Willie Edward Davis v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00206-CR
WILLIE EDWARD DAVIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 06-01284-CRF-85
OPINION
Appellant Willie Davis (Davis) was charged by indictment with the capital
murder of Tommy Andrade. The indictment alleged that Davis shot Andrade while in
the course of committing or attempting to commit the offenses of burglary of a
habitation and aggravated robbery. The State‖s case against Davis was premised on his
being criminally responsible under the law of parties (as part of a conspiracy to commit
the felony offenses of burglary of a habitation and aggravated robbery), and the jury
was charged on that theory. See TEX. PEN. CODE ANN. 7.02(b) (Vernon 2003). The jury
found Davis guilty, and he received an automatic life sentence because the State did not
seek the death penalty. Raising forty-eight issues, Davis appeals. We will affirm.
Recusal
Davis‖s first three issues concern recusal of the trial judge. In August 2008, we
held that the presiding judge of the administrative judicial district erred in holding the
motion to recuse to be insufficient and abated the appeal and remanded the case to the
trial court for further proceedings. Davis v. State, No. 10-07-00206-CR, 2008 WL 3845284,
*1-2 (Tex. App.—Waco Aug. 13, 2008, order) (not designated for publication). After a
hearing on Davis‖s recusal motion (which asserted four grounds for recusal) had been
held and the motion had been denied by the Honorable Ed Magre, we abated the case a
second time in March 2009 for the resolution of additional issues, and in July 2009, the
case was reinstated and amended briefs were filed by both parties.
The fourth ground in the recusal motion was that the trial judge had a prejudice
against Davis because Davis‖s trial counsel had cooperated with the Commission on
Judicial Conduct by providing an affidavit to the Commission at the request of Ron
Bennett, a Commission investigator. The affidavit, which was attached to the recusal
motion, concerned the trial counsel‖s experiences and views relating to the trial judge‖s
courtroom demeanor and conduct.
In anticipation of the recusal hearing, Davis sought to cause a subpoena to be
issued to Bennett to testify at the recusal hearing. The Commission filed a motion for
protective order seeking to prevent the subpoena from being issued and Davis from
obtaining any Commission records relating to the fourth ground. A telephone hearing
on the motion for protective order occurred, and Judge Magre granted the motion for
Davis v. State Page 2
protective order. Davis was not present and did not participate in the telephone
hearing. His first issue complains that he was denied his constitutional and statutory
rights to be present for that hearing. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10;
TEX. CODE CRIM. PROC. ANN. art. 33.03 (Vernon 2006); Faretta v. California, 422 U.S. 806,
820 n.15, 95 S. Ct. 2525, 2533 n.15, 45 L. Ed. 2d 562 (1975) (“It is now accepted, for
example, that an accused has a right to be present at all stages of the trial where his
absence might frustrate the fairness of the proceedings”).
A defendant‖s absence will not result in reversal unless there is a showing of
actual injury or a showing of facts from which injury might reasonably be inferred.
Mares v. State, 571 S.W.2d 303, 307 (Tex. Crim. App. 1978); see also Carrion v. State, 926
S.W.2d 625, 629 (Tex. App.—Eastland 1996, pet. ref‖d); Aguero v. State, 818 S.W.2d 128,
133 (Tex. App.—San Antonio 1991, pet. ref‖d); West v. State, 752 S.W.2d 593, 597 (Tex.
App.—Tyler 1987, pet. ref‖d). The record of the telephone hearing shows that Davis‖s
appellate counsel did not request Davis‖s presence for that hearing. Nor was there an
objection to Davis‖s absence. Finally, Davis makes no showing or argument that he was
harmed. Assuming there was error in Davis‖s absence, Davis was not injured, and the
assumed error is harmless beyond a reasonable doubt. See Carrion, 926 S.W.2d at 629;
Aguero, 818 S.W.2d at 133; West, 752 S.W.2d at 597. We overrule the first issue.
The second issue complains of Judge Magre‖s grant of the Commission‖s motion
for protective order, which asserted that the information sought from Bennett was
constitutionally and statutorily confidential and privileged. See TEX. CONST. art. V, § 1-
a(10); TEX. GOV‖T CODE ANN. § 33.032(a) (Vernon 2004). We review that ruling for abuse
Davis v. State Page 3
of discretion. See General Tire, Inc. v. Kepple, 970 S.W.2d 520, 525-26 (Tex. 1998); Roberts
v. West, 123 S.W.3d 436, 440 (Tex. App.—San Antonio 2003, pet. denied); see also Drew v.
State, 743 S.W.2d 207, 225 n.11 (Tex. Crim. App. 1987).
