Opinion
06-21-00141-CR
10-24-2022
DWIGHT PATRICK SCOTT, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: August 2, 2022
On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 48,604-A
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
SCOTT E. STEVENS, JUSTICE
A Gregg County jury found Dwight Patrick Scott guilty of the murder of Tracy Reedy. The trial court sentenced him to life in prison. On appeal, Scott contends that (1) the evidence during the guilt/innocence phase was legally insufficient to find him guilty of murder, (2) because the evidence only supported a finding of manslaughter, the trial court's punishment charge was in error, (3) the trial court's punishment charge included an improper comment on the weight of the evidence, and (4) the trial court erred by allowing the State to read the enhancement paragraph after evidence on punishment had closed.
Because we find that (1) sufficient evidence supports the verdict, (2) we need not address the second point of error because sufficient evidence supports the verdict, (3) even assuming there was error, the trial court's instruction did not harm Scott, and (4) Scott failed to preserve error regarding the late reading of the enhancement allegation, we affirm the trial court's judgment.
I. Factual Summary
A. Law Enforcement Witnesses
On December 31, 2017, at 11:21 p.m., Joseph Johnston, a detective with the Kilgore Police Department, was one of several law enforcement personnel who arrived at the Meadowgreen Apartments complex in Kilgore, Texas, in response to a report that "someone had been shot." Johnston was the first to arrive at the scene, followed shortly thereafter by Officer Clint Johnson and Detective Joshua Sims, also of the Kilgore Police Department. When Johnston arrived, he saw the body of someone later determined to be Reedy lying face down, ten to twelve feet from the stairwell leading to the second floor of the apartment complex. He determined that Reedy could not be resuscitated, as she was not breathing, had no pulse, had been shot in the back of the head, was bleeding from the ears and mouth, and had multiple other bullet wounds. He called emergency services to the scene and closed off the area.
Lela Powell, the paramedic who arrived on the scene, testified that, because Reedy's body was cold to the touch and showed no signs of life, the paramedics did not attempt to resuscitate her. She estimated that Reedy had died between 11:01 p.m. and 11:11 p.m., approximately thirty to forty minutes before the paramedics' arrival.
Johnston testified that, despite the blood on Reedy's body, there was no blood trail, and therefore, it was likely that she fell immediately after having been shot. Around Reedy's body, Johnston saw several shell casings, and he marked them for evidence collection. A total of seven PMC .380 shell casings were found at the scene. A screwdriver and a small baseball bat were also found near Reedy's head, and Johnston agreed that a bat could be used as a weapon. Detective John Rowe testified that, if someone were coming after you with that small baseball bat, you would be concerned about being seriously injured or killed.
Both Johnston and Johnson spoke with some of the witnesses present at the scene. They learned during the interviews that the shooting suspect was a male and that Reedy had been living with a man named Dwight, who could possibly be a suspect in her murder. Witnesses told Johnston that, just before the shooting, Reedy and Scott were arguing in the parking lot. In speaking with witnesses, neither Johnston nor Johnson saw anyone with blood spatter or their clothes or body or who looked like they had been in a fight. They learned that a small child might be in the victim's apartment, so they entered the apartment and found a toddler asleep on the couch. Although he could not get the child to respond to him, Johnson stayed with the child until Alyshia Quinney, the child's parent and Reedy's daughter-in-law, showed up to take him. Quinney confirmed that Reedy babysat her two-year-old son "[a]ll the time" and that she had been babysitting him that night.
Both Johnston and Johnson wore body cameras that night. Two recordings from Johnston's camera were admitted into evidence as State's exhibits 1 and 2. Two recordings from Johnson's camera were admitted as State's exhibits 3 and 4. Exhibits 2 and 4 were played for the jury with each respective officer narrating the events shown.
Johnston testified that there was no one else in the apartment and that there were no signs of a struggle in the apartment. Johnston explained that, while he was waiting with the child, he heard a phone ring in the apartment. He found the phone in a kitchen drawer, where he also saw a loaded magazine. He left the magazine where it was because it could be evidence. The magazine contained ten rounds of PMC .380 ammunition, the same caliber ammunition of the shell casings found at the crime scene. The magazine and ammunition were admitted into evidence as State's exhibit 5.
