Douglas v. State

• Decision Date: 06 May 2016
• Docket Number: No. 06–15–00067–CR,06–15–00067–CR
• Citation: 489 S.W.3d 613
• Parties: Brendan Xavier Douglas, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

489 S.W.3d 613

Brendan Xavier Douglas, Appellant

v.The State of Texas, Appellee

No. 06–15–00067–CR

Court of Appeals of Texas, Texarkana.

Submitted: April 20, 2016

Decided: May 6, 2016

Lew Dunn, Law Offices of Lew Dunn, Longview, TX, for appellant.

Zan Colson Brown, Assistant District Attorney, Longview, TX, for appellee.

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

OPINION

Opinion by Justice Moseley

A Gregg County jury found Brendan Xavier Douglas guilty of the May 15, 2012, capital murder of Deandre Rossum, and the trial court sentenced him to the mandatory punishment of life imprisonment without parole.¹ In his appeal to this Court, Douglas asserts that there was legally insufficient evidence to convict him of capital murder and that the trial court erred (1) in failing to suppress his out-of-court statement to Detective David Cheatham, (2) in admitting his out-of-court statements made to three other officers, (3) in admitting his out-of-court statement made to his former girlfriend, and (4) in failing to suppress evidence obtained from the search of his cell phone. We find that there was sufficient evidence to convict Douglas of capital murder and that Douglas failed to preserve his asserted errors complaining of the admission of evidence obtained from a search of data on his cell phone and of his statement to Detective Chris Taylor. We also find that the trial court did not abuse its discretion in admitting the statements made by Douglas to his former girlfriend, to Cheatham, and to two other officers. Since we find no error, we affirm the judgment of the trial court.

I. The Evidence at Trial

On the day of the shooting, Rossum used his girlfriend's orange and black, two-door Mitsubishi to drive his friend, Robert Don Perry, to look for a job, to see his uncle, and then to a McDonald's restaurant in Longview. Perry testified that Rossum picked up a third man, Elgin Jackson (nicknamed “L.J.,”) before going to McDonald's and that Jackson joined them. After eating, Rossum made a telephone call, and a fourth man, Douglas, joined them. They began talking about drugs, and Douglas asked if he could go get a blunt² at Signal Hill Apartments. After going to Signal Hill, the four men drove to several places in Shreveport, Louisiana, in an unsuccessful attempt to purchase some “hard” or “butter.”³ After this failure and after having stopped over at a restaurant, the four returned to Longview. Perry testified that during this time, Douglas was texting, smiling, and laughing. Although they were supposed to be dropping Douglas off at a Burger King, Douglas said he wanted to return to Signal Hill, where he had gotten the blunt.

Perry testified that when they went to Signal Hill, Rossum got out of the car to allow Douglas to exit from the rear seat. Douglas then went up to the apartments and when he came back out, two men came from behind the building. Perry stated that Douglas and the two men came to the car, Douglas shook or bumped their hands, then took off running. The two men looked in the car, then guns started going off, and he saw Rossum fall down. The two men went through Rossum's pockets, after which one of them looked at Perry and said, “[G]et that nigger, get that nigger.” Needing no further impetus, Perry exited the car and fled to a nearby E–Z Mart convenience store, where he called the police. After the police arrived on the scene, Perry returned and gave them a statement wherein he recounted his experience.

Jackson confirmed Perry's testimony regarding the events leading up to the shooting. He also testified that while they were waiting at Signal Hill Apartments for Douglas to return to the car, two men wearing hoodies and shorts approached the driver's side of the car. After they talked briefly with Rossum, Jackson heard a gunshot. The gunshot prompted Jackson to run away toward the back of the car. Another shot struck Jackson in the back, and he fell to the ground where he was then shot several more times. Although Jackson could not see who shot him, he did hear Douglas say to one of the two shooters in a surprised manner, “Man, you shot me.” Then he heard Douglas direct someone to “[s]earch his pockets,” this instruction being followed by someone's hand going through Jackson's pockets and removing money as he laid on the ground, feigning death. When Jackson opened his eyes, he saw a light-colored Lincoln and heard it “burn out” (leave rapidly). A minute or so later, Jackson rose and saw Rossum leaning against the car, dead. Eventually, the police and an ambulance arrived on the scene, and Jackson (who had been shot in his back, side, thigh, and ankle) was taken to Good Shepherd Hospital where he spent almost two weeks recuperating. Jackson testified that Douglas often used his cell phone to text while they were in the car. On cross-examination, Jackson testified that he saw Douglas neither after he went up to the apartments nor when the shots were fired, but that he did hear him talking while giving directions.

