COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-177-CR
JAMES ANTHONY DAVIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
A jury found Appellant James Anthony Davis guilty of murder and
assessed his punishment at ninety-nine years’ confinement. The trial court
imposed a sentence in accordance with the jury’s verdict. In eighteen points,
Davis contends that this court should reverse the trial court’s judgment and
either acquit him or remand his case for a new trial. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
In the early morning hours of January 28, 2006, Benbrook police received
a 9-1-1 call from a woman screaming for help. After the woman stopped
screaming, the 9-1-1 operators heard a young child saying, “he stabbed my
momma.” When police arrived at the apartment, they discovered the
motionless bodies of Latarsha Hampton and James Davis. Latarsha, who had
several stab wounds all over her body, including a fatal stab wound to her neck,
was pronounced dead on the scene. Davis, who had cuts on both wrists, his
neck, and an ear, was taken to the hospital and released into police custody
later that day.
The police also discovered Latarsha’s four-year old daughter, Tanoah
Hampton, in the apartment that night. Although she was in shock, Tanoah was
not physically harmed. Tanoah had witnessed that night’s events.
The State charged Davis with Latarsha’s murder. Based on Tanoah’s
statements about the murder, the discoveries of the police officers investigating
the case, the conclusions of the medical examiners, and revelations about
Latarsha and Davis’s own personal history, police theorized that Davis was
committing an act of domestic violence against Latarsha when he killed her and
that he then attempted suicide. After a jury found Davis guilty of murder and
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the trial court sentenced him to ninety-nine years’ confinement, Davis perfected
this appeal.
III. P OINTS OF E RROR P RESENTED
Davis presents the following eighteen points on appeal:
1. The greater weight and preponderance of the evidence shows that
Davis acted in self-defense.
2. The evidence is insufficient to support the conviction because Davis
acted in self-defense.
3. The greater weight and preponderance of the evidence shows that
Davis acted under the influence of a sudden passion.
4. The trial court erred by denying Davis’s request for a jury instruction
on sudden passion.
5. The trial court erred by sustaining the State’s objection to one of
Davis’s jury arguments urging a unanimous verdict.
6. The trial court erred by sustaining the State’s objection to (another)
one of Davis’s jury arguments urging a unanimous verdict.
7. The trial court erred by overruling Davis’s objection to the State’s
jury argument for a non-unanimous verdict.
8. The trial court erred by overruling Davis’s motion for a mistrial
based on an improper jury argument by the State.
9. The trial court erred by overruling Davis’s objection to the State’s
jury argument attacking Davis over the shoulders of his counsel.
10. The trial court erred by overruling Davis’s objection to the jury
charge’s failure to instruct the jury on self-defense.
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11. The trial court erred by overruling Davis’s request for a jury
instruction on self-defense.
12. The trial court erred by overruling Davis’s objection to the
admissibility of a copy of the judgment and plea waivers from a prior case
where Davis pleaded guilty to a charge of felon in possession of a firearm.
13. The trial court erred by not permitting Davis to elicit on the cross-
examination of a detective his opinion as to whether Davis’s wounds were self-
inflicted.
14. The trial court erred by not permitting Davis to impeach a detective
as to whether Davis’s wounds were self-inflicted.
15. The trial court erred by overruling Davis’s objections to the
competency of a child witness.
16. The trial court erred by permitting the testimony of a child witness
without determining whether the child was a competent witness.
17. The trial court erred by overruling Davis’s objections to the
testimony of an officer who had responded to a previous incident of assault by
Davis against Latarsha.
18. The trial court erred by allowing one of Latarsha’s friends to testify
about Latarsha’s statements to the friend concerning her relationship with Davis
and her future plans.
We will address each of these points in the sequence most logical to the
structure of our opinion.
IV. S TANDARDS OF R EVIEW
Many of the eighteen points raised by Davis involve application of the
same standards of review. To avoid redundancy in our opinion, we set forth
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all applicable standards of review here and refer back to them as needed
throughout this opinion.
A. Legal Sufficiency
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.
P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919
(Tex. Crim. App. 2000).
Thus, when performing a legal sufficiency review, we may not re-evaluate
the weight and credibility of the evidence and substitute our judgment for that
of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1131 (2000). Instead, we “determine whether
5
the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
W e must presume that the fact-finder resolved any conflicting inferences in
favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at
326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
B. Factual Sufficiency
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the fact-finder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
6
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. W e may not simply substitute our judgment for the fact-
finder’s. Johnson, 23 S.W .3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the fact-finder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9.
C. Requests for Submission of Defensive Theories
1. Self-Defense
It is axiomatic that, when properly requested, the trial court must instruct
the jury on every defensive theory raised by the evidence, and it makes no
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difference whether such evidence or testimony was produced by the
prosecution or the defense, or whether such defensive evidence or testimony
might be strong, weak, unimpeached, or contradicted. Ferrel v. State, 55
S.W.3d 586, 591 (Tex. Crim. App. 2001); Smith v. State, 676 S.W.2d 584,
586–87 (Tex. Crim. App. 1984). However, before a defendant is entitled to
a jury instruction on self-defense, that defendant must provide some evidence
that viewed in the light most favorable to the defendant will support the self-
defense claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003);
Ferrel, 55 S.W.3d at 591; Hill v. State, 99 S.W.3d 248, 250 (Tex. App.—Fort
W orth 2003, pet. ref’d). In other words, a defendant must provide some
evidence that he was statutorily authorized to use deadly force to defend
himself. See Act of May 27, 1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32,
1995 Tex. Gen. Laws 2141, 2141 (amended 2007) (current version at T EX.
P ENAL C ODE A NN. § 9.32 (Vernon Supp. 2008)) (setting forth the requirements
for self-defense at the time applicable to this case).
2. Sudden Passion
During the punishment phase of the trial, a defendant may argue that he
caused the death while under the immediate influence of sudden passion arising
from an adequate cause. See T EX. P ENAL C ODE A NN. § 19.02(a)(1), (a)(2), (d)
(Vernon 2003); McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App.
8
2005); Hearne v. State, No. 02-05-00291-CR, 2006 WL 2578196, at *1 (Tex.
App.—Fort Worth Sep. 7, 2006, pet. ref’d.) (not designated for publication).
“Sudden passion” is “passion directly caused by and arising out of provocation
by the individual killed or another acting with the person killed which passion
arises at the time of the offense and is not solely the result of former
provocation.” T EX. P ENAL C ODE A NN. § 19.02(a)(2). “Adequate cause” is a
“cause that would commonly produce a degree of anger, rage, resentment, or
terror in a person of ordinary temper, sufficient to render the mind incapable of
cool reflection.” T EX. P ENAL C ODE A NN. § 19.02(a)(1).
Sudden passion is a mitigating circumstance that, if found by the jury to
have been proven by a preponderance of the evidence, reduces the offense
from a first degree felony to a second degree felony. Id. § 19.02(c), (d);
McKinney, 179 S.W.3d at 569. Thus, before a defendant is allowed a jury
instruction on sudden passion, he must prove that there was an adequate
provocation; that a passion or an emotion such as fear, terror, anger, rage, or
resentment existed; that the homicide occurred while the passion still existed
and before there was reasonable opportunity for the passion to cool; and that
there was a causal connection between the provocation, the passion, and the
homicide. McKinney, 179 S.W.3d at 569. The charge on sudden passion
should be given if there is some evidence to support it, even if the evidence is
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weak, impeached, contradicted, or unbelievable. Trevino v. State, 100 S.W.3d
232, 238 (Tex. Crim. App. 2003). However, the evidence should not be so
weak, contested, or incredible that it could not support such a finding by a
rational jury. McKinney, 179 S.W.3d at 569.
The mere fact that someone acts in response to provocation of another
is insufficient to warrant a charge on sudden passion. Trevino, 100 S.W.3d at
241. Instead, the person’s mental state must render him incapable of rational
thought and collected action. Kennedy v. State, 193 S.W.3d 645, 653–54
(Tex. App.—Fort Worth 2006, pet. ref’d). The defendant must show some
evidence that he was under the immediate influence of sudden passion.
Trevino, 100 S.W.3d at 241; see McKinney, 179 S.W.3d at 570 (holding that
the victim pushing and yelling at the defendant just before the shooting was not
an adequate cause to give rise to an immediate influence of sudden passion
because the fight began earlier in the day).
D. Admission of Evidence
We review a trial court’s decision to admit or to exclude evidence under
an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542
(Tex. Crim. App. 2000). A trial court does not abuse its discretion as long as
the decision to admit or to exclude the evidence is within the zone of
reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.
10
Crim. App. 1990) (op. on reh’g). And it cannot be said that the trial court’s
decision falls outside that zone if it can be supported under any theory of law,
regardless of whether the theory was raised at trial. Lincicome v. State, 3
S.W.3d 644, 649 (Tex. App.—Amarillo 1999, no pet.).
E. Jury Argument
Four of the generally permissible areas for the State’s jury argument
include: (1) summation of the evidence; (2) reasonable deduction from the
evidence; (3) answer to argument of opposing counsel; and (4) plea for law
enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992),
cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231
(Tex. Crim. App. 1973). When evaluating an alleged improper argument, an
appellate court views the statement in the context of the entire argument.
Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998) (op. on reh’g),
cert. denied, 526 U.S. 1070 (1999); Tyler v. State, No. 02-05-00389-CR,
2006 WL 1452536, at *2 (Tex. App.—Fort Worth May 25, 2006, no pet.).
When the trial court sustains an objection to improper jury argument and
instructs the jury to disregard but denies a defendant’s motion for a mistrial, the
issue is whether the trial court abused its discretion in denying the mistrial.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Ordinarily, any
injury from an improper jury argument is obviated when the trial court instructs
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the jury to disregard the argument, unless the remark is so inflammatory that
its prejudicial effect cannot reasonably be removed by such an admonishment.
Melton v. State, 713 S.W.2d 107, 114 (Tex. Crim. App. 1986); see Gonzalez
v. State, 115 S.W.3d 278, 284 (Tex. App.—Corpus Christi 2003, pet. ref’d).
Thus, only in extreme circumstances, when the prejudice caused by the
improper argument is incurable, i.e., “so prejudicial that expenditure of further
time and expense would be wasteful and futile,” will a mistrial be required.
