James Anthony Davis v. State

• Court: Court of Appeals of Texas
• Decided: August 26, 2008
• Docket: 02-07-00177-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-07-177-CR

JAMES ANTHONY DAVIS APPELLANT V.

THE STATE OF TEXAS STATE

------------

FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

OPINION

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

2 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.

3 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

4 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

7 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

9 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

11 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

12 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).

13 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.

14 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

15 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.

16 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

17 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.

18 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,

21 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?

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 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.

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

64 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.

65 Q. Are you aware of a theft or [sic] a check case that he was convicted for in 1990?

Q. And actually went to the penitentiary for it in 1994?

Q. Is this the same James Davis who was convicted in that case?

Q. Are you familiar with an unlawful possession of a firearm by a felon case that he went to the penitentiary for?

Q. In 1997?

Q. And is this the same James Davis that was convicted in that offense?

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

66 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