Howard Joseph Holmes v. State

Opinion issued April 10, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00975-CR

HOWARD JOSEPH HOLMES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1051573

MEMORANDUM OPINION

A jury found appellant, Howard Joseph Holmes, guilty of the offense of capital

murder. See Tex. Penal Code Ann. §§ 19.02 (b)(1), 19.03(a)(7)(A) (Vernon 2003

& Vernon Supp. 2007). The State did not seek the death penalty, and the trial court

assessed punishment at life imprisonment without parole. Appellant raises four issues

on appeal: (1) the Penal Code definition of an "individual" as including an unborn

child violates the Establishment Clause of the United States Constitution; (2) the

Penal Code definitions of an "individual" as including an unborn child and "death"

to include the failure of an unborn child to be born alive violates the Eighth

Amendment to the United States Constitution; (3) the evidence was factually

insufficient to prove that appellant knew his conduct was reasonably certain to

prevent his pregnant wife's unborn child from being born alive; and (4) the trial court

erred by denying appellant's requested jury charge on voluntary conduct.

We affirm.

Background

Just after midnight on December 28, 2005, Sherry Arnold, who was married to

appellant and was about 20 weeks pregnant, called 9-1-1. Although Arnold was

unable to ask for help, the line remained open and recorded an altercation between

Arnold and appellant. On the audiotape recording, Arnold repeatedly pleaded with

appellant saying, "Let me go," and "Stop it, Howard." Appellant repeatedly shouted

at Arnold to "Shut up" and said, "You don't listen to me," and "You're dead." After

what sounded like a hit or a slap, Arnold cried, "Ow . . . I'm listening. Stop it

Howard. You said no violence tonight. You promised. Please, no more." Appellant

responded, "I'll leave you alone when you shut up . . . ." Then a gunshot is heard.

After the gunshot, appellant is heard saying, "Sherry! No, please! Sherry!" over and

over again.

Harris County Sheriff's Deputy Robert Sanchez was dispatched to the house

based on this 9-1-1 call. When he arrived, appellant met him at the door. Appellant's

hands and face were covered in blood. (1) Appellant led Sanchez to the master

bedroom, where Arnold lay bleeding from the top of her head and from a wound to

her upper left cheek. Sanchez testified that he heard Arnold "gurgling" when he

arrived. Appellant attempted cardiopulmonary resuscitation on Arnold until the

paramedics arrived. He told Deputy Sanchez that Arnold was three months pregnant

and asked for help. While in the master bedroom, Sanchez noticed a gun on the bed,

which he moved to the floor, out of appellant's reach.

After the paramedics and another sheriff's deputy arrived, Sanchez led

appellant into the living room, where appellant sat on the floor talking to Sanchez

about what had happened. Deputy Sanchez testified that appellant seemed coherent

and was able to communicate and answer questions but that his behavior was

consistent with someone being in shock. Sanchez put bags over appellant's hands,

and Deputy Glover later took samples for gunshot residue testing.

Appellant consented in writing to a search of his house and was handcuffed and

placed in the back of a patrol car. While searching the house, Deputy Roy Glover,

a crime scene investigator, found a fragment of a bullet in a wall between the living

room and the kitchen, behind a storage cabinet. Glover testified that it appeared that

the bullet had passed through the storage cabinet before striking the wall. He found

a spent shell casing in a trash can in the kitchen. In the master bedroom, Glover saw

blood smeared on the light switch and on the bed, the pillow, the telephone, the carpet

beside the bed, the night stand, and the desk area. He found a bullet with hair fibers

beneath a pillow on the bed, a spent shell casing, and the automatic handgun that

Deputy Sanchez moved from the bed to the floor earlier. The handgun had one bullet

in the chamber and two in the magazine.

Deputy Sanchez took appellant to the Harris County Sheriff's Office Homicide

Division, where appellant met with Detective Tracy Shipley. Shipley advised

appellant of his Miranda rights, which he waived. (2)

She took a statement from him,

which he read and corrected. In his statement, appellant said:

I am giving this statement to Detective Shipley at her request regarding

the shooting of my wife. I was at home today and my wife and I began

arguing. I rented some movies and bought some rum and Coke at a

liquor store near my house. I was going to watch some movies and have

a few drinks since I was not working and just have some quiet time. My

wife, Sherry Arnold, has a lot of credit card debt and we were arguing

about her getting a job and paying off some of the debt. Sherry is a

pharmacist technician and we are both in the army reserves together.

