Norman v. State

ANTHONY WHITNEY NORMAN, JR., Appellant

v.THE STATE OF TEXAS, Appellee

NO. 14-11-00433-CR

Fourteenth Court of Appeals

Dated: September 20, 2012

Affirmed and Memorandum Opinion filed September 20, 2012.

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1248767

MEMORANDUM OPINION

Appellant, Anthony Whitney Norman, Jr., appeals his conviction for murder. In six issues, appellant contends (1) the evidence is legally insufficient to support the conviction, (2) the indictment was based on improper grand-jury proceedings, (3) he was denied choice of counsel, (4) the trial court erred by denying appellant's motion to suppress, (5) the prosecutor committed misconduct, and (6) the trial court committed various "judicial errors." We affirm.¹

I. BACKGROUND

Appellant was convicted of murdering his twenty-five-year-old wife, Leydis Viche Hernandez, on December 1, 2008 at their house in Houston. Appellant met Leydis in her native country, Cuba, when she was about twenty-years old. Shortly thereafter, Leydis moved to Houston, and the couple married. At the time of Leydis's death, they had three young children, including a two-week-old infant. As we will discuss, the State presented evidence that appellant was physically and verbally abusive and domineering toward Leydis.

It is undisputed that appellant and the couple's four-year old son were in the Dallas area for part of the weekend immediately before Leydis was found dead early on a Monday morning. Leydis remained home with their infant son and three-year-old daughter. According to appellant, he stayed with his brother, Marcus Norman, in McKinney while performing construction work on a project they jointly owned.² Appellant asserted that he left Marcus's home after 11:00 p.m. on Sunday night, arrived home shortly after 5:00 a.m., found Leydis dead on the kitchen floor, and called 9-1-1 within fifteen minutes. In contrast, the State contended appellant arrived home earlier and killed Leydis.

In any event, appellant did call 9-1-1 at 5:12 a.m. According to the State's evidence, EMTs and officers with the Harris County Sheriff's Department arrived atvarious times. They found Leydis dead on the kitchen floor, lying in a pool of blood with what the medical examiner later described as a "perforating" gunshot wound to the head, inflicted from a gun pressed against the skin. Leydis was naked except for wearing mismatched men's socks, with one placed on "sideways." Near the body was a diaper bag containing typical baby items as well as nine one-ounce gold bars. A semi-automatic Glock pistol, which undisputedly was owned by appellant, lay near Leydis's feet. A casing, which forensic experts determined was fired from the Glock pistol, was on the kitchen counter. A bullet projectile was recovered from sheetrock in the breakfast-room ceiling, but testing was inconclusive on whether it was fired from the Glock pistol. In the couple's upstairs master bedroom was a box for a gun with the make, model, and serial number of the Glock pistol. The upstairs master bedroom and bathroom were soaked with water, which caused the garage ceiling below to partially collapse and damaged a common wall between the living room and the garage. The shower floor and garden bath in the master bathroom were wet, and a robe and female undergarments were on the floor. Two lamps on the interior wall of the living room were unplugged, as though someone sought to avoid electrical shock or damage to the lamps. It was not immediately clear to officers whether the death was suicide, accidental, or homicide. However, the medical examiner ultimately classified the death as a homicide.

The first responding officer, Deputy Ben Katrib, encountered appellant standing in the garage holding the infant, and the older children were in their upstairs bedrooms. At the scene, appellant consented to testing of his hands for gunshot residue. Deputy Katrib placed bags on appellant's hands to preserve any residue, secured the bags with handcuffs, and placed appellant in a patrol car, but he was not under arrest. The handcuffs were eventually removed. Sergeant Henry Palacios, a homicide investigator, then asked appellant to accompany him to the homicide-division office in Sergeant Palacios's vehicle, to give a statement. Appellant obliged and was also not under arrest at that time. During the ride, Sergeant Palacios and appellant engaged in conversation, which was partially audio recorded. Appellant was at the homicide office forapproximately six hours while Sergeant Palacios and Sergeant Eric Clegg conducted an interview, which was partially audio and video recorded, and administered a polygraph test, but again appellant was not under arrest. Appellant eventually terminated the interview and left the office.

As we will further discuss, the State presented evidence that appellant engaged in threatening, abusive, and aggressive behavior towards officers that day. In these statements, appellant claimed Leydis accidently shot herself. Subsequently, appellant's aggressive behavior continued, and he was uncooperative in Sergeant Palacios's investigation or suggested various theories that a third party killed Leydis.

Approximately four months after Leydis's death, Sergeant Palacios asked another homicide investigator, Sergeant Craig Clopton, to obtain an additional statement because of a "breakdown in communication" between Sergeant Palacios and appellant. Sergeant Clopton requested that appellant come to the homicide office, but he insisted they meet at his home. On April 1, 2009, Sergeant Clopton and two other officers video and audio recorded a "walk-through" of the home, while appellant explained his actions when he purportedly found Leydis's body. The officers then took an additional statement from him. In late May 2009, appellant informed Sergeant Clopton he found another spent shell casing at his home. Sergeant Clopton collected the casing from the floor of the upstairs laundry room, and forensics experts determined it was fired from the Glock pistol.

In January 2010, appellant testified before a grand jury relative to investigation of Leydis's death. Shortly thereafter, the grand jury indicted appellant for murder. A jury found appellant guilty and assessed punishment of twenty-two years' confinement.

II. SUFFICIENCY OF THE EVIDENCE

In his first and sixth issues, appellant contends the evidence is legally insufficient to support his conviction and the trial court erred by denying his motion for an instructed verdict. We address a challenge to the denial of a defendant's motion for instructed verdict as a challenge to legal sufficiency of the evidence. See Cook v. State, 858 S.W.2d467, 470 (Tex. Crim. App. 1993). When reviewing sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We do not sit as the thirteenth juror and may not substitute our judgment for that of the fact finder by re-evaluating weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.

This standard applies equally to both circumstantial and direct evidence. Id. Circumstantial evidence is as probative as direct evidence and alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Each fact need not point directly and independently to the defendant's guilt, as long as the cumulative effect of all incriminating facts is sufficient to support the conviction. Id. Our duty as reviewing court is to ensure the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

A person commits murder if he "intentionally or knowingly causes the death of an individual" or "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code Ann. § 19.02(b)(1)-(2) (West 2011). The gist of appellant's contentions is that the State failed to prove Leydis's death was a murder, the State failed to prove appellant committed the murder or possessed the requisite culpable mental state, and he had an alibi.

A. Proof that death was a murder

On appeal, appellant suggests Leydis committed suicide because she was suffering from post-partum depression. However, in his statements to officers, appellant emphasized Leydis would not have committed suicide and claimed the death wasaccidental: she heard a noise downstairs while running water upstairs, went downstairs with her infant and the gun to investigate, and accidently shot herself.

Regardless, the jury could have reasonably concluded Leydis did not shoot herself, purposely or accidently. Forensic testing or officers' testimony established the following: there was no gunshot residue on Leydis's right hand (she was right-handed, according to appellant); a lone particle of residue on her left hand was characterized as "negative" or "inconclusive" because many more particles will be present when a wound is self inflicted and the lone particle could have resulted from secondary transfer; blood-drop patterns on Leydis's body were inconsistent with a self-inflicted gunshot wound; and blood splatter on her right arm was consistent with her raising the arm in an attempt to push the gun away.

Further, witnesses characterized Leydis as a devoted mother, who seemed excited to show off her new baby on the weekend of her death—attitudes inconsistent...