Dr. Danielle Armstrong, a forensic pathologist, testified that Reedy died from multiple gunshot wounds and that the manner of her death was consistent with homicide. She testified that Reedy was shot five times: twice in the head and three times through the abdomen and lower back. The head shots entered her head from the front, but the other three shots entered from her back and exited her front. The shots were fired from more than two or three feet away.
Reedy also had abrasions on her face and leg and contusions on the back of her right hand. However, Armstrong did not know when those injuries occurred. Armstrong testified that the bruises on her hand could "indicate defensive wounds" but that the other bruises and abrasions could either be defensive wounds or they could have been suffered when she fell to the ground. The toxicology report indicated that, at the time of her death, Reedy's blood alcohol concentration was about twice the legal limit. Armstrong admitted that she had not performed the autopsy in this case but stated that she had reviewed all documents, photographs, and materials relevant to the autopsy in order to make determinations as to how Reedy died.
Investigator Angela Burch took numerous photographs of the evidence found at the scene. All of the photographs were admitted into evidence. She testified that three of the photographs showed wounds on Reedy's hands, but she admitted that she could not tell if the wounds were offensive or defensive.
Law enforcement personnel interviewed numerous witnesses about the night's events. Because multiple witnesses indicated that the person who shot Reedy had put something in the dumpster before he left the scene, officers searched the dumpster and found a plastic tote inside labeled "winter clothes Miller." Miller was the last name of Scott's sister who lived in Fort Worth, and according to family members, Reedy and Scott had "recently" been to Fort Worth to pick up some clothes.
Based on the witness statements and evidence in the case, Rowe characterized Reedy's murder as "cold and calculated." He said that the witness accounts that the shooter had walked back up to the apartment multiple times before leaving the scene fit that description.
B. Lay Witnesses
Ahmed Stockdale testified that, on December 31, 2017, at around six or seven p.m., he called Reedy on the phone to wish her a happy new year. In the past, he had dated Reedy for almost seventeen years. During that relationship, the couple lived together in Chicago. They were still friends, and they talked on the phone almost daily. Stockdale recalled that, during the thirty-minute New Year's Eve call, Reedy was in good spirits. Although Stockdale denied it, Rowe testified that Stockdale told him that Reedy "was a fighter, had a temper, and could be hard to handle."
Kendra Choice testified that she was living in the Meadowgreen Apartments at the time of the shooting. She explained that Reedy lived with her boyfriend in the apartment across from hers on the second floor. She believed that Reedy's boyfriend drove a black or green Lincoln.
On the night of the shooting, Choice had a group of family and friends over for New Year's Eve. She testified that she was sober. At about ten or eleven that evening, Choice and those with her heard a man and woman arguing outside. The man looked like he was packing to leave. As he was taking things down to his car, a Lincoln, the woman was walking behind him, yelling at him. Choice could not see them very well, but she could tell that they were both black. The woman was holding a small baseball bat in her hand, and she was "in a stance like she was waiting for a pitch . . . to hit him." Choice heard the woman more than the man, but she remembered hearing the man say, "Leave me alone. Leave me alone." The woman was saying, "[Y]ou got to pay for this P," "I'm from Chi-Town B," and "Shoot me. Shoot me. Shoot me." The woman also said "Bitch, you're going to pay for this P you're getting. And you're going to pay for this MF rent, and I need my $200." Less than a minute later, she heard gunshots. Yet, despite the darkness of the area, she did not see any muzzle flash.
Choice understood "P" to be a slang term for vagina and "Chi-Town" to mean Chicago.
When Choice heard the gunshots, one of her friends, Adreika Collier, called 9-1-1. Choice went downstairs, alerted her neighbor to the disturbance, and saw that Reedy was "laying on the ground." Choice testified that, before the man left, he put something in the trash and then went up to Reedy's apartment three times getting clothes from the apartment and putting them in the Lincoln. He seemed calm, and he drove away slowly.
Collier testified that, on the night of the shooting, she was at the Meadowgreen Apartments where her friend, Choice, lived. While she was outside, she could hear a man and a woman arguing. Because it was dark, she could not see them well. She could tell that the lady was "white-skinned" and "looked Hispanic." The lady was yelling and cursing. Collier heard the woman yell, "Chicago, Chicago" and "Shoot me. Shoot me." She did not really hear the man say anything. When she heard gunshots, she ran into her friend's apartment and called 9-1-1.