Again, the recusal motion‖s fourth ground sought recusal of the trial judge
because Davis‖s trial counsel had provided an affidavit to the Commission at Bennett‖s
request; that affidavit was attached to the recusal motion. The trial judge, who declined
to recuse himself, was aware of the affidavit by its filing with the motion.
[T]he invocation of a privilege, statutory or otherwise, will not
prevent the disclosure of information when confronted with the
fundamental principles of due process of law in the fair administration of
justice. A presumption in favor of upholding the privilege against
disclosure does exist. However, the presumption is rebutted by the
demonstration of the need and relevancy of the requested information.
Tex. Dep’t Corrections v. Dalehite, 623 S.W.2d 420, 423 (Tex. Crim. App. 1981) (emphasis
added).
Given the allegation in the recusal motion‖s fourth ground, Davis has not
demonstrated the need and relevancy of Bennett‖s testimony or the Commission‖s
records relating to the trial judge. The only document relevant to the fourth ground is
trial counsel‖s affidavit, and because it was attached to the recusal motion, the parties,
the trial judge, and Judge Magre had it or access to it or awareness of it. Accordingly,
we cannot say that Judge Magre abused his discretion in granting the motion for
protective order. Issue two is overruled.
For the same reason we overrule issue three, which complains that Judge Magre
abused his discretion in failing to conduct an in camera review of the Commission‖s
Davis v. State Page 4
records, which Davis‖s appellate counsel did not request in the telephone hearing.
Instead, a request was made that the Commission seal the records and send them to this
court of appeals, and Judge Magre approved that request. The Commission sent us the
sealed records. The proper procedure would have been for Judge Magre—not this
court—to conduct an in camera review of the Commission records if such a review were
warranted.
Because Davis has not demonstrated—before Judge Magre or in this appeal—the
need and relevancy of the Commission‖s records (other than trial counsel‖s affidavit,
which all had or were aware of) relating to the trial judge, Judge Magre did not err in
failing to conduct an in camera review of the Commission‖s records.
Voir Dire
In his fourth issue, Davis complains that the trial court abused its discretion by
imposing a time limit on voir dire that prevented trial counsel from asking proper
questions of prospective jurors. Davis was initially given ninety minutes for voir dire,
and the record reflects that his counsel took around two hours. When the trial court
refused to allow further voir dire, Davis‖s trial counsel stated three topics for which
they sought additional voir dire time to cover: the impact of drugs on panel members;
the panel‖s view on testimony by witnesses who had made deals with the State; and the
panel‖s knowledge of any of the State‖s local witnesses. Trial counsel did not put on the
record any questions that would have been asked.
When a party complains that the trial court erred in not allowing additional time
for voir dire, a two-part test applies: (1) whether the complaining party attempted to
Davis v. State Page 5
prolong the voir dire; and (2) whether the questions the party was not permitted to ask
were proper voir dire questions. See McCarter v. State, 837 S.W.2d 117, 120 (Tex. Crim.
App. 1992; S.D.G. v. State, 936 S.W.2d 371, 380 (Tex. App.—Houston [14th Dist.] 1996,
writ denied). To preserve a complaint on the manner of voir dire, appellant must point
to a question the trial court did not allow the panel to answer. S.D.G., 936 S.W.2d at 380
(citing Caldwell v. State, 818 S.W.2d 790, 794 (Tex. Crim. App. 1991), overruled on other
grounds by Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995)); see also Cordova
v. State, 296 S.W.3d 302, 307 (Tex. App.—Amarillo 2009, pet. denied). Providing the
trial court with topics or issues that counsel needs additional time to cover does not
preserve the complaint for appellate review. S.D.G., 936 S.W.2d at 380; see also Cordova,
296 S.W.3d at 307. Because Davis‖s trial counsel did not present questions that he can
point to on appeal, the complaint has not been preserved and issue four is overruled.
Sufficiency of the Evidence
Issues five, seven, and nine assert, respectively, that the evidence is legally
insufficient to prove that Davis entered into a conspiracy to commit the robbery or
burglary of Andrade, that capital murder should have been anticipated by Davis as a
result of carrying out the conspiracy, and that the shooting of Andrade was in the
furtherance of the unlawful purpose of the conspiracy. Issues six, eight, and ten assert
that the evidence is factually insufficient on those same three elements.
Standard of Review
When reviewing a challenge to the legal sufficiency of the evidence to establish
the elements of a penal offense, we must determine whether, after viewing all the
Davis v. State Page 6
evidence in the light most favorable to the verdict, any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Our duty is to
determine if the finding of the trier of fact is rational by viewing all of the evidence
admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d
418, 422 (Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in
favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In reviewing the sufficiency of the evidence, we should look at
“events occurring before, during and after the commission of the offense
and may rely on actions of the defendant which show an understanding
and common design to do the prohibited act.” Cordova v. State, 698 S.W.2d
107, 111 (Tex. Crim. App. 1985). Each fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force
of all the incriminating circumstances is sufficient to support the
conviction. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)
(“[i]t is not necessary that every fact point directly and independently to
the defendant‖s guilt; it is enough if the conclusion is warranted by the
combined and cumulative force of all the incriminating circumstances.”);
Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Alexander v.
