Bruce Killough v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00762-CR
Bruce KILLOUGH,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-0904
Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: February 27, 2008

 

AFFIRMED

A jury found defendant, Bruce Killough, guilty of murder and the trial court assessed punishment at forty-seven years' confinement. On appeal, defendant complains (1) the evidence is legally and factually insufficient to support his conviction for murder, (2) the absence of a complete reporter's record for this appeal entitles him to a new trial, (3) the trial court failed to conduct a proper hearing into his competency to stand trial, and (4) through various failures or mistakes, trial counsel rendered ineffective assistance of counsel.

INCOMPLETE RECORD

In his third issue, defendant contends he must receive a new trial because a complete record of the trial does not exist for our review. Certain excerpts of State's witness Amy Dacy's recorded statement to police were played back to her outside the jury's presence. Those excerpts of her statement were not transcribed by the court reporter. Defendant contends the court reporter's failure to transcribe the recorded excerpts warrants a new trial under Texas Rule of Appellate Procedure 34.6(f). We disagree.

Neither statute nor case law supports defendant's demand for a new trial. Rule 34.6(f)(2) provides, in relevant part, that a defendant is entitled to a new trial "if, without [defendant's] fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or--if the proceedings were electronically recorded--a significant portion of the recording has been lost or destroyed or is inaudible . . . ." Tex. R. App. P. 34.6(f)(2) (emphasis added). Here, the reporter's record was not lost or destroyed; the reporter, who was present, simply did not transcribe the recording as it was played. (1) Moreover, the Court of Criminal Appeals has held that, in order to preserve error, a defendant must object to the reporter's failure to make a full transcription. See Williams v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996). Here, defendant failed to object to the court reporter's failure to transcribe the recording.

Defendant also asserts this court cannot consider this appeal because the record is incomplete. Notwithstanding our conclusion that no error was preserved with respect to defendant's complaint as to the incomplete record, the question of whether a missing part of the reporter's record is necessary to the appeal's resolution is essentially a harm analysis. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999). If the missing part of the record is not necessary to the appeal's resolution, then the absence of that part of the record is harmless and a new trial is not required. Id. Here, the excerpts were played outside the presence of the jury to refresh Dacy's memory of what she said to police. (2) The jury then returned to the courtroom, Dacy testified, and her testimony was transcribed and is available for our review. The jury did not hear the recorded excerpts and therefore did not consider them. We therefore conclude the record is sufficient for our review.

LEGAL AND FACTUAL SUFFICIENCY In his first and second issues, defendant contends the evidence is legally and factually insufficient to support his conviction. We review the legal sufficiency of the evidence in the light most favorable to the verdict and 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 (1979); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). We review the factual sufficiency of the evidence by considering all the evidence in a neutral light and only reversing when: (1) the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). "A reversal for factual insufficiency cannot occur when 'the greater weight and preponderance of the evidence actually favors conviction.'" Id. (quoting Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony; therefore, reconciliation of any conflicts in the evidence is within the exclusive province of the jury. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). A jury is also permitted to make reasonable inferences from the evidence. Id. at 254-55.

The jury convicted defendant of murder in the beating death of defendant's younger brother, Mark. Defendant, his girlfriend or common-law spouse Amy Dacy, their infant child, and Mark lived in a converted bus without running water or electricity. Mark suffered from cerebral palsy, which caused him to rely on a walker or assistance from others to move around. Mark sometimes soiled himself and his bed linens, and defendant would help Mark clean himself. Dacy, as the State's witness, testified that, as a household, they barely scraped together enough money to eat. (3) She testified defendant did not work because Mark could not be left alone. She also testified the two brothers argued often, and defendant often suffered from mental blackouts in which he became enraged and violent.

