### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 654 -CR

Chr ist ophe r Cho n Sc ot t , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT NO. D-1- DC-06 -30 2059 , HO NORAB LE CHARLES F . BAI RD , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury convicted Christopher

Chon Scott of the offense of m urder
. See Tex. P enal C o d e A n n . § 1 9
. 0 2 ( b ) ( 1 ) ( W e s t 2 0 0 3 )
. P u n i s h m e n tw a s a s s e s s e d a tf o rt y y e a r s ’ i mp r i s o n m e n t
. In three issues on appea l, Scott clai m s error in the jury char g e, cha lleng es the leg al and f actua l sufficie ncy

of the e vidence , and asse rts ineffe ctive assistanc e of c ounsel. We wi ll affirm the jud g me nt.
BACK GR OUND

The jury hear d evidenc e that, on September 17, 2006, Stacy

Sparks was shot and killed in a motel located a long I H-35 in south Austin. There was no disput e t h at Scott fired the fata l shot. The centr al conteste d issue at trial wa s Scott’s state of mind in committing the ac t. To
su mma ri ze t he pa rt ie s’ the or ie s at tr ial, the State a tte mpt e d to pr ov e that Sc ott ha d in te nti on a lly
or kn ow ing ly

kil le d Sp a rk s d

ur inga n a

rgume nt by sh oo ting he r i n th e ba c k o f t he he a d at po int

-2

bla nk ra ng e . Sc ott ma int a ine d that he ha d a c c ide nta lly sh ot Spa rk s wh ile a

pp ro a c hin g to p ist ol- wh ip he r. Sc ott

a ttr ibute d th e se a c ti on s, in tur n, to m a nip ulatio n b y

a fr ie nd or c us tom e r o f S pa

rk s, L eroy Wormley , while Scott was in a drug -fue led state of f ear and par anoia. On the day

of the shooting , Detec tive Dea nna L ichter o f

th e Au s ti n

Po li c e D e partment was dispatche d to the motel to investigate “an unknow n suspicious call wher e a w hite fema le was possibly dead in a room.” Detec tive L ichter te stified that, once she arr ived at the r oom, Room 108, and opene d the door, she immediate ly saw a wo m an “l ay ing in f ront of the va

nity are a at the back of the room.” The woman, later identified as Spar

ks, was lying “ fac e up,” w ith a larg e amount of blo od aro un d h e r h e a d an d what app e a re d to be a n e xit wo un d “ ri g ht at th e ha ir lin e .” L ic hte r a lso observe d “what appea

red to be . . . bodily

tissues, some debris on the vanity itself.” L ichter notice d a bullet ca sing ne x t to the woman’ s b o d y , whi ch indicate d to her that the he ad wound she had observe d was from a gunshot. Photogra phs and a video recording of the c rime sce ne, both of whic h depicted the position and location of Sparks’s body i n t he room, we re a dmitted into evidence a nd
s h o w nt o t h e j u r

y. Detec tive Fr ank Dixon of the Austin Pol ice De partment wa s also dispatched to the motel to investigate. Detec tive Dix on testified that he found drug s and drug para pher n al i a i n the room, including marihuana , marihuana cig are ttes, cra ck cocaine, and a c rac k pipe. APD Dete ctive Doug las Skolaut assisted Detec tive Dix on in the i nvestig ation. Detec tive Skolaut testified that the inv e sti g a tio n re ve a le d tha t “on e of the pe op le se e n lea vin g [] Roo m 108 wa s a per so n b y the name of Chris.” Mea

nwhile, APD Offic er Pete Bonilla happene d upon Scott while he was working offdu ty se c ur ity a t Se ton Ho sp ita l. O ff

ic e r B on ill a

te sti fi ed that a

ho sp ita l e mpl oy e e inf

or me d h im3

that a man—late r identified a s Scott—had been broug ht into the emer g ency room by his father . The
e mpl oy e e re po rt e d to B on ill a that the man w a s b e ing“ c omb a tiv e .” B on ill a te sti fi e d th a t he we nt t o the eme rg ency

room and saw

Scott “throwing his arms out, thrusting, [being ] uncooperative.” Acc ording to Bonilla, Scott was also using “cuss words,” “making gr unting noises,” and his words

“ we re n’ t ma

kin g se ns e .” Sc ott ’s me dic a l re c or ds , lat e r ad mit te d into e vid e nc e , r e fl e c te d th a t Sc ott ha d c ra c k, mari hu a na , an d amp he tamin e s in his sy ste m at the tim e . Sc ott ’s fathe r inf or me d B on ill a that “something bad” ha d happene d to Scott at a location in south Austin. Bonilla c alled dispatch
and le arn e d th e re ha d be e n a

ho mic ide in s ou th Aus tin a lon g Sou th I H- 35 ne a r O lto rf in w hic h Sc ott
wa s a su sp e c t. Of

fi c e rs we re dis patc he d both to the ho sp ita l and to t he re sid e nc e of

Sc ott ’s pa

re nts
. The off icer s spoke with Scott’s mother, who informe d them that Scott had been at the house ea rlier in the day and had left a backpa ck there. After the pol ice obtaine d a sea rch w arr ant for the residenc e, they rec overe d the bac kpack. They also located a nd collecte d a .45-c aliber pistol from the c loset of the master be droom. Detec tive Skolaut, who recover ed the wea pon, testified t hat t he g un was loade d with a “live r ound that had alr eady been c hamber ed,” a

nd that the safe ty

was off
. Dr. Da vid Dolinak perf

ormed an autopsy

on Sparks’s body . Dr. Dolinak te stified that the ca use of de ath was a

g unshot wound to the head. D olinak further testified that he found soot or burned gunpowder

around the edg es of the entry wound in Spar ks’s skull. Accordingto Dolinak, the pre sence of soot and burne d g unpowder on the ent ry wo u n d could have been c aused only by pla c ingthe e nd

of the g un “ ri g ht u p a g a ins t the sk in wh e n it’ s fi re d. ” Do lin a k a dd e d, “ I f t he g un is4

he ld e ve n a fe w i nc he s awa y [fr om t he sk in], we wo uld

n’ t se e thi s. ” He fu

rt he r o pin e d th a t th e c a

us e of death was homicide a

nd not natural de ath, ac cident, or suicide
. J ason Flate r, a firea

rms examiner for the Austin Police Depa rtment, examined t he g un rec overe d from Scott’s par ents’ house a nd also the bullet fra g ments that had bee n rec overe d fr om S pa rk s’ s b od y . H e de te rm ine d th a t th e bu lle t ha d b e e n f ir ed fr om t

his g un . F la te r a lso deter mined that the g un was in “me chanic ally functioning condit ion,” explaining that the we apon “didn’t appe ar to have any thing notice ably

wrongwith it. There wer e a few scuff s on the front of the sli de bu t no thi ngtha

t w ou ld h ind e r its ope ratio n or sa fe ty .” F la te r ad de d tha t in or de r to fir e thi s particula r g un, a person would have had to e x ert approximately seven- and-a -half pounds of for ce on the tr ig g e r . Su c h f

o r c e , a c c o r d in g to F late r , is th e e qu iv a le n t o f li f ti n g a lm o s t a

n e n ti r e g a ll o nof milk. Flater fur

ther testified that the bullet fired f rom the g un and fr ag ments rec overe d from the victim’s body

was a “hollow-point bullet,” whi ch, F later e x plained, is “de signe d to expand on impact” a nd “have a more destructive e ffe ct than a solid bullet or a f ull-metal-jac ket bullet.” T h e S t at e p re s en t edi t s t h eo r y o f e v en t s i n t h e m o t el ro o m p ri m ar i l y t h ro u gh L eroy Wormley , who claimed to have bee n in the room with Scott and Sparks when the shooting
oc c ur re d. Wor mle y e xpla ine d th a t Sp a rk s w a s a pr os tit ute and dr ugus e r w ho m he ha d me t a c ou ple of wee ks prior to the shooting. On the day of the shooting, Wormley rec ounted, he and Spar ks had
arr ived at the motel at a

pproxi mately

the same time in sepa

rate vehicles. Wormley

followed Sparks into room 108, where she was stay ing at the time. I nside the room we re thre e other people—“ a g uy they called Big Mike,” “another guy called Gabe,” and Scott. Acc ording to Worml ey , at least one of the men, G abe, w as smoking ma rihuana when they