Nikki Lacy was visiting April Dupree, who lived in the Meadowgreen Apartments in the apartment just below Reedy's. She testified that two people were "already arguing and fighting" when she got there. She remembered that Reedy came into the apartment and asked if Dupree could babysit the child in her apartment, but they said no. Later in the night, she heard a woman yell, "I'm from Chi-Town. Shoot me," and then she "heard a pop." At trial, she testified that she looked out the window and saw a woman lying on the ground "with him standing over her." He was a "dark-skinned man, a black man" standing over her with a pistol in his hand, but on the night of the shooting, she failed to tell that to law enforcement. She testified that the man took something out of his car and threw it in the dumpster and then got into his vehicle and drove away. She denied that the man ever went back to Reedy's apartment after the shooting. After the man left, she went into Reedy's apartment and tried to comfort the child, who was screaming that he wanted his "Granny." She also saw a margarita bottle there, and she drank some of it to calm her nerves.
Detective Rowe testified that Lacy told him that Reedy had called the apartment to ask if Dupree could babysit the child.
Dupree testified that Reedy lived in the apartment above hers. She remembered Reedy and her boyfriend arguing that night because Reedy came by her place to apologize for the noise and to ask her if she would babysit the child that she had with her. Reedy was upset with her boyfriend over some other woman, saying something like, "I saw her." Dupree stated that she had never heard them argue before. She confirmed that Lacy had visited her place that night, but Dupree explained that she left the area before the shooting occurred.
Ronisha Henderson testified that she lived in the Meadowgreen Apartments at the time of the shooting and that she knew Reedy, as she lived in an apartment across the parking lot from hers. On the night of New Year's Eve, she heard Reedy and a man yelling at each other, and when she looked out her apartment window, she was able to see them. She identified Scott as the man she saw arguing with Reedy. She heard Reedy say three times that she was from Chi-Town, "and that's when he turned . . ., then the gunshots, and then she fell." She remembered Scott firing three shots, and she saw "the fire coming from the gun." Henderson testified that she did not remember seeing Reedy holding anything in her hand at the time of the shooting. She denied that Reedy hit Scott before the shooting.
Henderson explained that she was celebrating the holiday that night. Although she did not remember how much she had to drink, she admitted that she likely "smelled like alcohol" and that her account of the events might not be reliable. She did not recall telling the police during her interview that she saw a "heavyset" woman crouching or squatting beside her car that night.
Alonte George testified that, at the time of the shooting, he was visiting a friend in an apartment "across the way" from where the shooting occurred. While in the apartment, he heard gunshots, and "about ten minutes later," he left the apartment and saw a black man drive away from the scene in a burgundy, four-door, Lincoln car. He did not see anyone else in the car.
Taneisha Brager, one of Reedy's three children, confirmed that Reedy started dating Scott in July 2017. Brager testified that Scott drove a four-door, burgundy Lincoln MXE. A few weeks before the shooting, Scott had told her that he believed Reedy was cheating on him with another man, but she said she never saw any other men "hanging out at the house or coming over."
Dennis White, Jr., Scott's stepson, testified that he lived in Indiana and that, on the night of the shooting, Scott called him and told him that he wanted to give him his Lincoln. A few days later, on January 3, 2018, Scott showed up alone at White's house, gave him his Lincoln, removed a duffle bag from the car, and left in another vehicle that had Minnesota license plates. White noticed that Scott had "an injury on his head" and "injuries on both his forearms." The injuries looked recent. He claimed that his sister, Alexis Scott, took photos of Scott's injuries and sent them to his cell phone. However, he explained that the photographs were lost when he changed phones. White testified that Scott called him about a week later. White asked him "where he was at" and what he was "allegedly supposed to [have done]." Scott responded, "Well, I can't talk to you about it, but the only thing I can say is I defended myself." White testified that the Lincoln was later taken by United States Marshals and that he never got it back.
C. Scott's Interview
After speaking with witnesses at the scene, Rowe determined that Scott was a person of interest in Reedy's murder. Rowe testified that Scott was the "only possible person with the means and motive and opportunity to kill" Reedy. He had tried contacting Scott by telephone shortly after the shooting, but he was unsuccessful. Scott did not show up for work the following day, and his social media account had been deactivated.