Dacy testified that on the day Mark died, defendant was helping Mark dress for Dacy's court appearance on a traffic citation. According to Dacy, Mark soiled himself and laughed at defendant, who would have to help him change his clothes. Defendant then used his foot to either kick or "scoot" Mark, and then Dacy heard slapping noises. Dacy picked up her baby and left the bus. The bus shook from the quarrel inside and Dacy heard stomping noises. She testified that when defendant emerged from the bus, he "was out of it mentally" and he "was not Bruce [defendant]." After the fight, which Dacy claimed defendant was unaware of due to a blackout, they napped in the bus until a third brother, Matthew Killough, and his friend arrived. While defendant left with the men to get tacos, Dacy noticed Mark was having trouble breathing. When the three men returned, Dacy told them something was wrong with Mark. Matthew and the friend drove Mark to the hospital, where he was declared dead on arrival. Defendant and Dacy followed, but defendant never went inside, instead waiting six hours outside the hospital before spending the night at the home of Dacy's father. Dacy reluctantly admitted she and defendant discussed what defendant would say to the police about how Mark was injured.

Matthew Killough also testified. According to Matthew, defendant claimed he was not present when Mark was beaten and he did not know what happened to Mark. Matthew testified defendant helped him put Mark into a car in order to get him to the hospital. Matthew testified he asked defendant how he should explain Mark's injuries to the doctors at the hospital, and defendant offered two suggestions: (1) tell them Mark fell from his bed or (2) tell them he was jumped by neighborhood gangsters.

Dr. Jean Rulon of the Bexar County Medical Examiner testified Mark died of swelling and bleeding in the brain, which she believed was caused by blunt-force trauma from multiple blows to the head and neck. San Antonio Police Officer Michael Villanueva responded to the dead-on-arrival call and observed Mark's body in the emergency room. Villanueva testified Mark "looked like he had been beat up pretty bad." Villanueva described evidence of strangulation, black eyes, and bruises on his face and head. San Antonio Police Department evidence technician Melissa Hurst photographed Mark's body in the emergency room. The photos were admitted into evidence.

On appeal, defendant acknowledges the State proved Mark's death was homicide. However, the defense theorized that if defendant administered the fatal beating that killed Mark, defendant did so under the influence of a mental blackout. Several witnesses testified defendant had been prone to blacking out since childhood, and Dacy testified defendant appeared to have been in such a state at the time of the attack on Mark. Defendant argues the testimony was evidence that his altered mental state prevented him from forming the intent to commit the crime. Therefore, defendant contends, he cannot be found guilty of intentionally or knowingly committing the crime.

A culpable mental state is almost always proven through circumstantial evidence. Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.--Houston [14th Dist.] 1996, no pet.). Because mental culpability is of such a nature that it generally must be inferred by the circumstances under which death occurred, the trier of fact may infer intent from any facts in evidence that tend to prove existence of such intent, including the accused's acts, words, and conduct. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980). The jury is entitled to draw reasonable inferences from circumstantial evidence to ultimate facts. See Kapuscinski v. State, 878 S.W.2d 248, 249 (Tex. App.--San Antonio 1994, pet. ref'd). Here, it was for the jury to weigh the evidence of defendant's blackouts against the State's evidence tending to indicate defendant's guilt, because the jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Barcenes v. State, 940 S.W.2d 739, 744 (Tex. App.--San Antonio 1997, pet. ref'd). We conclude the evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust or that the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. See Roberts, 220 S.W.3d at 524. Also, upon viewing the evidence in the light most favorable to the verdict, we conclude the jury could have found beyond a reasonable doubt that defendant intentionally or knowingly caused the injuries to Mark that resulted in his death. See Jackson, 443 U.S. at 319; Guevara, 152 S.W.3d at 49.

COMPETENCY TO STAND TRIAL In his fourth and fifth issues, defendant complains the trial court abused its discretion and violated his right to due process by failing to conduct an informal inquiry into whether he was incompetent to stand trial. We review a trial court's decision not to conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999); Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.-Fort Worth 2005, pet. ref'd). A defendant is incompetent to stand trial if he does not have: (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (Vernon 2006). "If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial." Tex. Code Crim. Proc. Ann. art. 46B.004(b). "On suggestion that the defendant may be incompetent to stand trial, the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." Tex. Code Crim. Proc. Ann. art. 46B.004(c).

