Bell v. State

774 S.W.2d 371
CourtCourt of Appeals of Texas
DecidedOctober 25, 1989
Docket3-88-122-CR, to 3-88-124-CR
StatusPublished
Cited by15 cases

This text of 774 S.W.2d 371 (Bell v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. State, 774 S.W.2d 371 (Tex. Ct. App. 1989).

Opinion

ABOUSSIE, Justice.

A jury found appellant Otis T. Bell, also known as Trouble Bell, guilty of the offense of murder, Tex.Pen.Code Ann. § 19.02(a)(1) (1989), and assessed his punishment at confinement for life in the Texas Department of Corrections. In addition, the trial court revoked Bell’s probation in cause numbers 75,249 and 75,401, offenses for which he received five-year sentences. Upon the State’s motion, we consolidated the three cases. We will affirm the judgments.

THE MURDER CONVICTION

The murder occurred on March 3, 1988. Bell and several companions spent the evening of March 2, 1988, driving about, buying and injecting cocaine. In the early evening hours, Bell, Karen Trotter, and a man identified only as Thomas went to the apartment of Bell’s cousin, Ernest Presley, at 1126V2 Chicon Street, Austin, Texas. Bell gave Presley a pistol and several small bags of cocaine, and then Bell, Trotter, and Thomas left.

Shortly past midnight, Bell and Trotter returned to the apartment. Presley and Barbara Reed Gooden were in the bedroom. Presley admitted the two into the apartment, while Gooden remained in the bedroom. Bell began to insult Gooden, despite Presley’s requests that he desist. Apparently, Bell and Gooden had dated as teenagers over twenty years earlier. Presley retrieved Bell’s gun from the bedroom, returned to the living room, and gave Bell the gun. Bell and Presley sat facing each other, with a distance of only a few feet between them, and continued to argue. Bell then told Presley, “I’ll shoot you,” and fired a single shot into Presley’s stomach.

Trotter ran from the apartment. Bell came to the bedroom door, the gun still in his hand, and told Gooden to take Presley to the hospital. Bell and Gooden put Presley in a car and drove towards Bracken-ridge Hospital. Bell hopped out of the car at a stoplight, the gun still tucked in his waistband. Gooden drove Presley to the hospital.

Bell brings four points of error regarding the murder conviction. In his first point of error, Bell complains that the evidence was insufficient to support his conviction because the evidence showed that pre-existing injuries caused Presley’s death.

Presley was sixty-seven years old at the time of the shooting and partially para *374 lyzed as a result of a gunshot wound he had received in his neck some years earlier. This paralysis apparently included his left hemidiaphragm, the major breathing muscle on the left side. He also suffered from hyperintensive cardiovascular disease.

Upon admission to the hospital on March 8, Presley underwent surgery to repair the gunshot wound inflicted by Bell. Approximately three days later, Presley developed pneumonia in both lungs and, despite antibiotics, died of an overwhelming infection.

A person is criminally responsible for his conduct if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex.Pen.Code Ann. § 6.04(a) (1974). Where a wound causes a disease which produces death, the death is attributable to the wound if there is no evidence of gross neglect or improper treatment. Turner v. State, 505 S.W.2d 558 (Tex.Cr.App.1974); Lowe v. State, 676 S.W.2d 658 (Tex.App. 1984, pet. ref’d).

Further, if an act of the defendant alleged in the indictment contributed to the victim’s death, the defendant is responsible despite concurring causes. Wright v. State, 388 S.W.2d 703 (Tex.Cr.App.1965). Hence, a conviction of murder will be sustained where the evidence is sufficient to show that the complications from which the victim died were traceable to the gunshot wound inflicted by the defendant. See Jones v. State, 582 S.W.2d 129, 134 (Tex.Cr.App.1979).

Presley’s treating physician, Dr. David Stalker, and the Chief Medical Examiner for Travis County, Dr. Robert Bayardo, both testified that without treatment, the gunshot wound alone would have been sufficient to cause death. They also testified that it was unlikely Presley would have developed pneumonia without the gunshot wound. From this testimony, the jury could conclude that the pneumonia was caused by the gunshot wound and there is no evidence that it was caused by anything other than that wound. We find the evidence sufficient to support the verdict that Presley died at least in part as a result of the gunshot wound inflicted by Bell. Bell’s first point of error is overruled.

In his second point of error, Bell complains that the trial court erred by im-permissibly commenting on the weight of the evidence in violation of Tex.Code Cr.P. Ann. art. 38.05 (1979). At the conclusion of the presentation of evidence in the guilt or innocence phase of the trial, the trial court excused the jury for a recess with the following statement:

Ladies and gentlemen of the jury, that concludes the evidence that you will hear in the first phase of this trial. I will tell you that we have matters to take up in connection with a charge that must be prepared. We will stand in recess until 9:30—excuse me, 10:30.

After the jury was excused, Bell objected that the trial court’s reference to the “first phase” of the trial indicated that it was the court’s opinion that there would be a second part of the trial. The trial court noted the objection, stating “I think that was covered in the Court’s instruction, that we would go to a punishment phase of this trial only in the event they found Mr. Bell guilty, and for no other reason.” In his instructions to the jury during voir dire, the trial court repeatedly referred to the guilt or innocence phase of the trial as “phase one” and the punishment phase as “phase two.” He also stated that “in the event, and only in the event that the accused, Mr. Bell, is found guilty of the offense, then there will be the second phase of the trial.”

Bell failed to obtain a ruling on his objection, or to request an instruction or mistrial. Marks v. State, 617 S.W.2d 250, 252 (Tex.Cr.App.1981). Even if the point were properly before us, however, we would not find that the trial court’s statement was a comment on the weight of the evidence reasonably calculated to benefit the State or prejudice Bell. See Kincade v. State, 552 S.W.2d 832 (Tex.Cr.App.1977). The trial court repeatedly called the bifurcated stages of the trial “phase one” and “phase *375 two” and specifically told the jury that phase two would occur only in the event they found appellant guilty. In light of the trial court’s explanation to the jury, we do not view the trial court’s statement as a comment reasonably calculated to imply that he believed that the evidence weighed in favor of guilt or that he expected the jury to find appellant guilty, thus necessitating a second phase in the trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Joshua Carl Wulff v. the State of Texas
Court of Appeals of Texas, 2021
In re C.L.S.
403 S.W.3d 15 (Court of Appeals of Texas, 2012)
in the Matter of C.L.S.
Court of Appeals of Texas, 2012
Jimmy Lee Pinson v. State
Court of Appeals of Texas, 2004
Hatten v. State
32 S.W.3d 868 (Court of Appeals of Texas, 2000)
Henry Larry Locklear v. State
Court of Appeals of Texas, 2000
Fleming v. State
21 S.W.3d 275 (Court of Criminal Appeals of Texas, 2000)
Smith v. State
966 S.W.2d 111 (Court of Appeals of Texas, 1998)
Moreno v. State
952 S.W.2d 44 (Court of Appeals of Texas, 1997)
Barcenes v. State
940 S.W.2d 739 (Court of Appeals of Texas, 1997)
Donald Lee Wilson, Sr. v. State
Court of Appeals of Texas, 1996
William Ray Mullins v. State
Court of Appeals of Texas, 1996
Samantha Elaine Hazelrig Leinweber v. State
Court of Appeals of Texas, 1995
Odlozelik v. State
837 S.W.2d 825 (Court of Appeals of Texas, 1992)
Frank Ivy v. State
Court of Appeals of Texas, 1991

Cite This Page — Counsel Stack

Bluebook (online)
774 S.W.2d 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-state-texapp-1989.