Opinion
NO. 01-18-00445-CR
08-01-2019
KENNETH DEAN MARTIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 371st District Court Tarrant County, Texas
Trial Court Case No. 1512908R
Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Court of Appeals for the Third District of Texas to this Court. See Misc. Docket No. 18-9049, Transfer of Cases from Courts of Appeals (Tex. Mar. 27, 2018); see also TEX. GOV'T CODE § 73.001 (authorizing transfer of cases). We are unaware of any conflict between precedent of that court and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
MEMORANDUM OPINION
Kenneth Dean Martin appeals his murder conviction. See TEX. PENAL CODE § 19.02. He argues that the evidence was insufficient to support his conviction and that the trial court abused its discretion by denying his motion for a mistrial. We affirm.
Background
Kenneth Dean Martin married Linda Martin in September 1995. Together they ran an HVAC business from their home in Flower Mound, Texas. Linda also worked as a real estate agent in the area. In September 2015, the couple separated at Linda's request, and divorce proceedings began. Kenneth moved out of the house while Linda remained. Some time after, Kenneth discovered that Linda was dating a younger man. The two men had a physical altercation at Kenneth and Linda's house, where Linda resided. The other man was charged with assault, but the charges were dismissed.
While the divorce was pending, Linda expressed worry and fear that Kenneth might hurt her. She told her daughter that she did not feel safe in her home. She installed a home alarm system and told the technician that she was concerned about her safety because of Kenneth. She told her sister, her friends, and a neighbor that she was worried Kenneth might kill her.
On May 31, 2016, Kenneth and Linda attended a divorce mediation at her attorney's Southlake office. Kenneth signed an agreement giving Linda their house, ranch, and $200,000, while he kept their business. Linda did not agree to the division and would not sign the agreement. They left the law office and got in their cars. While driving out of the parking lot, Kenneth saw Linda driving away in her car. He drove up behind her at a red light, got out of his car, walked up to her car with his .40 caliber Taurus handgun drawn, tapped on the driver's side window, and fired one shot through the window. He fired more rounds, some into the ground, before throwing the gun aside.
Witnesses in surrounding cars and the nearby shopping center observed the incident. After the shooting, they saw Kenneth go back to his car and retrieve a large manila envelope of papers. He returned to Linda's car, punched the glass out of the window, touched her face and moved her head, and forcefully threw the envelope at her.
Kenneth sat on the curb and called Linda's daughter to tell her that he shot Linda. He told her that he would not have shot Linda if she had rolled down her car window. He called 911 and told the operator the same information. The Southlake police arrested Kenneth when they arrived. They found Linda immobile in her Jeep. She was transported to the hospital with a gunshot wound to her face. Linda's injuries were fatal, and the hospital staff provided her with comfort care until she died.
Dr. Nizam Peerwani conducted an autopsy the next day. Linda had a gunshot entry wound at her cheek. The bullet traveled to the base of her skull, severing her left artery and causing significant bleeding. She also had injuries from the shattered glass, indicating the bullet went through the window before striking her. Dr. Peerwani opined that Linda had no chance of surviving the injury. He classified her death as a homicide caused by a gunshot wound to the left cheek.
The police recovered Kenneth's gun and shell casings from the ground near Linda's car. Firearms examiner Jamie Becker verified that the shell casings came from the .40 caliber Taurus recovered at the scene, and the bullet recovered from Linda's skull came from the same gun. Becker tested the gun and determined that it was operating as designed with a normal pull trigger. At trial, she stated that the gun was capable of causing serious bodily injury or death.
Kenneth was indicted for murder, and the case was tried to a jury. The jury found Kenneth guilty and assessed punishment at 20 years' imprisonment. The court sentenced Kenneth in accordance with the jury's verdict, and he appealed.
Sufficiency of the Evidence
In his first issue, Kenneth asserts that the evidence is insufficient to support his murder conviction because he did not intentionally or knowingly kill Linda. We disagree.
A. Standard of Review
When reviewing the sufficiency of the evidence to support a conviction, we consider all evidence in the light most favorable to the verdict to 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 (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 so we may not reevaluate those determinations and substitute our judgment for that of the factfinder. See TEX. CODE CRIM. PROC. art. 38.04; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). A factfinder 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). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Murray v. State, 457 S.W.3d 446, 449-50 (Tex. Crim. App. 2015). We determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Id. at 448; see Blea, 483 S.W.3d at 33.
B. Applicable Law
A person commits murder if he (1) intentionally or knowingly causes the death of an individual or (2) 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 § 19.02(b)(1), (2). Murder is a "result of conduct" offense, which means that the culpable mental state relates to the result of the conduct, causing the death. Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003); Gomez v. State, 499 S.W.3d 558, 562, (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CODE § 6.03(a); Reyes v. State, 480 S.W.3d 70, 76 (Tex. App.—Fort Worth 2015, pet. ref'd). A person acts knowingly when he is aware that his conduct is reasonably certain to cause the result. TEX. PENAL CODE § 6.03(b); Reyes, 480 S.W.3d at 76-77. Direct evidence of intent is not required. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). A jury may infer the intent to kill from any evidence that it believes proves the existence of that intent, including the accused's use of a deadly weapon. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). A jury may also infer intent or knowledge from circumstantial evidence, such as acts, words, and the conduct of the defendant. Hart, 89 S.W.3d at 64 ; see also Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009) ("[O]ne's acts are generally reliable circumstantial evidence of one's intent," (quoting Rodriguez v. State, 646 S.W.2d 524, 527 (Tex. App.—Houston [1st Dist.] 1982, no pet.))). When a deadly weapon is fired at close range, and death results, the law presumes an intent to kill. Scholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).