enter ed the r oom.5 Wor mley tes ti fie d, “ Whe n St a c y fi rs t w a lke d in to t

he ro om, Ig ue ss C hr is [Sc ott ] jumped up off of

the bed a

nd then immediatel y s t arted arguing” with Sparks, appar ently over whether Sparks owed him money for the r oom. Accor ding to Wormley , “ther e was c ursing , it was loud, she didn’t agre e t o owinghim any money , he said y es, and, I mean it just kind of esca lated from ther e, if y ou could esc alate w hat was a lrea dy loud.” Sp ar k s “go t on her c ell phone and the n walked into the bathr o o m , at which time the de fenda nt was beating on the bathroom door saying Iwant my money , Iwant the money that y ou owe me.” At that point, Wormley testified, “B ig Mike ” left the room a

nd the ar g ument continued:
A: They continued to argue. You know, like I said, it was more than I wanted to be a pa rt of, y ou know, just give n the nat u re o f t h e s urrounding s, and I sa id, he y , th is i s a

bo ut e no ug h o f t

his . Y ou kn ow , I did n’ t com e he re fo r t

his
. Q: And when you said Ididn’t come he re f or this, what did y ou do? A: Duri ng the c ours e of the ir a rgume nt, I wa s kin d of li ke ju st paci ng fr on t to back, f ront to back, a

nd it got to that point and, y ou know, h ear ing the m cursing the way

that they wer e, y ou know, him asking , y ou know, hey , Iwant my money , y ou g ot some money . I think she wadded up a ten- dollar bill and thr e w i t to him , h e g ot i t and he sa id you ’v e g ot som e mon e y . Just g ive me all the money . You know, I ’ve be en p ay i n g fo r a lot of stuff a nd she sa id— sh e y e lle d ba c k, y ou kn ow , y ou ’r e c ra zy . I do n’ t g o o ut a

nd lay on my back a nd make my

money just to give i t t o y ou, littl e boy , and I think she might have ev en s ai d s cre w y ou or something at the end of that. And that was a bout the time Iwas g oing towa rds the fr ont an d re aching f or the door a n d a s I— Q: I ’m

g oin g to s top y ou

there. S o y ou are reac hin g fo r t he do or . I s th a t to leave ? A: Ye s.

. . . .Wormley was somewhat unclear

in expl aining whether

Scott ha d the g un in his backpac k 1 once the y wer e in the ca

r: Q: During the ride, do you see the g un? A: Ye s. Q: Okay . How is it that y ou see the defe ndant’s g un? A: Imean, be cause he has it on me the w hole time. Q: Whe n y ou

say he ha s it on y ou the wh ole tim e , w hat do y ou me a n b y tha t? A: W el l , h e h as t h e gu n p o i n t edat m e w h i l e I’m dri v i n g. 6 Q: What’s the next thing y ou rec all happening when y ou are g oing to le ave the ro o m an d t h ey ar e s t i l l ar gu i n g? A: Ireme mber g rabbingthe door ha ndle. Abo u t t h e t i m e I g rabbe d the door handle, I just heard a

big pow , and it made me tur n around . . . .
As Wor mle y tur ne d a ro un d, “ Ga

be ” ra n o ut t he do or . A t th e same tim e , Wo rm le y te sti fi e d, Sc ott “wa s walking towards me w ith the gun pointed in my fa ce an d said y ou g ot me, my nigg er, you g ot me.” “D ue to the fa ct that the g un was in my fac e,” Wormley rec ounted, he r esponded, “ Yea h, Ig ot y ou.” The n, Wormley testified, S cott told him, “You are going to take me wher e I need to g o.” Wormley a g r e e d
. Wo r

ml e y a ls o te s ti f

ie d th a t S c o tt

a c c u s e d h im o f b e in g an u n d e r c o v e r

police office r. Ac cordingto Worml ey , all of this happene d within “three m i n u t es or so” afte r he ha d
e nte re d th e mot e l r oo m w ithSpa rk s. Wor mle y a nd Sc ott the n lef

t the mot e l. Wor

mle y te sti fi e d th a t Sc ott

pu t th e g un

in his ba c kp a c k a

nd fo rc e d h im t o d

ri ve him to S c ott ’s pa

re nts ’ h ou se . Wo rm le y

c la ime d th a t Sc ott pointed the gun at him and directed where to drive. Along the way , Scott ag ain ac cused Wormley 1Q: Well, when y ou left the hotel, he kind of had the gun in his backpac k?

A: W el l , al l h e had to do was let g o. Once he pull ed the backpa ck off his leg, the bac kpack just went to the floorboard and the gun i s in his hand still at that time. Q: So, while y ou are driving then, the bac kpack is down a nd y ou see the g un? A: Rig ht. Q: Ar e y o uaf

ra i d wh i l e y o uar e d ri v i n g? A: Pretty much.

7 of beingan under cover

police off

icer and of “ driving too f

as t ” an d “t ry ing to g et a ticke t and g et us pulled over a

nd g et ca ug ht.” Wormley

also rec ounted that Scott had ca lled his mother on Scott’s
c e ll p ho ne duri ngthe dr ive . E ve ntu a lly , th e y a rr ive d at a

re sid e nc e “ no rt

he a st, [in] th e Pf

lug e rv ill e
are a” that Worml ey

discerne d was the home of Scott’s pare nts, who were outside. Stil l holding the gun, Scott deman d ed that Wormley g et out of the truc k, and Wormley complied. Wormley

continued:
After Ig ot out of the truck, he said, y ou know, don’t move or I ’ll be rig ht on y ou, and a bo ut that tim e his mom wa s wa lki ng do wn sa y ing , y ou kn ow

—s he sa id, oh, my g oo dness , what’ s w ro ng ? Wha t’ s w ro ng ? Wha t’ s g oin g on ? An d at th a t po int in time he said—they made me kill that bitch, they made me kill that bit ch, she w as the devil . . . . At one point during the conve rsation, Wormley explained, Scott tol d his mo t her that Worml ey was “ an under cover

cop” a nd that “they ’ve be en setting me up all wee k long.” Wormley denied8

these a ccusations to S co t t’s mother. Wormley claimed this conve rsation continued outside for about five or

ten minutes befor e Scott, his parents, a nd Wormley

went inside the house. Once inside the house, ac cordingto Worml ey , Sc ott continued pointing the gun at Wormley and say ing “off the wall s tuff” about how W ormley neede d “to soldier up,” “ put on y our motherf***ing armor,” and “g et re ady to meet y our maker ,” while Scott’s mother tried to dissuade Sc ott fr om “ do ingwh a te ve r h e mig ht h a ve be e n th ink inga bo ut d oin g .” Wor

mle y te sti fi e d tha t th is continued for

“at lea st another 30, 45 minutes.” Eve ntually , Wormley rec ounted, Scott fe l l off of a stepladde r he ha d been sitting on, dropped the g un, and passed out. Scott’s f ather asked Wormley to help him take Scott to the hospital, a nd Wormley

ag ree d. After

arr iving at the hospital, W ormley t es t i fi edt h at h e c al l ed9 1 1 an d re p o rt edt h e s h o o t i n g. Scott’s pare nts testified in his de fe n s e. Scott’s mother, Be tty For d, testified that when Scott s howed up at her house, he seeme d “ver y scar ed, ver

y unlike himself, something w as wrongwith him.” Ms. Fo rd re counted that Scott t old her that “ someone wa s after him, out to get him, that they

wer e coming for him,” a

nd that she had the impression that Scott was worrie d about somebody

wanting to kill hi m. Ms. Ford e x plained that Scott wa s “babbling on” and “ foaming at the
mouth a nd sw e a tin g ” be fo re he pa sse d ou t. Sc ott ’s ste pf a the r, JohnF or d, te sti fi e d th a t w he n Sc ott fi r s tf e l l t o t h e g r o u n d , “ h e w a s l a y i n g o n t h e f l o o r a n d h e w a s w h a tw e w o u l d

c a l l i n t h e B a

p tis t churc h talking in tong ues, bec ause it wa s like an uttera nce,” “(Mutter ing) , oh God; (muttering ), oh L or d; ( mutte ri ng ), so me thi nglik e that.” Mr. F or d a lso te sti fi e d a bo ut t he g un tha t w a s f ound in the house. He explained that the wea pon fell out of Scott’s bac kpack when Scott f ell to the g round. F or d c la ime d th a t he pic ke d u p th e g un and pu t it in h is c los e t to ke e p it

