Richard Ray Pence II v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 9, 2023
• Docket: 05-22-00637-CR
• Status: Published

Opinion

AFFIRM; and Opinion Filed August 9, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00637-CR

RICHARD RAY PENCE, II, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 072811

MEMORANDUM OPINION Before Justices Molberg, Carlyle, and Smith Opinion by Justice Smith Appellant Richard Ray Pence, II appeals his conviction for the murder of his

wife Pamela Pence. In a single issue, appellant contends that the evidence is

insufficient to support his conviction and, specifically, to prove that he (1)

intentionally or knowingly caused Pamela’s death, (2) intended to cause serious

bodily injury, or (3) committed an act clearly dangerous to human life. We affirm

the trial court’s judgment. Background

Appellant was charged by indictment with Pamela’s murder in alternative

paragraphs. The paragraphs, which tracked Texas Penal Code section 19.02, alleged

that appellant did:

(1) intentionally and knowingly cause the death of . . . Pamela . . . by hitting or striking her body, head, or face with his hand, foot, or other object unknown to the Grand Jury;

(2) with intent to cause serious bodily injury to . . . Pamela . . ., commit an act clearly dangerous to human life that caused the death of [Pamela] by hitting or striking her body, head, or face with his hand, foot or other object unknown to the Grand Jury; or

(3) commit or attempt to commit an act clearly dangerous to human life, namely hitting or striking Pamela . . . in her body, head, or face with his hand, foot, or other object unknown to the Grand Jury, that caused the death of Pamela . . ., and [appellant] was then and there in the course of committing a felony, namely Assault Causing Bodily Injury Family Violence with Previous Conviction, and the death of [Pamela] was caused while [appellant] was in the course of and in furtherance of the commission or attempt of the felony.

Appellant pleaded not guilty, and the case was tried to a jury.

The evidence at trial showed that the Pences lived in Southmayd, Grayson

County. Between 7:00 a.m. and 8:00 a.m. the morning of September 26, 2020, a

neighbor, Jose Venegas, observed the Pences arguing. Venegas saw Pamela walk

back into her house carefully, like something hurt. Venegas then heard “banging the

walls and all.” At approximately 8:30 a.m., another neighbor, Arthur Newton, heard

a woman’s voice, which he thought came from the Pences’ house, saying “No. No.

–2– No. Don’t. Stop.” Both Venegas and Newton had overheard “a lot” of arguments at

the Pences’ house. This argument was different, according to Newton, because it

appeared to be “short and done.”

Around 10:00 or 11:00 a.m., Ricky Pence, III, the Pences’ adult son, arrived

to help appellant move some “stuff.” Appellant met him at the back door, and they

talked outside for a couple of hours. Appellant stopped Ricky from entering the

house and seemed “kind of off.” Appellant subsequently entered the house and,

when he returned, told Ricky he thought Pamela was dead.

Ricky entered the house and found Pamela lying on the kitchen floor.

Appellant told Ricky that he did not want to go back to jail and asked Ricky to kill

him. He also tried, unsuccessfully, to prevent Ricky from calling 9-1-1. Appellant

could be heard apologizing to Ricky in the background of the 9-1-1 recording.

Appellant then left in his truck.

Grayson County Trooper Michael Landeros, the first peace officer at the

scene, testified that the house was disheveled and Pamela had been “brutally

assaulted.” Pottsboro Police Officer Steve Northington, the second to arrive,

testified that Pamela’s face was “pretty distorted” and it appeared that there was

“some kind of homicidal-type violence.”

Pottsboro Police Officer Travis Looney initiated the investigation at the

Pences’ house and observed holes in walls, busted sheetrock on the floor, and

damage to the underside of a bar top like someone had kicked it. There were bloody

–3– napkins everywhere, blood splatter on lower cabinets, and blood droplets on the

floor. Pamela’s face was unrecognizable; she was heavily swollen and looked as if

she had been hit by a car or a train. Brad Oliver, a Ranger with the Texas Department

of Public Safety, took over the investigation. Based on his observation of Pamela’s

injuries, he believed that she “died a horrible death from blunt force trauma, . . .

multiple blunt force trauma injuries to her body, from her head to her toes.”

Peace officers located appellant driving north on U.S. Highway 75 and pulled

him over. During transport to the police station, appellant stated, “it’s not supposed

to happen; it wasn’t intentional.”

Prior to his arrest, appellant phoned both a co-worker, Michael Spearman, and

his employer, Dwayne Hicks. Appellant told Spearman, “[I]t’s bad” and that he was

“going to prison.” Appellant explained that he had gotten into a fight with Pamela,

it got physical, and Pamela was dead. Appellant told Hicks that he would not be at

work on Monday and that “she’s dead,” she would not “shut up,” he choked her, and

he “didn’t mean to do it.” Appellant also called Ricky while Ricky was speaking

with Trooper Landeros; Landeros overheard appellant apologize.

