Dylan Davidson v. The State of Texas--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DYLAN DAVIDSON,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-04-00117-CR

Appeal from the

210th District Court

of El Paso County, Texas

(TC# 20030D02013)

O P I N I O N

This is an appeal from a jury conviction for the offense of murder. The jury assessed punishment at fifty-three years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At trial, the State utilized the testimony of Sandra Aguilar. She testified that on March 14, 2003, she met with the victim, Alejandro Enriquez, at a gas station on Paisiano Avenue in El Paso, Texas at five o clock in the early evening. On the way to her apartment, they stopped at a store, and Enriquez bought an eighteen pack of beer. Enriquez had already been drinking. After arriving at Aguilar s apartment, Enriquez drank two beers. They then left for a bar named Jesse s Too.

Upon arrival at the bar at 6 p.m., Enriquez proceeded to drink several beers. He paid cash for the beers with twenty dollar bills. He kept his money in a wallet. The owner of the bar testified that Enriquez had a lot of money with him. At about 9 p.m., Aguilar and Enriquez left to pick up her daughter at her work. They then returned to the bar. They continued to drink until the bar owner, Eva Gonzalez, refused to serve Enriquez any more beers. He then tried to get other bar patrons to buy him drinks. He began flirting with the bar owner, and Aguilar danced with other men at the bar. Enriquez got upset at this and left the bar. While he was upset, he did not become aggressive with anyone at the bar.

Earlier that same day, a woman with the nickname of Panda Bear, an individual named Henry Carlisle, and Appellant were panhandling at the Running Bear store on Yarbrough Street in El Paso, Texas. Gerald Dilsaver arrived at the store at about 5 p.m. and he ran into them. He had met Panda Bear before, but he did not know the other two. He was invited for a drink behind the store, and they drank while taking turns showing a sign asking for money. Dilsaver saw that Appellant had a knife in his possession. Later, after Dilsaver left, the three purchased several items from the store and they walked to a campsite near some railroad tracks under a bridge. They had with them a case of beer and some food items. It was their intent to catch a freight train later that evening.

Carlisle testified for the defense at the guilt-innocence stage of trial. According to his testimony, the group settled in at the campsite by obtaining an old loveseat and a chair. They made a fire and continued to drink. Alejandro Enriquez then charged into the campsite. Appellant and Carlisle jumped up as Enriquez had not announced his arrival. Appellant thought Enriquez was an individual named Youngster who had stabbed Panda Bear on a prior occasion. Appellant attacked with his knife. Carlisle pulled Appellant back, took the knife away, and threw the knife over by the loveseat. When it became clear that Enriquez was not the individual who had previously stabbed Panda Bear, Appellant apologized to Enriquez, and he was invited to drink.

When the fire started to go down, Carlisle and Appellant went to collect some wood. He heard some noise and he saw Enriquez on top of Appellant. He separated them, but Enriquez started toward Appellant and Carlisle hit him twice and told him to stop fighting or someone might call the police. Enriquez agreed to stop fighting. When they got back to the campsite, Carlisle testified that Enriquez again attacked Appellant, but as Carlisle went to break up the fight, his glasses were knocked off and he stopped trying to intercede. He stated that Appellant was fighting for his life and he stabbed Enriquez ten to twenty times. Enriquez did not have a weapon. As Appellant stabbed Enriquez, he was hollering and praying in Spanish. After the fight, Carlisle saw that Enriquez was not moving. He told Appellant that he was in deep shit. Carlisle took off his bloodied jacket and hat and threw them into the fire. The three left the scene and went to the Running Bear store.

Gerald Dilsaver had camped near the Running Bear store. He heard Panda Bear yelling and cursing about some bloody clothes. The three stood near the foot of his sleeping bag, and Panda Bear and Carlisle explained what happened. They left and Dilsaver noticed that Appellant s right eye was badly swollen and he had blood on his pants, boots, and hands. Appellant then stated to Dilsaver, I just killed a Mexican. When Dilsaver asked if the individual was dead, Appellant related, Yes. And then I cut his throat. Appellant then acted out how he killed the victim and he stated to Dilsaver that he, just couldn t stop. The three then washed the blood off their hands and shoes, and all the bloody clothes were placed in a plastic bag for burning.

Floyd Quillen testified that the three arrived at his trailer sometime around 7 a.m. All three wanted to take a shower, but Appellant was the only one who actually showered. Quillen observed that Appellant was wearing a bloody shirt, he had a cut above his eye, missing skin from his knuckles, and a swollen right eye. Appellant related to Quillen that he and Carlisle had gotten into a fight. Panda Bear stated that she wanted some more beer and she pulled out $60 to $65 from her pocket to purchase the beer. The three left Quillen s trailer to catch a train.

