Henson v. State

Decision Date27 February 2013
Docket NumberNo. 01–11–00225–CR.,01–11–00225–CR.
Citation388 S.W.3d 762
PartiesKevin Ray HENSON, Appellant v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals


Alan Curry, Chief Prosecutor, Appellate Division, Harris County District Attorney's Office, Scott A. Durfee, Assistant District Attorney, Houston, TX, for Appellee.

Nicolas R. Hughes, Robert “Bob” Wicoff, Harris County Public Defender's Office, Houston, TX, for Appellant.

Panel consists of Chief Justice RADACK and Justices JENNINGS and KEYES.



A jury convicted appellant, Kevin Ray Henson, of the second degree felony offense of aggravated assault and, after finding the allegations in an enhancement paragraph true, assessed punishment at eight years' confinement. 1 In two issues, appellant contends that (1) he was denied his constitutional right to a speedy trial and (2) the State failed to present sufficient evidence supporting his conviction in light of evidence raising the issue of self-defense.

We affirm.


Appellant and Kevin Roberts, the complainant, had been friends since the mid–1980's. Roberts testified that appellant and his wife were having marital difficulties during the early part of 2008; that, while they were separated, appellant's wife dated Roberts's cousin, whom she met at a Christmas party at Roberts's house; and that this relationship was a “sore spot” for appellant. Roberts repeatedly testified that he did not approve of this relationship. He was “positive” that the situation between his cousin and appellant's wife provided the motivation for the incident at issue.

Roberts testified that he had previously loaned appellant a vacuum cleaner, and, although appellant had returned the vacuum itself, he had not returned a hose connection for the vacuum. On April 10, 2008, Roberts called appellant to arrange a time and a place to pick up the hose connection. Appellant, who was at his uncle's funeral at the time of this phone call, told Roberts to come by Spring Cypress Car Care, where he worked as a manager, the next day to pick up the part.

On April 11, 2008, Roberts drove to Spring Cypress Car Care. Roberts parked in front of the building, left his truck running, and opened the door to the office area of the shop. According to Roberts, appellant stood up, motioned for Roberts to follow him, and walked through the garage area to a parking lot behind the building. Roberts trailed behind appellant, and, as he reached the parking lot, he asked appellant, who was already opening the trunk of his car, “How are things going?” Appellant responded, “Same old, same old.” Roberts stated that, at this time, he “had no indication that something was awry.” As Roberts approached appellant's car, appellant was leaning into the trunk, trying to put the vacuum hose into its bag. Roberts then asked appellant, “What's up on your phone?,” because appellant's cell phone had been off when Roberts called him on his way to the shop. Roberts also took the hose from appellant and started to put it in its bag. Appellant responded, “You're what's up on my phone.” At this point, Roberts turned to look at appellant because he “knew something wasn't right.”

Roberts could see that appellant had his hand in his pocket and that “there was a point in his pocket.” Roberts testified, [W]hen I went to look back at his eyes, that's when he started stabbing me, which I did not see him come at me. It was like glance and boom, boom, he's stabbing me on my back.” At first, Roberts did not realize that appellant was stabbing him; he only thought that appellant was hitting him in the back. Roberts hit appellant with the vacuum hose bag and tried to back away, but appellant's car was directly behind him. Roberts then grabbed either the knife or appellant's hand, and he “just sort of push[ed] [appellant] forward, lift[ed] him and slam[med] him down on the ground.” Once he was on the ground, appellant “just sort of curl[ed] up.” Roberts straddled him and said, “What are you doing? What are you doing? You're killing me.” Appellant responded, “I know.” Both Roberts and appellant then started yelling for Scott Rutledge, one of appellant's co-workers, who was working in the garage at the time.

At the time Rutledge appeared, appellant still held the knife, and when Roberts tried to grab the knife, appellant covered it with both of his hands and Roberts squeezed appellant's hands. Rutledge came over to them, appellant “somehow let[ ] go” of the knife, and Rutledge kicked the knife away. Roberts then stood up, walked to the front of the building, and called 9–1–1. Roberts testified that he had a total of eleven stab wounds, seven in his back, two in his left side, and two on his chest and stomach, as well as injuries to his hand from where he grabbed the knife. He stated that, by the time he called 9–1–1, he was “soaked” with blood.

Roberts testified that, aside from the relationship between appellant's wife and Roberts's cousin, there were “never any true issues” in his friendship with appellant. Roberts opined that appellant must have planned the attack because

there's too many situations to where this could have been avoided. If, you know, if he wanted to give me my vacuum hose back, it could have been up front [at the shop]. He could have even gave them to me weeks before. It's like there's something was going on with, I guess, [Roberts's cousin] and [appellant's wife] and him. And I was the link. And he was just wanting to strike out.

