James Anthony Davis v. State

COURT

OF APPEALS

SECOND DISTRICT

OF TEXAS

FORT WORTH

NO. 2-07-177-CR

JAMES ANTHONY DAVIS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM

CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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OPINION

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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.

Factual and Procedural Background

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, A 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 the trial court sentenced him to ninety-nine years = confinement, Davis perfected this appeal.

III.

Points of Error Presented

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.

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.

Standards of Review

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 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 Tex. Code Crim. Proc. Ann. 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 A determine whether 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 B 17 (Tex.

Crim. App. 2007). We 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 B 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 .

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 A 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 .

We 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 A 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, A 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 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 B 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. C Fort Worth 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 Tex. Penal Code Ann.

' 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 Tex. Penal Code Ann . ' 19.02(a)(1), (a)(2), (d) (Vernon 2003); McKinney v. State , 179

S.W.3d 565, 569 (Tex. Crim. App. 2005); Hearne

v. State , No. 02-05-00291-CR, 2006 WL 2578196 , at *1 (Tex. App. C Fort Worth Sep. 7, 2006, pet. ref = d.) (not designated for publication).

A Sudden passion @ is A 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. @ Tex. Penal Code Ann. ' 19.02(a)(2). A Adequate cause @ is a 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. @ Tex. Penal Code Ann. ' 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 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 B 54 (Tex.

App. C 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. 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. C 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 B 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. C 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 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. C Corpus Christi 2003, pet. ref = d). Thus, only in extreme

circumstances, when the prejudice caused by the improper argument is incurable,

i.e., A 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.

Legal and Factual Sufficiency of the Evidence

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

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 A daddy @ (Davis) A 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.

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, A [G]et off

me. @ The female said, A [P]lease send help, @ A [P]lease . .

. no more . . . no . . . not my child @ (ellipses in 9-1-1 transcript), and A 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 A hang up the phone @ could be heard in the background.

The female caller did not say anything else, but the 9-1-1 tape recorded

the child in the background saying, A You stabbed my momma @ and A 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 A 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, A 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 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 C 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, A 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.

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

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 B 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 C 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.

Davis = s Self-Defense Claim

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.

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 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 C applying the then-existing section 9.31 to section 9.32(a)(1) C 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 C that a cut

on one of Davis = s ears was

probably not self-inflicted [4] C 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., 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.

Davis = s Sudden Passion Claim

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 C viewing it as we must under the

controlling standard of review C 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,

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 Tex. Penal Code Ann .

' 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 Tex.

Penal Code Ann . '

19.02(a)(1), (a)(2), (d); McKinney , 179 S.W.3d at 569 ; Kennedy ,

193 S.W.3d at 653 B 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.

Davis = s Objections to Testimony During the Trial

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.

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. C San Antonio 2006, no pet.); Woods v. State , 14 S.W.3d 445, 450

(Tex. App. C 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 B 81; Fox v. State , 175 S.W.3d 475, 481 (Tex. App. C 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. Tex. R. Evid . 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 B 39 (Tex. App. C Tyler 1995 ,

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, A 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 A 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. 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 B 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 Tex. R. Evid. 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 Tex. R. App. 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

In his thirteenth point, Davis contends that the trial court erred by A 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, A Did you see

any wounds on James Davis that would be classified as defensive wounds?, @ Detective Graham responded, A 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, A 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, A Correct. @ On recross-examination Davis again asked, A Are you talking about the wounds that you saw on the wrist appeared to

be self-inflicted?, @ to which

Detective Graham answered, A Those appeared to be self-inflicted, yes. @

Thus, Davis = s complaint

that the trial court erred by A 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 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 B 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 Davis = s statements to Detective Graham constitute hearsay. See Tex.

R. Evid. 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. C 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 A 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. @ Tex. R. Evid . 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. C 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. C Fort Worth 1997, no pet.) (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?

A. No, sir.

. . .

.

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?

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

WITNESS: Yes, sir.

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 C that is, as substantive evidence C other than as an explanation or support for Detective Graham = s opinion. See Tex. R. Evid. 705; Valle , 109

S.W.3d at 505 B 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; and (2) Davis candidly concedes

that he wanted his statements to Detective Graham admitted because they were A an integral part of the Appellant = s self-defense claim. @ Thus, Davis admits that the

value of the statements was not as an A explanation or support @ for Detective Graham = s opinion, but rather as substantive evidence to advance his own

self-defense claim C a purpose

rule 705(d) aims to prevent . See

Valle , 109 S.W.3d at 505 B 06 (quoting Cole v. State , 839 S.W.2d 798, 815 (Tex. Crim. App.

1990) (Maloney, J. concurring on rehearing) ( A 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 A impeach @ Detective

Graham with the statements A under the rules in Chapter 6 of the Texas Rules of Evidence. @ Presuming that a citation to

nothing more specific than A 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 A 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, 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 A 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.

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. Tex.

R. Evid. 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) C the excited utterance exception.

An A excited

utterance @ is A [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. @ Tex.

R. Evid. 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 A 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 A 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 A clearly upset, @ her hands

were shaking 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 A scared to death @ declarant

whispering A help me @ to police officers twenty hours after being assaulted were excited

utterances); Jackson v. State , 110 S.W.3d 626, 634 (Tex. App. C Houston [14th Dist.] 2003, pet. ref = d) (holding that the statements of a recently assaulted, A very upset, @ and crying

assault victim were excited utterances); see also Reyes v. State , 48

S.W.3d 917, 920 (Tex. App. C Fort Worth 2001, no pet.); Bondurant v. State , 956 S.W.2d 762,

766 (Tex. App. C Fort Worth

1997, pet. ref = d).

2. Confrontation Clause

Objection to Officer Mullinax = s Testimony

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 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 B 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 .

