Davis v. State

• Decision Date: 26 August 2008
• Docket Number: No. 2-07-177-CR.,2-07-177-CR.
• Citation: 268 S.W.3d 683
• Parties: James Anthony DAVIS, Appellant v. The STATE of Texas, State.
• Court: Texas Court of Appeals

268 S.W.3d 683

James Anthony DAVIS, Appellant v. The STATE of Texas, State.

No. 2-07-177-CR.

Court of Appeals of Texas, Fort Worth.

August 26, 2008.

Richard Alley, James R. Wilson, Patrick J. Garner, Fort Worth, for Appellant.

Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Edward L. Wilkinson, Sean Colston, Asst. Crim. Dist. Attys., Fort Worth, for the State.

PANEL: LIVINGSTON, WALKER, and McCOY, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

A jury found Appellant James Anthony Davis guilty of murder and assessed his punishment at ninety-nine years' confinement. The trial court imposed a sentence in accordance with the jury's verdict. In eighteen points, Davis contends that this court should reverse the trial court's judgment and either acquit him or remand his case for a new trial. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of January 28, 2006, Benbrook police received a 9-1-1 call from a woman screaming for help. After the woman stopped screaming, the 9-1-1 operators heard a young child saying, "he stabbed my momma." When police arrived at the apartment, they discovered the motionless bodies of Latarsha Hampton and James Davis. Latarsha, who had several stab wounds all over her body, including a fatal stab wound to her neck, was pronounced dead on the scene. Davis, who had cuts on both wrists, his neck, and an ear, was taken to the hospital and released into police custody later that day.

The police also discovered Latarsha's four-year old daughter, Tanoah Hampton, in the apartment that night. Although she was in shock, Tanoah was not physically harmed. Tanoah had witnessed that night's events.

The State charged Davis with Latarsha's murder. Based on Tanoah's statements about the murder, the discoveries of the police officers investigating the case, the conclusions of the medical examiners, and revelations about Latarsha and Davis's own personal history, police theorized that Davis was committing an act of domestic violence against Latarsha when he killed her and that he then attempted suicide. After a jury found Davis guilty of murder and the trial court sentenced him to ninety-nine years' confinement, Davis perfected this appeal.

III. POINTS OF ERROR PRESENTED

Davis presents the following eighteen points on appeal:

1. The greater weight and preponderance of the evidence shows that Davis acted in self-defense.

2. The evidence is insufficient to support the conviction because Davis acted in self-defense.

3. The greater weight and preponderance of the evidence shows that Davis acted under the influence of a sudden passion.

4. The trial court erred by denying Davis's request for a jury instruction on sudden passion.

5. The trial court erred by sustaining the State's objection to one of Davis's jury arguments urging a unanimous verdict.

6. The trial court erred by sustaining the State's objection to (another) one of Davis's jury arguments urging a unanimous verdict.

7. The trial court erred by overruling Davis's objection to the State's jury argument for a non-unanimous verdict.

8. The trial court erred by overruling Davis's motion for a mistrial based on an improper jury argument by the State.

9. The trial court erred by overruling Davis's objection to the State's jury argument attacking Davis over the shoulders of his counsel.

10. The trial court erred by overruling Davis's objection to the jury charge's failure to instruct the jury on self-defense.

11. The trial court erred by overruling Davis's request for a jury instruction on self-defense.

12. The trial court erred by overruling Davis's objection to the admissibility of a copy of the judgment and plea waivers from a prior case where Davis pleaded guilty to a charge of felon in possession of a firearm.

13. The trial court erred by not permitting Davis to elicit on the cross-examination of a detective his opinion as to whether Davis's wounds were self-inflicted.

14. The trial court erred by not permitting Davis to impeach a detective as to whether Davis's wounds were self-inflicted.

15. The trial court erred by overruling Davis's objections to the competency of a child witness.

16. The trial court erred by permitting the testimony of a child witness without determining whether the child was a competent witness.

17. The trial court erred by overruling Davis's objections to the testimony of an officer who had responded to a previous incident of assault by Davis against Latarsha.

18. The trial court erred by allowing one of Latarsha's friends to testify about Latarsha's statements to the friend concerning her relationship with Davis and her future plans.

We will address each of these points in the sequence most logical to the structure of our opinion.

IV. STANDARDS OF REVIEW

Many of the eighteen points raised by Davis involve application of the same standards of review. To avoid redundancy in our opinion, we set forth all applicable standards of review here and refer back to them as needed throughout this opinion.

A. Legal Sufficiency

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the prosecution in order 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim. App.2007).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility of the evidence. See TEX.CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000).

Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Instead, we "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007). We must presume that the fact-finder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778.

B. Factual Sufficiency

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim.App.2005). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder's determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court "harbor a subjective level of reasonable doubt to overturn [the] conviction." Id. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the fact-finder's. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.App.1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury's determination of the weight to be given contradictory testimonial evidence because resolution of the conflict "often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Johnson, 23 S.W.3d at 8. Thus, we must give due deference to the fact-finder's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Id. at 9.

C. Requests for Submission of Defensive Theories

1. Self-Defense

It is axiomatic that, when properly requested, the trial court must instruct the jury on every defensive theory raised by the evidence, and it makes no difference whether such evidence or testimony was produced by the prosecution or the defense, or whether such defensive evidence or testimony might be strong, weak, unimpeached, or contradicted. Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim. App.2001); Smith v. State, 676 S.W.2d 584, 586-87 (Tex.Crim.App.1984). However, before a defendant is entitled to a jury instruction on self-defense, that defendant must provide some evidence that viewed in the light most favorable to the defendant will support the self-defense claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim. App.2003); Ferrel, 55 S.W.3d at 591; Hill v. State, 99 S.W.3d 248, 250 (Tex.App.-Fort Worth 2003, pet. ref'd). In other words, a defendant must provide some evidence that he was statutorily authorized to use deadly force to defend himself. See Act of May 27, 1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32, 1995 Tex. Gen. Laws 2141, 2141 (amended 2007) ...