The evidence from the investigation indicated that Scott had left the scene shortly after the shooting and traveled north, out of the state. A video recording admitted into evidence and played for the jury showed that Scott was at a gas station in Salem, Illinois, on January 1, 2018, at 10:25 a.m., the morning after the shooting. Scott admitted that he and his car were on the video and that, on the night of the shooting, he drove from the apartment to Indiana, where his family lived. Scott's actions in not answering his phone, failing to show up for work, deactivating his social media account, and leaving the area after the shooting indicated to Rowe that Scott was "guilty of something."
About one year after the shooting, Scott was arrested in Indiana and charged with Reedy's murder. Sergeant Charles Duke and Rowe traveled to Indiana to get Scott. After having read Scott his Miranda rights, they interviewed him. The recorded interview was admitted into evidence and played for the jury. During the interview, Scott affirmed that he had known Reedy since they were children and that he had always been in love with her. Scott claimed that Reedy had been drinking that night and arguing with him. After she slapped him, he started packing his things to leave. He stated that she had a small baseball bat and that she was "coming at" him. Scott claimed that he was trying to fight her off. As he was on the other side of the car from Reedy, he said that he saw a man in his peripheral vision and that the next thing he heard was gunfire. He told the interviewing officers that, when he heard the gunshots, he jumped into his car and drove away, straight to Indiana. There he gave his car to his stepson and generally was "laying low."
Miranda v. Arizona, 384 U.S. 436 (1966).
Scott denied putting anything in the dumpster before he left. He repeatedly denied shooting Reedy and claimed that he was scared of recrimination from her family because they would think he had something to do with her death. Scott did not recall a child being there at the apartment that night, and he denied telling any of his family that he shot Reedy in self defense. Even though Scott did not bear any visible scars or injuries at the time of the interview, Rowe admitted that he could have suffered significant injuries a year before the interview without them leaving scars. Rowe noted that there was no evidence to support Scott's statement that a stranger had walked up and shot Reedy.
D. Scott's Testimony at Trial
Scott testified that Reedy was his girlfriend and that they had initially moved in together in Gladewater, Texas, where they lived for about a month before they moved to the Meadowgreen Apartments in Kilgore. Although the relationship was usually fine, occasionally it turned violent when Reedy slapped him. When that happened, he would either go into another room or get in his car and take a ride; he never struck her back.
Scott testified that, on the day of the shooting, around 8:30 or 9:00 p.m., Reedy was upset because one of her sons was in prison and the other son was on the way there. He claimed that she had been drinking that day but that he had not. He admitted that Reedy could be loud when she was talking or upset and that she could be loud enough for the neighbors to hear her. He denied that they were arguing that day about another woman. Scott testified that he asked her if she was okay and if there was anything that he could do to make her feel better. According to Scott, she responded by telling him to shut up. As he tried to console her, she slapped him. He told Reedy that he was not going to go through that anymore and that he was leaving her. He started packing his vehicle. He made several trips from the apartment to the car. He also took some of his things downstairs in a plastic tote and threw them away. He testified that that was "the first thing" he had done. Scott remembered that it was dark outside while he packed. Scott denied that "the baby" was in their apartment that night.
Scott testified that Reedy had previously slapped him on three different occasions, but he never filed a police report or pressed charges against her.
According to Scott, while he packed, Reedy left in her car. Scott testified that, while she was gone, he got a gun out of the house and put it under the front seat of his car. Between an hour and an hour and a half later, he was in the apartment when Reedy returned. She started yelling at him again and hitting him with a small bat. She hit him in the head and his arms as he tried to fend her off and get away from her. He denied ever striking her, but he left the apartment, told her to stop, told her to leave him alone, and headed downstairs to his car with her yelling at him as she followed him. Scott denied yelling at her and testified that anyone saying he was yelling at her was lying. He testified, "She was hollering at me, telling me that '[y]ou need to pay for the p***y.' She was from Chi-Town. 'You ain't about this life." She also yelled that he "was going to give her $200.00 for rent."
Scott identified the bat found near Reedy's head as the bat with which she hit him. He testified that it was a Cubs souvenir bat that he had given her.
Scott testified that he did not know why Reedy was demanding money because she had access to his bank account through her debit card.
