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Court of Appeals of Texas, Dallas.


No. 05-08-00961-CR

Decided: January 28, 2010

Before Chief Justice Wright and Justices Fillmore and Lagarde 1


Opinion By Justice Lagarde

In this appeal from the judgment in a burglary of a habitation, appellant Walter Eugene Davis raises a sole issue:  factual insufficiency of the evidence.   Appellant pleaded not guilty before a jury to burglary of a habitation alleged to have occurred on July 19, 2007.   The jury found appellant guilty and assessed his punishment at confinement for forty years and a $5,000 fine.   Having reviewed all the evidence presented to us on appeal, we affirm.

Twenty-five-year old Labarron Patterson, the complainant, testified that on July 19, 2007, at about four o'clock in the morning while asleep on the couch in his living room, he was awakened by a man holding the butt of a shotgun to his face.   Both in a photographic lineup and in court, Patterson identified appellant, whom he knew as Mike-Mike, as the man holding the shotgun.   With appellant during the offense were Edward McGregor, who had previously lived with Patterson but had moved out about three weeks before, and a man Patterson believed to be named Armondo.   Appellant had been to Patterson's apartment almost daily during the time McGregor lived with him.   McGregor helped Patterson sell drugs while he lived with him.   They sold drugs through the bedroom window.   They had installed a doorbell and surveillance camera inside the window.

McGregor told Patterson that appellant was his cousin.   Patterson had previously seen appellant with a shotgun.   Patterson heard McGregor tell appellant to shoot him.   He said “just go on and do it.”   When Patterson heard appellant cock the shotgun, he lifted his hands in self-defense.   Appellant shot Patterson in the face.   Patterson passed out.   When he regained consciousness, Patterson unlocked the front door and went to a neighbor's house for help.   When the neighbors asked him who shot him, Patterson told them “Edward and them.”   The neighbors called for an ambulance and Patterson was taken to Parkland Hospital where he stayed for three and a half months.   He spent two months in the ICU. Patterson lost most of his nose, had an injury to his eye, a broken jaw, lost control of his right hand, and was unable to eat or drink anything for two and a half months.   He underwent several reconstructive surgeries.   Patterson denied telling the hospital staff his girlfriend's ex-boyfriend shot him.   Patterson admitted he kept some $2,000 to $3,000 in the house.

Patterson testified the window screen shown removed in one of the State's exhibits was on the window when he fell asleep.   He also testified the only way to get into his apartment was through that window or the front door.   The front door, however, was locked when Patterson left to go to the neighbor's apartment.   Patterson admitted he sold cocaine and marijuana and had smoked marijuana within a year of getting shot.   Patterson gave an affidavit to the police on August 15, 2007 while he was heavily sedated and on a lot of pain medication.

Dallas Police Officer Troy Wayne Smith was on patrol and responded to a shooting call at 3919 Sidney Street, Apartment 205.   When Smith arrived at the apartment complex, there were several people outside screaming.   After going up a flight of stairs to apartment 202, he observed the complainant lying on the floor bleeding from his face and his hand.   One of Smith's duties as the responding officer was to secure the crime scene.   To get to the crime scene, Smith went from where the complainant was found, across the upstairs breeze way into another apartment where the actual shooting occurred.   At the crime scene, he saw that a window in the apartment was open and the screen had been removed.   In court, Smith identified the crime scene from photographs shown to him.

Dallas Crime Scene Detective Michael Hackbarth testified he swabbed several items found at the scene.   One item was a red baseball cap found near the apartment window.   He also found fingerprints on a Doritos bag but no fingerprint matches were found.   Hackbarth took crime scene photographs which were introduced into evidence at trial.   Forensic Biologist Courtney Ferriera testified she did a DNA comparison of the material found on the red baseball cap to appellant's DNA but, statistically, one out of three African-Americans could have left such DNA.

