WARREN LABON DAVIS v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice O'Neill

Appellant Warren Labon Davis appeals his conviction for murder.   After a jury found appellant guilty, it sentenced him to fifteen years' confinement.   In two points of error, appellant contends (1) the evidence is legally insufficient to support his conviction, and (2) the trial court erred in overruling his objection to improper jury argument.   For the following reasons, we affirm the trial court's judgment.

Appellant was convicted of shooting and killing his girlfriend, Latoya Collier, at a house on Vandervort Street in Dallas, Texas.   At trial, the State's theory was that appellant killed the victim and then staged the scene to make it look as though an intruder had killed the victim in a robbery of a trap house.¹

Appellant lived at the house with Ahmed Bryant.   Ahmed's girlfriend, Antoinette Wilson was at the house at the time of the shooting.   Wilson testified for the State.   She said that on the night of the murder, Ahmed picked her up and took her to his house to spend the night.   When she got there, the victim and appellant were in appellant's bedroom.   Wilson conceded she did not see the victim at that time, but she did see appellant and saw the victim's car parked out front.   Wilson testified no one else was at the house.   Wilson and Ahmed went into Ahmed's bedroom and started watching television.   They smoked some marijuana and Wilson also had one vodka shot.   Eventually, they turned off the TV and got ready to go to bed.   About five minutes later, Wilson heard a one syllable word followed by two gunshots coming from appellant's room.   Then there was silence.   Wilson got under the bed.   Ahmed put on his pants and went to investigate.   From under the bed, Wilson could not see inside appellant's room, but she could see feet in the hallway.   Ahmed went to appellant's door, opened the door, and called appellant's name.   Appellant came out and appellant and Ahmed exchanged words.   She said she saw them go down the hallway and shots were fired.   She said they went outside and fired more shots.   After the men came back inside the house, Wilson came out from under the bed.   She saw that both men had long-barreled firearms.   She was worried about the victim because everyone was up and the victim was not.   Wilson went to look in appellant's room and saw the victim laying across the bed, her feet hanging off the bed.   Wilson did not know the victim was dead at that time.

Appellant called 911.   Wilson testified she and Ahmed left the scene before police arrived because Ahmed was on parole and was not allowed to be around weapons.   However, after taking Wilson to a nearby house on Kyser, where he left one of the guns, Ahmed returned to the scene of the shooting.

Police responded to the scene.   The victim was found dead in appellant's bedroom.   She died of a single gunshot wound.   The residue evidence from the victim's clothing showed the victim was probably shot no more than three to five feet away, but it could have been up to 8 feet away.   Appellant's bedroom window was open, but the blinds were closed.   No gunshot residue was found on the blinds.   The residue expert testified if the shots were fired from outside through the blinds and residue was on an item inside the room, residue also would have been present on the blinds.

The shot that killed the victim came from a 9 mm gun that was never recovered.   The bullet was retrieved from inside a pillow that was on the bed.   Police found two 9 mm spent shell casings on the floor in appellant's room.   The casings both came from the same gun.   The bullet that killed the victim could also have come from the gun that the casings came from.

Appellant's wallet and a woman's purse were found outside the house on the ground near appellant's bedroom window.   Although it had been raining and it was muddy, there were no foot prints on the ground.

Various guns were strewn about the house and drug residue and paraphernalia were found in the kitchen.   Police also found shotgun shells and shell casings around the house that were fired from a shotgun found at the house and the rifle found at the Kyser Street house.

In his first point of error, appellant contends the evidence is legally insufficient to support his conviction because nobody saw him shoot the victim, no physical evidence proved he shot the victim, and the victim could have been shot by Ahmed or an intruder.   In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010).   We defer to the jury's credibility and weight determinations because the trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326.   In circumstantial evidence cases, it is not necessary for every fact to point directly and independently to the appellant's guilt, but it is enough if the finding of guilt is warranted by the combined and cumulative force of all the incriminating circumstances.  Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993).

Reviewing the evidence in the light most favorable to the verdict, we conclude a reasonable jury could find beyond a reasonable doubt that appellant was the person that shot and killed the victim.   The evidence at trial showed that appellant's girlfriend was shot in appellant's bedroom in the middle of the night.   Wilson testified no one else was present in the house that night and that the shots came from appellant's bedroom.   To the extent appellant suggests the victim could have been shot from outside his window, there was evidence gunshot residue would have been on the blinds if the shots came from outside.   Also, there were no foot prints outside in the mud around where the purse and wallet were found.   Further, two 9 mm casings consistent with the bullet that killed the victim were found on the floor in appellant's room.   Although the murder weapon was not found, Ahmed could have disposed of it for appellant when he left the scene.   Appellant also asserts the evidence is insufficient because Wilson is not credible.   But in a sufficiency challenge, we must defer to the jury's determination to credit Wilson's testimony.   Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could conclude appellant killed the victim.   We resolve the first issue against appellant.

In his second issue, appellant contends the trial court erred in overruling his objection to improper argument.   In closing, the prosecutor argued the gunshot did not come from outside the house.   He continued:

[PROSECUTOR]:  That's not what happened.   The gunshot came from in the room and he's the only person in that room.

[APPELLANT]:  I object, Judge.   That assumes facts not in evidence.   There is no evidence of that.

[TRIAL COURT]:  The jury will remember the evidence from [sic] themselves and take the law from me.

It's overruled at this time.

[PROSECUTOR]:  And you remember the evidence.   She told you he's the only one in there.   That's evidence.

[APPELLANT]:  Objection.   That is not the evidence.   She is -

[PROSECUTOR]:  The testimony is evidence.

[APPELLANT]:—that is outside the record.

The trial court overruled the objection, but instructed the jury to remember the evidence for themselves.   On appeal, appellant asserts the prosecutor's argument was outside the record.   In particular, he complains of the argument that Wilson testified appellant was the only one in appellant's bedroom.   Proper jury argument falls within one of the following categories:  (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) responses to argument of opposing counsel, and (4) pleas for law enforcement.   Davis v. State, 329 S.W.3d 798, 821 (Tex.Crim.App.2010).   Counsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.  Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988).

At trial, Wilson testified that she, Ahmed, appellant and the victim were the only people in the house that night.   Shots were fired from appellant's bedroom.   When they heard the shots, Ahmed went to appellant's room to investigate.   Wilson was under the bed.   Ahmed went to appellant's doorway, opened the door, and called appellant's name.   Although Wilson said she “guessed” appellant came out the door, because she could not actually see inside the room, she also testified she could see the men's feet.   We conclude the prosecutor's argument was a reasonable deduction from the evidence.   We resolve appellant's second point of error against him.

We affirm the trial court's judgment.

FOOTNOTES

FN1. A trap house is a house where drugs are sold..  FN1. A trap house is a house where drugs are sold.

MICHAEL J. O'NEILL JUSTICE