      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00654-CR



                              Christopher Chon Scott, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
      NO. D-1-DC-06-302059, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted Christopher Chon Scott of the offense of murder. See Tex. Penal

Code Ann. § 19.02(b)(1) (West 2003). Punishment was assessed at forty years’ imprisonment. In

three issues on appeal, Scott claims error in the jury charge, challenges the legal and factual

sufficiency of the evidence, and asserts ineffective assistance of counsel. We will affirm the

judgment.


                                        BACKGROUND

               The jury heard evidence that, on September 17, 2006, Stacy Sparks was shot and

killed in a motel located along IH-35 in south Austin. There was no dispute that Scott fired the

fatal shot. The central contested issue at trial was Scott’s state of mind in committing the act. To

summarize the parties’ theories at trial, the State attempted to prove that Scott had intentionally

or knowingly killed Sparks during an argument by shooting her in the back of the head at point-
blank range. Scott maintained that he had accidentally shot Sparks while approaching to pistol-whip

her. Scott attributed these actions, in turn, to manipulation by a friend or customer of Sparks,

Leroy Wormley, while Scott was in a drug-fueled state of fear and paranoia.

               On the day of the shooting, Detective Deanna Lichter of the Austin Police Department

was dispatched to the motel to investigate “an unknown suspicious call where a white female was

possibly dead in a room.” Detective Lichter testified that, once she arrived at the room, Room 108,

and opened the door, she immediately saw a woman “laying in front of the vanity area at the

back of the room.” The woman, later identified as Sparks, was lying “face up,” with a large amount

of blood around her head and what appeared to be an exit wound “right at the hairline.” Lichter also

observed “what appeared to be . . . bodily tissues, some debris on the vanity itself.” Lichter noticed

a bullet casing next to the woman’s body, which indicated to her that the head wound she had

observed was from a gunshot. Photographs and a video recording of the crime scene, both of which

depicted the position and location of Sparks’s body in the room, were admitted into evidence and

shown to the jury.

               Detective Frank Dixon of the Austin Police Department was also dispatched to the

motel to investigate. Detective Dixon testified that he found drugs and drug paraphernalia in the

room, including marihuana, marihuana cigarettes, crack cocaine, and a crack pipe. APD Detective

Douglas Skolaut assisted Detective Dixon in the investigation. Detective Skolaut testified that the

investigation revealed that “one of the people seen leaving [] Room 108 was a person by the name

of Chris.” Meanwhile, APD Officer Pete Bonilla happened upon Scott while he was working off-

duty security at Seton Hospital. Officer Bonilla testified that a hospital employee informed him



                                                  2
that a man—later identified as Scott—had been brought into the emergency room by his father. The

employee reported to Bonilla that the man was being “combative.” Bonilla testified that he went to

the emergency room and saw Scott “throwing his arms out, thrusting, [being] uncooperative.”

According to Bonilla, Scott was also using “cuss words,” “making grunting noises,” and his words

“weren’t making sense.” Scott’s medical records, later admitted into evidence, reflected that Scott

had crack, marihuana, and amphetamines in his system at the time. Scott’s father informed Bonilla

that “something bad” had happened to Scott at a location in south Austin. Bonilla called dispatch

and learned there had been a homicide in south Austin along South IH-35 near Oltorf in which Scott

was a suspect.

                 Officers were dispatched both to the hospital and to the residence of Scott’s parents.

The officers spoke with Scott’s mother, who informed them that Scott had been at the house earlier

in the day and had left a backpack there. After the police obtained a search warrant for the residence,

they recovered the backpack. They also located and collected a .45-caliber pistol from the closet of

the master bedroom. Detective Skolaut, who recovered the weapon, testified that the gun was loaded

with a “live round that had already been chambered,” and that the safety was off.

                 Dr. David Dolinak performed an autopsy on Sparks’s body. Dr. Dolinak testified that

the cause of death was a gunshot wound to the head. Dolinak further testified that he found soot or

burned gunpowder around the edges of the entry wound in Sparks’s skull. According to Dolinak,

the presence of soot and burned gunpowder on the entry wound could have been caused only by

placing the end of the gun “right up against the skin when it’s fired.” Dolinak added, “If the gun is




                                                   3
held even a few inches away [from the skin], we wouldn’t see this.” He further opined that the cause

of death was homicide and not natural death, accident, or suicide.

                Jason Flater, a firearms examiner for the Austin Police Department, examined the

gun recovered from Scott’s parents’ house and also the bullet fragments that had been recovered

from Sparks’s body. He determined that the bullet had been fired from this gun. Flater also

determined that the gun was in “mechanically functioning condition,” explaining that the weapon

“didn’t appear to have anything noticeably wrong with it. There were a few scuffs on the front of

the slide but nothing that would hinder its operation or safety.” Flater added that in order to fire this

particular gun, a person would have had to exert approximately seven-and-a-half pounds of force on

the trigger. Such force, according to Flater, is the equivalent of lifting almost an entire gallon of

milk. Flater further testified that the bullet fired from the gun and fragments recovered from the

victim’s body was a “hollow-point bullet,” which, Flater explained, is “designed to expand on

impact” and “have a more destructive effect than a solid bullet or a full-metal-jacket bullet.”

                The State presented its theory of events in the motel room primarily through

Leroy Wormley, who claimed to have been in the room with Scott and Sparks when the shooting

occurred. Wormley explained that Sparks was a prostitute and drug user whom he had met a couple

of weeks prior to the shooting. On the day of the shooting, Wormley recounted, he and Sparks had

arrived at the motel at approximately the same time in separate vehicles. Wormley followed Sparks

into room 108, where she was staying at the time. Inside the room were three other people—“a guy

they called Big Mike,” “another guy called Gabe,” and Scott. According to Wormley, at least one

of the men, Gabe, was smoking marihuana when they entered the room.