Scott testified that Reedy kept hitting him with the bat as he "headed towards the car." He opened the passenger door, grabbed the gun, and as she was hitting him, he fired two or three shots "behind [his] back" toward where "[he] knew that she would be." Scott claimed that she was close behind him, "on top" of him. He demonstrated for the jury how he shot the gun. Scott maintained that his back was to her as he fired. He claimed that he could not tell where he was shooting, that she was hurting him, and that he "figured she was trying to kill [him]." Scott felt that using the gun was necessary to prevent either serious bodily injury or death. He denied "intentionally" or "knowingly" shooting Reedy, but admitted that "[a]t best," he was shooting recklessly.
After he fired the shots, Scott immediately got in his car and left. Scott denied that he continued to pack his things after the shooting. He left immediately afterward and drove straight to Gary, Indiana, to be with his family. While crossing a bridge on the way to Indiana, he tossed the gun, which he admitted was evidence of a crime. He admitted contacting his brother, who contacted White. He also admitted to seeing White, showing him his injuries, and giving the car to White because he had previously promised to it to him. Scott testified that, as a result of Reedy hitting him with the bat, he had lacerations and bruises to his face, lacerations and abrasions to both of his arms, and a knot on his head. He testified that his daughter, Alexis, took photographs of his injuries. But he admitted that Alexis did not testify and that the photographs were never admitted into evidence.
Scott admitted that he was convicted of burglary in 1988 and, as a result, served three years in the Illinois Department of Corrections. He knew that, as a convicted felon, he could not own a gun. Yet, he admitted that there were guns in his apartment and that, while he drove to Indiana, he had a gun in his car.
Scott explained that the knot on his head was still present on his head, and he stepped down to show the knot to the jury. He claimed that he did not call the police because he was scared of Reedy's family retaliating against him and he was not thinking clearly. Scott testified that, after meeting with his brother and stepson, he went to a group home in Gary, Indiana, for a period of time where he worked as a certified nursing assistant (CNA). However, he later denied working there as a CNA. He admitted that he worked at the group home under an alias name, James Williams, and under a fictitious social security number and date of birth. Scott also testified that he did not contact friends or family for most of the next year. He initially denied that he tried to contact an ex-girlfriend while he was in Indiana, but then he admitted that that was untrue, and he apologized to the jury.
Scott stated that he still loved Reedy, that he regretted having done what he did, and that he wished he could undo what had happened. Scott admitted that his story at trial was different than the story he told the officers during his police interview. He admitted to lying to Rowe about "things that looked bad" for him because he was still scared for his life. He admitted that he failed to tell Rowe about taking the gun from the closet, putting it in the car, and firing it. Scott also admitted that he lied to Rowe about another man walking up and shooting Reedy. However, he maintained that some of what he told Rowe during the interview was true, such as Reedy slapping him and hitting him with the bat. He explained that he only fired two or three times and that any report that he shot her five times was fabricated.
II. Sufficient Evidence Supports the Jury's Verdict
In his first point of error, Scott contends that the evidence was legally insufficient to support the jury's verdict. Specifically, he argues that the evidence was insufficient to show that he knowingly and intentionally killed Reedy and that, therefore, the evidence was only sufficient to support a finding that he had committed manslaughter.
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.-Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd)). "Our rigorous review focuses on the quality of the evidence presented." Id. (citing Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. at 298 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury charge is 'one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240).
To obtain a guilty verdict for murder under Section 19.02(b)(1) of the Texas Penal Code, the State must prove beyond a reasonable doubt that the defendant "intentionally or knowingly cause[d] the death of an individual." Tex. Penal Code Ann. § 19.02(b)(1). Tracking the language of the statute, the State's indictment alleged that Scott "did then and there intentionally or knowingly cause the death of an individual, namely, Tracy Reedy, by shooting Tracy Reedy with a firearm."
Scott contends that the evidence was insufficient to establish the intentional or knowing mens rea element of murder. "A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Tex. Penal Code Ann. § 6.03(a). "A person acts knowingly . . . when he is aware of the nature of his conduct . . . [and] his conduct is reasonably certain to cause the result." Tex. Penal Code Ann. § 6.03(b).
