Terrell Kinyon Davis v. The State of Texas--Appeal from 354th District Court of Hunt County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00003-CR

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TERRELL KINYON DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 354th Judicial District Court

Hunt County, Texas

Trial Court No. 21,856

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Terrell Kinyon Davis appeals from his conviction for aggravated assault with a deadly weapon on LaKendra Jackson. In a companion case, he also appeals from his conviction for an aggravated assault on her mother, Tevas Jackson. Davis was convicted on five separate charges in the same trial: these two, and two other charges for a separate incident, and one charge for felon in possession of a firearm. Because of the combined trial and the interweaving of contentions of error between the various offenses, we have set out the evidence in detail in our opinion on his appeal in cause number 06-05-00001-CR, and will cite only the separately relevant evidence in this opinion. In this opinion, we address his contentions of error as they apply individually to these convictions.

Davis contends the evidence is legally and factually insufficient to support his conviction for aggravated assault with a deadly weapon on LaKendra because the evidence does not prove he had possession of the firearm.

In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

This assault occurred September 15, 2003, at approximately 12:50 a.m. The evidence shows that a man dressed in all black, carrying a gun, and wearing a black ski mask accosted a Church's Chicken store manager, Tevas, after she had closed the business and gone home. He met her at her car and ordered her back into her vehicle. She declined, and screamed. He hit her with the gun while she continued to scream. LeKendra came out of the house and also saw the attacker. At that point, the man ordered LaKendra back inside and then ran away. Two officers were responding to a different call in the immediate area, heard Tevas screaming, and reached her immediately after the assault. Two other officers arrived promply, set up a perimeter around the immediate area, and began searching for the assailant. They heard a car alarm go off in a carport and saw an individual dressed in black running away. Officer Adrian Guzman chased and caught Davis, and black gloves and shirt were found along the route of the chase. Officers searched the carport and found a loaded 9mm pistol tucked behind a refrigerator on top of the motor. Officer Guzman testified that the persons who lived at the residence told him that the weapon did not belong to them.

The uncontroverted evidence about Davis' ultimate capture by police places him near the location where the assaults occurred. There is evidence that he was the person seen running away from an activated car alarm in a carport, that he was chased down and captured, that he was dressed as described by the victims, and that the assault and arrest were extremely close in time. Both victims testified that their attacker had a pistol in his hands during the attack and that they were threatened by the attacker.

This evidence is legally and factually sufficient to allow the jury to conclude the State proved his identity as the actor. We overrule the contentions of error.

Davis also argues that the evidence is legally and factually insufficient to support the jury's conclusion that he used a deadly weapon during the commission of the crime. Applying the standards set out above, the evidence in this case included a silver automatic pistol, which had been hidden behind a refrigerator in the carport from which Davis ran. Tevas testified the attacker had a chrome pistol. Her daughter was not able to provide details about the appearance of the gun, but did testify she (1) saw the man with a gun, (2) saw him hit her mother in the head with it, and (3) saw him point it at her while threatening her.

The jury was entitled to conclude that Davis had hidden the gun, especially in light of the homeowners' denial that the pistol belonged to them, and in light of all the surrounding circumstances. The fact that no fingerprints were found is not controlling, especially in light of the evidence that the attacker was wearing gloves. The evidence is both legally and factually sufficient to support the verdict.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 27, 2005

Date Decided: November 21, 2005

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