Hawkins, 135 S.W.3d at 77 (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.
Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000)); see Simpson v. State,
119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905
(2004).
In determining whether the trial court abused its discretion by denying the
mistrial, we balance three factors: (1) the severity of the misconduct
(prejudicial effect), (2) curative measures, and (3) the certainty of conviction
absent the misconduct. Hawkins, 135 S.W.3d at 77; Mosley, 983 S.W.2d at
259.
V. L EGAL AND F ACTUAL S UFFICIENCY OF THE E VIDENCE
In his first and second points, Davis contends that the evidence proved
that he acted in self-defense when he stabbed Latarsha and that, therefore, the
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evidence is insufficient to sustain the jury’s guilty verdict.1 The evidence
presented to the jury by the State included the testimony of an eyewitness,
several police officers, medical examiners, and people who personally knew
Davis and Latarsha. Davis did not testify or call any witnesses on his behalf.
Latarsha’s four-year old daughter, Tanoah, witnessed her mother’s death.
Tanoah testified that she was at home with her mother in their apartment when
she heard her mother and her “daddy” (Davis) “fussing.” Tanoah went into the
living room, where Davis and Latarsha were arguing. She testified as follows:
Q. Okay. Tell us what happened next.
A. They started fighting.
Q. Okay. Then what happened?
A. Grabbed her hand -- saw my daddy kill my momma.
....
Q. Let me ask you this Tanoah, was your mommy hurt?
A. Yes, sir.
1
… The State argues that we should not perform a sufficiency analysis
because self-defense was not submitted to the jury. The State contends that
we cannot review the sufficiency of a claim not submitted to the jury.
Construing Davis’s first two points liberally, as we must, we treat them as
straightforward challenges to the sufficiency of the evidence to support the
jury’s verdict finding him guilty of murder. See T EX. R. A PP. P. 38.1(e) (requiring
appellate court to treat issue as covering every subsidiary question that is fairly
included).
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Q. Tanoah, who hurt your mommy?
A. My daddy.
Q. And how did he hurt her?
A. My daddy had killed her.
During cross-examination, Tanoah additionally testified:
Q. Okay. When you came into the room, did mommy have a
knife in her hand?
A. No, sir.
Q. Did daddy have a knife in his hand?
A. I don’t know.
The jury additionally heard a recording of the 9-1-1 call Latarsha made
that night. An audio forensic expert testified that the tape had recorded the
words of a female caller who identified herself as Tasha Hampton.2 The female
could be heard on the tape crying, screaming, and saying, “[G]et off me.” The
female said, “[P]lease send help,” “[P]lease . . . no more . . . no . . . not my
child” (ellipses in 9-1-1 transcript), and “Just don’t hurt her . . . it’s over . . .”
(ellipses in 9-1-1 transcript). Throughout the phone call, a screaming child and
a male voice saying “hang up the phone” could be heard in the background.
2
… Testimony by Latarsha’s mother and one of Latarsha’s friends
established that Latarsha went by Tasha.
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The female caller did not say anything else, but the 9-1-1 tape recorded the
child in the background saying, “You stabbed my momma” and “Daddy . . . you
have bleed [sic] on me.”
In addition to Tanoah’s testimony and the 9-1-1 tape, the police officers
on the scene that night testified. They explained that when they arrived both
Latarsha’s apartment doors were locked from the inside. They broke in through
the back door and discovered Latarsha, Davis, and Tanoah in the apartment.
Latarsha was on the floor in the living room; knife wounds were visible on her.
Davis was on top of Latarsha; he had knife wounds to his wrists, neck, and an
ear. Officer James Hatton testified that Tanoah was in a state of shock, but
that later that night she told him that Davis had hurt Latarsha by “hitting”
Latarsha with a knife in her neck. (Testimony from a medical examiner
confirmed that the fatal wound on Latarsha was a knife wound to the neck).
Tanoah also told police that Davis had pointed a gun at Latarsha and said, “I’m
going to kill you.” (Police discovered a loaded gun on the kitchen counter in the
apartment). Tanoah reported that Latarsha had tried to run away, but that
Davis had grabbed her.
Davis was transported from Latarsha’s apartment to the hospital.
Detective Jerry Graham testified that he met Davis at the hospital. Detective
Graham testified that, although he did not view Davis’s entire body, the
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wounds he did see on Davis, including Davis’s wrist and neck wounds, were
in his opinion self-inflicted. Detective Graham did not testify about Davis’s ear
wound; he noted only that he had noticed blood in Davis’s ear.
Medical examiner Dr. Nizam Peerwani performed the autopsy on Latarsha.
Dr. Peerwani said that Latarsha had sustained seven stab wounds, including
one to her neck, which was fatal. Dr. Peerwani classified several of the
wounds as defensive—inflicted after Latarsha had curled into a defensive
posture. One of the stab wounds, in fact, was in Latarsha’s back. Other stab
wounds were on Latarsha’s hands and arms and were, in Dr. Peerwani’s words,
“consistent with a stab injury where a person is trying to protect the more vital
and delicate parts of the body.”
On cross-examination, Dr. Peerwani admitted that an attacker could also
sustain defensive wounds. When presented with pictures of Davis’s wounds,
Dr. Peerwani indicated that he had not examined Davis and that too many
variables existed to accurately ascertain much about the wounds from a picture.
When pressed by Davis’s attorney, however, Dr. Peerwani conceded that the
cut to Davis’s ear was not a typical self-inflicted wound; he testified that it was
probably inflicted by someone else, but that Davis’s neck wounds were
probably self-inflicted.
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Finally, Latarsha’s friend Heather Reed testified that she had heard Davis
threaten to kill Latarsha if she attempted to end their relationship. Heather
overheard a cell phone conversation Latarsha had with Davis and said Davis
was speaking to Latarsha in a violent manner. Other testimony established that
Latarsha’s apartment was strewn with boxes, making it look like someone was
either moving in or moving out. Heather reported that Davis had moved a large
television out of Latarsha’s apartment and that someone was coming back to
retrieve the remainder of Davis’s belongings.
Davis’s ex-wife, Jacqueline Anderson, testified that Davis spoke with her
on the night of the murder. Davis reported that he and Latarsha were arguing.
Davis had been staying in a motel room, but wanted to move back to Latarsha’s
apartment. Davis apparently did not have transportation of his own, and none
of his friends would take him to Latarsha’s apartment. In fact, Davis told his
ex-wife that his friends offered to give him money to pay for additional nights
in the motel so that he would not go to Latarsha’s apartment. But Davis
refused and instead took a cab to Latarsha’s apartment that night. After
presenting all of this evidence, the State closed its case in chief. Davis did not
testify and did not call any witnesses on his behalf.
Applying the legal sufficiency standard of review to this evidence,
viewing this evidence in the light most favorable to the prosecution, we hold
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that a rational trier of fact could have found that Davis intentionally caused
Latarsha’s death. See Clayton, 235 S.W.3d at 778. Tanoah, an eye-witness,
testified that Davis attacked and killed Latarsha. Tanoah’s statements to police
on the night of the murder indicated that Davis had stabbed Latarsha in the
neck. Tanoah’s testimony was corroborated by the 9-1-1 call placed by
Latarsha that night, by the testimony of several police officers, and by the
testimony of the medical examiner.
Applying the factual sufficiency standard of review, the evidence
presented at trial that Davis intentionally caused Latarsha’s death was not so
weak that the jury’s verdict was nonetheless clearly wrong and manifestly
unjust. See Watson, 204 S.W.3d at 414–15, 417. No evidence exists in the
record contradicting Tanoah’s account of that night’s events. Indeed, all of the
evidence supports Tanoah’s version of the facts—the only version of that
night’s events proffered at trial. Therefore, we cannot conclude that the great
weight and preponderance of the evidence contradicts the jury’s verdict. See
id. Accordingly, we overrule Davis’s first and second points.
VI. D AVIS’S S ELF-D EFENSE C LAIM
In his tenth and eleventh points, Davis claims that the trial court erred by
refusing to instruct the jury on the law of self-defense.
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According to the law in effect on the night of the murder, 3
(a) A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other
under Section 9.31;
(2) if a reasonable person in the actor’s situation would not
have retreated; and
(3) when and to the degree he reasonably believes the deadly
force is immediately necessary:
(A) to protect himself against the other’s use or
attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of
aggravated kidnaping, murder, sexual assault,
aggravated sexual assault, robbery, or aggravated
robbery.
Act of May 27, 1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32, 1995 Tex.
Gen. Laws 2141, 2141 (amended 2007). Section 9.31, at the time that this
statute was effective, provided that a person is justified in using force against
3
… Although the legislature has since amended sections 9.31 and 9.32,
the offense for which the jury convicted Davis occurred on January 28, 2006,
which was before the September 1, 2007 effective date of the amendments.
Our analysis of Davis’s appeal is therefore governed by the previous versions
of these statutes. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900,
§ 1.01, sec. 9.31, 1993 Tex. Gen. Laws 3586, 3598 and Act of May 27,
1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32, 1995 Tex. Gen. Laws 2141,
2141, both amended by Act of March 27, 2007, 80th Leg., R.S., ch. 1, § 5,
2007 Tex. Gen. Laws 1, 2 (codified as an amendment to T EX. P ENAL C ODE A NN.
§§ 9.31, 9.32) (stating that an offense committed before the act’s effective
date is governed by the sections in effect when the offense was committed).
19
another when and to the degree he reasonably believes the force is immediately
necessary to protect himself against the other’s use or attempted use of
unlawful force. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01,
sec. 9.31, 1993 Tex. Gen. Laws 3586, 3598 (amended 2007).
Thus, looking to the first of these requirements for a self-defense
claim—applying the then-existing section 9.31 to section 9.32(a)(1)—Davis
presented no evidence that his attack on Latarsha was necessary to protect
himself from her. Indeed, the only testimony about what occurred in the
apartment that night established that Latarsha did not have a knife in her hand.
