Horinek v. State

977 S.W.2d 696, 1998 WL 304343
CourtCourt of Appeals of Texas
DecidedDecember 9, 1998
Docket2-96-565-CR
StatusPublished
Cited by9 cases

This text of 977 S.W.2d 696 (Horinek 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
Horinek v. State, 977 S.W.2d 696, 1998 WL 304343 (Tex. Ct. App. 1998).

Opinion

OPINION

PER CURIAM.

Warren R. Horinek appeals from his conviction for murder. In his sole point on appeal, appellant challenges the factual sufficiency of the evidence to support the jury’s guilty verdict. We affirm.

I.Standard of Review

This court has the authority to review fact questions in criminal cases. See Clewis v. State, 922 S.W.2d 126, 129-30 (Tex.Crim.App.1996). In reviewing the factual sufficiency of the evidence to support a conviction, we are to view “all the evidence without the prism of ‘in the light most favorable to the prosecution.’ ” Id. at 129 (citing Stone v. State, 823 S.W.2d 375, 381 (Tex.App.—Austin 1992, pet. ref'd, untimely filed)). We may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. In performing this review, we are to give “appropriate deference” to the fact finder. Id. at 136.

II.Appellant’s Trial and Appellate Theories

Appellant, a former police officer, was indicted for the March 1995 murder of his wife, Bonnie Horinek. Appellant told emergency personnel and two police officers that an intruder had killed Bonnie, but his defensive theory at trial was that Bonnie had committed suicide. The State’s theory was that appellant shot Bonnie while she was sleeping.

In this appeal, appellant infers that, because several expert witnesses testified that they could not rule out either suicide or homicide, the jury’s verdict of guilty was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. But none of the experts had access to all of the evidence in this case, although each did have an opinion as to the cause of Bonnie’s death. Only the jury had both access to all of the evidence and the benefit of the experts’ testimony and opinions.

III.The Evidence

A. Bonnie Horinek

Several witnesses testified that Bonnie, a labor and employment lawyer at Jackson and Walker’s Fort Worth office, led a busy, organized life, was well liked and respected, and did not appear depressed or despondent. Molly Mercey, a legal secretary who worked “very closely” with Bonnie, was with Bonnie at the office until about 7:15 p.m. cn the evening of her death. Mercy testified that Bonnie was very busy and described Bonnie’s “to do” list, travel plans, time records, letters to clients, meetings, depositions, and other work-related items. Bonnie was “extremely” well liked at work.

Another legal secretary, Marilyn Morgan, described Bonnie as “gracious, intelligent,” and never despondent or depressed. Although she was extremely busy with a heavy caseload, Bonnie was well organized. Morgan left the office at 6:30 p.m. on the night of Bonnie’s death. At that time, Bonnie was “upbeat”; she “came out and let [Morgan] know that things were going great.”

Jay Rutherford, an attorney who worked with Bonnie at both Jackson and Walker and Law, Snakard and Gambill, testified that he had a close relationship with Bonnie. Rutherford described Bonnie as “an outstanding person,” good hearted, very smart, articulate, and a role model for female' attorneys at the firm. According to Rutherford, Bonnie was neither despondent nor depressed, even under the pressures of a big federal trial. He considered Bonnie a “rising star” who gave presentations to the firm’s 200 attorneys at the annual firm retreat.

*698 Another Jackson and Walker attorney, Susan Halsey, described Bonnie as “an excellent lawyer. Very well respected,” who earned in excess of $100,000 per year. Bonnie was preparing to speak at a legal seminar and never appeared depressed, despondent, or anguished over anything at work.

One of Bonnie’s neighbors described her as “very sweet,” kind, intelligent, soft spoken, and pleasant. Patti Tavlian, a good friend of Bonnie’s since high school, testified that she met Bonnie for lunch about six to eight months before Bonnie’s death. According to Tavlian, Bonnie enjoyed life “extremely much,” but was upset that day because she was planning to leave appellant. Bonnie had packed her van with her clothes and shoes and planned to check into a hotel after lunch. Tavlian testified that Bonnie said she was afraid of appellant but worried about what her family would think if her second marriage failed. Bonnie returned to appellant.

B. Appellant

Witnesses testified that appellant was also pleasant when he was sober, but that he became obnoxious or violent when drunk. Pierre Peterman, a neighbor who lived across the street from the Horineks, described appellant as “a nice guy.” However, appellant was often intoxicated, and Peter-man did not like to be around appellant when he was intoxicated. Appellant contracted with Peterman to repair some holes in the sheetrock in the Horineks’ home. One hole was in the wall above the bed in the master bedroom. After examining the hole, Peter-man asked appellant if it was a bullet hole, and appellant responded, “Yeah.” Appellant then related to Peterman how appellant had shot at Bonnie one night while Bonnie was in bed. Appellant said he was trying to get Bonnie’s attention and scare her. Peterman estimated that the bullet hole was 16 to 20 inches above the pillow and that the incident occurred eight months to a year before Bonnie’s death.

Kim Brooks, a former next-door neighbor of the Horineks, testified that she heard a loud male voice and three or four gunshots from the Horineks’ house after midnight on May 12, 1992 and called the Benbrook police. Benbrook police officer Jerry Graham testified that he also heard a series of shots early that morning while on patrol. As he tried to determine the location of the shots, he was dispatched to the Horineks’ house. Through a sliding glass door of the house, Graham saw appellant and a woman inside. Graham knocked on the door and identified himself. Appellant walked to the door, looked out at Graham, and closed the blinds on the door. Appellant was pacing, acting nervous. Graham again knocked and identified himself, and appellant finally opened the door. Appellant was extremely intoxicated and evasive about the gunfire, responding “[n]ot really,” when Graham asked if he knew anything about it. Appellant eventually identified himself as a Fort Worth police officer and claimed he was showing Bonnie how to shoot a gun when it discharged into the swimming pool. Appellant claimed there was only one shot, which was inconsistent with what Brooks and Graham had heard. No arrests were made, as Bonnie did not appear to be in danger.

Holly Murtaugh, a Fort Worth police officer, went through the police academy with appellant and was a friend of the Horineks. She testified that one night at a dinner party at the Horineks’ house, appellant complained that a neighbor once called the police after appellant played with firecrackers in the backyard.

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Cite This Page — Counsel Stack

Bluebook (online)
977 S.W.2d 696, 1998 WL 304343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horinek-v-state-texapp-1998.