Opinion

Davis, Franklin

Court
Court of Appeals of Texas
Filed
Feb 27, 2015
Status
Published
Cited by
0 cases
Authority
More cited than 3.0%

The opinion

ap-77,031

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 2/27/2015 4:01:52 PM

Accepted 2/27/2015 4:06:39 PM

February 27, 2015 ABEL ACOSTA

NO. AP-77,031 CLERK

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

_______________________________________________________

FRANKLIN DAVIS

Appellant

VS.

THE STATE OF TEXAS

Appellee

_____________________________________________________

APPEALING THE TRIAL COURT’S CAPITAL JUDGMENT

ASSESSING THE DEATH SENTENCE BASED ON JURY VERDICT

OF GUILTY AND ANSWERS TO SPECIAL ISSUES

IN CAUSE NUMBER F12-12630-Y FROM THE CRIMINAL

DISTRICT COURT NO. 7 OF DALLAS COUNTY, TEXAS

THE HONORABLE MICHAEL SNIPES, JUDGE PRESIDING

_______________________________________________________

BRIEF FOR APPELLANT

_______________________________________________________

JOHN TATUM

990 SOUTH SHERMAN STREET

RICHARDSON, TEXAS 75081

(972) 705-9200

BAR NO. 19672500

ATTORNEY FOR APPELLANT ON APPEAL ONLY

ORAL ARGUMENT IS REQUESTED

IDENTITIES OF PARTIES AND COUNSEL

HONORABLE MICHAEL SNIPES JUDGE PRESIDING

133 N. Riverfront Blvd CRIMINAL DISTRICT

Frank Crowely Courts Bldg. COURT NO. 7

Dallas, Texas 75207 OF DALLAS COUNTY, TEXAS

NAIM FRANKLIN DAVIS APPELLANT

TDC#00999585

Polunsky Unit

3872 FM 350 South

Livingston, Texas 77351

HONORABLE KARO JOHNSON ATTORNEY FOR APPELLANT

3300 Oak Lawn Ave. Suite 600

Dallas, Texas 75219

SBOT#10804500

HONORABLE DOUG PARKS ATTORNEY FOR APPELLANT

321 Calm Water Lane

Holly Lake Ranch, Texas

SBOT# 15520000

HONORABLE BRADY WYATT ATTORNEY FOR APPELLANT

3300 Oak Lawn Ave. Suite 600

Dallas, Texas 75210

SBOT# 24008313

HONORABLE PHILLIP HAYES ATTORNEY FOR APPELLANT

3300 Oak Lawn Ave. Suite 600

Dallas, Texas 75219

SBOT# 24012803

HONORABLE JOHN TATUM ATTORNEY FOR APPELLANT

990 S. Sherman St. ON APPEAL ONLY

Richardson, Texas 75081

SBOT#19672500

i

HONORABLE CRAIG WATKINS DISTRICT ATTORNEY

133 N. Riverfront Blvd DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

HONORABLE BRANDON BIRMINGHAM ASSISTANT DISTRICT ATTORNEY

133 N. Riverfront Blvd. DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

SBOT# 24034330

HONORABLE RUSSELL WILSON ASSISTANT DISTRICT ATTORNEY

133 N. Riverfront Blvd. DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

SBOT# 00794870

HONORABLE GLEN FITZMARTIN ASSISTANT DISTRICT ATTORNEY

133 N. Riverfront Blvd. DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

SBOT# 90001438

HONORABLE HECTOR GARZA ASSISTANT DISTRICT ATTORNEY

133 N. Riverfront Blvd. DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

SBOT# 24044190

ii

TABLE OF CONTENTS

PAGE

IDENTITIES OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i-ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-vii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii-xvi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xviii

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxiv-xxvi

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-50

A. Trial on the Merits

The State on Guilt/Innocence

1) Testimony of Sherrie Gray-James .. . . . . . . . . . . . . . . . . . 1-4

2) Testimony of Julie Cone. . . . . . . . . . . . . . . . . . . . . . . . . . 4

3) Testimony of Forest Langston. . . . . . . . . . . . . . . . . . . . . . 4-5

4) Testimony of Cory Cook. . . . . . . . . . . . . . . . . . . . . . . . . . 5

5) Testimony of Jeff Shaffer. . . . . . . . . . . . . . . . . . . . . . . . . 5-7

6) Testimony of Jim Alcott. . . . . . . . . . . . . . . . . . . . . . . . . . 7

7) Testimony of James Snyder. . . . . . . . . . . . . . . . . . . . . . . . 7

8) Testimony of Jim Shaffer.. . . . . . . . . . . . . . . . . . . . . . . . . 7

9) Testimony of Austin Tapp. . . . . . . . . . . . . . . . . . . . . . . . . 7-8

10) Testimony of Andrew Hoog. . . . . . . . . . . . . . . . . . . . . . 10-11

11) Testimony of Susan Johnson. . . . . . . . . . . . . . . . . . . . . . 9

12) Testimony of Pete Evans. . . . . . . . . . . . . . . . . . . . . . . . . 9

13) Testimony of Dena Williams. . . . . . . . . . . . . . . . . . . . . . 9-10

14) Testimony of Jeremy Chevallier. . . . . . . . . . . . . . . . . . . 10-11

15) Testimony of Christopher Allen. . . . . . . . . . . . . . . . . . . 11

16) Testimony of Charles Clow. . . . . . . . . . . . . . . . . . . . . . . 11

18) Testimony of Dena Williams. . . . . . . . . . . . . . . . . . . . . . 12-13

19) Testimony of Craig Allen. . . . . . . . . . . . . . . . . . . . . . . . 13-14

20) Testimony of Dustin Bartram. . . . . . . . . . . . . . . . . . . . . 14

iii

21) Testimony of Carolyn VanWinkle.. . . . . . . . . . . . . . . . . 14-15

22) Testimony of Dr. Jill Urban. . . . . . . . . . . . . . . . . . . . . . 15

Defense on Guilt/Innocence

23) Testimony of Brandon Snyder. . . . . . . . . . . . . . . . . . . . . 15-18

24) Testimony of Franklin Davis. . . . . . . . . . . . . . . . . . . . . . 18-28

25) Testimony of Lynne Corsi. . . . . . . . . . . . . . . . . . . . . . . . 28-29

26) Testimony of Arty Hayes. . . . . . . . . . . . . . . . . . . . . . . . . 29-30

27) Testimony of Lamar Leggiton. . . . . . . . . . . . . . . . . . . . . 30

State on Rebuttal

28) Testimony of Shirley Brown. . . . . . . . . . . . . . . . . . . . . . 30-31

29) Testimony of Julia Adams. . . . . . . . . . . . . . . . . . . . . . . . 31

30) Testimony of Jazmine Adams. . . . . . . . . . . . . . . . . . . . . 31-32

31) Testimony of Jennifer Dibrell. . . . . . . . . . . . . . . . . . . . . 32

32) Testimony of Jawanna Arrington. . . . . . . . . . . . . . . . . . 33-34

B. Punishment

State on Punishment

33) Testimony of Linda Crawford. . . . . . . . . . . . . . . . . . . . . 34-35

34) Testimony of Labrena Henderson. . . . . . . . . . . . . . . . . . 35

35) Testimony of Margaret Brown-Lewis. . . . . . . . . . . . . . . 35-36

36) Testimony of Steven Underwood. . . . . . . . . . . . . . . . . . 36-37

37) Testimony of Mary Cassio.. . . . . . . . . . . . . . . . . . . . . . . 37-38

38) Testimony of Jawanna Arrington. . . . . . . . . . . . . . . . . . 38

39) Testimony of Matthew Randall. . . . . . . . . . . . . . . . . . . . 38-39

40) Testimony of Christian Dalesandro. . . . . . . . . . . . . . . . . 39

41) Testimony of Jennifer Dibrell. . . . . . . . . . . . . . . . . . . . . 39-40

42) Testimony of Melodye Nelson.. . . . . . . . . . . . . . . . . . . . 40-41

Defense on Punishment

43) Testimony of Clifford Harper. . . . . . . . . . . . . . . . . . . . . 41-42

44) Testimony of Ed Chattaway.. . . . . . . . . . . . . . . . . . . . . . 42-43

iv

45) Testimony of Rose McGill.. . . . . . . . . . . . . . . . . . . . . . . 43-44

46) Testimony of Dorothy Elkins.. . . . . . . . . . . . . . . . . . . . . 44-46

47) Testimony of Linda Hayes.. . . . . . . . . . . . . . . . . . . . . . . 46

48) Testimony of Brenda Griffin. . . . . . . . . . . . . . . . . . . . . . 46

49) Testimony of Pat Gill . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

50) Testimony of James Aiken.. . . . . . . . . . . . . . . . . . . . . . . 47-48

51) Testimony of Frank Au Buchon. . . . . . . . . . . . . . . . . . . 48-49

52) Testimony of Latrice Brown:.. . . . . . . . . . . . . . . . . . . . . 49

53) Testimony of Kurstyne Bailey. . . . . . . . . . . . . . . . . . . . . 49-50

The State on Rebuttal in Punishment

54) Testimony Sherry Gray-James . . . . . . . . . . . . . . . . . . . . 50

SUMMARY OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51-53

ISSUES ON VOIR DIRE

‘BATSON ISSUE’

ISSUE NO. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53-56

ISSUE NO. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56-58

ISSUE NO. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58-61

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61-65

PRETRIAL ISSUES

ISSUE NO. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66-70

ISSUE NO. 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70-72

ISSUE NO. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-74

ISSUE NO. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-80

ISSUE NO. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-80

ISSUE NO. 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-80

ISSUE NO. 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-80

v

GUILT/ INNOCENCE TRIAL ISSUES

ISSUE NO. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81-91

ISSUE NO. 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91-94

ISSUE NO. 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95-103

ISSUE NO. 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95-103

ISSUE NO. 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95-103

ISSUE NO. 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95-103

ISSUE NO. 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95-103

ISSUE NO. 18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95-103

ISSUE NO. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103-107

ISSUE NO. 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104-107

ISSUE NO. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104-107

ISSUE NO. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107-109

ISSUE NO. 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109-112

TRIAL PUNISHMENT ISSUES

ISSUE NO. 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113-116

ISSUE NO. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117-126

ISSUE NO. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126-127

ISSUE NO. 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

ISSUE NO. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128-131

ISSUE NO. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

ISSUE NO. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132-133

ISSUE NO. 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133-134

ISSUE NO. 32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134-138

ISSUE NO. 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138-140

ISSUE NO. 34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

ISSUE NO. 35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140-141

ISSUE NO. 36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141-142

ISSUE NO. 37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141-142

FEDERAL ISSUES

ISSUE NO. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

ISSUE NO. 39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

ISSUE NO. 40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

vi

ISSUE NO. 41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

ISSUE NO. 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

ISSUE NO. 43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

ISSUE NO. 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

ISSUE NO. 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

ISSUE NO. 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

ISSUE NO. 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

ISSUE NO. 48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . 147

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . 147

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . 148

vii

INDEX OF AUTHORITIES

FEDERAL CASES

Apprendi v. New Jersey

530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125,127,135

Batson v. Kentucky

476 U. S. 79, 106 S. C. 1712, 90 L. Ed. 2d 69 (1988).. . . . . . . . . . . . . . . . . . 62,63,139

Blakely v. Washington

124 S.Ct. 2783 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125,127,135

Caldwell v. Mississippi

472 U.S. 320 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Cooper v. Oklahoma

517 U.S. 348, 354 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Eddings v. Oklahoma

455 U.S. 104, 112, 102 S. Ct. 869, 71 L.Ed.2d 1 (1982). . . . . . . . . . . . . . . . . . . . . 125

Furman v. Georgia

408 U.S. 238 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Gates

462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Hayes v. Thaler

361, Fed App. 563 (C.A.5 (Tex.)) 2010 WL 183395 . . . . . . . . . . . . . . . . . . . . . . . . 65

Hitchcock v. Dugger

481 U.S. 393 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

Jackson v. Virginia

443 U.S.307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . 86

Jurek v. Texas

428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).. . . . . . . . . . . . . . . . . . . . . . . 114

viii

Lockett v. Ohio

438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 ( 1978). . . . . . . . . . . . . . . . . . . . . . . 125

Miller-El v. Cockrell

537 U.S. 322 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,64,65

Miller-El v. Drekte

545 U.S. 231 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Penry v. Lynaugh

492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

Penry v. Johnson

532 U.S. 782, 796-797 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73,138,139

Purkett v. Elem

514 U.S. 765 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Reed v. Quaterman

555 F3d 304 (45th Cir.2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

Ring v. Arizona

536 U.S.,122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002).. . . . . . . . . . . . . 125,127,134

Simmons v. South Carolina

512 U.S. 154 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Snyder v. Louisiana

128 S.Ct. 1203 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Tennard v. Dreke

124 S.Ct. 2562 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125,142

Tome v. United States

513 U.S. 150, 156-58, 115 S.Cyt. 696, 130 L.Ed.2d 574 (1995).. . . . . . . . . . . . . . 105

Wiggins v. Smith

123 S.Ct. -252,7 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

ix

STATE CASES

Ables v. State

519 S.W.2d 464, 465 (Tex. Cr. App. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Adams v. State

707 S.W.2d 900 (Tex. Crim. App. 1986) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Angulo v. State

727 S.W.2d 276 (Tex.Crim.App.1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Beltran v. State of Texas

728 S.W.2d 382 (Tex. Crim. App.987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Benz v. State

233 S.W.3d 847 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114,116

Brooks v. State

990 S.W.2d 278, 286 (Tex. Crim. App. 1999), cert. denied,

528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999).. . . . . . . . . . . . . . . . . . . . . . . 67

Butler v. State

769 S.W.2d 234, 239 (Tex. Crim.App. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Cada v. State

334 S.W.3d 766, 770 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Cannady v. State

11 S.W.3d 205, 213 (Tex. Crim. App.) cert denied 531 U.S. 850, 121 S.Ct. 12148

L.Ed.2d 80 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Coble v. State

330 S.W.3d 253 (Tex. Crim.App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Coe v. State

683 S.W.2d 431, 438 (Tex. Crim App. 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

x

Davis v. State

329 S.W.3d 798, 821 (Tex. Crim. App. 2010, cert denied

- - U.S. - - , 132 S.Ct. 128, 181 L.Ed.2d 50 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . 110

Ellason v. State

815 S.W. 656 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Escamilla v. State

143 S.W.3d 814 (Tex. Crim.App.-2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Espada v. State

2008 WL 4809235 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Esquivel v. State

506 S.W.2d 613, 615 (Tex. Cr. App. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Esteves v. State

859 S. W. 2d 613 (Tex. App. – Houston [1st Dist.] 1993, pet. ref’d). . . . . . . . . . . . . 62

Everson v. State

851 S. W. 2d 269 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Freeman v. State

838 S.W. 2d 772 (Tex. App. Corpus Christi 1992).. . . . . . . . . . . . . . . . . . . . . . . . . 68

Fuentes v. State

664 S.W. 2d 333, 335 (Tex. Crim. App. 1984).. . . . . . . . . . . . . . . . . . . . . 110,111,112

Haecker v. State

571 S.W.2d 920 (Tex. Crim.App 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Hammons v. State

239 S.W.3d 798 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106,107

Holberg v. State

38 S.W.3d 137, 139 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

xi

Hooper

214 S.W.3d 9 (Texas Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Houston v. State

663 S.W.2d 455, 456 (Tex. Crim.App.1984)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Huffman v. State

746 S.W.2d 212 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Hughes v. State

787 S.W.2d 193, 195 (Tex. App.-Corpus Christi 190, pet. ref’d). . . . . . . . . . . . . . . 68

Gallo v. State

239 S.W.3d 757, 767 (Tex. Crim. App. 2007), cert filed, #07-9590,

February 29, 2008. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Gomez v. State

704 S.W.2d 770, 771-72 (Tex. Crim. App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 112

Greer v. State

No. 05-08-00146 (Tex. App.-Dallas June 9, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . 64

Jackson v. State

33 S.W.2d 8 (Tex. Crim.App.2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Johnson v. State

673 S.W.2d 190, 197 (Tex. Crim. App.1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Jones v. State

944 S.W.2d 644, 651 (Tex. Crim. App.1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Jurek v. State

522 S.W.2d 934 (Tex. Cr. App. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Keeton v. State

724 S. W. 2d 58, 65 n. 5 (Tex. Crim. App. 1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . 62

xii

King v. State

254 S.W.3d 579 (Tex. App.-Amarillo, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Klien v. State

273 S.W.3d 297) Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Landrum v. State

788 S.W.2d 577, 579 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Lopez v. State

940 S. W. 2d 388 (Tex. App.-Austin, 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Mayes v. State

318 S.W.3d 368 (Tex. Crim.App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

McCarthy v. State

2006 WL 1096924. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Mendoza v. State

2008WL4803471. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127,146

Montgomery v. State

810 S.W.2d 372, 376 (Tex. Crim. App.1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . 92,93

Mosley v. State

983 S.W.2d 249, 259 (Tex. Crim.App. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Musick v. State

862 S.W. 2d 794 (Tex. App. – El Paso 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Norris v. State

902 S.W.2d 428, 443 (Tex. Rim. Ap. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

O’Bryan v. State

591 S.W.2s 464, 480 (Tex. Cr. Ap. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Paulson v. State

28 S.W.3d 570 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

xiii

Phillips v. State

130 S.W.3d 343, 355 (Tex. App.-Houston [14th Dist.] 2004, pet. ref’d)

(op. on reh’g), aff’d at 193 S.W.3d 904 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . 110

