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Hewitt v. State

Court of Appeals of Texas, Fourteenth District, Houston
Nov 25, 2008
No. 14-07-00670-CR (Tex. App. Nov. 25, 2008)

Opinion

No. 14-07-00670-CR

Opinion filed November 25, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 1067237.

Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.


MEMORANDUM OPINION


A jury convicted appellant Donal Mark Hewitt of murder and sentenced him to 25 years' incarceration in the Texas Department of Criminal Justice, Institutional Division. In three issues, appellant asserts that the evidence is legally and factually insufficient to support his conviction and that he received ineffective assistance of counsel. We affirm.

I. BACKGROUND

During the early morning hours of May 1, 2006, appellant shot his wife, Kimberly Hewitt. According to appellant's statement, Kim came home from her mother's apartment the evening before the shooting at around 10:00 p.m. She became angry because a dog had wet the bed and appellant had not changed the sheets. After changing the sheets, she told appellant she would not be sleeping in the room with him and would instead sleep in one of their daughter's rooms. Appellant stated he fell asleep after this altercation. Appellant explained that he had been sleeping with his gun in his bed for several days because of crime in the area. He said that he had the gun in his hand when he went to bed that night. Although he did not expect Kim to come to bed with him that night, at some point she came into the room and got into the bed. Appellant stated that he was lying in bed on his back, while Kimberly was lying on her left side on the left side of the bed. According to appellant, "I felt something push against the gun. The gun went off. . . . Kim yelled, 'I have been shot! Call me an[] ambulance!' I put the safety on the gun and threw [it] to the foot of the bed. I got the phone from [the] dresser and called 911." When asked if he shot Kim, he responded, "Yes sir, I guess I did. I feel bad about it." After appellant was arrested and indicted for the offense of murder, his jury trial commenced. At his trial, a former live-in acquaintance of the family, Kara Murphy, testified for the State. Murphy, a former drug addict who met appellant at a "dope house" and became friends with him, testified that appellant's family helped her by giving her clothes. She stated she moved in with his family in January 2006 and became good friends with Kim. According to Murphy, she slept on a pull-out couch in the living room of appellant's house. Although she did not pay rent, she helped out around the house. Murphy described appellant and Kim's relationship as follows:
The relationship they had was one of a couple that had been married for a long time. They like nagged at each other over little stuff. It wasn't a bad relationship. It wasn't a great relationship. It — there wasn't a lot of passion in it, but it's what it was.
Murphy testified that appellant was upset with Kim the night before the shooting because Kim did not make dinner. She also stated that Kim was in a "bad mood" because she had to stay late babysitting her nephews. According to Muphy, appellant and Kim began nagging at each other, and the nagging escalated into an argument involving cursing. Murphy explained that she intervened at that point and got Kim to come talk with her, while appellant went to bed. Murphy stated that Kim told her she was not going to sleep in the room with appellant and was instead going to sleep in one of her daughters' rooms. Murphy testified that she went to bed around midnight. She stated that Kim decided to sleep in her own room. After Kim went into the bedroom with appellant, Murphy heard some arguing coming from the room, although Muphy stated it was not very loud. According to Murphy, her cell phone rang and woke her up at 1:23 a.m. She explained that she could still hear appellant and Kim arguing at that time, although they were arguing quietly. At around 3:00 a.m., Murphy testified that she awakened to hear appellant screaming Kim's name; she stated she witnessed a "very chaotic" scene. She heard appellant's daughters screaming that their mom was dead. Appellant handed her a phone with a 911 operator on the line. Murphy stated that she saw Kim lying on the bed and knew she was dead, even though appellant was "almost trying" to perform CPR. She described appellant's demeanor as "panicking, frantic, upset" and stated that he was "yelling like he didn't know what happened." According to Murphy, police officers arrived on the scene very quickly after the 911 phone call. The officers went into the house with their hand guns drawn and sent appellant's daughters outside. She testified that neither she nor appellant's two daughters knew what had happened to Kim. Murphy saw the officers bring appellant outside and handcuff him. She stated that the officers took everyone down to the police station for interviews. Harris County Sheriff's Deputy Dale Hubert testified that he was dispatched to appellant's residence at around 2:55 a.m. He explained that he found the decedent on her bed with an obvious gun-shot wound to her stomach. He suspected she had been dead for twenty to thirty minutes because she appeared to have "bled out," although he admitted he was not a medical or forensics expert. According to Hubert, appellant came out of the house peacefully with the officers arriving at the scene. He further stated appellant appeared distraught. Eric Clegg, a sergeant in the homicide division of the sheriff's department, explained that he arrived at appellant's residence sometime in the early morning hours of May 1. He walked through the scene and observed the physical evidence. He testified that he obtained a "consent to search" form from appellant and that appellant did not appear upset when he spoke with him about the search. According to Clegg, he spoke to the witnesses briefly at the scene and then interviewed several of them back at the sheriff's department headquarters. Clegg stated that he formally interviewed appellant at headquarters. He testified that he advised appellant of his rights before speaking with him. According to Clegg, appellant was not upset or emotional and agreed to waive his rights and provide a statement. He testified that appellant was cooperative the entire time he was at the station. Clegg explained that he could have videotaped appellant, but that his preference in this case was to obtain a written statement. Clegg stated that two other officers read the statement to appellant and gave him the opportunity to make any corrections. He admitted that appellant had probably gone at least 12 hours without sleep by the time he signed his statement. Clegg testified that after getting appellant's statement, he presented the facts of the case to the Harris County District Attorney's Office. Testimony from the crime scene investigator established that gun-shot residue was not found on appellant's hands. According to this investigator, the gun used in this case would have left residue upon firing, unless the person firing the gun cleaned up. The State's blood spatter expert testified that the spatters on the shorts appellant had been wearing when Kim was shot indicated that he was directly in front of the point of origin of the spatter. According to the medical examiner, the cause of Kim's death was a gun-shot wound to the abdomen, which he classified as a homicide. He further testified that a wound on her right hand was consistent with being scraped by the scope at the top of the firearm with which she had been shot. The autopsy report indicated that the bullet traveled slightly downward as it moved through the decedent's body. A forensic chemist from the medical examiner's office testified that Kim had gun-shot residue on her hands. In addition, the director of the Harris County Sheriff's Department's regional firearms lab testified that he found no mechanical defect in the murder weapon that would have caused the gun to accidentally discharge. After hearing all the evidence and argument of counsel, the jury found appellant guilty of murder as charged in the indictment and sentenced him to 25 years' confinement in the Texas Department of Criminal Justice, Institutional Division. The trial court rendered judgment on the jury's verdict, and this appeal timely ensued.