During the testimony of the county medical examiner, the court admitted a number of autopsy photos into evidence. As the State projected the photo of Mark's bruised and discolored face, defendant screamed and struck his head against the counsel table. Upon defendant's outburst, he was removed from the courtroom, and the court recessed for lunch. After the court reconvened, but outside of the jury's presence, the court denied defendant's motion for mistrial, and then inquired into defendant's intentions:

Court: Mr. Killough, do you wish to be present for the rest of the trial?

 

Defendant: (No response).

 

Bailiff: Did you hear?

 

Defendant: (Moves head up and down).

 

Bailiff: You need to answer.

 

Defendant: I can't look--I can't look at the pictures of my brother like that.

 

Court: All right. So you don't want to be in the courtroom for that testimony? Or can you just not look at the screen while the testimony is being presented or what? What are you saying exactly?

 

Defendant: I guess I can't look at it.

 

Court: Can you avert your--here's the thing: I can't have those disruptions in front of the jury anymore.

 

Defendant: I'm sorry, Your Honor. I was not aware of what happened.

 

Court: You mean--do you think you are able to control your behavior in the courtroom so that we can continue the trial without any further disruptions? Do you think you're able to do that.

 

Defendant: I think so, Your Honor.

 

Defendant contends the court abused its discretion by failing to inquire into his competency following his outburst. Defendant asserts the outburst was suggestive of his incompetence and that, when combined with the court's awareness of his theory of blackouts and mental health issues, presented the court with notice that his competency was at issue. In support of his argument, defendant points to our opinion in Greene v. State, in which we observed that a defendant's prior history of mental illness, and the fact that he was on medication for schizophrenia, contributed to circumstances that were sufficient to cause a trial court to inquire into the defendant's competency. See Greene v. State, 225 S.W.3d 324, 329 (Tex. App.-San Antonio 2007, no pet.). In Greene, however, it was the defendant's "rambling, nonresponsive" testimony "of the most bizarre quality," which included vampires and kick-boxing, that we held was sufficient to put the trial court on notice that defendant might not be competent to stand trial. Id. "Such testimony demonstrate[d] Greene had confused thoughts and was out of touch with reality at the time he testified." Id. (emphasis added).

Evidence of prior or current mental impairment does not compel a trial court to inquire into competency where no evidence indicates that a defendant is presently incapable of consulting with counsel or understanding the proceedings against him. Moore, 999 S.W.2d at 395-96; Lingerfelt v. State, 629 S.W.2d 216 (Tex. App.--Dallas 1982, pet. ref'd); Townsend v. State, 949 S.W.2d 24, 26-27 (Tex. App.--San Antonio 1997, no pet.). Here, defendant's outburst did not constitute evidence to suggest he was unable to communicate with counsel or to factually appreciate the proceedings against him. See Moore, 999 S.W.2d at 395. Instead, defendant's outburst was "timely, topical, and logical," given the graphic nature of a photograph that illustrated the violent manner of Mark's death at the hands of his own brother. See id. at 395. Thus, we conclude the trial court did not abuse its discretion when it failed to conduct an inquiry into defendant's competence.

INEFFECTIVE ASSISTANCE OF COUNSEL In his sixth and final issue, defendant asserts he received ineffective assistance of counsel because his trial attorney failed to properly pursue available defenses with respect to defendant's mental health at the commission of the crime and, at trial, neglected to make necessary objections that would have preserved errors for our review. We review defendant's claim of ineffective assistance of counsel according to the two-step analysis articulated in Strickland v. Washington, 466 U.S. 688 (1984). Defendant must show: (1) counsel's representation of defendant fell below an objective standard of reasonableness, and (2) there is reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Id. at 688-89; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In order to determine whether trial counsel acted reasonably, we must look at the totality of the representation. Strickland, 466 U.S. at 690; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The defendant must rebut the presumption that his counsel's decisions at trial were based on sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813. The appellate record must affirmatively demonstrate trial counsel's ineffectiveness. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Id. at 813-14.

