McKinney v. State

Full title: GERRY DON McKINNEY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Twelfth District, Tyler

Date published: Aug 18, 2004

No. 12-03-00155-CR (Tex. App. Aug. 18, 2004)

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 DO NOT PUBLISH.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

DIANE DEVASTO, Justice.

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 Garner¹ ("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.

1 Several weeks prior to the shooting, Samantha Garner moved into the house McKinney shared with his father and grandmother.

JURY CHARGE

In his sole issue, Appellant asserts the trial court erred by denying his request for a jury instruction on sudden passion at the punishment stage of trial. Standard of Review and Applicable Law We review evidence offered in support of a defensive issue in the light most favorable to the defense. Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.-Fort Worth 2001, pet. ref'd). In considering whether any evidence is raised on this punishment issue, we review the record from both the guilt-innocence and punishment phases of the trial. Trevino v. State, 100 S.W.3d 232, 238 (Tex.Crim.App. 2003). We must consider all of the evidence raised at trial, regardless of the strength of the evidence or whether it is controverted. Reese v. State, 877 S.W.2d 328, 333 (Tex.Crim.App. 1994). An accused is entitled to an instruction on every defensive issue raised by the evidence whether that evidence is strong, weak, contradicted, unimpeached, or unbelievable. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993); Benavides v. State, 992 S.W.2d 511, 526 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). If the record reveals any evidence that the appellant acted under the immediate influence of sudden passion arising from an adequate cause, the trial court should instruct the jury on this mitigating issue. Trevino, 100 S.W.3d at 237. The evidence may not, however, be so weak, contested, or incredible that it could not support such a finding by a rational jury. See Moore v. State, 969 S.W.2d 4, 11 (Tex.Crim.App. 1998); Benavides, 992 S.W.2d at 526. "The mere fact that a defendant acts in response to the provocation of another is not sufficient to warrant a charge on passion. Instead, there must be some evidence that the defendant was under the immediate influence of sudden passion." Trevino, 100 S.W.3d at 241. During the punishment phase, a defendant may raise the issue as to whether he caused the death of an individual under the immediate influence of sudden passion arising from adequate cause. TEX. PEN. CODE ANN. § 19.02(d) (Vernon Supp. 2004). If the defendant can prove the issue of sudden passion by a preponderance of the evidence, the offense is a felony of the second degree rather than of the first degree. TEX. PEN. CODE ANN. § 19.02(c), (d) (Vernon Supp. 2004). "Sudden passion" is defined as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." TEX. PEN. CODE ANN. § 19.02(a)(2) (Vernon Supp. 2004). "Adequate cause" is "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Pen. Code Ann. § 19.02(a)(1) (Vernon Supp. 2004). Analysis There is evidence, disregarding any inconsistencies and weaknesses, that Appellant only wanted to scare McKinney and that he had no intent to harm or murder McKinney. Elliott and Garner both testified that McKinney immediately "advanced upon" Appellant as he walked in the door of the house. The evidence also shows that both Appellant and McKinney were quite angry. They were yelling at each other, fighting, and wrestling. Further, both Elliott and Garner testified that immediately before the gun was fired, McKinney was taunting Appellant verbally and then pushed him to the floor. As Appellant fell to the floor, his body struck a desk, breaking part of it. This evidence raises issues of accident, self-defense, and anger, and even suggests that Appellant might have been afraid. However, evidence of fear alone, or self-defense, is not sufficient to raise sudden passion. See Gonzales v. State, 717 S.W.2d 355, 357 (Tex.Crim.App. 1986). For a claim of anger or fear to rise to the level constituting sudden passion, Appellant's mind must have been rendered incapable of cool reflection. See id. (holding that sudden passion instruction not required where there was no testimony indicating defendant was emotionally aroused at time of shooting). In Fry v. State, 915 S.W.2d 554, 558 (Tex. App.-Houston [1st Dist.] 1995, no pet.), Fry testified at trial that when the victim and his friend broke into his house, the victim had a wooden stake in his pocket. Fry claimed he was afraid of the victim because of his reputation for being a "trained killer," so he got his rifle. Id. After wrestling over the rifle, the victim and his friend left the house. Id. Fry then stepped out onto the front porch with the rifle, claiming he heard the victim telling his friend to "[g]o get the gun." Id. The victim then put his hands in his pants pocket and threatened Fry's life. Id. Stating that he had no intention of hurting anyone, and that the gunshots were intended only to "scare" the victim, Fry fired the gun twice, killing the victim. Id. The Houston Court of Appeals found that this testimony showed a reflective and deliberate response to a perceived threat, not a spontaneous response to anger, rage, resentment, or terror. Id. In this case, Appellant testified that once he arrived at his house from picking up McKinney from the convenience store, "I was upset, but I wasn't out of control mad." He also stated that once his son came into the house and "advanced upon" him, they wrestled around a bit. Then, he pulled the gun from his pocket "to just get it out — get it away from the situation." When asked why at that particular moment he pulled the pistol from his pants pocket, he replied, "The shorts I was wearing, it was pulling my shorts down all the time that we were scuffling." He then said that he pulled the gun out of his pocket and aimed up, "[a]nd he [McKinney] stepped in front of me when I pulled the trigger." He also stated that "[t]he sight of the gun I thought would scare him and make him leave me alone." This evidence does not reflect fear or anger that was so strong and overpowering that it rendered Appellant incapable of rational thought and collected action. As in Fry, the evidence shows a reflective and deliberate response to a perceived threat, not a spontaneous response to anger, rage, resentment or terror. This testimony is not evidence that Appellant was rendered incapable of cool reflection. The mere fact that Appellant acted in response to McKinney's provocation is not sufficient to warrant a charge on sudden passion. See Trevino, 100 S.W.3d at 241. Instead, evidence must show that he was under the immediate influence of sudden passion. See id. Because there is no evidence that Appellant acted under the immediate influence of sudden passion arising from an adequate cause, the trial court did not err in refusing to submit a charge on sudden passion to the jury on punishment. Consequently, we overrule Appellant's sole issue.

DISPOSITION

Having overruled Appellant's sole issue, we affirm the trial court's judgment.