Quincy Niegbe Davis v. State ( 2017 )

Opinion issued December 5, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00917-CR
NO. 01-16-00918-CR
NO. 01-16-00919-CR
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QUINCY NIEGBE DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 506th District Court
Waller County, Texas
Trial Court Case Nos. 14-07-14758, 14-07-14759. 14-07-14760
MEMORANDUM OPINION
A jury convicted appellant, Quincy Niegbe Davis, of two counts of the third-
degree felony offense of assault on a public servant and one count of the first-degree
felony offense of possession with intent to deliver between four and two hundred
grams of a controlled substance, cocaine.1 After finding the allegations in two
enhancement paragraphs true, the trial court assessed appellant’s punishment at sixty
years’ confinement for each offense, to run concurrently.2 In two issues, appellant
contends the trial court erred in admitting evidence that he appeared to be under the
influence of phencyclidine, or PCP, at the time of the charged offenses and might
have exposed one of the arresting officers to PCP because (1) the State failed to
provide reasonable notice of this extraneous offense to permit him time to prepare a
defense and (2) the probative value of the evidence was substantially outweighed by
the danger of unfair prejudice.
We affirm.
1
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West Supp. 2016) (assault on a
public servant); TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2017)
(possession with intent to deliver between four and two hundred grams of controlled
substance in penalty group one); id. § 481.102(3)(D) (West 2017) (listing cocaine
as penalty group one substance).
2
The offense of assault on Officer C. Salinas was tried in trial court cause number
14-07-14758 and resulted in appellate cause number 01-16-00917-CR. The offense
of possession with intent to deliver a controlled substance was tried in trial court
cause number 14-07-14759 and resulted in appellate cause number 01-16-00918-
CR. The offense of assault on Officer W. Hall was tried in trial court cause number
14-07-14760 and resulted in appellate cause number 01-16-00919-CR.
2
Background
A. Factual Background
On the night of May 2, 2014, former Brookshire Police Department Officer
W. Hall received a dispatch concerning a physical disturbance in progress. The
dispatch informed Officer Hall that a black man was dragging a white woman into a
vehicle at the intersection of Gassner Road and Kellner Road in Brookshire. Officer
Hall did not find a vehicle at the scene, but he did speak with a man who was standing
outside a house at that location. This man informed Officer Hall that he was looking
for Quincy Davis, appellant, who could be found at the Brook Hotel in Brookshire.
The man also gave Officer Hall a physical description of appellant, describing him
as a tall, heavier-set black male.
Officer Hall, accompanied by Officer C. Salinas, who was driving a separate
patrol car, arrived at the Brook Hotel. Officer Hall immediately saw a black male,
matching the description that he had been given of appellant, walking past his patrol
unit towards the hotel lobby. Appellant was carrying a couple of objects, including
a respirator, in his hands at the time. Officer Hall asked appellant his name, and
appellant responded, “Quincy.” Officer Hall then told appellant to drop the items in
his hands, turn around, and get onto his knees. Appellant acted as if he were going
to comply, but he then started running through the Brook Hotel complex.
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During the ensuing chase, appellant ran into an alleyway, but he hit his
shoulder on a fence, which slowed him down enough for Officer Hall to catch him.
Officer Hall tried to take appellant to the ground, but appellant, who was taller and
heavier than Hall, turned around and punched Hall in the mouth with a closed fist.
Officer Hall struck appellant in response, but this “didn’t seem to daze him,” and
appellant started running again. After another chase, Officers Hall and Salinas again
caught up to appellant, and appellant punched Hall in the mouth a second time and
also punched Salinas in the chest and her right arm.
Officer Hall testified that, by this point in his encounter with appellant, he was
afraid for his life because he was “trying to fight a guy who’s highly aggressive,”
who was “much bigger than” him, and whom he had punched to no apparent effect.
He stated that it was unusual that appellant was not showing any signs of pain, and
he testified that, in his experience, “people that don’t show pain, people that are
highly aggressive, that are showing very violent tendencies, and Mr. Davis at this
time is sweating profusely . . . Typically, a subject that’s showing those signs is,
through my experience, under the influence of phencyclidine or PCP.”
