Davis v. State, 05-90-00871-CR

• Decision Date: 11 December 1991
• Docket Number: No. 05-90-00871-CR,05-90-00871-CR
• Citation: 822 S.W.2d 207
• Parties: Anthony Desean DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 207

822 S.W.2d 207

Anthony Desean DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 05-90-00871-CR.

Court of Appeals of Texas Dallas.

Dec. 11, 1991.

Rehearing Denied Jan. 22, 1992.

Gary A. Udashen, Dallas, for appellant.

Sharon Batjer, Dallas, for appellee.

Before ROWE, THOMAS and BURNETT, JJ.

OPINION

BURNETT, Justice.

Anthony Desean Davis appeals his conviction for murder. After a jury trial, the trial court set punishment at thirty years' confinement in the Texas Department of Criminal Justice, Institutional Division. In five points of error, Davis asserts (1) that he received ineffective assistance of counsel and that the trial court erred when it (2) failed to limit the definition of knowingly and intentionally to the result of the conduct in the jury charge, (3) failed to charge the jury on the lesser included offense of aggravated assault, and (4) determined that the State's explanations for striking two venirepersons were racially neutral. We overrule Davis's points of error. We affirm the trial court's judgment.

FACTS

On January 12, 1990, Dallas Police Officer Mitchell Gatson responded to a call concerning a dead body. When he arrived at the body's location, a twenty-acre pasture, he was met by a neighbor of the property's owner. The neighbor had found the body lying in the pasture behind his house at the bottom of a hill. The deceased's clothes were torn and one of his legs appeared broken. Officer Gatson observed drag marks coming down the hill and light spots of blood trailing from the hilltop.

Dallas Police Detective William Hamilton also responded to a call concerning the dead body. After identifying the deceased as Daniel Jackson, he interviewed Jackson's wife. She informed him that a neighbor had already told her about her husband's death. The detective told her that he wanted to talk to the person who told the neighbor about the homicide. As a result, Darrin Williams contacted the police the next day and gave them the names of the three people involved in the shooting--Anthony Davis, Chris, and "Man"--and told them the name of the apartment complex where they could be found. The police obtained a photograph of Davis, placed it in a six-photo lineup, and showed it to Williams. Based on Williams's review of the photo lineup, the police obtained a murder warrant for Davis and a search warrant for the apartment where Davis, Chris, and Man had been staying. As a result of the search, the police recovered a handgun and some photographs.

Continuing their investigation, the police obtained Christopher Brewster's name as a possible suspect. They got Brewster's photograph, put it in a six-photo lineup, and showed it to Williams. Based on Williams's review of this lineup, the police issued an arrest warrant for Brewster. At that time, the police already had Davis in custody. Several days later the police arrested Brewster. The police never arrested Man.

The investigation continued, and the police questioned a man named Billy Kelly, Davis's cousin, when they saw him wearing a cap with the name "Man" written on it. Kelly explained that he obtained the cap after Man had inadvertently taken Kelly's cap when they were both at Davis's apartment. Kelly testified that at various times he had seen both Brewster and Man at Davis's apartment and that he had seen both of them with guns at the apartment. Kelly also testified that after Davis's arrest, Davis called him and told him that he had killed someone. Davis also told him that he had killed the individual over money.

Williams testified that on the morning of January 11, he went to Davis, Brewster, and Man's apartment to buy drugs from them. When no one answered the door, he went across the street to a second apartment complex, where he met Jackson, who took him to an apartment to purchase crack cocaine. The two men then smoked the crack in Jackson's wife's car.

At approximately 5:00 p.m., they wanted some more drugs and decided to "rent" Jackson's wife's car to Davis, Brewster, and Man in exchange for the drugs. At this time a man named Ricky joined them. They then went to the apartment, and Jackson rented Davis the car for a small quantity of crack cocaine. After completing the deal, Davis discovered that Ricky owed him some money and asked Jackson if he intended to pay Ricky's debt. Jackson said he had nothing to do with the matter. Williams and Jackson then left on foot, leaving Jackson's wife's car keys with Davis. Ricky remained at the apartment.