State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). Circumstantial evidence
is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Guevara,
152 S.W.3d at 49. On appeal, the same standard of review is used for both
circumstantial and direct evidence cases. Id.
...
Under the Jackson test, we permit juries to draw multiple reasonable
inferences as long as each inference is supported by the evidence
presented at trial. However, juries are not permitted to come to
conclusions based on mere speculation or factually unsupported
inferences or presumptions.
...
[C]ourts of appeals should adhere to the Jackson standard and
Davis v. State Page 7
determine whether 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, 13, 15-17 (Tex. Crim. App. 2007).
The Court of Criminal Appeals recently overruled Clewis v. State, 922 S.W.2d 126
(Tex. Crim. App. 1996) and factual-sufficiency review. See Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010). The court held that the Jackson v. Virginia legal-
sufficiency standard is the only standard a reviewing court should apply in determining
the sufficiency of the evidence. Id. Because we cannot review the evidence for factual
sufficiency, we overrule issues six, eight, and ten, and we will proceed to a legal-
sufficiency review.
Conspiracy to commit the robbery or burglary of Andrade
The State presented evidence that Davis and his two sons, Chad Davis1 and Trey
Davis,2 operated a major drug-trafficking operation. Chad was its leader, and Davis
was the bookkeeper and also acted as a courier, using a tour bus and a fishing boat to
transport drugs. Andrade was a fledgling rap-music producer and drug dealer. The
evidence showed that Chad and Trey recruited three men, Boris Mogilevich, Bradley
Padrick, and Jesse Mancuso, to recover $100,000 that Andrade had allegedly stolen from
Chad during a recent drug deal in Houston.
1 We affirmed Chad Davis‖s conviction for the capital murder of Andrade in 2008. See Davis v.
State, 276 S.W.3d 491, 502 (Tex. App.—Waco 2008, pet. ref‖d). Like his father, Chad was convicted on the
State‖s conspiracy theory. See id. at 494-97.
2 Trey Davis received plea-bargained convictions for the same underlying robbery and burglary,
agreeing to two consecutive twenty-year prison sentences. See Davis v. State, 205 S.W.3d 606, 606 (Tex.
App.—Waco 2006, no pet.).
Davis v. State Page 8
On the night in question (August 7, 2003), with Chad and Trey in a separate
vehicle parked a half-mile away, the three assailants went to Andrade‖s home, kicked in
the door, and began asking him for the stolen money. They told Andrade that he was
coming with them, and as Andrade was putting his shoes on, he was able to grab a gun
and began shooting, hitting both Mogilevich and Padrick and killing Mancuso. After
Mogilevich was shot, he shot and killed Andrade. Mogilevich and Padrick then fled the
scene, leaving Mancuso behind. Chad and Trey took them to a motel, and Davis
arrived soon thereafter in the tour bus. After treating Mogilevich and Padrick, Davis
drove them to Atlanta in the tour bus. Information on Mancuso‖s body eventually led
police to the Davises.
Issue five asserts that the evidence is legally insufficient to prove that Davis
entered into a conspiracy to commit the robbery or burglary of Andrade. He argues
that the evidence shows that he only had knowledge of the conspiracy, that there is no
direct evidence he was a part of the conspiracy, and that any inferences that he was part
of the conspiracy are irrational or unreasonable.
A person commits capital murder if he intentionally causes the
death of an individual in the course of committing or attempting to
commit robbery. TEX. PEN. CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (Vernon
2003 & Supp. 2008). If, in an attempt to carry out a conspiracy to commit
one felony, another felony is committed by one of the conspirators, all
conspirators are guilty of the felony actually committed, though having no
intent to commit it, if the offense was committed in furtherance of the
unlawful purpose and was one that should have been anticipated as a
result of carrying out the conspiracy. Id. § 7.02(b) (Vernon 2003); see
Hooper v. State, 255 S.W.3d 262, 265-66 (Tex. App.—Waco 2008, no pet.).
Each conspirator is guilty of the resulting offense, even if he did not
intend to commit it or intend that it be committed. Ruiz v. State, 579
S.W.2d 206, 209 (Tex. Crim. App. 1979); see also Fuller v. State, 827 S.W.2d
Davis v. State Page 9
919, 932 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 922; Love v. State, 199
S.W.3d 447, 453 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (“a
defendant in a capital murder case may be convicted solely on a
conspiracy theory of culpability contained in the jury charge”); Hanson v.