fr om g ra nd c hi ld re n in the house.Scott also refe renc ed “a white Four

Runner.” 2 9 Sc ott a lso te sti fi e d. He a dmi tte d that he ha d be e n s mok ingc ra c k c oc a ine on a da ily basis beg inning a

bout two weeks pr ior to the shoo t i n g. W h i l e initially consuming “a r ock or two rocks” per day , Scott e x plained that “in the wee k that led up to this
. . . it r ea l l y we n t overboa

rd.” During this we ek, he formed a platonic frie ndship with S parks c enter ed on their “ smoking roc k toge ther . . . [ a] n d other drug s” in motel rooms they would rent for

this purpose. Additional drug
us e rs “ wo uld

c ome a nd

g o, ” us ingdr

ug s w hil e the y

we re the re . O ne of

the se ind ivi du a ls, Scott testified, was Wormley
. Scott ex plained that Wormley would come in and out of the rooms “a ll the time,” and that Spar

ks called Wormley her “ baby .” Scott inferr ed fr om this comment that W ormley was “ her boy friend or

her sug ar da ddy .” Sc ott re c ounte d h is p e rc e pti on s o f t he e ve nts le ading up to t he sh oo tin g . Sc ott te sti fi e d th a t he c a me to fe a r that Worml e y wa s some ho w co nn e c te d to lawe nf or c e me nt. (I

n f a c t, Wormley admitted on the stand that his brother w as a police office r). These fea rs, Scott ex plained,
we re t ri gger edb y

W o rm l ey ’s t al k i n g ab o u tS co t t ’ s “ c ri m i n al h i s t o ry , ” “ h i s fa m i l y an d t h i n gs l i k e t h at
. ” Scott asked Sparks a nd other pe ople who fr equente d the motel rooms if they believed Wor mle y wa s w or

kin g wi th t

he APD or

so me oth e r g ov e rn me nt a g e nc y , b ut, a c c or din g to Scott, “ nobody

rea lly commented.” Scott claimed that, appr ox imately three or four

day s befor e the sh oo tin g , “ Iwa

nte d to g e t awa

y fr om t he re and so Itr ie d to le a ve ,” bu t w a s f oll owe d by

“ a wh ite van” that “was hitting their high beams” and would “drive beside me a nd look into the car a

nd back up.” Sc ott

pe rc e ive d th a t the wh ite va n c on tin ue d to fo llo w him a s he a tte mpt e d to dr ive tow a rd his 2 mot he r’ s h ou se . “ Rid inga nd c ry ingthe wh ol e time, ” a s Sc ott de sc ri be d it , a

nd fe a ri ngfo r h is10

pa re nts ’ s a fe ty , h e “ le ft fr om m y pa re nt’ s h ou se a nd

. . . tr ie d to dr ive a ro un d I -3 5 a nd 13 25 jus t to make sure that Iwasn’t be ing f ollowed, and they

followed me the re.” Acc ording to Scott, he had moved to the motel room where the shooting occur red in an ef fort to eva de Wormley . He wa s in the room with Michael P o t t s an d Ga b riel Curos when Wormley , who evidently had found them, arr ived. S cott testified that Wormley “wa s telling
me . . . if I wo rk e d wi th him e ve ry thi ng wi ll be ok a y , y ou kn ow , fi na nc ia lly , thi ng s lik e that.” Sc ott also claimed that Worml ey showed him tex t messag es on his cell phone to the e ffe ct of “ work with us, every

thing will be oka

y ,” “c omply

with them or just go al o n g wi t h whateve r they are
a sk ing .” Sc ott fu

rt he r te sti fi e d that Wor

mle y ha d “ a

br ie fc a se or

la pto p lo ok ingthi ng ” a nd

“ so me kind of like a mind-re ading book or a brain kind of book, something where y ou mess with people’s minds or something.”

Scott also claimed that Wormley , appar ently deducing that Scott ha d been disc ussing him unfavora

bly with the others, threatened him, “ y ou don’t want to follow throug h today ? I ’ll g et y ou locked up f

or 60, 70 y ear s. Be tter y et, y ou are go i n g t o en d up under that bed rig ht there.” When asked what h e t h o ug ht Worml ey meant by

that, Scott testified, “I

don’t know. I

mean—I didn’t know i f he was talking about, y ou know, t hey wer e going to set me up and take me to jail . . . or kill me, make it look li k e an a ccide nt or a robbe ry or any thing like that.” Scott perce ived he was in a “ Catch 22” in whic h he could e ither do what Worml ey wanted him to do, or possibly be
arr ested or killed. Scott “f elt rea l strongly” that “some thing wa s g oing to happen” that day . “Either [W ormley ] was goingto say , y ou know, y ou have to do something or something, you know, I don’tS c o t tc l a i m e d h e a l s o f e a r e d t h a tP o t t s a n d

C u r o s w e r e p o s s i b l y w o r k i n g w i t h W o r

m l e y. 3 11 kn o w . W h a t e v e r i t w a s t h e y[ ] wa nted me to do, may

be he was g oing to c all me on it or something.” 3 Scott a dded, “Whatever it wa s, I thought it wa s bad beca use I didn’t want to do it in the f irst place. Ididn’t want to do any

thing to comply

with him.” A “f ew minutes” a fter Wormley arr ived, Scott testified, Sparks also ar rived at the mot e l r oo m. S oo n th e re a ft e r, a c c or din g to Sc ott , Spa rk s le ft wi th Wo rm le y

“ to g o a nd sc or e so me drug s.” W hen S parks and Wormley returne d, Scott testified, Sparks was a rg uing w ith W ormley

and
c a lli nghim

name s. Ac c or din g to Sc ott , Spa rk s we nt int o the bathr oo m and c los e d th e do or . Sc ott testified that he thoug ht Worml ey was a ng ry at Sparks and wanted Scott to “do something ” to her
. Scott ex plained, “H e said . . . man, you need to do something , y ou know, and I was like, y ou know, what . . . ar e y ou talking about. He said, man, y ou need to do something, y ou need to step up, you need to do something .” When aske d what he thoug ht Worml ey meant, S cott testified, “I

didn’t know what he w as imply ing, but imply ing me to do something to Stac y . I don’t know . . . at fir st, I was thinking he w anted me to c onfront her . May be beat her up or some thing like that, you know.” Sc ott pr oc e e de d to kn oc k o n the bathr oo m do or . Whe n Spa rk s op e ne d the do or , Sc ott beg an t al k i n g wi t h h er a nd asking her to g ive Wormley either dr ug s or money . Sparks re fused. Th en, S cot t re c ounte d, Wor mle y be g a n “ ta

pp ingon his sid e ” a nd

a lso tou c hin g his watc h. Sc ott perc eived:
Ithought may

be he w as mea

ning a bout the essence of time or something like that or Ineed to hur

ry up, Ionly have this cha

nce. I f I don’t take this cha

nce that he’s g iving me , th e n it ’s ov e r f

or me , a nd be ing ov e r fo r m e , I

do n’ t kn owwh e the r i t’ s li ke me g e t t i n g s h o t o r m e g e t t i n g a r r e s t e d o r w h a t , o r t h e j e o p a r dy o f m y
— m y f a m i l y.12

Say ing this is all on the line. You know what I mean? This is y our cha nce to a ct, and t h i s i s wh at Iwa s t h i n k i n g.
Scott testified that he did not know what exactly Wormley wanted him to do to Sparks, but thought Wormley might have wanted him to “pistol whip the g irl or something like that.” Scott rec ounted that, as he approa ched Sparks with his g un, he was pleading with Wormley not to “make me do it.” Wor mle y , h ow e ve r, c on tin

ue d to “ hin t” thr ou g h his g e stu re s that Sc ott “ do so me thi ng ” to S pa rk s. Scott testified, Man, I don’t know what he wants me to do. He was hint ing at the g un. Ipicked up the g un . . . . An d s o w he n I

ha d th e g un , I wa lke d in fr on t of Mic ha e l and Ga br ie l, and L eroy . They

all saw the gun. . . . They wer e all sitting ther e, and he was g oing like this (indicating ), l ike, y ou know, y ou are running out of t ime and then he looked at them and he said we’ re r unning out of t ime. He looked at m e, and Iwas like, man, what do y ou want me to do? . . . Isaid please don’t m ak e me do this, and he was turning red. And I don’t know why Stacy wasn’t turning a round. . . . I

don’t know exactly how she was positioned. I know she was by the vanity
. . . . I was looking at her a nd Iwas say

ing ple ase, ma

n, please , man, then all of a sudde n, the door ope ned. Ijumped. Idon’t know what I ’m thinking, if I ’m g oing to g et shot, [or if] the cops are rushing in. I panic. Boom, the g un g oes off. Okay ? I ’m like this (indicating ). The g un g oes off

