Ronny Howard Moore v. State

Opinion issued December 16,

2010.

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-01018-CR

RONNY HOWARD MOORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1186868

MEMORANDUM OPINION

A

jury convicted Ronny Howard Moore of the first-degree felony offense of murder

and, after finding the allegations in two enhancement paragraphs true, assessed

punishment at forty-five years’ confinement.

See Tex. Penal Code Ann. §19.02(b) (Vernon 2003). On appeal, Moore contends that the State

failed to present legally and factually sufficient evidence that he (1) caused

the death of his girlfriend, Portia Hosea, and (2) possessed the requisite

culpable mental state to support a murder conviction. We hold that the State presented legally and

factually sufficient evidence of both elements, and therefore affirm.

Background

On October 25, 2007, Harris County

Deputy Constable Oliver went to Moore’s house to serve a writ of possession in

an eviction proceeding. When he arrived,

Oliver noticed that the mailbox was full, and nobody answered the door when he

knocked. Oliver discovered an unlocked

window at the back of the house. When he

raised it, he immediately noticed an overwhelming smell that “smelled like

something dead.” Oliver looked inside

the window and saw a bed with a pillow and head of hair lying on the bed. After no one responded in the house when he

identified himself, he called the Houston Police Department (“HPD”) dispatch.

HPD Homicide Crime Scene Unit Officer

Verbitskey and Homicide Detective Miller both testified that the house looked

abandoned and was in “deplorable” condition, with no electricity, and water

soaking the floor. Inside the house, HPD

investigators discovered a “severely decomposed” body on a bed in the living

room, covered in maggots and at least two generations of flies. According to Detective Miller, the

decomposition was so severe that he could not readily determine the identity or

the sex of the deceased. Dr. Paul

Stimson, chief dental consultant for the Harris County Medical Examiner’s

Office, later matched radiographs of the deceased’s teeth to the dental records

of Portia Hosea, Moore’s girlfriend.

Me-Sheila Duncan, Portia’s daughter, testified that she last saw her

mother at Moore’s house in late September.

Larry Williams, a local real estate

agent, sold the house to Moore’s mother in 2006. In the year before Portia’s death, Williams

became good friends with Moore and acquainted with Portia, who also lived at

the house. Williams testified that on

October 7, 2007, he received two phone calls from Moore. In the first call, which lasted about a

minute, Moore asked Williams for his mother’s phone number. Moore stated that he was currently at the bus

station and, according to Williams, Moore seemed nervous, anxious, and

panicked, and he expressed remorse.

Shortly thereafter, Moore called back, and he and Williams had the

following exchange:

Moore: Man,

I really do need Mama’s telephone number because I think I done messed up.

Williams: You

think you done messed up?

Moore: Yes,

I think I might have killed somebody.

Williams did not get a chance to ask

about any details, but he testified that he was worried about Portia, so he

immediately went to Moore’s house after the phone call. Williams knocked on the front door and did

not receive a response. His attempt to

enter the house proved unsuccessful, so he called HPD and later contacted

Missing Persons, but was unable to get the authorities involved.

After the police discovered Portia’s

body on October 25, Williams gave a statement to Detective Miller. On November 4, Williams received a third

phone call from Moore, who asked Williams to go to his house and pick up his

social security check. Williams informed

Detective Miller of this conversation, and on December 4 HPD later arrested

Moore at a social security office.

The

trial court admitted an audio recording of Moore’s statement, given in an interview

with Detective Miller after his arrest.

Miller stated that, during the interview, Moore appeared “sort of

resigned, somber, not aggressive, not standoffish, sort of matter of fact[].” In the statement, Moore explained that he and

Portia lived together for about four or five months before her death, and they

had talked about getting married. On the

night of the murder, Portia was upset that he had been drinking and wanted to

go buy more beer, so while Moore was in the bathroom, she hid his money in her

purse. When Moore grabbed her purse to

retrieve his money, Portia hit him “upside the head” with a can of beer. Moore became angry and started hitting Portia

all over her body. Portia tried to fight

back, but Moore stated that the more she fought back, the “angrier [he] would

get and the more [he] would hit.”

