Davis v. State

• Decision Date: 10 November 2020
• Docket Number: No. 06-20-00032-CR,06-20-00032-CR
• Citation: 614 S.W.3d 223
• Parties: Chad Adrian DAVIS, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

614 S.W.3d 223

Chad Adrian DAVIS, Appellant

v.The STATE of Texas, Appellee

No. 06-20-00032-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: August 13, 2020

Date Decided: November 10, 2020

V. Chris Botto, The Botto Law Firm, Longview, for Appellant.

Brendan W. Guy, Gregg County District Attorney's Office, Longview, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Burgess

The 188th Judicial District Court of Gregg County, Texas, convicted Chad Adrian Davis of attempted burglary of a habitation, found that Davis had used or exhibited a deadly weapon during the commission of the offense, and sentenced him to seventeen years' imprisonment. On appeal, Davis argues that the trial court erred in admitting extraneous-offense testimony, that the evidence is legally insufficient to support the finding of guilt and the deadly-weapon finding, and that his sentence violates the Eighth Amendment to the United State Constitution because it is grossly disproportionate to the offense committed.

We find that Davis waived his first point of error because he failed to object each time that the extraneous-offense evidence was admitted. We also find that legally sufficient evidence supports both the finding of Davis's guilt and the trial court's deadly-weapon finding and that Davis failed to preserve his Eighth Amendment complaint. As a result, we affirm the trial court's judgment.

I. Factual Background

Joseph Hernandez and Cedric Davis (Cedric), officers with the Longview Police Department (LPD), were dispatched to a home belonging to Davis's parents, Ala and Glenda Davis, in September 2018. According to Hernandez, "dispatch ... said that [Davis] was trying to kick in the door" and reported the offense of "a burglary in progress." Hernandez heard people yelling for help in the backyard and peered over a privacy fence to witness Ala and Glenda struggling to keep Davis on the ground. Ala told the officers to tear down the fence gate to help. The officers broke the gate, subdued Davis, handcuffed him, and took him to the patrol vehicle.

The officers found a knife in a backpack that was hanging from the privacy fence and another knife laying on the ground just outside the backyard beside the privacy fence. According to Hernandez, Ala said that the knives belonged to Davis. Hernandez also found a smudged shoe print on the front door indicating that someone had kicked it and said that "the door appeared to kind of been jarred a little bit." Because Davis had an injury to his head, officers took him to the emergency room where, according to Hernandez, Davis told a nurse that "he had went there to kill his dad."

Chris Dotson, another LPD officer, arrived after Davis had been handcuffed. Dotson testified, without objection, that he had responded to the home in July on a family violence complaint and had arrested Davis as a result. After Dotson said, "[Davis] was in the back yard with his mother and father and lunged at his father and hit him with a closed fist," Davis's counsel objected "to [that] line of questioning" on the ground that the extraneous offense was not relevant, but the trial court overruled the objection after the State argued it was admissible under Rule 404(b) to show intent, motive, or lack of mistake.

Ala, Davis's sixty-nine-year-old father, testified that his relationship with Davis deteriorated as the result of Davis's drug use. Davis, who did not live with Ala and Glenda, was told that he was not welcome at their home. Without objection, Ala testified that, in July 2018, Davis came to the residence and told Ala, "[Y]ou owe me," before he lunged at Ala and punched him in the face. Glenda also testified, without objection, that Davis had hit Ala during the incident, and a 9-1-1 recording from the July incident, which was admitted at the beginning of trial without objection, was played for the trial court. Davis was arrested for the July incident and was issued a criminal trespass warning.

On the day of the September incident, Ala said he was outside of the home when he saw Davis at the house and told him he was not supposed to be there. Ala rushed inside, leaving Davis outside. Ala and Glenda testified that Davis started banging and kicking on the front door and "was trying to break in." Davis was also hitting the glass panels on the side of the front door, turning the knob, and yelling, "Let me in. I have a right to come in." Because Ala and Glenda feared that Davis might cause them bodily harm, Ala decided to grab his gun while Glenda called LPD.

When Davis gave up on the front door, he jumped the fence to the backyard even though Ala was firing warning shots and reminding Davis that he was not supposed to be there. According to Ala, Davis said, "I'm going to get you, I'm going to kick your ... ass. I'm going to kill you're [sic] ass."¹ Ala testified that, as he was backing up, Davis lunged toward him, grabbed him, and drug them both to the ground. Glenda and Ala got on top of Davis and were able to get control of him.

Ala testified that the knife on the ground was just outside of the backyard fence where Davis had climbed over. Both Ala and Glenda confirmed that Davis did not bring a knife into the backyard or threaten them with a knife.

During his direct testimony, Davis admitted that the knives were his and testified that he went to the home to fight Ala because, after the July incident, "[Ala] got a criminal trespassing charge against [Davis]." Davis continued, "He pissed me off again." When asked if he was trying to cut or hurt is father, Davis responded, "It was the only kind of weapon I could get. If I had a gun, I would have, but I don't got no gun." Davis said he kicked the front door, "Not to burglarize nobody, but just to fight [Ala]."

After hearing this evidence, the trial court found Davis guilty of attempted burglary of a habitation with a deadly weapon.

II. Davis Waived His First Point of Error

In his first point of error, Davis argues that the trial court abused its discretion in allowing Dotson to testify about the July extraneous offense. The State argues that Davis waived this point of error. We agree.

Before any testimony was taken, Davis affirmatively stated that he had no objection to State's Exhibit 1, which contained the 9-1-1 calls that Glenda made to report both the July and September incidents.² While Davis objected to and secured an adverse ruling on the State's "line of questioning" related to the extraneous offense during its examination of Dotson, Davis did not secure a running objection from the trial court. As a result, the State elicited details of the extraneous offenses from other witness without objection.³

As explained by the Texas Court of Criminal Appeals:

[T]o preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection.

In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.

Lane v. State , 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (second alteration in original) (quoting Valle v. State , 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) ); see Smith v. State , 494 S.W.3d 243, 255 (Tex. App.—Texarkana 2015, no pet.) (quoting Long v. State , 10 S.W.3d 389, 399 (Tex. App.—Texarkana 2000, pet. ref'd) ). This rule applies whether the same evidence was admitted "without objection ... before or after the complained-of ruling." Lane , 151 S.W.3d at 193 (quoting Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) ).

Also, on direct examination, Davis testified that he was issued a criminal trespass warning because of the July incident. "As a general rule, a complaint regarding improperly-admitted evidence is waived if the same evidence is introduced by the defendant himself." Cisneros v. State , 290 S.W.3d 457, 468 (Tex. App.—Houston [14th Dist.] 2009, pet. dism'd) (citing Rogers v. State , 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) ). "An exception to this general rule applies when the accused introduces the evidence in an effort to meet, rebut, destroy, deny, or explain evidence that already has been improperly admitted." Id. (citing Rogers , 853 S.W.2d at 35 ). Here, Davis admitted the prior extraneous offense. "By testifying first on direct examination, [an] appellant waive[s] any error on the trial court's ruling regarding admissibility of the [extraneous offense]." Id. (citing Wootton v. State , 132 S.W.3d 80, 84 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) ).

Because we find that Davis waived his complaint about the extraneous offense, we overrule his first point of error.

III. Legally Sufficient Evidence Supports Davis's Conviction and the Deadly-Weapon Finding

In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ); Hartsfield v. State , 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks , 323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson , 443 U.S. at 318–19, 99 S.Ct. 2781 ); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically...