Davis, Gerbrile Dwayne v. State

Opinion

Reversed and Remanded and Majority and Concurring Opinions filed May 18, 2006

Reversed and Remanded and Majority and Concurring Opinions filed May 18, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00325

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GERBRILE DWAYNE DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 993589

C O N C U R R I N G   O P I N I O N

I agree with the majority that the trial court abused its discretion by requiring appellant to wear handcuffs without finding a reason specific to appellant and that this constituted harmful error.  However, I respectfully disagree with the majority=s legal sufficiency analysis.  Instead of finding the evidence to be legally sufficient under the law of parties, I would find the evidence to be legally sufficient to support appellant=s conviction as a principal.  Rubio testified that she saw only one perpetrator and she identified appellant at trial.  Appellant admitted that he was present during the robbery and that he owned the knife.  He also was seen driving the complainant=s van.  Viewing the evidence in the light most favorable to the verdict, I believe that the jury could have found beyond a reasonable doubt that appellant committed the offense as a principal.

Examining the sufficiency of the evidence with regard to appellant=s conviction as a party takes into account appellant=s own self-serving testimony, intended as exonerating, and contorts it into incriminating evidence.  This analysis seems to me to violate the spirit, if not the letter, of the legal sufficiency standard of review.  Therefore, I respectfully concur.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Majority and Opinions filed May 18, 2006. (Yates, J. majority.)

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Publish C Tex. R. App. P. 47.2(b).