## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00070 - CR

Anthony Darell Turner

v.

The State of Texas § § § § § From t he 372nd District Court

o f Tarrant County ( 1162246D ) February 14, 2013 Opinion by Justice Gabriel (nfp ) 

### JUDGMENT This court has considered the record on appeal in this case and holds that there was no error in the trial court’s judgment. It is ordered that the judgment of the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

By_________

________________________ Justice Lee Gabriel

## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00070 - CR NO. 02 - 11 - 00071 - CR ANTHONY DARELL TURNE R APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

-- -------- Introduction As part of a plea

- bargain agreement i n August 2009 , Appellant Anthony Darell Turner received two years’ deferred

- adjudication community supervision (probation) for pleading guilty to assault ing Shaunita S kin ne r , a member of hi s

1 See Tex. R. App. P. 47.4.2

famil y or household

. 2 I n January 2010, w hile on probation for that offense , h e assaulted his girlfriend, Ashford “ Monique ” Sneed, causing her to have a sudden fatal heart attack. A jury found Appellant guilty of Monique’s murder , and the trial court sentenced him to fifty years’ confinement . The trial court also adjudicated Appellant’ s guilt and revoked his probation in the assault case and s tacked a ten

year sentence for it on top of the fifty

- year sentence for murder

. Appellant appeal s both cases. I n four points , h e challenges the sufficiency of the evidence to support h is conviction for murder and the sentence imposed for the assault. We affirm both judgments

.

Sufficiency of the Evidence in Cause 1190902D Murder C onced ing that the evidence is sufficient to show that he assaulted Monique and that he told her he was going to kill her , Appellant contends that the evidence is nevertheless insufficient to support his conviction for murder because the State failed to prove intent and causation

. 3 More s pecific ally, i n his first point
he claims that the evidence is insufficient to show that he intentionally or knowingly caused Monique’s death ; i n his second , that the evidence is

2 Because Shaunita was a member of Appellant’ s family or household, and Appellant had a prior conviction for assaulting a family or household member, his assault against Shaunita was a third

- degree felony. Tex. Penal Code Ann. § 22.01(b)(2) (A) (West 2011 ).

3 The indictment charged Appellant with murder under each theory listed in section 19.02 of the penal code. See Tex. Penal Code Ann. § 19.02 (b) (West 2011) . The court’s charge to the jury listed the theories in the disjunctive, and the jury returned a general verdict of guilty. See Tex. Code Crim. Proc. Ann. art. 37.07, § 1(a) (West Supp. 2012 ).3

insufficient to show that he committed an act clearly dangerous to human life with
i ntent to cause serious bodily injury ; a nd in his third , insufficient to show that he intentionally or knowingly committed an act clearly dangerous to human life that caused Monique’s death. See Tex. Penal Code Ann. § 19.02(b) (West 2011 ). Standard of R evi

ew In our due

- process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 ( 1979); Wise v. State , 364 S.W.3d 900, 903 Tex. Crim. App. 2012). This standard of review is the same for direct and circumstantial evidence cases; circumstanti al evidence is as probative as dire ct evidence in establishing guilt. Isassi v. State , 330 S.W.3d 633, 638 ( Tex. Crim. App. 2010); Hooper v. State , 214 S.W.3d 9, 13 ( Tex. Crim. App. 2007). Whether a defendant had the intent to kill is a question of fact for the jury
to determine. Brown v. State , 122 S.W.3d 794, 800 (Tex. Crim. App. 2003), cert. denied , 541 U.S. 938 (2004). In determining the sufficiency of the evidence to show intent, and faced with a record that supports conflicting inferences, we “mus t presume

— even if it does not affirmatively appear in the record

— that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.” Matson v. State , 819 S.W.2d 839, 846 ( Tex. Crim. App. 1991). Intent is a f act question for the jury, and is almost always proven through4

evidence of the circumstances surrounding the crime. Robles v. State , 664 S.W.2d 91, 94 (Tex. Crim. App. 1984). A jury may infer intent from any facts that tend to prove its existence, includ ing the acts, words, and conduct of the accused, the method of committing the crime , and t he nature of wounds inflicted
on the victims. Hernandez v. State , 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), cert. denied