Sherry has about forty-five thousand dollars in credit card debt and I

told her I was not going to pay it off.

About 5:00 PM she left the house and said she was not coming back

tonight. Sherry was mad at me for something I said which is she has no

job skills. I told her she couldn't get a job with the skills she has and

she should go back to school to get more skills. She was gone for about

four hours and she came home about 9:00 or 9:30 PM. I had locked the

door because I thought she wasn't coming back. I guess she just drove

around for a couple of hours. All she took was her car keys and wallet.

When she came home she said we needed to talk but I didn't want to

talk. I turned the TV off at some point and I guess she thought that

meant I was ready to talk but I still didn't want to talk. I told her I was

ready to play a video game and she wanted to be left alone. Sherry

wanted me to go back to work because I was off for five days.

I told her we needed to start selling some of the stuff we had to get rid

of our debt. Sherry's father and grandfather died and willed her some

guns. I got one of the guns to start cleaning it so we could sell it. The

gun is usually kept at the headboard of the bed on my side. I thought it

was unloaded but it went off when I was in the living room. A round

popped off. I thought the clip and gun were empty until it went off.

I was trying to get back to the bedroom to put the gun up when Sherry

told me to give her the gun so she could unload it and clear it. I told her

I could do it and when we were in the bedroom I backhanded her with

my left hand, which was holding the gun, and it went off. My finger

was on the trigger guard not the trigger. I didn't mean to backhand her

and swung at her to make her get away from me. I didn't know she was

that close. My right hand is my usually strong hand.

Detective Shipley asked me if I threatened Sherry. I did not threaten

Sherry. I threatened to leave and threatened myself but I didn't threaten

Sherry. Detective Shipley asked me if there was any physical

confrontation between me and Sherry. I pushed her away because she

was being clingy, telling me "Don't go" and things like that. I had

gotten some of my clothes out of the closet to take with me when I left

and laid them on the foot of the bed on my side.

Meanwhile, the paramedics attempted CPR and then took Arnold to the

emergency room. Deputy Chester Smith went to the hospital and collected samples

from Arnold's hands for gunshot residue testing. Arnold was pronounced dead

shortly after 1:00 a.m. Marissa Feeney, a Harris County medical examiner, testified

that Arnold had been 20-21 weeks pregnant. She said that when maternal circulation

ceased, a fetus at that stage of gestation would no longer get oxygen and nutrients

from the mother and would die. She said Anrold's unborn child could not have

survived because "a fetus at that gestational age is considered too young to be viable

outside the mother's womb."

Feeney also testified that in addition to the gunshot wound, Arnold had bruises

on her nose, chest, and shoulders. Feeney said that although bruising from CPR is not

unusual, some of the bruises appeared old and some appeared new. Feeney said that

there was no gunshot residue or stippling on or around the gunshot wound. James

Jackson, a forensic chemist, testified that the samples taken from Arnold's right hand

palm, and back and palm of her left hand were consistent with being in close

proximity of a firearm during discharge.

Deputy Bradley Bruns, who works for the Harris County Sheriff's

Department's Regional Firearms Lab, testified that the weapon used in the shooting

was an AMT brand, .45 caliber, semi-automatic pistol. He testified that he fired the

gun three times, and it was working properly. He said that for this gun to go off twice

accidentally, the shooter's finger would have to be on the trigger, not the trigger

guard, and the safety would have to be down. He said that in general, stippling would

be present around a gunshot wound if a victim were shot from close range, but it

would not be present if the victim were shot from farther away. Finally, he said that,

normally, a person would make sure a gun was not loaded before cleaning it.

Lastly, James Holmes, appellant's brother, testified for the defense. He said

that he had heard the 9-1-1 tape and his brother sounded intoxicated. He also testified

that appellant had been a military nurse and spent twenty or thirty years--most of his

adult life--in the military. Finally, he testified that he and the rest of the family knew

that Arnold was pregnant.

At the charge conference, appellant requested the following instruction

regarding voluntary conduct be included in the court's charge.

A person commits an offense only if he voluntarily engages in the

conduct including an act or omission. However, conduct is not rendered

involuntary merely because the person does not intend the results of his

conduct. Therefore, if you believe from the evidence beyond a

reasonable doubt that on the occasion in question the defendant, Howard

Joseph Holmes, did cause the death of Sherry Holmes [sic] by shooting

her with a gun, as alleged in the indictment, but you further find from

the evidence or have a reasonable doubt, thereof, that the shooting was

the result of an accidental discharge of the gun and was not the

voluntary act or conduct of the defendant, you will acquit the defendant

and say by your verdict not guilty.