Approximately three or four hours later, Williams returned to the apartment to get Jackson's wife's car. When he knocked on the door, Brewster answered and grabbed him by the neck. Brewster pointed a gun at Williams and asked him where the other individual was. Williams thought Brewster was referring to Jackson. Davis, Brewster, and Man, along with Williams, got into the car and drove to Jackson's location. Brewster and Man both had guns. Jackson was forced into the car, and Davis started driving around. Brewster threatened Williams and Jackson, and both men pleaded for their lives. Davis finally pulled over in a wooded area, and all the men got out of the car. After Davis got out of the car, he also pulled out a gun. Jackson kept saying he did not want to die and suddenly broke away and ran. Williams then saw all three guns fire at Jackson, after which Williams also began running. When he heard Jackson shout, Williams looked back and saw Jackson fall on the ground. Williams managed to flee.

The medical examiner, Dr. Charles Odom, testified that Jackson had two gunshot wounds to his legs. One bullet had produced lower right leg fractures, which had torn a major artery. The other bullet entered at the back of Jackson's left knee. Dr. Odom opined that the right leg wound caused Jackson's death. He also observed abrasions and scratches on Jackson's arms and chest. In Dr. Odom's opinion these occurred around the time of Jackson's death and were caused by contact with a rough, blunt surface or by falling into or crawling over barbed wire. Dr. Odom also found cocaine in Jackson's system in an amount consistent with recreational use. Finally, Dr. Odom opined that if Jackson had received prompt medical attention, he probably would not have died from his injuries.

Defense Testimony

Brewster testified that at approximately 5:00 p.m. on January 11, Williams and Jackson came by Davis's apartment to rent them Jackson's wife's car for $30. When Williams and Jackson came to get the car about 8:30 p.m., Man arranged to rent the car. Williams, Jackson, and Man then left in the car together. They returned at 9:00 p.m. and picked up Brewster. Brewster did not have a gun, and he never saw Davis with a gun. Man drove, and Brewster became nervous when Man started asking Jackson about some missing money. Man finally stopped the car and everyone got out. As Brewster observed the other three men talking, Jackson suddenly broke away from the group and started running. Man fired his gun at Jackson. At that point, Brewster also ran away. After the shooting, he saw Williams and Man drive off. Brewster denied that he ever shot Jackson. Brewster further testified that Man's real name was Marcus Hill, and that he was shot and killed on January 14.

Rhonda Cole, Brewster's aunt, testified that at approximately 10:00 p.m. on the night of the shooting, she went to Davis's apartment. Brewster came in after she arrived and appeared "very scared" and "looked like he was about to cry." She walked with him to calm him down and it took over half an hour before Brewster would talk to her. She also testified that she never saw Brewster carry a gun.

Davis did not testify on his own behalf. Davis, however, presented testimony from Kelly and two of his friends that Williams had told them that Davis had aimed his gun up in the air while the other two men shot at Jackson's legs. In rebuttal, Williams denied that he ever told Kelly or his friends that Davis had aimed his gun in the air rather than at Jackson during the shooting.

BATSON ERROR

In his third and fourth points of error, Davis relies on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to argue that the trial court erred when it allowed the State to strike venirepersons numbers 26 and 30, because the State's explanations for striking these venirepersons were not racially neutral. Under Batson, the defendant must establish a prima facie case that the State purposefully discriminated against members of his own race in the exercise of its peremptory challenges. Batson, 476 U.S. at 93-94, 106 S.Ct. at 1721-1722. To establish a prima facie case, the defendant must show that (1) he is a member of a cognizable racial group, (2) the prosecutor exercised peremptory challenges to remove prospective jurors of Davis's race, and (3) these facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude venirepersons based on race. Batson, 476 U.S. at 96, 106 S.Ct. at 1722; Henry v. State, 729 S.W.2d 732, 734 (Tex.Crim.App.1987). Once the defendant establishes a prima facie case, the burden shifts to the State to come forward with a race-neutral explanation for challenging the African-American venireperson. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. If the State presents genuine race-neutral explanations for using its peremptory challenges, the burden then shifts back to the defendant to persuade the trial court by a preponderance of the evidence of the factual truth of his purposeful discrimination allegations. Straughter v. State, 801 S.W.2d 607, 613 (Tex.App.--Houston [1st Dist.] 1990, no pet.). The defendant must do more than simply state his disagreement with some of the State's explanations; he must prove affirmatively that the State's race-neutral explanations were a sham or pretext. Id.

In reviewing the findings of the trial court on Batson issues, this Court follows the clearly erroneous...