Davis argues, however that Dr. Peerwani’s testimony—that a cut on one of
Davis’s ears was probably not self-inflicted 4 —is evidence that Latarsha attacked
him. Assuming Dr. Peerwani’s testimony gives rise to the inference claimed by
Davis, Davis nonetheless failed to present any evidence that the force he used
against Latarsha, which consisted of stabbing Latarsha seven times, several
times while she was curled into a defensive position or trying to defend herself,
was immediately necessary to protect himself. See Ferrel, 55 S.W.3d at 586.
Furthermore, no evidence exists that a reasonable person in Davis’s
situation would not have retreated. See Act of May 27, 1995, 74th Leg., R.S.,
4
… The State points out that Dr. Peerwani was not asked “whether the
cut could have resulted when Appellant, who was left-handed, wielded a knife
high up against his own throat so that the end of the knife cut his own right
ear.”
20
ch. 235, § 1, sec. 9.32, 1995 Tex. Gen. Laws 2141, 2141 (amended 2007).
There was no testimony or evidence presented that Davis could not have simply
left the apartment or moved into a different room to avoid Latarsha’s supposed
attack. In fact, the evidence established that when Latarsha called 9-1-1, Davis
ordered her to hang up the phone; when Latarsha tried to run away, Davis
grabbed her and pulled her back.
Viewing the evidence in the light most favorable to Davis, as we must
under the applicable standard of review, no evidence exists that establishes
Davis’s entitlement to a self-defense charge, and the trial court did not err by
refusing one. See, e.g., Ferrel, 55 S.W.3d at 591. We overrule Davis’s tenth
and eleventh points.
VII. D AVIS’S S UDDEN P ASSION C LAIM
In his third point, Davis argues that the greater weight and preponderance
of the evidence shows that he acted under the influence of a sudden passion.
Therefore, Davis suggests in his fourth point, the trial court erred by not
including a sudden passion jury instruction during the punishment phase.
We have reviewed all of the evidence—viewing it as we must under the
controlling standard of review—in the light most favorable to Davis to determine
whether there is some evidence that an adequate provocation existed for
Davis’s conduct, that is, that a passion or an emotion such as fear, terror,
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anger, rage, or resentment existed; that the homicide occurred while the
passion still existed and before there was reasonable opportunity for the
passion to cool; and that there was a causal connection between the
provocation, the passion, and the homicide. See T EX. P ENAL C ODE A NN.
§ 19.02(a)(1), (a)(2), (d); McKinney, 179 S.W.3d at 569. No such testimony
or evidence exists; indeed, Davis points to no evidence in the record indicating
that Latarsha acted in a manner that would produce an emotion sufficient to
render the mind of a person of ordinary temper incapable of cool reflection. See
T EX. P ENAL C ODE A NN. § 19.02(a)(1), (a)(2), (d); McKinney, 179 S.W.3d at 569;
Kennedy, 193 S.W.3d at 653–54. Therefore, the trial court did not err by
denying Davis’s request for a jury instruction on sudden passion. We overrule
Davis’s third and fourth points.
VIII. D AVIS’S O BJECTIONS TO T ESTIMONY D URING THE T RIAL
A. Concerning the Admission of Tanoah’s Testimony
In his fifteenth and sixteenth points, Davis contends that the trial court
erred by allowing five-year-old Tanoah to testify. Davis generally argues that
the trial court failed to determine whether Tanoah was a competent witness
before allowing her testimony and thus erred. Davis also appears to argue that
Tanoah was not competent to testify because she did not demonstrate that she
understood that a penalty existed for not telling the truth.
22
A trial court’s determination of whether a child witness is competent to
testify and its ruling on the issue will not be disturbed on appeal absent an
abuse of discretion. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim.
App. 1995), cert. denied, 519 U.S. 826 (1996); De Los Santos v. State, 219
S.W.3d 71, 80 (Tex. Crim. App.—San Antonio 2006, no pet.); Woods v. State,
14 S.W.3d 445, 450 (Tex. App.—Fort Worth 2000, no pet.). We review the
child’s responses to qualification questions as well as the child’s entire
testimony to determine whether the trial court’s ruling constituted an abuse of
discretion. De Los Santos, 219 S.W.3d at 80–81; Fox v. State, 175 S.W.3d
475, 481 (Tex. App.—Texarkana 2005, pet. ref’d); Woods, 14 S.W.3d at 451.
Rule 601 of the Rules of Evidence creates a presumption that a person
is competent to testify. T EX. R. E VID. 601. The trial court has no duty to
conduct a preliminary competency examination on its own motion. McGinn v.
State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). Once the competency
of a child witness is challenged, the trial court must assure itself that the child
has (1) the ability to intelligently observe the events in question at the time of
the occurrence, (2) the capacity to recollect the events, and (3) the capacity to
narrate the events. Torres v. State, 33 S.W.3d 252, 255 (Tex. Crim. App.
2000) (quoting Watson v. State, 596 S.W .2d 867, 870 (Tex. Crim. App.
1980)); Hollinger v. State, 911 S.W.2d 35, 38–39 (Tex. App.—Tyler 1995,
23
pet. ref’d). The third element, involving the capacity to narrate, requires that
the witness is able to understand the questions asked, frame intelligent answers
to those questions, and understand the moral responsibility to tell the truth.
Watson, 596 S.W.2d at 870; Hollinger, 911 S.W.2d at 39.
After administering the oath to Tanoah, the trial court asked her a series
of questions. Tanoah successfully answered questions concerning her name,
age, and where she lived. She said that she knew what it was to tell the truth
and to tell a lie. The trial court probed Tanoah’s ability to distinguish the truth
from a lie by asking, “If I were to tell you I had on a red tie, would that be the
truth or would that be not the truth?” Tanoah, apparently correctly, answered
“Not the truth.” Furthermore, the trial court twice asked Tanoah whether she
was going to tell the truth in court that day, and both times Tanoah confirmed
that she was going to tell the truth.
One of Davis’s chief complaints concerning the competency of Tanoah’s
testimony is that the trial court did not ask Tanoah whether she knew that
there was a penalty for not telling the truth. But Davis has not cited any
authority, and we have located none, requiring the trial court to question a child
on the child’s understanding of the punishment that will be inflicted should he
or she lie. Thus, we cannot say that the trial court’s failure to so question
Tanoah rendered the decision to permit her to testify an abuse of discretion.
24
We have reviewed the body of Tanoah’s testimony, and it demonstrates
that Tanoah was able to intelligently observe the events on the night of her
mother’s death, and could, for the most part, recollect those events and
narrate them. See Watson, 596 S.W.2d at 870; Hollinger, 911 S.W.2d at
38–39. Considering Tanoah’s responses to the trial court’s qualification
questions as well as her testimony as a whole, we hold that the trial court did
not abuse its discretion by finding Tahoah competent to testify. See T EX. R.
E VID. 601(a)(2); De Los Santos, 219 S.W.3d at 80.
Davis also claims that the trial court erred by failing to make an explicit
finding on the record that Tanoah was competent to testify. But after the trial
court questioned Tanoah, it overruled Davis’s objection to her competency and
allowed the State to question her. Davis later re-urged his competency
objection, and the trial court again overruled it. By overruling Davis’s objections
to Tanoah’s competency and permitting Tanoah to testify, the trial court
implicitly found Tanoah competent to testify. See T EX. R. A PP. P. 33.1(a)(2)(A).
Nothing more is required. We overrule Davis’s fifteenth and sixteenth points.
B. Concerning the Alleged Restriction of Cross-Examination
of Detective Graham
25
In his thirteenth point, Davis contends that the trial court erred by “not
permitting [him] to elicit on cross-examination of Detective Graham his opinion
as to whether [Davis’s] wounds were self-inflicted.”
Detective Jerry Graham testified that he was the police officer who
interviewed Davis at the hospital. Detective Graham testified that he saw the
wounds to Davis’s neck and to one of Davis’s wrists and that he saw blood in
Davis’s ear. When asked by the prosecution, “Did you see any wounds on
James Davis that would be classified as defensive wounds?,” Detective Graham
responded, “No, sir.” But on cross-examination, Davis did specifically inquire
into Detective Graham’s opinion as to whether Davis’s wounds were self-
inflicted. Davis asked, “Of the wounds that you did see, you told us that they
did not appear to be defensive as far as your opinion; is that correct?”
Detective Graham answered, “Correct.” On recross-examination Davis again
asked, “Are you talking about the wounds that you saw on the wrist appeared
to be self-inflicted?,” to which Detective Graham answered, “Those appeared
to be self-inflicted, yes.”
Thus, Davis’s complaint that the trial court erred by “not permitting [him]
to elicit on cross-examination of Detective Graham his opinion as to whether
[Davis’s] wounds were self-inflicted” is not well-founded in the record. The
record reflects that the trial court did permit Davis to cross examine Detective
26
Graham on his opinion as to whether Davis’s wounds were self-inflicted. We
overrule Davis’s thirteenth point.
C. Concerning Exclusion of Statements Davis Made to Detective Graham
Davis alleges in his fourteenth point that the trial court erred by excluding
statements that Davis made to Detective Graham; Davis claims the statements
were admissible to impeach Detective Graham’s opinion that the wounds he
observed on Davis appeared to be self-inflicted. At the hospital, Davis told
Detective Graham that he had cut his own wrists, but made multiple claims that
Latarsha had slashed his neck. Detective Graham’s report reflects these
statements by Davis. Davis attempted to elicit testimony from Detective
Graham concerning the statements Davis made at the hospital indicating that
Latarsha had inflicted his neck wound. Davis conceded that his statements
were hearsay but argued they were admissible under Texas Rules of Evidence
701–705 because they formed the basis of Detective Graham’s opinion that his
wounds were self-inflicted and to impeach Detective Graham. The trial court
excluded the statements.
We review the trial court’s ruling again applying the abuse of discretion
standard of review. See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim.
App. 1997); Montgomery, 810 S.W.2d at 392. The parties concede that
27
Davis’s statements to Detective Graham constitute hearsay. See T EX. R. E VID.
801; Allridge v. State, 762 S.W.2d 146, 152 (Tex. Crim. App. 1988);
Chambers v. State, 905 S.W.2d 328, 330 (Tex. App.—Fort Worth 1995, no
pet.). Davis claims, however, that the trial court should have admitted them
pursuant to Texas Rule of Evidence 705(d). That rule requires the trial court to
exclude facts or data relied upon by an expert if “the danger that [the facts or
data] will be used for a purpose other than as explanation or support for the
expert’s opinion outweighs their value as explanation or support or are unfairly
prejudicial.” T EX. R. E VID. 705(d).
