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Kingsley v. State

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Jun 8, 2017
NUMBER 13-15-00603-CR (Tex. App. Jun. 8, 2017)

Opinion

NUMBER 13-15-00603-CR

06-08-2017

WILLIAM DOUGLAS KINGSLEY, Appellant, v. THE STATE OF TEXAS, Appellee.


On appeal from the 156th District Court of Live Oak County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Benavides

The State charged appellant William Douglas Kingsley with one count of aggravated assault with a deadly weapon, family violence, a first-degree felony, see TEX. PENAL CODE ANN. § 22.02(b) (West, Westlaw through 2015 R.S.), and one count of aggravated assault with a deadly weapon, a second-degree felony. See id. § 22.02(a)(1) (West, Westlaw through 2015 R.S.). Kingsley was convicted of the former offense. By two issues on appeal, Kingsley asserts that: (1) the evidence is insufficient to support his conviction of aggravated assault with a deadly weapon; and (2) Kingsley received ineffective assistance of counsel. We affirm.

I. BACKGROUND

At approximately midnight on July 1, 2014, the Live Oak Sheriff's Office received a call regarding a disturbance on a ranch located near the intersection of Farm-to-Market Road 624 and Highway 59 south of George West. Upon arriving at the ranch, Deputy Code Wheeler made contact with Carolyn Tremaine, who appeared to have injuries to her head and "blood all over." Deputy Wheeler described Carolyn as "frantic" and telling him that "she didn't want to die." Deputy Wheeler escorted Carolyn to emergency service workers who were standing by on Highway 59 for treatment. Carolyn implicated Kingsley.

Deputy Wheeler returned to the residence where he had made initial contact with Carolyn, in order to look for Kingsley. During his search of the residence, Deputy Wheeler entered each room of the house, but could not locate Kingsley. Deputy Wheeler told jurors that he observed blood stains throughout the house, with "large amounts" in the bedroom, where there appeared to have been a struggle. Later that night, police located, detained, and arrested Kingsley as he travelled in his vehicle near the Live Oak-Jim Wells county line.

Jennifer Tenille Power, Carolyn's daughter, testified that she received a phone call from Carolyn at approximately midnight on July 1, 2014. Power recalled that her mother was not speaking to her, but heard her in the background asking for water and begging to go outside. Power recognized another voice on the phone that she identified as Kingsley's saying "I'm going to beat your Goddamn brains out." Power described Kingsley as her mother's boyfriend and told jurors that Carolyn and Kingsley lived together at Carolyn's home in Live Oak County. Shortly after receiving the phone call from Carolyn, Power testified that she called her brother, John Frank Tremaine, to ask him to check on their mother. Power arrived at Carolyn's home shortly after John and discovered her mother bleeding from her head and fearful for her life. Power recalled Carolyn telling her to "turn off the lights" and to "hide" because Kingsley "was threatening to kill us all." Power testified that she later located a shotgun belonging to her mother on the side of Farm-to-Market Road 684, subsequent to the incident. John testified that when he arrived at his mother's residence, he encountered Kingsley who had a shotgun in one hand and a bag in the other. John stated that he felt threatened by Kingsley, who had pointed the shotgun at him after John asked him what was happening. John recalled Kingsley cursing at him and saying "B.S. a bunch of times."

Carolyn testified that she had gone to sleep that night and recalled that Kingsley entered the bedroom "angry" at her because she was already in bed and "didn't want [Kingsley] to go to bed with [her]." Carolyn testified that Kingsley, with whom she had a romantic relationship, then jumped on top of her as she lay in the bed and began hitting her from side to side with his fists. Kingsley then took a break and accused Carolyn of having a "secret" relationship with her son-in-law, which Carolyn denied. At that point, Kingsley again jumped on top of Carolyn and began beating her head with his fists again. According to Carolyn, after this second round of hits, she felt "so much blooding running from her head" and told Kingsley that she was going to have to kill him for doing this to her. At that point, Kingsley responded by asking her, "You want to kill me? You want to kill me?" and Kingsley then began running around the bedroom, before grabbing a shotgun Carolyn kept in the bedroom. Carolyn testified that she slid off the side of the bed and began praying before Kingsley pointed the shotgun at her head and pulled the trigger, but instead "jacked that shell out." Carolyn told jurors that Kingsley unsuccessfully fired two more rounds at her head. At that point, Kingsley struck Carolyn in the head "very hard" with the shotgun barrel. Carolyn recalled saying out loud that she was going to die and asked Kingsley for some water. Carolyn stated that Kingsley did not say another word and left the bedroom, at which point she ran out of the house.

Arthur Chin, M.D., Carolyn's physician, testified that as a result of this incident, Carolyn suffered from intracranial bleeding due to trauma as a result of this incident. Carolyn also told jurors that this incident left her with a permanent scar to her forehead. Samantha Perkins of the Texas Department of Public Safety's crime laboratory in Corpus Christi testified that she tested various pieces of blood evidence and DNA swabs taken by police, including clothes worn by Kingsley at the time of his arrest. According to Perkins, blood from Kingsley's jeans as well as blood retrieved from the bedroom of the scene were linked to Carolyn's DNA.

Kingsley rested without calling any witnesses.

The jury found Kingsley guilty of aggravated assault with a deadly weapon, family violence. See id. § 22.02(b). After a punishment trial, the trial court assessed Kingsley's punishment at forty years' imprisonment in the Texas Department of Criminal Justice—Institutional Division. This appeal followed.