. Isee out of the corne r of my ey e Stacy ’s body drop. I didn’t turn around to look. I was in shock. So I stopped. And I was just looking stra ight a head with the g un down.
Scott insi sted that he “ had no intent to shoot St acy ,” but was j u s t “s ca re d ” and “thoug ht people we re g oing to star t coming in or

Iwas g oing to g et s hot.” When asked if he knew, wh e n h e pu lle d th e tr ig g e r, th at the gun wa s g oin g to g o o ff

a nd Spa rk s w a s g oin g to g e t hu

rt , Scott testified,
I k n e w i f I p u l l e d t h e t r i g g e r s o m e b o dy c o u l d g e t h u rt , b u tI d i dn ’ th a v e
— r e c o l l e c t l y, Ididn’t have my fing er on the trig g er or it wasn’t my intention. I was thinking may be13

he wa nted me to pistol whip her, like I said
. And so Iwas—I

was plea ding be fore I wou ld act uall y

g o in to t he a c t of do ingit b e c a

us e Ine ve r h a d a

ny thi nga g a ins t S t a c y. S h e w a s n i c e t o m e t h e w h o l e t i m e . I n e v e r h a d a p r o b l e m w i t h S t a c y.
Sc ott fu rt he r t e sti fi e d a

bo ut e ve nts fo llo wi ngthe sh oo tin g . A c c or din g to S c ott , it was Wormley

who initiated the flig ht from the motel, not him. Scott proce eded to follow W ormley
ou t th e do or . The n, a c c or din g to S c ott , th e y e nc ounte re d s ome on e name d “ Mic ha e l Pars on s” who “a sked whe re Stac y

was.” I n response , Scott testified, “L eroy said that she’s not her e, and me , Isa id— Isa id t

hat sh e ’s tr ipp ing .” W or mle y a nd Sc ott the n g ot i nto Wor

mle y ’s tr uc k, a nd Sc ott told W ormley to take him to his parents’ house . Scott recounte d how he notice d that Wormley was

“ a c tin g ne rv ou s” a nd

“ ba bb lin g ” a bo ut h e lpi ngSc ott

“ g e t out of

he re .” Ac c or din g to S c ott , h e tol d Wormley , “I ’m not try ing to g et out of her e.” T hen, Scott testified, Wormley pleade d with Scott not to kill hi m, to which Scott replied, “I ’m not trying to kill y ou . . . just drive.” Scott denied pointing the g un at Wormley
. He testified, “I never had the g un pointed on L eroy Wormley
. I had the gun in the backpa ck. I t was in no way pointed at him.” During cross-e x amination, Scott was asked w hether, in addition to crack, he had smoked amphetamines. Scott testified,
Idon’t—Idon’t reme mber doing the amphetamines. Now, it could have been like on somebody ’s stem or something like that. Sometimes they have speed in the cra ck pip e or so me thi nglik e that and

that’ s p ro ba

bly ho w t he me tha mphet ami nes c ou ld have g ott e n in

my sy ste m, b ut m os tly

c ra c k a nd the weed that

Iha d I wa s tr y ingto calm down be cause of the situation that was g oing on, but mostly Iwas smoking cra ck, y es, sir.14 Scott also admitted that he had br oug ht a 45-c aliber se mi-automatic pistol—loaded with hollow-point bull ets

— to the motel room. Howeve r, he a sserted that he did not know that there w a s a r o u n d in th e c h a mb e r a n d , f u rth e r , th a t h e “ d id n o t c o c k th e g u n . ” Wh e n a s k e d if he “flicke d the safe ty

off,” Scott testified, “Appar ently the s afe ty must not have be en on. I didn’t flick
any —I did n’ t f lic k a ny thi ng . I did n’ t c oc k a ny thi ng , I did n’ t f lic k a ny thi ng .” Sc ott

sp e c ulate d th a t, “whe n [he] was a sleep” o r “i n the re stroom,” Sparks may have ha ndled the g un and switche d the safe ty off. Scott furthe r denie d putting the gun ag ainst the bac k of Sparks’s he ad. He claimed that he wa s looking at Worml ey when Spar

ks was shot, and he was not p ay i n g att ention to the g un’s proxi mity to her. Whe n a sk e d w hy

he sh ot S pa

rk s and no t Wor mle y , Sc ott

te sti fi e d, “ What if L e ro y

is a police off icer ? Iwas unde r the impression may be he w as a police office r, he w as workingfor APD, that’ s a los e /lo se sit

uatio n. Iwa sn ’t

int e nd ingon

sh oo tin g a ny on e .” Th e State the n a sk e d Sc ott , “ So
a t th e tim e wh e n y ou

a re in t his sit uatio n y ou

kn owit’ s w ro nga nd y ou c ou ld g e t in a lot of tr ou ble for shooting a police of

fice r? ” Scott admitted, “Ye s. Yes.” Scott a lso a dmitted that he did not seek help for Spar

ks after he shot her: Q : A l l r i g h t
. Y o uh e a r t h e p o p , yo uf

e e l t h e r e c o i l
. W h e r e i s S t a c y? A: Isee he r in the corne r of my ey e, like I saw her—I hear d her drop and I saw like her ha ir. Q: Did y ou see blood? A: No. Q : O k a y. A n d

yo ud i dn ’ tc h e c k

t o s e e i f s h e w a s o k a y?Dr . B ur ro ws ha d a lso e va luate d Sc ott ’s c omp e te nc y to s tand tr ia l. 4 15 A: No. Q: You didn’t ca ll an ambulance ? A: No. Q: You didn’t g et the hotel mana g er? A: No. Q: Okay . I n fac t, acc ording to y ou, when y ou lef t , s o m ebody

even a sked for Sta c y ; is that r ig ht? Mik e Pars on s? A: Ye s. Q: An d y ou

did n’ t sa y sh e c ou ld b e hurt ; r ig ht? A: No. Q: Yo u s a id s he ’s jus t tr ipp ing , r ig ht? A: Ye s.
The de fense also prese nted the testimony o f p s y ch i atrist Maure en B urrows, w ho had ex amined S cott in an attempt to deter mine his mental s tate and any mental illness at the time of t h e s h o o t i n g. Dr. B urrows opine d that Sco t t h ad b een sane at the time of the shooting, a leg al 4 conclusion that she de scribed f or the jury as “y ou know the diffe renc e betwe en rig ht and wrongand something doe s not interfer e with y our ability to know the diffe renc e betwe en rig ht and wrong .” As for menta l illness, Burrow s d i agn osed Scott with poly substance de pendenc e involving c ocaine , amphe ta mi n e , a n d ma

r ih u a n a . Sh e f

u rth e r d e te r

mi n e d th a t a t th e ti me o f th e s h o o ti n g , Sc ott had be e n p ara

no id ( havin g un re a so na

ble a nd un jus tif ie d s us pici on s a

bo ut o the rs ) a

nd ps y c ho tic16

(diverg ing f

rom rea l i t y ). B urrows a dded that such a condition would “by

definition” af

fec t how Scott perce ived the potential conse quence s of his behavior.