II. ISSUES PRESENTED

In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence to establish that he intentionally or knowingly caused Kim's death. In his third issue, he asserts that he was denied the effective assistance of counsel because his trial counsel failed to request any expert assistance during either the guilt-innocence or the punishment phase of his trial.

III. ANALYSIS

A. Sufficiency of the Evidence

When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Rather, we examine 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 the offense beyond a reasonable doubt. Id. at 319; Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (en banc). Our review of the evidence includes both properly and improperly admitted evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn therefrom in making our determination. Id. When reviewing the factual sufficiency of the evidence, on the other hand, we view all the evidence in a neutral light and set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (en banc)). Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). When reviewing the evidence, we must avoid intruding on the factfinder's role as the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (en banc). We do not re-evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the factfinder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). Finally, we must discuss the most important and relevant evidence that supports the appellant's argument on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). A person commits murder if (a) he intentionally or knowingly causes the death of an individual, or (b) with intent to cause serious bodily injury, he commits an act clearly dangerous to human life. TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (Vernon 2003). Appellant confines his sufficiency challenge to evidence of his mental state, arguing that the State failed to establish that he intentionally or knowingly caused his wife's death. Our discussion therefore focuses on the evidence relevant to the jury's determination of whether appellant acted intentionally or knowingly. An act is intentional when it is the actor's "conscious objective or desire to engage in the conduct or cause the result." Id. § 6.03(a). "A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." Id. § 6.03(b). Our review is not confined to direct evidence, and intent is proven most often through the circumstantial evidence surrounding the offense. Hernandez v. State, 819 S.W.2d 806, 819 (Tex.Crim.App. 1991) (en banc). Circumstantial evidence, however, is as probative of guilt as direct evidence. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Jurors may infer intent from facts that tend to prove its existence, such as the defendant's acts, words, and conduct. Id. at 50. The evidence in this case shows that, before appellant shot Kim, she and appellant had argued well into the early-morning hours. Appellant called 911 and told the 911 operator that he had accidentally shot his wife. The blood spatter evidence indicated that appellant had been facing her when she was shot. The wound and the gun-shot residue on her hands indicate that Kim's hands were in very close proximity to the gun when it was fired. Finally, the autopsy report reflected that the bullet traveled slightly downward after it entered Kim's body. Appellant did not testify at the guilt-innocence phase of his trial. The only evidence before the jury regarding his state of mind was his statement to police. As noted above, he admitted that he shot Kim, although he also stated that the "gun went off." Further, appellant's statement that he "guessed" Kim got in bed with him, i.e., that he was surprised by Kim coming to bed, was contradicted by Murphy's statement that appellant and Kim were arguing in the bedroom for several hours before the shooting. Intent to kill also may be inferred from the use of deadly weapon, unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim.App. 1986) (en banc); Dominguez v. State, 125 S.W.3d 755, 762 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Appellant has not directed us to any evidence indicating it would be unreasonable for the jury to infer his intent to kill from his use of the deadly weapon. Thus, based on this evidence, the jury could have reasonably inferred that appellant intentionally or knowingly shot Kimberly after arguing with her for several hours. And although appellant's version of events on appeal, i.e. that he accidentally or recklessly shot his wife, is also a plausible explanation based on this evidence, when faced with conflicting evidence, we resolve inconsistencies in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Viewing this evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant intentionally or knowingly shot his wife. Moreover, viewing all the evidence in a neutral light, we cannot say that the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We therefore overrule appellant's first and second issues.

