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Date: 08-13-2019

Case Style:

Kenneth Dean Martin v. The State of Texas

Case Number: 01-18-00445-CR

Judge: Peter Kelly

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Steven Waller Conder
Joseph Wilson Spence
John Burt

Defendant's Attorney: J. Warren St. John

Description:





Kenneth Dean Martin married Linda Martin in September 1995. Together
they ran an HVAC business from their home in Flower Mound, Texas. Linda also
worked as a real estate agent in the area. In September 2015, the couple separated
at Linda’s request, and divorce proceedings began. Kenneth moved out of the
house while Linda remained. Some time after, Kenneth discovered that Linda was
dating a younger man. The two men had a physical altercation at Kenneth and
Linda’s house, where Linda resided. The other man was charged with assault, but
the charges were dismissed.
While the divorce was pending, Linda expressed worry and fear that
Kenneth might hurt her. She told her daughter that she did not feel safe in her
home. She installed a home alarm system and told the technician that she was
concerned about her safety because of Kenneth. She told her sister, her friends, and
a neighbor that she was worried Kenneth might kill her.
3

On May 31, 2016, Kenneth and Linda attended a divorce mediation at her
attorney’s Southlake office. Kenneth signed an agreement giving Linda their
house, ranch, and $200,000, while he kept their business. Linda did not agree to the
division and would not sign the agreement. They left the law office and got in their
cars. While driving out of the parking lot, Kenneth saw Linda driving away in her
car. He drove up behind her at a red light, got out of his car, walked up to her car
with his .40 caliber Taurus handgun drawn, tapped on the driver’s side window,
and fired one shot through the window. He fired more rounds, some into the
ground, before throwing the gun aside.
Witnesses in surrounding cars and the nearby shopping center observed the
incident. After the shooting, they saw Kenneth go back to his car and retrieve a
large manila envelope of papers. He returned to Linda’s car, punched the glass out
of the window, touched her face and moved her head, and forcefully threw the
envelope at her.
Kenneth sat on the curb and called Linda’s daughter to tell her that he shot
Linda. He told her that he would not have shot Linda if she had rolled down her car
window. He called 911 and told the operator the same information. The Southlake
police arrested Kenneth when they arrived. They found Linda immobile in her
Jeep. She was transported to the hospital with a gunshot wound to her face. Linda’s
4

injuries were fatal, and the hospital staff provided her with comfort care until she
died.
Dr. Nizam Peerwani conducted an autopsy the next day. Linda had a
gunshot entry wound at her cheek. The bullet traveled to the base of her skull,
severing her left artery and causing significant bleeding. She also had injuries from
the shattered glass, indicating the bullet went through the window before striking
her. Dr. Peerwani opined that Linda had no chance of surviving the injury. He
classified her death as a homicide caused by a gunshot wound to the left cheek.
The police recovered Kenneth’s gun and shell casings from the ground near
Linda’s car. Firearms examiner Jamie Becker verified that the shell casings came
from the .40 caliber Taurus recovered at the scene, and the bullet recovered from
Linda’s skull came from the same gun. Becker tested the gun and determined that
it was operating as designed with a normal pull trigger. At trial, she stated that the
gun was capable of causing serious bodily injury or death.
Kenneth was indicted for murder, and the case was tried to a jury. The jury
found Kenneth guilty and assessed punishment at 20 years’ imprisonment. The
court sentenced Kenneth in accordance with the jury’s verdict, and he appealed.
5

Sufficiency of the Evidence
In his first issue, Kenneth asserts that the evidence is insufficient to support
his murder conviction because he did not intentionally or knowingly kill Linda. We
disagree.
A. Standard of Review
When reviewing the sufficiency of the evidence to support a conviction, we
consider all evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The trier of fact is
the sole judge of the weight and credibility of the evidence so we may not
reevaluate those determinations and substitute our judgment for that of the
factfinder. See TEX. CODE CRIM. PROC. art. 38.04; Blea v. State, 483 S.W.3d 29, 33
(Tex. Crim. App. 2016). A factfinder is entitled to “believe all, some, or none of
the testimony presented by the parties.” Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991). We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution. Murray v.
State, 457 S.W.3d 446, 449–50 (Tex. Crim. App. 2015). We determine whether the
necessary inferences are reasonable based upon the cumulative force of the
6