On cr oss-examination, Dr. B urrows f urther opine d that Scott’s psy chosis was due
so le ly to d ru g int oxic a tio n an d not to bip ola r dis or de r. B ur

ro ws wa s a lso a sk e d w he the r S c ott wo uld have be en able to ma

ke conscious dec isions “but for the voluntary intox ication and the dr

ug intake.” Bur rows answe red, “With a hundred perc ent cer tainty I can’ t sa

y that, but it’s highly

likely that he would have a

nd that the poor de cision making was ba sed on the intox ication of the substanc es.” The dist rict court submit ted the off ense of murder a s char g ed in the indictment, along with lesser-inc luded cha

rg es of r eckle ss ho m i ci d e an d criminally neg lige nt homicide. The jury
wa s instru c te d tha t volunta ry int oxic a tio n is not a def e ns e to the c omm iss ion of a c ri me a nd that if Scott eng ag ed in conduc t “while intox icated fro m t h e v o luntary introduction of an intoxi cating substance in to h is b o dy , th a t i n to xic a ti o n , if an y , c a n n o t s e r

v e to n e g a te w h e th e r

h is c o n d u ct was eng ag ed in intentionally , knowing ly , rec klessly or with criminal neg lige nce.” See Tex. P enal Cod e Ann. § 8 .0 4( a ) ( Wes t 20 03 ). Th e jur y c on vic te d Sc ott of mur de r a s c ha rg e d in t he ind ic tme nt. This appea l followed.
AN AL YSI S Charge e rror I n his first issue, Scott c omplains of the district court’s r efusa l of the following jury instruction, which he timely reque sted:17

Whil e voluntary

intox ication does not constit ute a de fense to the commission of a crime, the jury m ay

decide whether

any evidenc e of me ntal illness lessens the defe ndant’s culpa

bility by finding him guilty

of the lesse r-include d offe nse.
W e re vie w c la ims of

jur y c ha rg e e rr or un de r t he tw o- pr on g e d te st s e t out in A lm a n za v . Stat e , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on re h’g ). We fi rs t d et er m i n e whe ther e rror exis ts. Ngo v . S

tat e , 175 S.W. 3d 73 8, 74 3 (T e x. Cr im. Ap p. 20 05 ). I f er ro r exis ts, we the n e va luate the har m cause d by

the er ror. Id
. The deg ree of harm require d for reve rsal depends on w hether that
err or wa s prese rved in the tria l court. When err or is pr eser ved in the trial c ourt by

timely objection, the re cord must show only “some ha rm.” Al ma nz a , 6 86 S.W. 2d

a t 17 1. B y

c on tr a st, un ob

je c te d- to char g e er ror r equire s reve rsal only

if it resulted in “e g reg ious harm.” Se e Ne al v . S tat e , 256 S.W .3d 264, 278 (Tex. Crim. App. 2008).

On app eal , S cott se e ms t o a rgue that he wa s e nti tle d to thi s in str uc tio n b e c a

us e there was e vidence he had shot Sparks w hile temporar ily insane due to involuntary intox ication fr om a mph e tamin e s. Th e affi rm ativ e de fe ns e of inv olu nta ry int oxic a tio n is e nc omp a sse d w ith in the insanity

defe nse pre s cr i b ed in t he pena l code. Me nd e nh all v . S tat e , 77 S.W .3d 815, 817-18 (T e x. Cr im. Ap p. 20 02 ); see Te x. Pe na l Co de Ann. § 8 .0 1( a ) ( Wes t 20 03 ). Th e re are tw o e le me nts : (1 ) t he a c c us e d e xer c ise d n o in de pe nd e nt jud g me nt or vo lit ion in ta kin g the int oxic a nt; a nd (2 ) a s a
re su lt o f a “ se ve re me nta l di se a se or de fe c t” c a

us e d by the inv olu

nta ry int oxic a tio n, the a c c us e d d id not know that his conduct wa s wrong . Se e Me nd e nh all , 77 S.W.3 d at 8 17 -1 8. Ho we ve r, a s th e Sta te observe s, what Scott reque sted was instead an instruction on “diminished capa city ”—that his mental illness lessened his culpability —not that involuntary

intox ication excused his conduct entirely
. SeeI n fac t, in advocating for the instruc tion in cha rg e confe renc e, Scott’s counsel urg ed that 5 “some of this trac ks the lang uag e in Jack son .” Se e Al e x an der v . S

tat e , No. 03-01-00263- CR, 2002 Tex . App. L EXI S 2048, at *8-9 6 (Tex. App.—Austin Mar. 21, 2002, no pet.) ( not desig nated f or publication). 18 J ac k so n v . S tat e , 160 S.W .3d 568, 5 7 3 -7 4 (T ex . Crim. App. 2005). As he a c kn ow le dg e s, Sc ott 5 did n o tr e qu e s ta

j u r y i n s t r u c t i o n o n a n a f

f i r m a t i v e d e f

e n s e o f i n v o l u n t a r

y i n t o xi c a t i o n , m u c h l e ss
argue that th e or

y a t tr ia l. C on se qu e ntl y , th e dis tr ic t court c ou ld not have e rr e d in fa ili ngto s ub mit a jury instruction b as ed o n that defe nse. See Po se yv . S tat e , 966 S.W .2d 57, 62 (Tex. Crim. App. 1998). In any ev en t , t he af firmative de fense of involuntary intox ication was not ra ised by the evidenc e. Eve n if Scott’s testimony raised a n issue as to whethe r he, w hile voluntarily smoking
cra ck and ma

rihuana , nonetheless had exercised “ no independe nt judgment or volition” in ingesting amphetamine, the evidenc e did not permit a rational jury to conclude that it was the amphetamine 6 int oxic a tio n, a s op po se d to his vo lun tary int oxic a tio n fr om oth e r dr ug s, that ha d c a

us e d h is p a ra

no ia
and ps y c ho sis or

that Sc ott

ha d n ot k

no wn his kil lin g Spa

rk s w a s w ro ng . S c ott ’s ow n e xpe rt , Dr. B urrows, te stified t h at Scott was “sane ” at the time of the shooting a

nd “knew the diffe renc e betwee n ri gh t an d wr o n g.” Additionally , Scott admitted that at the time of the shooting, he had perc eived it was w rong to shoot W ormley and neve r cla imed that he had not pe rce ived shooting S p ar k s t o b e w ro n g.

N o r w a s Sc o tt

o th e r w is e e n ti tl e d

to h is r e qu e s te d

d im in is h e d

- c a

p a c it y in s tr uction. “T e xa s d o e s n o t r e c o g n iz e d im in is h e d c a p a c it y a s a n a f f ir mati v e d e f

e n s e i. e . , a le s s er f

orm of the defe nse of insanity .” Jack son , 160 S.W .3d at 573. I nstead, diminished capa city “is simply

a fa ilureof-pr oof def

ense in whic h the def

endant c laims that the State failed to prove that the def endant19

had the r equire d state of mind at the time of the offe nse.” Id
. Consequently , the Court of Criminal Ap pe a ls h a s r e asone d th a t an in str uc tio n li ke Sc ott

re qu e ste d is no t r e qu ir e d a nd c ou ld c on sti tut e an improper

commen t o n t h e we ight of the evidenc e. Se e id
. (“‘ [a] specific instruction calling attention to the evidenc e on appe llant’s impaired menta l a biliti es wa s unnece ssary , and mig ht have inappropriately

vested this evidenc e w i t h a disproportionate leg al sig nificanc e in the ey es of the j u ry . ’” ) ( qu o t i n g Pe nr

yv . S tat e , 90 3 S .W.2d

71 5, 75 4 ( Te x. Cr im. Ap p. 19 95 )) . Ins te a d, wh a t is require d, the Court of C riminal Appea ls has ex plained, is for the trial court to allow the de fenda nt to present a dmissibl e evidenc e of his a lleg ed mental impairment at the time of the offe nse. Se e id
. at 574 (“ I n all prosec utions for murder , the state or the defe ndant shall be pe rmitted to offer testimony as to all rele vant fa cts an d ci rcumstances surroundingthe killing and the previous relationship ex isting betwe en the a ccuse d and the de cea sed, t o get h er w ith all releva nt fac ts and circ umstances g oing to show the conditi on of t he mi nd of t he accuse d at the time of the of fense .”) (quoting Tex. Code Crim. P roc. A nn. art. 38.36(a ) (West 2005)). The district court did so here
.