With the thought in mind that appellant was possibly under the influence of
PCP, Officer Hall pulled out his baton and struck appellant twice, hitting him on the
back of the shoulder and on the head. Appellant did not react to these strikes, and
he again behaved as though he had felt no pain. Appellant tried to run once more,
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but his pants had fallen down to around his knees, which tripped him and made him
fall to the ground. Appellant was still uncooperative and very aggressive, but
Officers Hall and Salinas were finally able to place appellant in custody at that time.
Officer F. House arrived on the scene at the time Officer Hall had appellant
pinned to the ground. Officer House searched appellant after his arrest and
discovered, in appellant’s pants pockets, two bags containing what appeared to be
crack cocaine and $2,400 in cash.3 He testified that the amount of drugs and cash
was indicative of a drug seller, not a drug user. Officer House also testified that
respirators such as the one appellant had been holding at the time he first encountered
Officer Hall are commonly used when cocaine is being mixed with a dilutant.
Because Officer Hall believed that appellant was under the influence of PCP,
which can affect others by skin-to-skin contact, he decided to go to the restroom in
the hotel lobby to wash his hands. As he walked out of the restroom, he passed out.
Other officers contacted EMS, and while Officer Hall was en route to the hospital,
he vomited several times. Officer Hall, Officer Salinas, and appellant were all
transported to the hospital to treat the injuries they each sustained in the altercation.
3
Rachel Aubel, a forensic scientist with the Texas Department of Public Safety Crime
Lab, testified that one bag contained 26.05 grams of cocaine and the second bag
contained 1.61 grams of cocaine.
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B. Procedural Background
The State indicted appellant for three offenses, including two counts of assault
on a public servant. One of these indictments alleged that appellant caused bodily
injury to Officer Hall by striking him in the face with a closed fist. The other assault-
on-a-public-servant indictment alleged that appellant caused bodily injury to Officer
Salinas by striking her in the chest.
Appellant made a pretrial motion in limine concerning the admission of
extraneous offenses. At a hearing, defense counsel argued that “[t]here is reference
to whether or not my client exposed these officers to PCP” and that he had not been
given notice of this extraneous offense, in violation of Rule of Evidence 404(b).
Defense counsel also argued that this evidence was “highly prejudicial and
inflammatory,” in violation of Rule 403. The State argued that any reference to
appellant’s having ingested PCP on the night of the offenses and having potentially
exposed Officer Hall to PCP constituted same-transaction contextual evidence and
was also relevant to an element of a charged offense: bodily injury suffered by Hall.
The State later argued that this evidence also “goes to [appellant’s] state of mind at
the time when he was actually fighting the officers and is relevant for those
purposes.” The trial court stated, “I’m not going to characterize it as an additional
extraneous offense because I find that to be part of the case in chief of the State on
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that particular offense.” The trial court overruled appellant’s objection, but granted
defense counsel a running objection to any evidence related to PCP.
During defense counsel’s cross-examination of Officer Hall, counsel offered,
and the trial court admitted, appellant’s medical records from the night of the
incident. Defense counsel asked Officer Hall to read a portion of the records that
indicated that the screens performed on appellant’s blood at the hospital, including
a screen for the presence of PCP, all tested negative.
On re-direct examination, the State asked Officer Hall to read another portion
of appellant’s medical records concerning appellant’s history of present illness. This
portion of the records reflected that appellant had stated to hospital personnel that
he had taken “glass and wet” that evening. Officer Hall testified that “glass” refers
to methamphetamine and “wet” refers to PCP.
The trial court included the following instructions in the jury charge:
The State has introduced evidence of extraneous crimes or bad acts
other than the ones charged in the indictments in this case. This
evidence was admitted only for the purpose of assisting you, if it does,
for the purpose of showing the defendant’s motive, opportunity, intent,
preparation, knowledge, or absence of mistake or accident, if any. You
cannot consider the testimony unless you find and believe beyond a
reasonable doubt that . . . these acts, if any, were committed.