State, 55 S.W.3d 681, 691 (Tex. App.—Austin 2001, pet ref‖d).
Davis v. State, 276 S.W.3d 491, 494-95 (Tex. App.—Waco 2008, pet. ref‖d); see also Ervin v.
State, --- S.W.3d ---, ---, 2010 WL 3212095, at *6-7 (Tex. App.—Houston [1st Dist.] Aug.
11, 2010, pet. ref‖d); Love v. State, 199 S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.]
2006, pet. ref―d).
An agreement constituting a conspiracy may be inferred from acts of the parties.
TEX. PEN. CODE ANN. § 15.02(a) (Vernon 2003). Direct evidence of a formal agreement to
conspire is not required. Turner v. State, 720 S.W.2d 161, 164-65 (Tex. App.—San
Antonio 1986, pet. ref‖d).
In determining whether the accused participated as a party, the
court may look to events occurring before, during, and after the
commission of the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex.
Crim. App. 1994). …
Since an agreement between parties to act together in common
design can seldom be proven by words, the State often must rely on the
actions of the parties, shown by direct or circumstantial evidence, to
establish an understanding or a common design to commit the offense.
Miller v. State, 83 S.W.3d 308, 314 (Tex. App.—Austin 2002, pet ref―d); see
Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977) (circumstantial
evidence sufficient to show guilt as party). The agreement, if any, must be
made before or contemporaneous with the criminal event, but in
determining whether one has participated in an offense, the court may
examine the events occurring before, during, and after the commission of
the offense. Beier v. State, 687 S.W.2d 2, 3–4 (Tex. Crim. App. 1985); Miller,
83 S.W.3d at 314.
Ervin, --- S.W.3d at ---, 2010 WL 3212095, at *7.
The State asserts that the following evidence is legally sufficient to show that
Davis v. State Page 10
Davis entered into the conspiracy to burglarize and rob Andrade:
Davis, his sons, and the others in the conspiracy were drug dealers who dealt in
large amounts of cash and carried guns. Guns were found in Davis‖s home and
in vehicles at his home.
Davis was integrally involved in the drug dealing as the bookkeeper, keeping
track of drug transactions and paying bills (including for many cell phones), and
he transported drugs in the tour bus and while pulling the boat on a trailer,
including to Houston, Atlanta, and Florida.
After Andrade had robbed Chad in Houston, Davis arrived soon thereafter and
talked with Chad.
In the week before the invasion of Andrade‖s home, Padrick and Mogilevich
were at Davis‖s house, staying in the tour bus the entire week. Mancuso‖s
mother testified that he called her the day before and said he was staying on an
“incredible bus.”
Trey bought an old car from Travis Crockett for the three assailants to use for
going to Andrade‖s home, and it was paid for and kept at Davis‖s house.
The day before the murder, Crockett was at Davis‖s house for a couple of hours
and saw an array of guns in Trey‖s bedroom. Trey and Chad were in the room,
and Crockett overhead them planning the visit to Andrade‖s home. One of them
said, “If guns off, they go off.”
After Mogilevich and Padrick were taken to a motel, Davis showed up in the
tour bus with first aid items, bandages, pain medication, and clean clothes.
Davis helped treat Mogilevich and Padrick, and all of the bloody clothes and
motel bedding were put in a trash bag that was put on the bus. Davis drove
Mogilevich and Padrick nonstop to Atlanta.
Once in Atlanta, Davis met T.J. Parent, an Atlanta-area drug dealer, at a Wal-
Mart parking lot, and Parent arranged for hotel rooms for Mogilevich and
Padrick. He also got his mother and an associate‖s mother, both of whom were
nurses, to come to the hotel to treat Mogilevich and Padrick.
Parent‖s mother, Sandra Albably, was upset when she saw Mogilevich and
Padrick, refused to treat them, and said they needed to go to a hospital or she
would call 9-1-1. Parent then drove her to the bus, where she met Davis. She
complained to Davis for driving them to Atlanta and not getting them medical
help, and he replied, “I told my boys this would happen. I was just waiting for
Davis v. State Page 11
that call. I knew this was going to happen.”
An analysis of the cell phone bills showed that Davis called Chad from Atlanta
forty-three times.
A law-enforcement officer investigating Andrade‖s murder asked Davis where
the tour bus was on August 7, and Davis said it was at his home, but a Louisiana
state trooper had spotted it near Rustin, heading east.
Davis got a message to Kim Weathers to tell Marte Fox, Chad‖s girlfriend, to
keep a low profile if she did not want to be involved in the trial.