The district cour

t allowed Scott to present e x t en s i ve evide nce of his alleg ed
me nta l imp a ir

me nt at th e tim e of

the of fe ns e . T his e vid e nc e inc lud e d D r. B ur ro ws ’s op ini on s; Sc ott ’s pa

re nts ’ o bs e rv a tio ns that Sc ott ha d s e e me d “ ve ry un like him se lf ” a nd wa s “ ta lki ngin tongue s” whe n he ar

rived at their house followingthe shooting; a nd Scott’s acc ount of his biz arr e perc eptions befor e, during , and af ter the shooting. Fur

thermore , the di strict court instructe d the jury reg ardingthe lesser -included offe nses of manslaug hter a nd neg lige nt homicide, thus enabling the jury to consider Scott’s mitigating evidenc e conc erninghis mens rea when r eac hing its ver dict. The20

district court did not err

in refusingScott’s reque sted instruction. Se e id . at 57 4- 75 . We ov e rr ule Scott’s first issue.
Evid entiary suff

iciency I n Scott’s second issue, he challeng es the leg al and factua l sufficienc y of the e vidence supporting his c onviction.

I n a le g a l su ff

ic ie nc y re vie w, we c on sid e r w he the r, a ft e r v ie wi ngthe evi den c e in the light most favor able to the ve rdict, a ra t i o n al trier of fac t could have f

ound the eleme nts of the of fe ns e be y on d a

re a so na ble do ub t. Se e J

ac k so n v . V irg ini a , 443 U.S. 307, 324 (1979); Clayton

v . S tat e , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). “This s tandar d acc ounts for the f actf inder’s duty ‘to resolve conflicts in the testimony , to w eig h the evidenc e, and to dr aw r easona ble infer ence s from basic fac ts to ult imate fa cts.’” Clayton , 2 3 5 S
. W
. 3 d at 7 7 8 (q u o t i n g Jack

son , 443 U.S. at 319). I t is no t ne c e ssa

ry that e ve ry

fa c t po int

dir e c tly a nd ind e pe nd e ntl y

to t he de fe nd a nt’ s g uil t, bu t it i s enoug h if the conc lusion is war rante d by the combined and cumulative for ce of all the incriminating circ umstances. Ho op e r v . S tat e , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007). I n a fa c tua l su ff

ic ie nc y re vie w, we c on sid e r w he the r, a ft e r v ie wi ng the e vid e nc e in a neutr al light, a

rational trier of fact was justified in finding g uilt bey ond a re asonable doubt. See W ats on v . S tat e , 204 S.W .3d 404, 414 (Tex. Crim. App. 2006). We “must be cog nizant of the fac t that a jury h as alre ady

passed on the f

acts a nd must give due defe renc e to the dete rminations of the jury .” Lan c on v . S

tat e , 253 S.W .3d 699, 704-05 (Te x . Crim. App. 2008). “A ve rdict should be set aside only

if the evide nce suppor

ting the ve rdict is so weak as to rende r the ve rdict cle arly wrong
or manifestly

unjust.” Id . at 70 5; Kor e ll v . S tat e , 253 S.W .3d 405, 412 (Tex. App.—Austin 2008,21

pet. re f’d) . There fore , we will not reve rse a judgme nt on a fac tual sufficie ncy challeng e unless we
can sa y , with some objective ba sis in the recor d, that the g reat weig ht and pre pondera nce of the evidenc e contr adicts the ve rdict. W atson , 204 S.W .3d at 417. As we n o te d a

b o v e , Sc o tt w a s in d ic te d f o r mu r d e r u n d e r s e c ti o n 1 9
. 0 2 ( b ) ( 1 ) of the pena l code, wh i ch d efine s the offe nse as intentionally or knowing ly

causingthe death of an individual. Tex . Penal Code Ann. § 19.02(b) (1). A pe rson ac t s intentionally with respec t to a result of his conduct when it is his conscious objective or de sire to ca use the re sult. Id . § 6.03(a) (West 2003). A person acts knowing ly , or with know ledg e, with re spect to a r esult of his conduct when he is awa

re that his conduct is rea sonably cer tain to cause the re sult.” Id
. § 6.03(b). Intent and knowledg e ar e fa ct questions for the jur y , and ar e almo s t al way s proven throug h evidenc e of the
c ir c u ms ta n c e s s u r r o u n d in g th e c r ime. Ch ilds v . S tate , 21 S.W .3d 631, 635 (Tex. App.—Houston [14t h Dist.] 2000, pet. re f’d) . A jury may infer intent from any

fac ts that tend to prove its exi stence , including the acts, wor ds, and conduc t of the ac cu s ed , t h e method of committing the c rime, and the nature of the wounds inflicte d on the victim. Ha rt v . S tat e , 89 S.W .3d 61, 64 (Tex. Crim. App. 2002). A jury

may also infer knowledg e fr om such evidenc e. Id
. Sc ott a sse rt s th a t th e e vid e nc e is l e g a lly ins uf fi c ie nt t o p ro ve tha

t he int e nti on a lly
cause d the death of Sparks. Ac cordingto Scott, “under the totality of the e vid en ce , ” his intent “appe are d to be only to pistol whip Stacy Sparks in order to a ppease Wormley .” Scott acknow ledg es that “it was possible” that he intended to har m Sparks, but contends that “there is e vidence indicating
an ac cidental shooting that was equally as strong ” as the evidenc e supporting the State’s theor y of
an i n t en t i o n al s h o o t i n g.22 The e vi d en ce s u

p p o rt i n g t h e j u ry ’s fi n d i n g t h at S co t t intentionally or knowing ly

killed S p ar k s i n cl u d edt h e f

o l l o wi n g:

• Dr. Dolinak te stified that the nature of the e ntranc e woun d o n Sparks’s hea d indicated to him that the barre l of the g un was presse d direc tly ag ainst her head when the shot was fired. D r. Dolinak a lso opined that Sparks’s death wa s a h o m i cide and not a natura l death, a ccide nt, or suicide.

• W h en t h e all eg ed murde r we apon wa s rec overe d, it had a “live r ound in the chambe r” an d th e s a f e ty w a s o f f
. Ja s o n F late r , th e St a te ’ s f ir e a r m e xp e rt, e xa mi n e d

th e g u n and deter mined that it was in “mechanic ally functioning condition.” Flater testified that the we a po n “ did n’ t a pp e a r to have a ny

thi ng no tic e a

bly wr on g wi th i t” that w ou ld “ hin de r i ts operation or safe ty .” Flate r also testified that in orde r to fire the g un, the per son firing would have to e x ert a

pproxi mately

seven- and-a -half pounds of forc e on the trig g er.

• Sc ott a dmi tte d th a t he ha d b ro ug ht i nto the mot el roo m a .4 5- c a lib e r s e mi- a

uto ma tic pistol, l oaded w ith hollow-point bul lets. Scott further admitted that he wa s holding the g un wh e n it fi re d a nd hit Spa rk s.

• Wor mle y te sti fi e d th a t Sc ott

a nd Spa rk s w e re e ng a g e d in

a he a te d a rgume nt i mme diate ly b ef o re t h e s h o o t i n g.

• When Sparks was shot, Scott admitted not seeking to help her. Wormley testified that Sc ott ins te a d a pp ro a c he d h im w iththe g un a nd fo rc e d Wo rm le y

to d ri ve him to h is pa re nts ’ h o u s e . O n c e a th i s p a r e n t s ’ h o u s e , a g a i n r a t h e r t h a n c a l l f

o r h e l p , S c o tt continued to threaten Wormley for “at least 30 to 45 minutes” while the shooting went u n re p o rt ed
. I twa s W o rm l ey , an d n o tS co t t , wh o fi n al l y

re p o rt edt h e s h o o t i n g. Viewing the above evidenc e in the l ight most favor able to the verdict, we conclude that the evidence is le g a lly su ff

ic ie nt to sup po rt

the jur y ’s fi nd ingthat Sc ott

int e nti on a lly

or kn ow ing ly

sh ot S pa rk s. Evidence that Scott a

nd Sparks wer e eng ag ed in a heate d argument immediately befor e the shooting is probative of intent a

nd motive to kill Sparks. The jury could also infer

intent to kill from Scott’s
us e o f the g un, a dea dly

wea pon. J on es v . S tat e , 944 S.W .2d 642, 647 (Tex. Crim. App. 1996); Pi ton y ak v . S tat e , 2 53 S.W. 3d

83 4, 84 6 ( Te x. Ap p. —A us tin 20 08 , p e t. r e f’ d) ; see Tex. P enal CodeThese a lleg ed inconsistencie s will be discussed more f ully wh en addressing Scott’s 7 ine ff e c tiv e a ssi sta

nc e of c ouns e l argume nt. 23 Ann. § 1 .0 7( a )( 17 )( A) (We st Su pp . 20 08 ). Al so pr ob a tiv e of int e nt t o k ill wa s e vid e nc e tha t Sc ott had presse d the g un ag ainst Sparks’s hea d when f iring it and that it required se ven-a nd-a- half pounds of for ce to pull the trig g er. A dditionally , the circ um s t an ce s s u rr ounding Scott’s f light fr om the
c ri me sc e ne , in c ludin g h is fai lur e to r e po rt the sh oo tin g a nd

his fo rc ingWor

mle y to d ri ve to h is pare nts’ house, al l ege dly at g unpoint, is evidence f rom which the jury

could re asonably

infer a
c on sc iou sn e ss o f guil t.

