William McBride v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00137-CR William McBride, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 0944463, HONORABLE BOB PERKINS, JUDGE PRESIDING Over his plea of not guilty, the jury found William Anderson McBride guilty of murdering his wife (1) and fixed his punishment at ninety-nine years imprisonment together with a $10,000 fine. The judgment below convicts and sentences McBride accordingly. He appeals on the seven points of error discussed below. We will affirm the judgment. THE CONTROVERSY McBride testified he found his wife dead in her bed about 7:30 a.m., having last seen her alive about 3:00 a.m. when he checked on her after arising from his own bed, in another room, to get a glass of water. She suffered from emphysema and asthma that McBride believed caused her death. He telephoned 911 when he discovered her body and also called a friend about the same time to report his wife's death. Fire department employees, police officers, and medical technicians responded to the 911 call. A fireman, the first to arrive, found Ms. McBride in bed without a pulse. He testified that he and other firemen placed her body on the floor and attempted unsuccessfully to revive her. The evidence established beyond a reasonable doubt, and with no real dispute, that Ms. McBride died of asphyxiation or strangulation, or both, and not from accidental or natural causes. Medical opinion testimony was given, without contradiction, that her death was a violent one as indicated by bruises and other marks on her body that suggested she received them struggling with her assailant. (2) The evidence was sufficient to justify a belief, beyond a reasonable doubt, that no intruder had entered the home. Only McBride and his wife were in the dwelling at the time. The evidence that McBride was the assailant was circumstantial only. No motive is suggested by the evidence. Evidence was introduced of his reputation for truthfulness and a peaceable nature. A ring worn by McBride some twelve hours after his wife's death was photographed on his hand and afterwards taken from him. The ring was custom made. McBride testified he had taken it off before going to bed on the night of the murder. Testimony was given that its particular configuration and surface matched the marks found on the body. Further medical testimony established without dispute that the marks could not have been sustained after she died. If certain witnesses were believed by the jury, there were several inconsistencies in McBride's out-of-court statements, his testimony, and his actions at the time of his wife's death. These pertain to whether he telephoned 911 as soon as he discovered his wife's body, whether he and not the firemen moved her body from her bed to the floor, whether he attempted artificial resuscitation, and a few minor matters. SUFFICIENCY OF THE EVIDENCE McBride contends in points of error one and two that the evidence is legally and factually insufficient to support his conviction. He points to his testimony concerning his wife's asthma and emphysema. The jury were free to reject his interested testimony even though the evidence offered by the prosecution was entirely circumstantial. Keith v. State, 282 S.W. 251, 256 (Tex. Crim. App. 1922). As indicated above, the evidence was overwhelming that the cause of death was a violent homicide. In his own testimony, McBride negated the possibility that an intruder caused his wife's death. The jury could reasonably believe that only McBride could have committed the murder because only that possibility remained after it was established that the death was a violent homicide and that no one else entered the home. We hold the evidence sufficient to permit a rational jury to find beyond a reasonable doubt that McBride was the perpetrator and that such a finding is not contrary to the overwhelming weight of the evidence so as to be clearly wrong and unjust. Jackson v. Virginia, 443 U.S. 307, 318-19 (1974); Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). We therefore overrule points of error one and two. In point of error three, McBride contends the evidence is insufficient to support his conviction because the State failed to disprove that he killed his wife from a "sudden passion" arising from an adequate cause. Conceding he did not request a charge inquiring of the jury in that regard, McBride contends that is immaterial and his conviction cannot stand because the burden lay on the State to disprove "sudden passion" even in the absence of a charge in that regard. We find no authority for that position. In all events, the record is devoid of any kind of provocation, by anyone, to which McBride might have responded by killing his wife. We overrule point of error three. Brunson v. State, 764 S.W.2d 888, 894 (Tex. App.