                                                   4
              Wormley testified, “When Stacy first walked into the room, I guess Chris [Scott]

jumped up off of the bed and then immediately started arguing” with Sparks, apparently over

whether Sparks owed him money for the room. According to Wormley, “there was cursing, it was

loud, she didn’t agree to owing him any money, he said yes, and, I mean it just kind of escalated

from there, if you could escalate what was already loud.” Sparks “got on her cell phone and then

walked into the bathroom, at which time the defendant was beating on the bathroom door saying

I want my money, I want the money that you owe me.” At that point, Wormley testified, “Big Mike”

left the room and the argument continued:


       A:     They continued to argue. You know, like I said, it was more than I wanted
              to be a part of, you know, just given the nature of the surroundings, and I
              said, hey, this is about enough of this. You know, I didn’t come here for this.

       Q:     And when you said I didn’t come here for this, what did you do?

       A:     During the course of their argument, I was kind of like just pacing front to
              back, front to back, and it got to that point and, you know, hearing them
              cursing the way that they were, you know, him asking, you know, hey, I want
              my money, you got some money. I think she wadded up a ten-dollar bill and
              threw it to him, he got it and he said you’ve got some money. Just give me
              all the money. You know, I’ve been paying for a lot of stuff and she
              said—she yelled back, you know, you’re crazy. I don’t go out and lay on my
              back and make my money just to give it to you, little boy, and I think she
              might have even said screw you or something at the end of that. And that
              was about the time I was going towards the front and reaching for the door
              and as I—

       Q:     I’m going to stop you there. So you are reaching for the door. Is that to
              leave?

       A:     Yes.

       ....



                                                5
       Q:      What’s the next thing you recall happening when you are going to leave the
               room and they are still arguing?

       A:      I remember grabbing the door handle. About the time I grabbed the door
               handle, I just heard a big pow, and it made me turn around . . . .


As Wormley turned around, “Gabe” ran out the door. At the same time, Wormley testified, Scott

“was walking towards me with the gun pointed in my face and said you got me, my nigger, you

got me.” “Due to the fact that the gun was in my face,” Wormley recounted, he responded, “Yeah,

I got you.” Then, Wormley testified, Scott told him, “You are going to take me where I need to go.”

Wormley agreed. Wormley also testified that Scott accused him of being an undercover police

officer. According to Wormley, all of this happened within “three minutes or so” after he had

entered the motel room with Sparks.

               Wormley and Scott then left the motel. Wormley testified that Scott put the gun in

his backpack and forced him to drive him to Scott’s parents’ house. Wormley claimed that Scott

pointed the gun at him and directed where to drive.1 Along the way, Scott again accused Wormley


       1
         Wormley was somewhat unclear in explaining whether Scott had the gun in his backpack
once they were in the car:

       Q:      During the ride, do you see the gun?

       A:      Yes.

       Q:      Okay. How is it that you see the defendant’s gun?

       A:      I mean, because he has it on me the whole time.

       Q:      When you say he has it on you the whole time, what do you mean by that?

       A:      Well, he has the gun pointed at me while I’m driving.

                                                6
of being an undercover police officer and of “driving too fast” and “trying to get a ticket and get

us pulled over and get caught.” Wormley also recounted that Scott had called his mother on Scott’s

cell phone during the drive. Eventually, they arrived at a residence “northeast, [in] the Pflugerville

area” that Wormley discerned was the home of Scott’s parents, who were outside.

               Still holding the gun, Scott demanded that Wormley get out of the truck, and

Wormley complied. Wormley continued:


       After I got out of the truck, he said, you know, don’t move or I’ll be right on you, and
       about that time his mom was walking down saying, you know—she said, oh, my
       goodness, what’s wrong? What’s wrong? What’s going on? And at that point in
       time he said—they made me kill that bitch, they made me kill that bitch, she was the
       devil . . . .


At one point during the conversation, Wormley explained, Scott told his mother that Wormley

was “an undercover cop” and that “they’ve been setting me up all week long.” Wormley denied




       Q:      Well, when you left the hotel, he kind of had the gun in his backpack?

       A:      Well, all he had to do was let go. Once he pulled the backpack off his leg,
               the backpack just went to the floorboard and the gun is in his hand still at that
               time.

       Q:      So, while you are driving then, the backpack is down and you see the gun?

       A:      Right.

       Q:      Are you afraid while you are driving?

       A:      Pretty much.



                                                  7
these accusations to Scott’s mother. Wormley claimed this conversation continued outside for

about five or ten minutes before Scott, his parents, and Wormley went inside the house.

               Once inside the house, according to Wormley, Scott continued pointing the gun at

Wormley and saying “off the wall stuff” about how Wormley needed “to soldier up,” “put on your

motherf***ing armor,” and “get ready to meet your maker,” while Scott’s mother tried to dissuade

Scott from “doing whatever he might have been thinking about doing.” Wormley testified that this

continued for “at least another 30, 45 minutes.” Eventually, Wormley recounted, Scott fell off of

a stepladder he had been sitting on, dropped the gun, and passed out. Scott’s father asked Wormley

to help him take Scott to the hospital, and Wormley agreed. After arriving at the hospital, Wormley

testified that he called 911 and reported the shooting.