During the “tussling and fighting,”

Portia fell and hit the bed frame, which extended past the mattress. At this point, Portia stopped fighting back

and, although she was still conscious and able to talk, she said that she could

not move. Moore could tell that she “was

really hurt” so he helped her into the bed.

Portia stopped yelling and talking, went to sleep, and started

“breathing funny.” Later, Moore did not

hear Portia breathing, so he checked her eyes and her pulse and started shaking

her. Moore noticed blood on the

mattress, and he used a towel to wipe Portia’s face to clean off the blood, but

he never determined from where the blood came.

He started to gather “that bloody stuff up to throw it away,” but he

instead left the bloody towel and sheets on the bed. Moore “laid there with [Portia] all night,

hoping she’d shake, come up out of it.”

Moore admitted that he called Williams two or three days later and told

him that he thought he killed somebody.

Dr. Jennifer Love, a forensic

anthropologist with the Harris County Medical Examiner’s Office, testified

that, during the autopsy, the forensic pathologist noticed multiple rib

fractures and called Love to reconstruct the ribs and interpret the fracture

pattern. Love found that Portia had

twenty-three total rib fractures, as well as internal trauma to the

sternum. Love discovered a complex

fracture pattern, consistent with receiving at least three blows from a broad

object, such as a foot, knee, or a large fist.

Love stated that, because not every blow breaks or fractures bones, she

could not determine a maximum number of blows that Portia received. Love also testified that this number of

fractures would be caused by “significant force,” and she did not find any

previous or “healing” fractures. In

Love’s opinion, the fractures probably occurred at the same time, because the

force caused the ribs to bend in the same direction. According to Love, the fracture pattern was

not consistent with a fall, which would generally cause a localized, linear

fracture and not the complex fracture pattern Love discovered in Portia’s ribs.

Assistant Harris County Medical

Examiner Dr. Mary Anzalone testified that, although she could not determine the

exact time of death, the autopsy findings were consistent with a date of death

in early October. In conducting the

autopsy, Anzalone found evidence of a head injury, but Portia did not have any

skull fractures or bleeding inside the brain, so the head injury was not

fatal. Anzalone also found soft tissue

injuries on Portia’s torso, in the same area as her rib fractures. Anzalone classified the injuries as blunt

force injury, caused by an unknown object and in a manner clearly dangerous to

human life. Anzalone testified that

Portia died from respiratory decomposition, which could have been caused by

either (1) the rib fractures tearing the pleura lining over the bones, which

would compress the lungs and impair Portia’s ability to breathe, or (2) the rib

fractures causing substantial pain when Portia tried to breathe, which would

impair respiratory efforts. According to

Anzalone, anything that impairs a person’s ability to fully breathe in could

cause respiratory decomposition, which would then lead to organ and tissue

death. Essentially, Portia slowly

suffocated. Anzalone noted that Portia

likely did not die immediately, and medical intervention may have saved her

life. Anzalone opined that the extent of

Portia’s injuries implied intent to do harm, and she officially ruled Portia’s

cause of death as “blunt force injury with extensive bilateral rib fractures”

and the manner of death as homicide.

Discussion

Standard of Review

Moore

contends that the State failed to present legally and factually sufficient

evidence that he (1) possessed the requisite culpable mental state for murder,

and (2) caused Portia’s death. An

appellate court reviews both legal and factual sufficiency challenges using the

same standard of review. Brooks v. State , PD-0210-09, 2010 WL

3894613, at *14 , 21–22 (Tex. Crim. App. Oct. 6, 2010); Ervin v. State ,

No. 01-10-00054-CR, 2010 WL 4619329 , at *2–4 (Tex. App.—Houston [1st Dist.]

Nov. 10, 2010, no pet. h.) (construing majority holding in Brooks ). Under this standard, evidence is insufficient to

support a conviction if, considering all the record evidence in the light most

favorable to the verdict, no rational fact finder could have found that each

essential element of the charged offense was proven beyond a reasonable doubt.

See Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979);

In re Winship , 397 U.S. 358, 361 , 90 S. Ct. 1068, 1071 (1970); Laster

v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State ,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most

favorable to the verdict, the evidence is insufficient under this standard in

two circumstances: (1) the record contains no evidence, or merely a

“modicum” of evidence, probative of an element of the offense; or (2) the evidence

conclusively establishes a reasonable doubt. See Jackson ,

443 U.S. at 314 , 318 n.11, 320, 99 S. Ct. at 2786 , 2789 n.11, 2789; Laster ,

275 S.W.3d at 518 ; Williams , 235 S.W.3d at 750 . An appellate court presumes that the fact

finder resolved any conflicting inferences in favor of the verdict and defers

to that resolution. See Jackson , 443 U.S. at 326 , 99 S. Ct.

at 2793 ; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). An appellate court may not re-evaluate the weight and credibility

of the record evidence and thereby substitute its own judgment for that of the

fact finder. Williams , 235 S.W.3d at 750 .

Culpable Mental State

Based

on the indictment, the State had to prove that Moore (1) intentionally or

knowingly caused Portia’s death by striking her with a deadly weapon, either a

hand or an unknown object, or (2) intended to cause serious bodily injury to

Portia and caused her death by striking her with a deadly weapon, either a hand

or an unknown object. See Tex.

Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2003). When the indictment and charge authorize the

jury to convict on more than one theory, we uphold the guilty verdict if the

evidence is sufficient on any one of the theories. Guevara

v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). A person acts intentionally with respect to

the nature of his conduct or a result of his conduct when “it is his conscious

objective or desire to engage in the conduct or cause the result.” Tex.

Penal Code Ann . § 6.03(a)

(Vernon 2003). A person acts knowingly

“with respect to his conduct or to circumstances surrounding his conduct when

he is aware of the nature of his conduct or that the circumstances exist,” or

if he “is aware that his conduct is reasonably certain to cause the result.” Id.

§ 6.03(b). Intent or knowledge is a

fact question to be determined from the totality of the circumstances. Smith

v. State , 965 S.W.2d 509, 518 (Tex. Crim. App. 1998); Brown v. State , 122 S.W.3d 794, 800 (Tex. Crim. App. 2003) (“[I]n

homicide prosecutions, the defendant’s state of mind is a question of fact that

must be determined by the jury.”). A

jury may infer intent to kill from the use of a deadly weapon. Brown ,

122 S.W.3d at 800 . The jury may also

infer intent to cause serious bodily injury from “the acts and words of the

defendant, the manner in which the offense was committed, the nature of the

wounds inflicted, and the relative size and strength of the parties.” Nickerson v. State , 69 S.W.3d 661, 667

(Tex. App.—Waco 2002, pet. ref’d) (citing Patrick

v. State , 906 S.W.2d 481, 487 (Tex. Crim. App. 1995)); see also Payne v. State , 194 S.W.3d 689, 694 (Tex. App.—Houston

[14th Dist.] 2006, pet. ref’d). The

Penal Code defines “serious bodily injury” as “bodily injury that creates a

substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Tex. Penal Code Ann. § 1.07(a)(46)

(Vernon 2003).

A

deadly weapon is anything “that in the manner of its use or intended use is

capable of causing death or serious bodily injury.” Id .

§ 1.07(a)(17). A defendant’s hands

are not deadly weapons per se, and they “‘can become such only in the manner

used depending upon the evidence shown.’”

Slaton v. State , 685 S.W.2d

773, 775-76 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d) (quoting Turner v. State , 664 S.W.2d 86, 90 (Tex.

Crim. App. 1983)). If the State alleges

the use of a deadly weapon which is not deadly per se, it must prove beyond a

reasonable doubt that the defendant used the weapon in a manner capable of

causing death or serious bodily injury. Jefferson v. State , 974 S.W.2d 887, 892

(Tex. App.—Austin 1998, no pet.). Here,

Moore acknowledges that the State presented evidence that he beat Portia with

his fists, and he does not contend that he used his fists in a manner incapable

of causing death or serious bodily injury.