Ramirez v. State

862 S. W. 2d 648 (Tex. App. – Dallas 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,64

Rayme v. State

178 S.W.3d 222(Tex.Crim.App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Reese v. State

33 S.W.3d 238 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Reese v. State

653 S.W.2d 550 (Tex. App.-Beaumont-1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Reeves v. State

806 S.W.2d 540, 543 (Tex. Crim.App.1990), cert. denied, –U.S.–, 111 S.Ct. 641,

113 L.Ed.2d 736 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Roberts v. State

220 S.W.3d 521 (Tex. Crim. App. 2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Roderick Harris v. State

2014 WL 2155395. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Rojas v. State

986 S.W.2d 241, 249 (Tex. Crim. App.1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Roney v. State

632 S.W.2d 598,603 (Tex. Cr. App. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Russeau v. State

291 S.W.3d 426 (Tex. Crim.App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Saldano v. State

232 S.W.3d 77 (Tex. Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143,146

xiv

Sanders v. State

687 S.W.2d 60 (Tex. App.-Dallas, 1985) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

Thomas v. State

2006 WL 2022404 Tex. App. Dallas, 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Threadgill v. State

146 S.W.3d 654 (Tex. Crim.App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Whitsey v. State

796 S. W. 2d 707, 713 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Will v. State

2004 WL 3093238 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Williams v. State

692 S.W.2d 671,676 (Tex. Crim. App. 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Wyatt v. State

23 S.W.3d 18, 29 (Tex. Crim. App.2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93,94

Young v. State

826 S. W. 2d 141, 145 (Tex. Crim. App. 1999)... . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

STATE STATUTES:

TEX. CODE CRIM. PROC. ANN. art. 37.071.. . . . . . . . . . . . . . . . . . . . . 118,121,124

TEX.CODE CRIM. PROC. ANN. art. 37.071 § 2 (d) (1). . . . . . . . . . . . . . . . . . . . 122

TEX.CODE CRIM. PROC.ANN art. 37.071 § 2 (f)(4). . . . . . . . . . . . . . . . . . . . . . 141

V.T. C. A., Penal Code § 19.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Article 36.29 of the Texas Code of Criminal Procedure. . . . . . . . . . . . . . . . . . . . . . 66

Tex. Code Crim. Proc. Ann. Art. 36.29(a) (Vernon Supp. 1999) . . . . . . . . . . . . . . . 67

xv

TEX. Penal Code § 36.06(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Art. 21.11 C.C.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Art. 1, Sec. 10 of the Constitution of the State of Texas. . . . . . . . . . . . . . . . . . . . . . 71

Article 38.36 Texas Code of Criminal Procedure.. . . . . . . . . . . . . . . . . . . . . . . . . . 103

Rule 801.(e)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104-107

Tex.P.C.§,12.31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119,122

V.T.P.C. 36.06. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71,72

Tex. P.C. 36.02(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87,89

Rule 403 Texas Rules of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92,93

Art. 44.2 (a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Art. 36. 14 C.C.P.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

xvi

STATEMENT OF THE CASE

By an indictment filed on the 3rd day of October, 2012, Appellant was

charged in trial court cause number F12-12630 with one count of capital murder.

(C.R. Vol. 1 p. 44) The indictment alleged that on September 6, 2012 Appellant

intentionally or knowingly caused the death of Shania Gray by shooting her with a

firearm and by asphyxiating her in the course of committing or attempting to commit

the offense of obstruction.

The testimony in the trial on the merits began on November 4, 2013.On

November 12, 2013 Appellant was convicted of the offense of capital murder.

(Reporter’s Record Volume 66 p. 77) On the jury answered “Yes” to Special Issue

No. 1 and “No” to Special Issue No. 2. (Reporter’s Record Volume 70 p. 19-20) In

accordance with the previous verdict of guilty and answers to the special issues, the

trial court entered a judgment and assessed Appellant’s punishment at death.

(Reporter’s Record Volume 70 p. 20)

On December 16, 2013, Appellant timely filed a Motion for New Trial

that was subsequently denied by the court. (Clerk’s Record Vol. p. ). Appeal is

automatic gto give this Court jurisdiction. See Tex. Code Crim.Proc.Ann. art.

37.071,§ 2(g)(Vernon Supp. 2001).

xvii

ISSUES PRESENTED

VOIR DIRE ISSUES

‘BATSON’ ISSUES NOS. 1-3

APPELLANT’S ISSUE NO. 1

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF

ITS PEREMPTORY CHALLENGE IN REGARD TO JUROR, SYRENE

MITCHELL, IN VIOLATION OF THE DOCTRINE ESTABLISHED IN

BATSON V. KENTUCKY

APPELLANT’S ISSUE NO. 2

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S MISUSE

OF ITS PEREMPTORY CHALLENGE IN REGARD TO JUROR, LOUISE

HORSLEY, IN VIOLATION OF THE DOCTRINE ESTABLISHED IN

BATSON V. KENTUCKY

APPELLANT’S ISSUE NO. 3

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S MISUSE

OF ITS PEREMPTORY CHALLENGE IN REGARD TO JUROR, FREDDIE

WATSON, IN VIOLATION OF THE DOCTRINE ESTABLISHED IN

BATSON V. KENTUCKY

xviii

PRETRIAL ISSUES

APPELLANT’S ISSUE NO. 4

THE TRIAL COURT ERRED IN DISMISSING JUROR NUMBER 4,

JOHN BIGLEY, FROM THE JURY PANEL

APPELLANT’S ISSUE NO. 5

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

MOTION TO QUASH THE INDICTMENT

APPELLANT’S ISSUE NO. 6

THE TRIAL COURT ERRED AND ABUSED IT’S DISCRETION

IN DENYING APPELLANT’S MOTION FOR CONTINUANCE FILED ON

NOVEMBER 1, 2013

APPELLANT’S ISSUE NO. 7

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A SEARCH

WARRANT SEEKING BUCCAL SWAB CONSTITUTING DNA EVIDENCE

AND PHOTOGRAPHS

APPELLANT’S ISSUE NO. 8

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A SEARCH

WARRANT SEEKING ITEMS FROM A 2005 DODGE STRATUS

BELONGING TO THE COMPLAINANT AND OR DEFENDANT

xix

APPELLANT’S ISSUE NO. 9

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A SEARCH

WARRANT SEEKING ITEMS FROM THE PREMISES LOCATED AT

10223 NORTH MACARTHUR BLVD. #254 CITY OF IRVING, TEXAS

APPELLANT’S ISSUE NO. 10

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A SEARCH

WARRANT SEEKING DIGITAL INFORMATION FROM A BLACK T-

MOBILE MY TOUCH LG-E739 PHONE

TRIAL ISSUES ON GUILT/INNOCENCE

APPELLANT’S ISSUE NO. 11

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE JURY’S

VERDICT THAT APPELLANT WAS GUILTY OF THE OFFENSE OF

CAPITAL MURDER

APPELLANT’S ISSUE NO. 12

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO STATE’S EXHIBIT NUMBERS 40 AN 41, PHOTOGRAPHS

APPELLANT’S ISSUE NOS. 13, 14, 15, 16, 17, AND 18

THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S

OBJECTIONS TO DEFENSE EXHIBIT A, B, C, D, E, F, & G WHICH ARE

RECORDINGS OF THE VICTIM

xx

APPELLANT’S ISSUE NO. 19

THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S OBJECTION

TO THE DEFENSE’S PROFFERED TESTIMONY OF PASTOR ARTY

HAYES, THE BROTHER -IN-LAW OF THE DEFENDANT

APPELLANT’S ISSUE NO. 20

THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S OBJECTION

TO WITNESS, ASHLEY SIMS, PROFFERED TESTIMONY

APPELLANT’S ISSUE NO. 21

THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S

OBJECTION TO WITNESS, LAMAR LEGGITON, PROFFERED

TESTIMONY

APPELLANT’S ISSUE NO. 22

THE TRIAL COURT ERRED IN DENYING APPELLANT REQUEST FOR

A CHARGE ON ANTI-SPECULATION DURING THE

GUILT/INNOCENCE STAGE OF THE TRIAL

APPELLANT’S ISSUE NO. 23

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO STATE COUNSEL’S JURY ARGUMENT CLAIMING IT

IMPROPERLY STRIKING AT THE DEFENDANT OVER COUNSEL’S

SHOULDER AND SHIFTS THE BURDEN

PUNISHMENT ISSUES

APPELLANT’S ISSUE NO. 24

THE EVIDENCE IS LEGALLY INSUFFICIENT EVIDENCE TO SUPPORT

THE JURY’S ANSWER TO SPECIAL ISSUE NO. 1 IN THE PUNISHMENT

STAGE OF THE TRIAL

xxi

APPELLANT’S ISSUE NO. 25 (1) - 25(18)

THE TRIAL COURT ERRED IN DENYING APPELLANT’S OBJECTION

TO CERTAIN LANGUAGE IN THE BODY OF THE COURT’S

INSTRUCTIONS TO THE JURY IN THE PUNISHMENT STAGE

APPELLANT’S ISSUE NOS. 26-36

THE TRIAL COURT ERRED IN DENYING THE ENUMERATED

DEFENDANT’S OBJECTION TO THE PUNISHMENT VERDICT FORM

APPELLANT’S ISSUE NO. 27

“FUTURE DANGER”

APPELLANT’S ISSUE NO. 28 (1)- 28(11)

“PROBABILITY”

APPELLANT’S ISSUE NO. 29 (1)-29(2)

"CRIMINAL ACTS OF VIOLENCE"

APPELLANT’S ISSUE NO. 30 (1)- 30 (4)

"CONTINUING THREAT” TO SOCIETY"

APPELLANT’S ISSUE NO. 31 (1)- 31(4)

"VICTIM IMPACT EVIDENCE"

APPELLANT’S ISSUE NO. 32 (1)-32(9)

“MITIGATION ISSUE”

xxii

APPELLANT’S ISSUE NO. 33(1)-33 (2)

“MISLEADING JURORS”

APPELLANT’S ISSUE NO. 34(1)-34(2)

JONES, APPRENDI, RING AND BLAKELY

APPELLANT’S ISSUE NO. 35

“PRESUMPTION OF LIFE”

APPELLANT’S ISSUE NO. 36 AND 37

THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUESTED

INSTRUCTION DEFINING EVIDENCE THAT REDUCES “MORAL

BLAMEWORTHINESS”

FEDERAL ISSUES

APPELLANT’S ISSUE NO. 38

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION REQUESTING THE

COURT TO FIND TEX. CODE. CRIM. PROC. ART. 37.071 SECTION 2(f)(4)

TO BE UNCONSTITUTIONAL”

APPELLANT’S ISSUE NO. 39

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION TO DECLARE THE

“10-12 RULE” UNCONSTITUTIONAL”

xxiii

APPELLANT’S ISSUE NO. 40

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION FOR COURT TO

FIND ART. 37.071 OF THE TEXAS CODE OF CRIMINAL PROCEDURE

UNCONSTITUTIONAL AS APPLIED TO THIS DEFENDANT”

APPELLANT’S ISSUE NO. 41

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION TO DECLARE THE

CAPITAL SENTENCING STATUTE UNCONSTITUTIONAL BECAUSE IT

ALLOWS JURIES TO DECIDE FUTURE DANGEROUSNESS BASED

SOLELY ON THE FACTORS OF THE CASE”

APPELLANT’S ISSUE NO. 42

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION TO PRECLUDE

DEATH AS A SENTENCING OPTION AND TO DECLARE TEXAS DEATH

PENALTY STATUTE UNCONSTITUTIONAL BECAUSE OF JUROR’S

INABILITY TO PREDICT FUTURE DANGEROUSNESS”

APPELLANT’S ISSUE NO. 43

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION TO DECLARE THE

CAPITAL SENTENCING STATUTE UNCONSTITUTIONAL BECAUSE IT

HAS BECOME A DE FACTO MANDATORY DEATH PENALTY STATUTE”

xxiv

APPELLANT’S ISSUE NO. 44

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION TO FIND THAT THE

DEATH PENALTY IN THE STATE OF TEXAS IS UNCONSTITUTIONAL

ON THE GROUND THAT ITS CAPITAL SENTENCING PROCEDURE

FAILS TO MEET MINIMUM REQUIREMENTS SET FORTH IN FURMAN

V. GEORGIA AND ITS PROGENY, AS EVINCED BY THE FINDINGS OF

THE CAPITAL JURY PROJECT AND OTHER RESEARCH”

APPELLANT’S ISSUE NO. 45

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION TO DECLARE

ARTICLE 37.071, §2 (a) OF THE CODE OF CRIMINAL PROCEDURE

UNCONSTITUTIONAL ON ITS FACE UNDER DUE COURSE OF LAW AND

DUE PROCESS”

APPELLANT’S ISSUE NO. 46

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION TO DECLARE

ARTICLE 37.071 § 2(a) OF THE CODE OF CRIMINAL PROCEDURE

UNCONSTITUTIONAL ON ITS FACE FOR LACK OF STANDARDS”

APPELLANT’S ISSUE NO. 47

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION TO HOLD

STATUTORY DEFINITION OF MITIGATING EVIDENCE

UNCONSTITUTIONAL, AS APPLIED TO IMPOSE A “NEXUS”

LIMITATION, AND TO GRANT DEFENDANT’S REQUESTED

CLARIFYING VOIR DIRE, INSTRUCTION, ARGUMENT AND MOTION IN

LIMINE”

xxv

APPELLANT’S ISSUE NO. 48

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL

CONSTITUTIONAL MOTION ENTITLED “MOTION TO PRECLUDE THE

DEATH PENALTY AS SENTENCING OPTION (DENIAL OF EQUAL

PROTECTION )

xxvi

STATEMENT OF FACTS

This case involves the shooting and asphyxiation death of Shania Gray by

Franklin Davis who had accused Franklin Davis of sexual assault.

TRIAL ON THE MERITS

The State on Guilt/Innocence

1)Testimony of Sherri Gray-James: Ms. James testified that she was the mother of

the deceased Complainant, Shania Gray. (RR: Vol. 60 p. 74) She stated that her

daughter was 16 at the time of her death and had been babysitting for Dezire, the

child of Jennifer Dibrell. (RR: Vol. 60 p. 75) Shania started babysitting for Ms.

Dibrell in the fall of 2010 when she was a freshman in high school. (RR: Vol. 60 p.

77) On December 25, 2012 she went to pick up Shania at Ms. Dibrell’s house in the

morning and met the children’s father, Franklin Davis. (RR: Vol. 60 p. 79)

The witness testified that Shania was given a white blackberry cell phone by

Ms. Dibrell and Mr. Davis as partial payment for babysitting for them. (RR: Vol. 60

p. 80-81) Shania stopped babysitting for them in March, 2011. In March of 2011

she saw a text on Shania’s cell phone from “Wish” a.k.a. Franklin Davis and she took

the cell phone to the Mesquite Police Department where the information was

downloaded. (RR: Vol. 60 p. 82) She identified State’s Exhibit No. 1 as the text

message conversations between Shania and Mr. Davis. (RR: Vol. 60 p. 83) She said

1

that the first text she saw asked why Shania hadn’t been babysitting. (RR: Vol. 60 p.

87) The second message she saw said “I want you. I just can’t have you right now.”

(RR: Vol. 60 p. 87) She said they then went to Jennifer Dibrell’s house where she

told her that the children’s father was sending inappropriate text messages to her

daughter. (RR: Vol. 60 p. 88) Ms. Dibrell called Mr. Davis who told her to call her

tomorrow after work. (RR: Vol. 60 p. 90)

Shania confided in Jasmine Adams and then spoke with Jasmine’s mother,

Shirley Brown. (RR: Vol. 60 p. 100) She met with the three woman and Shania told

her that Franklin Davis had sexually assaulted her multiple times while she was

baby-sitting multiple times. The witness testified that she then contacted the school’s

resource officer, Officer Johnny Ivy and within a few hours, a Mesquite police

officer came to their house. (RR: Vol. 60 p. 96-97,105) They went to the Mesquite

Police Station and then to the Dallas Advocacy Center. (RR: Vol. 60 p. 106)

On the second day of school Shania attended, September 6th, 2012, she

dropped Shania off in front of the school and later that day Shania sent her a text

telling her that she was going to stay after school for tutoring. (RR: Vol. 60 p. 117)

When she arrived at school she spoke with Shania on the phone and was told “Okay,

Mom, I’m wrapping up. I’ll be down in a little bit.” At approximately 4:20 she called

her but didn’t get an answer. (RR: Vol. 60 p. 118)

2

A student showed her the physics room where Shania was having tutoring, but

she was not there. (RR: Vol. 60 p. 121) She spoke to a teacher who called the

physic’s teacher who confirmed that Shania had been in tutoring until 4:15 p.m. that

day. (RR: Vol. 60 p. 122) The Principal of the school was called and an

announcement was made over the PA system. (RR: Vol. 60 p. 123) They searched

the school while she continued to call Shania’s cell phone, but she did not get a

response. (RR: Vol.60 p. 123)

She and her husband drove around and when a football game ended and they

were still in the parking lot, a Carrollton police officer approached them and they

told him that their daughter was missing. (RR: Vol. 60 p. 128) She said the Officer

wanted them to leave and wait for Shania at home and come back the next morning.