               Scott’s parents testified in his defense. Scott’s mother, Betty Ford, testified that

when Scott showed up at her house, he seemed “very scared, very unlike himself, something was

wrong with him.” Ms. Ford recounted that Scott told her that “someone was after him, out to get

him, that they were coming for him,” and that she had the impression that Scott was worried about

somebody wanting to kill him. Ms. Ford explained that Scott was “babbling on” and “foaming at the

mouth and sweating” before he passed out. Scott’s stepfather, John Ford, testified that when Scott

first fell to the ground, “he was laying on the floor and he was what we would call in the Baptist

church talking in tongues, because it was like an utterance,” “(Muttering), oh God; (muttering), oh

Lord; (muttering), something like that.” Mr. Ford also testified about the gun that was found in

the house. He explained that the weapon fell out of Scott’s backpack when Scott fell to the ground.

Ford claimed that he picked up the gun and put it in his closet to keep it from grandchildren in

the house.

                                                 8
                Scott also testified. He admitted that he had been smoking crack cocaine on a daily

basis beginning about two weeks prior to the shooting. While initially consuming “a rock or two

rocks” per day, Scott explained that “in the week that led up to this . . . it really went overboard.”

During this week, he formed a platonic friendship with Sparks centered on their “smoking rock

together . . . [a]nd other drugs” in motel rooms they would rent for this purpose. Additional drug

users “would come and go,” using drugs while they were there. One of these individuals, Scott

testified, was Wormley. Scott explained that Wormley would come in and out of the rooms “all the

time,” and that Sparks called Wormley her “baby.” Scott inferred from this comment that Wormley

was “her boyfriend or her sugar daddy.”

                Scott recounted his perceptions of the events leading up to the shooting. Scott

testified that he came to fear that Wormley was somehow connected to law enforcement. (In fact,

Wormley admitted on the stand that his brother was a police officer). These fears, Scott explained,

were triggered by Wormley’s talking about Scott’s “criminal history,” “his family and things

like that.” Scott asked Sparks and other people who frequented the motel rooms if they believed

Wormley was working with the APD or some other government agency, but, according to

Scott, “nobody really commented.” Scott claimed that, approximately three or four days before the

shooting, “I wanted to get away from there and so I tried to leave,” but was followed by “a white

van” that “was hitting their high beams” and would “drive beside me and look into the car and back

up.”2 Scott perceived that the white van continued to follow him as he attempted to drive toward his

mother’s house. “Riding and crying the whole time,” as Scott described it, and fearing for his


       2
           Scott also referenced “a white Four Runner.”

                                                  9
parents’ safety, he “left from my parent’s house and . . . tried to drive around I-35 and 1325 just to

make sure that I wasn’t being followed, and they followed me there.”

               According to Scott, he had moved to the motel room where the shooting occurred

in an effort to evade Wormley. He was in the room with Michael Potts and Gabriel Curos

when Wormley, who evidently had found them, arrived. Scott testified that Wormley “was telling

me . . . if I worked with him everything will be okay, you know, financially, things like that.” Scott

also claimed that Wormley showed him text messages on his cell phone to the effect of “work

with us, everything will be okay,” “comply with them or just go along with whatever they are

asking.” Scott further testified that Wormley had “a briefcase or laptop looking thing” and “some

kind of like a mind-reading book or a brain kind of book, something where you mess with people’s

minds or something.”

               Scott also claimed that Wormley, apparently deducing that Scott had been discussing

him unfavorably with the others, threatened him, “you don’t want to follow through today? I’ll get

you locked up for 60, 70 years. Better yet, you are going to end up under that bed right there.”

When asked what he thought Wormley meant by that, Scott testified, “I don’t know. I mean—I

didn’t know if he was talking about, you know, they were going to set me up and take me to jail . . .

or kill me, make it look like an accident or a robbery or anything like that.” Scott perceived he

was in a “Catch 22” in which he could either do what Wormley wanted him to do, or possibly be

arrested or killed. Scott “felt real strongly” that “something was going to happen” that day. “Either

[Wormley] was going to say, you know, you have to do something or something, you know, I don’t




                                                 10
know. Whatever it was they[3] wanted me to do, maybe he was going to call me on it or something.”

Scott added, “Whatever it was, I thought it was bad because I didn’t want to do it in the first place.

I didn’t want to do anything to comply with him.”

                A “few minutes” after Wormley arrived, Scott testified, Sparks also arrived at the

motel room. Soon thereafter, according to Scott, Sparks left with Wormley “to go and score some

drugs.” When Sparks and Wormley returned, Scott testified, Sparks was arguing with Wormley and

calling him names. According to Scott, Sparks went into the bathroom and closed the door. Scott

testified that he thought Wormley was angry at Sparks and wanted Scott to “do something” to her.

Scott explained, “He said . . . man, you need to do something, you know, and I was like, you know,

what . . . are you talking about. He said, man, you need to do something, you need to step up, you

need to do something.” When asked what he thought Wormley meant, Scott testified, “I didn’t know

what he was implying, but implying me to do something to Stacy. I don’t know . . . at first, I was

thinking he wanted me to confront her. Maybe beat her up or something like that, you know.”

                Scott proceeded to knock on the bathroom door. When Sparks opened the door, Scott

began talking with her and asking her to give Wormley either drugs or money. Sparks refused.

Then, Scott recounted, Wormley began “tapping on his side” and also touching his watch. Scott

perceived:


       I thought maybe he was meaning about the essence of time or something like that or
       I need to hurry up, I only have this chance. If I don’t take this chance that he’s giving
       me, then it’s over for me, and being over for me, I don’t know whether it’s like me
       getting shot or me getting arrested or what, or the jeopardy of my—my family.


       3
           Scott claimed he also feared that Potts and Curos were possibly working with Wormley.

                                                  11
        Saying this is all on the line. You know what I mean? This is your chance to act, and
        this is what I was thinking.