Dr. Stephen Lenfest, a Dallas County medical examiner, performed an

autopsy on Pamela. The autopsy revealed a number of injuries consistent with recent

blunt force impacts. Those injuries included bruises scattered over the left side of

Pamela’s head, all over the right side of her head, on her right eye and cheek, and on

her left ear. The right side of her face was swollen. Her scalp was detached from

–4– her skull. There were contusions to her brain and swelling and bleeding in the soft

tissue of both sides of the brain. There were abrasions on Pamela’s forehead and the

left side of her face and head. There were lacerations to her nose, upper lip, the

inside of her lips, and on her gums. Her tongue was bruised, consistent with being

struck in the face or biting the tongue. According to Dr. Lenfest, there were multiple

impact points on Pamela’s head.

Pamela’s wrists, left hand, arms, thighs, and lower legs were bruised. There

were abrasions to her knees and bruising and swelling on her right ankle and foot.

Her right shoulder was dislocated. There were contusions to both collar bones and

her left lung. Her spleen was lacerated; the impact had been hard enough to break

tissue inside the spleen while the spleen remained intact. She suffered fractures to

the right second and sixth through eighth ribs and left sixth through tenth ribs. Her

eighth and ninth left ribs punctured her chest cavity. Dr. Lenfest testified that the

cumulation of all of the blunt force injuries to Pamela caused her death.

Dr. Lenfest testified that Pamela was approximately five feet tall and weighed

ninety-one pounds. Appellant weighed 250 pounds and stood five feet, ten inches

tall when he was booked into jail.

Ricky testified that his parents frequently argued, both verbally and

physically, for as long as he could remember. Both appellant and Pamela instigated

arguments, and alcohol was typically involved. Only appellant, however, was

physical, and Ricky had observed appellant strike, push, and kick Pamela.

–5– Pamela’s niece, Jennifer Hulette, testified to a 2006 incident when appellant

elbowed Pamela in the stomach and knocked her into some bushes. Another time,

Pamela arrived at Jennifer’s house in a wrist brace and asked if she could stay. Police

officer Jason Lurkins and Detective Troy Short testified that they had investigated

appellant for domestic violence in 2003 and 2006, respectively. As a result of those

investigations, appellant was convicted of several offenses.

After hearing the evidence, the jury found appellant guilty of murder and

assessed punishment at confinement for life. The trial court entered a judgment of

conviction on the jury’s verdict. Appellant filed a motion for new trial, which the

trial court denied, and this appeal followed.

Sufficiency of the Evidence

When reviewing the sufficiency of the evidence to support a conviction, we

consider whether, after viewing all of the evidence in the light most favorable to the

verdict, any rational factfinder could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Isassi v.

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We measure the sufficiency of

the evidence by the elements of the offense as defined by the hypothetically correct

jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). A 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

–6– of proof or unnecessarily restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried.” Id.

When conducting a legal sufficiency review, we consider all evidence in the

record regardless of whether it was properly or improperly admitted. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder to

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

from basic to ultimate facts. Jackson, 443 U.S. at 319; see also Merritt v. State, 368

S.W.3d 516, 525 (Tex. Crim. App. 2012); Isassi, 330 S.W.3d at 638. The factfinder

may choose to believe or disbelieve any part of any witness’s testimony. Wyatt v.

State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). “When the record supports

conflicting inferences, we presume that the factfinder resolved the conflicts in favor

of the prosecution and therefore defer to that determination.” Clayton, 235 S.W.3d

at 778.

A criminal conviction may be supported by both direct and circumstantial

evidence as well as all reasonable inferences that may be drawn from the evidence.

Id. “Circumstantial evidence is as probative as direct evidence in establishing the

guilt of an actor, and circumstantial evidence alone can be sufficient to establish

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

A person commits murder if he:

(1) intentionally or knowingly causes the death of an individual;

–7– (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

TEX. PENAL CODE ANN. § 19.02(b). “Murder is a ‘result of conduct’ offense, which

means that the culpable mental state relates to the result of the conduct, i.e., the

causing of the death.” Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App.

2003); see also Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012)

(citing Lugo-Lugo v. State, 650 S.W.2d 72, 82 (Tex. Crim. App. 1983) (op. on reh’g)

(noting the statute “focuses the mental state of the individual on the particular result

and not on the conduct that causes death”)).

A person acts intentionally with respect to a result of his conduct when it is

his conscious objective or desire to cause the result. TEX. PENAL CODE § 6.03(a). A

person acts knowingly 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). The test for

determining whether an act is clearly dangerous to human life is an objective one.

Lugo-Lugo, 650 S.W.2d at 81 (the act intending to cause serious bodily injury must

be “objectively clearly dangerous to human life”).

“Intent and knowledge are fact questions for the jury and are almost always

proven through evidence of the circumstances surrounding the crime.” Manrique v. –8– State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring). A jury

may infer a defendant’s intent by his acts, words, and conduct, as well as the method

he used to commit the crime, the nature of the wounds inflicted on the victim, and

the relative size and strength of the parties. Hart v. State, 89 S.W.3d 61, 64 (Tex.