The trial court denied his requested instruction.

Establishment Clause

In his first issue, appellant argues that the Penal Code definition of an

individual as "a human being who is alive, including an unborn child at every stage

of gestation from fertilization to birth" violates the Establishment Clause of the

United States Constitution. Tex. Penal Code Ann. § 1.07 (a)(26) (Vernon Supp.

2007). The Court of Criminal Appeals recently held that it does not. Flores v. State ,

245 S.W.3d 432, 441 (Tex. Crim. App. 2008). We overrule appellant's first issue.

Eighth Amendment

In his second issue, appellant asserts that "expanding the former Penal Code

definition of an 'individual' as 'a human being who has been born and is alive,' to

include 'an unborn child at every stage of gestation from fertilization until birth' and

adding a corresponding definition of 'death' that 'includes, for an individual who is

an unborn child, the failure to be born alive' violates the Eighth Amendment to the

United States Constitution because it expands those cases which can be prosecuted

for capital murder in an arbitrary and capricious manner."

The Eighth Amendment provides, "Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const.

amend. VIII. When we consider the constitutionality of a statute, we begin with the

presumption that the legislature has not acted unconstitutionally. Lawrence v. State ,

240 S.W.3d 912, 915 (Tex. Crim. App. 2007); also Tex. Gov't Code Ann. §

311.021 (1) (Vernon 2005). The party challenging the constitutionality of the statute

bears the burden of establishing its unconstitutionality. Rodriguez v. State , 93 S.W.3d

60, 69 (Tex. Crim. App. 2002). In addition, he must show that it is unconstitutional

as applied to him, not as to others. Vuong v. State , 830 S.W.2d 929, 941 (Tex. Crim.

App. 1992).

The legislature is vested with the power to define crimes and prescribe

penalties. Willis v. State , 192 S.W.3d 585, 596 (Tex. App.--Tyler 2006, pet. ref'd).

A person commits capital murder if he intentionally or knowingly causes the death

of "more than one person . . . during the same criminal transaction." Tex. Penal

Code Ann. §§ 19.02 (b)(1), 19.03(a)(7)(A). A "person" includes an "individual." Id.

§ 1.07(a)(38) (Vernon Supp. 2007). An "individual" is "a human being who is alive,

including an unborn child at every stage of gestation from fertilization until birth."

Id. § 1.07(a)(26). Therefore, a person who intentionally or knowingly causes the

death of a woman and her unborn child, at any stage of gestation, commits capital

murder. Lawrence , 240 S.W.3d at 915 . The statute exempts conduct committed by

a woman who chooses to terminate her own pregnancy or a health care provider

performing an abortion on a consenting patient. Id. ; Tex. Penal Code Ann. § 19.06

(Vernon Supp. 2007). The Court of Criminal Appeals has previously rejected an

Eighth Amendment challenge to the statute defining capital murder as the murder of

more than one person in the same criminal transaction, holding that the statute did not

fail to sufficiently narrow the class of persons subject to the death penalty. Vuong ,

830 S.W.2d at 941 .

Appellant challenges the statute based on the potential imposition of the death

penalty. The State did not seek the death penalty. Appellant does not challenge his

sentence. He has not shown that the challenged sections of the Penal Code are

unconstitutional or unconstitutional as applied to him. We overrule his second issue.

Factual Sufficiency

In his third issue, appellant argues that the evidence was factually insufficient

to prove that he acted with actual awareness that his conduct was reasonably certain

to cause his wife's unborn child to fail to be born alive. In particular, appellant

asserts that the State did not introduce evidence relating specifically to Arnold's

unborn child.

Sufficiency of the evidence should be measured by the elements of the offense

as defined by the hypothetically correct jury charge for the case. Malik v. State , 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would be one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried. Id.

When conducting a factual-sufficiency review, we view all of the evidence in

a neutral light. Cain v. State , 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will

set the verdict aside only if (1) the evidence is so weak that the verdict is clearly

wrong and manifestly unjust or (2) the verdict is against the great weight and

preponderance of the evidence. Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App.