Whether Scott possessed the requisite intent or knowledge to kill was a question of fact for the jury to determine. See Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). In determining whether requisite mens rea was proven, the jury can use its collective common sense and may apply common knowledge and experience. See Rodriguez v. State, 90 S.W.3d 340, 355 (Tex. App.-El Paso 2001, pet. ref'd). The jury may infer the intent to kill from any evidence that it believes proves the existence of that intent. Brown, 122 S.W.3d at 800. The inference can be made from such circumstantial evidence as the person's acts, words, and conduct because "[o]ne's acts are generally reliable circumstantial evidence of one's intent." Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009) (quoting Rodriguez v. State, 646 S.W.2d 524, 527 (Tex. App.-Houston [1st. Dist.] 1982, no pet.)); see Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). The jury may also infer intent to kill from the defendant's use of a deadly weapon, such as a gun, unless it would be unreasonable to infer that death or serious bodily injury could result from the particular use of the weapon. Brown, 122 S.W.3d at 800-01; Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
Here, several witnesses who were present at the scene of the shooting testified at trial. The jury heard that Reedy and Scott were arguing on the night of the shooting. Scott admitted that, while packing his car to leave, he got a gun from the apartment and put it in his car. Several witnesses testified that Reedy was following Scott and yelling at him as he packed. There was conflicting evidence whether Scott was yelling back at Reedy and whether Reedy carried the small bat. Scott testified that Reedy was hitting him with the bat while he was packing, but no other witness saw her hit him. Choice, Collier, and Lacy testified that, during the argument, Reedy was yelling at Scott to shoot her. Henderson testified that, during the argument, she saw Scott turn and shoot Reedy. Henderson admitted that she had been drinking alcohol that night, but her credibility was the sole province of the jury. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Lacy testified that, after hearing the gunshots, she saw a man with a pistol standing over Reedy's prone body. There was conflicting testimony as to whether, immediately after the shooting, the man left in his car, or whether he continued to pack his car before leaving, but we must assume that the jury resolved the conflicts in favor of the verdict. See id.; Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012).
Additionally, seven shell casings were found at the scene, all stamped PMC .380. The jury could have inferred that they were all fired from the same weapon. There was no evidence that anyone other than Scott fired shots at the scene. Thus, the jury could have inferred that Scott fired all seven shots. Reedy was shot five times, with two shots entering the front of her head and three shots entering her body and extremity from the backside. Armstrong testified that the gunshots caused Reedy's death. From the number of times Scott fired the gun and the severity of Reedy's injuries, the jury could have inferred that Scott intended to kill Reedy and reasonably rejected the idea that Scott shot Reedy five times, including two head shots, without knowing or intending to kill her. See Draper v. State, 335 S.W.3d 412, 415 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd).
Choice testified that Reedy was walking right behind Scott during the argument. Scott claimed that Reedy was close behind him, practically "on top" of him, hitting him with the bat when he pointed the gun behind him, toward Reedy, and fired several times. Because of her close proximity to him, the jury could have reasonably determined that Scott intended to kill Reedy by firing a gun in her direction seven times. See Rodriguez, 90 S.W.3d at 355. When a deadly weapon is fired at close range and death results, "the law presumes an intent to kill." Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. [Panel Op.] 1981); see Draper, 335 S.W.3d at 415.
There is also significant consciousness of guilt evidence. "[E]vidence of flight has been held to evince a consciousness of guilt" and is "relevant to the issue of mens rea." Louis v. State, 61 S.W.3d 593, 597 (Tex. App.-Amarillo 2001, pet. ref'd). Several witnesses testified to seeing a dark, four-door car leave the apartment complex shortly after the shooting. Scott admitted that, after the shooting, he got in his car and drove straight to Indiana. Additionally, while driving to Indiana, Scott threw the gun over the side of a bridge, even though he admitted that it was evidence of a crime. Scott's deliberate destruction of the gun he used in the shooting is relevant to prove that Scott committed the act with which he is charged. See Torres v. State, 794 S.W.2d 596, 598-600 (Tex. App.-Austin 1990, no pet.).
On arriving in Indiana, Scott gave away the car in which he fled, and the jury could have inferred that that gift was an attempt to conceal evidence. Concealing evidence is "strong evidence" of a defendant's consciousness of guilt. See Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (orig. proceeding). Moreover, in his police interview, Scott gave the police an admittedly false story about a third person shooting Reedy.
