Davis v. State

313 S.W.3d 317

Selwyn DAVIS, Appellant, v. The STATE of Texas.

No. AP-75,796.

Court of Criminal Appeals of Texas.

June 16, 2010.

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Ariel Payan, Austin, for Appellant.

Lisa Stewart, Asst. Dist. Atty., Jeffrey L. VanHorn, State's Atty., Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.

In October 2007, a jury convicted appellant of capital murder.¹ Based on the jury's answers to the special issues,² the trial judge sentenced appellant to death.³ Direct appeal to this Court is automatic.⁴ After reviewing appellant's twenty-six points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment and sentence of death.

I. BACKGROUND

On August 22, 2006, appellant entered an apartment without permission through a window and waited for the occupants to return home. The apartment belonged to Regina Lara, who was the mother of appellant's estranged girlfriend, Linda Martinez. Linda's fifteen-year-old daughter, R.M., who lived with Regina, received a ride home from school that day from her aunt, Veronica Lara. When the pair returned to the apartment, R.M. first noticed that her grandmother's cat was missing and then found appellant in her bedroom, but she was too frightened to call out or say anything to her aunt about appellant being in the apartment. Appellant told R.M. that her mother had been beaten by a group of men, and when Veronica left, appellant sexually assaulted R.M. Appellant then instructed R.M. to stay in her room until her grandmother returned home.

When Regina returned home approximately an hour later, R.M. met her in the living room. R.M. did not see appellant anywhere in the apartment. Regina told R.M. that appellant had assaulted her mother and that she was hospitalized. A short time later, R.M. went to the kitchen for a glass of water and noticed that two knives were missing. Worried, she stepped into the hallway outside the apartment to receive better cell phone reception in order to call Veronica. R.M. told Veronica that she was concerned appellant could still be in the apartment and asked her to return to the apartment. Regina stepped into the hallway and told R.M. to come back inside the apartment. Still worried, R.M. asked her grandmother not to go back inside. Regina, however, went back inside the apartment. Several seconds later, R.M. heard Regina scream. R.M. ran to a nearby convenience store to safely call the police.

Appellant attacked Regina and stabbed her several times. She suffered a fractured voice box as a result of strangulation and a fractured skull from a blow to her head. Regina died from multiple stab wounds to the heart.

Appellant fled the scene in Regina's van. He drove to a nearby shopping center, where he entered a Ross Department Store. Sarah Spanier, a friend of Linda Martinez, called 9-1-1 to report that appellant was in the department store, bloody, bandaged, and "not acting right." While there, appellant purchased new clothes and changed into them. Officers later found appellant's discarded clothing and Regina's checkbook in the dressing room he used at the department store.

Spanier followed appellant out of Ross and informed the 9-1-1 operator that appellant had walked into a nearby Target. Several officers, including Officers Robert Broomhall and Robert Caudill, went to the Target store. Upon entering the store, Broomhall quickly located appellant near the electronics department. Broomhall and Caudill were the first officers to approach appellant, and they directed him to turn around and raise his hands. When appellant did not follow the officers' directions, Caudill forced appellant to the ground. Appellant struggled briefly but was quickly subdued and handcuffed. As officers walked appellant to a police car, appellant broke away and attempted to run. Officers quickly apprehended appellant and placed him in the back seat of a police car.

Officer Caudill and Officer Corey Wroblewski transported appellant to Brackenridge Hospital, where he was treated for cuts on his arm and face. Homicide Detective Rogelio Sanchez read Article 38.22 warnings⁵ to appellant at the hospital. The officers subsequently transported appellant to the police station's homicide division, where he was interviewed. The administration of warnings at the hospital and the interview at the station were electronically recorded (audio only at the hospital, audio and video at the station).

II. GUILT

A. Batson Claim

In point of error four,⁶ appellant contends that the trial court erred in denying a Batson⁷ challenge to the State's peremptory strike of prospective juror Mays, an African-American. Appellant claims that the "defense rebutted the prosecutor's race-neutral rationale, leaving only the impermissible rationale for Mays' removal."

Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: First, "a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race."⁸ Second, "if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question."⁹ Finally, "in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination."¹⁰

A trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.¹¹ The trial court's role in evaluating Batson claims is pivotal.¹² Often the best evidence of discriminatory intent is the demeanor of the prosecutor exercising the challenge.¹³ Additionally, race-neutral reasons for peremptory challenges often turn on aspects of a venire member's demeanor, such as nervousness or inattention, causing the trial court's observations to be even more important.¹⁴

The record reflects that prospective juror Mays arrived at the courtroom late for voir dire. Before Mays entered the courtroom, the trial court set out the basic facts surrounding her late arrival:

For the record, Ms. Mays came into the courthouse this morning. She was carrying—evidently she has a little pocket knife for protection or a knife for protection. The deputies saw it and sent her out. They wouldn't let her leave it. They sent her away, so she went home. A constable went out to find her. We called her work. We've been tracking her down, so she is now here.

Before her individual voir dire, the trial court asked Mays, "I've already put on the record that you were here this morning, but you were turned away by the deputies downstairs. Is that right?" Mays responded, "Uh-huh." The prosecutor then proceeded with individual voir dire. When the prosecutor was done, defense counsel had no questions. After Mays was asked to step outside the courtroom, the trial court asked the parties' whether they had any challenges. Neither party challenged Mays for cause, but the State chose to exercise a peremptory strike.

When defense counsel raised a Batson objection, the prosecutor offered several race-neutral reasons for the strike:

Number one is what the court put on the record is that when she came to court originally with that knife, the people at the front door gave her the opportunity to, you know, either turn around and leave or leave the knife outside and come in. And instead of notifying the court or putting the knife down somewhere and coming in, she just disappeared. We couldn't find her. The court had to send out a constable to get her. She was due at 10:00 this morning. We came back at 1:00, and she had been obtained from somewhere by the constable's office.

When she came in, she appeared to me to have a little bit—I don't know if it was hostility or annoyance or what at being brought back down here. She did seem to—I think that she calmed down a bit. But I had the impression when she came in that she would hold that against the State at some point.

When I asked her—in addition ... when I was going through the questions with her whether if the State proved the elements of capital murder to her beyond a reasonable doubt, would she be able to find someone guilty of capital murder, and there was a long pause. And then she finally said, yeah, I could.

The other thing that gave me pause was when I asked her if the death penalty would ever be appropriate. She answered the questions in the questionnaire that went—number 99, "Do you believe in the death penalty?" And she said it wasn't applicable. And she did say it was because she just hadn't thought about it.

But then when I asked her whether she ever could think of an instance where the death penalty would ever be appropriate, she said first, "I want to say no." And then she thought a little bit about it and she said, "Well, I guess I could think of one."

She said that the death penalty would be appropriate for somebody who continues to kill. In her questionnaire when she answered number 106, she said, "Life in prison is more appropriate for someone convicted of capital murder when they continue to do the same act." When I asked her about that here on the stand, she said, "Yes, if they continue to kill."

So it has nothing to do with her race or her sex or anything else.

She has said that she would consider the death penalty for somebody who continued to kill. And then at first she would—she said she wanted to say no about the death penalty, and then finally said, "Well, if they continue to kill."

So for those reasons, we have moved to strike her.

The record also shows that, before accepting juror Vana, the trial court thanked him for "waiting." "The juror before you did not come in," the trial court said, "and we had to send a constable out to get her." The prospective juror that had to be retrieved was Mays, who had by then arrived.

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