Willie Deshun Wade v. State ( 2019 )

AFFIRM; and Opinion Filed February 27, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00059-CR
WILLIE DESHUN WADE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1775793-R
MEMORANDUM OPINION
Before Justices Brown, Schenck, and Pedersen
Opinion by Justice Brown
A jury convicted appellant Willie Deshun Wade of aggravated assault with a deadly
weapon, and the trial court assessed punishment at ten years’ confinement. In two issues, appellant
contends the evidence is insufficient to support his conviction and the trial court erred in finding
consent to search his apartment was given voluntarily. For the following reasons, we affirm the
trial court’s judgment.
BACKGROUND
Appellant was charged with aggravated assault with a deadly weapon. See TEX. PENAL
CODE ANN. § 22.02(a)(2). The indictment alleged appellant intentionally, knowingly and
recklessly caused bodily injury to Desiree Kelly by shooting her with a firearm.
At trial, Kelly testified that she and Anthony Jackson had picked up their fifteen-year-old
daughter Kailyn from a graduation party at the Homes of Persimmon apartments in Dallas.
Jackson was driving Kelly’s Toyota Camry, Kelly was sitting in the front passenger seat, and
Kailyn was in the backseat. They had stopped before turning left onto a four-lane road when
appellant began “laying on the horn” of his Lincoln Town Car behind them. Jackson made the left
turn, and appellant sped up to the passenger side of Kelly’s car screaming and cursing that Jackson
had taken too long to turn. Appellant drove his car into Jackson’s lane, forcing Jackson to drive
on the center median and stop to avoid hitting appellant’s car. Jackson told appellant to “get off
my car,” and a passenger in appellant’s car pulled a gun and said “these mother fuckers look like
they want to do something.” Appellant “finally” pulled away from Kelly’s car and Jackson
resumed driving, but appellant again drove toward Jackson’s lane at a red light at the next
intersection. Kelly reached for her camera and hit record. Just as she did, she heard a pop and
breaking glass. She realized appellant was shooting at her car. Kelly slid down in her seat, noticed
Jackson was no longer in the car, and placed the car in park. Kelly got out of the car and realized
she had been shot in the chest. Jackson was shot twice in the stomach. According to Kelly, neither
she nor Jackson had a gun in the car. Nor had they threatened appellant, although Jackson may
have raised his voice.
Video recorded on Kelly’s telephone and a still photograph made from the video were
admitted into evidence and published to the jury. The photograph showed appellant in his vehicle
pointing a firearm toward Kelly’s car. Kelly testified she heard four shots and a male voice on the
video recording. At the time, both appellant and Jackson had been yelling.
According to Kailyn, who also testified, the people in the car behind them were honking
and complaining that Jackson had taken too long to turn. A few yards down the road, the other
car pinned them at the median and Jackson could not drive without damaging the cars. The other
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car finally drove off, but shots were fired when Jackson pulled up to a red light. Kailyn did not
see or hear Jackson digging around for anything in the car, but acknowledged she did not
“completely” have her eyes on either Jackson or Kelly. Neither Jackson nor Kelly made any
threats. Kailyn heard Jackson yelling either once the shots were fired or seconds before the shots
when he saw the gun. Kelly videoed the altercation “just in case anything happened,” but Kailyn
did not recall when Kelly started recording other than it was by the time the shots were fired.
Latosha Fry, who worked at a nearby gas station, testified she went outside after hearing
gunshots and saw a man and woman jump out of a car at the intersection. The man was trying to
remove his shirt, while the woman slouched in the grass. They looked hurt, and Fry thought they
may have been shot. She dialed 911 to report a shooting. Fry did not observe the man or the
woman move from the median area near their car or throw anything the size and shape of a firearm.
Dallas Police Department (DPD) patrol officer Fernando Garcia responded to the scene to
find Kelly and Jackson in the median. Both had been shot and appeared to be in shock. Kelly was
able to describe the suspects and appellant’s vehicle to Garcia. Garcia secured the crime scene.