When consider i n g t h e above evidenc e in a ne utral lig ht, we also c onclude that the e v id e n c e is f

a c tu a ll y s u f

f ic ie n t to s u

p p o rt Sc o tt ’ s c o n v ic ti o n . M u c h o f Wo r ml e y ’ s a c count of the eve nts surrounding the shooting was contra dicted by Scott’s te stimony
. The jury , as the trier of fac t, is the sole judge of the c redibility of the witnesse s and the we ight to be g iven the testimony , and may acc ept or reje ct all or any of any witness’s testimony
. Mc Ce lv e y v . S tat e , 143 S.W .3d 522, 531- 32 (Tex. App.—Austin 2004, pet. ref ’d). Scott ar g ues that there wer e inconsistencie s betwee n Wormley ’s trial testimony and his w ritten statement to the police. H oweve r, the re cord r efle cts that the jury was not ma de awa re of these a lleg ed inconsistencie s during Wormley ’s cr oss-examination. 7 At any rate , we would find nothing irrational about the j ury disreg ardingany such inconsistencie s
or re solving them in the State’s f avor. Scott also contends that the saf ety wa s o ff whe n the g un was fir ed bec ause Spar ks handled the gun he rself pr ior to the shooting. He claims that this theory is supported by

evidenc e sh ow ingthat Sp a rk s’ s D NA wa s f ound on the g un . H ow e ve r, the j ury c ou ld h a ve re a so na

bly24

inferr ed that Sparks’ s DNA wa s on the g un for a nother re ason. DNAtesting of the g un reve aled that Sp ark s’ s D NA

wa s f ound on bo th t he sli de a nd

the ba rr e l of the g un . T hu s, the fo re ns ic evidenc e wa s consistent with either the de fense theory t h at S p arks ha ndled the g un herse lf, or the State’s theory

that Scott pressed the ba

rre l of the g un ag ainst her head. I t w as the jury ’s pre rog ative to a cce pt the State’s theory and reje ct the defe nse theory , espec ially in lig ht of Dr. Do linak’s testimony that the g unpowder found on the entra nce wound was evidenc e that th e gu n h ad b een presse d direc tly

ag ainst Sparks’s hea d when it was f ired. Additionally , Scott cl aims that the evidenc e shows that he w as tempora rily insane du e to “ inv olu

nta ri ly int oxic a tio n” wh e n he sh ot Spa rk s. We have a lr e a dy a dd re sse d thi s a

rgume nt. Voluntary

intox icatio n i s n o t a def ense to the c ommissi on of a c rime. Tex. Penal Code Ann. § 8
. 0 4 (a ). Fu rt h er m o r e , Dr
. Bu rr o ws t es t i fi edt h at S co t twa s “s an e” at t h e t i m e o f t h e s h o o t i n g, which, ac cordingto Dr. B urrows, me ant that Scott knew the diff ere nce be tween r ight a

nd wrong. Additionally , Scott admitted, “Iknew if I pulled the trig g er somebody could g et hurt,” a

nd that, at the t i m e of the shooting, he knew it was w rong to shoot a police off icer . This and other e vidence
su p p o rt s a f i n d i n g b y t h e j u r

y t h a t S c o t t h a d t h e r e qu i s i t e m e n s r e a a t t h e t i m e o f t h e s h o o t i n g to
c omm it the of

fe ns e of mur de r a s c ha

rg e d in the ind ic tme nt. We cannot say , with some objective basis in t he re cord, that the g reat weig ht and pr e po nd e ra

nc e of the e vid e nc e c on tr a dic ts t he jur y ’s fi nd ing that Sc ott

int e nti on a lly

or kn ow ing ly shot Sparks. We overrule Scott’s second issue.25

Ineff ect ive assistance
I n his third and fi n al issue, Scott asserts that the district cour t abused its discretion in denying his motion to dismi ss his appointed trial-leve l counsel. This issue is predicated upon Scott’s contention that his trial counsel re ndere d ineffe ctive a s s i s t an ce. Scott complains that trial counsel failed to impea ch and thoroug hly investigate Wormley , failed to objec t to “improper burden shifting ” duringthe State’s examination of Dete ctive Dixon, and failed to ade quately prepa re for the c ase. This “lac k of preparation,” Scott contends, is demonstrated by counsel’s a llowing the admission into evidenc e of “g ruesome” photogr aphs and video s howing the vi ctim’s body , failing to e xplor e the iss ue of

inv olu nta ry int oxic a tio n, a nd

fa ili ngto e ff

e c tiv e ly qu e sti on Dr . B ur ro ws . To pr ov e ine ff

e c tiv e a ssi sta

nc e of c ounsel , a

n a pp e lla nt m us t e sta bli shbo th that his trial counsel per formed de ficiently and that the defic iency operated to prejudice him. Sta te v. Morales , 2 5 3 S
. W
. 3 d 6 8 6 , 6 9 6 (T ex . C ri m . Ap p . 2 0 0 8 ) ( ci t i n g Strickland v. W ashington , 466 U.S. 668, 687 (1984)). “ I n evaluating the f irst component, re viewing courts must not second g uess leg itimate strateg ic or tac tical dec isions made by trial counsel in the mids t of trial, but i n s t ea d ‘m u s ti n d

u l ge a s t ro n g p r e s u m p t i o n t h at co u n s el ’s co n d u ct fa l l s wi t h i n t h e w i d e r an ge of re asonable profe ssional assistance[.]’” Id . (quoti n g Strickland , 466 U.S. at 689). “This mea ns that unless there is a rec ord sufficient to demonstrate that counsel’s c onduct was not the pr oduct of a strate g ic or tac tical dec isio n , a re v iewing court should pre sume that trial counse l’s perf ormanc e
was c onstitut ionally

adequa te ‘unless the challeng ed conduct wa s so outrag eous that no compe tent attorney would have e ng ag ed in it.’” Id
. at 6 9 6 -9 7 (q u o t i n g Go od sp e e d v . S

tat e , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005)). I n other words, we will not find counsel’s perf orm an ce defic ient26

unless it “fell below an objec tive standard of rea sonablene ss.” Can no n v . S tat e , 252 S.W .3d 342, 3 4 9 (T ex . C ri m . Ap p . 2 0 0 8 ) ( ci t i n g Strickland , 466 U.S. at 687).

“I n the u s u a l c a s e in

w h ic h a n in e f

f e c ti v e a s s is ta

n c e c la im is ma d e , ‘ th e r e cord
on d ir e c t a

p p e a l w il l n o t b e s u f

f ic ie n t to s h o w th a t c o u n s e l’ s r e p r e s e n tati o n w a s s o defic ient and so lac king in tac tical or strateg ic dec isionm ak i n g as to overc ome the pre sumption t hat counsel’s c onduct was r easona ble a n d p rofessional.’” Id
. (q u o t i n g Bo ne v . S tat e , 77 S.W .3d 828, 833 (Tex. Crim. App. 2002)). Only in “ra re ine ff ec t i v e- as s istance c ases” is the rec ord on direc t appea l sufficient for

an appe llate cour

t to make a de cision on the merits. Id . at 350. For eac h of the a

bove a l l eg ed def

iciencie s by

trial counsel, we do not reg ard the re cord in this case as suffic ient to show that trial counsel a cted outside the bounds of what any competent attorney would have done. See M orales , 253 S.W .3d at 697. Addit ionally , in many instances, Scott fa ils to show how, but for the alleg ed def iciencie s, “the re sult o f t he proc eeding would have be en diffe rent.” S e e G a r z a v . S t ate , 2 1 3 S.W .3d 338, 348 (Tex. Crim. App. 2007). We first addre ss tr ial counsel’s perf ormanc e reg arding Wormley
. Scott asserts that trial counsel did not impeach Wormley with evidence of bias or pr ior inconsistent statements made to the police. Fur

ther, accor ding to Scott, “The rec ord lac ks any indication that defe nse counse l had explored Wormley ’s cr iminal hist ory an d relationship wit h the police f orce or any

other state or g overnme nt ag ency .”