(RR: Vol. 60 p. 128-129) The next day they talked to a police officer at the school

who categorized her as a runaway. (RR: Vol. 60 p. 131) She said they went to the

Carrollton Police Department where she gave Shania’s phone number to Detective

Williams. (RR: Vol. 60 p. 133) She was shown a phone log of Shania’s phone and

did not recognize a number that began with 903. (RR: Vol. 60 p. 135)

The witness testified that the Carrollton Police Department learned of Franklin

Davis when they called the Mesquite Police Department to inquire if there had been

any previous runaway calls on Shania. (RR: Vol. 60 p. 136) The State introduced

3

Exhibits Nos. 9-12, indictments for sexual assault that were pending against Franklin

Davis. (RR: Vol. 60 p. 138) On Saturday, Detective Williams called them and they

went to the police station where they learned Shania had been killed. (RR: Vol. 60 p.

146-148)

2) Testimony of Julie Cone: Julie Cone, a physics teacher at Hebron High School,

testified that while she was tutoring Shania, she was texting someone. (RR: Vol. 60

p. 154) At 4:00 p.m. Shania told her that “I have to hurry and go; my mom’s waiting

on me.” (RR: Vol. 60 p. 155)

3) Testimony of Forest Langston: Officer Forest Langston of the Carrollton Police

Department testified that he is the school resource officer at Hebron High School.

(RR: Vol. 60 p. 173) He spoke with Sherry Gray-James on September 7th, 2012 at his

office and pulled the phone records of her daughter’s cell phone. (RR: Vol. 60 p.

175) He said that the records showed a 903 area code number had been called before

and after Shania spoke with her mother the afternoon of her disappearance. (RR:

Vol. 60 p. 176) He had AT&T to ping Shania’s phone but when they tried, they said

the phone appeared to be turned off. (RR: Vol. 60 p. 176) He learned the phone with

the 903 area code was a prepaid phone with no subscriber information. (RR:Vol. 60

p. 177)

4

When Mesquite Police Department was contacted, he learned that Shania was

a victim of four counts of sexual assault out of Mesquite with the suspect name of

Franklin Davis. (RR: Vol. 60 p. 180) He reviewed the video footage and found a still

shot of a vehicle that possibly matched the vehicle, a gray Dodge Stratus, driven by

Franklin Davis. (RR: Vol. 60 p. 186-188) He said the photo shows Shania holding a

cell phone exiting the south side of the school while her mother was parked on the

north side of the school. (RR: Vol. 60 p. 189)

3) Testimony of Cory Cook: Cory Cook, a Carrollton Police Officer, testified that he

first started to look for Mr. Davis’s car and spoke with the Mesquite Police

Department where the vehicle had been reported stolen. (RR: Vol. 60 p. 214) He

traced the ownership of the car to Thomas R. Cox and learned that Mr. Cox had been

Mr. Davis’ attorney in the sexual assault cases that were pending. (RR: Vol. 60 p.

217) He received some information that led him Mr. Davis exiting an apartment and

he detained him. (RR: Vol. 60 p. 222) Mr. Davis voluntarily went to the police

station for an interview. (RR: Vol. 60 p. 225) He said Mr. Davis’ phone was seized.

(RR: Vol. 60 p. 227)

4) Testimony of Jeff Shaffer: Jeff Shaffer, a Secret Service Special Agent in the

Dallas field office, testified that he manages the digital forensics lab and examined a

black T-Mobile cell phone in connection with this case. (RR: Vol. 60 p. 231) He said

5

he found that on August 28th, at 5:26 p.m. there were searches done on the phone for

the gun show in Dallas, Texas. (RR: Vol. 60 p. 252) He said on August 30th, 2012

there was a search for a Diamondback .380, a handgun. (RR: Vol. 60 p. 255) He

stated that he found a search for Hebron High School at 1:53 p.m. on September 6,

2012. (RR: Vol. 60 p. 259) He found that on that phone, from 2:00 p.m. to 6:00 p.m.

on September 6, 2014 there were no calls or searches. (RR: Vol. 60 p. 261)

The witness testified that there was a map search on the cell phone for the

intersection of Sam Houston Trail Park located at I-635 and Highway 161, the

location where Shania Gray’s body was found. (RR: Vol. 60 p. 264) He said there

was an incoming text message from the phone number (214) 709-6861 saying “Are

you still mad at me?” (RR: Vol. 60 p. 266) The next text message said “ Sorry I lied

on you, but my mama made me do it. If we go to court, I’m going to tell them you

never touched me. My mama going to be mad at me, but fuck that bitch. I can’t

stand her no ways. Please forgive me.” (RR: Vol. 60 p. 267) The third text said “Is

this Mr. Wish?” and “Mr. Wish for the fourth text. (RR: Vol. 60 p. 267) He said the

fifth text said “I believe if I tell the truth, she will punish me for a long time and I

won’t be able to play basketball.” (RR: Vol. 60 p. 267) The final text was “Please

respond back if this is still your number.” (RR: Vol. 60 p. 267) These texts were sent

on August 27th and August 28th. (RR: Vol. 60 p. 268) The witness stated that these

6

text messages came after the installation of a fake call and SMS application. (RR:

Vol. 60 p. 270)

5)Testimony of Jim Alcott: Jim Alcott, a recovery engineer forensic investigator,

testified received a water damaged cell phone, an iPHone 4, from the Carrollton

Police Department and that once he repaired the phone, he turned it over to the

forensic lab of his company. (RR: Vol. 61 p.31-36)

7) Testimony of James Snyder: James Snyder of the Carrollton Police Department

testified that he is a tactical analyst and assists investigators with researching cell

phones. (RR: Vol. 61 p. 54) On September 7th, 2012 requested the phone records

from the telephone provider and learned that Shania’s cell phone had two numbers

that her mother didn’t recognize. (RR: Vol. 61 p. 55) One of the numbers belonged

to Mr. King and learned that the other number was for a “throw down” phone. (RR:

Vol. 61 p. 58) They called the numbers on this phone and spoke with Shakeema

Morsely and did a Cellebrite extraction on her phone. (RR: Vol. 61 p. 60)

8) Testimony of Jim Shaffer: Agent Jim Shaffer was recalled and a recorded

conversation from the phone he examined was played for the jury. (RR: Vol. 61 p.

90-92)

9) Testimony of Austin Tapp: Officer Austin Tapp of the Farmers Branch Police

Department testified that on September 7th while on bicycle patrol he received a call

7

that someone had seen someone in the Trinity River. (RR: Vol. 61 p. 110) He rode

down to the embankment and saw the body of a black female wearing a red shirt and

black yoga pants. (RR: Vol. 61 p. 111-112)

10) Testimony of Andrew Hoog: Andrew Hoog testified that he owns a mobile

forensics security company, Via Forensics, which specializes in the recovery of

forensic data from smartphones. (RR:Vol. 61 p. 130) He learned in his investigation

of the cell phone given to him that certain text messages were created by a fake text

message application. (RR: Vol. 61 p. 135) He stated that it was his opinion that these

texts were faked text messages created from the application. (RR: Vol. 61 p. 150) He

stated that he recovered Google searches for “Can you record a person without them

knowing in Texas?” and Can you record a person without them knowing in Texas?”

made on July 18, 2012. (RR: Vol. 61 p. 153) He said also on July 18th, 2012 a search

was made for “best way to get off of a sexual assault” and “with no proof that you

did the murder, can you still be held in jail?” (RR: Vol. 61 p.154) The next day there

was a Google search of “Can you voice-record a minor over the phone in Texas? Can

tape-record conversation with a person story changing and get you off a charge? Can

tape-recorded conversation be used in court?” (RR: Vol. 61 p. 154-155) He said the

last search was on July 23, 2012 “can tape-recorded conversations be used in court?”

(RR: Vol. 61 p. 155)

8

11) Testimony of Susan Johnson: Susan Johnson, a senior specialist with T-Mobile,

testified that the cell phone records show that on September 6th, 2012 at 4:01 the

Defendant’s cell phone received at call which hit off the cell tower located near

Hebron High School and other cell calls and the towers the call came from.

12)Testimony of Pete Evans: Pete Evans, a senior radio access network (RAN)

engineer for AT&T Mobility, testified that he examined and mapped out the cell

phone locations for the cell phones of Sherry Gray, the throw-down phone, and the

phone of Shania Grey. (RR: Vol. 61 p. 191) Using a power point presentation, the

witness described the location of the cell towers and stated that they showed that

some of the text messages sent on September 5th, 2012 between the throw-down

phone with the 903 area code and Shania’s phone hit off the same tower and the

same sector. (RR: Vol. 61 p. 198)

13) Testimony of Dena Williams: Dena Williams, a detective for the Carrollton

Police Department, testified that the phone records were reviewed and two numbers

were suspicious and not recognized by Shania’s mother. (RR: Vol. 61 p. 219) After

obtaining phone records she learned that the 903 number had called Shania and had

been texting her throughout the day. (RR: Vol. 61 p. 221) She learned that the 903

number had called only four numbers so she began calling those numbers. (RR: Vol.

61 p. 221) She left messages and received a call back from Shakeema Morsely who

9

gave her the name of Franklin Davis and the phone number of his wife, Jawanna

Arrington. (RR: Vol. 61 p. 222-223) She called the number and spoke with Franklin

Davis and told him that she was investigating a missing child. (RR: Vol. 61 p. 224)

She said Mr. Franklin was very concerned and told her that they did not know

anything about the 903 (8786) phone number. (RR: Vol. 61 p. 224-225)

They confirmed that Shania was not at the apartment and there was no

evidence of a crime. (RR: Vol. 61 p. 226) Mr. Davis and his wife came voluntarily

to the police station. (RR: Vol. 61 p. 226) The videotaped interview was played for

the jury. (RR: Vol. 61 p. 231)

The witness testified that Mr. Davis told her about the text messages which she

did not know at the time were faked. (RR: Vol. 62 p. 26) The throw-away phone

with the 903 area code was never recovered. (RR: Vol. 62 p. 26) Mr. Davis gave her

his cell phone, a T-Mobile with the phone number of 1976 which contained the text

messages. (RR: Vol. 62 p 27)

14) Testimony of Jeremy Chevallier: Jeremy Chevallier, a detective with the

Carrollton Police Department, testified that he came in as a backup and interviewed

Mr. Davis after he had been arrested for outstanding traffic warrants. (RR: Vol. 62 p.

40-41) He witnessed the scent search by the track dogs who hit on the Defendant’s

vehicle parked in the police station parking lot. (RR: Vol. 62 p. 43) He knew that

10

Jawanna Arrington had allowed the vehicle to stay in the parking lot and consented

for it to be processed. (RR: Vol. 62 p. 44) The DVD of his interview with Mr. Davis

was played for the jury and he explained his interviewing techniques. (RR: Vol. 62

p. 51-60) He said Mr. Davis’ nickname was “Wish.” (RR: Vol. 62 p. 60)

He said after the end of this interview, Mr. Davis agreed to take him to the

crime scene location. (RR: Vol. 62 p. 75) When they arrived at the location, there

were people present who were recovering Shania’s body. (RR: Vol. 62 p. 78) He said

Mr. Davis took them to the pond where he threw the gun away and to another pond

where he threw away Shania’s phone. (RR: Vol. 62 p. 79)

15) Testimony of Christopher Allen: Christopher Allen testified that he met Franklin

Davis at I-30 and Broadway where Franklin paid him cash for the Diamondback .380

handgun. (RR: Vol. 62 p. 91)

16) Testimony of Charles Clow: Charles Clow, a firearm and tool mark examiner at

the Tarrant County Medical Examiner’s Crime Lab, testified that Jaime Becker

examined a Diamondback .380, shell casings and a bullet that was recovered in this

case. (RR: Vol. 62 p. 96) He said Ms. Becker found that both cartridge cases and

bullets were identified as having been fired by the Diamondback .380 caliber semi-

automatic pistol. (RR: Vol. 62 p. 104)

11

17)Testimony of Dena Williams: Dena Williams was recalled and testified that she

returned to work on the afternoon of September 8th after she learned that the body

had been found. (RR: Vol. 62 p. 111) She said that an arrangement was made to

allow Franklin Davis to talk to Jawanna, which was recorded. (RR: Vol. 62 p. 111)

She said an arrest warrant was then issued for Franklin Davis. (RR: Vol. 62 p. 112)

She said that she and Detective Grigg were told that Mr. Davis wanted to

speak with them, so they went to the jail where he was interviewed. (RR: Vol. 62 p.

118) This fourth interview was also recorded and was played for the jury. (RR: Vol.

63 p. 20) She stated that a gun was recovered from a pond located at the intersection

of Las Colinas Boulevard and Royal Lane. (RR: Vol. 63 p. 24) She said that Mr.

Davis spoke of the sexual assault charges against him in Mesquite, Texas and his

attempt to contact her to get evidence to use against her. (RR: Vol. 63 p.28)

On cross examination the witness testified that being falsely accused of a child

sex offense is at the top of the list of things to be falsely accused of. (RR: Vol. 63 p.

42) She said that occasionally in these types of cases, false allegations are made.

(RR: Vol. 63 p. 50) She listened to seven phone conversations between Mr. Davis

and Shania. (RR: Vol. 63 p. 53) She said Shania’s mother, Sherry James, voiced her

frustration with the prosecutor, Marc Moffitt, in the sexual assault case. (RR: Vol. 63

p.56) She said she listened to taped conversations between Shania and Mr. Davis

12

when Mr. Davis was pretending to be someone named “D”. (RR: Vol. 63 p. 58) She

said Mr. Davis told her that the things Shania was telling him didn’t match up with

the police report. (RR: Vol. 63 p. 58) She said he repeatedly told her that he did not

do the sex offenses. (RR: Vol. 63 p. 59) She said Mr. Davis commented about his

court date “Yeah. I was trying and trying and trying to get it to court. They finally

scheduled a court date. I felt that was the only way I was going to get my life back

was to go ahead and go into court, but sitting around was driving me crazy.” (RR:

Vol. 63 p. 60 She said his attorney told him that the phone recordings were going to

help his case. (RR: Vol. 63 p. 660)

The witness testified that Mr. Davis admitted to killing Shania and spoke of

how he committed the murder, but he continued to deny the sexual assault. (RR:

Vol. 63 p. 119)

18) Testimony of Craig Allen: Craig Allen, a crime scene investigator for the City of

Carrollton, testified that he searched Mr. Davis’s apartment and was present when

the body was recovered. (RR: Vol. 63 p. 127) There was a back pack found at the

scene which contained papers identifying the victim as Shania Gray. (RR: Vol. 63 p.

130) He and Detective David Taylor went to the intersection of Las Colinas

Boulevard and Royal Lane where they recovered a gun on the water’s edge. (RR:

Vol. 63 p. 131) They then went to the 9600 block of Windy Hollow Lane where

13

another pond was searched and an iPhone was recovered the next day. (RR: Vol. 63

p. 133)

20)Testimony of Dustin Bartram: Detective Dustin Bartram with the Carrollton

Police Department testified he learned that items were discarded at various locations

and was involved in the recovery of a handgun, cell phone and shoes. (RR: Vol. 63 p.

179-180) Using State’s Exhibits 140 through 197 the witness described the search of

the Defendant’s apartment. (RR: Vol. 63 p. 182-184) He said a notebook was

recovered at the Defendant’s home, State’s Exhibit No. 200, in which it was found

written “Shania Average Height Gray” along with the phone number (214) 709-6861.

(RR: Vol. 63 p, 195) He said State’s Exhibit No. 177 depicted the area near the river

where he said the Defendant told them he shot Shania. (RR: Vol. 63 p. 202) He

recovered two shell casings and a bullet which had ricocheted off a tree. (RR: Vol.

63 p. 207)

21) Testimony of Carolyn VanWinkle: Carolyn VanWinkle, a forensic DNA analyst

with the Tarrant County Medical Examiner’s Office, testified that a bullet recovered

at the crime scene was submitted to their office and serology and DNA analysis was

done on this bullet. (RR: Vol. 63 p. 234) The bullet was then sent to the firearms

examiner. (RR: Vol. 63 p. 234) She said the first DNA comparison found that Shania

Gray could not be excluded as a source of the partial DNA profile that was obtained

14

from the bullet. (RR: Vol. 63 p. 237) She stated that no sperm was detected in the

vaginal, anal and oral smears from the rape kit. (RR: Vol. 63 p. 242)

22) Testimony of Dr. Jill Urban: Dr. Jill Urban, a medical examiner with the

Southwest Institute of Forensic Sciences, testified that she conducted the autopsy of

Shania Gray on September 9th, 2012. (RR: Vol. 63 p. 261) She said the visible

injuries to the body were two gunshot wounds. (RR: Vol. 63 p. 263) She said

gunshot wound no. l was an entrance wound on the back of the right shoulder and

exited the right side of the neck. (RR: Vol. 63 p. 264) Gunshot wound No. 2 was the

on the lower side of the back of the back on the left side in which the bullet stopped

in the muscles of the right hip. (RR: Vol. 63 p. 264) She stated that she was able to

identify an injury which was consistent with asphyxia. (RR: Vol. 63 p. 265) She said

it was hard to see the injuries to the skin or muscles on her neck because of

decomposition, but the thyroid cartilage had a fracture in it. (RR: Vol. 63 p. 266) She

ruled the death was due to homicidal violence including gunshot wound and

asphyxia. (RR: Vol. 63 p. 278)

The Defense on Guilt/Innocence

23) Testimony of Brandon Snyder: Detective Brandon Snyder of the Mesquite

Police Department, testified he was the detective that investigated the sexual

allegation regarding Franklin Davis. (RR: Vol. 64 p. 28) He said that Shania’s

15

mother became aware of some text messages between Shania and the Defendant

which started the investigation. (RR: Vol. 64 p. 30) He said Mr. Davis called the

police on April 11th ,spoke with Detective Aronburger and eventually called him.