--Austin 1989, pet. ref'd). In point of error four, McBride contends the evidence is insufficient to prove that his "hands" and an "unknown" item were deadly weapons as averred in the indictment. Section 1.07(17)(B) of the Texas Penal Code defines "deadly weapon" to include "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(17)(B) (West 1994). (3) McBride properly concedes that hands and unknown objects may be deadly weapons, under this statutory definition, depending upon what the evidence shows concerning the matter of their use or intended use. Mixon v. State, 804 S.W.2d 107, 108 (Tex. Crim. App. 1991); Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1994). He raises a particular theory, however, upon which the evidence is insufficient to show a "deadly weapon." He urges us to qualify the statute by deleting from it subsection (B), so that the definition is limited to "anything manifestly designed, made, or adopted for the purpose of inflicting death or serious bodily injury," as stated in subsection (A). Tex. Penal Code Ann. § 1.07(17)(A) (West 1994). We lack the power to do so. We overrule point of error four. See Stanul v. State, 870 S.W.2d 329, 332-35 (Tex. App.--Austin 1994, pet. dism'd). MOTION FOR MISTRIAL When asked her reaction on learning of Ms. McBride's death, a witness answered as follows: "Well, when I got off the phone I told the person that was standing there next to me that she did not die a natural death, that Andy [appellant] killed her." The trial judge sustained defense counsel's objection to the answer and instructed the jury to disregard it. The judge denied McBride's request for a mistrial. He contends in point of error five that the ruling was reversible error. The issue presented is whether the instruction to disregard was sufficient to cure the error. We hold it was. As stated in a similar case where a chief deputy sheriff gave his opinion that the accused was guilty, we believe the answer given here was "not of such character as to suggest the impossibility of withdrawing whatever prejudicial impression was produced on the minds of the jury." Huffman v. State, 691 S.W.2d 726, 730 (Tex. App.--Austin 1985, no pet.). We overrule point of error five. IMPROPER JURY ARGUMENT In his argument to the jury, McBride's counsel remarked that the State has "hesitated on this lawsuit for three and a half years." The prosecutor rejoined, in his argument, by stating that nothing in the charge suggested that "[t]he older the case is the less merit it has" and that McBride's counsel knew the delay was "something that we can't talk about. Whatever the verdict is, I'll be glad to talk to you when it's over about why it took four and a-half [sic] years." McBride's objection to the rejoinder was sustained and the trial judge instructed the jury to disregard it. In point of error six, McBride contends the prosecutor's remark was reversible error because it indicated to the jury that the State had additional information regarding the case that would be disclosed after the trial. We hold nothing is presented for review. McBride's counsel objected to the prosecutor's statement. The trial judge sustained the objection and on his own motion instructed the jury to disregard the statement. There was no adverse ruling by the trial judge. McBride received all the relief he requested. See Moffett v. State, 555 S.W.2d 437, 443 (Tex. Crim. App. 1977); Silva v. State, 800 S.W.2d 912, 916 (Tex. App.--San Antonio 1990, no pet.). We overrule point of error six. INEFFECTIVE ASSISTANCE OF COUNSEL McBride's trial counsel did not object to the introduction in evidence of testimony by several witnesses who were permitted to relate what Ms. McBride told them before her death. The hearsay testimony was to the effect that she believed McBride lied to her about "silly" matters; she did not know before her marriage that she was McBride's fifth wife; contrary to their prenuptial agreement he failed to pay certain living expenses; he was difficult to live with; and she did not love him. In addition, trial counsel failed to object to the introduction in evidence of McBride's custom-made ring after the trial judge refused to suppress the ring following a pretrial motion and hearing in that regard. In point of error seven, McBride contends these errors deprived him of reasonably effective assistance of counsel. The issues presented are whether trial counsel's representation, judged in its entirety, fell below an objective standard of reasonableness and whether there is a reasonable probability that the result of the trial would have been different but for any errors counsel might have made. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986); Moore v. State, 700 S.W.2d 193, 205 (Tex. Crim. App. 1985), cert. denied, 106 S. Ct 1167 (1986). The record is silent regarding trial counsel's reasons for failing to object to the two kinds of evidence described above. McBride contends the hearsay testimony was harmful because there was virtually no other evidence of a troubled marriage. We disagree. Evidence to that effect was given in the form of opinion testimony by two other witnesses, one of them Ms. McBride's long-time accountant. McBride contends admission of the ring was harmful because it was "vital" to connect him to the marks on his wife's body. We agree the ring was important in that regard but a photograph of it was introduced in evidence and he does not suggest the ground upon which trial counsel might successfully have prevented its introduction in evidence. Because the record does not suggest trial counsel's reasons for failing to object to the evidence summarized above, we may not speculate in that regard. We must presume instead that trial counsel was in a better position than we to judge the practical aspects of the trial and that he exercised reasonable professional judgment. See Chambers v. State, 903 S.W.2d 21, 33-34 (Tex. Crim. App. 1995); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We therefore cannot find that trial counsel's representation fell below an objective standard of reasonableness. We need not, in consequence, discuss whether the result of the trial would have been different but for introduction of the evidence in question. We overrule point of error seven. For the reasons given, we affirm the trial-court judgment. John Powers, Justice Before Justices Powers, Jones and B. A. Smith Affirmed Filed: May 29, 1996 Do Not Publish 1. See Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 19.02, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex Gen. Laws 1122, 1123 (Tex. Penal Code Ann. § 19.02, since amended). 