Opinion
14-20-00813-CR
08-16-2022
JASPER DAVIS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1573130
Panel consists of Justices Wise, Spain, and Hassan.
MEMORANDUM OPINION
Meagan Hassan Justice
Appellant Jasper Davis appeals his murder conviction, arguing in four issues that (1) there is insufficient evidence to support his conviction; and (2) the trial court abused its discretion by admitting two photos and a recording of a 9-1-1 call into evidence. We affirm.
Background
Appellant was charged with the murder of Complainant, who was his girlfriend and the mother of his eight-month-old daughter. A jury trial was held on guilt-innocence from February 10 to February 19, 2020. At trial, the jury heard the following evidence.
Around 5:20 a.m. on December 8, 2018, Appellant's friend, Martinez, called 9-1-1 to report that Appellant had killed Complainant. Martinez stated that he saw the dead body of Complainant in the trunk of a car in Appellant's garage and that Appellant was driving around with the Complainant in the trunk. Martinez also told the dispatcher that Appellant "told me himself he shot her[,] that she was going to take the baby away and he shot her."
After interviewing Martinez, the police went to Appellant's home but only found Appellant's baby alone in her bassinet. Appellant was driving around as Martinez had reported. Appellant decided to throw Complainant's body into a hole in a thick, brushy area next to a bayou. Because Appellant's car got stuck in the mud, he could not leave and had to call his father, Mercer, to pull him out. As Appellant and Mercer approached Appellant's home, Appellant called Mercer to tell him that the police were there. Appellant told Mercer that Complainant was dead and that only the baby was at the house. Mercer advised Appellant to drive to Appellant's mother's apartment. While following Appellant in his vehicle, Mercer called 9-1-1 and informed the police about what he "had just learned" from Appellant.
When Appellant arrived at his mother's apartment, he took a shower and changed clothes. As he was trying to leave the apartment complex, Appellant was arrested. The police found Complainant's half naked body in the hole by the bayou where Appellant had placed it. The police later searched the muddy car Appellant drove to transport Complainant's body, finding several pieces of bloody clothing that Complainant had worn before she died.
Appellant claimed that Complainant accidentally shot herself during an argument in their bedroom after the two returned from a night out. In the evening on December 7, 2018, Appellant and Complainant went out to celebrate his birthday. Appellant claimed they spent some time at a hookah bar and got into an argument. From there, they went to one more bar before arriving at the Shamrocks Pub around midnight. Appellant and Complainant got into another argument, which turned physical causing the pub's employees to intervene. Appellant and Complainant were escorted out of the pub and left. This was recorded by the pub's video cameras. Appellant claimed that he was angry at Complainant after the argument at the pub and "broke up with her." A telephone recording from the time when Appellant and Complainant left the pub revealed that Appellant angrily yelled at Complainant, broke off their relationship, called Complainant an "ungrateful bitch," and told her "I hope you die." Complainant can be heard repeatedly yelling at Appellant to "stop" and to "please come home."
Appellant claimed he and Complainant drove home together and continued arguing in their master bedroom at home. Appellant's mother, who had been babysitting her granddaughter at the house, left and Appellant and Complainant continued their argument. According to Appellant, Complainant tried to leave with their baby, but he told her she could not leave until she was sober. Appellant testified that Complainant started hitting him, grabbed his gun from the dresser drawer, racked the slide of the gun, and tried pointing the gun in his direction. He testified that he lunged at Complainant and grabbed her wrist. He claimed that Complainant lost her footing during the struggle, fell backwards with the gun in her hand, the gun went off, and she hit her head on the dresser. Appellant denied killing Complainant and blamed her "for this accident."
After hearing the evidence presented, the jury found Appellant guilty of murder. A bench trial was held on punishment and the trial court assessed Appellant's punishment at 35 years' confinement. Appellant filed a timely appeal.
Analysis
I. Sufficiency of the Evidence
Appellant contends in his fourth issue that there is insufficient evidence to support his conviction for murder because the evidence supports his testimony that Complainant "shot herself when she fell after a struggle over the weapon."
We address Appellant's sufficiency issue first because, if it is meritorious, we would render a judgment of acquittal rather than reverse and remand. Owens v. State, 135 S.W.3d 302, 305 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (legal sufficiency challenge must be addressed first because, if evidence is insufficient, reviewing court must render judgment of acquittal).
A. Standard of Review and Applicable Law
The legal sufficiency standard of review is the only standard applied to determine whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) ("[T]his Court now applies only one standard 'to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: legal sufficiency.'"). For this review, we consider the combined and cumulative force of all admitted evidence and any reasonable inferences therefrom in the light most favorable to the verdict to determine whether the jury was rationally justified in its decision. Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017). Direct evidence and circumstantial evidence are equally probative; circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015).
Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc); Price v. State, 456 S.W.3d 342, 347 (Tex. App.- Houston [14th Dist.] 2015, pet. ref'd). Our review includes both properly and improperly admitted evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Price, 456 S.W.3d at 347. The jury may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. Kelley v. State, 429 S.W.3d 865, 872 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd). We may not substitute our judgment for that of the jury and must defer to the jury's responsibility to fairly resolve or reconcile conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
As applicable in this case, a person commits murder 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. See Tex. Penal Code Ann. § 19.02(b)(1), (2).
B. Application
Appellant contends on appeal that the evidence is legally insufficient to support his conviction because he testified that Complainant "accidentally shot herself when she fell after a struggle over the weapon" and "the evidence supported [his] testimony and not the [S]tate's version of events." In that regard, Appellant asserts that the evidence showed (1) Complainant "was the aggressor during the night, and that she was intoxicated and acting irrationally"; (2) the medical examiner, Dr. Lopez, "opined at the time the weapon was discharged, the barrel was within two feet of the entry wound" and the "wound was consistent with a gun pointed directly at" Complainant; (3) Dr. Lopez "was able to verify that the complainant st[r]uck her head on something as evidenced by the subdural bleeding"; (4) Dr. Lopez "was able to testify about impressions on the [C]omplainant's neck that occurred when Appellant was having to restrain her when she continued to grab the steering wheel when he was driving"; and (5) "the DNA analyst, Mario Galito, confirmed that both Appellant and the [C]omplainant's DNA could not be excluded from the mixture of DNA found on the grip, slide, and trigger of the firearm."
We disagree with Appellant's contention that there is insufficient evidence to support his murder conviction. First, we note that Appellant's sufficiency argument is based on the erroneous assumption that the jury was required to accept his testimony and resolve any conflicts or inconsistencies in the evidence in his favor. As the sole judge of the credibility of witnesses and of the weight given to their testimony, the jury may accept one version of the facts and reject another, and it may reject any part of a witness's testimony.
See Wesbrook, 29 S.W.3d at 111; Price, 456 S.W.3d at 347.
See Kelley, 429 S.W.3d at 872.
Second, most of the evidence Appellant points to in his brief does not support his sufficiency challenge. Dr. Lopez's opinion that Complainant struck her head on something, that "at the time the weapon was discharged, the barrel was within two feet of the entry wound," and that the "wound was consistent with a gun pointed directly at" Complainant is not evidence establishing that Appellant did not shoot Complainant and that she accidentally shot herself. Nor does Galito's testimony confirming that both Appellant's and Complainant's DNA was present on the gun negate that Appellant shot Complainant.
Additionally, besides Appellant's self-serving testimony that Complainant started arguments the night of her death, there is no other evidence supporting his assertion that Complainant was the aggressor and acted irrationally. Appellant's mother testified that both Appellant and Complainant were intoxicated, argued, and "pushed on each other" although Complainant was more aggressive. Video recordings from Appellant's and Complainant's visit at the pub also do not support Appellant's contention that Complainant was the aggressor and acted irrationally.
Third, there is more than sufficient evidence to support the factfinder's conclusion that Appellant intentionally shot Complainant and that Complainant did not accidentally shoot herself. Appellant told his friend Martinez that he shot Complainant and showed Martinez Complainant's body. The jury heard Martinez's 9-1-1 call during which he stated that his friend Jasper Davis "has killed his girlfriend." Martinez stated that he saw Complainant in the trunk of the car and that Appellant was driving around with Complainant's body. Martinez told the dispatcher that Appellant "told me himself he shot her[,] that she was going to take the baby away and he shot her."
Further, the physical evidence does not support Appellant's assertion that Complainant shot herself; instead, it supports the factfinder's conclusion that Complainant was shot by Appellant. In that respect, Dr. Lopez testified that based on her training and experience, Complainant's cause of death was a gunshot wound to the head and neck and that the manner of death was homicide. She testified that "the options for manner of death classification are: Homicide, suicide, accident, natural, or undetermined. So, in my opinion, this case was a homicide. That injury was inflicted by another person" at "probably about around 2 feet" away. During Appellant's cross-examination, Dr. Lopez specifically rejected Appellant's suggestion that Complainant died from a self-inflicted gunshot wound and stated: "I believe that someone else shot her. I believe this was an inflicted injury, and that's . . . the reason that I classified this case as a homicide because taking the totality of all of the injuries and the circumstances, it's my opinion that these were inflicted injuries."
