Davis v. State

• Decision Date: 07 April 2005
• Docket Number: No. 01-03-00801-CR.,01-03-00801-CR.
• Citation: 177 S.W.3d 355
• Parties: Herbert Edward DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

Page 355

177 S.W.3d 355

Herbert Edward DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 01-03-00801-CR.

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

April 7, 2005.

COPYRIGHT MATERIAL OMITTED

Crespin Michael Linton, Houston, for appellant.

Shirley Cornelius, Assistant District Attorney-Harris County, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, for appellee.

Originally submitted to panel consisting of Chief Justice RADACK and Justices KEYES and ALCALA.

EN BANC OPINION

SHERRY RADACK, Chief Justice.

Herbert E. Davis, appellant, pleaded not guilty to aggravated robbery. The jury found him guilty and assessed punishment at 35 years' confinement. In three points of error, appellant contends that (1) the evidence is legally insufficient to support his conviction; (2) the trial court erred in excluding the complainant's civil court pleading; and (3) the trial court abused its discretion by denying him a mistrial. We affirm.

BACKGROUND

Jeffrey Dailey, complainant, planned to spend one week at the beginning of May 2002 at the Western Inn Motel as he prepared for his final examinations at the University of Houston Law School. On May 4, 2002, Dailey permitted an unknown female to enter his motel room after she asked to use his telephone. While in the room, the female telephoned someone and waited in complainant's room until this person arrived. After Dailey released the door chain and answered the door, five to seven people entered the room. This group of people punched Dailey, kicked him, threw him on the bed, cut the telephone line in his room, and threatened to kill him with a knife. Dailey later testified that someone smoked crack cocaine during the robbery and that his assailants stole his car, college ring, watch, wallet, and money from his bank account after he gave them his PIN number. Soon, all of his assailants except appellant left Dailey's motel room. Appellant held a pocket knife to Dailey's throat and told him not to move. Appellant was masturbating and wearing a condom. After appellant fell asleep, Dailey quietly escaped the motel room and called 911 from the motel lobby. On May 5, 2002, at 1:52 a.m., Officer M. Romero responded to a robbery in progress. Romero met Dailey in the lobby. After Dailey told Romero his room number, Romero went to Dailey's motel room and found appellant sleeping with a knife in his hand.

Appellant testified that while he was at the motel, he heard a male voice crying for help. Appellant saw Dailey lying naked and flat on his back on the floor of Dailey's motel room. Appellant told Dailey that he would stay with him while someone else left to call 911. Appellant testified that as he placed Dailey on the bed, appellant became exhausted. Appellant testified that because he had not taken his second insulin shot that day, he passed out because of a glucose reaction. The first memory appellant has after passing out is being awakened by Officer Romero.

Legal Sufficiency of the Evidence

In his first point of error, appellant asserts that the evidence was legally insufficient to support his conviction. Specifically, appellant contends that the State failed to prove beyond a reasonable doubt that appellant committed the offense of aggravated robbery.

To establish the offense of aggravated robbery, the State had to prove that appellant (1) in the course of committing theft, (2) with intent to obtain and maintain control of property, (3) knowingly and intentionally, (4) threatened or placed another in fear of imminent bodily injury or death, and (5) then and there used or exhibited a deadly weapon. Tex. Pen.Code Ann. § 29.03(a) (Vernon 2003). A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000); Howley v. State, 943 S.W.2d 152, 155 (Tex.App.-Houston [1st Dist.] 1997, no pet.). As the exclusive judges of the facts, the jurors may believe or disbelieve all or any part of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981).

Appellant contends that the evidence is legally insufficient to prove that he committed the offense of aggravated robbery because (1) appellant testified that he did not rob Dailey and had no information about the robbery; (2) Dailey is not credible because he filed a civil lawsuit against the Western Inn Motel; (3) evidence suggests that Dailey may have invented the robbery to hide his own questionable activity; and (4) Officer Romero testified that he did not find a "crack pipe" or any condoms in the motel room.