2. The body showed four abrasions on the right upper lip, a bruised nose, a bruised and swollen right lower eyelid, abrasions on the right cheek and right side of the mouth, and other bruises and abrasions on the outside and inside of the lips. Her scalp had three bruises apparently inflicted by striking against a hard flat surface. Bruises on the hands and wrists indicated an attempt to ward off blows. 3. The offense occurred before September 1, 1994, and is governed by the law in effect at that time. Penal Code, 73d Leg., R.S., ch. 900, § 1.07, 1993 Tex. Gen. Laws 3586, 3588. Because the Code amendments effective September 1, 1994, have no substantive effect on this section, the current Code is cited for convenience. the objection and on his own motion instructed the jury to disregard the statement. There was no adverse ruling by the trial judge. McBride received all the relief he requested. See Moffett v. State, 555 S.W.2d 437, 443 (Tex. Crim. App. 1977); Silva v. State, 800 S.W.2d 912, 916 (Tex. App.--San Antonio 1990, no pet.). We overrule point of error six. INEFFECTIVE ASSISTANCE OF COUNSEL McBride's trial counsel did not object to the introduction in evidence of testimony by several witnesses who were permitted to relate what Ms. McBride told them before her death. The hearsay testimony was to the effect that she believed McBride lied to her about "silly" matters; she did not know before her marriage that she was McBride's fifth wife; contrary to their prenuptial agreement he failed to pay certain living expenses; he was difficult to live with; and she did not love him. In addition, trial counsel failed to object to the introduction in evidence of McBride's custom-made ring after the trial judge refused to suppress the ring following a pretrial motion and hearing in that regard. In point of error seven, McBride contends these errors deprived him of reasonably effective assistance of counsel. The issues presented are whether trial counsel's representation, judged in its entirety, fell below an objective standard of reasonableness and whether there is a reasonable probability that the result of the trial would have been different but for any errors counsel might have made. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986); Moore v. State, 700 S.W.2d 193, 205 (Tex. Crim. App. 1985), cert. denied, 106 S. Ct 1167 (1986). The record is silent regarding trial counsel's reasons for failing to object to the two kinds of evidence described above. McBride contends the hearsay testimony was harmful because there was virtually no other evidence of a troubled marriage. We disagree. Evidence to that effect was given in the form of opinion testimony by two other witnesses, one of them Ms. McBride's long-time accountant. McBride contends admission of the ring was harmful because it was "vital" to connect him to the marks on his wife's body. We agree the ring was important in that regard but a photograph of it was introduced in evidence and he does not suggest the ground upon which trial counsel might successfully have prevented its introduction in evidence. Because the record does not suggest trial counsel's reasons for failing to object to the evidence summarized above, we may not speculate in that regard. We must presume instead that trial counsel was in a better position than we to judge the practical aspects of the trial and that he exercised reasonable professional judgment. See Chambers v. State, 903 S.W.2d 21, 33-34 (Tex. Crim. App. 1995); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We therefore cannot find that trial counsel's representation fell below an objective standard of reasonableness. We need not, in consequence, discuss whether the result of the trial would have been different but for introduction of the evidence in question. We overrule point of error seven. For the reasons given, we affirm the trial-court judgment. John Powers, Justice Before Justices Powers, Jones and B. A. Smith Affirmed Filed: May 29, 1996 Do Not Publish 1. See Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 19.02, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex Gen. Laws 1122, 1123 (Tex. Penal Code Ann. § 19.02, since amended). 2. The body showed four abrasions on the right upper lip, a bruised nose, a bruised and swollen right lower eyelid, abrasions on the right cheek and right side of the mouth, and other bruises and abrasions on the outside and inside of the lips. Her scalp had three bruises apparently inflicted by striking against a hard flat surface. Bruises on the hands and wrists indicated an attempt to ward off blows. 3. The offense occurred before September 1, 1994, and is governed by the law in effect at that time. P