evidence when viewed in the light most favorable to the verdict. Id. at 448; see
Blea, 483 S.W.3d at 33.
B. Applicable Law
A person commits murder if he (1) intentionally or knowingly causes the
death of an individual or (2) he 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 § 19.02(b)(1), (2). Murder is a “result of conduct” offense, which
means that the culpable mental state relates to the result of the conduct, causing the
death. Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003); Gomez v.
State, 499 S.W.3d 558, 562, (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). A
person acts intentionally when it is his conscious objective or desire to engage in
the conduct or cause the result. TEX. PENAL CODE § 6.03(a); Reyes v. State, 480
S.W.3d 70, 76 (Tex. App.—Fort Worth 2015, pet. ref’d). A person acts knowingly
when he is aware that his conduct is reasonably certain to cause the result. TEX.
PENAL CODE § 6.03(b); Reyes, 480 S.W.3d at 76–77. Direct evidence of intent is
not required. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). A jury may
infer the intent to kill from any evidence that it believes proves the existence of
that intent, including the accused’s use of a deadly weapon. Brown v. State, 122
S.W.3d 794, 800 (Tex. Crim. App. 2003). A jury may also infer intent or
knowledge from circumstantial evidence, such as acts, words, and the conduct of
7

the defendant. Hart, 89 S.W.3d at 64 ; see also Laster v. State, 275 S.W.3d 512,
524 (Tex. Crim. App. 2009) (“[O]ne’s acts are generally reliable circumstantial
evidence of one’s intent,” (quoting Rodriguez v. State, 646 S.W.2d 524, 527 (Tex.
App.—Houston [1st Dist.] 1982, no pet.))). When a deadly weapon is fired at close
range, and death results, the law presumes an intent to kill. Scholars v. State, 312
S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
C. Analysis
The jury heard sufficient evidence from which it could have concluded that
Kenneth murdered Linda. The jury heard from multiple witnesses that Kenneth
was upset before he attended the mediation. He was upset at the prospect of
dividing their property and because Linda was in a new relationship. Kenneth
testified that on the day of the murder he was angry when Linda rejected his
settlement offer, which gave her multiple properties and cash. Kenneth testified
that he pulled directly behind Linda’s car at a stoplight and walked up to her car,
while another car was in front of hers, blocking her in. Nearby observers testified
that Kenneth walked up with his handgun drawn, tapped on her window, and fired
without hesitation. After discarding the gun, he retrieved a manila envelope of
papers, returned to Linda’s car, punched out the window, shook Linda’s head, and
threw the folder at her. Kenneth told 911 and his stepdaughter that he shot Linda.
He also admitted shooting her to police. The evidence showed that Linda’s death
8

was caused by a single gunshot wound that severed an artery. The bullet recovered
from her skull matched the gun recovered at the scene, and the gun was operating
normally and would not have discharged without pulling the trigger.
At trial and on appeal, Kenneth argues that he did not know he had the gun
with him when he got out of the car, that he did not know he pulled the trigger, and
that he did not realize he was shooting Linda. The jury was free to disbelieve his
testimony. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (“The jury
may choose to believe some testimony and disbelieve other testimony.”); see also
Carmon v. State, 456 S.W.3d 594, 604–05 (Tex. App.—Houston [1st Dist.] 2015,
pet. ref’d) (holding evidence sufficient to support jury’s finding that defendant
intentionally murdered two victims even though defendant claimed shootings
accidental because jury had power to resolve conflicts in testimony). The evidence
presented allowed jurors to conclude that Kenneth intentionally or knowingly shot
Linda at a close range or that he committed an act clearly dangerous to human life
that caused her death. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App.
2014) (stating the jury may use common sense and apply knowledge, observation,
and experience gained in ordinary affairs when drawing inferences such as intent
from the evidence). We overrule appellant’s first issue.
9