B. Ineffective Assistance of Counsel

We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, an appellant must prove (1) his trial counsel's representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial. Id. at 687. To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel's representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Id. at 690-94. An appellant's failure to satisfy one prong makes it unnecessary for a court to consider the other prong. Id. at 697. This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986) (en banc). Our review of defense counsel's performance is highly deferential, beginning with the strong presumption that the attorney's actions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). When the record is silent as to trial counsel's strategy, we will not conclude that defense counsel's assistance was ineffective unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). Appellant asserts that his trial counsel was ineffective because
[a]t neither stage, guilt and punishment, did counsel try to either offer rebuttal, question the State's facts or the reliability of the State['s] key witness[es], nor did he provide the jury with anything to consider regarding the ability or programs available to a person regarding probation during their punishment deliberations. He specifically failed to request ANY expert of any kind to challenge the State's case or to provide preparation for an assessment of culpability during the jury's consideration on guilt. (See Clerk's record generally)[.] He offered no real challenge to the State's fairly flimsy implications from the forensic evidence they presented.
One cannot claim to have made a strategic decision not to proffer information about treatment or probation options when one does not ask for anyone to assist in this matter. One cannot provide witnesses if one has not requested the tools (in this case an investigator) to seek them out. One cannot rebut DNA testimony or effectively cross a state expert without one's own to consult. One cannot ask for mercy from a jury without giving them, particularly in this type of case, a reason for granting it. Last, one cannot provide effective advocacy to a client if one does not ask for the tools to fight the case, at guilt or punishment.
The record reflects that appellant filed a motion for new trial alleging ineffective assistance of counsel. His trial counsel responded to the motion with an affidavit rebutting appellant's claim. In this affidavit, his trial counsel stated that he hired an investigator to assist with appellant's defense. Appellant's trial counsel further averred that he met frequently with appellant, studied the State's case file, filed several motions, reviewed the "thorough report" generated by the investigator, and consulted appellant regarding his defense. Additionally, the record reflects that appellant's trial counsel vigorously cross-examined most of the witnesses, sought and succeeded in obtaining a charge on the lesser-included offense of criminally negligent homicide in the jury charge, and presented the testimony of appellant, his daughters, and his father during the punishment phase of his trial; their testimony focused primarily on appellant's worthiness for and ability to successfully complete community supervision. Moreover, appellant's trial counsel presented testimony from appellant's two daughters that they loved their father and believed he would be willing and able to meet the conditions of community supervision, which arguably gave the jury a reason to show mercy to appellant. Finally, appellant has not established how testimony by any experts his counsel might have hired would have benefitted appellant. See Cate v. State, 124 S.W.3d 922, 927 (Tex.App.-Amarillo 2004, pet. ref'd) (citing Butler v. State, 716 S.W.2d 48, 55-56 (Tex.Crim.App. 1986) (en banc)). Under these circumstances, appellant has not overcome the strong presumption that his trial counsel's actions were reasonably professional and were motivated by sound trial strategy. Jackson, 877 S.W.2d at 771. We therefore overrule his third issue.

IV. CONCLUSION

We conclude that the evidence supporting the jury's verdict is both legally and factually sufficient. Further, appellant has not established that his trial counsel's performance was deficient. We therefore affirm the trial court's judgment.


Summaries of

Hewitt v. State

Court of Appeals of Texas, Fourteenth District, Houston
Nov 25, 2008
No. 14-07-00670-CR (Tex. App. Nov. 25, 2008)
Case details for

Hewitt v. State

Case Details

Full title:DONAL MARK HEWITT, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fourteenth District, Houston

Date published: Nov 25, 2008

Citations

No. 14-07-00670-CR (Tex. App. Nov. 25, 2008)