responded, “‘What the [expletive] did she just say,’
something about me telling him what to do in his house and we ‘can get the
[expletive] out.’” Winsett then punched Amber in the face multiple times with his fist.
Amy stepped in front of Amber, and Winsett pushed her and hit her in the face as
well.1 Winsett then briefly left the room and reappeared, holding a knife. Winsett
Amy stated that the hardness of Winsett’s punch was a ten on a ten-point
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scale.
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said, “You’re going to die. We’re all going to die tonight.”2 Amber and Amy began
screaming, and Amy again stepped between Winsett and Amber. Winsett continued
to threaten them with the knife for several minutes. Winsett got distracted at some
point, and Amber fled the house and called the police.
Drake spoke with Amber about the assault that same day. Amber recounted
what happened and described the knife Winsett brandished as being a “10- to 12-inch
blade knife with an 8- or 7-inch handle, with a black handle on it.” Amy gave Wilson
her statement and described the knife Winsett brandished as a “large knife.”3 Officers
obtained a search warrant for Winsett’s home to find a butcher knife that was
approximately 12 inches long with a black and metal handle. Officers found a knife in
the kitchen that was approximately 13 inches long from the bottom of the handle to
the tip of the blade. The blade was approximately eight inches long, and the handle
was dark brown with three silver rivets. Officer Joseph Pawlewicz, a certified forensic
death investigator who found the knife in Winsett’s kitchen, opined that it was
capable of causing death or serious bodily injury and would be considered a deadly
weapon. No forensic analysis of the knife was conducted.
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Amber told Officer David Drake that Winsett, “while holding a large knife,”
also said, “I’ll cut you from your [slang for female sexual organ] to your mouth!”
Amy reported this same statement to Detective Kendra Wilson on the day of the
assaults.
3
A few days later, Amy gave Wilson a written statement in which she described
the knife “as a butcher knife that [Winsett] retrieved out of the drawer in the kitchen.”
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Winsett was indicted with the aggravated assaults of Amy and Amber with a
deadly weapon—the knife. The indictments included repeat-offender notices, alleging
that Winsett had been convicted of murder in 1993. Winsett pleaded not guilty to the
indicted charges, and true to the repeat-offender notices. At trial, Amber testified that
the knife found at and seized from Winsett’s home was the same knife he brandished
at her and Amy. Amy described the knife Winsett used as a “butcher knife” and also
identified the knife seized from Winsett’s house as the knife Winsett brandished
during the assaults. A jury found Winsett guilty of both assaults, found that he had
used a deadly weapon during their commission, found that the repeated-offender
notices were true, and assessed his punishment at 22 years’ confinement for each
offense. The trial court entered judgments in accordance with the jury’s verdicts and
ordered the sentences to run concurrently.
II. SUFFICIENCY TO SUPPORT DEADLY-WEAPON FINDINGS
Winsett contends in his first point that the evidence was insufficient to support
the jury’s deadly-weapon findings because the knife found in Winsett’s house was five
inches shorter than the knife Amber described to Drake, because Amber’s and Amy’s
“stories of the event differed,” and because no forensic evidence showed that the
knife actually was the knife used in the assaults.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential elements of
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the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The trier of fact is the
sole judge of the weight and credibility of the evidence; thus, we may not re-evaluate
those determinations and substitute our judgment for that of the fact-finder. See Tex.
Code Crim. Proc. Ann. art. 38.04; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App.
2016). We must presume that the fact-finder resolved any conflicting inferences in
favor of the verdict and defer to that resolution. Murray v. State, 457 S.W.3d 446, 448–
49 (Tex. Crim. App. 2015); see Blea, 483 S.W.3d at 33. In other words, a fact-finder is
entitled to “believe all, some, or none of the testimony presented by the parties.”