Gabrina Ward (also known as Sabrina) testified that in 2012, she owned a cream-colored Lincoln and that she had given police permission to search it while it was at Good Shepherd Hospital. She testified that although she did not know her car had been taken, she did realize her keys were gone. She called Douglas to check on her car since he was a friend of her friend, Korvarsia Skinner, who had been at her apartment earlier that day. She said that she called Douglas about the missing car because, “that was the only person that I thought could have got it.”

Officer Suzanne Hardee of the Longview Police Department testified that she was dispatched to Good Shepherd around 10:00 p.m. on the night of the shooting. At the hospital, she found two shooting victims, Douglas and Jackson. She testified that it is important to speak to shooting victims as soon as possible since their wounds

may be life-threatening. When she spoke with Douglas, she had no idea of his involvement as a participant in the shooting. Hardee testified that even though she was then dressed in her police uniform (and, therefore, obviously with law enforcement), Douglas spoke to her willingly and that she did nothing to coerce or threaten him and did not offer him anything in return for his statement. She said that at the time she spoke with Douglas, he was not handcuffed or in custody and that although he was then being treated for gunshot wounds, he did not appear to be under the influence of alcohol or drugs and was able to give coherent answers to her questions. Hardee also testified that Douglas told her that he, Rossum, and two other black males had gone to Signal Hill Apartments to buy a blunt, that he had gone to an apartment, and that when he came back to the car, two black males approached. He continued his story by stating that as he was getting into the car, he heard shots being fired, and Rossum fell. He described the two men as thin, tall, and wearing dark-colored hoodies that covered their faces. He did not indicate that he knew the two men.

Detective Jimmie Redmon of the Longview Police Department described the physical evidence collected at the scene, including .380 and 9 mm cartridge casings, three cell phones, fingerprints, and blood evidence. In addition, he testified that buccal, or mouth, swabs from Deion Reed (Deion), Torry Reed (Torry), and Douglas were collected and sent to the Texas Department of Public Safety (TDPS) for DNA analysis.

Dr. John Anthony Stash performed the autopsy on Rossum. He testified that Rossum suffered two gunshot wounds

to the face and head. One of the gunshots injured the skin, muscle, and soft tissue inside the mouth, teeth, and tongue. The second gunshot injured the skin, muscle, soft tissue, and mandible, fractured two cervical vertebrae, and damaged the cervical spinal cord. Stash testified that the cause of death was two gunshots to the head and neck, although neither struck a major blood vessel. According to Stash, the bullet that hit the cervical spinal cord would have been rapidly fatal, possibly instantaneously. He also testified that he was able to recover both bullets from Rossum's body. On cross-examination, Stash testified that there was no gunshot residue or tattooing⁴ on Rossum's body. He also testified that for there to be residue, the firearm would have to have been no more than six inches away from Rossum when it was discharged and that for tattooing to occur, the gun would have to have been no more than eighteen inches away.

Taylor testified that he was providing security for Good Shepherd Hospital on the night of the shooting. He recalled that one of the gunshot victims arrived by private vehicle and came through the front door, while the other was delivered by ambulance to the emergency room. As part of his job at the hospital, he talked with Douglas to determine where the shooting happened. Taylor testified that he did not place Douglas in custody or put handcuffs on him and that he neither photographed nor fingerprinted him, pointing out that he had no information at the time that Douglas was a suspect in the shooting. According to Taylor, Douglas was able to answer his questions coherently and did not seem intoxicated or under the influence of pain medications or other drugs. Taylor testified that Douglas told him that the shooting occurred at the E–Z Mart, but that he was not able to say which one. When he asked him who shot him, Douglas refused to answer and would not answer any more questions. On cross-examination, Taylor testified that he did not know if Douglas had been given pain medications when he talked with him and that the nursing staff was in the room while he questioned Douglas.

After Douglas refused to answer more questions, Taylor notified the central police dispatcher to send someone to assist him at the scene, and he located the vehicle that had brought Douglas to the hospital. Taylor testified that the vehicle was a Lincoln Town Car owned by Ward and that a...