A [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: A In all criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him. @ U.S. Const. 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).

In Crawford v. Washington , the Supreme Court held that the

Confrontation Clause barred the A 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 B 54, 124 S. Ct. 1354, 1365 (2004).

The Court later clarified what qualified as a 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 B 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; (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 B 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 C 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. C Dallas 2007, pet. ref = d) (statements given to a police officer responding to a 9-1-1 call

reporting domestic violence were testimonial).

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 A 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 A 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 A essentially equitable @ principle mandates that A 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 .

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 B 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 C which is binding on this court C 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 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 C applying the holding in Giles C 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. Tex. R. App. 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. Tex. R. App. 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 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 A 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 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 A 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, A no, no, James, no. @ Thus, although Latarsha = s exact hearsay statements to Officer Mullinax were not technically A cumulative of @ or A 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 C Tanoah C 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 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 Tex. R. App. 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 A 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 A talking real violent to

[Latarsha] @ and

calling her names. Heather testified

that she knew this because A [Latarsha = s]

cell phone was turned up real loud, you could hear everything when the cell

phone is turned up loud. @

3. Heather

testified that later the same day she went to Latarsha = s

apartment and heard Davis tell Latarhsa, A 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, A 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 A [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 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, A Where

is your TV at? @ Latarsha responded, A [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 Tex. R. App. P. 33.1(a)(1).

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 Tex. R. Evid. 801(e)(2)(A); Trevino ,

991 S.W.2d at 853 (noting that A [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 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) . Tex. R. App. P. 44.2(b);

West v. State , 121 S.W.3d 95, 104 (Tex. App. C 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. Tex. R. App. 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 B 43 (Tex.

App. C 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, A I can = t 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 B 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 [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. C 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 . 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.

Jury Argument

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.

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.

THE

COURT: Sustained.

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.

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). A 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. C 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 A 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 B 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, A different jurors may be

persuaded by different pieces of evidence, even when they agree upon the bottom

line. Plainly, there is no 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 B 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 B 60 (Wis. 2001), cert. denied , 534 U.S. 1043 (2001)).

Section 19.02 of the Texas Penal Code, titled A 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.

Tex. Penal Code Ann. '

19.02(b)(1)-(2) (Vernon 2003). In this

statute, the legislature has set forth two different mental states C (1) intentionally or knowingly causing death or (2) committing an act

clearly dangerous to human life with the intent to cause serious bodily injury C that would satisfy the intent element of murder. See White v. State , 208 S.W.3d 467 ,

467 B 68 (Tex. Crim. App. 2006); Gray v. State , 980 S.W.2d 772 , 774 B 75 (Tex. App. C 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 B 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 C he murdered

her. See id. ; Aguirre , 732

S.W.2d 320, 326 (Tex. Crim. App. 1987); Gray , 980 S.W.2d at 774 B 75.

The jury here was authorized in the charge of the court to find Davis

guilty of murder if he A 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 A 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 B 32, 111 S. Ct. at 2497 ; Jefferson , 189 S.W.3d at 311 ; Gray ,

980 S.W.2d at 774 B 75. Davis

relies solely on Ngo to support his claim on appeal. Such reliance 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 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. C 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. C Fort Worth 2005, pet. ref = d); Tyler , 2006 WL 1452536 , at *2. The court of criminal appeals has held that

the A 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: A 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, A Ladies 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, A 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 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 C 95.

Case law supports this conclusion.

For example, in Coble the prosecutor argued that the defense

attorney = s lawyer was arguing A 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. 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 B 17 (holding prosecutor = s statement that defense attorneys knew that a defendant accused of

cocaine possession lived in a A crack house @ was

improper); Lopez v. State , 705 S.W.2d 296, 298 (Tex. App. C 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,

[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 A 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, A 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. C Houston [1st

Dist.] 1992, no pet.).

The record here reflects that, in fact, after a series of questions by

the prosecutor Officer Hatton was asked, A 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, A 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. C 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. C 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. C 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.

Evidence During the Punishment Phase

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 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 A 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.

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. Tex. Penal Code

Ann. ' 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. C Houston [1st

Dist.] 2007, no pet.) (citing Beck v. State , 719 S.W.2d 205 , 209 B 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 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. C 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. C Corpus Christi 1999, pet. ref = d); Wright v. State , 932 S.W.2d 572, 576 (Tex. App. C Tyler 1995 , no pet.); Rosales v. State , 867 S.W.2d 70, 72 (Tex.

App. C 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 B 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 S.W.2d

948, 951 (Tex. App. C 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 B 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 B 10. One of the methods that the

court of criminal appeals has recognized is via the A 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 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.

Q. Are you aware of a theft or [sic] a check

case that he was

convicted

for in 1990?

A. Yes.

Q. And actually went to the penitentiary for

it in 1994?

A. Yes.

Q. Is this the same James Davis who was

convicted in that

case?

A. Yes.

Q. Are you familiar with an unlawful

possession of a firearm by a felon case

that he went to the penitentiary for?

A. Yes.

Q. In 1997?

A. Yes.

Q. And is this the same James Davis that was

convicted in that offense?

A. Yes.

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 determination of appropriate punishment for Davis. See Tex.

Penal Code Ann. ' 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.

Conclusion

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

[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

Tex. R. App. P. 38.1(e)

(requiring appellate court to treat issue as covering every subsidiary question

that is fairly included).

[2] Testimony

by Latarsha = s

mother and one of Latarsha = s friends established that

Latarsha went by Tasha.

[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 Tex.

Penal Code Ann. ' '

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).

[4] The

State points out that Dr. Peerwani was not asked A 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. @

[5] Testimony

was unclear as to whether there was one big neck wound or two smaller neck

wounds.

[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).

[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.