2000). Under the first prong of Johnson , we cannot conclude that a conviction is

"clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence

admitted, we would have voted to acquit had we been on the jury. Watson v. State ,

204 S.W.3d 404, 417 (Tex. Crim. App. 2006).

Under the second prong of Johnson , we cannot declare that a conflict in the

evidence justifies a new trial simply because we disagree with the jury's resolution

of that conflict. Id. Before finding that evidence is factually insufficient to support

a verdict under the second prong of Johnson , we must be able to say, with some

objective basis in the record, that the great weight and preponderance of the evidence

contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we

must also discuss the evidence that, according to appellant, most undermines the

jury's verdict. See Sims v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the

fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The

fact-finder alone determines what weight to place on contradictory testimonial

evidence because that determination depends on the fact-finder's evaluation of

credibility and demeanor. Cain , 958 S.W.2d at 408-09 . As the determiner of the

credibility of the witnesses, the fact-finder may choose to believe all, some, or none

of the testimony presented. Id. at 407 n.5. The standard for reviewing the factual

sufficiency of the evidence is whether, after considering all of the evidence in a

neutral light, the jury was rationally justified in finding guilt beyond reasonable

doubt. Watson v. State , 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).

As charged in the indictment, the State was required to prove that on or about

December 28, 2005, appellant intentionally or knowingly caused the deaths of both

Sherry Arnold and her unborn child by shooting Sherry Arnold with a firearm. See

Tex. Penal Code Ann. §§ 19.02 (b)(1), 19.03(a)(7)(A). Appellant specifically

argues that the State did not prove beyond a reasonable doubt that appellant actually

knew that shooting Arnold would cause the death of her unborn child.

On the night of the shooting, appellant stated more than once that Arnold was

pregnant, specifically three-months pregnant. In addition, appellant's brother

testified that he and the rest of the family knew Arnold was pregnant. Appellant's

brother further testified appellant had been a military nurse for twenty or thirty years.

The medical examiner testified that Arnold was 20-21 weeks pregnant and that a fetus

at that gestational age could not survive outside the womb. Specifically, the

prosecutor asked, "At the age that you observed the fetus to be at the time of autopsy,

would there have been any way that, that child could have been--could have been,

I guess, taken from the mother and survived? Would it have been at a viable point?"

Feeney responded, "That gestational age is considered too young to be viable outside

the mother's womb." By referring to the autopsy and "that child," the prosecutor and,

therefore, Feeney, were referring to Arnold's unborn child, not a hypothetical unborn

child.

After considering all of the evidence in a neutral light, we conclude that the

jury was rationally justified in finding beyond reasonable doubt that appellant

actually knew that shooting Arnold would cause the death of her unborn child. See

Watson v. State , 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). We overrule

appellant's third issue.

Charge Error

In his fourth issue, appellant complains that the trial court reversibly erred by

denying his requested charge on voluntary conduct. Appellant contends that he did

not voluntarily shoot his pregnant wife, but rather that the gun accidentally fired

when he "backhanded" her.

Involuntary conduct is a defense to prosecution. Trujillo v. State , 227 S.W.3d

164, 169-70 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd); see Tex. Penal Code

Ann. § 6.01 (a) (Vernon 2003) ("A person commits an offense only if he voluntarily

engages in conduct, including an act, an omission, or possession."). A defendant is

entitled to an instruction regarding the voluntariness of his actions when he timely

requests an instruction on the issue and it is raised by the evidence. Brown v. State ,

955 S.W.2d 276, 278-79 (Tex. Crim. App. 1997). "Voluntariness," refers only to

one's physical bodily movements. Rogers v. State , 105 S.W.3d 630, 638 (Tex. Crim.

App. 2003). "If those physical movements are the nonvolitional result of someone

else's act, are set in motion by some independent non-human force, are caused by a

physical reflex or convulsion, or are the product of unconsciousness, hypnosis or

other nonvolitional impetus, that movement is not voluntary." Id. The issue of

voluntariness of one's conduct, or bodily movements, is separate from the issue of

one's mental state. Adanandus v. State , 866 S.W.2d 210, 230 (Tex. Crim. App.

1993). But "involuntary act" is not the same defensive theory as "accident." Rogers ,

105 S.W.3d at 639 .

In his statement appellant said, "I back-handed her with my left hand, which

was holding the gun and it went off . . . I didn't mean to back-hand her, and swung

at her to make her get away from me." The voluntariness of his actions was not

raised by his statement to police or any other evidence. His statement raised only the

question of his intent. The court did not err in denying his requested jury instruction.

We overrule appellant's fourth issue.

Conclusion

We affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).

1. Deputy Glover testified that the blood on appellant was consistent with appellant having

given Arnold CPR after the shooting.

2. See Miranda v. Arizona , 384 U.S. 436, 478-79 , 86 S. Ct. 1602, 1630 , 16 L. Ed.2d 694

(1966).