C. Analysis
The jury heard sufficient evidence from which it could have concluded that Kenneth murdered Linda. The jury heard from multiple witnesses that Kenneth was upset before he attended the mediation. He was upset at the prospect of dividing their property and because Linda was in a new relationship. Kenneth testified that on the day of the murder he was angry when Linda rejected his settlement offer, which gave her multiple properties and cash. Kenneth testified that he pulled directly behind Linda's car at a stoplight and walked up to her car, while another car was in front of hers, blocking her in. Nearby observers testified that Kenneth walked up with his handgun drawn, tapped on her window, and fired without hesitation. After discarding the gun, he retrieved a manila envelope of papers, returned to Linda's car, punched out the window, shook Linda's head, and threw the folder at her. Kenneth told 911 and his stepdaughter that he shot Linda. He also admitted shooting her to police. The evidence showed that Linda's death was caused by a single gunshot wound that severed an artery. The bullet recovered from her skull matched the gun recovered at the scene, and the gun was operating normally and would not have discharged without pulling the trigger.
At trial and on appeal, Kenneth argues that he did not know he had the gun with him when he got out of the car, that he did not know he pulled the trigger, and that he did not realize he was shooting Linda. The jury was free to disbelieve his testimony. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) ("The jury may choose to believe some testimony and disbelieve other testimony."); see also Carmon v. State, 456 S.W.3d 594, 604-05 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (holding evidence sufficient to support jury's finding that defendant intentionally murdered two victims even though defendant claimed shootings accidental because jury had power to resolve conflicts in testimony). The evidence presented allowed jurors to conclude that Kenneth intentionally or knowingly shot Linda at a close range or that he committed an act clearly dangerous to human life that caused her death. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014) (stating the jury may use common sense and apply knowledge, observation, and experience gained in ordinary affairs when drawing inferences such as intent from the evidence). We overrule appellant's first issue.
Denial of Motion for Mistrial
In his second issue, Kenneth complains that the trial court abused its discretion in denying his oral motion for a mistrial. Kenneth made the motion after Linda's sister's testimony included details the trial court previously excluded. The trial court sustained Kenneth's objection and instructed the jury to disregard the testimony.
A. Standard of Review
We review the denial of a motion for mistrial under an abuse of discretion standard. See Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011) (citing Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004)). We note that mistrial is viewed as an extreme remedy that is reserved for a very narrow classification of circumstances involving highly prejudicial and incurable errors. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Mistrial is to be used to halt proceedings when the error involved makes the expenditure of further time and expense wasteful and futile. See id. A trial court's decision to deny a motion for mistrial will be upheld when, if viewing the evidence in the light most favorable to the denial, it was within the zone of reasonable disagreement. See id. When the trial court gives a prompt instruction to disregard the testimony at issue, this ordinarily will cure any prejudice arising from the testimony. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam).
B. Analysis
Kenneth complains about the testimony of Linda's sister, Cindy Church. Before Church testified in front of the jury, the trial court ruled that she could not say that, in 1999 Linda told her that Kenneth would be responsible if she ever ended up hurt or dead. The trial court limited the testimony to Linda's expression of fear to Church in 1999. Despite the limitation, the testimony was:
[The State]: Did [Linda] ever express to you any fear that she would be killed by [Kenneth]?
[Church]: Yes, in 1999, when I didn't know anything about - anything going on in the marriage, she just told me that if she ever ended up hurt -
[The State]: No, no, ma'am.
[Defense counsel]: Judge, I'm going to object.
[Court]: Sustained.
[Church]: I'm sorry. I'm sorry.
[Defense counsel]: Ask that the jury be instructed to disregard.
[Trial court]: Jury will disregard the last statement of the witness.
[Defense counsel]: And, unfortunately, I have no other option but to request a mistrial.
[Trial court]: Denied.
To determine whether the trial court abused its discretion in denying Martin's mistrial motion, we apply the three Mosley factors which balance: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. Hawkins, 135 S.W.3d at 75 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g)).
Here, the misconduct was not severe and the court took steps to cure it immediately. The prosecutor's question did not call for the excluded testimony, Church was interrupted before completing her response, and the court immediately instructed the jury to disregard it. See Ludwig v. State, 428 S.W.3d 344, 350-51 (Tex. App.—Amarillo 2014, no pet.) (misconduct not severe when State's question did not call for complained-of response and response was addressed with jury instruction to disregard). Other than the truncated comment, the State did not mention the evidence again. See Hawkins, 135 S.W.3d at 83 (misconduct not severe when improper statement was isolated incident); see also Delacerda v. State, 425 S.W.3d 367, 388-89 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (misconduct regarding inadmissible evidence not severe where statement was not emphasized or mentioned during closing argument). Finally, the strength of the evidence absent the testimony supports the conclusion that the trial court did not abuse its discretion in denying the motion for mistrial. The record contained evidence that: Kenneth and Linda were in a contentious divorce; Linda had expressed worry that Kenneth would hurt her to other friends and family; on the day of the shooting, Kenneth was angry because Linda refused to sign a settlement offer regarding their marital property; Kenneth walked up to Linda's car and shot her; he admitted to multiple people that he did so; Linda suffered a fatal gunshot wound to her face that caused her death. It is highly unlikely that Church's interrupted reference to Linda's 1999 statement had an effect sufficient to warrant a mistrial. See Gomez v. State, 552 S.W.3d 422, 428-29 (Tex. App.—Fort Worth 2018, no pet.) (police officer's reference to previous family violence did not warrant a mistrial where significant evidence demonstrated defendant's guilt).
We overrule Kenneth's second issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice Panel consists of Justices Keyes, Kelly, and Goodman. Do not publish. TEX. R. APP. P. 47.2(b).