Appellant's first three complaints ask us to circumvent the jury verdict by finding appellant more credible than Dailey. The jury, which heard testimony from appellant and Dailey, was in the best position to determine who was more credible based on their testimony and demeanor in court, and, on appeal, we will defer to the jury's assessment of credibility under these circumstances. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997).

At trial, the State presented the testimony of Jeffrey Dailey, the complainant, the only witness to the offense. Dailey testified that one of his assailants pulled out a knife with a three-to five-inch blade. Dailey testified that, upon pulling out the knife, "they told me they were going to kill me." He also testified that, after they threatened to kill him with the knife, they stole his car, college ring, watch, and wallet.

Dailey identified appellant in court as part of the group of men and women who attacked and robbed him in his motel room. Dailey testified that appellant was in his motel room from the beginning of the attack. Dailey also testified that after the other assailants left, appellant stayed in the room and kept Dailey at knifepoint, telling him not to move. When asked whether he was sure the person who did this was appellant, Dailey responded, "Yeah, it's him. I know that for a fact."

Appellant's fourth complaint asserts that Dailey is not credible because the physical evidence is inconsistent with his testimony. Dailey testified that someone smoked crack during the robbery, that appellant was masturbating after the other assailants left the room, and that appellant was wearing a condom. Although Officer Romero did not find a crack pipe or a condom in the motel room, Officer Romero testified that he did not conduct an extensive search of the motel room. To convict appellant for aggravated robbery, the State was not required to prove that appellant smoked crack, masturbated, or wore a condom. See Tex. Pen.Code Ann. § 29.03(a) (Vernon 2003). Any inconsistencies between Dailey's testimony and Romero's testimony would not render the evidence legally insufficient.

It is well established that a conviction may be based on the testimony of a single eyewitness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App.1971); Lewis v. State, 126 S.W.3d 572, 575 (Tex.App.-Texarkana 2004, pet. ref'd). The determination of what weight to give testimonial evidence is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. The jury is free to believe or disbelieve all or any part of the State's witnesses' testimony. Id. A court of appeals must show deference to such a jury finding. Id. at 409.

Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that appellant committed robbery while using or exhibiting a deadly weapon. Accordingly, we hold that the evidence was legally sufficient to support appellant's conviction for aggravated robbery.

We overrule appellant's first point of error.

Admissibility of Complainant's Petition

In his second point of error, appellant contends the trial court abused its discretion by refusing to admit into evidence Dailey's civil pleading filed in his civil lawsuit against the motel where the offense occurred.¹ Appellant argues that he could not cross-examine Dailey about any inconsistencies between the civil pleading and his in-court testimony in the criminal case at bar. Appellant argues that Dailey's pleading, which was made by Dailey's attorney with Dailey's authorization, is admissible as an admission of a party opponent under Texas Rule of Evidence 801(e)(2)(c). See Tex.R. Evid. 801(e)(2)(c).

We review the trial court's determination of admissibility under an abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990); Roberts v. State, 29 S.W.3d 596, 600 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). The trial court has wide discretion in determining the admissibility of evidence and its ruling will not be disturbed as long as it is "within the zone of reasonable disagreement." Montgomery, 810 S.W.2d at 391. A trial court's ruling will be upheld if reasonably supported by the record and correct on any theory of law applicable to the case. See Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002).

When a party presents a trial court with a proffer of evidence containing both admissible and inadmissible statements, and the proponent of the evidence fails to segregate and specifically offer the admissible statements, the trial court may properly exclude all of the evidence. Sauceda v. State, 129 S.W.3d 116, 124 (Tex.Crim.App.2004); Willover, 70 S.W.3d at 847.

At trial, appellant twice attempted to introduce, in its entirety, Plaintiff's Original Petition from Dailey's civil lawsuit against Western Inn Motel. The trial court twice sustained the State's objections that the statements in the pleadings were hearsay because they were not the complaining witness's statements.² Appellant later made an oral offer of proof concerning the testimony to which appellant anticipated Dailey would provide in response to...