Thus, the trial court here was required to exclude Davis’s statements to
Detective Graham unless the value of the statements as an explanation or
support for Detective Graham’s expert opinion outweighed the danger that
Davis’s statements would be used for a purpose other than as an explanation
of or support for the opinion. See id. As with a rule 403 balancing test, a trial
court need not conduct a 705(d) balancing test on the record. See Valle v.
State, 109 S.W .3d 500, 506 (Tex. Crim. App. 2003) (applying a form of
analysis traditionally used in a rule 403 balancing test to rule 705); Yates v.
State, 941 S.W.2d 357, 367 (Tex. App.—Waco 1997, pet. ref’d) (holding that
a trial court need not perform a 403 balancing test on the record); Luxton v.
State, 941 S.W .2d 339, 343 (Tex. App.—Fort Worth 1997, no pet.)
28
(presuming that the trial court mentally conducted a 403 balancing test even
though it was not explicitly done on the record).
Detective Graham testified:
Q. And, in your opinion, was [the neck wound] a self-inflicted
wound?
A. With the wound starting deeper on this side and getting narrow
toward the neck and rounding to the front, yes, sir, I believe it
was self-inflicted. 5
Outside the presence of the jury, while the trial court considered the
admissibility of Davis’s statements to Detective Graham, Detective Graham
testified:
Q. Detective Graham, you testified as to whether the wounds
were self-inflicted or not. Did part of the information in which
you make that opinion come from talking to my client?
A. No, sir.
....
Q. Okay. And you’re saying that what he told you played no part
in the opinion you’ve just expressed to the jury about self-
inflicted wounds?
A. Yes, it did play a part.
Q. So it was part of your opinion that you just told the jury? It
helped you form that opinion?
5
… Testimony was unclear as to whether there was one big neck wound
or two smaller neck wounds.
29
A. Yes, sir.
A little later, the following exchange occurred:
THE COURT: While ago you talked about -- you were talking about
self-inflicted wounds?
THE WITNESS: Yes, sir.
THE COURT: And you stated that you thought they were self-
inflicted, is that correct?
THE WITNESS: Yes, sir.
THE COURT: Because he told you. Are you talking about his wrist
wounds about being self-inflicted, is that correct, or are you talking
about his wrist wounds along with his neck wounds?
THE WITNESS: I believe that they were all three self-inflicted.
We cannot hold that the trial court abused its discretion by concluding the
value of Davis’s statements to Detective Graham as an explanation or support
for Detective Graham’s opinion did not outweigh the danger that Davis’s
statements would be used for a purpose—that is, as substantive
evidence—other than as an explanation or support for Detective Graham’s
opinion. See T EX. R. E VID. 705; Valle, 109 S.W .3d at 505–06. This is
especially true because (1) Detective Graham gave conflicting testimony on
whether he considered Davis’s statement in forming his opinion and ultimately
admitted that he did not believe Davis but rather that, based on his
observations and experience, he believed all of the wounds were self-inflicted;
30
and (2) Davis candidly concedes that he wanted his statements to Detective
Graham admitted because they were “an integral part of the Appellant’s self-
defense claim.” Thus, Davis admits that the value of the statements was not
as an “explanation or support” for Detective Graham’s opinion, but rather as
substantive evidence to advance his own self-defense claim—a purpose rule
705(d) aims to prevent. See Valle, 109 S.W.3d at 505–06 (quoting Cole v.
State, 839 S.W.2d 798, 815 (Tex. Crim. App. 1990) (Maloney, J. concurring
on rehearing) (“One of the greatest dangers in allowing otherwise inadmissible
evidence under Rule 705 is that the jury will consider the facts and data as
substantive evidence rather than as merely constituting the underlying basis for
the expert’s opinion”)).
Davis additionally argues that the trial court should have permitted him
to “impeach” Detective Graham with the statements “under the rules in Chapter
6 of the Texas Rules of Evidence.” Presuming that a citation to nothing more
specific than “Chapter 6" is sufficient to meet the briefing requirements of
Texas Rule of Appellate Procedure 38.1(h), we cannot agree that Davis’s
statements here have any value to impeach Detective Graham. Davis claims
that “Det. Graham interviewed the Appellant in his hospital bed and determined
that some of the wounds suffered by the Appellant were no[t] self-inflicted
which was contrary to his expressed opinion before the jury.” The record,
31
however, establishes that Detective Graham was always of the opinion that
Davis’s wounds were self-inflicted; the statements in Detective Graham’s report
indicating that Davis’s wounds were not self-inflicted were statements by Davis
himself, not by Detective Graham. Thus, we cannot agree that the trial court
abused its discretion by prohibiting Davis from impeaching Detective Graham
with Davis’s statements that Latarsha slashed his neck. Having concluded that
the trial court did not abuse its discretion by ruling Davis’s hearsay statements
inadmissible under rule 705 or as impeachment evidence, we overrule Davis’s
fourteenth point.
D. Concerning Officer Mullinax’s Testimony
In his seventeenth point, Davis contends that the trial court erred by
admitting Officer Michael Mullinax’s testimony. Approximately six months
before Latarsha’s death, Officer Mullinax responded to a 9-1-1 call made by
Latarsha. When Officer Mullinax responded to Latarsha’s prior 9-1-1 call,
Latarsha made various statements to him. Davis timely objected to Officer
Mullinax’s testimony concerning Latarsha’s statements on hearsay and “cross-
examination and confrontation” grounds. The trial court overruled Davis’s
objections, but granted him a running objection. Davis contends that the trial
court erred by overruling his objections.
32
Officer Mullinax testified that when he arrived at Latarsha’s apartment,
she told him that she and Davis had gotten into an argument, that she had
asked Davis to leave, and that Davis had become angry and pushed her into a
wall. Latarsha further told Officer Mullinax that she had hit her head on the
wall, fallen to the ground, and cut her finger. She showed the cut to Officer
Mullinax. Latarsha explained that when she had tried to call the police Davis
had pulled the phones from the wall; after a friend arrived, Latarsha used the
friend’s cell phone to call 9-1-1. Officer Mullinax spoke with Latarsha as they
stood outside her apartment; Davis was not present because he had left the
apartment. Later, however, while Officer Mullinax was still at Latarsha’s
apartment, Davis returned and was arrested.
1. Hearsay Objection to Officer Mullinax’s Testimony
We review a trial court’s ruling on the admissibility of an out-of-court
statement under the exceptions to the general hearsay exclusion rule for an
abuse of discretion. Zuliani, 97 S.W.3d at 595. Hearsay is a statement, other
than the one made by the declarant while testifying at a trial or hearing, offered
into evidence to prove the truth of the matter asserted. T EX. R. E VID. 801(d).
In order for hearsay to be admissible, it must fit into an exception provided by
a statute or the Rules of Evidence. Id. 802; Zuliani, 97 S.W.3d at 595. One
such exception is rule 803(2)—the excited utterance exception. An “excited
33
utterance” is “[a] statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or
condition.” T EX. R. E VID. 803(2).
In determining whether a hearsay statement is admissible as an excited
utterance, the court may consider the time elapsed and whether the statement
was in response to a question. Zuliani, 97 S.W.3d at 595; Salazar v. State, 38
S.W.3d 141, 154 (Tex. Crim. App. 2001). However, it is not dispositive that
the statement is an answer to a question or that it was separated by a period
of time from the startling event; these are simply factors to consider in
determining whether the statement is admissible under the excited utterance
hearsay exception. Zuliani, 97 S.W.3d at 596.
The critical determination is “whether the declarant was still dominated
by the emotions, excitement, fear, or pain of the event” at the time of the
statement. Zuliani, 97 S.W.3d at 596. Stated differently, a reviewing court
must determine whether the statement was made “under such circumstances
as would reasonably show that it resulted from impulse rather than reason and
reflection.” Id. (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex. Crim.
App. 1964)).
Here, the evidence established that when Officer Mullinax responded to
Latarsha’s 9-1-1 call he found Latarsha “clearly upset,” her hands were shaking
34
badly, and she was crying. The record does not indicate what period of time
elapsed between the altercation and Latarsha’s statement, but a reasonable
inference exists that 9-1-1 response time is fairly quick. Based on these facts,
we cannot say that the trial court acted outside the zone of reasonable
disagreement by overruling Davis’s hearsay objection to Officer Mullinax’s
recitation of Latarsha’s hearsay statement that Davis had gotten angry and
pushed her into a wall and by admitting it as an excited utterance. 6 See, e.g.,
Zuliani, 97 S.W.3d at 596 (holding that the statements of a “scared to death”
declarant whispering “help me” to police officers twenty hours after being
assaulted were excited utterances); Jackson v. State, 110 S.W.3d 626, 634
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding that the statements
of a recently assaulted, “very upset,” and crying assault victim were excited
utterances); see also Reyes v. State, 48 S.W.3d 917, 920 (Tex. App.—Fort
Worth 2001, no pet.); Bondurant v. State, 956 S.W.2d 762, 766 (Tex.
App.—Fort Worth 1997, pet. ref’d).
2. Confrontation Clause Objection to Officer Mullinax’s Testimony
6
… Although the trial court did not explicitly find that the statement was
an excited utterance (the trial court gave no basis for its overruling of Davis’s
objection), we nevertheless uphold the trial court’s ruling on an evidentiary
matter if it is correct on any theory of law applicable to the case. See McDuff
v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997).
35
Whether Officer Mullinax’s testimony violated Davis’s Confrontation
Clause rights, however, is an altogether separate inquiry from whether the
testimony was properly admitted under the rules of evidence. See Wall v.
State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) (recognizing statement
could be admissible as an excited utterance and still constitute a testimonial
statement for purposes of a Confrontation Clause analysis). Thus, we next
conduct an analysis of whether the trial court erred by overruling Davis’s
Confrontation Clause objection to Officer Mullinax’s testimony.