You are further instructed if there is any evidence before you
concerning alleged offenses of possession of a controlled substance
other than the offense alleged in the indictment, such offense or
offenses, if any, may only be considered if you believe beyond a
reasonable doubt that the defendant committed such other offense or
offenses, if any, and then you may consider said evidence for any
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bearing the evidence has on relevant matters, including the character of
the defendant and acts performed in conformity with the character of
the defendant.
The jury found appellant guilty of all three charged offenses. After finding
the allegations in the enhancement paragraphs true, the trial court assessed
appellant’s punishment at sixty years’ confinement for each offense, to run
concurrently. This appeal followed.
Admission of Evidence
In his first issue, appellant contends that the trial court erred in admitting
evidence that he was possibly under the influence of PCP and that he may have
exposed Officer Hall to PCP because this was an extraneous offense and the State
failed to provide reasonable notice of this extraneous offense, in violation of Rule
404(b). In his second issue, appellant contends that the trial court erred in admitting
this evidence because the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice, in violation of Rule 403.
A. Standard of Review
We review a trial court’s ruling on the admissibility of extraneous-offense
evidence for an abuse of discretion. Wilson v. State, 473 S.W. 889, 899 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d) (citing De La Paz v. State, 279 S.W.3d 336, 343
(Tex. Crim. App. 2009)). We will not reverse a trial court’s ruling on an evidentiary
matter unless the decision was “outside the zone of reasonable disagreement.” Id.
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at 899–900 (citing Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.
2007)). We will not disturb the trial court’s ruling if it can be justified on any theory
of law applicable to the ruling. Id. at 900; see also De La Paz, 279 S.W.3d at 344
(stating that if trial court’s evidentiary ruling is correct on any applicable theory of
law, it will not be reversed even if court gave wrong reason for correct ruling).
B. Notice of Extraneous Offense Under Rule 404(b)
Rule of Evidence 404(b) generally provides that evidence of a crime, wrong,
or other act is not admissible to prove a person’s character or to prove that on a
particular occasion the person acted in conformity with that character. TEX. R. EVID.
404(b)(1). Extraneous offense evidence may, however, be admissible if it has
relevance apart from character conformity. See Devoe v. State, 354 S.W.3d 457, 469
(Tex. Crim. App. 2011). Such evidence may be admissible to prove, for example,
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. TEX. R. EVID. 404(b)(2); Devoe, 354 S.W.3d at 469.
Rule 404(b)(2) also provides: “On timely request by a defendant in a criminal case,
the prosecutor must provide reasonable notice before trial that the prosecution
intends to introduce such evidence—other than that arising in the same
transaction—in its case-in-chief.” TEX. R. EVID. 404(b)(2) (emphasis added);
McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005) (“An exception to
the notice requirement [of Rule 404(b)] is when the evidence arises from the same
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transaction [as the charged offense].”); see also Worthy v. State, 312 S.W.3d 34, 35
(Tex. Crim. App. 2010) (stating that “pretrial notice of ‘same-transaction contextual
evidence’ is not required under Rule 404(b)”).
Evidence of another crime, wrong, or bad act may be admissible as same-
transaction contextual evidence where “several crimes are intermixed, or blended
with one another, or connected so that they form an indivisible criminal transaction,
and full proof by testimony . . . of any one of them cannot be given without showing
the others.’” Devoe, 354 S.W.3d at 469 (quoting Wyatt v. State, 23 S.W.3d 18, 25
(Tex. Crim. App. 2000)). The jury is entitled to know all relevant facts and
circumstances of the charged offense. Id.; King v. State, 189 S.W.3d 347, 354 (Tex.
App.—Fort Worth 2006, no pet.) (stating that purpose of same-transaction
contextual evidence is not to show character conformity but is “to help the jury better
understand the nature of the alleged crime”). “The jury has the right to hear evidence
concerning events immediately prior and subsequent to the commission of the
[charged] offense so that it may realistically evaluate the evidence.” King, 189
S.W.3d at 354 (citing Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.