Detective Daniel Rosales of the Dallas gang unit testified he believed the crime could have been gang related.   On August 15, 2007, he prepared a photographic lineup from which Patterson picked appellant's photograph as the shooter.   Patterson also identified other suspects in the lineup.   Appellant was arrested on October 24, 2007.

Yvonne Thompson testified appellant was her boyfriend.   They had been dating for one and a half years and appellant was living with her at the time of the offense.   On the night of the offense, Thompson went to sleep at 12:45 a.m.;   appellant slept in the living room.   About 5:00 a.m., appellant woke her and told her he needed to go to the hospital because he had conjunctivitis.   Appellant checked into the hospital at 6:15 a.m.;   they got home from the hospital around 12:30 p.m. Appellant had previously been to the hospital about his eye.   Appellant had been with his uncle, Kenneth Price, the night before the offense.

Price testified he often drove appellant because appellant did not have a car.   Appellant did not carry a shotgun.   Price had heard of Armondo but had never heard of McGregor.   Price did not recall being with appellant on the night of the offense.

Appellant took the stand in his own defense.   He testified he was twenty-two years old and had been in the state jail for possession of a controlled substance.   He denied committing the offense or even being at the “dope house” on July 19, 2007.   He did not see McGregor, “Mondo”, or the complainant that evening.   Appellant admitted, however, he knew the complainant, whom he knew as “Bear,” from going over to the apartment to buy drugs.   Appellant met McGregor over there.   Appellant knew he was in the complainant's apartment on July 4th to buy drugs and had been over there a few days before the shooting.   Appellant said if he went over too late, Patterson would get mad and “try to put him out.”   Appellant admitted he and Patterson did not get along.   On July 14th, appellant was having trouble with his eyes and went to the doctor.   He returned to see the doctor on July 19th.   On July 18th, he drank beers with his uncle at his uncle's house.   His uncle took him home about 12:45 a.m. and he stayed there the rest of the night until he went to the hospital about 6:00 a.m. Appellant denied telling anyone that he and McGregor were cousins.   He also denied he owned a shotgun.

Appellant was arrested by Dallas Police Detective Darion Loera who had learned appellant was hiding in an apartment in Oak Cliff.   Upon entering the apartment, the officers found appellant hiding under a bed.   They arrested appellant and searched the apartment but found no guns or narcotics in the apartment.

On appeal, appellant argues the evidence is factually insufficient to support his conviction for burglary of a habitation with the intent to commit aggravated assault.   He points to the lack of physical evidence linking him to the crime, the weakness of the DNA evidence, and what he characterizes as the questionable identification by Patterson because Patterson named two others as perpetrators before he named appellant as the shooter.   The State responds the evidence is sufficient based on Patterson's identification in both a photographic lineup and in court, the DNA evidence that showed appellant could have committed the crime, and the lack of contradictory evidence by the defense.

Standard of Review

The factual sufficiency standard of review is well established.   When reviewing the factual sufficiency of the evidence to support a conviction, an appellate court views all the evidence in a neutral light, favoring neither party.  Neal v. State, 256 S.W.3d 264, 275 (Tex.Crim.App.2008), cert. denied, 129 S.Ct. 1037 (2009);  Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006).   The reviewing court must 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.   Lancon v. State, 253 S.W.3d 699, 704 (Tex.Crim.App.2008);  Watson, 204 S.W.3d at 414-15, 417.   The court considers all the evidence, both direct and circumstantial.   See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006).   The court must give due deference to the findings of the fact finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree.   See Marshall, 210 S.W.3d at 625;  Watson, 204 S.W.3d at 416-417.   The existence of contrary evidence is not enough to support a finding of factual insufficiency.   See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App.2001).

As charged by indictment in this case, a person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit a felony other than theft, namely, aggravated assault.  Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).

We have earlier in this opinion set out the evidence.   Having reviewed all the evidence before us in this case in light of the elements of the charged offense, we conclude the evidence is factually sufficient to support the appellant's conviction for burglary of a habitation as charged.

We affirm.


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