The inconsistenc ies to which Scott ref ers are found in Wormley ’s written stateme nt to the polic e. T h e s t at ement wa s larg ely consistent with Worml ey ’s trial testimony , althoug h the written statement pr ovided additional details about the events occur ring befor e, during , and af ter theThese a dditional details do not appear to be mate ri al t o t h e S t ate’ s case . For example, 8 Wor mle y inc lud e d in

his wr itt e n s ta te me nt t

he ro ute he and

Sc ott too k to g e t to Sc ott ’s pa re nts house, the fa ct that W ormley went to churc h prior to g oing to the motel, and what Scott was wea ring during the shooting. 27 sh oo tin g s. Ad dit ion a lly , Wor mle y did no t me nti on

in h is w ri tte n s ta te me nt t hat Sc ott fo rc e d h im 8 at g unpoint to drive to Scott’s pare nts’ house. Also, in the written statement, Wormley stated that Sc ott tol d h im the y

we re g oin g to h is m oth e r’ s h ou se , w hil e a t tr ia l, Wo rmle y c la ime d th a t he did not know wher e Scott was dire cting hi m t o g o. Def ense c ounsel did not pursue these a ppare nt inconsistencies in his cross-e x amination of Wormley
.

On this recor d, we c annot conc lude that counse l was def icient in not calling these a ppare nt inc onsistencies to the jury ’s attention. “Cross-e x amination is an art, not a sc ience , and it cannot be adequately judge d in h i n d s i ght.” Ex parte M cFarland , 163 S.W .3d 743, 756 (T e x. Cr im. Ap p. 20 05 ). Th e a pp a re nt inc on sis te nc ie s be tw e e n Wor mle y ’s tr ia l te sti mony a nd his written statement to the police involved matters incidenta l to the shooting. While drawingthe j u r y’ s a t t e n t i o n t o t h e s e t a n g e n t i a l i n c o n s i s t e n c i e s m i g h th a v e u n d e r m i n e d W o r m l e y’ s c r e d i b i l i t y, tr ia l c o u n s e l c o u ld

h a v e r e a s o n a

b ly c o n c lu d e d

th a t d o in g s o w o u ld h a v e s e r v e d o n ly to e mp h a s iz e the fa ct that, reg arding the shooting itself, Wormley ’s statement to the police and his trial testimony
we re larg e ly

c on sis te nt. As for Scott’s complaint that trial counsel failed to e x plore Wormley ’s alleg ed bias or his alleg ed “relationship with the pol ice f orce ,” the r ecor d ref

lects that trial counse l cross-e x amined Wormley about the deta ils of the shooting a nd his r el at i o n s h i p with both Scott and Sparks, and
c ouns e l did g e t Wor

mle y to a dmi t that he ha d a br oth e r wh o wa s a po lic e of fi c e r. S cot t s ugg e sts28

that Wormley

must have bee n a g overnme nt “snitch” a nd that trial counsel should have elicited thi s in fo rm a tio n f

ro m Worml ey

duri ngc ro ss- e xami natio n. Ho we ve r, the re c or d is sil e nt a s to Wormley ’s cr iminal hist ory and whe ther he was a

police informant. I n fac t, when trial c ounsel asked Wormley on cros s -examination if he was “ under a rre st or investigation for any case s,” Wormley testified that he was not. On this rec ord, we cannot c onclude that tria l counsel’s c ross-examination of Wormley

fell below an objective standard of rea sonablene ss. Furthe rmore, e specia lly in light of our disposition of Scott’s other issues, he has fa iled to show a rea sonable proba bility that additional
cr o s s -e x am i n at i o n o f W o rm l ey wo u l d h av e c h an gedt h e r es u l to f t h e p ro ce ed i n g. We next addre ss Scott’s contention that trial counsel fa iled to object to “improper burd e n s hif

tin g ” duri ngthe Sta te ’s e xami natio n o f D e te c tiv e Di xon. Sc ott c omp la ins that th e State used the ter

m “cr ime scene ” whe n questioning D ix on befor e the State ha d proven that the shooting
wa s a h o m i ci d e. T h er ef

o re , i n S co t t ’s v i ew , t ri al co u n s el s h o u l d h av e ob j ec t ed t o s u ch t er m i n o l o gy by the prosec utor. Trial c ounsel could have rea sonabl y co ncluded that lodg ing suc h an objec tion would have be en point less and serve only to draw the jury ’s attention to the prosec utor’s use of the term. Thus, we cannot c onclude that c ounsel’s fa ilure to object to the use of the term “ crime sc ene” fa lls be low

a n o bje c tiv e sta

nd a rd of re a so na ble ne ss. We ne xt a dd

re ss Sc ott ’s c omp la int s a

bo ut “ la c k of pr e pa

ratio n. ” F ir st, Sc ott

a sse rt s that counsel wa s ineffe ctive in allowing t h e admission into evidence of “g ruesome” pictures a

nd video of the c rime sce ne, spec ifically Sparks’s body . The re cord r efle cts that trial counsel did not vie w the vid e o p ri or

to t ri a l. H ow e ve r, the re c or d a lso re fl e c ts that t ri al cou ns el ob je c te d to bo th the video and the pictures. Reg ardingthe video, counse l stated, “I don’t want the camera to linger29

on the de a d b od

y . I me a n, y ou kn ow , it g e ts to b e inf lammator y a ft e r a wh ile .” Th e dis tr ic t c ourt , perc eiving counsel’s statement to be a rule 403 objection, overr uled it. L ater , trial counsel objec ted to t he a dmi ssi on of the ph oto g ra ph s o f S pa

rk s’ s b od y on the ba sis tha

t th e y we re “ un ne c e ssa

ri ly cumulative” of

the video that had a lrea dy shown the body
. Ag ain, the district court ove rruled tr ial counsel’s obje ction. We cannot conclude that trial counsel’s perf ormanc e fe ll below an objec tive sta nd ard of re a so na ble ne ss s imp ly

be c a us e the dis tr ic t c ourt

ov e rr ule d h is o bje c tio ns . Scott a lso a sserts, “I t a

ppear s that defe nse counsel overlooke d or did not know that Mr. Scott had ing ested amphet am i n es involuntarily , offe ring a plausible de fense to the murder char g e.” We ha

ve alr eady

explained that this “involunt ary” intox ication def ense w as not raise d by the evidenc e. Scott has fa iled to make a show ing that the result of the pr o ce ed i n g wo uld have been dif fer ent. Finally , Scott complains about trial couns el ’s “fa ilure to eff ectively question” Dr. B urrows, “ espec ially during sentenc ing, in o rd er to re habilitate some incorr ect a ssertions made reg arding Mr. S cott’s m ental status.” How ever , Scott does not identify what these “incor

rec t
a sse rt ion s” we re , n or do e s he sp e c if y ho w tr ia l c ouns e l “ fa ile d to e ff e c tiv e ly qu e sti on ” Dr . B ur

ro ws . On this recor d, we cannot conclude t hat S cott’s questi oning of Dr. B urrows f

ell below an obje ctive sta nd ard of re a so na ble ne ss. We c o n c lu d e th a t n o n e o f th e a b o v e a ll e g e d

d e f ic ie n c ie s c o n s ti tute in e f

f e c tive assistance of counse l. We sim ilarly conclude that trial counsel’ s totality of re prese ntation did not fa ll b e low an o bje c tiv e sta

nd a rd of re a so na bly e ff e c tiv e a ssi sta

nc e or c a us e Sc ott ha rm . We ov e rr

ule Scott’s third issue.30 CO NC LU SION We a ff ir m th e jud g me nt o f t

he dis tr ic t c ourt
.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: F ebrua

ry 20, 2009 Do No t Pu

bli sh