Scott testified that he did not know what exactly Wormley wanted him to do to Sparks, but thought

Wormley might have wanted him to “pistol whip the girl or something like that.” Scott recounted

that, as he approached Sparks with his gun, he was pleading with Wormley not to “make me do it.”

Wormley, however, continued to “hint” through his gestures that Scott “do something” to Sparks.

Scott testified,


        Man, I don’t know what he wants me to do. He was hinting at the gun. I picked up
        the gun . . . . And so when I had the gun, I walked in front of Michael and Gabriel,
        and Leroy. They all saw the gun. . . . They were all sitting there, and he was going
        like this (indicating), like, you know, you are running out of time and then he looked
        at them and he said we’re running out of time. He looked at me, and I was like, man,
        what do you want me to do? . . . I said please don’t make me do this, and he was
        turning red. And I don’t know why Stacy wasn’t turning around. . . . I don’t know
        exactly how she was positioned. I know she was by the vanity. . . . I was looking at
        her and I was saying please, man, please, man, then all of a sudden, the door opened.
        I jumped. I don’t know what I’m thinking, if I’m going to get shot, [or if] the cops
        are rushing in. I panic. Boom, the gun goes off. Okay? I’m like this (indicating).
        The gun goes off. I see out of the corner of my eye Stacy’s body drop. I didn’t turn
        around to look. I was in shock. So I stopped. And I was just looking straight ahead
        with the gun down.


                   Scott insisted that he “had no intent to shoot Stacy,” but was just “scared” and

“thought people were going to start coming in or I was going to get shot.” When asked if he knew,

when he pulled the trigger, that the gun was going to go off and Sparks was going to get hurt,

Scott testified,


        I knew if I pulled the trigger somebody could get hurt, but I didn’t have—recollectly,
        I didn’t have my finger on the trigger or it wasn’t my intention. I was thinking maybe

                                                  12
        he wanted me to pistol whip her, like I said. And so I was—I was pleading before
        I would actually go into the act of doing it because I never had anything against
        Stacy. She was nice to me the whole time. I never had a problem with Stacy.


                Scott further testified about events following the shooting. According to Scott, it

was Wormley who initiated the flight from the motel, not him. Scott proceeded to follow Wormley

out the door. Then, according to Scott, they encountered someone named “Michael Parsons”

who “asked where Stacy was.” In response, Scott testified, “Leroy said that she’s not here, and me,

I said—I said that she’s tripping.” Wormley and Scott then got into Wormley’s truck, and Scott

told Wormley to take him to his parents’ house. Scott recounted how he noticed that Wormley was

“acting nervous” and “babbling” about helping Scott “get out of here.” According to Scott, he told

Wormley, “I’m not trying to get out of here.” Then, Scott testified, Wormley pleaded with Scott not

to kill him, to which Scott replied, “I’m not trying to kill you . . . just drive.” Scott denied pointing

the gun at Wormley. He testified, “I never had the gun pointed on Leroy Wormley. I had the gun

in the backpack. It was in no way pointed at him.”

                During cross-examination, Scott was asked whether, in addition to crack, he had

smoked amphetamines. Scott testified,


        I don’t—I don’t remember doing the amphetamines. Now, it could have been like
        on somebody’s stem or something like that. Sometimes they have speed in the crack
        pipe or something like that and that’s probably how the methamphetamines could
        have gotten in my system, but mostly crack and the weed that I had I was trying to
        calm down because of the situation that was going on, but mostly I was smoking
        crack, yes, sir.




                                                   13
               Scott also admitted that he had brought a 45-caliber semi-automatic pistol—loaded

with hollow-point bullets—to the motel room. However, he asserted that he did not know that

there was a round in the chamber and, further, that he “did not cock the gun.” When asked if he

“flicked the safety off,” Scott testified, “Apparently the safety must not have been on. I didn’t flick

any—I didn’t flick anything. I didn’t cock anything, I didn’t flick anything.” Scott speculated that,

“when [he] was asleep” or “in the restroom,” Sparks may have handled the gun and switched the

safety off. Scott further denied putting the gun against the back of Sparks’s head. He claimed that

he was looking at Wormley when Sparks was shot, and he was not paying attention to the gun’s

proximity to her.

               When asked why he shot Sparks and not Wormley, Scott testified, “What if Leroy is a

police officer? I was under the impression maybe he was a police officer, he was working for APD,

that’s a lose/lose situation. I wasn’t intending on shooting anyone.” The State then asked Scott, “So

at the time when you are in this situation you know it’s wrong and you could get in a lot of trouble

for shooting a police officer?” Scott admitted, “Yes. Yes.” Scott also admitted that he did not seek

help for Sparks after he shot her:


       Q:      All right. You hear the pop, you feel the recoil. Where is Stacy?

       A:      I see her in the corner of my eye, like I saw her—I heard her drop and I saw
               like her hair.

       Q:      Did you see blood?

       A:      No.

       Q:      Okay. And you didn’t check to see if she was okay?



                                                  14
       A:       No.

       Q:       You didn’t call an ambulance?

       A:       No.

       Q:       You didn’t get the hotel manager?

       A:       No.

       Q:       Okay. In fact, according to you, when you left, somebody even asked for
                Stacy; is that right? Mike Parsons?

       A:       Yes.

       Q:       And you didn’t say she could be hurt; right?

       A:       No.

       Q:       You said she’s just tripping, right?

       A:       Yes.