II. SUFFICIENCY CHALLENGE

By his first issue, Kingsley challenges the sufficiency of evidence to support his conviction for aggravated assault with a deadly weapon, family violence.

A. Standard of Review and Applicable Law

In reviewing sufficiency of evidence to support a conviction, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in the light most favorable to the verdict, we defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. It is unnecessary for every fact to point directly and independently to the guilt of the accused; it is enough if the finding of guilt is warranted by the cumulative force of all incriminating evidence. Winfrey, 393 S.W.3d at 768. In our sufficiency review, direct and circumstantial evidence are treated equally—that is, circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

The elements of the offense are measured as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.

Under a hypothetically correct jury charge, a person is guilty of aggravated assault with a deadly weapon, family violence if he: (1) intentionally, knowingly, or recklessly causes bodily injury to (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, of the Texas Family Code; and (3) uses or exhibits a deadly weapon during the commission of the assault. See TEX. PENAL CODE ANN. § 22.02(b); see also TEX. FAM. CODE ANN. §§ 71.0021(b) (defining a "dating relationship"); 71.003 (defining "family"); 71.005 (defining a "household").

B. Discussion

On appeal, Kingsley contends solely that no evidence shows that a weapon was used during the commission of this offense, and as a result, the jury was improperly charged as such.

With regard to the sufficiency of evidence regarding Kingsley's use of a deadly weapon, we note that Carolyn testified that after beating her with his fists, Kingsley located a shotgun that she kept in her home, pointed it at her head, and unsuccessfully pulled the trigger three times. Carolyn testified that Kingsley then struck her in the face with the barrel of the shotgun. John, Carolyn's son, also testified that upon encountering Kingsley at his mother's residence that evening, Kingsley had a shotgun in his hand and pointed it at him. Lastly, the evidence shows that Power located Carolyn's shotgun on the side of Farm-to-Market Road 624.

The penal code defines a "deadly weapon" relevant to this case as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17) (West, Westlaw through 2015 R.S.). The court of criminal appeals has further held that a shotgun used as a "firearm" is a deadly weapon. See Ex parte Franklin, 757 S.W.2d 778, 781 (Tex. Crim. App. 1988). Here, the record shows that Kingsley pointed a loaded shotgun at Carolyn's head and unsuccessfully pulled the trigger three times before hitting Carolyn's head "very hard" with the barrel of the shotgun. After considering all of the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found that Kingsley committed aggravated assault with a deadly weapon, family violence beyond a reasonable doubt. See Winfrey, 393 S.W.3d at 768. Kingsley's first issue is overruled.

Kingsley asserts in one sentence that because the evidence was insufficient to support a finding of his use of a deadly weapon, the jury should not have been instructed on the issue of a deadly weapon.
Our first duty in analyzing a jury-charge issue is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). Then, if we find error, we analyze that error for harm. Id. Here, we have already held that the evidence was sufficient to support the jury's finding of guilt for aggravated assault with a deadly weapon, family violence. As a result, we hold that the trial court did not commit error in providing the jury with such an instruction. Therefore, to the extent that Kingsley lodges a separate issue on appeal regarding jury charge error, it is overruled. See TEX. R. APP. P. 47.1.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

By his second issue, Kingsley asserts that he received ineffective assistance of counsel.

A. Standard of Review

The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in state criminal proceedings. McMann v. Richardson, 397 U.S. 759, 771 (1970); see also Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). To establish ineffective assistance of counsel, appellant must show that (1) his counsel's representation fell below the standard of prevailing professional norms, and (2) but for counsel's deficiency, there is a reasonable probability that the result of the trial would have been different. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 686-89 (1984)). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In determining whether an attorney's performance was deficient, we apply a strong presumption that the attorney's conduct was within the range of reasonable professional assistance. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). We review the effectiveness of counsel in light of the totality of the representation and particular circumstances of each case. Id. at 143. The defendant has the burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

B. Discussion

Generally, Kingsley argues that he was denied effective counsel because his defense counsel failed to investigate his case, failed to prepare him to testify, and failed to present an expert witness on blood splatter evidence. Specifically, Kingsley complains that his trial counsel failed to object to Deputy Wheeler's testimony regarding blood splatter, failed to object to the admission of medical records based on hearsay, and did not allow Kingsley to testify on his own behalf. Without more, Kingsley argues that these strategies were "ill-chosen" and amounted to ineffective assistance.

Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Id. We find this proposition relevant to Kingsley's issue on appeal. Nothing in the record before us on direct appeal rebuts the strong presumption that the attorney's conduct was within the range of reasonable professional assistance. See Lopez, 343 S.W.3d at 142. Furthermore, even assuming arguendo that Kingsley met his first burden under Strickland, Kingsley failed to show how but for these alleged deficiencies, there is a reasonable probability that the result of the trial would have been different, in light of Carolyn's and John's testimony implicating him in the crime for which he was convicted. See Strickland, 466 U.S. at 686-89. We overrule Kingsley's second issue.

IV. CONCLUSION

We affirm the trial court's judgment.

GINA M. BENAVIDES,

Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 8th day of June, 2017.


Summaries of

Kingsley v. State

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Jun 8, 2017
NUMBER 13-15-00603-CR (Tex. App. Jun. 8, 2017)
Case details for

Kingsley v. State

Case Details

Full title:WILLIAM DOUGLAS KINGSLEY, Appellant, v. THE STATE OF TEXAS, Appellee.

Court:COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Date published: Jun 8, 2017

Citations

NUMBER 13-15-00603-CR (Tex. App. Jun. 8, 2017)