Terrell Kinyon Davis v. State ( 2005 )

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

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On Appeal from the 354th Judicial District Court

Hunt County, Texas

Trial Court No. 21,856

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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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ops a plaintiff from relitigating his or her guilt because "a valid guilty plea serves as a full and fair litigation of the facts necessary to establish the elements of the crime." Johnston, 36 S.W.3d at 576 (citing State Farm Fire & Cas. Co. v. Fullerton, 118 F.3d 374, 378 (5th Cir. 1997)). When the issue is identical to the issue in the criminal case, because the plaintiff pleaded guilty, and because the determination of guilt was a critical and necessary part of the criminal judgment, the issue cannot be litigated again. Dover, 859 S.W.2d at 450.

In the present case, Delese pleaded guilty to robbery, i.e., intentionally or knowingly causing bodily injury to Ray in the course of committing theft. Appellees provided a copy of the judgment of conviction as part of the summary judgment proof. In pleading guilty, Delese testified that he was pleading guilty because he was guilty and for no other reason, that he had no objections to the stipulated testimony, that the stipulated testimony was true and correct, and that he admitted intentionally or knowingly causing Ray to fall and break her hip.

Delese asserts the alleged fraud as a bar against defendants' estoppel defense. In relation to attacks on final judgments, only extrinsic fraud denies the losing litigant the opportunity to fully litigate his or her rights or defenses at trial. See Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex. 1984). The alleged perjury of a witness on a contested issue, which the opposing party had the opportunity to refute, is intrinsic fraud, that which is inherent in the matter considered and determined in the original action. Id. at 313. Such intrinsic fraud does not deny the litigant the full and fair opportunity to litigate the issue and therefore does not bar collateral estoppel.

The fraud that Delese alleges is that statements given to the police were false. Delese stipulated to the statements during his criminal proceedings. Although he alleges he could not remember whether he shoved Graves, Delese had an opportunity to plead not guilty, to call witnesses, to cross-examine witnesses, and have all of the protections afforded a defendant in a criminal trial, including the requirement of evidence to prove his guilt beyond a reasonable doubt. He could have fully placed the burden on the State so the testimony against him could have been fully developed. In other words, Delese had the opportunity to fully and fairly litigate the facts in the case. He chose instead to plead guilty. His allegations of intrinsic fraud will not bar collateral estoppel as to the issues decided by his criminal conviction.

One of the elements required to sustain a suit for malicious prosecution is that the plaintiff is innocent. One of the issues decided by the criminal proceeding was Delese's guilt. Because collateral estoppel bars Delese from relitigating the issue of his guilt, Delese cannot maintain his suit for malicious prosecution. Therefore, the Appellees established their right to judgment as a matter of law, and summary judgment was appropriate. We need not consider the other grounds for summary judgment raised in Appellees' motion.

The judgment is affirmed.

   Ben Z. Grant

Justice

Date Submitted: November 8, 2002

Date Decided: July 3, 2002

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1. The indictment did not contain an allegation that Delese recklessly caused Ray's injury.

2. A malicious prosecution case can be based on proof of false information being given to law enforcement authorities. Turner v. Roadway Express, Inc., 911 S.W.2d 224 (Tex. App.-Fort Worth 1995, writ denied); see also Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 294 (Tex. 1994)

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