                The defense also presented the testimony of psychiatrist Maureen Burrows, who

had examined Scott in an attempt to determine his mental state and any mental illness at the time of

the shooting.4 Dr. Burrows opined that Scott had been sane at the time of the shooting, a legal

conclusion that she described for the jury as “you know the difference between right and wrong and

something does not interfere with your ability to know the difference between right and wrong.” As

for mental illness, Burrows diagnosed Scott with polysubstance dependence involving cocaine,

amphetamine, and marihuana. She further determined that at the time of the shooting, Scott had

been paranoid (having unreasonable and unjustified suspicions about others) and psychotic


       4
           Dr. Burrows had also evaluated Scott’s competency to stand trial.

                                                 15
(diverging from reality). Burrows added that such a condition would “by definition” affect how

Scott perceived the potential consequences of his behavior.

               On cross-examination, Dr. Burrows further opined that Scott’s psychosis was due

solely to drug intoxication and not to bipolar disorder. Burrows was also asked whether Scott would

have been able to make conscious decisions “but for the voluntary intoxication and the drug intake.”

Burrows answered, “With a hundred percent certainty I can’t say that, but it’s highly likely that he

would have and that the poor decision making was based on the intoxication of the substances.”

               The district court submitted the offense of murder as charged in the indictment, along

with lesser-included charges of reckless homicide and criminally negligent homicide. The jury

was instructed that voluntary intoxication is not a defense to the commission of a crime and that if

Scott engaged in conduct “while intoxicated from the voluntary introduction of an intoxicating

substance into his body, that intoxication, if any, cannot serve to negate whether his conduct

was engaged in intentionally, knowingly, recklessly or with criminal negligence.” See Tex. Penal

Code Ann. § 8.04(a) (West 2003). The jury convicted Scott of murder as charged in the indictment.

This appeal followed.


                                            ANALYSIS

Charge error

               In his first issue, Scott complains of the district court’s refusal of the following jury

instruction, which he timely requested:




                                                  16
       While voluntary intoxication does not constitute a defense to the commission of a
       crime, the jury may decide whether any evidence of mental illness lessens the
       defendant’s culpability by finding him guilty of the lesser-included offense.


We review claims of jury charge error under the two-pronged test set out in Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). We first determine whether error

exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we then evaluate

the harm caused by the error. Id. The degree of harm required for reversal depends on whether that

error was preserved in the trial court. When error is preserved in the trial court by timely objection,

the record must show only “some harm.” Almanza, 686 S.W.2d at 171. By contrast, unobjected-to

charge error requires reversal only if it resulted in “egregious harm.” See Neal v. State, 256 S.W.3d

264, 278 (Tex. Crim. App. 2008).

               On appeal, Scott seems to argue that he was entitled to this instruction because

there was evidence he had shot Sparks while temporarily insane due to involuntary intoxication

from amphetamines. The affirmative defense of involuntary intoxication is encompassed within

the insanity defense prescribed in the penal code. Mendenhall v. State, 77 S.W.3d 815, 817-18

(Tex. Crim. App. 2002); see Tex. Penal Code Ann. § 8.01(a) (West 2003). There are two elements:

(1) the accused exercised no independent judgment or volition in taking the intoxicant; and (2) as a

result of a “severe mental disease or defect” caused by the involuntary intoxication, the accused did

not know that his conduct was wrong. See Mendenhall, 77 S.W.3d at 817-18. However, as the State

observes, what Scott requested was instead an instruction on “diminished capacity”—that his mental

illness lessened his culpability—not that involuntary intoxication excused his conduct entirely. See




                                                  17
Jackson v. State, 160 S.W.3d 568, 573-74 (Tex. Crim. App. 2005).5 As he acknowledges, Scott

did not request a jury instruction on an affirmative defense of involuntary intoxication, much less

argue that theory at trial. Consequently, the district court could not have erred in failing to submit

a jury instruction based on that defense. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App.

1998). In any event, the affirmative defense of involuntary intoxication was not raised by the

evidence. Even if Scott’s testimony raised an issue as to whether he, while voluntarily smoking

crack and marihuana, nonetheless had exercised “no independent judgment or volition” in ingesting

amphetamine,6 the evidence did not permit a rational jury to conclude that it was the amphetamine

intoxication, as opposed to his voluntary intoxication from other drugs, that had caused his paranoia

and psychosis or that Scott had not known his killing Sparks was wrong. Scott’s own expert,

Dr. Burrows, testified that Scott was “sane” at the time of the shooting and “knew the difference

between right and wrong.” Additionally, Scott admitted that at the time of the shooting, he had

perceived it was wrong to shoot Wormley and never claimed that he had not perceived shooting

Sparks to be wrong.

               Nor was Scott otherwise entitled to his requested diminished-capacity instruction.

“Texas does not recognize diminished capacity as an affirmative defense i.e., a lesser form of the

defense of insanity.” Jackson, 160 S.W.3d at 573. Instead, diminished capacity “is simply a failure-

of-proof defense in which the defendant claims that the State failed to prove that the defendant



       5
         In fact, in advocating for the instruction in charge conference, Scott’s counsel urged that
“some of this tracks the language in Jackson.”
       6
         See Alexander v. State, No. 03-01-00263-CR, 2002 Tex. App. LEXIS 2048, at *8-9
(Tex. App.—Austin Mar. 21, 2002, no pet.) (not designated for publication).