See Tyra v. State , 897 S.W.2d

796, 798 (Tex. Crim. App. 1995) (“[A]nything . . . which is

actually used to cause the death of a human being is a deadly weapon. This is necessarily so because a thing which

actually causes death is, by definition, ‘capable of causing death.’”). Rather, he contends on appeal that the State

failed to prove the requisite criminal intent.

Intent

Moore

notes several cases that stand for the proposition that a defendant may use a

deadly weapon, but the facts of the particular case may nonetheless rebut the

presumption of intent to kill. See, e.g. , Foster v. State , 639 S.W.2d 691, 694-95 (Tex. Crim. App. 1982)

(holding evidence insufficient to establish intentionally or knowingly when

evidence presented that defendant and deceased were in a loving relationship,

gun was defective, defendant immediately called for medical assistance, and

defendant appeared distraught). In this

case, the State indicted Moore under two different subsections of section

19.02(b): (1) subsection

19.02(b)(1), which requires the State to prove that Moore intentionally or

knowingly caused Portia’s death, and (2) subsection 19.02(b)(2), which requires

the State to prove that Moore intended to cause serious bodily injury to

Portia. See Tex. Penal Code Ann.

§ 19.02(b)(1)–(2) (Vernon 2003).

The State was not required to prove an intent to kill under the second

subsection, but instead must prove an intent to cause serious bodily

injury. See Medina v. State , 7 S.W.3d 633 , 638 n.4 (Tex. Crim. App. 1999); Ortiz v. State , 651 S.W.2d 764, 767

(Tex. Crim. App. 1983) (In a prosecution under section 19.02(b)(2), an intent

to kill is not required.).

In

similar cases, courts have found sufficient evidence of intent. In West

v. State , for example, the Beaumont Court of Appeals upheld a section

19.02(b)(2) conviction, although West testified that he did not intend to

seriously injure his wife, but admitted that he slapped her two or three times

across the mouth with his open hand and he forced her onto a bed by her

neck. 846 S.W.2d 912 , 914–15 (Tex.

App.—Beaumont 1993, pet. ref’d). The Dallas

Court of Appeals reached a similar conclusion in Brown v. State . 704 S.W.2d

506 , 507–08 (Tex. App.—Dallas 1986, pet. ref’d). Brown, who was over a foot taller and

approximately ninety to one hundred pounds heavier than the victim, admitted

“to striking the deceased several times, knocking her to the floor, and then

dragging her into the closet.” Id. at 507 . The Dallas Court held that, considering the

extent of the victim’s injuries and the “relative size and strength of the

parties,” a rational jury could have found intent beyond a reasonable doubt. Id.

at 507–08.

In his statement after arrest, Moore

admitted that he became angry with Portia and then hit her all over her

body. Every time she tried to fight

back, “the angrier [Moore] would get and the more [he] would hit.” Moore stopped hitting Portia only after she

fell and hit the bed frame and told him that she could not move. According to Moore, he then said “Man, go on

get up in the bed, go on. Get up in the

bed. You just trying

to . . . you want to talk[,] you want to stop now you see

I’m up on your ass. Get on, get up in

that bed. And go to sleep.” Although Moore could tell that Portia was in

serious pain and having difficulty breathing, and she ultimately stopped

breathing while Moore was present, he did not seek medical assistance.

Dr.

Love testified that Portia had twenty-three distinct rib fractures, consistent

with receiving, at a minimum, three forceful blows from a broad object, such as

a foot, knee, or large fist. The

complexity of the fracture pattern was inconsistent with her fall onto the bed

frame as the cause of her injuries. Love

opined that “significant” force, “above your normal, everyday interaction,”

caused this number of fractures.

