Gilbert v. State
| Citation | 575 S.W.3d 848 |
| Decision Date | 03 April 2019 |
| Docket Number | No. 06-18-00152-CR,06-18-00152-CR |
| Parties | Gavin Heath GILBERT, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Michael Mowla, Michael Mowla, PLLC, P.O. Box 868, Cedar Hill, TX 75106, for Appellant.
Matthew H. Harris, Assistant District Attorney, William W. Ramsay, Delta, Franklin, Hopkins County District Attorney, P.O. Box 882, Sulphur Springs, TX 75482, for Appellee.
Before Morriss, C.J., Burgess and Stevens, JJ.
A Hopkins County jury rejected Gavin Heath Gilbert’s claim that he acted in self-defense and convicted him of the murder1 of Tyrone Phelps.2 Based on the jury’s verdict, Gilbert was assessed a punishment of fifty-five years' imprisonment. On appeal, Gilbert contends that there was legally insufficient evidence (1) to support his conviction for murder and (2) to support the jury’s rejection of his claim of self-defense. Gilbert also contends that the trial court erred in (1) admitting evidence that improperly bolstered the testimony of one of the State’s witnesses, (2) admitting a photograph of the victim in the hospital, (3) admitting a video recording of the victim’s family during the punishment phase of the trial, (4) submitting a jury instruction on retreat, (5) failing to submit an instruction regarding the effect of self-defense on the lesser-included offense of manslaughter, and (6) failing to submit different manner and means of murder as separate charges. Since we find there is legally sufficient evidence to support Gilbert’s conviction and the jury’s rejection of his self-defense claim and we find no trial court error on his jury charge and preserved evidentiary complaints, we affirm the trial court’s judgment.
On the evening of December 17, 2017, Phelps and four of his friends, Larry, John, Jack, and Jim, took Larry’s truck to purchase fourteen grams of marihuana from Gilbert. Larry, John, Jack, and Jim gave generally consistent testimony about the events leading up to, and following, the incident. They testified that, two days before the incident, Gilbert sold Larry and John an amount of marihuana that he represented to be fourteen grams, which turned out to be only nine grams. Consequently, Phelps and his friends decided to bring digital scales to the December 17 transaction to weigh the marihuana. They also decided that, if Gilbert shorted them again, they would drive off with the marihuana without paying for it.
Larry and his friends pulled up and parked on the side of the road in front of Gilbert’s house and waited as Gilbert walked down from his house.3 Gilbert came to the driver’s window and gave the marihuana to Larry, who weighed it on the scales. Instead of the fourteen grams agreed upon, the marihuana only weighed around nine grams. After informing Gilbert of the discrepancy, and a short verbal exchange, Larry hit the gas pedal and peeled out toward the road. Larry and his friends testified that no one had threatened Gilbert, yelled at him, pulled a weapon on him, or used the truck as a weapon during the incident.
At trial, the four young men all agreed that the truck sped up quickly, but several had differing memories regarding the initial movement of the truck. John thought the tires made a squealing sound. Larry testified that the truck spun out a bit and acknowledged that its back end slid to the left and could have hit Gilbert if he had not moved back. Jack acknowledged that the truck spun out, but did not think that it moved toward Gilbert.
The young men also testified that the truck then sped across the road. They heard Gilbert fire several gunshots, one after another. Then several bullets came through the back of the truck. Phelps screamed that he had been shot. They called 9-1-1 and were told to meet the ambulance at a fire station. On the way to the fire station, one of them threw the marihuana to the side of the road. When they got to the fire station, the young men quickly agreed to tell the police that they had been "free-styling" in the country and had passed close to someone, who then started shooting at them.
They first told this fabricated story to law enforcement because they were afraid and did not want to disclose the marihuana. But Larry told Lewis Tatum, the Hopkins County Sheriff, what really happened when he rode with Tatum to show him where the incident happened. Later on, the other young men also told law enforcement what really happened when confronted with the physical evidence.
The young men also testified that Larry had a deer rifle and a shotgun in his truck that night. The rifle was between the front seats with the barrel to the floor, and the shotgun was behind the back seat. The rifle may have been visible to Gilbert.
