No. 09-05-468 CR
Submitted on March 13, 2007.
Opinion Delivered June 6, 2007. DO NOT PUBLISH.
Appeal On Appeal from the 359th District Court Montgomery County, Texas, Trial Cause No. 05-01-00322 CR.
Before McKeithen, C.J., Gaultney and Kreger, JJ.
DAVID GAULTNEY, Justice.
MEMORANDUM OPINION
Harold Wayne Bunkley appeals his conviction for the murder of his wife Linda Bunkley. See Tex. Pen. Code Ann. § 19.02 (Vernon 2003). Appellate counsel filed a brief that concluded no arguable error is presented in this appeal. We granted Bunkley an extension of time in which to file a pro se response brief, and he filed a brief presenting three issues for review. The State filed a letter waiving its right to file a brief. We find no arguable error requiring appointment of new counsel. We affirm the trial court's judgment. The Record
James Nickerson, Harold's son, testified that on the day of the shooting, Harold had been drinking beer and smoking crack cocaine. James indicated that Harold had expressed his anger regarding tensions in the household and Harold "was saying it in an angry way. He was . . . like, `I'm just sick of this going around the house . . . I'm tired of it[.] . . . I'm just sick of this and I'm not going to put up with this no more.'" James explained that later that day, he saw Harold lying on top of Linda on the floor. According to James, Harold pulled Linda's hair while yelling and cursing, and told her, "[Expletive deleted], I'm tired of you." Later that day, James saw Harold pushing Linda's head with his index finger while yelling and cursing at her. Linda asked Harold to leave her alone. The record indicates the shooting occurred sometime after these events. James explained that he was outside in the front of the house when he heard Harold yelling and cursing at Linda. He went into the house to use the bathroom, and when he came out of the bathroom he looked down a hallway. He testified that he saw Harold's back, and Harold's arm was raised parallel with his chest with Linda standing in front. James indicated that as Linda tried to move away from Harold by walking backward, James heard a gunshot and saw Linda fall onto a chair. James tried to assist Linda and then called the police. He testified that Harold went outside and James heard gunshots. Harold testified that he and his wife had a good relationship and he was not angry with her on the day of the shooting. He explained that on the day of the shooting, he had planned to take a trip with Linda and James. He indicated that the shooting was accidental. He testified that the gun discharged while it was in his hand, and he did not know how the gun "went off." He indicated that he did not murder his wife, but because a bullet from the gun killed his wife, he was responsible for her death. Harold testified that James was not in the house when the gun discharged. He called to James and told James he had "accidently shot" Linda and asked James to call 911. Harold then proceeded to take the gun outside and shot five cartridges. He testified that he "emptied [the gun] in the ground with anger and just threw it out there, just slung it as hard as I could." A police officer later retrieved the gun approximately fourteen feet from the home on the other side of a chain link fence. The Pro Se Brief
In his first issue, appellant argues the evidence is factually insufficient to conclude he acted with the intent to murder. He argues that the following facts weighed against a finding of intent: his testimony that he accidently shot Linda when his gun malfunctioned and discharged; his testimony that he and Linda had a good relationship and he was not angry with Linda on the day of the shooting; evidence that because he and Linda had scheduled a trip for that day and had Thanksgiving dinner the previous day, he could not have planned her murder; and his testimony that James Nickerson, the State's witness, was not at the scene during the shooting and did not witness the shooting. Appellant also appears to argue that trial counsel provided ineffective assistance of counsel for failing to subpoena certain witnesses, failing to obtain the pathologist's report, failing to provide evidence on the trajectory of the bullet, and failing to impeach the testimony of certain witnesses. In his second issue, appellant asserts the jury charge failed to define "reasonable doubt." Appellant argues that the "beyond a reasonable doubt" standard should have been defined in accordance with the definition provided in Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991), overruled by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). Appellant further asserts that Geesa was incorrectly overruled. In issue three, appellant argues the trial court improperly admitted extraneous offense evidence and failed to provide the jury with a limiting instruction. Harold complains of the admission of an arrest that occurred in 1996 after he pointed a gun at Linda and threatened to kill her. Harold was charged with aggravated assault, pled guilty, and was placed on community supervision. In October 2001, he was arrested after an incident when he attacked Linda while carrying a gun. The charges were later dropped after a family member filed an affidavit of non-prosecution. In October 2004, approximately one month before the shooting, Harold was charged with aggravated assault after he pointed a knife in Linda's face and threatened her. This charge was still pending when the shooting occurred. The State tendered this evidence to show the previous relationship between Harold and the victim, as well as Harold's state of mind. The trial court reviewed the evidence during a hearing and found that the misconduct evidence was relevant apart from its tendency to prove that Harold acted in conformity with the conduct and its probative value was not substantially outweighed by unfair prejudice. Appellant did not request a limiting instruction when the evidence was admitted. No Arguable Issue
The Court of Criminal Appeals directs that we not address the merits of issues raised in Anders briefs or pro so responses. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005). Rather, an appellate court may determine either: (1) "that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error"; or (2) "that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues." Id. We have determined this appeal is wholly frivolous. We have independently examined the clerk's record and the reporter's record, and we find no arguable error. See id. Appointment of new counsel is not required. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). Appellant is free to file a petition for discretionary review raising error by this Court in the instant appeal. See Bledsoe, 178 S.W.3d at 827. We affirm the trial court's judgment. AFFIRMED.