MARK ALLEN DICKEY v. THE STATE OF TEXAS

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Court of Appeals of Texas, Houston (1st Dist.).

MARK ALLEN DICKEY, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-15-00835-CR

Decided: March 28, 2017

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

MEMORANDUM OPINION

A jury convicted appellant, Mark Allen Dickey, of murder and assessed punishment at 35 years' confinement, plus a $5,000 fine. In his sole issue on appeal, appellant contends the evidence is legally insufficient to support his conviction. Specifically, appellant asserts that the State did not prove the requisite culpable mental state beyond a reasonable doubt. We affirm.

BACKGROUND

On June 15, 2013, at 7:31 p.m. appellant called the Webster Police Department dispatcher from the bathroom of NASA Flowers regarding an armed robbery in progress, claiming that he had heard a gunshot in the store. The police officers arrived at the flower shop to find Brenda Dickey, who was the shop owner and appellant's mother, lying unconscious in front of a floor safe in a small office with a gunshot wound in the back of her head. The stippling on her head indicated that she was shot from a distance of 6 inches to 2 feet. A fired .380 Winchester cartridge casing was on the office desk.

Appellant was found behind a closed bathroom door, and was escorted out of NASA Flowers by Webster police officer C. Murphy, who did not believe that appellant's tears at the time were genuine. Officer Murphy also felt that it was unusual that appellant did not make any attempt to check on his mother on his way out.

The police investigated the case as an armed-robbery case and did not find any sign of struggle or intrusion in and around the building. A moneybag and some coin rolls were still in the safe in the office where Brenda Dickey was shot, and the cash register in the main showroom was undisturbed. Brenda Dickey was treated by EMS and lifeflighted to Hermann Hospital, where she died that evening.

Webster Police CSU Officer J. Cooper swabbed appellant's hands for gunshot residue, but appellant said that he had washed his hands and face before the police arrived.

Appellant was interviewed by police three times immediately after the shooting. During his first interview with Detective G. Schilter, appellant insisted that the incident was a robbery.

Before a second interview, police found $1946 cash in a wicker basket under the sink of the bathroom where the appellant had been hiding and a fired cartridge casing on the desk in the room with Brenda Dickey's body. When asked again about the incident during the second interview, appellant neither changed his story nor offered any explanation for the cash under the sink in the bathroom or the fired cartridge casing.

Between the second and third interview of appellant, police found a toolbox in a plastic storage bin outside the office containing a .380 Bersa semiautomatic pistol in firing position, a gray hoodie, a Harley Davidson glove that tested positive for gunpowder residue, and an unfired cartridge. The gun had five rounds in the magazine and another in the chamber. Appellant's DNA was found on the gun, glove, and the hoodie. At this point, police began to consider that the case might be a murder, not a robbery.

In his third interview with police, appellant did not ever “back off his story and change his story to that of an accident,” nor was he able to explain the evidence police had found. Appellant asked Detective Schilter whether he needed an attorney towards the end of the interview. Even though appellant had not requested counsel, Schilter terminated the interview.

An employee of NASA Flowers, Samantha Vercellino, testified that Tuesday, after the shooting on Saturday, she visited appellant's house to pick up paychecks. At that time appellant told her that “he had tripped over a bar and that his mother's gun was jammed and he was trying to help her[,] [a]nd when he tripped the gun went off.” Another co-worker, Rene Johnson, also testified that, about a week after the shooting, appellant told her that “something went wrong and it wasn't supposed to happen that way.” During the same conversation, appellant asked Johnson whether she was interested in purchasing the flower shop.

Charges were filed against appellant, who surrendered to the Webster police a week later. He never changed his story to police about the shooting being an accident rather than a robbery.

At trial, however, appellant testified that, on the day of the shooting, his mother, who had a concealed handgun license, asked him to dislodge a cartridge that was jammed in her gun. Appellant testified that, even though he had little experience with handguns, he attempted to do so. He said that he went to his car to get a workout glove to use to help him better grip the slide. When he dislodged the fired cartridge, it fell to the floor, so he picked it up and placed it on his mother's desk. His mother then told him to uncock the gun by pulling the trigger and releasing the hammer. When he did so, the gun discharged, striking his mother in the center of the back of her head. He testified that he did not remember anything else until he emerged from a “fog” after this third interview with Schilter. At no time during his testimony did appellant mention tripping over a bar and causing the gun to discharge. He claimed not to remember calling the police to report a robbery or hiding the money, the gun, the hoodie, or the unfired cartridge that was discovered along with the gun.

After Brenda Dickey's death and before trial, appellant spent around $200,000.00 on his family and children, surgeries, Apple iTunes, clothes, and outings to bars and adult clubs. Part of that amount came from Michael Dickey, appellant's brother, who gave appellant between $130,000.00 to $135,000.00. Michael Dickey was the beneficiary of Brenda Dickey's insurance policies because, after her death, appellant, who had been the sole beneficiary to two of the policies, waived his right to any of her insurance money.

There was also evidence that appellant was in the process of divorcing his wife, an attorney, who earned between $120,000 and $160,000 per year. At the time of the shooting, appellant was making $1000 per week working at his mother's flower shop. However, she was planning to close the flower shop because it had become too much for her. Appellant argues that these plans did not “portend financial ruin,” and presented evidence from his ex-wife that she believed that he was “marketable” based on his prior experience as a restaurant manager.