(RR: Vol. 64 p. 31) On April 14th, he was contacted by Shania’s family and a report

was made. (RR: Vol. 64 p. 31) Shania was interviewed on September 21st at the

Advocacy Center and he was present to witness the interview. (RR: Vol. 64 p.

32;36) He received consent from Ms. James to process Shania’s phone and get the

text messages. (RR: Vol. 64 p. 32) He stated that there was a period of time in which

he tried to identify the suspect. (RR: Vol. 64 p. 33) He scheduled an exam for Shania

at Children’s Hospital and she was examined on May 2nd. (RR: Vol. 64 p. 36-37) On

June 9th Shania was shown a photo lineup and she identified Mr. Davis as the person

in question. (RR: Vol. 64 p. 37) On July 14th Mr. Davis came to the police station at

his request and he was arrested and interviewed. (RR: Vol. 64 p. 37-38)

He testified that he did not speak to the outcry witness until after Mr. Davis

was arrested. (RR: Vol. 64 p. 39) He said the witnesses confirmed that Shania went

to stay with her grandmother the night before. (RR: Vol. 64 p. 40) One of the outcry

witnesses said in their statement that Shania changed her story. (RR: Vol. 64 p. 40)

He never asked what occurred to cause Shania to go to her grandmother’s house and

16

didn’t think it was any of his business how her mother chose to punish her daughter.

(RR: Vol. 64 p. 41)

The detective testified that he became aware that there were other people

present when the supposed sexual assaults occurred but he did not interview these

people. (RR: Vol. 64 p. 43) He said Mr. Davis adamantly denied the allegations.

(RR: Vol. 64 p. 44) He said he did not tell Mr. Davis that his interview was being

recorded. (RR: Vol. 64 p. 44) The DVD of the interview was played for the jury.

(RR: Vol. 64 p. 47) He stated that he did not look at any other boys or men in

connection with this case. (RR: Vol. 64 p. 52) He said that the other boys may have

been the cause of her making a false allegation. (RR: Vol. 64 p. 52) He said that

after speaking to the outcry witnesses who told him that Shania had been kicked out

of the house and had switched her story, he did not do any further investigation. (RR:

Vol. 64 p. 53) He never spoke with the children she was babysitting when the alleged

assaults occurred. (RR: Vol. 64 p. 55) He did not talk to the children’s mother,

Jennifer. (RR: Vol. 64 p. 55) He never went to the home or apartment where the

alleged assaults occurred. (RR: Vol. 64 p. 57)

The State played the DVD of the forensic interview of Shania Gray by Caitlin

Clevenger. (RR: Vol. 64 p. 90)

17

On redirect examination the witness testified that he never spoke to Dezire, the

daughter of the Defendant and the child that Shania was babysitting, to ask if she

ever saw anything unusual between her father and Shania. (RR: Vol. 64 p. 103) He

said Shania was not very emotional in the forensic interview until she talks about

something that happened to someone else. (RR: Vol. 64 p. 108) He said she said in

the interview that she has been kicked out of the house without any clothes. (RR:

Vol. 64 p. 109) He said Shania had told her friends at school that she didn’t have

anywhere to go. (RR: Vol. 64 p, 110) He stated that it was possible that Shania had a

crush on Franklin Davis. (RR: Vol. 64 p. 114)

24) Testimony of Franklin Davis: Franklin Davis testified that he killed Shania Gray

because she ruined his life, making him lose everything because she lied about the

sexual assaults. (RR: Vol. 64 p. 136)

He testified that he grew up in St. Louis, Missouri and lived with his mother,

grandfather and siblings in a three bedroom apartment in Cabanne Court, which was

in a very violent part of the city. (RR: Vol. 64 p. 137) The family eventually moved

to Texarkana, Texas. (RR: Vol. 64 p. 140) Before he moved to Dallas, he lived in

numerous cities, searching for happiness. (RR: Vol. 64 p. 140) He said he finally

found happiness with his wife, Jawanna Davis. (RR: Vol. 64 p. 141) One month

after they were married, Shania Gray made allegations of sexual assault against him.

18

(RR: Vol. 64 p. 141) He said at the time of the allegations, he was working for Dr.

Pepper and was promoted for his hard work to loader and picker in the Monster

department. (RR: Vol. 64 p. 142-143) He said his life was very happy until the

allegations were made. (RR: Vol. 64 p. 144-145)

Mr. Davis testified that Shania’s lies changed his life and he lost his job when

he was arrested. (RR: Vol. 64 p. 145) He said he was in jail for 30 days after which

he could not pass the background check at Dr. Pepper to be rehired because of the

four sexual assault charges pending against him. (RR: Vol. 64 p. 146) He said the

Mesquite police never wanted his phone in their investigation. (RR: Vol. 64 p. 147)

His relationship with Jawanna went downhill because of the allegations and the loss

of his job. (RR: Vol. 64 p. 148) He stated that he could not find another job because

of the background checks. (RR: Vol. 64 p. 14) He filed for unemployment. (RR:

Vol. 64 p. 149) He said Jawanna started looking at him like he was less than a man.

(RR: Vol. 64 p. 151) He said when they argued, she would throw it in his face that he

wasn’t working and not contributing. (RR: Vol. 64 p. 152) He said he had to sell his

car to a lawyer to bond out of jail. (RR: Vol. 64 p. 152-153)

Mr. Davis testified that his brother loaned him $5,000 and paid an attorney,

Mr. Trumpler, but he eventually hired Tom Cox to represent him. (RR: Vol. 64 p.

154) He said Mr. Trumpler talked like he was guilty and was only interested in

19

making a plea deal. (RR: Vol. 64 p. 154) He stated that he was innocent and did not

want to take any deal. (RR: Vol. 64 p. 154) While in jail, he talked to an inmate who

knew an attorney who would take his car to bond him out. (RR: Vol. 64 p. 155) He

called Mr. Cox and when he learned that he had a very nice Ford Mustang

convertible, he was willing to make the deal to get him out of jail and agreed to

represent him. (RR: Vol. 64 p. 156) He said he loved his car and had nicknamed it

“Wish.” (RR: Vol. 64 p. 157)

Mr. Davis testified that he had counted on having his job with Dr. Pepper to

pay for his attorney but had to pay with his unemployment check. (RR: Vol. 64 p.

158) He said he had a deal with Mr. Cox to represent him for $15,000. (RR: Vol. 64

p. 160) He said he paid Mr. Cox $4,600 in cash and the car was $6,000. (RR: Vol.

64 p.161) He said Mr. Cox stayed on his case until his unemployment ran out. (RR:

Vol. 64 p. 162) Mr. Cox never set the case for trial. (RR: Vol. 64 p. 163) When he

told Mr. Cox that his unemployment had run out, Mr. Cox went in front of a judge

and told him that he wanted off the case. (RR: Vol. 64 p. 164) He said he met with

Tom Cox once at his office in the eleven and half months that he was on his case in

order for him to sign a contract and the title for the car. (RR: Vol. 64 p. 164) He said

every other meeting took place in the court house. (RR: Vol. 64 p. 166)

20

The Defendant testified that a month before Mr. Cox withdrew from his case,

he told him that Shania had a STD and asked him if he and his wife had an STD.

(RR: Vol. 64 p. 166) He told him that they did not have an STD. (RR: Vol. 64 p.

166) He said the judge let Mr. Cox off his case and appointed him a court-appointed

attorney. (RR: Vol. 64 p. 169)

He said Mr. Cox never filed any motions, never had him meet with an

investigator or talk to him about the State’s file. (RR: Vol. 64 p. 169) He told him

that he wanted to take a polygraph test but was told that he would have to pay $800

or $900 to take it. (RR: Vol. 64 p. 169) Mr. Hugo Aguilar was appointed to take his

case but he never saw him at his office and his calls were never returned. (RR: Vol.

64 p. 172) He played the seven recordings that he made when Shania thought he was

someone else. (RR: Vol. 64 p. 174)

Mr. Davis first met Shania Gray on Christmas morning, 2010 when he came to

Jennifer Dibrell’s apartment with presents for their daughter and her two other

children. (RR: Vol. 64 p.178) He later learned that Jennifer had been leaving the

children in the house alone and CPS became involved, which led to Shania being

hired to babysit. (RR: Vol. 64 p. 180) He would see Shania when he went to see the

children and they formed a bond and thought of her as a sister. (RR: Vol. 64 p. 183)

He stated that he never had sex with Shania or grabbed her inappropriately. (RR:

21

Vol. 64 p. 183) He said he went over to Jennifer’s apartment four or five times a

week to see the kids. (RR: Vol. 64 p. 186) He said Shania would confide in him the

things she was going through and they were close. (RR: Vol. 64 p. 190) He estimated

they spent six or seven hours a week together with the children. (RR: Vol. 64 p. 191)

He said he was never alone with Shania and the kids were always with them. (RR:

Vol. 64 p. 193) His wife would go with him to visit the kids and Jennifer would often

be present. (RR: Vol. 64 p. 194) He said on one occasion Shania had left her

grandmother’s house and was in a vacant apartment when the police were called.

(RR: Vol. 64 p. 196) He said part of her punishment was that she had to babysit.

(RR: Vol. 64 p. 196)

Mr. Davis testified that for Shania’s birthday he and his wife gave her a cell

phone he never used that someone had given him for payment because he knew she

had lost her cell phone. (RR: Vol. 64 p. 199) He said he had never had the phone

turned on. (RR: Vol. 64 p. 200) Shania would call him when she had problems with

the boys and he would talk to them for her. (RR: Vol. 64 p. 204) He last saw Shania

before the allegations when they gave his daughter a birthday party at the skating

rink in Mesquite. (RR: Vol. 64 p. 204 ) He said the allegations came three weeks

after he gave her the phone. (RR: Vol. 64 p. 205) He did not activate the phone or

pay for the service. (RR: Vol. 64 p. 206) At the beginning of April, he received text

22

messages from Shania and she told him that her parents turned it on for her. (RR:

Vol. 64 p. 207) He said Shania text him asked him if he loved “J”, his name for his

wife. (RR: Vol. 64 p. 209) He text her that he did love “J” and that he was about to

marry her. (RR: Vol. 64 p. 209) He said she replied that “she wished she wouldn’t

have got her feelings so involved in this.” (RR: Vol. 64 p. 210) He said they

continued to text back and forth and Shania eventually said “I want you.” (RR: Vol.

64 p. 212) He sent back a text telling her “I told you I can’t have you like that. You

are too young.” (RR: Vol. 64 p. 212) He said he knew she had a crush on him

because she had flirted with him many times before. (RR: Vol. 64 p. 212) He didn’t

think he flirted back with her. (RR: Vol. 64 p. 213)

The Defendant testified that Shania sent him the text “No, now you get mad

for what? You got two for the price of one. What you complaining for . . . Trying to

have your cake and eat it too.” (RR: Vol. 64 p. 214) He stated that this was a

reference to the fact that he had sexual relations with Jennifer on one occasion and

Jennifer told Shania about the encounter. (RR: Vol. 64 p. 215-216) He said he sent a

text to Shania saying “Just want you but can’t have you yet.” (RR: Vol. 64 p,. 218)

He said he had not had sex with Shania and this was the text that Shania’s mother

saw. (RR: Vol. 64 p. 218)

23

Mr. Davis testified that he learned of Shania’s accusation that he had swatted

her butt with his hand when Sherry and Shania were at Jennifer’s apartment and they

had a conversation on the speaker phone. (RR: Vol. 64 p. 221) The allegations

continued to evolve over the next few days. (RR: Vol. 64 p. 221) He had a

conversation with Shania’s father concerning the butt swat but the next day he

accused him of trying to have sex with Shania. (RR: Vol. 64 p. 228) He said the

story then changed from trying to have sex with Shania to having sex with her on

four occasions. (RR: Vol. 64 p. 230) He went to the police station the next day after

the last conversation with Shania’s parents, but was told Detective Aronburger would

call him. (RR: Vol. 64 p. 232) The detective told him that no case had been filed

against him. (RR: Vol. 64 p. 233)

Several weeks later, he was called by Detective Synder, who told him that he

needed to come and talk to the Mesquite police. (RR: Vol. 64 p. 234) He was

hesitant to go to the police station because earlier that day he had a wisdom tooth

removed and had just taken hydrocodone for the pain. (RR: Vol. 64 p. 234)

However, he immediately went to the police station where he was arrested for four

sexual assault charges against him. (RR: Vol. 64 p. 238) He said he let the police

know that he had taken hydrocodone. (RR: Vol. 64 p. 239) He voluntarily gave the

police a statement after he was arrested. (RR: Vol. 64 p. 240) The alleged sexual

24

assaults were supposed to have occurred three times at Jennifer’s apartment and once

at his apartment. (RR: Vol. 64 p. 243) He learned that Detective Snyder did not

interview Jennifer’s children or his wife Jawanna and did not forensically examine

his cell phone. (RR: Vol. 64 p. 243)

The Defendant testified that when his attorney wouldn’t help him on his case,

he began his own investigation by looking online about Shania’s reputation. (RR:

Vol. 65 p. 21-22) He bought a throw away phone for his investigation and sent a text

to Shania, telling her he was someone else and that he wanted to get to know her.

(RR: Vol. 65 p. 27) He said his wife, his family and friends knew he was texting

Shania. (RR: Vol. 65 p. 29) He made seven recordings of their conversations. (RR:

Vol. 65 p. 30) He said that she spoke of the sexual assaults but her stories conflicted

with the account she gave to CPS and the police. (RR: Vol. 65 p. 32) He said that

these proved she kept changing her story. (RR: Vol. 65 p. 32) He played the

recordings to his family to prove his innocence to them. (RR: Vol. 65 p. 33) He

made up a story to tell Shania that he couldn’t talk to her anymore and stopped

talking to her. (RR: Vol. 65 p. 34)

The Defendant testified that the took the recordings to Shania’s parents but

didn’t contact them because he recalled her mother told him that it didn’t matter if he

had done it or not, she would make sure he would go to jail and not see his kids

25

anymore. (RR: Vol. 65 p. 36) He said he was very angry and thought his life was

ruined. (RR: Vol. 65 p. 38) He learned of an application for his phone that would

allow him to send fake text messages and thought that this would help him be cleared

of the charges. (RR: Vol. 65 p. 39) He said he sent the fake text messages and later

told the detectives what he had done. (RR: Vol. 65 p. 40) He purchased a gun

because he wanted to use it on himself. (RR: Vol. 65 p. 41) He said he began

thinking about hurting Shania because his life was ruined. (RR: Vol. 65 p. 47) He

said he went to Shania’s house and thought about killing everyone in the house.

(RR: Vol. 65 p. 47) He said he thought all of them had taken his happiness away

from him. (RR: Vol. 65 p. 48) He said he stopped because he didn’t want to hurt the

little boy who was innocent. (RR: Vol. 65 p. 48)

The Defendant testified that he put more time on the throw away phone and

sent a text to Shania. (RR: Vol. 65 p. 49-50) On the morning of the offense Shania

sent him a text, telling him that he was at Hebron High School. (RR: Vol. 65 p. 54)

He went to the high school because he wanted to tell Shania how she had ruined his

life with her lie. (RR: Vol. 65 p. 55) He said Shania was going to meet with “D” , the

person the Defendant was pretending to be at that time. (RR: Vol. 65 p. 56) They

were going to meet in the parking lot by the tennis courts. (RR: Vol. 65 p. 57) When

Shania saw him, he said she froze and said “Oh, shit.” (RR: Vol. 65 p. 59) He told

26

her that he needed to talk to her and she walked with him to his car. (RR: Vol. 65 p.

61) They got into the car, started it and began to drive away. (RR: Vol. 65 p. 62)

Shania told him that her mother was on the other side of the school, waiting for her.

(RR: Vol. 65 p. 63) He said he drove off with her because he wanted to kill her. (RR:

Vol. 65 p. 64) She never tried to get out of the car and never told him that she wanted

to get out of the car. (RR: Vol. 65 p. 65) He told her how she had ruined her life, lost

everything and couldn’t provide for his children. (RR: Vol. 65 p. 66) He said she

reached over, placed her hand on his hand and told him that she was sorry . (RR:

Vol. 65 p. 67) When she saw the gun, she asked him not to hurt her. (RR: Vol. 65 p.

67) He drove to Sam Houston Trail Park because he was familiar with it, and parked.

(RR: Vol. 65 p. 71) He saw on her Facebook page that she was traveling and

enjoying life, while her lies had ruined his life. (RR: Vol. 65 p. 71) He said he sat

there and thought about all the things that were going wrong in his life, including his

young daughter having to wear shoes with holes in them and he started crying. (RR:

Vol. 65 p. 72) He said Shania told him that her life was not perfect, that she had an

abortion. (RR: Vol. 65 p. 73) He said they got out of the car and he told her to walk

down the slope. (RR: Vol. 65 p. 75) When she got halfway down the slope, he shot

her. (RR: Vol. 65 p. 75-76) She lost her balance and fell into the water. (RR: Vol.