                                                 18
had the required state of mind at the time of the offense.” Id. Consequently, the Court of Criminal

Appeals has reasoned that an instruction like Scott requested is not required and could constitute

an improper comment on the weight of the evidence. See id. (“‘[a] specific instruction calling

attention to the evidence on appellant’s impaired mental abilities was unnecessary, and might have

inappropriately vested this evidence with a disproportionate legal significance in the eyes of the

jury.’”) (quoting Penry v. State, 903 S.W.2d 715, 754 (Tex. Crim. App. 1995)). Instead, what is

required, the Court of Criminal Appeals has explained, is for the trial court to allow the defendant

to present admissible evidence of his alleged mental impairment at the time of the offense. See id.

at 574 (“In all prosecutions for murder, the state or the defendant shall be permitted to offer

testimony as to all relevant facts and circumstances surrounding the killing and the previous

relationship existing between the accused and the deceased, together with all relevant facts and

circumstances going to show the condition of the mind of the accused at the time of the offense.”)

(quoting Tex. Code Crim. Proc. Ann. art. 38.36(a) (West 2005)). The district court did so here.

               The district court allowed Scott to present extensive evidence of his alleged

mental impairment at the time of the offense. This evidence included Dr. Burrows’s opinions;

Scott’s parents’ observations that Scott had seemed “very unlike himself” and was “talking in

tongues” when he arrived at their house following the shooting; and Scott’s account of his bizarre

perceptions before, during, and after the shooting. Furthermore, the district court instructed the jury

regarding the lesser-included offenses of manslaughter and negligent homicide, thus enabling the

jury to consider Scott’s mitigating evidence concerning his mens rea when reaching its verdict. The




                                                  19
district court did not err in refusing Scott’s requested instruction. See id. at 574-75. We overrule

Scott’s first issue.


Evidentiary sufficiency

                In Scott’s second issue, he challenges the legal and factual sufficiency of the evidence

supporting his conviction.

                In a legal sufficiency review, we consider whether, after viewing the evidence in

the light most favorable to the verdict, a rational trier of fact could have found the elements of

the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Clayton

v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “This standard accounts for the factfinder’s

duty ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.’” Clayton, 235 S.W.3d at 778 (quoting Jackson, 443 U.S. at 319).

It is not necessary that every fact point directly and independently to the defendant’s guilt, but it is

enough if the conclusion is warranted by the combined and cumulative force of all the incriminating

circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                In a factual sufficiency review, we consider whether, after viewing the evidence in

a neutral light, a rational trier of fact was justified in finding guilt beyond a reasonable doubt. See

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We “must be cognizant of the fact

that a jury has already passed on the facts and must give due deference to the determinations of

the jury.” Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). “A verdict should be

set aside only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong

or manifestly unjust.” Id. at 705; Korell v. State, 253 S.W.3d 405, 412 (Tex. App.—Austin 2008,

                                                  20
pet. ref’d). Therefore, we will not reverse a judgment on a factual sufficiency challenge unless we

can say, with some objective basis in the record, that the great weight and preponderance of the

evidence contradicts the verdict. Watson, 204 S.W.3d at 417.

               As we noted above, Scott was indicted for murder under section 19.02(b)(1) of

the penal code, which defines the offense as intentionally or knowingly causing the death of an

individual. Tex. Penal Code Ann. § 19.02(b)(1). A person acts intentionally with respect to a

result of his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a)

(West 2003). A person acts knowingly, or with knowledge, with respect to a result of his conduct

when he is aware that his conduct is reasonably certain to cause the result.” Id. § 6.03(b). Intent and

knowledge are fact questions for the jury, and are almost always proven through evidence of the

circumstances surrounding the crime. Childs v. State, 21 S.W.3d 631, 635 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d). 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 the wounds inflicted on the victim. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App.

2002). A jury may also infer knowledge from such evidence. Id.

               Scott asserts that the evidence is legally insufficient to prove that he intentionally

caused the death of Sparks. According to Scott, “under the totality of the evidence,” his intent

“appeared to be only to pistol whip Stacy Sparks in order to appease Wormley.” Scott acknowledges

that “it was possible” that he intended to harm Sparks, but contends that “there is evidence indicating

an accidental shooting that was equally as strong” as the evidence supporting the State’s theory of

an intentional shooting.



                                                  21
               The evidence supporting the jury’s finding that Scott intentionally or knowingly killed

Sparks included the following:


   •   Dr. Dolinak testified that the nature of the entrance wound on Sparks’s head indicated
       to him that the barrel of the gun was pressed directly against her head when the shot was
       fired. Dr. Dolinak also opined that Sparks’s death was a homicide and not a natural
       death, accident, or suicide.

   •   When the alleged murder weapon was recovered, it had a “live round in the chamber”
       and the safety was off. Jason Flater, the State’s firearm expert, examined the gun and
       determined that it was in “mechanically functioning condition.” Flater testified that the
       weapon “didn’t appear to have anything noticeably wrong with it” that would “hinder its
       operation or safety.” Flater also testified that in order to fire the gun, the person firing
       would have to exert approximately seven-and-a-half pounds of force on the trigger.

   •   Scott admitted that he had brought into the motel room a .45-caliber semi-automatic
       pistol, loaded with hollow-point bullets. Scott further admitted that he was holding the
       gun when it fired and hit Sparks.

   •   Wormley testified that Scott and Sparks were engaged in a heated argument immediately
       before the shooting.

   •   When Sparks was shot, Scott admitted not seeking to help her. Wormley testified that
       Scott instead approached him with the gun and forced Wormley to drive him to his
       parents’ house. Once at his parents’ house, again rather than call for help, Scott
       continued to threaten Wormley for “at least 30 to 45 minutes” while the shooting went
       unreported. It was Wormley, and not Scott, who finally reported the shooting.


Viewing the above evidence in the light most favorable to the verdict, we conclude that the evidence

is legally sufficient to support the jury’s finding that Scott intentionally or knowingly shot Sparks.

