Opinion
No. 12-03-00155-CR
Opinion delivered August 18, 2004. DO NOT PUBLISH.
Appeal from the 124th Judicial District Court of Gregg County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
MEMORANDUM OPINION
A jury convicted Gerry Don McKinney ("Appellant") of murder, sentenced him to imprisonment for forty years, and assessed a $10,000 fine. In one issue on appeal, Appellant contends the trial court committed reversible error by denying his request for a jury instruction on sudden passion at the punishment phase of the trial. We affirm. BACKGROUND On August 13, 2002, Appellant and his nineteen-year-old son, Jeremy McKinney ("McKinney"), drank beer throughout the day while cleaning the house and working in the yard. Later that evening, McKinney left the house to visit his friend, Jessie Elliott ("Elliott"). Appellant and McKinney's girlfriend, Samantha Garner ("Garner"), left Appellant's house at 2:00 a.m. on August 14 in search of McKinney. Not finding McKinney at Elliott's house, Appellant and Garner continued driving and soon found McKinney at a convenience store. There, Appellant and McKinney argued in the parking lot. After words were exchanged, Appellant demanded that McKinney get in the car with him. Appellant drove off with McKinney in the car, and Garner rode with Elliott. Before reaching their house, McKinney refused to ride any further with Appellant, electing to walk the last block or two home. Driving the few blocks to Appellant's house, Garner and Elliott saw McKinney walking up to his house. Appellant had already parked the car and gone inside the house when Garner and Elliott arrived. Once McKinney arrived at the home and walked inside the house, he immediately moved toward Appellant, pushing and shoving him. Garner and Elliott attempted to break up the fight several times. Appellant began to retreat from the fight toward his bedroom. He removed a pistol from his pocket. McKinney said, "What are you going to do? Are you going to f____g shoot me?" McKinney pushed Appellant through the door and onto the floor. The gun fired and a bullet traveled through the bedroom door, hitting McKinney in the eye. Appellant immediately tried to help his son and yelled for someone to call 911. McKinney died from the single gunshot wound to his head. Longview Police Officer David Hazel ("Hazel") arrested Appellant. Appellant was subsequently indicted for murder. See TEX. PEN. CODE ANN. § 19.02(b) (Vernon Supp. 2004). He pleaded not guilty and proceeded to trial before a jury. At trial, Elliott testified that McKinney was outraged because Appellant looked for him and insisted that he leave the convenience store with him. Elliott saw McKinney hit the neighbor's mailbox with his fist just before McKinney walked into his house and attacked Appellant. Appellant and McKinney were "one big mass, and two bodies trying to hold each other, and fighting, and hitting." When he saw Appellant pull the gun out of his pocket, Elliott ran down the hall. He heard Appellant say, "What if I just shot you?" Elliott stated Appellant was trying to scare him so that he would "back off." McKinney responded, "Go ahead and shoot me." Elliott was turning to go inside a bedroom when he saw McKinney push Appellant through the door into Appellant's bedroom. Almost immediately afterward, he heard the gunshot. Elliott then returned to the hallway and saw Appellant and Garner leaning over McKinney. Appellant was crying, screaming, and "freaking out." Mark Goodson testified that he was filling his vehicle with gas at the convenience store and witnessed a verbal altercation between Appellant and McKinney. Appellant was upset with McKinney about McKinney's marijuana use. Appellant searched for something in his car and then said, "I'll shoot you right between the eyes and blow your brains out." McKinney responded, "Go ahead. I don't care." McKinney eventually got in the car with Appellant, and Appellant "burned out" as he was leaving the store. Goodson never saw a weapon. Officer Hazel testified that when he arrived at Appellant's house, Appellant was holding his son in his arms and sobbing. Longview Police Department Detective Dan Reigstad stated that Appellant was leaning over McKinney's body as Emergency Medical Services personnel were working to save McKinney. He characterized the scene as "hectic." Officer Douglas Humphrey of the Longview Police Department was also called to the scene. He overheard Appellant say that he had put his gun in his pocket when he went looking for his son. Then, after he arrived back at the house and the fight ensued, he pulled the gun out of his pocket, pointed it upwards, and pulled the trigger. Humphrey noticed a strong smell of alcohol on Appellant's breath. Detective Terry Davis, a detective with the Longview Police Department, took Appellant's statement. He read the statement into the record at trial. The following portion is relevant to Appellant's issue:
Jeremy [McKinney] comes in arguing with Samantha [Garner]. I tried to calm them down. When I did this, Jeremy then jumped at me and shoved me and pushed on me and told me that it was none of my business. I had the pistol stuck in my pants pocket. Jeremy and I wrestled around in the living room. I went towards my room to go and put up the pistol. I pulled it out of my pocket as I got near my doorway to my bedroom. There was an end table right at the doorway. I tripped over the end table. I was sort of walking backwards at the time. I was yelling at Jeremy and he at me as I was going to my room. I had the pistol in my right hand I am right handed. I sort of stumbled, I shot the pistol accidentally and I saw Jeremy fall to the floor. I dropped the pistol and went to him. I was hysterical. I was hollering for someone to call 911. I was trying to stop the bleeding. I never meant to shoot my son.Appellant testified on his own behalf. He denied threatening to "blow somebody's head off" when he was in the convenience store parking lot. While driving McKinney home, Appellant stopped the car at McKinney's request and allowed him to get out of the car. Then, he went into the house and sat at his desk for a short time. He was worried that McKinney was walking back to the convenience store and would be in danger. Appellant got his gun, put it into his pocket, and headed to the door to go after him. However, McKinney walked through the door at that time and "advanced quickly" upon him, "screaming and hollering at me to mind my own business, it wasn't any of my business." McKinney was intoxicated. Appellant admitted he was probably intoxicated as well. Appellant denied threatening to shoot his son, although he admitted that when he took the gun from his pocket, McKinney "said something to me about shooting or something to that effect." As Appellant reached his bedroom, McKinney pushed him. Appellant fell, breaking his desk. It was then that the gun went off. Appellant claimed he was not aiming the gun and had no intention of firing it. He testified that the gun went off accidentally and he never meant to hurt his son. The jury found Appellant guilty of murder. During the punishment phase, Appellant objected to the court's charge and requested submission of a sudden passion instruction. The trial court denied the request, and the jury sentenced Appellant to imprisonment for 40 years and assessed a $10,000 fine. This appeal ensued.
Several weeks prior to the shooting, Samantha Garner moved into the house McKinney shared with his father and grandmother.