65 p. 76) When she fell into the water, he said he shot her again. (RR: Vol. 65 p. 76)

27

He went down the embankment, told her that he wouldn’t shoot her again and that

she needed to get out of the water. (RR: Vol. 65 p. 77) He threw her jacket which she

grabbed and he pulled her out of the water. (RR: Vol. 65 p. 78-79) He told her to lay

down and he put his foot on her neck to kill her. (RR: Vol. 65 p. 80) After she died,

he told her he was sorry and rolled her into the water. (RR: Vol. 65 p. 82) The

Defendant testified that he then got rid of the throw away phone, Shania’s iPhone,

his muddy shoes, the gun and clip. (RR: Vol. 65 p. 85-89)

The next day the police came to his apartment and he went to the police station

with his wife. (RR: Vol. 65 p. 90-91) He said he lied to the police because he was

trying to cover it up. (RR: Vol. 65 p. 91) He said he eventually had to tell the truth

and asked to speak with the detectives again. (RR: Vol. 65 p. 95) He then helped the

police by showing them where he had thrown the evidence. (RR: Vol. 65 p. 98-100)

He told detectives “My demons were weighing on me, the devil was on my back.”

(RR: Vol. 65 p. 102) He said that he meant the hatred he had for Shania because she

had ruined his life by lying about him. (RR: Vol. 65 p. 102)

25) Testimony of Lynne Corsi: Lynne Corsi, an attorney and social worker, stated

that she was testifying as a expert in the prosecution of sexual assault cases. (RR:

Vol. 65 p. 194) She reviewed the files, police reports related to the sex abuse case

Shania made against the Defendant. (RR: Vol. 65 p. 196) She stated that police

28

investigators investigating a child abuse case needs to look beyond what the child is

saying by talking to potential witnesses and potential eyewitnesses who could

corroborate the statement of the alleged victim. (RR: Vol. 65 p. 200) She said the

three other children in the house with Shania should have been interviewed. (RR:

Vol. 65 p. 201) She reviewed the file made by Tom Cox on Mr. Davis’ sexual assault

cases and found that there was nothing substantiative on the defense of Mr. Davis.

(RR: Vol. 65 p. 203) There were no motions filed and no investigation. (RR: Vol. 65

p. 204) She looked at the file of the subsequent attorney, Jugo Aguilar and found

there were no discovery motions or interview notes. (RR: Vol. 65 p. 205) The file

contained pass slips but no notes indicating that Mr. Aguilar had met with the

Defendant. (RR: Vol. 65 p. 206) No private investigator was hired by either Mr. Cox

or Mr. Aguilar. (RR: Vol. 65 p. 206-207) She said that Detective Synder’s testimony

showed that after he filed the case, he did no further investigation. (RR: Vol. 65 p.

207)

Ms. Corsi testified that the defense needed to look at the inconsistencies of the

statements of Shania Gray. (RR: Vol. 65 p. 214) She said there was a sexually

transmitted disease, trichomoniasis, which needed to be investigated. (RR: Vol. 65 p.

214)

29

26) Testimony of Arty Hayes: Arty Hayes, a pastor for a church in Texarkana,

Arkansas and brother in law to Franklin Davis, testified that Frank came to see him

about the allegations Shania made against him. (RR: Vol. 65 p. 265) He said

Jawanna and Frank consulted and prayed with him and the senior pastor, William

Cooper. (RR: Vol. 65 p. 266) He said Frank was very disturbed about the situation

and told him that he was an innocent man. (RR: Vol. 65 p. 267) He said Frank was

worried and depressed because of the allegations. (RR: Vol. 65 p. 268)

27) Testimony of Lamar Leggiton: DVDs of interviews that the Defendant gave to

television stations were played for the jury. (RR: Vol. 65 p. 288)

State on Rebuttal

28) Shirley Brown: Shirley Brown testified that Shania Gray went to school with her

daughter, Jazmine Adams. (RR: Vol. 65 p. 289) In 2011 Shania and her daughter

attended Horn High School in Mesquite, Texas. (RR: Vol. 65 p. 289) She stated that

one day in the spring of 2011 Shania came to her house and was very afraid and

shaken. (RR: Vol. 65 p. 290) As Shania cried, she made her tell her what was wrong.

(RR: Vol. 65 p. 290) Shania asked her not to tell anyone because she thought

someone would be hurt. (RR: Vol. 65 p. 291) Shania told her that a man had been

raping her, putting a sword against her neck. (RR: Vol. 65 p. 292) She said Shania

told her that the man would show up every time she went to babysit. (RR: Vol. 65 p.

30

293) She told her that the man was older and would hurt her if she didn’t have sex

with him. (RR: Vol. 65 p. 293) When Shania finished telling her, she called her

mother and they went to tell her about the assaults. (RR: Vol. 65 p. 294) She told

Shania’s mother, Sherry, to tell the assistant principal and officer at school. (RR:

Vol. 65 p. 296)

On cross examination the witness testified that Shania told her that her mother

put her out of the house without any clothes. (RR: Vol.65 p. 298) She said Sherry

had Shania’s phone but Shania had another phone her mother didn’t know about.

(RR: Vol. 65 p. 300-301)

29) Testimony of Julia Adams: Julia Adams testified that she had been friends with

Shania Gray and in April, 2011 Shania came to her and her sister at school and was

crying. (RR: Vol. 65 p. 304) Shania told her that she was babysitting and every time

the mother left the house, a man would come over and would touch her. (RR: Vol..

65 p. 305) Shania told her that the man told her “If you tell, I’m going to hurt you

and your family.” (RR: Vol. 65 p. 305) Shania told her that the man became rough

with her. (RR: Vol. 65 p. 306) They took her to their house where Shania talked to

their mother. (RR: Vol. 65 p. 307) She said Shania told them that she had sexual

intercourse with Frank Davis. (RR: Vol. 65 p. 307-308)

31

The witness testified that Shania told her she didn’t worry about it, that it

started out as a habit, but when he got rough with her, she didn’t want to have sex

with him anymore. (RR: Vol. 65 p. 309)

30) Testimony of Jazmine Adams: Jazmine Adams, a friend of the deceased,

testified that Shania was crying at school and told her “My mom caught me texting a

20-year-old dude.” (RR: Vol. 65 p. 319) Shania told her that her mom threw her out

of the house so she took Shania home to talk with her mother. (RR: Vol. 65 p. 320)

Shania told them that Frank Davis had sexually assaulted her. (RR: Vol. 65 p. 320)

On cross examination the witness testified that Shania never told her the name

of the 20 year old man she was texting. (RR: Vol. 65 p. 322) She didn’t mention

anything about a sword in her police statement. (RR: Vol. 65 p. 326

31) Testimony of Jennifer Dibrell: Jennifer Dibrell testified that Shania Grey baby

sat for her children and she had a child with Franklin Davis. (RR: Vol. 65 p. 332-

333) She stated that she never discussed a sexual encounter she had with Frank Davis

with Shania Grey. (RR: Vol. 65 p. 333) She said she asked Frank not to go to her

apartment when Shania was babysitting and she was not present. (RR: Vol. 65 p.

336) She didn’t think he needed to be at the apartment when she was paying a

babysitter. (RR: Vol. 65 p. 337)

32

On cross examination the witness testified that she never paid Shania but

would braid her hair and do her make up. (RR: Vol. 65 p. 342) She knew that Dezire

would call Frank and ask him to come over because she loved her dad very much.

(RR: Vol. 65 p 342-343) She said he treated her other children very well, bringing

them presents. (RR: Vol. 65 p. 343) She said that after the allegations were made,

Frank came to her and wanted her to listen to some audio evidence but she told him

that she didn’t want to hear it. (RR: Vol. 65 p. 346)

32) Testimony of Jawanna Arrington: Jawanna Arrington, the wife of the

Defendant, testified that married in June, 2011 after they had known each other for

three years. (RR: Vol. 65 p. 350) She said they lived next door to Jennifer Dibrell

and her children. (RR: Vol. 65 p. 350) She said Frank went over to her apartment to

see the kids when Jennifer was not present because Jennifer and Frank did not get

along. (RR: Vol. 65 p. 351) She said they had a volatile relationship. (RR: Vol. 65 p.

351)

On September 6th, 2012, Frank picked her up from work and she noticed that

he had sprayed cologne in the car. (RR: Vol. 65 p. 351) She thought he had a female

in the car. (RR: Vol. 65 p. 352) They stopped at the hospital because he had hurt his

arm at the gym, but then left and went home. (RR: Vol. 65 p. 353) She said he was

very affectionate that night. (RR: Vol. 65 p. 353) She said he told her of text

33

messages but did not tell her the version what they actually said. (RR: Vol. 65 p.

354-355) She said that after the arrest, she gave Frank’s belongings to his sister,

including his swords. (RR: Vol. 65 p. 356)

On cross examination, the witness testified that she married Frank because she

loved him. (RR: Vol. 65 p. 357) She said her mother, Mildred Arrington, was like a

mother to Frank. (RR: Vol. 65 p. 358) She said Shania came to their apartment with

the children on one occasion. (RR: Vol. 65 p. 360) She said Shania acted normally

when she was around Frank and she did not suspect anything was going on between

the two of them. (RR: Vol. 65 p. 361)

The jury found Franklin Davis guilty of Capital Murder as charged in the

indictment. (RR: Vol. 66 p. 78)

The State on Punishment

33) Testimony of Linda Crawford: Linda Crawford testified that Franklin Davis was

the father of the 12 year old son, Deon Trey Davis, and they met when she was 16

years old and he was 18 years old. (RR: Vol. 66 p. 80-81) They lived in Texarkana,

Texas when they started a relationship. (RR: Vol. 66 p. 82) After she became

pregnant, they broke off their relationship. (RR: Vol. 66 p. 84) She stated that there

were a couple of episodes of domestic violence, one being when she found him with

another woman. (RR: Vol. 66 p. 85) She said he tried to push her out of the house

34

and told her to “get going and don’t come around here.” (RR: Vol. 66 p. 86) She said

on another occasion, they argued and Frank hit her with a clothes hanger, cutting her

arm. (RR: Vol. 66 p. 88) Her father called the police and Frank was arrested for

assault. (RR: Vol. 66 p. 88) She said that Frank gives their son things and comes to

see him when he is in town. (RR: Vol. 66 p. 93-94)

On cross examination the witness testified that when she and Frank fought, she

threw a bottle and hit Frank in the face. (RR: Vol. 66 p. 110) She said he bought

things for their son, including a bicycle. (RR: Vol. 66 p. 111) She recalled telling

detectives investigating the capital murder case that Frank had never been violent

toward her. (RR: Vol. 66 p. 113) She stated that she threw the bottle at Frank before

he hit her with a clothes hanger. (RR: Vol. 66 p. 119)

34) Testimony of Labrena Henderson: Labrena Henderson testified that she met

Frank at the McDonalds in Texarkana where they both worked. (RR: Vol. 66 p. 122)

They lived together for six months and had a son born on September 24, 2001. (RR:

Vol. 66 p.123-124) She said Frank would stop and see their son, Ahmed, whenever

he was in Texarkana. (RR: Vol. 66 p. 125) She received regular child support until

the charges were filed. (RR: Vol. 66 p. 125-126)

On cross examination the witness stated that her mother thought the world of

Frank. (RR: Vol. 66 p. 130) She described Frank as being slow to anger and told

35

defense counsel in an interview that “He was pretty easy going and never really saw

him get mad.” (RR: Vol. 66 p. 131) She said Frank would come to Texarkana to see

his children once a month. (RR: Vol. 66 p. 133)

34) Testimony of Margaret Brown-Lewis: Margaret Brown-Lewis, a detective with

the Dallas County Sheriff’s Department in the identification section identified State’s

Exhibit No. 245, a 1999 judgement for theft $1,500 but less than $2,000, revoked on

the offense of burglary of a motor vehicle, failure to report, failure to pay probation

fees, failure to pay court costs and failure to complete community service hours and

punishment set at 15 months in State jail; State’s Exhibit No. 246, evading arrest

February 26, 2001; State’s Exhibit No. 247 February 26, 2001, failure to identify and

State’s Exhibit No. 248, misdemeanor offense of fleeing or attempting to elude a

police officer on October 1, 2007.

35) Testimony of Steven Underwood: Steven Underwood, a deputy with the Dallas

County Sheriff’s Department, testified that in 2012 he was assigned to Parkland

Hospital to watch Franklin Davis while he was in the hospital. (RR: Vol. 66 p. 146-

147) He said Mr. Davis asked to take a shower before he was released and returned to

jail. (RR: Vol. 66 p. 148) He agreed, and took off Mr. Davis’ handcuffs and leg-

irons. (RR: Vol. 66 p. 148) He said Mr. Davis then told him “Sorry, man.” and

grabbed him and threw him into the wall. (RR: Vol. 66 p. 149) He said Mr. Davis had

36

a sharp object in his hand and threatened to cut him if he moved. (RR: Vol. 66 p.

150) He grabbed Mr. Davis and backed him into a corner in the room while Mr.

Davis reached for his gun. (RR: Vol. 66 p. 151) His holster broke and Mr. Davis took

his gun off his belt. (RR: Vol. 66 p. 152) He said he didn’t know if the holster was

still on the gun, but he just kept trying to hold it and keep it pointed away from him.

(RR: Vol. 66 p. 153) He said they continued to struggle until Mr. Davis separated

from him, got the gun out of the holster and pointed it at him. (RR: Vol. 66 p. 153)

Mr. Davis told him to get on the ground and he complied, telling him that he didn’t

want to do this. (RR: Vol. 66 p 155) Mr. Davis then ran out of the room. (RR: Vol. 66

p. 157)

The witness testified that he then grabbed his phone, ran down the stairwell,

called his supervisor and then told a nurse to contact the Parkland police. (RR: Vol.

66 p. 158) An employee told him that he saw a man running across the street. (RR:

Vol. 66 p. 160) He never caught Mr. Davis. (RR: Vol. 66 p. 160)

36) Testimony of Mary Cassio: Mary Cassio testified that on December 4, 2012 she

lived at 2239 Wycliff in Dallas, Texas. (RR: Vol. 66 p. 184) At approximately 8:30

p.m. a man knocked on her door and told her he needed help because someone was

shooting at him and had stolen his car. (RR: Vol. 66 p. 185) Her son opened the door

and she saw a man wearing hospital pants with no shoes. (RR: Vol. 66 p. 186) She

37

did not let him in the house, but told him that she would call 911. (RR: Vol. 66 p.

187) He told her not to call because he had some warrants and he then left, going

toward the Market Center Station. (RR: Vol. 66 p. 187)

She said her son spoke with a neighbor, came back to the house and then they

went outside to see if the man had put a gun somewhere. (RR: Vol. 66 p. 188) She

found a gun inside a yellow Parkland Hospital sock on the ground. (RR: Vol. 66 p.

189) She called 911 and told them about the gun. (RR: Vol. 66 p. 192)

On cross examination the witness testified that the man never threatened her or

showed her a gun. (RR: Vol. 66 p. 195) He never forced his way into her house.

(RR: Vol. 66 p. 196)

37) Testimony of Jawanna Arrington: Jawanna Arrington was recalled and testified

that Frank would get angry and they would tussle. (RR: Vol. 66 p. 202) She said he

choked her at times, grab knives occasionally and twice grabbed a gun. (RR: Vol. 66

p. 202) She never called the police because she loved him and didn’t want to get him

into trouble. (RR: Vol. 66 p. 203) She said she didn’t want to be another person who

abandoned him. (RR: Vol. 66 p. 207)

The witness testified that she knew Frank had been in foster care and that his

mother had been murdered in St. Louis. (RR: Vol. 66 p. 216-217) She said he had a

big family in Texarkana but was sent to a youth home in Little Rock instead. (RR:

38

Vol. 66 p. 217) She said he lived with Dorothy, a sister, who kicked him out after she

stopped getting support for him. (RR: Vol. 66 p. 218)

39) Testimony of Matthew Randall: Detective Matthew Randall was recalled and

testified that on December 4, 2012 he responded to the escape of a prisoner at

Parkland Hospital. (RR: Vol. 67 p. 29) He said by the time he responded, the prisoner

had been taken back into custody. (RR: Vol. 67 p. 30)

On cross examination the witness testified that one of the letters he recovered

from room 711 was from the Defendant stating he wasn’t sure whether or not he

would survive the escape. (RR: Vol. 67 p. 46)

40) Testimony of Christian Dalesandro: Christian Dalesandro of the Dallas Police

Department assign to the SWAT unit, testified that on December 4th, 2012 he was

called to a location on Harry Hines, near Parkland Hospital. (RR: Vol. 67 p. 52-53)

He said the escaped prisoner was located between two buildings and everything was

surrounded when he arrived. (RR: Vol. 67 p. 54) He said the Defendant eventually

showed him his hands, exited the vehicle and was put into custody. (RR: Vol. 67 p.

61)

On cross examination the witness stated that the Defendant did not have a

weapon on him when he was arrested and was compliant when he exited the vehicle.