Mason Gilbert, Gilbert’s cousin, testified that, on the evening of December 17, he was visiting Gilbert’s brother at their grandmother’s house. Gilbert walked outside without saying anything. About thirty minutes later, Mason went to look for Gilbert when he did not answer his cell phone. When Mason went outside, Gilbert called him and explained that he had been robbed. Later, Gilbert revealed that, when he walked outside, he was going to sell marihuana to Larry and carried a gun in his pocket. Gilbert explained that, when he got to Larry’s truck, Larry was driving, and Jim was in the front seat. He also said that two or three black people were in the back seat. Mason told law enforcement that Gilbert told him the following:
Mason also affirmed that Gilbert never told him that anybody pulled a weapon on him, threatened him, hit him with a vehicle, or tried to run over him.
Around midnight, they learned through social media that Gilbert had killed someone. They then took Gilbert’s Glock 9mm pistol into the woods and buried it, and Gilbert threw the live bullets into the trash pile. They also went two or three times to the site of the shooting to try to find the spent bullet casings, but could not find them. They then hid the Glock pistol’s box in a drawer in a shed. Mason testified that Gilbert was very upset about the incident and that he stayed up with him until about 1:00 a.m. because he was worried about him. When law enforcement came the following day with a search warrant, Mason led them to the buried Glock pistol and its box. The officers also told him that they had located the spent casings.
After being confronted with a recording of a jail telephone call, Mason admitted that Gilbert had asked him not to testify. He also acknowledged that, when the SWAT team came to arrest Gilbert, Mason’s father told Mason not to talk with the officers.
Sheriff Tatum testified that the young men had told law enforcement that they were driving down the road and drove past a person who shot through the back of the truck, striking one of them. He did not believe that account. Tatum testified that he struck up a conversation with Larry and asked him if he could show Tatum where the shooting had taken place. As they talked, Larry told him a different story. Larry also showed him where the shooting took place, and Tatum directed his investigators to the location. Tatum also testified about the details of Larry’s statement and that the statement was consistent with the physical evidence found in the truck and at the scene.
Kenneth Dean, the jail administrator for the Hopkins County Sheriff’s Department (HCSD), testified that Gilbert had no injuries when he was booked into jail the day after the shooting. Dean also identified the persons speaking on five recordings of telephone calls between Gilbert, his father, his mother, and Mason. On the recording from December 23, Gilbert said that one of his friends had told him that the charges against him would be dropped. The recording from January 20, 2018, showed that Gilbert learned for the first time that law enforcement had executed a search warrant on the property. Gilbert asked his mother repeatedly where they had looked and what had been found in the search. When his mother told him that law enforcement had talked to Mason, he quizzed her about where they talked to Mason and what he told them. When his father came to the phone and informed him that law enforcement found a 9mm pistol in the safe, Gilbert responded that he was not worried. On the recording from February 27, 2018, Gilbert urged Mason not to testify at his trial, no matter what the State offered him.
John Vance, a Texas Ranger with the Texas Department of Public Safety (DPS), was the lead investigator. He testified that four spent shell casings were found on the scene and that their locations showed that the shooter fired twice, retreated, and fired two more times.4 The locations of the spent shell casings revealed that the bullets were fired when the truck was crossing the road and travelling toward a mailbox on the other side of the road. Vance gave extensive testimony about his inspection of Larry’s truck. The inspection showed that four bullets penetrated the truck and showed the trajectory of the bullets. One of the bullets was recovered from Phelps' left leg and another from his chest. Vance also testified that the physical evidence of the bullet trajectories showed that the shooter was directly behind the truck. Vance also explained that, after Mason led him to the back of the property near a trash pile, they recovered...
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...any evidence that the trial court 'deems relevant to sentencing' is admissible during the punishment phase of a trial." Gilbert v. State, 575 S.W.3d 848, 871 (Tex. App.-Texarkana 2019, pet. ref'd) (quoting Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1)); see Sims v. State, 273 S.W.3d 291,......
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