Crim. App. 2002) (citing Manrique, 994 S.W.2d at 649); Patrick v. State, 906

S.W.2d 481, 487 (Tex. Crim. App. 1995).

Appellant asserts the evidence is insufficient to support his conviction because

the record is “void” of evidence that he intentionally or knowingly caused Pamela’s

death, intended to cause serious bodily injury, or committed or attempted to commit

an act clearly dangerous to human life. We disagree.

Appellant does not dispute that he caused Pamela’s death. There was

evidence indicating that appellant was angry with Pamela because, in his words, she

would not “shut up.” The jury reasonably could infer that his anger was a motive

for attacking Pamela and a circumstance indicating his guilt and culpable mental

state. See Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020) (citing

Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)).

The evidence also shows that appellant “brutally assaulted” Pamela. There

was a significant physical disparity between the two, and Dr. Lenfest testified that

Pamela’s injuries were not the kind of injuries seen in persons capable of defending

themselves. Dr. Lenfest concluded that the extensive injuries to Pamela’s head alone

were the result of “many different impacts” and it would have taken a “significant

–9– amount of force” to cause her injuries, particularly the separation of her scalp from

her skull and the fractures to her ribs. The jury could infer the extremely violent

nature of appellant’s behavior from the testimony about, and photographs showing,

Pamela’s injuries, the extent of blood throughout the kitchen, and the damage to the

Pences’ house. Given the manner in which appellant committed the offense and the

injuries he inflicted on a much smaller and weaker victim, a rational jury could have

found beyond a reasonable doubt that appellant attacked Pamela with intent to cause

her death, knew that such an attack could kill her, or, with intent to cause Pamela

serious bodily injury, committed an act clearly dangerous to human life that created

a substantial risk of death. See Patrick, 906 S.W.2d at 487; e.g., Tretter v. State, No.

03-12-00034-CR, 2014 WL 3893016, at *4 (Tex. App.—Austin Aug. 7, 2014, pet.

dism’d) (mem. op., not designated for publication) (jury could infer that defendant

intentionally or knowingly caused his wife’s death and intentionally caused her

serious bodily injury from the severity of her head trauma and other blunt force

injuries, which were consistent with multiple impacts and resulted from significant

and severe force, and from the size and strength differential between defendant and

his wife).

Appellant’s subsequent conduct also supports the jury’s verdict. He initially

prevented Ricky from entering the house, waited hours before telling Ricky of

Pamela’s death, and then fled. See Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.

Crim. App. 1994) (defendant’s flight from the scene, among other facts, supported

–10– jury’s finding of intent to kill). Indeed, the evidence shows that appellant’s priority

was to avoid returning to jail.

To support his argument that the evidence is insufficient, appellant points to

his expressions of remorse and statements indicating that he did not mean for Pamela

to die. The jury, however, in fulfilling its duty to resolve conflicting inferences in

the evidence, could have determined that appellant’s subsequent expressions of

remorse did not negate or rebut his intent to cause Pamela’s death or serious bodily

injury or his knowledge that his conduct was reasonably certain to cause her death.

See, e.g., Gipson v. State, No. 09-19-00275-CR, 2021 WL 3743838, at *3 (Tex.

App.—Beaumont Aug. 25, 2021, pet. ref’d) (mem. op., not designated for

publication) (jury could have decided that defendant’s remorse after stabbing victim

did not show he did not act intentionally or knowingly when the stabbing occurred).

Likewise, the jury was free to distrust appellant’s self-serving statements that he

“didn’t mean to do it” and it “wasn’t intentional” in light of the evidence indicating

otherwise. See, e.g., Jones v. State, No. 01-01-01233-CR, 2003 WL 21513051, at

*7 (Tex. App.—Houston [1st Dist.] July 3, 2003, pet. ref’d) (mem. op., not

designated for publication) (jury was free to disbelieve appellant’s statement that he

did not intend to kill victim).

Viewing all of the evidence in the light most favorable to the verdict, we

conclude that the jury rationally could have found that appellant caused Pamela’s

death with the requisite culpable mental state under penal code section 19.02(b)(1),

–11– (2), or (3). We further conclude that the jury reasonably could have drawn the

inferences necessary to establish that appellant’s conduct created a substantial risk

of death and, therefore, he committed an act clearly dangerous to human life.

Accordingly, we overrule appellant’s sole issue.

Conclusion

The trial court’s judgment is affirmed.

/Craig Smith/ CRAIG SMITH JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 220637F.U05

–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

RICHARD RAY PENCE II, On Appeal from the 397th Judicial Appellant District Court, Grayson County, Texas No. 05-22-00637-CR V. Trial Court Cause No. 072811. Opinion delivered by Justice Smith. THE STATE OF TEXAS, Appellee Justices Molberg and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 9th day of August, 2023.

–13–