, 504 U.S. 974 (1992) ; Dues v. State , 634 S .W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982 ); Beltran v. State , 593 S.W.2d 688, 689 (Tex. Crim. App. [Panel Op.] 1980 ). Appellant intentionally or knowingly caused Monique’s death

. Although he conced es that the evidence is sufficient to show he assa ulted Monique and told her he was going to kill her , Appellant asserts that the autopsy photographs and the testimony of school employees , who overheard the assault as it took place, “indisputably prove ” that h e “ lacked the intent to kill.”
The evidence s howed that Monique had placed a call on her cell phone to her child’s elementary school and that the phones stayed connected during the time of the assault. Employees of the school testified that they overhead the assault as it took place and that it cont inued for approximately twenty

- nine minutes. The witnesses testified that they heard the sounds of a man beating a woman as she begged him to stop and that the beating continued until the woman was moaning and the line went dead. Appellant concedes that he hit and kicked Monique and that the male voice the witnesses heard over the phone as5

he did so was his

. As the following ex c erpts reflect, three witnesses testified that they heard Appellant tell Monique that he was going to kill her: Elizabeth Ungact

a Q. Did you ever hear any threats or anything?
A. Yes. Q. And w hat

–– what threats did you hear? A. That he was going to kill her. Q. So the man was saying he was going to kill her?
A. Yes. Debra Williamson Q. Anything else? A. At one point I heard, “Get up.” I heard a male voice say, “I’m going to kill you.” Q. That was the male voice?
A. Yes. Q. Anything else that you can recall? A. There were some derogatory remarks, and eventually I heard a male voice say the name “Monique.” Laurie Sager Q. Now, you mentioned during the conversation [with the 911 operator], during the second one, that you heard the male say

–– make statements about killing her; is that correct?
A. Yes. Q. How many times did you hear him make that statemen t?6 A. Twice. It appears that Appellant would have us hold

–– even in the light most favorable to the verdict

–– that no rational juror who heard testimony that Appellant told Monique he was going to kill her

–– c ould believe beyond a
reasonable doubt that h e intended to

. Appellant argues that evidence that he said

–– “Get up, Monique; I’m going to kill you , ” as he be at her

–– “should be analyzed in i ts proper context.” We agree : the statement should be analyzed in the context of a beating that, according to evi dence in the record, lasted for up to half an hour. We also agree that a “logical interpretation ” is that “ Appellant was
angry ,” and “ had taken his anger out on Monique ” by attacking her. W e further
agree , as far as it goes , that an “idle threat to kill someone uttered out of anger simply does not translate into an intentional or knowing killing.” But we reject the underlying premise that the threat in this case was “idle.” We also disagree with Appellant’s conclu sion , unsupported by any cited authority , that his “words, actions, and the autopsy pictures taken as a whole and placed in their logical context disproves that [he] intended to kill Monique.” To the contrary, a rational juror having heard testimony that Appellant told Monique he was going to k ill her as he inflicted upon her the injuries the autopsy photographs depict , could reasonably have concluded beyond a reasonable doubt that h e intended to kill her. See Herna n dez , 81 9 S.W.2d at 810 ; Roberson v. State , 144 S.W.3d 34, 40 (Tex. App.

–– Fort W orth 2004, pet. ref’d.)