Dr. Lopez confirmed that Complainant "had bruising throughout various areas from head to knee," including bruising on her face and "extensive bruising on her forearm, elbows, thighs and both knees" that were inflicted before her death. Complainant also had injuries to her neck and chin. Dr. Lopez testified that "injuries to the neck and petechial hemorrhages in the eyes and the mouth like I see in this case" would be consistent with strangulation, i.e., "some sort of compression to her neck by a hand or an object." Dr. Lopez rejected Appellant's suggestion that Complainant may have sustained these different injuries when the airbag in Complainant's car deployed earlier in the night while leaving Shamrocks Pub. She stated that based on her training and experience "[a]ll these injuries taken into [sic] totality are indicative of inflicted injuries that occurred during an assault."
We note that Appellant did not object to Dr. Lopez's testimony we discuss above.
The jury also saw video footage from Shamrocks Pub, showing that Appellant and Complainant got into a physical argument (causing the pub's employees to intervene) because Complainant slid away a beer bottle so Appellant could not reach it. A telephone recording from the time when Appellant and Complainant left the pub further revealed that Appellant angrily growled and yelled at Complainant, broke off their relationship, called Complainant an "ungrateful bitch," and told her "I hope you die" while Complainant can be heard repeatedly yelling at Appellant to "stop" and to "please come home."
The jury also heard from Detective Reynolds, who had interviewed Appellant after his arrest. Reynolds testified that during the interview Appellant said, "I killed her." Moreover, the jury could have concluded that Appellant intended to kill Complainant because he tried to conceal her body in a hole in a thick, brushy area by the bayou; Appellant's attempt to conceal Complainant's body is strong evidence of his consciousness of guilt. See Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (quoting Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (alteration in original) ("'[a]ttempts to conceal incriminating evidence . . . are probative of wrongful conduct and are also circumstances of guilt'; Applicant's attempts to conceal Jerry's body . . . are strong evidence of applicant's consciousness of guilt")).
Based on the record before us and viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support Appellant's murder conviction. Accordingly, we overrule Appellant's fourth issue.
II. Admission of Evidence
In his first and second issues, Appellant argues that the trial court abused its discretion by admitting two photographs (State's exhibits 20 and 127) into evidence. In his third issue, Appellant asserts that the trial court abused its discretion by admitting Martinez's 9-1-1 call (State's exhibit 1) into evidence.
A. Standard of Review and Applicable Law
A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. See Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Beham, 559 S.W.3d at 478; Gonzalez, 544 S.W.3d at 370. If the trial court's ruling can be justified on any theory of law applicable to the ruling, the ruling will not be disturbed. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
The erroneous admission of evidence is non-constitutional error. Gonzalez, 544 S.W.3d at 373; see also Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Non-constitutional error is harmful, and thus requires reversal, only if it affects a defendant's substantial rights. Gonzalez, 544 S.W.3d at 373. Error is reversible only when it has a substantial and injurious effect or influence in determining the jury's verdict. Id.; see also Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). If there is fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect, we will not overturn the conviction. Gonzalez, 544 S.W.3d at 373; see also Coble, 330 S.W.3d at 280. In making this determination, we consider: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained-of error. Gonzalez, 544 S.W.3d at 373; Brown v. State, 580 S.W.3d 755, 765-66 (Tex. App.-Houston [14th Dist.] 2019, pet. ref'd).
B. Exhibits
Appellant complains in his first and second issues that the trial court abused its discretion when it admitted State's exhibits 20 and 127 (two photographs of Complainant's body) because the exhibits were "repetitive" of State's exhibits 21 and 124, respectively. Appellant complains in his third issue that the trial court abused its discretion when it admitted State's exhibit 1 (Martinez's 9-1-1 call) because it constituted inadmissible hearsay that "did not rise to the exception for an excited utterance." However, besides these contentions, Appellant's brief is devoid of any argument regarding if, how, or why any alleged abuse of discretion was harmful. Under the circumstances, this constitutes briefing waiver. See Tex. R. App. P. 38.1(i); Wilson v. State, 473 S.W.3d 889, 901 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd) (holding the appellant's complaint that trial court erroneously admitted certain evidence was inadequately briefed because he failed to "identify[] the harm that he suffered as a result of the admission"); see also Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (en banc) (holding issue was inadequately briefed because the "appellant d[id] not address the question of whether the alleged error . . . was harmless."); Sierra v. State, 157 S.W.3d 52, 64 (Tex. App.-Fort Worth 2004) (holding issue whether testimony was unfairly prejudicial was inadequately briefed because "appellant failed to show how he was harmed by the testimony"), aff'd, 218 S.W.3d 85 (Tex. Crim. App. 2007); Fremin v. State, No. 14-01-00571-CR, 2002 WL 1315912, at *3 (Tex. App.-Houston [14th Dist.] June 6, 2002, no pet.) (not designated for publication) (concluding issue whether officer's statement was erroneously admitted was inadequately briefed because "appellant's brief identifie[d] no evidence of harm").
Accordingly, we overrule Appellant's first, second, and third issues.
Conclusion
We affirm the trial court's judgment.