Recently, in a case involving facts similar to the present facts, the Court
of Criminal Appeals explained that the proponent of evidence ordinarily has the
burden of establishing the admissibility of the proffered evidence. Vinson v.
State, 252 S.W.3d 336, 339 (Tex. Crim. App. 2008). Once an objection is
made, the proponent must demonstrate by a preponderance of the evidence
that the proffered evidence overcomes the stated objection. Id. at 340 n.14
(quoting Bourjaily v. United States, 483 U.S. 171, 175, 107 S. Ct. 2775, 2778
(1987)).
We review a constitutional legal ruling, such as whether a statement is
testimonial or nontestimonial, de novo. Lilly v. Virginia, 527 U.S. 116, 137,
119 S. Ct. 1887, 1900 (1999); Vinson, 252 S.W.3d at 339; Wall, 184 S.W.3d
at 742. This is particularly so because the legal ruling of whether a statement
36
is testimonial under Crawford is determined by the standard of an objectively
reasonable declarant standing in the shoes of the actual declarant. Wall, 184
S.W.3d at 742–43. On that question trial judges are no better equipped than
are appellate judges, and the ruling itself does not depend upon demeanor,
credibility, or other criteria peculiar to personal observation. Id. “[T]he
surrounding circumstances relevant to a Sixth Amendment admissibility
determination do not include the declarant’s in-court demeanor (otherwise the
declarant would be testifying) or any other factor uniquely suited to the
province of trial courts.” Lilly, 527 U.S. at 137, 119 S. Ct. at 1900.
Therefore, an appellate court reviews de novo whether, on the record before it,
the State overcame a defendant’s Confrontation Clause objection by a
preponderance of the evidence. Id.; Vinson, 252 S.W.3d at 340.
The Confrontation Clause of the Sixth Amendment provides: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. C ONST. amend. VI. Even when hearsay
offered against a defendant is admissible under evidentiary rules, that evidence
may implicate the Confrontation Clause of the Sixth Amendment if the
defendant is not afforded the opportunity to confront the out-of-court declarant.
Gonzalez v. State, 195 S.W.3d 114, 116 (Tex. Crim. App.), cert. denied, 127
S. Ct. 564 (2006).
37
In Crawford v. Washington, the Supreme Court held that the
Confrontation Clause barred the “admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify and the
defendant had had a prior opportunity for cross-examination.” 541 U.S. 36,
53–54, 124 S. Ct. 1354, 1365 (2004). The Court later clarified what qualified
as a “testimonial” statement in Davis v. Washington, where it established:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
547 U.S. 813, 822, 126 S. Ct. 2266, 2273–74 (2006).
The issue here in determining whether Latarsha’s statements to Officer
Mullinax were testimonial is whether, at the time Latarsha made the
statements, circumstances were present that would indicate the existence of
an ongoing emergency. See Vinson, 252 S.W.3d at 339. We look to the
nonexclusive factors of (1) whether the situation was still in progress; (2)
whether the questions sought to determine what is presently happening as
opposed to what has happened in the past; (3) whether the primary purpose of
the interrogation was to render aid rather than to memorialize a possible crime;
38
(4) whether the questioning was conducted in a separate room, away from the
alleged attacker; and (5) whether the events were deliberately recounted in a
step-by-step fashion. See Vinson, 252 S.W.3d at 339 (citing Davis, 547 U.S.
at 822, 126 S. Ct. at 2274–75). Each of these factors establishes the
testimonial nature of Latarsha’s statements to Officer Mullinax. First, the
situation was not still in progress; Davis had left the apartment before Officer
Mullinax arrived. Second, because the situation had concluded, Officer
Mullinax’s questions to Latarsha were about what had already happened. Third,
the primary purpose of the interrogation was to memorialize the assault
committed by Davis—in fact Davis was arrested that day based on Latarsha’s
statements. Fourth, Latarsha and Officer Mullinax spoke outside Davis’s
presence and fifth, Latarsha did recount the events in a step-by-step fashion.
Consequently, applying a de novo standard of review to the trial court’s legal
question of whether Latarsha’s statements to Officer Mullinax were testimonial,
we hold that they were. See Vinson, 252 S.W.3d at 339 (applying these
factors and holding statements made by victim to officer responding to 9-1-1
call were testimonial); Mason v. State, 225 S.W.3d 902, 911 (Tex.
App.—Dallas 2007, pet. ref’d) (statements given to a police officer responding
to a 9-1-1 call reporting domestic violence were testimonial).
39
Our holding that Latarsha’s statements to Officer Mullinax were
testimonial does not, however, end our analysis. In both Crawford and Davis,
the United States Supreme Court recognized that the equitable exception of
forfeiture by wrongdoing “extinguishes confrontation claims.” Davis, 547 U.S.
at 833, 126 S. Ct. at 2280; Crawford, 541 U.S. at 62, 124 S. Ct. at 1370.
That is, one who obtains the absence of a witness by wrongdoing forfeits the
constitutional right to confrontation. Davis, 547 U.S. at 833, 126 S. Ct. at
2280. Consequently, we must analyze whether Davis forfeited his
constitutional right to confront Latarsha by killing her.
The forfeiture by wrongdoing doctrine dates back to the 1600s and has
been firmly rooted in Supreme Court jurisprudence since the late 1800s. See
Reynolds v. United States, 98 U.S. 145 (1878); Lord Morely’s Case, 6 State
Trials 769 (1666). In fact, until recently, the leading American case on the
forfeiture doctrine was Reynolds, handed down by the Supreme Court in 1878.
See Reynolds, 98 U.S. 145. In Reynolds, the Court explained that the rule “has
its foundation in the maxim that no one shall be permitted to take advantage
of his own wrong . . . [the doctrine] is the outgrowth of a maxim based on the
principles of common honesty.” Id. Thus, this “essentially equitable” principle
mandates that “one who obtains the absence of a witness by wrongdoing
40
forfeits the constitutional right to confrontation.” Davis, 547 U.S. at 833, 126
S. Ct. at 2280.
As the rule evolved in the nation’s case law after Reynolds, courts agreed
that forfeiture required (1) the declarant’s unavailability (2) as a result of the
defendant’s act of misconduct. Gonzalez, 195 S.W.3d at 120. Courts
disagreed, however, on whether there must be an additional showing that the
defendant’s actions were undertaken for the purpose of preventing the witness
from testifying at trial. See id. at 121–25 (setting forth an extremely thorough
examination of the doctrine’s development across state and federal courts).
During the pendency of this appeal, the Supreme Court resolved the issue
and held that such an additional showing is required for the forfeiture doctrine.
Giles v. California, 128 S. Ct. 2678, 2683 (2008). That is, a defendant does
not waive his Confrontation Clause rights under the forfeiture by wrongdoing
exception unless the defendant engaged in the wrongful conduct specifically for
the purpose of preventing the witness from testifying. Id.
Here, there is no evidence that Davis murdered Latarsha to prevent her
from testifying. Therefore, applying the United States Supreme Court’s holding
in Giles— which is binding on this court—to the present facts, and in the
absence of evidence that Davis killed Latarsha specifically to prevent her from
testifying, we cannot hold that Davis forfeited his right to confront Latarsha by
41
killing her. See id. Having held that Davis timely asserted a Confrontation
Clause objection to Officer Mullinax’s testimony, that Latarsha’s statements to
Officer Mullinax were testimonial, and that—applying the holding in
Giles—Davis did not forfeit his right to confront Latarsha by killing her, we hold
that the trial court erred by overruling Davis’s Confrontation Clause objection
to Officer Mullinax’s testimony about Latarsha’s statements to him.
Having found error, we must conduct a harm analysis to determine
whether the error is harmless. T EX. R. A PP. P. 44.2(a). Because the error is
constitutional, we apply rule 44.2(a), under which we must reverse unless we
determine beyond a reasonable doubt that the error did not contribute to
appellant’s conviction or punishment. T EX. R. A PP. P. 44.2(a). In applying a rule
44.2(a) harm analysis to hearsay erroneously admitted over the defendant’s
Confrontation Clause objection, the Court of Criminal Appeals has instructed us
that if the verdict or punishment would have been the same absent the error
then the error is harmless. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim.
App. 2007) (reversing appellate court’s conclusion that hearsay erroneously
admitted over Confrontation Clause objection was not harmless under rule
44.2(a) standard). In our assessment of the likelihood that, absent the trial
court's error, the jury’s verdict as to appellant’s conviction and punishment
would have been the same, we must consider the entire record. Id. Among the
42
factors, as revealed by the record, that we must consider are: (1) the
importance of the hearsay evidence to the State’s case; (2) whether the
hearsay evidence was cumulative of other evidence; (3) the presence or
absence of other evidence corroborating or contradicting the hearsay evidence
on material points; and (4) the overall strength of the State's case. Id.; Scott
v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007). We must also
consider any other factor, as revealed by the record, that may shed light on the
probable impact of the trial court’s error on the minds of average jurors. Clay,
240 S.W.3d at 904 .
Here, the hearsay (Latarsha’s statements to Officer Mullinax) was not
important to the State’s case. The hearsay did not establish any element of the
offense of the charged murder; instead the hearsay involved a prior 9-1-1 call
made by Latarsha. Although the hearsay was not “cumulative,” it was similar
in nature to the testimony of Benbrook Police Officer Walter Keffer. Officer
Keffer testified that just four days before the murder, he was dispatched to
Latarsha’s apartment based on a 9-1-1 call reporting an unwanted person at
her apartment. He met with Latarsha and Davis and took Davis away from the
apartment. Additionally, the hearsay was similar in nature to testimony
provided by Latarsha’s friend Heather Reed. Heather testified extensively about
Davis’s conduct towards Latarsha. Heather testified that she had heard Davis
43
verbally abuse Latarsha on multiple occasions, yelling that Latarsha would never
leave him except in a body bag and threatening to blow up Latarsha’s
apartment if she tried to leave him. And another of Latarsha’s friends, Kimberly
Hudson, testified that Davis had a volatile temper and called Latarsha his
“investment” and that on the night of the murder as she stood waiting for
someone to answer her knock on the door of Latarsha’s apartment she
overheard Latarsha saying, “no, no, James, no.” Thus, although Latarsha’s
exact hearsay statements to Officer Mullinax were not technically “cumulative
of” or “corroborated by” other evidence, the inferences the jury was likely to
draw from Latarsha’s statements to Officer Mullinax are the exact same
inferences the jury likely did draw from the other testimony, outlined above,
that was admitted. Finally, the State’s case against Davis was very strong. An
eyewitness—Tanoah—testified that Davis stabbed Latarsha in the neck.