(RR: Vol. 67 p. 68). (RR: Vol. 67 p. 68-70)

39

41) Testimony of Jennifer Dibrell: Jennifer Dibrell was recalled and testified that

she met Frank Davis in May, 2003 in Texarkana, Texas. (RR: Vol. 67 p. 72-73) Their

daughter, Dezire, was born in March 2004 and was now nine years old. (RR: Vol. 67

p. 73) She said they had an altercation when she was pregnant with Dezire and the

Defendant grabbed her and told her he hoped she lost the baby. (RR: Vol. 67 p. 75)

She said when they lived in Bryan Irving, Texas they had an argument when she

found Frank and a woman having sex in their home. (RR: Vol. 67 p. 77) She said

during an argument when they lived in Chicago, Frank pulled a knife on her and she

grabbed her daughter so he didn’t do anything. (RR: Vol. 67 p. 77) They again

argued over another woman when they lived in Mesquite and Frank grabbed his BB

gun and shot her in the leg. (RR: Vol. 67 p. 78) She grabbed the gun but didn’t shoot

him. (RR: Vol. 67 p. 78) She said that on one occasion after Shania came to babysit

for her, she said she and Frank had sex but she had to tell him not to continue because

the anal sex hurt. (RR: Vol. 67 p. 80)

On cross examination the witness testified that their daughter, Dezire, appeared

to be Frank’s favorite child. (RR: Vol. 67 p. 83) She said he has never missed her

birthday and loves her very much. (RR: Vol. 67 p. 83) She said Dezire was a flower

girl at Frank’s wedding to Jawanna. (RR: Vol. 67 p. 85) She said her other two

children also called Frank “Daddy.” (RR: Vol. 67 p. 86) The witness testified that

40

Frank tried to get custody of his daughter, Kurstyne, when her mother was in jail.

(RR: Vol. 67 p. 91)

42)Testimony of Melodye Nelson: Melodye Nelson, a warden with the Texas

Department of Criminal Justice, described the Texas prison system and the

classification system of offenders. (RR: Vol. 67 p. 98- 108) She stated that prisoner

who had a violent episode where they took a gun off the person guarding him and

escaped would most likely be classified as a G4. (RR: Vol. 67 p. 108-109) Ms.

Nelson described the restrictions placed on G4 and G5 inmates. (RR: Vol. 67 p. 109-

114) She described the levels of administrative segregation. (RR: Vol. 67 p. 114-

115) She said that there are maximum security facilities that are understaffed. (RR:

Vol. 67 p. 116) Ms. Nelson described how the G2 and G3 offenders live and work

within the system. (RR: Vol. 67 p. 117-119) She described the violence that occurs

in the system including assaults, weapon possessions, gang activity and murder. (RR:

Vol. 67 p. 120-121) She described how contraband comes into the prisons. (RR: Vol.

67 p. 121) She described State’s Exhibit No. 296, four items, weapons, that were

confiscated from inmates. (RR: Vol. 67 p. 125-128)

Defense on Punishment

43) Testimony of Clifford Harper: Detective Clifford Harper of the St. Louis

Metropolitan Police Department, testified that he had been a homicide detective and

41

was familiar with the area named Cabanne Courts. (RR: Vol. 67 p. 165) Cabanne

Courts was a high crime area and was a neighborhood riddled with gang activity,

drugs and violent crime. (RR: Vol. 67 p. 166) He said most of the housing complexes

are condemned and run down. (RR: Vol. 67 p. 167) The only heat in the units would

be the stove and electricity was usually stolen from the utility poles and run to the

houses by electrical cords. (RR: Vol. 67 p. 167)

The detective testified that in the late l990's he worked the homicide of Brenda

Elkins in the area in which she was shot in the head point blank with a 12-gauge

shotgun after she had been raped and sodomized. (RR: Vol. 67 p. 168) He said the

rape and murder occurred in front of other people in the room. (RR: Vol. 67 p. 177)

He said that this was one of the worst crime scenes he had ever seen. (RR: Vol. 67 p.

177) He said the living conditions were horrible, the refrigerator had no food, only

beer and there was a lot of drug paraphernalia. (RR: Vol. 67 p. 177)

44) Testimony of Ed Chattaway: Ed Chattaway, an officer with the Texarkana Police

Department in Texarkana, Arkansas, testified that when he was a detective he

received a tip from crime stoppers which led to the arrest of Robert Elkins. (RR: Vol.

67 p. 185-187) As a result of the tip, he met with Frank Davis, the Defendant, at the

Hobo Jungle Park, an area next to the railroad. (RR: Vol. 67 p. 187) He said Mr.

Davis told them that he overheard his uncle or his uncle told him that he committed a

42

couple of robberies and raped an E-Z Mart store clerk. (RR: Vol. 67 p. 188) Mr.

Davis told him that Robert was planning on robbing Advance Auto Parts if certain

employees were on the scene at the store. (RR: Vol. 67 p. 189) As a result of the

Defendant’s information, they set up around the store and when Robert arrived, but

then left. (RR: Vol. 67 p. 190-192) He said Mr. Davis called him again, telling him

that the robbery might happen that night and again they set up around the store. (RR:

Vol. 67 p. 192) He said Robert Elkins did not approach the store but was nearby and

they decided to arrest him. (RR: Vol. 67 p. 195) He said Robert Elkins had a silver

handgun, a hat and gloves on him. (RR: Vol. 67 p. 196) He was charged with two

counts of aggravated robbery, rape, possession of a firearm by a felon and was now in

prison serving two life sentences. (RR: Vol. 67 p. 196) He said Frank Davis helped

take this man off the streets, even though it was his uncle. (RR: Vol. 67 p. 197)

45) Testimony of Rose McGill: Rose McGill, the foster mother of Frank Davis when

he was 15 or 16 and lived in Texarkana. (RR: Vol. 67 p. 218) She was trained by the

State and over the years she has cared for over 250 children in her home. (RR: Vol.

67 p. 218) She said Frank and his brother, Samuel, were brought to her when they

were 15 and 16 years old. (RR: Vol. 67 p. 221) She said she was very strict and

would spank the children, but never asked them to leave. (RR: Vol. 67 p. 222) She

said her house was across the street from the high school and children knew they

43

could hang out there. (RR: Vol. 67 p. 224) She thought Frank finally thought he had

found a home and was always smiling, telling jokes and joyful. (RR:VOl. 67 p. 224)

She said Frank had a lot of anger because he thought someone in his family could

have stepped up and taken him and his brother out of foster care. (RR: Vol. 67 p.

225) She said the boys stayed with her for just over a year. (RR: Vol. 67 p. 226) She

said Frank’s family had a home just down the street from her house, but would not

take them into their home. (RR: Vol. 67 p. 226) She said Frank did everything she

asked him to do and was never a disruption. (RR: Vol. 67 p. 227) She tried to keep

them longer, until their 18th birthdays, but their sister, Dorothy, became of legal age

and took them into her home. (RR: Vol. 67 p. 227) She thought Frank needed more

structure than his sister could give him. (RR: Vol. 67 p. 227) She thought Frank had

too much free time and this would cause him to get into trouble. (RR: Vol. 67 p. 230)

She has kept in touch with Frank since her left her home and have always been there

for him. (RR: Vol. 67 p. 231) She said she knew how Frank’s mother had died and

knew that his father died when he was one year old. (RR: Vol. 67 p. 235)

46) Testimony of Dorothy Elkins: Dorothy Elkins, the older sister of the Defendant,

testified their oldest brother, Tony, lives in assisted living because he has always had

a mental disability. (RR: Vol. 67 p. 246) She said she was a child, their mother didn’t

take care of her and Tony and after CPS got involved, the family stepped in and took

44

them to California. (RR: Vol. 67 p. 247-248) Five or six years later, they came back

to St. Louis, Missouri and lived with the five other children of their mother had,

including Frank, who was the youngest. (RR: Vol. 67 p. 248-249) They lived in

Cabanne Court which she described as a very violent area with drug dealing and

murders. (RR: Vol. 67 p. 249) She said they rarely played outside because it was

such a rough neighborhood. (RR: Vol. 67 p. 250) They lived with their grandfather,

Lawrence in a three bedroom apartment. (RR: Vol. 67 p. 251) They lived there for

five or six years until their mother was arrested for shooting someone during a fight

with another family. (RR: Vol. 67 p. 251) She said their Uncle Dennis came ot deal

some drugs on another person’s territory and was shot. (RR: Vol. 67 p. 253) After

their mother’s arrest, they went to foster care. (RR: Vol. 67 p. 257) She said Frank

had been in at least four foster homes. (RR: Vol. 67 p. 257) She said their Uncle

James and Aunt Rose came and got them in St. Louis and took them to Texarkana.

(RR: Vol. 67 p. 259) When their mother got out of prison two and a half years later,

she came to Texarkana but was rearrested and sent back to St. Louis. (RR: Vol. 67 p.

259) She said Frank and Sammy went back into foster care. (RR: Vol. 67 p. 260)

The witness testified that when she was in her early 20's, Frank and Sammy

moved in with her. (RR: Vol. 67 p. 262) When Frank turned 17, he moved in with his

45

girlfriend, Kenzie Monroe. (RR: Vol. 67 p. 263) She said Frank moved around a lot

in his 20's but when he met Jawanna, he settled down. (RR: Vol.67 p. 264)

The witness testified that their grandfather molested everyone in the

household. (RR: Vol. 67 p. 265) She said there was also incest and their mother,

Brenda’s father was also her brother Tony’s father. (RR: Vol. 67 p. 265) She said she

didn’t know the father’s of some of her siblings but knew Frank’s dad died when he

was young. (RR: Vol. 67 p. 266) She said Frank never had a father figure in his life.

(RR: Vol. 67 p. 266)

47) Testimony of Linda Hayes: Linda Hayes testified that she lives in Texarkana, is

married to Arty Hayes, a pastor, and was the older sister of Frank Davis. (RR: Vol.

67 p.287) She said she was concerned about her brother and loved him very much.

(RR: Vol. 67 p. 288)

48) Testimony of Brenda Griffin: Brenda Griffin testified that Frank Davis was an

adolescent who was in the Youth Home where she worked in Little Rock, Arkansas.

(RR: Vol. 68 p. 22) She said he was there for three and a half months when he was

fifteen years old. (RR: Vol. 68 p. 23) She said his life was so fractured by all the

tragedies that happened to him that he was very bonded with his family and he was

very motivated to get back to his family. (RR: Vol. 68 p. 24) She said she was his

therapist and knew he was frustrated that his case worker didn’t seem to participate in

46

placement options. (RR: Vol. 68 p. 24) She facilitated his brother Sammy coming to

see Frank so he would have some family contact. (RR: Vol. 68 p. 26) She said that

she was aware of the murders of Frank’s mother and his uncle which occurred within

a month. (RR: Vol. 68 p. 26) She arranged with Rose Warfield-McGill to take both

Frank and Sammy in the same home . (RR: Vol. 68 p. 28) She said that Frank was

never a discipline problem while he was in her facility. (RR: Vol. 68 p. 28)

49) Testimony of Pat Gill: Pat Gill testified that he worked at the Youth Home with

Ms. Griffin as a counselor. (RR: Vol. 68 p. 32) He recalled that Frank was always

respectful, polite and got along with everybody. (RR: Vol.68 p. 34) He said Frank

was having problems dealing with the fact that his mother was murdered. (RR: Vol.

68 p. 35)

50) Testimony of James Aiken: James Aiken testified that he an expert in the prison

system and the classification system. (RR: Vol. 68 p. 51-55) He said his experience

and studies have shown that as a person gets older, they become more compliant,

especially in a prison system. (RR: Vol. 68 p. 57) He studied Mr. Davis’ records and

knew he had escaped while custody of the Dallas County Sheriff’s Department. (RR:

Vol. 68 p. 57) He said an escape is not necessarily a predictive factor that the person

will escape again. (RR: Vol. 68 p. 58) He said there will always be contraband and

drugs smuggled into prisons, but not every inmate is involved in illegal activity.

47

(RR: Vol. 68 p. 60) He said that some inmates have what he calls “juice” and are the

inmates have the power and control and intimidate other inmates. (RR: Vol. 68 p. 61)

He said others, irregardless of their crimes, do not have “juice” and are more

vulnerable. (RR: Vol. 68 p. 61) He said the only reason they stay alive and well is

because of the professionalism of the staff and the systems that are employed. (RR:

Vol. 68 p. 61)

He said that because of the underlying factors and as well as the offense he was

convicted of, the Defendant would be at the bottom of the list of having “juice” or

having power. (RR: Vol. 68 p. 62) He said that inmates also hate anything that has to

do with children, as in this case. (RR: Vol. 68 p. 62) He said that the Defendant will

not be an influence and his major issue with him would be keeping him alive if he

was ever exposed to the general population. (RR: Vol. 68 p. 63) He stated that the

fact the Defendant escaped would cause him to have more of a security envelope as

necessary to ensure that he never escaped again. (RR: Vol. 68 p. 79)

50) Testimony of Frank Au Buchon: Frank Au Buchon testified that he is retired

from the Department of Criminal Justice of the State of Texas and now is a consultant

for attorneys. (RR: Vol. 68 p. 82) He said a prisoner always goes into the system as a

G3, never lower. (RR: Vol. 68 p. 87) He thought the Defendant would go in as a G4

which was fairly restrictive and would have an escape designation. (RR: Vol. 68 p.

48

89) He said at the very best the Defendant would remain in this designation for a

minimum of ten years. (RR: Vol. 68 p. 89) He said if he had a serious, violent

incident against a staff member, the inmate is place in G5 which is the most

restrictive general population.(RR: Vol. 68 p. 89) He said that because of the

premeditation of the act of assaulting the officer and escaping, the Defendant should

be placed in administrative segregation for a long time. (RR: Vol. 68 p. 89) He

thought this is what the TDCJ officials would do with the Defendant based on the

conversations he recently had with them. (RR: Vol. 68 p. 90)

51) Testimony of Latrice Brown: Latrice Brown testified that the Defendant was the

father of her thirteen year old second child, Kurstyne. (RR: Vol. 68 p. 107) She said

their daughter was three years old, she was arrested and Frank stepped in and took

care of Kurstyne for three years. (RR: Vol. 68 p. 109-110) She said he was dating

Jennifer at the time and they moved from state to state, taking Kurstyne with them.

(RR: Vol. 68 p.111) She said when she was released from prison, she wanted

Kurstyne back, but Frank wanted to keep her. (RR: Vol. 68 p. 111-112) She said

they worked it out and she got custody, but Frank could visit as regularly as he

wanted. (RR: Vol. 68 p. 112) She said Frank was an excellent father who took care

of Kurstyne needs and even her other children. (RR: Vol. 68 p. 112) She said her

other daughter, Skyler, also called him “Dad.” (RR: Vol. 68 p. 112) She said Frank

49

always came to Kurstyne’s birthday parties and was always there for her. (RR: Vol.

68 p. 113) She said Kurstyne loved her father very much. (RR: Vol. 68 p. 114)

52) Testimony of Kurstyne Bailey: Kurstyne Bailey, the daughter of the Defendant,

testified she was 13 years old and had good memories of being with her father. (RR:

Vol. 68 p. 125) She said she knew her father was locked up for doing something bad

and she hadn’t seen him in about a year and a half. (RR: Vol. 68 p. 128) She said she

wanted to come to court to see him and let the jury know that she loved him very

much. (RR: Vol. 68 p. 128)

The State on Rebuttal in Punishment

53) Testimony of Sherry Gray-James: Sherry Gray-James, mother of the deceased,

testified that on December 5th she received a phone call from Detective Dena

Williams of the Carrollton Police Department telling her that Frank Davis had

escaped from custody. (RR: Vol. 68 p. 20-21) She said she was frightened and

Detective Williams stayed on the phone with her. (RR: Vol. 68 p. 21)

The jury answered “yes” to Special Issue No. 1 and “no” to Special Issue No. 2.

(RR: Vol. 70 p. 19-20) The trial court decreed that a sentence of death be imposed

in accordance with the laws of the State of Texas and the Code of Criminal

Procedure. (RR: Vol. 70 p. 20)

50

SUMMARY OF ISSUES

Appellant raises issues in this brief that are categorized into the following

groups: I. Voir Dire Issues. Three issues on voir dire involving Appellant’s Batson

challenge. II. Pretrial Issues. In the fourth issue, Appellant argues that the trial court

erred in dismissing Juror John Bigley, finding that he was disabled due to an

emotional problem involving employment which conclusion was not supported by

the statement of facts. In the fifth issue Appellant argues that the trial court erred in

denying his motion to quash the indictment because the indictment failed to specify

the manner and means by which he allegedly committed the offense of obstruction

with sufficient specificity to allow Appellant to defend himself. Issue six is

concerned with the trial court’s error and abuse of discretion in denying Appellant’s

motion for continuance in order to develop information that defense counsel had just

received about an extensive history of sexual abuse perpetrated on the Defendant. In

Issues Nos. 7, 8, 9, and 10 Appellant argues that the trial court erred in denying his

motion to suppress evidence which was obtained as a result of search warrants. III.

Guilt/Innocence Issues. In the eleventh issue, Appellant argues the evidence

presented at trial was insufficient to support the conviction for capital murder. In

issue no. 12, Appellant argues that the trial court erred in overruling his objection two

photographs as being more prejudicial than probative. Appellant argues in Issue Nos.