Defendant first complains trial counsel failed to raise the issue of his competency to stand trial. Defendant asserts his long history of mental illness, as evidenced by testimony regarding his mental blackouts, demonstrated his incompetency to stand trial. As we noted above, "evidence of mental impairment alone does not require that a special jury be empaneled where no evidence indicates that a defendant is incapable of consulting with counsel or understanding the proceedings against him." Townsend, 949 S.W.2d at 26-27. Nothing in the record indicates defendant was incapable of consulting with his lawyer or understanding the proceedings.

Defendant also complains trial counsel rendered ineffective assistance when he failed to object to the court reporter's failure to transcribe excerpts of Dacy's recorded statement when it was played back for her outside the jury's presence. We have already concluded the record on appeal is sufficient for our review. Accordingly, counsel's failure to object did not constitute ineffective assistance.

Defendant next complains his trial counsel failed to object when the State challenged Dacy about what she had previously said in her statement to the police. As we have discussed, the State played for Dacy, outside the jury's presence, sections of her prior recorded statement to police. After her memory was refreshed and the jury returned to the courtroom, the prosecutor resumed examining Dacy. On appeal, defendant asserts the prosecutor improperly referred to the prior statement in an attempt to impeach Dacy and the prosecutor improperly "inserted" herself into the trial by arguing with Dacy about the contents of the prior statement. Defendant's complaints ask us to second-guess the strategy of counsel at trial. Without information in the record before us regarding trial counsel's motivations and trial strategy we would be improperly speculating about why counsel did not object on these occasions, which we will not do. See Thompson, 9 S.W.3d at 814.

Finally, defendant complains counsel failed to offer expert testimony as to whether his history of mental blackouts, as described by several witnesses, negated the necessary element of his intent to commit the underlying felony that caused Mark's death. (4) Failure to call expert witnesses does not automatically result in ineffective assistance of counsel. Rylander, 101 S.W.3d at 110-11 (record insufficient to support ineffective assistance of counsel claim where record was silent regarding reason counsel failed to call expert witness). Also, we do not have information in the record before us regarding trial counsel's motivations and trial strategy. Defendant's complaints ask us to second-guess the strategy of counsel at trial, which we decline to do. See Thompson, 9 S.W.3d at 814.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

 

Sandee Bryan Marion, Justice

Do Not Publish

1. The Waco Court of Appeals, to which this appeal was previously assigned, ordered the trial court to attempt to complete the record. Killough v. State, 229 S.W.3d 343 (Tex. App.-Waco 2007, no pet. h.). The Waco Court noted the following conflict: "[T]he [Uniform Format Manual for Texas Court Reporters] . . . no longer requires a contemporaneous transcription of audio/video exhibits played in open court 'unless the Court so orders.'" Uniform Format Manual for Texas Court Reporters, 16.16 (amended 2003); but see Tex. R. App. P. 13.1(a) (The official court reporter must, unless excused by agreement of the parties, make a full record of the proceedings.)."

2. The entire recording is, in fact, part of the record on appeal, but the excerpts played are not indicated.

3. Counsel for the defense objected to Dacy's testimony under Texas Rule of Evidence 504 (spousal privilege), apparently asserting Dacy was defendant's common-law wife. The trial court overruled the objection on the basis of Rule 504(b)(4)(A), which excepts from the privilege those criminal proceedings in which defendant is accused of a crime against a member of either spouse's household.

4. A psychiatrist was retained by the defendant, and his testimony was introduced during the punishment phase. The psychiatrist testified defendant suffered from assorted disorders of mood and behavior that were probably present since childhood but had not been properly treated with medicine or therapy.