Tanoah’s version of the events was corroborated by the 9-1-1 tape made when
Latarsha called police during Davis’s attack. And when police arrived at the
scene, all of the apartment doors were locked from the inside and only Tanoah,
Latarsha, and Davis were inside the apartment. Testimony from police officers
and the medical examiner further confirmed the accuracy of the events as
explained by Tanoah. Reviewing the entire record in a neutral manner and
applying the factors as instructed by the Court of Criminal Appeals in Clay, we
44
hold beyond a reasonable doubt that the trial court’s error in admitting Officer
Mullinax’s testimony about the hearsay statements Latarsha made to him when
he responded to her 9-1-1 call approximately six months before her murder did
not contribute to Davis’s conviction or punishment. See T EX. R. A PP. P. 44.2(a);
Clay, 240 S.W.3d at 904. Accordingly, we overrule Davis’s seventeenth point.
E. Concerning Heather Reed’s Testimony
In his eighteenth point, Davis contends that the trial court erred by
admitting the testimony of Heather Reed, a close personal friend of Latarsha.
Heather testified about Latarsha and Davis’s relationship. Davis objected to
various portions of Heather’s testimony, as set forth below, urging (as he does
on appeal) that the testimony was hearsay and violated his Confrontation
Clause rights.
1. Heather testified that in October 2005 Latarsha came to Heather’s
apartment and asked if she and Tanoah could stay the night because
Davis was being verbally abusive. Heather said yes, and while Latarsha
was at Heather’s apartment, Davis called Latarsha several times.
According to Heather, Latarsha would “hang up and hang up, then she’d
speak to him, ‘I can’t talk to you when you’re like this.’”
2. Heather testified that she overheard a phone conversation around
Valentine’s day of 2005 between Davis and Latarsha. Heather said that
she heard Davis “talking real violent to [Latarsha]” and calling her names.
Heather testified that she knew this because “[Latarsha’s] cell phone was
turned up real loud, you could hear everything when the cell phone is
turned up loud.”
45
3. Heather testified that later the same day she went to Latarsha’s
apartment and heard Davis tell Latarhsa, “It’ll never be over, it’ll never be
over. The only way you’re going to leave me is one way.” Davis later
added, “The only way you’re going to leave me is in a body bag.”
4. Heather testified that she overheard another cell phone call between
Latarsha and Davis in October 2005 and heard “[Davis] threaten[]
[Latarsha] again talking about the only way you’re going to leave me is
in a body bag.”
5. Heather testified that she had never known Davis to work and that
Latarsha paid all the household bills.
6. Heather testified that Latarsha was in medical school when she met her
and that Latarsha was planning on going back to medical school.
7. Heather testified that Davis had proposed marriage to Latarsha, but that
Latarsha wanted to take a “wait and see” approach.
8. Heather testified that, on the day of Latarsha’s death, she went to
Latarsha’s apartment and noticed that Latarsha’s television set was
missing. According to Heather, she asked Latarsha, “Where is your TV
at?” Latarsha responded, “[Davis] took it, he and a friend come over and
took it.” Latarsha additionally related that Davis had a friend come over
to the house to get the rest of his belongings.
On appeal, Davis claims that the trial court erred by admitting Heather’s
testimony recited above because the itemized testimony constitutes hearsay
and violates his Confrontation Clause rights. Davis, however, did not object at
trial to Heather’s testimony as set forth in paragraphs 5, 6, 7, and 8.
Therefore, these complaints are forfeited on appeal. See T EX. R. A PP. P.
33.1(a)(1).
46
Heather’s testimony, as reflected in paragraphs 2, 3, and 4, reflects out-
of-court statements made by Davis himself that were personally heard by
Heather. Consequently, Heather’s testimony concerning Davis’s out-of-court
statements was admissible as admissions by a party opponent. See T EX. R.
E VID. 801(e)(2)(A); Trevino, 991 S.W.2d at 853 (noting that “[a] party’s own
statements are not hearsay and they are admissible on the logic that a party is
estopped from challenging the fundamental reliability or trustworthiness of his
own statements”). Accordingly, the trial court did not abuse its discretion by
overruling Davis’s hearsay objections to Heather’s testimony reflected in
paragraphs 2, 3, and 4, above.
Concerning Davis’s Confrontation Clause objections to Heather’s
testimony as set forth in paragraphs 2, 3, and 4, above, we have not located
and Davis has not cited any authority for the proposition that the admission of
a defendant’s out-of-court statement through a witness who personally heard
the statement somehow violates the defendant’s right to confront and cross-
examine himself about the out-of-court statement he made. Accordingly, the
trial court did not err by overruling Davis’s Confrontation Clause objections to
Heather’s testimony reflected in paragraphs 2, 3, and 4.
Concerning Davis’s hearsay objections to Heather’s testimony as set forth
in paragraph 1, assuming the trial court abused its discretion by admitting
47
Heather’s testimony about Latarsha’s comments to Davis, we proceed to a
harm analysis. Because error in admitting a statement in violation of the
hearsay rules of evidence is non-constitutional, we apply rule 44.2(b). T EX. R.
A PP. P. 44.2(b); West v. State, 121 S.W.3d 95, 104 (Tex. App.—Fort Worth
2003, pet. ref’d) (applying a rule 44.2(b) harm analysis after determining that
the trial court impermissibly allowed a hearsay statement). The reviewing court
must deem the error harmless if, after reviewing the entire record, the court is
reasonably assured the error did not influence the jury's verdict or had but a
slight effect. Thus, we disregard the error if it did not affect appellant’s
substantial rights. T EX. R. A PP. P. 44.2(b); see Mosley v. State, 983 S.W.2d
249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070
(1999); Coggeshall v. State, 961 S.W.2d 639, 642–43 (Tex. App.—Fort Worth
1998, pet. ref’d). In making this determination, we review the record as a
whole. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
As the Texas Court of Criminal Appeals has held, properly admitted evidence
of an appellant’s guilt is one factor to consider in performing a harm analysis
under rule 44.2(b). Motilla v. State, 78 S.W.3d 352, 358 (Tex. Crim. App.
2002). Reviewing the record as a whole, including the evidence of Davis’s guilt
as already set forth in detail herein, any trial court error in permitting Heather
to testify that Davis called Latarsha and that she heard Latarsha saying, “I can’t
48
talk to you when you’re like this” did not influence the jury’s verdict.
Accordingly, even if the trial court abused its discretion by overruling Davis’s
hearsay objection to Heather’s testimony reflected in paragraph 1, any error
was harmless.
Finally, concerning Davis’s Confrontation Clause objections to Heather’s
testimony set forth in paragraph 1, the Sixth Amendment bars the admission
testimonial statements of a witness who did not testify at trial and was not
subject to cross-examination by the defendant. Crawford, 541 U.S. at 53–54,
124 S. Ct. at 1365 (emphasis added). Casual remarks made to friends are
generally not testimonial. See id. at 51, 124 S. Ct. at 1365 (saying that “[a]n
accuser who makes a formal statement to government officers bears testimony
in a sense that a person who makes a casual remark to an acquaintance does
not”); Davis v. State, 169 S.W.3d 660, 667 (Tex. App.—Austin 2005, pet.
ref’d).
In this case, Latarsha’s statements that Heather overheard were in the
context of a cell phone conversation Latarsha was conducting in the presence
of a friend. There is no indication whatsoever that Latarsha made her
comments to Davis (that were overheard by Heather) under circumstances that
would have led an objective witness to believe that they would be available for
use at a later trial. See Crawford, 541 U.S. at 52, 124 S. Ct. at 1364.
49
Heather’s testimony concerning Latarsha’s statements therefore did not violate
Davis’s Confrontation Clause rights. Accordingly, the trial court did not err by
overruling Davis’s Confrontation Clause objections to Heather’s testimony
reflected in paragraph 1.
We overrule Davis’s eighteenth point.
IX. J URY A RGUMENT
A. Jury Unanimity Argument
In points number five, six, and seven, Davis contends that the trial court
erred by sustaining the State’s objections to Davis’s jury unanimity arguments
and, likewise, by overruling Davis’s objections to the State’s jury unanimity
argument. The trial court charged the jury that
If you believe from the evidence beyond a reasonable doubt that on
or about the 28th day of January 2006, in Tarrant County, Texas,
the defendant, JAMES ANTHONY DAVIS, did then and there
intentionally or knowingly cause the death of an individual, Latarsha
Hampton, by cutting or stabbing her with a knife; or
If you believe from the evidence beyond a reasonable doubt that on
or about the 28th day of January 2006, in Tarrant County, Texas,
the defendant, JAMES ANTHONY DAVIS, did then and there
intentionally, with the intent to cause serious bodily injury to
Latarsha Hampton, commit an act clearly dangerous to human life,
namely, cutting or stabbing Latarsha Hampton with a deadly
weapon, to wit: a knife, that in the manner of its use or intended
use was capable of causing death or serious bodily injury, which
caused the death of Latarsha Hampton, then you will find the
defendant guilty of the offense of murder as charged in the
indictment.
50
And the record reflects the following colloquy during closing arguments:
[DAVIS’S ATTORNEY]: The prosecutor mentioned to you there’s
two ways that the State is going to seek to establish murder. One
is intentionally causing -- intentional and knowing [sic] causing
death [sic] of another person . . . The other, . . . is you do
something intentionally that’s clearly dangerous to human life and
as a result of that, a person dies . . . But let me tell you something,
all 12 of you have got to figure out which one of those versions is
murder. It’s not six of you go one way and six of you go another.
[STATE’S ATTORNEY]: Your Honor, I’m going to have to object to
that as a misstatement of the law.
THE COURT: Sustained.
[DAVIS’S ATTORNEY]: That is the law, Your Honor.
THE COURT: I sustained the objection. Go ahead.