While the Sheriff‖s department was executing a search warrant at Davis‖s home
and a person was being questioned, a deputy saw Davis put his finger to his lips
and shake his head side to side, indicating to the person to keep quiet.
Viewing the evidence in the light most favorable to verdict, a rational jury could
have found that Davis, acting as a conspirator under the law of parties, entered into the
conspiracy to rob and burglarize Andrade. While there was no direct evidence, the jury
could reasonably infer from the above evidence that Davis entered into the conspiracy.
We overrule issue five.
Murder should have been anticipated as a result of carrying out the conspiracy
Issue seven asserts that the evidence is legally insufficient to prove that capital
murder should have been anticipated by Davis as a result of carrying out the
conspiracy. He argues that there was no direct evidence that he knew the three
assailants took weapons with them to Andrade‖s home, and he primarily relies on
Tippitt v. State, 41 S.W.3d 316 (Tex. App.—Fort Worth 2001, no pet.), which the Court of
Criminal Appeals has disapproved. See Hooper, 214 S.W.3d at 15.
[T]he State does not have to prove that the accused intended to
shoot or kill the victim, or intended that the victim be shot, as long as the
evidence established he conspired to commit the robbery and that he
Davis v. State Page 12
“should have anticipated the murder as a result of carrying out the
conspiracy to commit the robbery. Moore v. State, 24 S.W.3d 444, 447 (Tex.
App.—Texarkana 2000, pet. ref‖d).
Evidence that a defendant knew his co-conspirators might use guns
in the course of the robbery can be sufficient to demonstrate that the
defendant should have anticipated the possibility of murder occurring
during the course of the robbery. See Hooper, 255 S.W.3d at 266; see also
Love, 199 S.W.3d at 453 (holding evidence was sufficient to show murder
was committed in attempt to carry out robbery and should have been
anticipated by appellant when appellant helped plan robbery and knew
that firearms would be used).
Davis, 276 S.W.3d at 495; see also Love, 199 S.W.3d at 453 n.1.
The State points again to the guns-and-drugs environment that Davis was a part
of, that the gunmen stayed on the tour bus at Davis‖s home, and that the guns were
passed out there. Most importantly, the State points out Davis‖s statement to Albably
after she had chastised him for not getting medical care for the gunshot victims: “I told
my boys this would happen. I was just waiting for that call. I knew this was going to
happen.” In the context of the conversation, “this” can only be a reference to the
shootings, and it is direct evidence that Davis knew guns were being taken to
Andrade‖s home.
Viewing the evidence in the light most favorable to the verdict, a rational jury
could have found that that capital murder should have been anticipated by Davis as a
result of carrying out the conspiracy. We overrule issue seven.
Shooting of Andrade was in the furtherance of the unlawful purpose of the conspiracy
Issue nine asserts that the evidence is legally insufficient to prove that the
shooting of Andrade was in the furtherance of the unlawful purpose of the conspiracy.
Davis v. State Page 13
Davis contends that the evidence shows only a conspiracy to rob and burglarize
Andrade, not murder him, which merely begs the “furtherance” question.
The State reiterates the evidence pertaining to the gun culture within drug
trafficking, the Davises‖ guns, and the statement by one of Davis‖s sons, “If guns off,
they go off.” And again, the jury heard Albably testify that Davis told her, “I told my
boys this would happen. … I knew this was going to happen.” Viewing the evidence
in the light most favorable to the verdict, a rational jury could have found that the
shooting of Andrade was in the furtherance of the unlawful purpose of the conspiracy.
We overrule issue nine.
Extraneous-Offense Evidence
Issues eleven through twenty-two complain that the trial court abused its
discretion in admitting twelve items of extraneous-offense evidence. The State contends
that the extraneous-offense evidence was properly admitted as same-transaction
contextual evidence.
“Whether extraneous offense evidence has relevance apart from character
conformity, as required by Rule 404(b), is a question for the trial court.” De La Paz v.
State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009) (quoting Moses v. State, 105 S.W.3d
622, 627 (Tex. Crim. App. 2003)). We review a trial court‖s ruling on the admissibility of
extraneous offenses under an abuse-of-discretion standard. Id. As long as the trial
court‖s ruling is within the “zone of reasonable disagreement,” it will be upheld. Id.
Under Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts is not
admissible “to prove the character of a person in order to show action in conformity
Davis v. State Page 14
therewith.” TEX. R. EVID. 404(b). However, it may be admissible for other purposes,
“such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” De La Paz, 279 S.W.3d at 342-43. The rule excludes
only that evidence that is offered solely for the purpose of proving bad character and
conduct in conformity with that character. Id. at 343. In addition, evidence admissible
under rule 404(b) may nonetheless be excluded if the trial judge determines that its
probative value is substantially outweighed by the danger of unfair prejudice. TEX. R.