On cross-examination, Roberts acknowledged that he was carrying a pocketknife on the day of the incident. He also acknowledged that, two months before the incident, appellant

gave [Roberts's] wife a ride when he was drunk on his motorcycle one night.... But it was never a beef [with appellant]. It was, “You shouldn't do that.” He shouldn't be driving drunk and he shouldn't give her a ride.

Roberts testified, however, that he did not have an argument with appellant over that issue.

Roberts denied that appellant started screaming for Rutledge because Roberts tried to stab him. Roberts also denied that he went to Spring Cypress Car Care the day before the incident to retrieve the hose connection and spoke to another employee while he was there. Roberts denied repeatedly calling and harassing appellant and his wife in the months leading up to the incident. Roberts testified that if other individuals said that he and appellant had issues, they must have heard that information from appellant because, as far as he was concerned, “it was obviously him saying that we had an issue and me not knowing about it.”

Rutledge testified that he knows both appellant and Roberts, who had occasionally visited the shop. Rutledge was working in the garage when Roberts arrived, said hello to him, and walked through the garage towards the parking lot with appellant.Rutledge did not immediately do anything, “but after a couple of moments [he] thought [the situation] was kind of odd,” so he followed appellant and Roberts “to hear or see what was going on.” Rutledge saw both of them standing by an open car trunk, and [n]othing seemed out of the ordinary.” Rutledge returned to the garage.

Rutledge testified that he then heard “someone screaming [his] name over and over and over again.” When asked by the State if he could tell who was screaming his name, he replied, “I couldn't be for sure. It sounded like [appellant]. I'm not for sure though.” He went back to the parking lot and saw appellant and Roberts on their knees, facing each other, with [a]ll four hands holding a knife that was pinned to the ground.” Rutledge told both men to let go of the knife, and when they did not respond, he stepped on the knife and their hands to force them to let go, which they did. He recognized the knife as a knife given to Spring Cypress Car Care by an auto parts company as a Christmas gift. He testified that the shop received several knives and that it was “likely” that appellant received one. After Rutledge kicked the knife away, he stayed with Roberts, who “had several puncture wounds.” He testified that he saw one wound on appellant: “a deep laceration in his thumb.”

On cross-examination, Rutledge testified that, prior to the incident, appellant had told him that he was no longer friends with Roberts. He testified:

[Appellant] and I never really talked about them not being friends too much. I—I don't remember exactly where I got the notion that they weren't friends. I just remember it being that theythey were—they used to be friends and they were no longer friends.

Rutledge did not recall seeing Roberts come to the shop on the day before the incident, and he did not think that Roberts's presence at the shop was anything out of the ordinary. He testified that, when he approached them, appellant and Roberts were not fighting or wrestling, but they were both “very still holding this knife.”

Kenton Morris, who owned Spring Cypress Car Care, testified that he knew Roberts had been a friend of appellant, but his “understanding [was] that they went from being good friends to enemies.” He acknowledged, however, that he would have received any information about their relationship from appellant. Morris was at the shop on the day of the incident, and he testified that appellant was sitting in the office with his head down on the front counter. Morris assumed that appellant's behavior was due to his uncle's funeral the previous day, but appellant mentioned that Roberts “had caused some trouble and that's all that [appellant] said about it.” Morris testified that he learned of the incident at issue when appellant entered his office and told him to come out into the garage. He did not witness the altercation itself, but he did see Roberts lying on the ground and he saw a cut on appellant's hand.

Harris County Sheriff's Office (“HCSO”) Deputy J. Carson testified that he was on...

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11 cases
  • Kakembo v. State
    • United States
    • Texas Court of Appeals
    • April 23, 2014
    ...self-defense issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Henson v. State, 388 S.W.3d 762, 773 (Tex. App.—Houston [1st Dist.] 2012), aff'd on other grounds, 407 S.W.3d 764 (Tex. Crim. App. 2013). After reviewing the record, we conclude that ......
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    • Texas Court of Criminal Appeals
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    • United States
    • Texas Court of Appeals
    • February 23, 2017
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1 books & journal articles
  • Misdemeanor Defense
    • United States
    • James Publishing Practical Law Books Texas Small-firm Practice Tools. Volume 1-2 Volume 2
    • May 5, 2022
    ...first time on appeal, so be sure to file a motion and make an object on the record stating the facts to preserve error. Henson v. State, 388 S.W.3d 762, 771 (Tex. App.—Houston [1st Dist] 2012, aff., cert. denied, 134 S. Ct. 934 (2014). §15:121 Time Length The Texas Code of Criminal Procedur......

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