Scott testified that he did not knowingly or intentionally kill Reedy because he was shooting the gun behind him, while facing away from Reedy. He claimed that he could not see what he was shooting at and that he was acting in self-defense. That said, Scott admitted lying to the police about the shooting, destroying evidence of the crime, and even lying to the jury during the trial. Based on the verdict, the jury necessarily believed Henderson and Lacy and rejected Scott's claims of reckless conduct, sudden passion, and self-defense. See Gilbert v. State, 575 S.W.3d 848 (Tex. App.-Texarkana 2019, pet. denied). It is the sole province of the jury to weigh the evidence and resolve conflicts in the evidence, and we must defer to the jury's resolution of the facts. See Merritt, 368 S.W.3d at 525-26. As a result, viewing the evidence in the light most favorable to the verdict, we find that a rational jury could have found beyond a reasonable doubt that Scott intentionally or knowingly killed Reedy. Accordingly, we overrule Scott's first point of error.
Scott contends that the State failed to refute his testimony at trial that he was shooting recklessly and/or in self-defense, but the State need only prove its case beyond a reasonable doubt; the State is not required to refute a defendant's testimony to prove his guilt. Braughton v. State, 569 S.W.3d 592, 608-09 (Tex. Crim. App. 2018).
In his second point of error, Scott claims, "THERE WAS REVERSIBLE ERROR AT PUNISHMENT, SINCE [SCOTT] WAS SENTENCED FOR THE OFFENSE OF MURDER, WHEN THE EVIDENCE WOULD ONLY SUPPORT PUNISHMENT FOR MANSLAUGHTER." Because we have found that there was sufficient evidence to support Scott's murder conviction, we need not address Scott's second point of error because its merit depends on a finding that the evidence was legally insufficient to support the jury's verdict.
III. There Was No Harm in the Trial Court's Instruction to the Jury
In his third point of error, Scott contends that, in the trial court's charge on punishment, it impermissibly commented on the weight of the evidence.
"We employ a two-step process in our review of alleged jury-charge error." Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.-Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Id. (quoting Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.-Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731-32)).
"[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby." Id. (alteration in original) (quoting Tex. Code Crim. Proc. Ann. art. 36.13). "A trial court must submit a charge setting forth the 'law applicable to the case.'" Id. (quoting Lee v. State, 415 S.W.3d 915, 917 (Tex. App.-Texarkana 2013, pet. ref'd) (quoting Tex. Code Crim. Proc. Ann. art. 36.14)). "The purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its application. It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and prevent confusion." Id. (quoting Lee, 415 S.W.3d at 917; Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).
A jury charge must include an accurate statement of the law. See Tex. Code Crim. Proc. Ann. art. 36.14. Moreover, the trial court "must also apply the law to the facts adduced at trial." Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004). A trial court may not submit a charge that comments on the weight of the evidence. See Tex. Code Crim. Proc. Ann. art. 36.14. A charge comments on the weight of the evidence if it "'assumes the truth of a controverted issue' or 'directs undue attention to particular evidence.'" Lacaze v. State, 346 S.W.3d 113, 118 (Tex. App-Houston [14th Dist.] 2011, pet. ref'd). "In determining whether the charge improperly comments on the weight of the evidence, we consider the court's charge as a whole and the evidence presented at trial." Id.
The State alleged that Scott had a prior felony conviction for burglary. If that allegation was found to be true, it would enhance the minimum sentence of Scott's punishment range from five years in prison to fifteen years in prison. See Tex. Penal Code Ann. §§ 12.32(a), 12.42(c)(1). Scott entered a plea of "true" to the enhancement allegation. The trial court then charged the jury on punishment, and the court's charge included, over Scott's objection, the following instruction: "You have found the Defendant, DWIGHT PATRICK SCOTT, guilty of Murder. The state has accused the defendant of having been convicted of a felony once before. The state asks you [to] find this accusation true and assess punishment under the law applicable to defendants with one prior felony conviction." The jury sentenced Scott to life in prison.
We also note that a murder conviction by itself authorized the jury to sentence Scott to life in prison. See Tex. Penal Code Ann. § 12.32.
Assuming, without deciding, that the instruction was in error, the fact that Scott pled true to the enhancement renders the instruction harmless. Because Scott made a timely objection at trial, he need only prove that he suffered "some harm" from the assumed error to obtain a reversal. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When making an enhancement allegation, the State bears the burden of proving that the defendant was previously and finally convicted of the prior offense. Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984) (en banc). However, when a defendant pleads true or guilty to the enhancement allegations, he satisfies the State's burden of proof. Ex parte Sewell, 742 S.W.2d 393, 396 (Tex. Crim. App. 1987). "The plea of 'true' is sufficient proof." Wilson, 671 S.W.2d at 525.