2000)).
Same-transaction contextual evidence “results when an extraneous matter is
so intertwined with the State’s proof of the charged crime that avoiding reference to
it would make the State’s case incomplete or difficult to understand.” Prible v. State,
10
175 S.W.3d 724, 732 (Tex. Crim. App. 2005). This evidence is admissible only
when the charged offense would make little or no sense without also bringing in the
contextual evidence, and it is admissible “only to the extent that it is necessary to the
jury’s understanding of the offense.” Devoe, 354 S.W.3d at 469 (quoting Wyatt, 23
S.W.3d at 25).
The State argues that evidence of appellant’s alleged use of PCP on the night
of the offense—and the potential exposure of Officer Hall to PCP through skin-to-
skin contact with appellant—constitutes same-transaction contextual evidence, and
it was therefore not required to provide appellant with pretrial notice of this evidence
under Rule 404(b)(2). We agree.
After receiving information that appellant, a possible suspect in an earlier
physical disturbance, was staying at the Brook Hotel, Officers Hall and Salinas drove
to this location, where they immediately saw a man matching appellant’s physical
description. Appellant gave his first name, which matched the name Officer Hall
had been given, and Hall commanded him to drop what he was holding and get down
on his knees. Instead of complying, appellant ran and a chase ensued. The officers
caught up to appellant twice and exchanged blows, and Officer Hall testified that
appellant did not appear dazed by receiving the blows—one from Officer Hall’s fist
and two from Officer Hall’s baton—and that he instead appeared as though he had
not felt any pain. Both officers described appellant’s behavior as aggressive and
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uncooperative. Officer Hall testified that, based on his training and experience,
appellant’s behavior was consistent with someone who was under the influence of
PCP. After the officers caught appellant and placed him under arrest, Officer Hall
was concerned that he had been exposed to PCP from touching appellant, and he
washed his hands in the hotel restroom. Officer Hall passed out, vomited several
times, and was transported to the hospital. Appellant’s medical records, offered into
evidence by appellant, reflected negative results on the drug screens taken that night,
but they also indicated that appellant told hospital personnel that he had taken
methamphetamine and PCP that evening.
The evidence that Officer Hall believed appellant was under the influence of
PCP and may have exposed Hall to PCP was necessary to place the charged
offenses—which included two counts of assault on a public servant, with Hall as one
of the complainants—into context. Appellant argued at trial that Officers Hall and
Salinas were inexperienced and “unseasoned” officers and that they “spooked” and
“scared” him when they first approached him, which resulted in appellant’s
defending himself from the officers and engaging in “mutual combat.” Appellant’s
possible use of PCP provides an explanation for his aggressive and unusual behavior
and also helps rationalize the amount of force that Officer Hall, in particular, needed
to expend to detain appellant. Furthermore, as the State argues, the potential
exposure of Officer Hall to PCP, and his subsequent symptoms of loss of
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consciousness and vomiting, were necessary to present to the jury the extent of
Hall’s injuries that he received during the encounter.
We conclude that the evidence of appellant’s possible use of PCP and possible
exposure of Officer Hall to PCP constituted same-transaction contextual evidence.
See Devoe, 354 S.W.3d at 469; Prible, 175 S.W.3d at 732; King, 189 S.W.3d at 354.
Because this evidence arose out of the same transaction as the charged offenses, the
State was not required to provide pretrial notice of this evidence to appellant under
Rule 404(b)(2). See TEX. R. EVID. 404(b)(2); McDonald, 179 S.W.3d at 577. We
therefore hold that the trial court did not violate Rule 404(b) in admitting this
evidence.