Evidence that Scott and Sparks were engaged in a heated argument immediately before the shooting

is probative of intent and motive to kill Sparks. The jury could also infer intent to kill from Scott’s

use of the gun, a deadly weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996);

Pitonyak v. State, 253 S.W.3d 834, 846 (Tex. App.—Austin 2008, pet. ref’d); see Tex. Penal Code

                                                  22
Ann. § 1.07(a)(17)(A) (West Supp. 2008). Also probative of intent to kill was evidence that Scott

had pressed the gun against Sparks’s head when firing it and that it required seven-and-a-half pounds

of force to pull the trigger. Additionally, the circumstances surrounding Scott’s flight from the

crime scene, including his failure to report the shooting and his forcing Wormley to drive to his

parents’ house, allegedly at gunpoint, is evidence from which the jury could reasonably infer a

consciousness of guilt.

                When considering the above evidence in a neutral light, we also conclude that

the evidence is factually sufficient to support Scott’s conviction. Much of Wormley’s account of

the events surrounding the shooting was contradicted by Scott’s testimony. The jury, as the trier of

fact, is the sole judge of the credibility of the witnesses and the weight to be given the testimony, and

may accept or reject all or any of any witness’s testimony. McCelvey v. State, 143 S.W.3d 522, 531-

32 (Tex. App.—Austin 2004, pet. ref’d). Scott argues that there were inconsistencies between

Wormley’s trial testimony and his written statement to the police. However, the record reflects that

the jury was not made aware of these alleged inconsistencies during Wormley’s cross-examination.7

At any rate, we would find nothing irrational about the jury disregarding any such inconsistencies

or resolving them in the State’s favor.

                Scott also contends that the safety was off when the gun was fired because Sparks

handled the gun herself prior to the shooting. He claims that this theory is supported by evidence

showing that Sparks’s DNA was found on the gun. However, the jury could have reasonably




        7
           These alleged inconsistencies will be discussed more fully when addressing Scott’s
ineffective assistance of counsel argument.

                                                   23
inferred that Sparks’s DNA was on the gun for another reason. DNA testing of the gun revealed

that Sparks’s DNA was found on both the slide and the barrel of the gun. Thus, the forensic

evidence was consistent with either the defense theory that Sparks handled the gun herself, or the

State’s theory that Scott pressed the barrel of the gun against her head. It was the jury’s prerogative

to accept the State’s theory and reject the defense theory, especially in light of Dr. Dolinak’s

testimony that the gunpowder found on the entrance wound was evidence that the gun had been

pressed directly against Sparks’s head when it was fired.

               Additionally, Scott claims that the evidence shows that he was temporarily insane

due to “involuntarily intoxication” when he shot Sparks. We have already addressed this argument.

Voluntary intoxication is not a defense to the commission of a crime. Tex. Penal Code Ann.

§ 8.04(a). Furthermore, Dr. Burrows testified that Scott was “sane” at the time of the shooting,

which, according to Dr. Burrows, meant that Scott knew the difference between right and wrong.

Additionally, Scott admitted, “I knew if I pulled the trigger somebody could get hurt,” and that, at

the time of the shooting, he knew it was wrong to shoot a police officer. This and other evidence

supports a finding by the jury that Scott had the requisite mens rea at the time of the shooting to

commit the offense of murder as charged in the indictment.

               We cannot say, with some objective basis in the record, that the great weight and

preponderance of the evidence contradicts the jury’s finding that Scott intentionally or knowingly

shot Sparks. We overrule Scott’s second issue.




                                                  24
Ineffective assistance


               In his third and final issue, Scott asserts that the district court abused its discretion

in denying his motion to dismiss his appointed trial-level counsel. This issue is predicated upon

Scott’s contention that his trial counsel rendered ineffective assistance. Scott complains that

trial counsel failed to impeach and thoroughly investigate Wormley, failed to object to “improper

burden shifting” during the State’s examination of Detective Dixon, and failed to adequately prepare

for the case. This “lack of preparation,” Scott contends, is demonstrated by counsel’s allowing the

admission into evidence of “gruesome” photographs and video showing the victim’s body, failing

to explore the issue of involuntary intoxication, and failing to effectively question Dr. Burrows.

               To prove ineffective assistance of counsel, an appellant must establish both

that his trial counsel performed deficiently and that the deficiency operated to prejudice him. State

v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). “In evaluating the first component, reviewing courts must not second

guess legitimate strategic or tactical decisions made by trial counsel in the midst of trial, but

instead ‘must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance[.]’” Id. (quoting Strickland, 466 U.S. at 689). “This means

that unless there is a record sufficient to demonstrate that counsel’s conduct was not the product of

a strategic or tactical decision, a reviewing court should presume that trial counsel’s performance

was constitutionally adequate ‘unless the challenged conduct was so outrageous that no competent

attorney would have engaged in it.’” Id. at 696-97 (quoting Goodspeed v. State, 187 S.W.3d 390,

392 (Tex. Crim. App. 2005)). In other words, we will not find counsel’s performance deficient

                                                  25
unless it “fell below an objective standard of reasonableness.” Cannon v. State, 252 S.W.3d 342,

349 (Tex. Crim. App. 2008) (citing Strickland, 466 U.S. at 687).

               “In the usual case in which an ineffective assistance claim is made, ‘the record

on direct appeal will not be sufficient to show that counsel’s representation was so deficient

and so lacking in tactical or strategic decisionmaking as to overcome the presumption that

counsel’s conduct was reasonable and professional.’” Id. (quoting Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002)). Only in “rare ineffective-assistance cases” is the record on direct

appeal sufficient for an appellate court to make a decision on the merits. Id. at 350.