. To the extent that it challenges the7

sufficiency of the evidence to prove he had the requisite intent, Appellant’s first point is overruled. As f o r causation, under section 6.04(a) of the penal code, a person is criminally respon sible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex. Pe nal Code Ann. § 6.04(a) (West 2011 ). The jury charge tracked this penal code definition. Tarrant County Deputy Medical Examiner Dr. Lloyd White performed an autopsy on Monique. He testified that her death was a homicide

–– that “she died from an arrhythmi c sudden cardiac death during assault by another person; in other words, the heart stopped during the course of an assault.” He further testified that but for the fact that Monique was assaulted “ she would not have ha d this heart attack.” Tarrant County Chief Medical Examiner Dr. Nizam Peerwani referred to
the cas e as a “no

- brainer.” He testified that he and his forensics team concluded “ver y quickly” that Monique died from “sudden fatal arrhythmia resulting from a prolonged assault and that her manner o f death is homicide.” He further testified that he agreed with Dr. White’s assessment that Monique would not have died when she did “but for th e prolonged assault.” Viewed in the light most favorable to the verdict, we hold that a rational juror could ha ve concluded beyond a reasonable doubt that Monique’s de a th8

would not have occurred when it did but for Appellant’s conduct operating concurrently with her underlying heart condition. See id .; Thompson v. State , 93 S.W.3d 16, 21

– 22 (Tex. Crim. App. 2001) , cert. denied , 540 U.S. 899 (2003) (applying section 6.04(a) and holding that, even assuming concurrent cause of death was insufficient, appellant’s conduct was not insufficient so as to warrant
reversal on the ground that the State did not prove causation ) ; Gonzale s v. State , 505 S.W.2d 819, 820 (Tex. Crim. App. 1974) (holding that the fact that a hematoma could be caused by something other than a blow to the head by appellant, and the possibility that the decedent entered the hospital with pneumonia were of no consequence in determining sufficiency of the evidence to support trial court’s refusing directed verdict) ; Wright v. State , 388 S.W.2d 703, 706 (Tex. Crim. App. 1965) (“If the act of the defendant as alleged in the
indictment contributed to the deat h of the deceased, he is responsible though there were other concurring causes.”) Accordingly, w e overrule the remainder of Appellant’s first point. 4

4 By claiming in his brief that the State’s theory that he intentionally or knowingly caused Monique’s death “is the easiest to dispel,” we take Appellant to concede that his first point is t h e stronge st of the three challenging the sufficiency of the ev idence to support his conviction for murder. We would hold that the evidence is also sufficient to support his conviction under the State’s other two theories. But given Appellant’s concession and because our resolution of his first point disposes of the appeal from his murder conviction, we need not address the arguments presented in his second and third points. See Tex. R. App. 47.1.9 Punishment in Cause 1162246D Assault In his fourth point, Appellant claims that after the trial court a djudicat ed his guilt and revok ed his probation in the assault case , i t abused its discretion by sentencing him to ten years’ confinement stacked onto the fifty

- year sentence for
murder. Appellant appears to concede that the sentence is within the statutor y range, but he also seems to argue that the trial court’s imposing the maximum punishment v iolate s the Eighth Amendment because the evidence i s insufficient in the murder case. We have already held that the evidence i s sufficient to support the jury’s ve rdict in the murder case so the premise underlying Appellant’s argument fails. Moreover, although Appellant objected when the trial
court ordered consecutive sentences , he does not argue on appeal how th e trial
court abuse d its discretion in doing so . Fu rther , h e did not object to the length of
the sentence imposed in the assault case at the time it was imposed or in a motion for new trial, and he makes no argument based upon the facts of the assault case to show that the trial court’s assessment of punis hment, which , again, he conced es is within the statutory range, was grossly disproportionate or otherwise improper . A ccordingly, we overrule Appellant’s fourth point. See Russell v. State , 341 S.W.3d 526, 528 (Tex. App.

– - Fort Worth 2011, no pet.).10 Concl usion Having o verruled Appellant’s sole point in h is appeal from his assault

conv i ction in cause 11622462D , as well as the dispositive point in hi s appeal from his conviction for murder in cause 1190902D, we affirm the trial court’s judgments in both case s

.

LEE GABRIEL JUSTICE
PANEL: WALKER , MCCOY , and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App

. P. 47.2(b )
DELIVERED: February 14, 2013