EVID. 403; Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999).
An exception to rule 404(b) exists in that extraneous offenses may be admissible
as same-transaction contextual evidence when “several crimes are intermixed, or
blended with one another, or connected so that they form an indivisible criminal
transaction.” Prible v. State, 175 S.W.3d 724, 731-32 (Tex. Crim. App. 2005) (quoting
Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). This type of evidence results
when an extraneous matter is so intertwined with the State‖s proof of the charged crime
that avoiding reference to it would make the State‖s case difficult to understand or
incomplete. Id. at 732. Same-transaction contextual evidence is “admissible to show the
context in which the criminal act occurred.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.
Crim. App. 2000). “[E]vents do not occur in a vacuum, and the jury has a right to hear
what occurred immediately prior to and subsequent to the commission of that act so
that it may realistically evaluate the evidence.” Id.
There are two types of contextual evidence: (1) evidence of other
offenses connected with the primary offense, referred to as same
transaction contextual evidence; and (2) general background evidence,
Davis v. State Page 15
referred to as background contextual evidence. Mayes v. State, 816 S.W.2d
79, 86-87 (Tex. Crim. App. 1991). Same transaction contextual evidence is
admissible as an exception under Rule 404(b) where such evidence is
necessary to the jury‖s understanding of the charged offense. See Wyatt, 23
S.W.3d at 25; Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993).
Extraneous conduct is considered to be same transaction contextual
evidence when the charged offense would make little or no sense without
also bringing in the same transaction evidence. Rogers, 853 S.W.2d at 33.
Such evidence provides the jury information essential to understanding
the context and circumstances of events that are blended or interwoven.
Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).
The purpose of admitting same transaction contextual evidence is
not to show that the extraneous charged offenses are part of a common
scheme or that the charged offense was committed in an identical
signature manner. Jones v. State, 962 S.W.2d 158, 166 (Tex. App.—Fort
Worth 1998, no pet.). Nor is the purpose to show that appellant
committed the charged offense merely because he also committed the
extraneous offense. Id. Rather, the purpose of admitting extraneous
evidence as same transaction contextual evidence is to put the instant
offense in context. Id.; Mayes, 816 S.W.2d at 86-87; Camacho, 864 S.W.2d at
532.
Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism‖d).
The evidence that Davis complains about can be divided into two categories:
guns and cash, and drug transactions and drug use.
Guns and Cash
The evidence and issues are:
Chad‖s semi-automatic rifle (issue 11) and a magazine loaded with five
rounds (issue 12), seized at Chad‖s home when he was arrested.
Numerous photographs of money and guns seized at Chad‖s home (issue
16).
Trey‖s assault rifle, found in his bedroom in Davis‖s home (issue 17), and
an invoice and receipt for that rifle (issue 18), showing that it was
purchased the day before the offense.
Davis v. State Page 16
Travis Crockett‖s testimony about Trey‖s lifestyle with multiple vehicles
(issue 21).
Cash and ammunition found on the tour bus (issue 22).
Much evidence was presented that drug dealers are concerned about being
robbed of their drugs and money, and they thus possess and carry weapons. The State
asserts that the motive for the conspiracy was to retrieve money from Andrade and to
retaliate for Andrade‖s $100,000 robbery of Chad. We agree that, to put the conspiracy
offense in context, evidence that the Davises were drug dealers who dealt in large
amounts of cash and with guns to protect their drugs and cash was necessary. Because
this category of evidence was same-transaction contextual evidence and background
contextual evidence, the trial court did not abuse its discretion in admitting this
evidence. Issues 11, 12, 16, 17, 18, 21, and 22 are overruled.
Drug Transactions and Drug Use
The evidence and issues are:
Jason Bishop‖s testimony about two prior drug transactions in Georgia in
which Davis, Chad, and Trey were selling drugs to Bishop and then to
Bishop‖s friend Mike, and the drugs had been transported to Georgia
hidden in the boat that was pulled by a vehicle driven by Davis, who
helped take the drugs out of the boat and give them to Bishop (issue 13).
Leonard Luna‖s testimony about his large-volume drug business with
Chad several years before the offense (issue 14).
Chad‖s calendar showing drug transactions, including transactions with
Davis (issue 15).
Marte Fox‖s testimony about the Houston drug deal where Andrade
robbed Chad and Davis showed up soon thereafter (issue 19).
Leslie Leshe‖s testimony about smoking marijuana with Trey at Davis‖s
Davis v. State Page 17
home and about marijuana kept in the freezer there, along with Davis‖s
cigarettes (issue 20).