Denial of Motion for Mistrial
In his second issue, Kenneth complains that the trial court abused its
discretion in denying his oral motion for a mistrial. Kenneth made the motion after
Linda’s sister’s testimony included details the trial court previously excluded. The
trial court sustained Kenneth’s objection and instructed the jury to disregard the
testimony.
A. Standard of Review
We review the denial of a motion for mistrial under an abuse of discretion
standard. See Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011) (citing
Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004)). We note that
mistrial is viewed as an extreme remedy that is reserved for a very narrow
classification of circumstances involving highly prejudicial and incurable errors.
See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Mistrial is to be
used to halt proceedings when the error involved makes the expenditure of further
time and expense wasteful and futile. See id. A trial court’s decision to deny a
motion for mistrial will be upheld when, if viewing the evidence in the light most
favorable to the denial, it was within the zone of reasonable disagreement. See id.
When the trial court gives a prompt instruction to disregard the testimony at issue,
this ordinarily will cure any prejudice arising from the testimony. See Ovalle v.
State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam).
10

B. Analysis
Kenneth complains about the testimony of Linda’s sister, Cindy Church.
Before Church testified in front of the jury, the trial court ruled that she could not
say that, in 1999 Linda told her that Kenneth would be responsible if she ever
ended up hurt or dead. The trial court limited the testimony to Linda’s expression
of fear to Church in 1999. Despite the limitation, the testimony was:
[The State]: Did [Linda] ever express to you any fear that she would be killed by [Kenneth]?
[Church]: Yes, in 1999, when I didn’t know anything about – anything going on in the marriage, she just told me that if she ever ended up hurt –
[The State]: No, no, ma’am.
[Defense counsel]: Judge, I’m going to object.
[Court]: Sustained.
[Church]: I’m sorry. I’m sorry.
[Defense counsel]: Ask that the jury be instructed to disregard.
[Trial court]: Jury will disregard the last statement of the witness.
[Defense counsel]: And, unfortunately, I have no other option but to request a mistrial.
[Trial court]: Denied.
To determine whether the trial court abused its discretion in denying
Martin’s mistrial motion, we apply the three Mosley factors which balance: (1) the
11

severity of the misconduct, (2) the measures adopted to cure the misconduct, and
(3) the certainty of conviction absent the misconduct. Hawkins, 135 S.W.3d at 75
(citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on
reh’g)).
Here, the misconduct was not severe and the court took steps to cure it
immediately. The prosecutor’s question did not call for the excluded testimony,
Church was interrupted before completing her response, and the court immediately
instructed the jury to disregard it. See Ludwig v. State, 428 S.W.3d 344, 350–51
(Tex. App.—Amarillo 2014, no pet.) (misconduct not severe when State’s question
did not call for complained-of response and response was addressed with jury
instruction to disregard). Other than the truncated comment, the State did not
mention the evidence again. See Hawkins, 135 S.W.3d at 83 (misconduct not
severe when improper statement was isolated incident); see also Delacerda v.
State, 425 S.W.3d 367, 388–89 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
(misconduct regarding inadmissible evidence not severe where statement was not
emphasized or mentioned during closing argument). Finally, the strength of the
evidence absent the testimony supports the conclusion that the trial court did not
abuse its discretion in denying the motion for mistrial. The record contained
evidence that: Kenneth and Linda were in a contentious divorce; Linda had
expressed worry that Kenneth would hurt her to other friends and family; on the
12

day of the shooting, Kenneth was angry because Linda refused to sign a settlement
offer regarding their marital property; Kenneth walked up to Linda’s car and shot
her; he admitted to multiple people that he did so; Linda suffered a fatal gunshot
wound to her face that caused her death. It is highly unlikely that Church’s
interrupted reference to Linda’s 1999 statement had an effect sufficient to warrant
a mistrial. See Gomez v. State, 552 S.W.3d 422, 428–29 (Tex. App.—Fort Worth
2018, no pet.) (police officer’s reference to previous family violence did not
warrant a mistrial where significant evidence demonstrated defendant’s guilt).
We overrule Kenneth’s second issue.

Outcome: We affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

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