At trial, appellant presented an expert witness, forensic psychologist Dr. Shawanda Williams Anderson, who diagnosed appellant with acute stress disorder, a symptom of which is a dissociative episode after the triggering event, during which the person has difficulty remembering things before and after the event. Anderson she said this diagnosis would explain appellant's erratic behavior at the time of the shooting. In accord with her diagnosis, appellant testified that he was in a “fog” from the time of the shooting until the third interview. He did not deny calling the police and claiming there was a robbery, or hiding money, the gun, and other evidence retrieved from the scene, he just did not remember doing so.

The State presented an expert on rebuttal, Dr. Christine Reed, who disagreed with Dr. Anderson's diagnosis. Specifically, she pointed out that Anderson did not adequately address the issue of malingering.

The jury, having heard the evidence from both parties, found appellant guilty of murder and assessed punishment at 35 years' confinement and a $5,000 fine. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

In his sole issue on appeal, appellant contends as follows:

The evidence is insufficient to support the appellant's conviction for murder because the requisite culpable mental state was not proven beyond a reasonable doubt.

Standard of Review and Applicable Law

When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only standard to use when determining sufficiency of evidence). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd) (stating jury can choose to disbelieve witness even when witness's testimony is uncontradicted). We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the jury's credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“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.”).

A person commits the offense of murder if such person “intentionally or knowingly causes the death of an individual” or “intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (West 2011). 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) (West 2011). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Id. § 6.03(b). 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.

Direct evidence of the requisite culpable mental state is not required. See Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Tottenham v. State, 285 S.W.3d 19, 28 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (“[P]roof of a culpable mental state almost invariably depends on circumstantial evidence.”). A defendant's culpable mental state can be inferred from his acts, words, and conduct. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); see also Hart, 89 S.W.3d at 64 (stating that intent and knowledge can be inferred from “any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime and from the nature of the wounds inflicted on the victims”) (quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)).

The jury may infer intent or knowledge from the use of a deadly weapon during the commission of the offense. See Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003) (stating that jury may infer intent to kill from use of deadly weapon); Dominguez v. State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). When the evidence demonstrates that a deadly weapon was used in a deadly manner, the inference that the defendant intended to kill is almost conclusive. Pitonyak v. State, 253 S.W.3d 834, 844 (Tex. App.—Austin 2008, pet. ref'd) (citing Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986)).

Analysis

Appellant claims that there is insufficient evidence of his intent to kill because (1) he and his mother had an “awesome” relationship; (2) he had no “immediate financial problems”; (3) he had no motive to kill his mother; (4) he was inexperienced with guns and was simply “follow[ing] his mother's instructions to pull the trigger and release the hammer to uncock the weapon”; (5) he fired the gun only once; and (6) he did not flee.

However, these arguments consider the evidence in the light most favorable to appellant, not in the light most favorable to the State, as we must. Here, appellant gave inconsistent statements about the event. First, he claimed that there was a robbery at the flower store, as indicated in his 911 call to the police to report the crime. Appellant persisted in his robbery claim during his second and third interviews, but he did not explain how $1946 in cash came to be under the sink in the bathroom in which he was hiding, or how a gun, hoodie, and glove with his DNA on them came to be hidden in a toolbox in the store. After he told the police his robbery story, appellant told Samantha Vercellino that he tripped over a metal bar while trying to unjam the gun for his mother and the gun went off. But, at trial, appellant did not mention tripping, claiming instead that he pulled the trigger because his mother told him to do that in an effort to unjam the gun.

There was physical evidence linking appellant to the crime. Police discovered a gun, a glove, a hoodie, and an unfired cartridge hidden in a toolbox in the flower shop. Appellant's DNA was on the gun, the glove, and the hoodie.

And, while appellant points out that he did not flee the scene of the crime, there was evidence that he initially attempted to make the scene appear to be a robbery, as evidenced by his phone call to 911, the money that he had taken and hidden in the bathroom, and his statements to police.

Appellant argues that he had no motive to shoot his mother, but there was evidence that appellant was going through a divorce from his wife, who made significantly more money than he did. Appellant's mother was also planning to sell her flower shop, which was appellant's current source of income. And, after the shooting, appellant waived his interest in his mother's insurance policies, making his brother the sole beneficiary. Shortly thereafter, his brother gave him between $130,000.00 to $135,000.00. Based on this, the jury could have believed that appellant had a financial motivation to shoot his mother.

The State presented evidence that, between the shooting and the time of the trial, appellant spent approximately $200,000, even though he was unemployed. Some of the money was spent on his family, but some was spent on clothes, restaurants and bars, and adult men's clubs.

Finally, the jury could have disbelieved appellant's expert, who testified that appellant experienced a “dissociative episode” after the shooting, thereby rejecting appellant's contention this episode was what caused him to make up the story about the robbery, something he claimed not to remember doing.

Summary

From the physical evidence at the scene, plus the circumstantial evidence detailed above—particularly appellant's initial, and later recanted, claims that the shooting was a robbery—a rational jury could have concluded that appellant had the requisite culpable mental state, i.e., that he “did then and there unlawfully, intentionally and knowingly cause the death of BRENDA DICKEY ․ [.]”

Accordingly, we overrule appellant sole point of error.

CONCLUSION

We affirm the trial court's judgment.

Sherry Radack Chief Justice