C. Rule 403
Rule 403 provides that a trial court may exclude otherwise relevant evidence
if the probative value of that evidence is substantially outweighed by a danger of
unfair prejudice, confusion of the issues, misleading of the jury, undue delay, or the
needless presentation of cumulative evidence. TEX. R. EVID. 403. When conducting
a Rule 403 analysis, a trial court must balance:
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest [a] decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will
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consume an inordinate amount of time or merely repeat evidence
already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The
prejudicial nature of same-transaction contextual evidence “rarely renders such
evidence inadmissible, as long as it sets the stage for the jury’s comprehension of
the whole criminal transaction.” King, 189 S.W.3d at 354–55 (citing Swarb v. State,
125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d)). A trial
court’s decision not to exclude evidence based on a finding that the danger of unfair
prejudice does not outweigh the evidence’s probative value is entitled to deference.
See Wilson, 473 S.W.3d at 900 (quoting Moses v. State, 105 S.W.3d 622, 627 (Tex.
Crim. App. 2003)).
As we have already held, the evidence that appellant was possibly under the
influence of PCP and may have exposed Officer Hall to PCP was necessary to
provide context to two of the charged offenses—the assaults on Hall and Officer
Salinas. Furthermore, because one of the charged offenses was an assault on Officer
Hall, appellant’s behavior surrounding that assault and the injuries and ill effects that
Officer Hall suffered as a result of his encounter with appellant were relevant. This
evidence therefore has probative value and the State had need of this evidence.
Appellant argues that the evidence of his PCP use and possible exposure of
Officer Hall to PCP was “highly damaging,” but he provides no argument for how
this evidence tended to suggest a decision by the jury on an improper basis. “Rule
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403 does not mandate the exclusion of all prejudicial evidence; rather, its narrow
focus is on that evidence with the potential for unfair prejudice.” Maldonado v.
State, 452 S.W.3d 898, 904 (Tex. App.—Texarkana 2014, no pet.) (emphasis in
original) (citing Manning v. State, 114 S.W.3d 922, 927–28 (Tex. Crim. App.
2003)). “The prejudicial effect may be created by the tendency of the evidence to
prove some adverse fact not properly in issue or unfairly to excite emotions against
the defendant.” Manning, 114 S.W.3d at 927–28 (quoting Montgomery v. State, 810
S.W.2d 372, 378 (Tex. Crim. App. 1990)). Contrary to appellant’s assertion, there
is little likelihood that, upon hearing that appellant was potentially under the
influence of PCP, the jury decided the case on that basis instead of on the strong
evidence that appellant assaulted both Officer Hall and Officer Salinas and
possessed cocaine.
Appellant agrees that the State spent little time presenting the PCP-related
evidence, but he argues that this evidence confused the issues, distracted the jury
from deciding the charged offenses, and had a tendency to be given undue weight
by a jury not equipped to evaluate the evidence. Although this case involved three
charged offenses, none of the issues in this case were complex and the jury only
heard from four witnesses over one day of testimony. Rather than distracting the
jury from the charged offenses, the challenged evidence instead provided context for
these offenses, helping explain appellant’s unusual behavior, providing a possible
15
motive for appellant’s assaults of the officers, and presenting a full picture of Officer
Hall’s injuries. Moreover, in response to the evidence of possible PCP usage, the
trial court included an instruction in the jury charge that it should not consider
extraneous offense evidence or evidence concerning an alleged offense of possession
of a controlled substance “other than the offense alleged in the indictment” unless it
believed beyond a reasonable doubt that appellant committed those offenses. Thus,
the jury in this case was equipped to evaluate the evidence of PCP use and exposure.
This Court has previously held that the prejudicial nature of same-transaction
contextual evidence “rarely renders such evidence inadmissible, as long as it sets the
stage for the jury’s comprehension of the whole criminal transaction.” Swarb, 125
S.W.3d at 681. The evidence of appellant’s possible PCP usage and possible
exposure of Officer Hall to PCP serves that function in this case. We conclude that
the trial court reasonably could have determined that the prejudicial effect of this
evidence did not substantially outweigh its probative value, and we therefore hold
that the trial court did not abuse its discretion in admitting this evidence. See
Gigliobianco, 210 S.W.3d at 641–42; Wilson, 473 S.W.3d at 899–900.
We overrule appellant’s first and second issues.
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Conclusion
We affirm the judgments of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Caughey.
Do not publish. TEX. R. APP. P. 47.2(b).
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