               For each of the above alleged deficiencies by trial counsel, we do not regard

the record in this case as sufficient to show that trial counsel acted outside the bounds of what

any competent attorney would have done. See Morales, 253 S.W.3d at 697. Additionally, in many

instances, Scott fails to show how, but for the alleged deficiencies, “the result of the proceeding

would have been different.” See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).

               We first address trial counsel’s performance regarding Wormley. Scott asserts that

trial counsel did not impeach Wormley with evidence of bias or prior inconsistent statements made

to the police. Further, according to Scott, “The record lacks any indication that defense counsel had

explored Wormley’s criminal history and relationship with the police force or any other state or

government agency.”

               The inconsistencies to which Scott refers are found in Wormley’s written statement

to the police. The statement was largely consistent with Wormley’s trial testimony, although the

written statement provided additional details about the events occurring before, during, and after the



                                                 26
shootings.8 Additionally, Wormley did not mention in his written statement that Scott forced him

at gunpoint to drive to Scott’s parents’ house. Also, in the written statement, Wormley stated that

Scott told him they were going to his mother’s house, while at trial, Wormley claimed that he did

not know where Scott was directing him to go. Defense counsel did not pursue these apparent

inconsistencies in his cross-examination of Wormley.

               On this record, we cannot conclude that counsel was deficient in not calling

these apparent inconsistencies to the jury’s attention. “Cross-examination is an art, not a science,

and it cannot be adequately judged in hindsight.” Ex parte McFarland, 163 S.W.3d 743, 756

(Tex. Crim. App. 2005). The apparent inconsistencies between Wormley’s trial testimony and his

written statement to the police involved matters incidental to the shooting. While drawing the

jury’s attention to these tangential inconsistencies might have undermined Wormley’s credibility,

trial counsel could have reasonably concluded that doing so would have served only to emphasize

the fact that, regarding the shooting itself, Wormley’s statement to the police and his trial testimony

were largely consistent.

               As for Scott’s complaint that trial counsel failed to explore Wormley’s alleged bias or

his alleged “relationship with the police force,” the record reflects that trial counsel cross-examined

Wormley about the details of the shooting and his relationship with both Scott and Sparks, and

counsel did get Wormley to admit that he had a brother who was a police officer. Scott suggests




       8
          These additional details do not appear to be material to the State’s case. For example,
Wormley included in his written statement the route he and Scott took to get to Scott’s parents
house, the fact that Wormley went to church prior to going to the motel, and what Scott was wearing
during the shooting.

                                                  27
that Wormley must have been a government “snitch” and that trial counsel should have elicited

this information from Wormley during cross-examination. However, the record is silent as to

Wormley’s criminal history and whether he was a police informant. In fact, when trial counsel asked

Wormley on cross-examination if he was “under arrest or investigation for any cases,” Wormley

testified that he was not. On this record, we cannot conclude that trial counsel’s cross-examination

of Wormley fell below an objective standard of reasonableness. Furthermore, especially in light of

our disposition of Scott’s other issues, he has failed to show a reasonable probability that additional

cross-examination of Wormley would have changed the result of the proceeding.

               We next address Scott’s contention that trial counsel failed to object to “improper

burden shifting” during the State’s examination of Detective Dixon. Scott complains that the State

used the term “crime scene” when questioning Dixon before the State had proven that the shooting

was a homicide. Therefore, in Scott’s view, trial counsel should have objected to such terminology

by the prosecutor. Trial counsel could have reasonably concluded that lodging such an objection

would have been pointless and serve only to draw the jury’s attention to the prosecutor’s use of the

term. Thus, we cannot conclude that counsel’s failure to object to the use of the term “crime scene”

falls below an objective standard of reasonableness.

               We next address Scott’s complaints about “lack of preparation.” First, Scott asserts

that counsel was ineffective in allowing the admission into evidence of “gruesome” pictures and

video of the crime scene, specifically Sparks’s body. The record reflects that trial counsel did not

view the video prior to trial. However, the record also reflects that trial counsel objected to both

the video and the pictures. Regarding the video, counsel stated, “I don’t want the camera to linger



                                                  28
on the dead body. I mean, you know, it gets to be inflammatory after a while.” The district court,

perceiving counsel’s statement to be a rule 403 objection, overruled it. Later, trial counsel objected

to the admission of the photographs of Sparks’s body on the basis that they were “unnecessarily

cumulative” of the video that had already shown the body. Again, the district court overruled trial

counsel’s objection. We cannot conclude that trial counsel’s performance fell below an objective

standard of reasonableness simply because the district court overruled his objections.

                  Scott also asserts, “It appears that defense counsel overlooked or did not know that

Mr. Scott had ingested amphetamines involuntarily, offering a plausible defense to the murder

charge.” We have already explained that this “involuntary” intoxication defense was not raised

by the evidence. Scott has failed to make a showing that the result of the proceeding would have

been different.

                  Finally, Scott complains about trial counsel’s “failure to effectively question”

Dr. Burrows, “especially during sentencing, in order to rehabilitate some incorrect assertions

made regarding Mr. Scott’s mental status.” However, Scott does not identify what these “incorrect

assertions” were, nor does he specify how trial counsel “failed to effectively question” Dr. Burrows.

On this record, we cannot conclude that Scott’s questioning of Dr. Burrows fell below an objective

standard of reasonableness.

                  We conclude that none of the above alleged deficiencies constitute ineffective

assistance of counsel. We similarly conclude that trial counsel’s totality of representation did not

fall below an objective standard of reasonably effective assistance or cause Scott harm. We overrule

Scott’s third issue.



                                                   29
                                       CONCLUSION

              We affirm the judgment of the district court.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: February 20, 2009

Do Not Publish




                                              30