Officer Jesus Payan Jr., a police officer with the El Paso Police Department, testified that he was dispatched to a crime scene located at a campsite at Yarbrough and San Jose Streets at approximately 12:30 on March 15, 2003. He observed that the victim s body was covered with blood and dirt. Some one dollar bills were found near the victim. No wallet was found. He returned to the crime scene the next day and he found a knife that had been burned.

Dr. Corinne Stern testified that Enriquez had fifty-two stab wounds to his body. Most were located near his neck and torso. She testified that he had bruises and abrasions about his face. He had a cutting wound to his anterior neck. He had many other cuts and abrasions about most of his body. Dr. Stern testified that there were no defensive wounds other than some possible defensive bruising type wounds to the back of his right hand which would not indicate defensive action to the inflicted stab wounds. The cause of death was the stab wounds.

The blood screening indicated that Enriquez s blood alcohol level was 0.34 percent at the time of the autopsy, but it was probably higher two hours prior to his death. Dr. Stern testified that an individual intoxicated at such a level would have had serious vision problems, restricted mobility, slurred speech, and his ability to function would have been seriously impaired. Dr. Stern further testified that it would have been extremely difficult for him to defend himself.

II. DISCUSSION

In Issue No. One, Appellant maintains that the evidence was legally and factually insufficient to support the jury s rejection of Appellant s self-defense claim. In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).

Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.--El Paso 1992, pet. ref d). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex. App.--El Paso 1995, pet. ref d); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.--El Paso 1992, pet. ref d); Bennett v. State, 831 S.W.2d 20, 22 (Tex. App.--El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843 (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness s testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex. App.--El Paso 1995, pet. ref d).

In conducting a factual sufficiency review, we view the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. We set aside the fact finder s verdict only if (1) the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). However, our factual sufficiency review must be appropriately deferential so as to avoid substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Accordingly, we are authorized to set aside the jury s finding of fact only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135. If the evidence is factually insufficient, we remand to the trial court for a new trial. Id. at 133-35.

When an Appellant challenges the legal sufficiency of the evidence supporting a fact finder s rejection of a defense, we look not to whether the State presented evidence that refuted Appellant s self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against Appellant on the self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). When an Appellant challenges the factual sufficiency of the rejection of a defense, we review all of the evidence in a neutral light and ask whether the State s evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt and weighing all of the evidence, the evidence supporting the defense is strong enough that the fact finder s rejection of the defense does not meet the beyond-a-reasonable-doubt standard. See Zuniga, 144 S.W.3d at 484-85; Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other s use or attempted use of unlawful force. Tex. Penal Code Ann. 9.31 (Vernon 2003). A person is justified in using deadly force against another (1) if he would be justified in using force according to section 9.31 of the Texas Penal Code; (2) if a reasonable person in the actor s shoes would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other s use or attempted use of unlawful deadly force. Tex. Penal Code Ann. 9.32 (Vernon 2003). Deadly force is defined as force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. Tex. Penal Code Ann. 9.01 (Vernon 2003).

Regarding the legal sufficiency of the evidence, we note that the medical examiner testified that the deceased was so intoxicated, it would have been difficult for him to defend himself. There were no appreciable defensive wounds. Further, fifty-two separate stab wounds were inflicted and there was no indication the deceased had a deadly weapon. The deceased was hollering and praying during the attack. Appellant stated to a witness that he could not stop stabbing the deceased, and he had slit his throat. The autopsy indicated that Appellant s throat had been slit. The jury could have justifiably chosen to disbelieve Carlisle s testimony that Appellant was fighting for his life. We find that the evidence is legally sufficient to support the conviction.

Regarding the factual sufficiency of the evidence, Carlisle s testimony that the deceased was the aggressor could have justifiably been disbelieved by the jury. Initially, Appellant drew his knife when Enriquez entered the campsite due to mistaken identity. While the evidence indicated that Appellant had a badly swollen eye, none of the physical evidence indicates that Appellant could have justifiably resorted to deadly force in defending himself. There is some evidence that robbery was a motive in the assault. Given these factors and the discussion regarding the legal sufficiency, we find that the evidence is factually sufficient to support the conviction. Issue No. One is overruled in its entirety.

In Issue No. Two, Appellant asserts that the prosecution s argument at the guilt/innocence stage of trial exceeded the bounds of proper argument because certain references were not reasonable, fair, legitimate, nor was it offered in good faith. Appellant failed to lodge any such objection during the State s argument. A defendant s failure to object to allegedly improper jury argument waives any complaint on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). As Appellant has failed to preserve this issue on appeal, Issue No. Two is overruled.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

April 20, 2006

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)