The State sought to show that Davis was an active participant with Chad and
Trey in a large-volume and dangerous drug business—and not just an after-the-fact bus
driver—to explain why Davis would have entered into the conspiracy with his sons to
rob Andrade. The trial court did not abuse its discretion in admitting this evidence; it
too was same-transaction contextual evidence and background contextual evidence that
put in context the conspiracy offense that Davis was charged with. Issues 13, 14, 15, 19,
and 20 are overruled.
Davis alleges in issues twenty-three through thirty-four that the same twelve
items of evidence should have been excluded because its prejudicial effect outweighed
its probative value. See TEX. R. EVID. 403.
In its seminal decision in Montgomery v. State, the Court of Criminal
Appeals identified four non-exclusive factors to be considered in
determining whether evidence should be excluded under Rule 403. Those
factors were: (1) the probative value of the evidence; (2) the potential to
impress the jury in some irrational, yet indelible, way; (3) the time needed
to develop the evidence; and, (4) the proponent‖s need for the evidence.
More recently, the Court has looked to the language of Rule 403
and restated the pertinent factors.
[A] trial court, when undertaking a Rule 403 analysis, must
balance (1) the inherent probative force of the proffered item of
evidence along with (2) the proponent‖s need for that evidence
against (3) any tendency of the evidence to suggest decision on an
improper basis, (4) any tendency of the evidence to confuse or
distract the jury from the main issues, (5) any tendency of the
evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence already
Davis v. State Page 18
admitted. Of course, these factors may well blend together in
practice.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
(footnotes omitted).
Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref‖d) (footnote and
citations omitted).
“Rule 403 ―envisions exclusion of [relevant] evidence only when there is a ―clear
disparity between the degree of prejudice of the offered evidence and its probative
value.‖” Id. at 322-23 (quoting Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App.
2009)). In this case, given the State‖s need for circumstantial evidence to prove that
Davis entered into the conspiracy to rob Andrade, and after considering the above
factors, we cannot say that there is a “clear disparity” between the danger of unfair
prejudice posed by this evidence and its probative value. Thus, the trial court did not
abuse its discretion by overruling Davis‖s rule 403 objections. We overrule issues
twenty-three through thirty-four.
Limiting Instruction
Issues thirty-five through forty-five complain of the trial court‖s refusal to give a
limiting instruction when the complained-of (and other3) extraneous-offense evidence
was offered.
Rule 105 of the Texas Rules of Evidence requires a limiting
instruction, upon proper request, when evidence is admitted for one
purpose but is not admissible for another purpose. TEX. R. EVID. 105(a); see
3 A Louisiana state trooper testified that he had spotted the tour bus near Rustin, heading east,
and had run a license check on it. Davis requested a limiting instruction regarding Davis‖s transporting
Mogilevich and Padrick to Atlanta on the tour bus.
Davis v. State Page 19
also Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996). Because
evidence of extraneous acts is admissible for some purposes but
inadmissible for others, on request, the accused is entitled to a mid-trial
limiting instruction addressing extraneous offense evidence. Rankin, 974
S.W.2d at 711-12.
The trial court is not required, however, to give a limiting
instruction for same transaction contextual evidence. See Castaldo v. State,
78 S.W.3d 345, 352 (Tex. Crim. App. 2002); Wesbrook, 29 S.W.3d at 114-15;
Camacho, 864 S.W.2d at 535.
King v. State, 189 S.W.3d 347, 356-57 (Tex. App.—Fort Worth 2006, no pet.); see Glockzin
v. State, 220 S.W.3d 140, 151 (Tex. App.—Waco 2007, pet. ref‖d). Because the evidence at
issue is same-transaction contextual evidence, the trial court did not abuse its discretion
in refusing to give limiting instructions. We overrule issues thirty-five through forty-
five.
Jury Charge
Issue forty-six complains that the charge‖s application paragraph erroneously
instructed the jury that it could convict Davis of capital murder if it found beyond a
reasonable doubt that the shooting—not capital murder— should have been anticipated
by Davis as a result of the carrying out of the conspiracy. See TEX. PEN. CODE ANN. §
7.02(b). Thus, Davis alleges, the State‖s burden of proof was lessened. In analyzing a
jury-charge issue, we first decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743
(Tex. Crim. App. 2005).
The abstract portion of the charge stated:
Therefore, before you can find a person guilty of capital murder as
a conspirator, you must find beyond a reasonable doubt that the capital
murder was an offense committed in furtherance of the unlawful purpose
and that should have been anticipated by the defendant as a result of
Davis v. State Page 20
carrying out the conspiracy.