[DAVIS’S ATTORNEY]: All 12 of you have got to agree on the one
method by which the murder occurred.
[STATE’S ATTORNEY]: I’m going to have to object, Your Honor,
that’s a misstatement of the law.
THE COURT: Sustained.
Davis further contends that the trial court erred by overruling his objection
during the State’s closing argument:
[STATE’S ATTORNEY]: And if six of you say, well, I believe it was
an intentional killing and six of you said that it’s an act clearly
dangerous to human life, you can find him guilty of murder.
[DAVIS’S ATTORNEY]: Your Honor, we object, Your Honor, we
object, that’s a violation of requiring unanimity of a verdict.
51
THE COURT: You’re overruled.
Jury unanimity is required in all criminal cases. Ngo v. State, 175 S.W.3d
738, 745 (Tex. Crim. App. 2005). “Unanimity in this context means that each
and every juror agrees that the defendant committed the same, single, specific
criminal act.” Id. Jury unanimity is not violated, however, when the jury
disagrees on alternate theories of the defendant’s mens rea at the time of the
offense. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004); De
Los Santos v. State, 219 S.W.3d 71, 76 (Tex. App.—San Antonio 2006, no
pet.).
The Supreme Court explained this principle in Schad v. Arizona, 501 U.S.
624, 111 S. Ct. 2491 (1991). There, the Court said that where the actus reus
was “murder,” all twelve jurors had to agree that the defendant had committed
the murder. Id. at 630, 111 S. Ct. at 2496. The jury did not need to be
unanimous on the issue of whether the defendant murdered with premeditation
or in the course of committing a robbery, as such a distinction merely went to
how the defendant committed the murder, not whether he committed the
murder. Id. at 631–32, 111 S. Ct. at 2497. The Court said,
We have never suggested that in returning general verdicts in such
cases the jurors should be required to agree upon a single means
of commission . . . In these cases, as in litigation generally,
“different jurors may be persuaded by different pieces of evidence,
even when they agree upon the bottom line. Plainly, there is no
52
general requirement that the jury reach agreement on the
preliminary factual issues which underlie the verdict.”
Id. (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S.Ct. 1227,
1236–37 (1990) (Blackmun, J., concurring)); see Ngo, 175 S.W.3d at 746.
Our analysis, then, must begin with an examination of the statute under
which Davis was indicted in order to determine the elements of the crime he
was charged with and whether the legislature has created a single offense with
multiple mens rea possibilities or separate offenses that vary according to the
offending party’s mental state. See Jefferson v. State, 189 S.W.3d 305, 311
(Tex. Crim. App. 2006) (quoting State v. Johnson, 627 N.W.2d 455, 459–60
(Wis. 2001), cert. denied, 534 U.S. 1043 (2001)).
Section 19.02 of the Texas Penal Code, titled “Murder,” states that
[a] person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual; [or]
(2) intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual.
T EX. P ENAL C ODE A NN. § 19.02(b)(1)-(2) (Vernon 2003). In this statute, the
legislature has set forth two different mental states—(1) intentionally or
knowingly causing death or (2) committing an act clearly dangerous to human
life with the intent to cause serious bodily injury—that would satisfy the intent
element of murder. See White v. State, 208 S.W.3d 467, 467–68 (Tex. Crim.
53
App. 2006); Gray v. State, 980 S.W.2d 772, 774–75 (Tex. App.—Fort Worth
1998, no pet.). Where the legislature has specified that any of several different
mental states will satisfy the intent or mens rea element of a particular crime,
unanimity is not required on the specific alternate mental state as long as the
jury unanimously agrees that the State has proved the intent element beyond
a reasonable doubt. Jefferson, 189 S.W.3d at 311 (quoting Johnson, 627
N.W.2d at 459–60). That is, the jury did not need to unanimously agree on the
preliminary factual issue of Davis’s mental state when he stabbed Latarsha, as
long as it agreed on the bottom line—he murdered her. See id.; Aguirre, 732
S.W.2d 320, 326 (Tex. Crim. App. 1987); Gray, 980 S.W.2d at 774–75.
The jury here was authorized in the charge of the court to find Davis
guilty of murder if he “intentionally or knowingly cause[d] the death of an
individual or intentionally, with intent to cause serious bodily injury, commit[ted]
an act clearly dangerous to human life and cause[d] the death of an individual”;
the jury returned a general verdict finding Davis “guilty of the offense of murder
as charged in the indictment.” The jury unanimity requirement is not violated
where, as here, the defendant was indicted under a statute providing alternate
means of committing the same offense. See Schad, 501 U.S. at 631–32, 111
S. Ct. at 2497; Jefferson, 189 S.W.3d at 311; Gray, 980 S.W.2d at 774–75.
Davis relies solely on Ngo to support his claim on appeal. Such reliance
54
is misplaced, however, as the indictment and underlying statute involved in Ngo
are distinguishable from those involved in this case. The State in Ngo indicted
the defendant for credit card abuse by any one of three separate acts as
statutorily enumerated. 175 S.W.3d at 742. Specifically, the statute under
which the defendant was indicted alleged three different criminal acts: stealing
a credit card, receiving a stolen credit card, or presenting a credit card without
the cardholder’s consent and with the intent to fraudulently obtain a benefit
from the credit card’s use. Id. at 744. In this case, however, Davis was
indicted for a single act: the murder of Latarsha Hampton. Ngo is therefore
distinguishable. Thus, the trial court did not err by sustaining the State’s
objections or by overruling Davis’s objection. Accordingly, we overrule Davis’s
fifth, sixth, and seventh points.
B. Attacking Davis Over Counsel’s Shoulders
In his ninth point, Davis contends that the trial court erred by overruling
his objection to a comment made by the prosecutor during closing statements
that attacked Davis over the shoulder of his attorney.
Striking at a defendant over defense counsel’s shoulders is impermissible,
as it falls outside the generally permissible areas jury argument. Wilson v.
State, 938 S.W.2d 57, 62 (Tex. Crim. App. 1996), abrogated on other grounds
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App.2002). It is difficult to
55
articulate a precise rule to determine when a prosecutor is striking over the
defense counsel’s shoulder and when he is making a proper jury argument.
Phillips v. State, 130 S.W.3d 343, 356 (Tex. App.—Houston [14th Dist.] 2004,
pet ref’d) (op. on reh’g); Tyler, 2006 WL 1452536, at*2. However, a
prosecutor risks improperly striking at a defendant over the shoulder of counsel
when the argument refers to defense counsel personally and when the
argument explicitly impugns defense counsel’s character. Mosley, 983 S.W.2d
at 259; Guy v. State, 160 S.W.3d 606, 617 (Tex. App.—Fort Worth 2005,
pet. ref’d); Tyler, 2006 WL 1452536, at *2. The court of criminal appeals has
held that the “over-the-shoulder” rule is designed to protect the defendant from
improper prosecutorial character attacks directed at defense counsel. Coble v.
State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993), cert. denied, 513 U.S.
829 (1994).
In this case, the trial court denied Davis’s request to include in the jury
charge an instruction on self-defense. Despite the trial court’s denial, during
closing arguments Davis argued that he had acted in self-defense in an effort
to negate the intent element of the offense: “Both people got knifed. Both
people are fighting and both people are going for the neck where the carotid
artery is, where the jugular vein is, and where someone is going to die if that’s
cut.” During its rebuttal to Davis’s closing argument, the State said, “Ladies
56
and gentlemen, if you look at this case and you look at all the facts surrounding
this case, there’s no evidence to suggest that Latarsha Hampton was armed.
Those are machinations drawn up by the defense attorney.” At that point,
Davis’s attorney objected that such a statement attacked Davis over the
shoulders of defense counsel, violated his due process rights, and deprived him
of his right to a fair trial. The trial court overruled Davis’s objection, and the
prosecutor continued, “There’s no evidence to suggest that.”
Viewing the prosecutor’s statement in the context of the entire argument,
the comment was made in rebuttal, specifically in response to Davis’s claim
that Latarsha was armed and had attacked Davis. See Mosley, 983 S.W.2d at
256; York v. State, No. PD-1753-06, 2008 WL 2677368, at *5 (Tex. Crim.
App. July 2, 2008) (not designated for publication). By saying that the idea
that Latarsha was armed was a “machination[] [of] the defense attorney” and
continuing by emphasizing that there was no evidence presented to support
such a claim, the prosecutor was properly answering an argument of opposing
counsel. See Felder, 848 S.W.2d at 94—95.
Case law supports this conclusion. For example, in Coble the prosecutor
argued that the defense attorney’s lawyer was arguing “something ridiculous.”
871 S.W.2d at 205. The court of criminal appeals noted that such a statement
was not directed at defense counsel, but at defense counsel’s argument. Id.
57
This stands in stark contrast to the cases cited by Davis and other cases in
which the appellate court has determined that a prosecutor’s comment did
strike at the defendant over defense counsel’s shoulders. See Gomez v. State,
704 S.W.2d 770, 772 (Tex. Crim. App. 1985) (holding prosecutor’s argument
that defense counsel was manufacturing evidence and thus suborning perjury
was improper); Lopez v. State, 500 S.W.2d 844, 846 (Tex. Crim. App. 1973)
(holding prosecutor’s statement that defendant and defense counsel were lying
when they pleaded not guilty was improper); Guy, 160 S.W.3d at 616–17
(holding prosecutor’s statement that defense attorneys knew that a defendant
accused of cocaine possession lived in a “crack house” was improper); Lopez
v. State, 705 S.W.2d 296, 298 (Tex. App.—San Antonio 1986, no pet.)
(holding prosecutor’s argument that defense counsel’s goal was to keep
evidence from the jury was improper).
Accordingly, we overrule Davis’s ninth point.
C. State’s Argument Outside the Record
In his eighth point, Davis contends that the trial court erred by denying
his motion for mistrial made in response to an allegedly improper jury argument
by the State. Specifically, during its rebuttal in closing arguments, the State
argued,
58
[I]f you remember when Officer Hatton was on the stand and
testifying, he told you he talked to -- he talked to Tanoah and he
told you Tanoah told him that night after my dad cut my momma,
he then cut himself. She saw him cut the wrists. So if he’s
cutting his wrists, doesn’t it make sense that, yes, he’s cutting his
neck.