Here, the challenged instruction related only to the enhancement allegation, and the instruction was given after Scott pled true to the enhancement. By pleading true, Scott relieved the State of its burden to prove the enhancement allegation. See Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981). Because Scott pled true to the enhancement, it was mandatory for the jury to "assess punishment under the law applicable to defendants with one prior felony." See Wilson, 671 S.W.2d at 525; Morrow v. State, No. 06-10-00125-CR, 2011 WL 882839, at *4 (Tex. App.-Texarkana Mar. 15, 2011, no pet.) (mem. op., not designated for publication).Therefore, the trial court could have instructed the jury to find that the enhancement allegation was true and to sentence Scott under the enhanced fifteen to ninety-nine years or life punishment range. See Wilson, 671 S.W.2d at 525. As a result, any error in the trial court's instruction on this issue was harmless. For these reasons, we overrule Scott's third point of error.
"Although unpublished opinions have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.-Texarkana 2017, pet. ref'd) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.-Amarillo 2003, pet. ref'd)).
IV. Late Presentation of the Enhancement Paragraph
In his fourth point of error, Scott argues that the trial court erred in allowing the State to present the enhancement paragraph at the end of the punishment phase of the trial.
The State filed a notice of enhancement in this case. Even so, the State failed to read and present the enhancement paragraph at the outset of the punishment phase. During the punishment phase of the trial, the State submitted sufficient evidence to show that, on June 24, 1993, Scott had been convicted of felony burglary in Illinois. The State and Scott rested and closed. At that point, the State intended to read the enhancement paragraph, but Scott objected, arguing that "the State had failed to give a presentment prior to the punishment phase and ask for a plea of true or not true on the enhancement." The trial court overruled Scott's objection and allowed the State to read the enhancement allegation. Scott entered a plea of true, the trial court charged the jury on punishment, and then both sides proceeded to make closing arguments. Scott contends that the trial court erred by allowing the State to read the enhancement paragraph late.
Scott also argues that, even if the trial court did not err by allowing the late reading of the enhancement, it erred by not requiring the State to reintroduce the enhancement evidence during the punishment phase. However, a "point of error on appeal must comport with the objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005). Here, this point of error was not preserved because this argument does not comport with his objection at trial.
The reading of enhancement paragraphs is mandatory, and the due order of trial calls for them to be read at the beginning of the punishment phase. Tex. Code Crim. Proc. Ann. art. 36.01; Ex parte Sewell, 742 S.W.2d 393, 395 (Tex. Crim. App. 1987).
"The mandatory provision of [Article] 36.01 is applicable to the penalty stage of a bifurcated trial." Warren v. State, 693 S.W.2d 414, 415 (Tex. Crim. App. 1985).
[W]hen a punishment enhancement allegation is read late, the error can be cured by reading the charging instrument or punishment allegation (to the jury if it is the fact[-]finder), having the accused enter a plea to it, and having the State reintroduce the evidence heard before the charging instrument was read (or the parties can stipulate to the evidence).Do v. State, 634 S.W.3d 883, 892 (Tex. Crim. App. 2021); see Warren, 693 S.W.2d at 416 ("The procedure to be followed has been long established: upon learning of the error, the indictment is read to the jury, the accused enters a plea and the State reintroduces the evidence; or the parties may stipulate to the evidence."). However, "a defendant forfeits error if he fails to raise an objection that puts the trial court on notice of the correct curative measures." Id. A simple objection to the late reading of the enhancement allegation will not preserve error. See id.
"For example, a defendant could object to evidence that was introduced before the charging instrument or enhancement allegation was read (essentially requesting that the evidence be stricken), and such an objection would place the trial court on notice of the State's need to reintroduce the evidence." Do, 634 S.W.3d at 892 (citing Welch v. State, 645 S.W.2d 284, 286 (Tex. Crim. App. 1983)).
Here, Scott failed to preserve this point of error for appeal because his objection at trial failed to direct the trial court to the correct curative measures. See id. As a result, we overrule Scott's fourth point of error.
V. Conclusion
We affirm the trial court's judgment.