51

13-19 that the trial court erred in sustaining Defense Exhibits A-G which were

recordings made of the victim. Appellant sought to introduce these compilation of

recordings of the victim to support his defense that he did not commit the aggravating

offense of obstruction which elevates this murder case to the potential death penalty

punishment option. In issues nos. 20, 21, and 22 Appellant argues that the trial court

erred in sustaining the State’s objection to the witness Arty Hayes, Ashley Sims and

Lamar Leggiton who were called by the defense. Appellant argues that the statements

made by Appellant to any of these three witnesses that the proffered evidence was

admissible as non hearsay prior consistent statements. In Issue 23 Appellant argues

that the trial court erred in denying Appellant’s request for a charge on anti-

speculation during the guilt/innocence stage of the trial. Appellant’s requested

charge to the jury not to base their verdict on speculation was a correct statement of

the law and should have been given to accurately guide the jury in its deliberations.

Appellant argues in Issue No. 24 the trial court erred in overruling Appellant’s

objection to the State’s counsel’s jury argument when he struck at Appellant over

defense counsel’s shoulders and shifted the burden to Appellant. IV. Punishment

Issues. Appellant has 18 objections to the language in the body of the Court’s

instructions to the jury in the punishment stage of the trial. In issues nos. 26 through

35 involve Appellant’s objections to the punishment verdict form. V. Issues

52

involving constitutional challenges that have been previously raised and denied by

this Court in order to preserve these issues for possible future review in federal court.

VOIR DIRE ISSUES

BATSON’ ISSUES NOS. 1-3

APPELLANT’S ISSUE NO. 1

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S

MISUSE OF ITS PEREMPTORY CHALLENGE IN REGARD TO

JUROR, SYRENE MITCHELL, IN VIOLATION OF THE DOCTRINE

ESTABLISHED IN BATSON V. KENTUCKY

(Appellant’s Issues Nos. 1-3 are grouped as each involves the same or similar

issue of law. In each issue Nos. 1-3 Appellant argues that Appellant established a

‘prima facie’ case for a ‘Batson’ objection. The Defendant is an African-

American. An objection by Appellant was made concerning the racially

discriminatory manner in which the State exercised its peremptory challenges.)

Appellant directs this Honorable Court’s attention to Reporter’s Record

Volume 53 page 26 at which the trial court conducted a ‘Batson’ Hearing. Appellant

objected to the State’s strike against Syrene Mitchell, an African-American (RR: Vol.

53 p. 26) . The trial court denied Appellant’s Batson Challenge. (RR: Vol. 53 p.29)

In reviewing the qualification stage of voir dire, the record shows that the State

challenged this juror; however, the trial court denied their challenge and the juror was

qualified. (RR: Vol. 22 p. 157) Mr. Mitchell had previously been a grand juror on a

grand jury and stated that his grand jury had true billed two capital murder cases. Mr.

53

Mitchell testified that his nephew was a police officer in New Orleans. (RR: Vol. 22

p. 94) He further testified that, as he wrote on his questionnaire, he would follow the

law. (RR: Vol. 22 p. 96) When explaining why he circled number 3 on the second

question of the questionnaire he stated (RR: Vol. 22 p. 99) :

A. Well, that’s a - - It’s sort of a - - The was I feel about the death penalty, in some

cases I thing the death penalty should be imposed. In other cases, I do not. My

decision would be based on the type of trial and the type - - the type of murder, if

murder occurred and there was evidence to support that murder. The evidence has to

be there.

Q. Yeah, that make sense. We’re going to talk about the burden of proof that we

have as prosecutors on this case because you know that we are - - it’s our job to prove

the case. The State of Texas has the burden of proof in this.

Mr. Mitchell stated that there were some cases that were worthy of the death

penalty, for example, “an innocence child being molested and killed, for whatever

reason, by an older person. Those are the kind I would draw the line on.” (RR: Vol.

22 p. 105-106) Appellant submits that this should have been the type of juror the

State would want on the jury given the young age of the victim and the underlying

offense of sexual assault. Concerning his religious beliefs, Mr. Mitchell stated (RR:

Vol. 22 p. 118):

A. I certainly don’t have any religious beliefs against capital - - capital murder.

I’m not one of those types of individuals. I look at everything that’s involved, the

evidence, but my religious affiliations with my particular church has nothing to do

with it.

54

When asked to explain his answer of “uncertain” to the statement “The death

penalty should be abolished” the following occurred (RR: Vol. 22 p. 127):

A. It’s kind of like middle of the road. It’s kind of, like, middle of the road. I

don’t necessarily agree the death penalty should be abolished. Here, again, it

depends on whatever situation that occurs. As I stated earlier, certain situations, in

my opinion, warrant the death penalty, and other situations do not.

Q. And those situations that warrant the death penalty, are you - - are you the type

of person that could give the death penalty?

A. Yes.

When asked on the questionnaire if he had “ any moral, religious or personal

beliefs that would prevent you from sitting in judgement of another human being”,

Mr. Mitchell checked the answer “no.” (Questionnaire p. 2) He also checked the

answer “no” when asked in the following question “Do you have any moral, religious

or personal beliefs that would prevent you from returning a verdict which would

result in the execution of another human being?” Appellant submits that 21 of the

jurors accepted by the State answered these two questions with the same answer. Ms.

Karen Coyne, No. 141A, who was seated on the jury, answered Question No. 3 as

“yes” and commented that it was a very serious position to be in and the evidence

would need to be very compelling to convict any individual of murder. Furthermore,

Mr. Mitchell agreed that the intentional murder of an individual during the course of

committing or attempting to commit the offense of obstruction should be a capital

55

offense, as did all jurors accepted by the State. He had not heard about the case as

did sixteen jurors accepted by the State. When asked to rank how strongly he

believed in using the death penalty, he ranked himself a 6. (Questionnaire P. 5)

Appellant submits that Daniel Rudnisky, Brenda Morgan, Josh Stephens, Donald

Reeves and Kelly Cook, all jurors accepted by the State, ranked themselves a six or

lower. Mr. Mitchell was a qualified juror who supported the death penalty. Appellant

argues that the record supports his claim that this juror was qualified as to imposition

of the death penalty and had answers similar to other jurors who were qualified as

jurors.

APPELLANT’S ISSUE NO. 2

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF

ITS PEREMPTORY CHALLENGE IN REGARD TO JUROR, LOUISE

HORSLEY, IN VIOLATION OF THE DOCTRINE ESTABLISHED IN

BATSON V. KENTUCKY

Appellant directs this Honorable Court’s attention to Reporter’s Record

Volume 43 page 19 at which the trial court conducted a ‘Batson Hearing’. Appellant

objected to the State’s strike against Louise Horsley (RR: Vol. 53 p. 26) . The trial

court denied Appellant’s Batson Challenge. (RR: Vol. 53 p.29)

The State did not challenge Ms. Horsely during the qualification voir dire.

(RR: Vol. 33 p. 73) The State argued that the reason they struck Ms. Horsely was

56

because she circled a three on question number two on the juror questionnaire. (RR:

Vol. 53 p. 29) During the qualification stage of voir dire the testimony of Ms.

Horsely showed that she was a qualified juror who could assess the death penalty.

When the State explained the process of putting a person to death, she stated (RR:

Vol. 33 p. 28):

A. I could be a part of that decision and I did put some of the instances where I

thought that the death penalty was justified. So it would have to based upon the facts

and information that I heard as to whether or not I would decide for the death penalty

or not.

Q. And I understand that.

A. But I could make that decision under the right circumstances and depending on

the evidence. I could make that decision.

Ms. Horsely spent twenty years in the United States Air Force before retiring.

She taught students in DISD the game of chess and some of her students won

championships. (RR: Vol. 33 p. 48) Ms. Horsely agreed with the punishment range

for the intentional murder of person during the course of committing or attempting to

commit the offense of obstruction. (Questionnaire p. 4) All jurors accepted by the

State also agreed with question number 12 of the questionnaire. Ms. Horsely thought

that the death penalty had not been applied fairly and had been misused.

(Questionnaire p. 5-6) Appellant submits that jurors Eric Hoy, Beth Cummings and

William Dawson who were accepted by the State had similar answers to Ms. Horsely.

57

Appellant submits that Ms. Horsely was an intelligent, articulate woman who would

have been able to assess the death penalty. Appellant argues that the record supports

his claim that this juror was qualified as to imposition of the death penalty and had

answers similar to other jurors who were qualified as jurors.

APPELLANT’S ISSUE NO. 3

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF

ITS PEREMPTORY CHALLENGE IN REGARD TO JUROR, FREDDIE

WATSON, IN VIOLATION OF THE DOCTRINE ESTABLISHED IN

BATSON V. KENTUCKY

Appellant directs this Honorable Court’s attention to Reporter’s Record

Volume 43 page 19 at which the trial court conducted a ‘Batson Hearing’. Appellant

specifically objected to the State’s strike against Freddie Watson (RR: Vol. 53 p.26) .

The trial court denied Appellant’s Batson Challenge. (RR: Vol. 53 p. 31) The State

stated that they struck Mr. Watson because he had heard about the case and wrote on

his questionnaire that “life with parole would be better for me.” (RR: Vol. 53 p. 29-

30) The State also argued that Mr. Watson wanted people charged with crimes to go

free while the case was ongoing. (RR: Vol. 53 p. 30)

Concerning the State’s assertion that they struck Mr. Watson in part because he

wrote on his questionnaire “life with parole would be better for me” after answering

58

the question on punishment range on killing a witness, Appellant submits the answers

given by Mr. Watson when asked about killing a witness as rising to the level of

capital murder, Mr. Watson stated (RR: Vol. 38 p. 21):

Q. . . ..But if you’re saying killing a witness, that doesn’t rise to the level, to

me, of what a capital murder is that has that punishment range of the death sentence.

How do you feel about that?

A. I think it does.

Q. It does?

A. I think it does. If you kill a witness or some potential witness testifying against

somebody, and it’s proven that they’re responsible for it, yeah, I think that could be

classified as a capital murder.

Q. Classified as a capital murder that could have one of those two punishment

ranges if everyone lines up where it’s life without the possibility of parole or the

death sentence if the facts fit that?

A. Right.

Q. Why do you think that?

A. Well, because there’s you know, just other avenues that a person can take. It

would seem like to me that to get rid of somebody for the sole case of not being able

to testify against you, like I say, to me it just rises to the standard of a capital murder.

When Mr. Watson asked the prosecutor about a person being locked up until

their trial, the State explained how a person could post bond and the reasoning for

requiring a bond. (RR: Vol. 38 p. 48-49) Mr. Watson repeatedly agreed the State,

replying “right” when it was explained to him.

Mr. Watson circled 2 on the second question concerning which statement

represents his feelings on the death penalty. The second statement is “I believe that

the death penalty is appropriate in some murder cases, and I could return a verdict in

59

a proper case which assessed the death penalty. (Questionnaire p. 1) All Twenty-two

jurors accepted by the State also circled 2 on the second question of the

questionnaire. When asked on the questionnaire if he had “ any moral, religious or

personal beliefs that would prevent you from sitting in judgement of another human

being”, Mr. Watson checked the answer “no.” (Questionnaire p. 2) He also checked

the answer “no” when asked in the following question “Do you have any moral,

religious or personal beliefs that would prevent you from returning a verdict which

would result in the execution of another human being?”

Appellant submits that 21 of the jurors accepted by the State answered these

two questions with the same answer. Ms. Karen Coyne, No. 141A, who was seated

on the jury, answered Question No. 3 as “yes” and commented that it was a very

serious position to be in and the evidence would need to be very compelling to

convict any individual of murder. Appellant argues that this shows that Mr. Watson

was a stronger supporter of the death penalty than Ms. Coyne, a white woman. Mr.

Watson checked “yes” when asked if he was in favor of the death penalty and further

stated “Some crimes are so bad that whoever committed it, man or woman, deserve to

die.” (Questionnaire p. 1) Appellant submits that Mr. Watson was a strong proponent

for the death penalty. Mr. Watson had not heard about the case. (Questionnaire p. 4)

Six of the jurors accepted by the State had heard about the case and one, Jose Vega,

60

wrote that he had heard about the case on television and had discussed it with friends.

(Questionnaire p. 4) On question number 15, a scale from 1 to 10 with 1 being the

least and 10 being most, Mr. Watson circled 8 as how strongly he believed in the

death penalty. (Questionnaire p. 5) Nine jurors accepted by the State circled No. 8

and six jurors accepted by the State circled numbers lower than 8 as to how strongly

they supported the death penalty.

In reviewing the qualification stage of voir dire, the record shows that the State

did not challenge Mr. Watson for cause. (RR: Vol. 38 p. 92) Appellant argues that

the record supports his claim that this juror was qualified as to imposition of the

death penalty and had answers similar to other jurors who were qualified as jurors.

ARGUMENT AS TO ALL IMPROPERLY

STRUCK JURORS BY THE STATE

Appellant submits that three of the six “qualified” minority members were

struck by the State. Defense counsel made the following argument (RR: Vol. 53 p.

26):

MR. PARKS: We object to the composition of the jury, Your Honor, for the

following reasons. There were six potential African-American jurors within the

strike range that we reached, Of those, the defense struck one, the very first juror, that

being Johnson.

Two jurors, African-American jurors are actually seated. And the State struck

three African-American jurors, 50 percent of the available panel. That would be

Number 15, Syrene Mitchell, Number 27, Louise Horsely, and Number 34, Freddie

Watson.

61

Fifty percent of the panel, we would suggest to the Court, shows a prima facie

case of a Batson violation. And we would ask that these three jurors be seated.

Appellant submits that the record supports the claim that the State violated the

equal protection clause of the United States Constitution when it used its peremptory

strikes against potential jurors Syrene Mitchell, Louise Horsley and Freddie Watson

in a racially discriminatory manner contrary to the holding of Batson v. Kentucky,

476 U. S. 79, 106 S. C. 1712, 90 L. Ed. 2d 69 (1988). The State’s proffered reasons

for being neutral were in fact a pretext. See Lopez v. State, 940 S. W. 2d 388 (Tex.

App.-Austin, 1997); Musick v. State, 862 S.W. 2d 794 (Tex. App. – El Paso 1999);

Ramirez v. State, 862 S. W. 2d 648 (Tex. App. – Dallas 1993); Esteves v. State, 859

S. W. 2d 613 (Tex. App. – Houston [1st Dist.] 1993, pet. ref’d) and Everson v. State,

851 S. W. 2d 269 (Tex. Crim. App. 1993)

The answers given by these three prospective jurors were similar to answers

given by the non minority jurors as described in the three previous issues.

The Defendant has shown purposeful discrimination pursuant to Miller-El v.

Cockrell, 537 U.S. 322 (2003) The exercise of even one peremptory challenge for

racial reasons invalidates the entire jury selection and mandates a new trial. See.

Linscomb v. State, 829 S. W. 2d 164, 166 (Tex. Crim. App. 1992); Keeton v. State,

724 S. W. 2d 58, 65 n. 5 (Tex. Crim. App. 1987) The aggrieved party need not show

62

multiple instances of racial prejudice in jury selection to prove a constitutional

violation. Linscomb at 166. Either of the three strikes by the State, or all together,

invalidate the jury selection process and mandate a new trial based on Appellant’s

‘Batson’ objections.

Under Batson, one should be concerned with the question of whether the State

was racially motivated in the exercise of its peremptory challenges against even one

juror of discernable race. Linscomb, at 167. Each of the prosecutor’s explanations

should be examined to determine whether the evidence supports the so-called

“neutral” reasons for the strike or whether they are merely a pretext for a racially

motivated peremptory challenge. Whitsey v. State, 796 S. W. 2d 707, 713 (Tex. Crim.

App. 1989)

COMPARATIVE ANALYSIS—DISPARATE TREATMENT

The trial judge’s decision on whether the Appellant proves a Batson claim

turns, in part, on the trial court’s observations during voir dire examination. As the

voir dire supervisor, the trial judge can readily perceive discrepancies during jury

selection process. These discrepancies may include:

(1) the prosecutor failing to question any of the minority jurors yet striking

them anyway;

(2) the prosecutor striking minority jurors who gave answers similar to those of

majority jurors whom the prosecutor did not strike; and

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(3) the prosecutor striking minority jurors who had the same characteristics

professionally, socially, religiously, etc. as majority jurors whom the prosecutor did

not strike.

These factors may show disparate treatment of prospective jurors. These

factors should enter into the trial judge’s assessment of the prosecutor’s credibility

and eventually the trial judge’s determination of the racial neutrality of the

prosecutor’s peremptory challenges. See Young v. State, 826 S. W. 2d 141, 145 (Tex.

Crim. App. 1999).

In Young v. State, it was held that where the record shows there exists a

disparate treatment in the use of a valid reason for the use of peremptory strikes, as in

this case, then the trial court erred in its denial of the Batson challenge as the clearly

erroneous standard is satisfied, as in this case where the only distinguishable factor,

after a careful reading of the voir dire of all the jurors, between the jurors is race. The

evidence in this case indicates that the trial judge erred in allowing the prosecution to

strike three jurors on the basis of race, despite the rationale offered by the State to

cover its true motivation. See Ramirez v. State, 862 S. W. 2d 648 (Tex. App. – Dallas

1993). The State used 3 of its 12 peremptory strikes to eliminate 50% of the African-

Americans on the qualified prospective jury panel. (RR: Vol. 43 p. 19)

The Court in Greer v. State, No. 05-08-00146 (Tex. App.-Dallas June 9, 2009)

found it significant that the State in that case struck 100% of the African-American

64

jurors. That Court referenced Miller-El in stating, “This remarkable disproportionate

use of peremptory strikes weighs heavily in our analysis.” The Supreme Court in

Miller-El stated that striking 10 of 11 available African-Americans were

“remarkable” and not likely caused by “[h]appenstance.” The fact that the State’s

reasons for striking these minority veniremembers were, in large part, applied to

other panel members who were not struck is evidence of pretext. See Miller-El,

supra and Snyder v. Louisiana, 128 S.Ct. 1203 (2008). The disparate-treatment

evidence in this case is strongly reinforced by the State’s disproportionate use of

peremptory strikes against African- Americans, just as it was in Greer.

