                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00070-CR


Anthony Darell Turner                     §   From the 372nd District Court

                                          §   of Tarrant County (1162246D)

v.                                        §   February 14, 2013

                                          §   Opinion by Justice Gabriel

The State of Texas                        §   (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 TURNER                                             APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


                                    ----------

          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                       MEMORANDUM OPINION1

                                    ----------

                                  Introduction

      As part of a plea-bargain agreement in August 2009, Appellant Anthony

Darell Turner received two years’ deferred-adjudication community supervision

(probation) for pleading guilty to assaulting Shaunita Skinner, a member of his




      1
      See Tex. R. App. P. 47.4.
family or household.2 In January 2010, while on probation for that offense, he

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 stacked a ten-

year sentence for it on top of the fifty-year sentence for murder.

      Appellant appeals both cases. In four points, he challenges the sufficiency

of the evidence to support his conviction for murder and the sentence imposed

for the assault. We affirm both judgments.

           Sufficiency of the Evidence in Cause 1190902D Murder

      Conceding 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 specifically, in his first point

he claims that the evidence is insufficient to show that he intentionally or

knowingly caused Monique’s death; in 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).


                                          2
insufficient to show that he committed an act clearly dangerous to human life with

intent to cause serious bodily injury; and 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 Review

      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; circumstantial evidence is as probative as direct

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

“must 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 fact question for the jury, and is almost always proven through


                                         3
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, including the acts, words, and conduct of the

accused, the method of committing the crime, and the 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 concedes that the evidence is sufficient to show he assaulted

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 he “lacked the intent to kill.”

      The evidence showed 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 continued 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 as




                                           4
he did so was his. As the following excerpts reflect, three witnesses testified that

they heard Appellant tell Monique that he was going to kill her:

      Elizabeth Ungacta

            Q. Did you ever hear any threats or anything?

            A. Yes.

            Q. And what––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 statement?


                                         5
            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––could believe beyond a

reasonable doubt that he intended to. Appellant argues that evidence that he

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

analyzed in its proper context.” We agree: the statement should be analyzed in

the context of a beating that, according to evidence 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. We 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 conclusion, 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 kill her

as he inflicted upon her the injuries the autopsy photographs depict, could

reasonably have concluded beyond a reasonable doubt that he intended to kill

her. See Hernandez, 819 S.W.2d at 810; Roberson v. State, 144 S.W.3d 34, 40

(Tex. App.––Fort Worth 2004, pet. ref’d.). To the extent that it challenges the




                                         6
sufficiency of the evidence to prove he had the requisite intent, Appellant’s first

point is overruled.

      As for causation, under section 6.04(a) of the penal code, 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) (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 arrhythmic 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 had

this heart attack.”

      Tarrant County Chief Medical Examiner Dr. Nizam Peerwani referred to

the case as a “no-brainer.” He testified that he and his forensics team concluded

“very quickly” that Monique died from “sudden fatal arrhythmia resulting from a

prolonged assault and that her manner of 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 the prolonged assault.”

      Viewed in the light most favorable to the verdict, we hold that a rational

juror could have concluded beyond a reasonable doubt that Monique’s death


                                        7
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); Gonzales 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 death of the deceased, he is responsible though

there were other concurring causes.”) Accordingly, we 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 the strongest of the three challenging the sufficiency
of the evidence 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.


                                          8
                   Punishment in Cause 1162246D Assault

      In his fourth point, Appellant claims that after the trial court adjudicated his

guilt and revoked his probation in the assault case, it 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 statutory

range, but he also seems to argue that the trial court’s imposing the maximum

punishment violates the Eighth Amendment because the evidence is insufficient

in the murder case. We have already held that the evidence is sufficient to

support the jury’s verdict 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 the trial

court abused its discretion in doing so. Further, he 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 punishment, which,

again, he concedes is within the statutory range, was grossly disproportionate or

otherwise improper.    Accordingly, we overrule Appellant’s fourth point.        See

Russell v. State, 341 S.W.3d 526, 528 (Tex. App.–-Fort Worth 2011, no pet.).




                                          9
                                Conclusion

      Having overruled Appellant’s sole point in his appeal from his assault

conviction in cause 11622462D, as well as the dispositive point in his appeal

from his conviction for murder in cause 1190902D, we affirm the trial court’s

judgments in both cases.


                                               LEE GABRIEL
                                               JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 14, 2013




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