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Here, the jury heard that both Amber and Amy told police on the day of the
assaults that Winsett brandished a knife while threatening them with death. The knife
recovered by police from Winsett’s kitchen was admitted into evidence and shown to
the jury. Amber’s specific description of the knife differed in certain minor respects
from the knife found in Winsett’s kitchen; but both Amber and Amy testified that the
knife seized from Winsett’s kitchen was the knife he had used to threaten them. We
defer to the jury’s resolution of weight and credibility determinations inherent in its
deadly-weapon findings and conclude that the evidence was sufficient to support
them. See, e.g., Johnson v. State, 509 S.W.3d 320, 324 (Tex. Crim. App. 2017)
(“[A]lthough Amelia testified that she could not describe the length, size, or shape of
the blade, the jury could have inferred some information about the knife from the
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video [of the crime] even though the knife was not entered into evidence.”); Black v.
State, No. 2-05-388-CR, 2006 WL 2507325, at *5 (Tex. App.—Fort Worth Aug. 31,
2006, pet. ref’d) (mem. op., not designated for publication) (“Although Officer
Dunn’s testimony regarding Ashley’s description of the knife potentially conflicts with
her description at trial, this conflict does not render the evidence insufficient.”). We
overrule point one.
III. MISTAKE-OF-FACT INSTRUCTION: ASSAULT ON AMY
In his second point, Winsett argues that in the jury charge regarding Winsett’s
assault on Amy, the trial court erred by not instructing on mistake of fact after
including an instruction on transferred intent. The State requested an instruction on
transferred intent, which the trial court included in the charge. See Tex. Penal Code
Ann. § 6.04(b). Winsett did not object to the inclusion of transferred intent but
asserted that because it was included, he was “entitled to a mistake of fact
instruction.” The trial court denied Winsett’s request, and Winsett submitted
proposed language, which was nothing more than a photocopy of the mistake-of-fact
statute. See Tex. Penal Code Ann. § 8.02.
We agree with the State that by failing to specify for the trial court what
mistake of fact Winsett was relying on to justify the instruction, he failed to preserve
this alleged error for our review.4 See Goodrich v. State, 156 S.W.3d 141, 147–48 (Tex.
4
We recognize that even unpreserved jury-charge errors are subject to appellate
review for egregious harm. See Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App.
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App.—Dallas 2005, pets. ref’d) (citing Williams v. State, 930 S.W.2d 898, 903 (Tex.
App.—Houston [1st Dist.] 1996, pet. ref’d)). See generally Tex. Code Crim. Proc. Ann.
art. 36.14 (requiring objection to omissions from charge to be distinct and specific as
to each ground of objection); Tex. R. App. P. 33.1(a)(1)(A) (requiring specificity of
objection to preserve error for appellate review). In any event, the inclusion of a
transferred-intent instruction does not automatically require the inclusion of mistake
of fact. A defendant “must always establish that, ‘through mistake,’ he ‘formed a
reasonable belief about a matter of fact’ such that ‘his mistaken belief negated the
kind of culpability required for commission of the offense.’” Rodriguez v. State,
538 S.W.3d 623, 630 (Tex. Crim. App. 2018) (quoting Tex. Penal Code Ann.
§ 8.02(a)). Because there is no evidence that Winsett did not intend to assault Amy,
negating the alleged culpable mental state, he did not make the requisite showing to be
entitled to a mistake-of-fact instruction. See, e.g., Maupin v. State, 930 S.W.2d 267, 268–
69 (Tex. App.—Fort Worth 1996, pet. ref’d). We overrule point two.
IV. CONCLUSION
Because Winsett’s sufficiency argument rests on evidence that was subject to
weight and credibility determinations made by the jury, which we may not second-
2013). However, the charge itself, the state of the evidence and the record, and
statements made to the jury reveal that Winsett was not egregiously harmed by the
exclusion of mistake of fact, which was not raised by the evidence. See Murray v. State,
No. 10-15-00123-CR, 2016 WL 4573087, at *5–6 (Tex. App.—Waco Aug. 31, 2016,
pet. ref’d) (mem. op., not designated for publication).
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guess, we conclude that the evidence was sufficient to support the jury’s deadly-
weapon findings. We also conclude that because Winsett’s objection to the absence
of a mistake-of-fact instruction was too general and because of the lack of any
evidence to support a mistake-of-fact instruction, the trial court did not err by denying
Winsett’s requested instruction. Accordingly, we affirm the trial court’s judgments.
See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: May 23, 2019
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