At this point, Davis objected that the prosecutor’s argument was outside the
record. The trial court sustained Davis’s objection and instructed the jury to
“disregard the last statement.” The trial court denied Davis’s subsequent
motion for a mistrial. After the trial court overruled Davis’s motion for a
mistrial, the prosecutor briefly remarked, “I implore you to remember the
testimony of Officer Hatton,” before continuing with a summation of the
testimony from other witnesses about Latarsha and Davis’s troubled
relationship (a topic unrelated to who cut Davis’s neck).
The purpose of closing argument is to assimilate the evidence to assist
the fact-finder in drawing proper conclusions from the evidence. Gaddis v.
State, 753 S.W.2d 396, 400 (Tex. Crim. App. 1988). The jury is then free to
accept or reject such conclusions and inferences. Id. Counsel is afforded
virtually unlimited latitude in this regard as long as the argument is supported
by the evidence and made in good faith. Porter v. State, 832 S.W.2d 383, 386
(Tex. App.—Houston [1st Dist.] 1992, no pet.).
59
The record here reflects that, in fact, after a series of questions by the
prosecutor Officer Hatton was asked, “Okay. So Tanoah indicated that her
daddy had cut her mom’s neck and that her daddy had cut his own wrist?”
And Officer Hatton responded, “That’s correct.” Detective Graham also opined
that Davis’s neck wound was self-inflicted. Thus, the State’s argument quoted
above was a reasonable deduction from the evidence and did not interject any
new or harmful facts into the record. Accord Arnold v. State, 234 S.W.3d
664, 674 (Tex. App.— Houston [14 Dist.] 2007, no pet.) (holding State’s
argument was proper deduction from evidence); DeLarue v. State, 102 S.W.3d
388, 406 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (same).
Accordingly, because the State’s argument was proper, Davis obtained more
relief than he was entitled to when the trial court sustained his outside-the-
record objection and instructed the jury to disregard the prosecutor’s last
statement. See Reyes v. State, No. 01-00-00688-CR, 2001 WL 463015, at
*4 (Tex. App.—Houston [1st Dist.] May 3, 2001, no pet.) (not designated for
publication). The trial court consequently did not abuse its discretion by
denying Davis’s motion for mistrial. Id. We therefore overrule Davis’s eighth
point.
X. E VIDENCE D URING THE P UNISHMENT P HASE
60
In his twelfth point, Davis contends that the trial court erred by admitting
a prior conviction because the State purportedly failed to link the prior
conviction to Davis. During the punishment phase of trial, the trial court
admitted two exhibits offered by the State regarding prior felony offenses that
Davis had committed. One exhibit (Exhibit 55) contained a judgment against
Davis for theft of a check between $750 and $20,000 in 1994. In addition to
the judgment, this exhibit contained a picture of Davis and a set of Davis’s
fingerprints. A fingerprint examiner testified that he had taken Davis’s
fingerprints approximately fifteen minutes before testifying and that he had
matched the fingerprints from the pen packet in Exhibit 55 to Davis. Davis
does not contest the court’s admission of Exhibit 55 into evidence.
The second exhibit admitted into evidence (Exhibit 56) contained a
judgment against a “James Anthony Davis” for felon in possession of a firearm
in 1997. This exhibit contained only a judgment, a waiver form, and an
Information. It did not contain any descriptive or other identifying information
about the “James Anthony Davis” referred to in the judgment. However, the
Information in Exhibit 56 specifically referenced the 1994 theft of a check case
from Exhibit 55 by setting forth that case’s cause number. Davis objected
when the State offered Exhibit 56 as evidence, saying that the State had failed
to establish that the Davis from that judgment was the same Davis on trial.
61
Davis urged that the State could not link him to the prior conviction because
there was no identifying information in Exhibit 56. In response to the State’s
argument, Davis argued at trial and in his brief to this court that the Information
in Exhibit 56 (which set forth the cause number from the uncontested prior
conviction evidenced by Exhibit 55) could not be used as evidence to establish
that he was the same person who committed both crimes. The trial court
overruled Davis’s objection.
Under the penal code, if, during the punishment phase of trial, the State
proves that the defendant has previously been finally convicted of two felony
offenses, then the defendant’s minimum punishment is enhanced to twenty-five
years’ confinement. T EX. P ENAL C ODE A NN. § 12.42(d) (Vernon Supp. 2008).
To establish that a defendant was convicted of an enhancement offense, the
State must (1) prove the existence of the conviction and (2) link the conviction
to the defendant. Martin v. State, 227 S.W.3d 335, 337 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (citing Beck v. State, 719 S.W.2d 205, 209–10 (Tex.
Crim. App. 1986)).7 The State may establish a defendant’s previous conviction
through certified copies of a judgment and sentence (a pen packet). Beck, 719
7
… Davis does not attack the sufficiency of the evidence to prove the
existence of a prior conviction. Therefore, we discuss only the second of these
two requirements.
62
S.W.2d at 209. However, the State must provide independent evidence linking
these documents to the defendant on trial. Id. at 210. Therefore, a pen packet
is inadmissible unless it is joined with independent evidence that the person
convicted of the offense charged in the pen packet is the same person before
the court. Id.; Zimmer v. State, 989 S.W.2d 48, 51 (Tex. App.—San Antonio
1998, pet. ref’d).
Whether the State meets its burden of linking the conviction to the
defendant is a matter of conditional relevancy. Smith v. State, 998 S.W.2d
683, 687 (Tex. App.—Corpus Christi 1999, pet. ref’d); Wright v. State, 932
S.W .2d 572, 576 (Tex. App.—Tyler 1995, no pet.); Rosales v. State, 867
S.W.2d 70, 72 (Tex. App.—El Paso 1993, no pet.). That is, the relevance of
a prior conviction is conditioned upon the production of evidence sufficient to
show that the defendants are one and the same. Beck, 719 S.W.2d at
210–11; Smith, 998 S.W.2d at 687; Rosales, 867 S.W.2d at 72.
This is not to say, however, that the State must provide such linking
evidence before a trial court can properly admit the pen packet; evidence should
not be excluded merely because its relevance may depend upon the production
of additional evidence at a later point in the trial. Fuller v. State, 829 S.W.2d
191, 197 (Tex. Crim. App. 1992), overruled on other grounds by Castillo v.
State, 913 S.W.2d 529, 537 (Tex. Crim. App. 1995); Yeager v. State, 737
63
S.W.2d 948, 951 (Tex. App.—Fort Worth 1987, no pet.). Therefore, when
authenticated copies of conviction records are offered into evidence to prove
that a prior conviction is part of a defendant’s prior criminal record, it is not
essential that supporting identification evidence precede the admission of the
conviction evidence. Beck, 719 S.W.2d at 210. If, after all proof on the fact
in question has been received, and the evidence does not, in the aggregate,
support a rational finding that the defendant is the same person as the one
previously convicted, then the fact-finder should not be allowed to consider the
evidence of the conviction. Smith, 998 S.W.2d at 688; see Fuller, 829 S.W.2d
at 197; Beck, 719 S.W.2d at 210–11. In the case of evidentiary facts, it
means that a motion to strike should be granted to withdraw the evidence from
consideration. Fuller, 829 S.W.2d at 197; Smith, 998 S.W.2d at 688.
The court of criminal appeals has recognized several ways to link a
defendant to prior convictions. See Beck, 719 S.W.2d at 209–10. One of the
methods that the court of criminal appeals has recognized is via the “testimony
of a witness who personally knows the defendant and the fact of his prior
conviction and identifies him.” Id. at 209 (citing Ward v. State, 505 S.W.2d
832 (Tex. Crim. App. 1974)). Therefore, if the State offers conviction records
into evidence and establishes through the testimony of someone with personal
knowledge that the defendant on trial is the same person who was previously
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convicted, the trial court does not err by allowing the jury to consider the
conviction for enhancing the defendant’s punishment. Id.
In this case, Davis objected to State’s Exhibit 56 at the time of its
admission because there was no identifying information contained in the exhibit
to link Davis to the prior conviction. At trial and on appeal, Davis contends that
the only connection between Davis and the exhibit was an attached Information
that referenced the cause number in a case that was linked to Davis in Exhibit
55. Davis urges that the Information cannot be used as evidence linking him
to a prior conviction. The State, however, offered other independent evidence
linking Davis to the felon in possession of a firearm conviction through the
testimony of Davis’s ex-wife, Jacqueline Anderson.
Jacqueline testified that she had personally known Davis since 1989, was
married to him for the first time in 2000, and was married to him again in
2002. Jacqueline testified that she was familiar with Davis’s criminal history
and knew about both the theft of a check conviction and the felon in
possession of a firearm conviction. Specifically, Jacqueline testified, without
objection, as follows:
Q: Jacqueline, are you familiar with the -- with James’ criminal
history?
A. Yes.
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Q. Are you aware of a theft or [sic] a check case that he was
convicted for in 1990?
A. Yes.
Q. And actually went to the penitentiary for it in 1994?
A. Yes.
Q. Is this the same James Davis who was convicted in that
case?
A. Yes.
Q. Are you familiar with an unlawful possession of a firearm by
a felon case that he went to the penitentiary for?
A. Yes.
Q. In 1997?
A. Yes.
Q. And is this the same James Davis that was convicted in that
offense?
A. Yes.
Through this testimony of Davis’s ex-wife, who had known Davis since
1989 (well before the 1994 at 1997 convictions), had married him twice, and
demonstrated personal knowledge of Davis’s criminal history, the State
established that Davis was the same person previously convicted for felon in
possession of a firearm in 1997. See Beck, 719 S.W.2d at 209. Linking Davis
to a prior conviction made that prior conviction relevant to the jury’s
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determination of appropriate punishment for Davis. See T EX. P ENAL C ODE A NN.
§ 12.42(d); Smith, 998 S.W.2d at 687; Wright, 932 S.W.2d at 576; Rosales,
867 S.W.2d at 72. Therefore, the trial court did not err by admitting Exhibit
56, and we overrule Davis’s twelfth point.
XI. C ONCLUSION
Having overruled all of Davis’s points, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.
PUBLISH
DELIVERED: August 26, 2008
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