The indictment alleged that Davis committed capital murder by shooting
Andrade while in the course of committing or attempting to commit the offenses of
burglary of a habitation and aggravated robbery. The State argues that because the
indictment alleged the shooting, it was necessary for the application paragraph, which
applied the law to the facts, to refer to the shooting that Davis should have anticipated.
We agree and find no error. Issue forty-six is overruled.
Jury Argument
In issue forty-seven, Davis alleges that the trial court erred by overruling his
objection that the prosecutor commented on Davis‖s failure to testify at trial. Jury
argument is limited to: (1) summation of the evidence; (2) reasonable deduction from
the evidence; (3) answers to argument of opposing counsel; or (4) a plea for law
enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Sandoval v. State,
52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref‖d). A comment on an
accused‖s failure to testify violates the accused‖s state and federal constitutional
privileges against self-incrimination. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim.
App. 2001). To determine whether a party‖s argument properly falls within one of these
categories, we must consider the argument in light of the entire record. Sandoval, 52
S.W.3d at 857.
Davis‖s defensive theory, which his attorney argued, was that, after the
shootings, he agreed to drive the injured assailants to Georgia, and that he had not
entered into the conspiracy to rob Andrade beforehand. In rebuttal, the State argued in
Davis v. State Page 21
part that Davis did more than drive the injured to Georgia and mentioned how, before
trial, Davis got a message to Marte Fox to keep a low profile. The prosecutor then
added: “That‖s someone who‖s afraid to respond to 12 good citizens with the truth.”
The trial court overruled Davis‖s objection that this statement commented on his failure
to testify.
It is well settled that a prosecutor‖s comment amounts to a
comment on a defendant‖s failure to testify only if the prosecutor
manifestly intends the comment to be, or the comment is of such character
that a typical jury would naturally and necessarily take it to be, a
comment on the defendant‖s failure to testify. United States v. Jefferson, 258
F.3d 405, 414 (5th Cir. 2001); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.
Crim. App. 2001). It is not sufficient that the comment might be construed
as an implied or indirect allusion to the defendant‖s failure to testify.
Bustamante, 48 S.W.3d at 765.
Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004).
We first find that the statement could only be construed as an implied or indirect
allusion to the defendant‖s failure to testify, which is insufficient to serve as a comment
on Davis‖s failure to testify. Further, the prosecutor‖s statement was, as a response to
the defense argument that all Davis did was drive the bus to Georgia, not improper
because the statement was linked to Davis‖s attempt to silence a witness who would
testify about matters occurring before the shooting. See Albiar v. State, 739 S.W.2d 360,
362 (Tex. Crim. App. 1987) (“If the defense counsel invites argument, as is the case here,
then it is appropriate for the State to respond.”). Finally, because the statement related
to Davis‖s attempt to possibly keep Fox from testifying, it was a reasonable deduction
from the evidence. The trial court did not err in overruling Davis‖s objection, and we
overrule issue forty-seven.
Davis v. State Page 22
Disclosure of Exculpatory Evidence
In issue forty-eight, his final issue, Davis complains that the trial court abused its
discretion in denying his motion for new trial based on the State‖s alleged tardy
disclosure of possible exculpatory evidence. On the last day of testimony, the
prosecution told defense counsel that Mogilevich, who had recently been captured, had
stated that, after he had been shot by Andrade (including a graze wound to his head),
he had blood on his face, raised his pistol, and shot Andrade.4 Davis asserts that
Mogilevich‖s statement is exculpatory because it raises a question on his intent to kill.
Davis initially requested a continuance but then withdrew that request and
sought a mistrial. The State argues that by abandoning the continuance request, Davis
has procedurally defaulted his claim that the State belatedly disclosed exculpatory
evidence. We agree. See Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999).
Having overruled all of Davis‖s issues, we affirm the trial court‖s judgment.
REX D. DAVIS
Justice
Before Justice Davis and
Judge Gallagher5
4In voir dire, one of Davis‖s attorneys referenced that Mogilevich had been shot in the head and
had blood on his face, and based on that, a lesser-included murder charge would be requested.
Moreover, several witnesses testified that Mogilevich‖s face was bloody, and that fact came out in the
testimony in Chad‖s trial, which defense counsel was aware of.
5 The Honorable George Gallagher, Judge of the 396th District Court, sitting by assignment of the
Chief Justice of the Supreme Court of Texas pursuant to section 74.003(a) of the Government Code. See
TEX. GOV‖T CODE ANN. § 74.003(a) (Vernon 2005).
Davis v. State Page 23
Affirmed
Opinion delivered and filed February 2, 2011
Do Not Publish
[CRPM]
The Honorable Felipe Reyna, a former justice on this court, was on the panel and present for
argument, but having left office on December 31, 2010, he did not participate in this decision. See TEX. R.
APP. P. 41.1(c).
Davis v. State Page 24