In this case the trial court unreasonably failed to apply clearly established law

to the facts by failing to examine not just the validity of the reason but the credibility

of the prosecutor. See Hayes v. Thaler, 361, Fed App. 563 (C.A.5 (Tex.)) 2010 WL

183395 citing Miller-El v. Drekte, 545 U.S. 231 (2005) and Reed v. Quaterman, 555

F3d 304 (45th Cir.2009) .

In Reed v.Quarterman, ibid, there is relevant discussion concerning the third

step in evaluating a ‘Batson Claim’ for purposeful discrimination. The Fifth Circuit

Court of Appeals stated that:

“implausible or fantastic justifications may (and probably will) be found to be

pretexts for purposeful discrimination” citing Purkett v. Elem, 514 U.S. 765 (1995).

65

For these reasons Appellant submits reversible error is present based on a

constitutional violation that requires reversal.

PRETRIAL ISSUES

APPELLANT’S ISSUE NO. 4

THE TRIAL COURT ERRED IN DISMISSING JUROR NUMBER 4,

JOHN BIGLEY, FROM THE JURY PANEL

Appellant directs this Honorable Court’s attention to RR: Vol. 56 page 5 at

which hearing was held to determine under article 36.29(b) C.C.P. whether juror No.

4, John Bigley, had become disabled. The Court stated that the juror was adamant

that because of his work situation he simply did not feel like he would be able to be

fair and impartial to both sides and to carefully weigh the evidence because his mind

would be elsewhere.

The juror was examined by State’s counsel and defense counsel. (RR: Vol. 56

p.12)

The Texas Constitution requires a jury in a felony criminal trial to be

composed of twelve members. TEX. CONST. Art. V, sec. 13. The Texas

Constitution further provides, however, that “when, pending the trial of any case, one

or more jurors not exceeding three, may die or be disabled from sitting, the remainder

of the jury shall have the power to render the verdict; provided, that the Legislature

66

may change or modify the rule authorizing less than the whole number of the jury to

render a verdict.” Id. Article 36.29 of the Texas Code of Criminal Procedure tracks

the language of the Constitution and provides that “ not less than twelve jurors can

render and return a verdict in a felony case.” Tex. Code Crim. Proc. Ann. Art.

36.29(a) (Vernon Supp. 1999) However, the legislature has limited the number of

jurors who can be excused due to death or disability during the pendency of a trial in

a felony case to one. Id.

A juror is disabled only when the juror is physically, emotionally or mentally

impaired in some way which hinders his ability to perform his duty as a juror. See

Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999), cert. denied, 528 U.S.

956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999). The determination as to whether a juror

is disabled is within the discretion of the trial court. See id. whether a juror is

disabled is within the discretion of the trial court. See id. Absent an abuse of that

discretion, no reversible error will be found. See id.

The time-line of when this inquiry as to the juror’s status took place is relevant.

The jury apparently when he filled out his questionnaire was unemployed. He

became employed and apparently knew of the pending trial date. He was

unconcerned about attending some seminars or workshops at Microsoft in September.

67

There was a pending motion for continuance by the defense at the time of the

hearing. The continuance was granted and trial was held on November 11, 2013.

The decision to discharge a juror under article 36.29(a) lies within the trial

court’s discretion. However, the trial court’s power to discharge a juror for a

disability is limited to those instances where there exists some physical illness,

mental condition, or emotional state which hinders the juror’s ability to perform his

duties. Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990); Hughes v.

State, 787 S.W.2d 193, 195 (Tex. App.-Corpus Christi 190, pet. ref’d). A juror may

not be discharged because of bias or prejudice against the defendant or against the

law applicable to the case. Landrum,, 788 S.W.2d 579.

The trial court in the case at bar found that the juror was disabled due to an

emotional problem involving employment. That conclusion is not supported by the

statement of facts. The record contains no evidence that Juror Bigley was so

emotionally distraught about being able to serve as a juror that his concern amounted

to an emotion problem as in the case of Freeman v. State, 838 S.W. 2d 772 (Tex.

App. Corpus Christi 1992).

A review of the testimony shows that defense counsel summarized his

objection to the proposed dismissal of juror, Bigley as (RR: Vol. 56 p. 78-79):

68

...

MR. JOHNSON: I want to take a moment to address our Juror Number 6, Mr.

Bigley, and some of his testimony that he gave to the Court yesterday.

The Court was kind enough to give us a transcript of his voir dire testimony. And

on page 12 of that, that is where the issue of his schedule is addressed. And he tells

us that he has a new job and that he is the channel manager for Microsoft. He’s

working for a new company.

And his big concern at that time, what he told us, was that he needed to be

finished with our trial in time to take some seminars in early September with

Microsoft.

He never said - - he basically told us yesterday that he told us all of these things

about how, well - - that he was going to have all of this stuff afterwards and he was

going to be concerned about.

All he said - - told us was that he was concerned about seminars with Microsoft in

September. He’s going to be able to do that.

And I will also point out to the Court, number one, based on his testimony and his

cross-examination, or whatever you want to call it with Mr. – with Phillip Hayes

yesterday, he indicated to the Court that, yes, he could still do this and that he could

give his attention to this trial.

That he would have to work around it. And we think he is still capable of being a

juror on this. I don’t think that he got to the point where he would be excused.

And another big concern would be that, you know, it is going to leave us with just

one alternate I we let him go.

And if we start having other jurors coming down here and start telling us, I’m just

worried about the precedent this would set if we start letting these people off just

because they say that they’ve got some issues with work, which are not legal issues to

be excused from the jury at this point.

He is now a juror. He is not a prospective juror. He is a juror now, and I think the

rules are a little different for him. And I just want to point out to the Court that what

he told us yesterday is not consistent with what he said he told us at his interview.

Appellant submits that the trial court’s inquiry into the emotional state of the

juror in question did not go far enough to establish the fact that the juror was so

emotionally unfit that it impaired his ability to continue. It is obvious from the initial

inquiry that the juror was aware of the trial date when he became employed.

69

Appellant submits that there was no inquiry as to postponement of the

proceeding if the continuance was granted; which would allow the juror to address

his concerns. The issue is of constitutional dimension as to the right of the accused

to have his case determined by the twelve people selected and to not have its jury

selection strategy destroyed by a subsequent employment issue that was actually

resolved with the granting of defendant’s continuance. Therefore, the court abused

its discretion in dismissing this juror without full development of the issue; an action

which violated Appellant’s constitutional right and was harmful to his right to a fair

trial.

APPELLANT’S ISSUE NO. 5

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

MOTION TO QUASH THE INDICTMENT

Appellant directs this Honorable court’s attention to Reporter’s Record

Volume 58 at which a hearing was heard on Defendant’s Motion to Quash the

Indictment. See also Clerk’s Record Volume 3 pp. 127-128. The trial court

characterized the challenge to the indictment was that “the term “obstruction” in the

indictment in and of itself is not sufficient to give you the required due process notice

so that you can prepare an adequate defense.” The motion was denied. (RR: Vol. 58

p. 6)

70

The indictment in this case states in relevant part as follows:

On or about the 6th day of September A.D. 2012 in the County of Dallas and said

State, did unlawfully then and there intentionally cause the death of SHANIA GRAY,

an individual, hereinafter called deceased by SHOOTING THE DECEASED WITH

A FIREARM, A DEADLY with a FIREARM, a DEADLY WEAPON, AND BY

ASPHYXIATING THE DECEASED, and the defendant was then and there in the

course of committing and attempting to commit the offense of OBSTRUCTION.

V.T.P.C. Penal Code § 36.06 defines the offense of Obstruction or Retaliation

(a) A person commits an offense if he intentionally or knowingly harms or

threatens to harm another by an unlawful act:

(1) in retaliation for or on account of the service or status of another as:

(A) public servant, witness, prospective witness, or informant; or

(B) person who has reported or who the actor knows intends to report the

occurrence of a crime;

or

(2) to prevent or delay the service of another as a :

(A) public servant, witness, prospective witness, or informant; or

(B) person who has reported or who the actor know intends to report the

occurrence of a crime.

...

The Court of Criminal Appeals has pointed out that section 36.06(a)(1)(A) has

eight different elements, several of which have distinct alternatives that may or may

not be included in an indictment. Cada v. State, 334 S.W.3d 766, 770 (Tex. Crim.

App. 2011); See also TEX. Penal Code § 36.06(a)(1)(A).

Appellant argues that the indictment fails to allege an offense against Mr.

Davis with that degree of certainty that will give him notice of the particular offense

with which he is charged in violation of Art. 21.11 C.C.P. and fails to inform

71

Defendant of the nature and cause of the accusation against him in violation of Art. 1,

Sec. 10 of the Constitution of the State of Texas, and the Sixth Amendment and Due

Process Clause of the Fourteenth Amendment to the Constitution of the United States

in that said indictment fails to specify the manner and means by which he allegedly

committed the offense of obstruction with sufficient specificity to allow Defendant to

defend himself.

The phrase “in the course of committing and attempting to commit the offense

of OBSTRUCTION does not place this Defendant on notice of what part of Art.

36.06, TEX PENAL CODE he is supposed to have violated, who was obstructed, and

why. Consequently, the indictment does not set forth in plain and intelligible

language sufficient information to enable the accused to prepare his defense. A

motion to quash should be granted where the language in the charging instrument

concerning the defendant’s conduct is so vague or indefinite as to deny him effective

notice of the acts allegedly committed. Haecker v. State, 571 S.W.2d 920 (Tex.

Crim.App 1978); Adams v. State, 707 S.W.2d 900 (Tex. Crim. App. 1986)

Therefore, Appellant was denied due process of law pursuant to the 14th

Amendment of the United States Constitution because he was denied the proper

notice of allegations to which he would be required to defend against. This denied

him a fair trial. The only proper remedy is to grant him a new trial.

72

APPELLANT’S ISSUE NO. 6

THE TRIAL COURT ERRED AND ABUSED IT’S DISCRETION

IN DENYING APPELLANT’S MOTION FOR CONTINUANCE FILED ON

NOVEMBER 1, 2013

Appellant directs this Honorable Court’s attention to Clerk’s Record pp. 137-

140 and Reporter’s Record Volume 60 pp. at which Defense Counsel presented a

motion for continuance to develop information that he had received in the afternoon

of October 31, 2013 about an extensive history of sexual abuse perpetrated on the

Defendant. Counsel argued that this category of information was very relevant and

must be investigated for both the guilt/innocence and punishment stage of the trial.

The United States Supreme Court has repeatedly stated that any death penalty

proceeding must fully consider the defendant’s mental capacity, whether for the

purpose of determining whether the defendant has adequate mental capacity to be

tried, e.g. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996), or for full consideration by

jurors as a mitigating factor, e.g. Penry v. Johnson, 532 U.S. 782, 796-797 (2001).

The trial court denied the Defendant a fair and non prejudicial procedural process in

order to show mitigating evidence of the defendant’s extensive history of sexual

abuse. The trial court erred and abused its discretion in overruling defendant’s

written sworn motion for continuance that informed the Court that the Defendant

recently advised defense counsel of his extensive history of being sexually abused.

73

The Defense filed a sworn written Motion for Continuance on November 1,

2013. The trial court erred in denying the Defense the requested time for

continuance. This error denied the Defendant fundamental due process of law and

rendered the assistance of counsel on the issue of mitigation ineffective in violation

of the 14th and 6th Amendment to the United States Constitution, which effectively

denied Appellant a air punishment hearing on the issue of life in prison without

parole or death as a punishment.

APPELLANT’S ISSUE NO. 7

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A SEARCH

WARRANT SEEKING BUCCAL SWAB CONSTITUTING DNA EVIDENCE

AND PHOTOGRAPHS

APPELLANT’S ISSUE NO. 8

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A SEARCH

WARRANT SEEKING ITEMS FROM A 2005 DODGE STRATUS

BELONGING TO THE COMPLAINANT AND OR DEFENDANT

APPELLANT’S ISSUE NO. 9

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED ASA RESULT OF A SEARCH

WARRANT SEEKING ITEMS FROM THE PREMISES LOCATED AT 10223

NORTH MACARTHUR BLVD. #254 CITY OF IRVING, TEXAS

74

APPELLANT’S ISSUE NO. 10

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A SEARCH

WARRANT SEEKING DIGITAL INFORMATION FROM A BLACK T-

MOBILE MY TOUCH LG-E739 PHONE

(These items are grouped together for presentation as each involves the same or

similar facts and law.)

Appellant directs this Honorable Court’s attention to Reporter’s Record

Volume 57 pgs. 60-69 at which a pretrial hearing was conducted to hear the

defendant’s Motion to Suppress Evidence obtained from Clerk’s Record Vol. 2 p.

164. The trial court issued an order denying the motion. Clerk’s Record Vol. 3 p. 71,

82 and 97. During the guilt/innocence stage of trial defense counsel reurged this

motion (RR: Vol. 60 p. 239-241)

Trial Counsel made the following argument:

MR. JOHNSON: Now, the affidavits in each those three search warrants are

identical except for a little additional language in the affidavit for the search of the

car.

Basically, let’s start with the search warrant for the DNA, the buccal swab. The

first problem that the State has with that search warrant is that it alleges no crime. It

doesn’t set out that the crime has been committed. There’s some language that says

that there’s a missing person, but that is the extent of it. No crime - - no crime is

alleged.

Then you go into the probable cause part of the search warrant, and the search

warrant is based on the fact that they got exigent access to some phone records for

Shania Gray. And when they got those, they saw that there was another phone

number on there that has a 903 area code.

75

They saw that that 903 - - then they got exigent circumstances request for

information on the 903 phone number, and saw that another person had been called

from that phone.

And so they called that other phone number and spoke to a person that identified

himself as Shamica Mosley. Now, obviously, this is just a phone call to somebody

that answered th phone. They have no prior knowledge of this person.

This person said that they’re - - who they are, and then they say that, yes. They got

a phone call, and that they believe that that person could have been Frank Davis.

And they base that on the fact that they have a - - this Shamica, this person they’re

talking to, has a girlfriend that is in a dating relationship with a person named Frank

Davis.

And she claims that this person who talked to her said something that led her to

believe that it was Frank Davis, but it doesn’t allege what it was that they said.

There’s nothing about this person that would suggest that there’s any reason to

believe that this individual, Shamica Mosley, is credible or that what they tell them

actually helps them in any way.

And then it goes on to say that the two phone numbers, the ones for Shania, and

the one - - the 903 number that they now believe, based on Shamica Mosley saying it

could have been Frank Davis, they find that those two phone numbers were in the

same proximity. But we - - that is the only - -the word they used was proximity.

Quite frankly, I’m not sure that that actually connects the in any way at all. All

phones are in the same proximity, I guess, if they talk to each other.

The only other thing that they have in there is that they say they have become

aware that the defendant, Franklin Davis, is - - is somebody that is accused of a

sexual offense - - sexual assault offense of this- - this girl that is now a missing

person.

The last problem that they have - - and I tell the Court - - I say the Court - - I

submit to the Court that none of that reaches to the level of probable cause to begin

with to be able to get a search warrant for the buccal swab to get the DNA evidence.

And the last problem is, is that they don’t have anything to even compare the

DNA evidence to. So it doesn’t even say that there’s any real basis for getting that

evidence.

So - - in the totality of the four corners of that affidavit, it fails to reach the level

of - - of a valid search warrant.

Now, we will move on to the next search warrant, which is going to the premises.

And it is based on this same - - it is based on the same affidavit. Now, one difference

in that search warrant is, is that at the beginning of that search warrant, they actually

allege that they’re investigating the offense of kidnapping,. But, again, there’s

76

nothing in any of the documents to suggest that there was a kidnapping,

There’s nothing other than the fact that the mother says that she went to pick up

her daughter at the school and she wasn’t there.

And there’s no evidence to suggest that Shania was taken against her will, so

there’s no - - there’s absolutely nothing in any of these search warrants that say

otherwise to suggest that there was a kidnapping.

Then we go to the one for the car. It also alleges the kidnapping. And the only

difference in it is, is that in that affidavit, they do put - -

THE COURT: Can I ask you a question, Mr. Johnson?

MR. JOHNSON: Yes, sir.

THE COURT: Did you say in the buccal swab search warrant that there was no

crime alleged?

MR. JOHNSON: That is correct.

THE COURT: What about paragraph three of the affidavit.

MR. JOHNSON: Okay. They do actually allege kidnapping. But again, there’s

no - - I apologize to the Court.

That is in a different part of the search warrant where I saw the kidnapping in the

other one. It is actually alleged earlier in the other one.

THE COURT: I’m not criticizing you.

MR. JOHNSON: Okay. Okay.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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