Moore observes that he

hit Portia in response to her throwing a beer can at him and continued to hit

her because she fought back. Although

Moore may have been motivated to hit Portia because she threw a beer can at

him, Moore confessed that he hit Portia numerous times, hit her even more when

she fought back, and continued hitting her until she fell down and told him

that she could not move. We hold that, based

upon Moore’s statement and the physical evidence of Portia’s extensive

injuries, a rational jury could have found beyond a reasonable doubt that Moore

intended to cause serious bodily injury to Portia; therefore, legally and

factually sufficient evidence supports the jury’s determination that Moore

possessed the requisite culpable mental state. See Brooks , 2010 WL 3894613, at *14 , 21–22; Ervin ,

2010 WL 4619329 at *2–4.

Causation

Moore

further contends that the State failed to present legally and factually

sufficient evidence that he caused Portia’s death. A person is criminally responsible 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. Penal Code Ann. § 6.04(a) (Vernon 2003). The State must establish a “but for causal

connection” between the defendant’s conduct and the resulting harm. Robbins

v. State , 717 S.W.2d 348, 351 (Tex. Crim. App. 1986); see also Williams v. State , 235 S.W.3d 742, 755 (Tex. Crim. App.

2007) (noting that defendant’s conduct must be a direct cause of the harm

suffered). If the evidence presented at

trial “leaves uncertain the means used or the precise cause of the death of the

deceased but creates no doubt that the deceased was killed by the acts of the

accused,” then the State has sufficiently proved causation. See

Reeves v. State , 969 S.W.2d 471, 479 (Tex. App.—Waco 1998, pet. ref’d)

(citing Clark v. State , 208 S.W.2d

637, 638 (Tex. Crim. App. 1948)).

Although

Dr. Anzalone could not pinpoint an exact date of death due to the advanced

decomposition of the body, she reported that the stage of decomposition was

consistent with a date of death in early October, around the time that Moore

called Williams. The autopsy revealed a

bruise on Portia’s scalp, likely caused by her falling onto the bed frame;

however, Dr. Anzalone testified that Portia had no skull fractures, no bleeding

in her brain, and the scalp bruise was not fatal. Dr. Love testified that Portia had

twenty-three distinct rib fractures, consistent with receiving at least three

blows from a broad object, such as a foot, knee, or wide fist. According to Love, a fall onto the bed frame

would probably not cause the complex fracture pattern that Portia’s ribs

exhibited. Love determined that Portia

had no “healing” fractures, and a “significant” amount of force was needed to

cause the number of fractures Portia had.

Moore

responds that, although Anzalone testified that Portia suffered respiratory

decomposition and suffocated, she also admitted that this was one of “several

possibilities” regarding the mechanism of death, and therefore her testimony on

causation was speculative. In the

official autopsy report, Anzalone stated that Portia died from a blunt force

injury with extensive bilateral rib fractures.

In Anzalone’s opinion, Portia died of respiratory decomposition,

although she did give two possibilities for the precise mechanism of

death: (1) the rib fractures tore the

pleura lining of the rib cage, which compressed the lungs and impaired Portia’s

ability to breathe, or (2) the multiple rib fractures caused substantial pain

when breathing, which also impaired respiratory efforts. In both of these circumstances, it was the

extensive rib fractures that impaired her breathing, and lead to

suffocation. It is unnecessary for the

circumstances to exclude every feasible hypothesis, if a cause of death can be

determined with reasonable medical certainty.

See Turro v. State , 950 S.W.2d

390, 397 (Tex. App.—Fort Worth 1997, pet. ref’d) (citing Carlsen v. State , 654 S.W.2d 444, 447 (Tex. Crim. App. 1983)).

The evidence presented at

trial supports a finding that Portia suffocated after Moore’s blows caused

twenty-three rib fractures. We hold that

a rational jury could have found beyond a reasonable doubt that Moore caused

Portia’s death; therefore, legally and factually sufficient evidence supports

the jury’s finding that Moore’s conduct caused Portia’s death. See

Brooks , 2010 WL 3894613 at *14 , 21–22; Ervin , 2010 WL 4619329 at

*2–4.

Conclusion

We hold that the State presented

legally and factually sufficient evidence that Moore (1) possessed the

requisite culpable mental state, and (2) caused the death of Portia Hosea. We therefore affirm the judgment of the trial

court.

Jane

Bland

Justice

Panel

consists of Justices Keyes, Higley, and Bland.

Do

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