Officers obtained surveillance camera video from one gas station, but the video did not show the
altercation. Fifty or so people were watching from nearby gas stations when Garcia arrived.
Garcia acknowledged that interviewing all of those people would have made the investigation
more thorough, but nobody wanted to say anything when he went to the gas stations looking for
witnesses. Garcia testified the crime scene was in an area with high crime and gang activity.
DPD officer Charles Schultz interviewed both Kailyn and Kelly at the hospital where Kelly
and Jackson were treated. Kailyn, who was terrified, related that her family was exiting the
apartment complex when someone in a car behind them was upset they took too long at the
intersection. That car proceeded to the passenger side of Kelly’s car and fired about three shots
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into the car. Schultz subsequently spoke with Kelly, whose recollection of events was consistent
with Kailyn’s statement.
DPD detective Derek Gaffney testified to observing blood stains, cartridge cases, and
apparent bullet hole defects in the passenger side of Kelly’s Camry when he arrived at the scene.
He viewed video from a gas station surveillance camera, but it showed only the Camry pulling up
to the location and the suspect vehicle driving away. Gaffney received three or four Crime
Stoppers tips that led him to appellant as the suspected shooter. Thereafter, appellant was arrested,
and police recovered a firearm at his apartment.
On cross-examination, Gaffney acknowledged there were additional avenues of
investigation that would have been helpful and resulted in a more thorough investigation. For
example, Gaffney did not attempt to speak with anyone at the Homes of Persimmons apartments
or obtain video from surveillance cameras there. Gaffney also had not realized Ingram & Son, a
business near the shooting site, had a surveillance camera. Gaffney spoke with, but did not have
a recorded statement from, Jackson. Nor did Gaffney conduct a forensic check on Kelly’s
telephone despite the fact that she emailed the video to him more than twenty-four hours after the
shooting. Gaffney also had no witness statements from the fifty to seventy-five people on the
corner when he arrived at the crime scene, although he explained this was common because people
do not want to speak to the police. Finally, Gaffney’s notes did not contain an inventory search
form. He testified, however, that he would have been notified had anything been found during the
inventory search of Kelly’s car. Gaffney further testified that no investigation is completely
exhaustive, and there is an infinite number of things that can be done to investigate any case. He
believed the investigation was thorough and complete to the best of his abilities.
DPD crime scene analyst Rebecca Kerr processed the secured crime scene, which was
“very large.” She collected four fired cartridge cases, all of the same caliber and headstamp, next
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to and behind Kelly’s car closest to the passenger side and a fired bullet inside the car. Kerr found
Kelly’s telephone on the median. She returned the telephone to Kelly and did not know if anyone
else had handled it before she found it. She and her assistant both searched Kelly’s car and did
not locate a firearm. Had there been one at the offense location, Kerr believed they would have
found it.
DPD firearms examiner Charles Clow examined the cartridge cases and bullet retrieved
from the crime scene and the firearm recovered from appellant’s apartment. Clow tested the
firearm and concluded each of the fired cartridge cases and the bullet were fired from the firearm.
Steven Maize, the passenger in appellant’s car, testified they were stopped behind a car
exiting the Homes of Persimmon apartments when two or three cars pulled up behind them and
started honking. Appellant also honked, and they heard “a lot of cussing and stuff coming from
the front car.” When the cars turned, the front car slowed, and its driver rolled down the passenger
window and “started talking crazy and cussing.” Their cars did not hit, but “it was real close.”
The driver “went digging down” on the right side of his seat like he was reaching for something
and opened his door. Maize told appellant what the driver was doing, and appellant reached for
his gun. Until then, Maize had not known there was a gun in the car. The woman in the other car
was telling the driver to “leave it alone,” but he was angry and not responding to her. A shot went
off, and the woman screamed. Appellant shot back, and the driver rolled out of his car, tripping
and trying to go around behind the car. Maize thought the driver shot the woman, but he only
heard, and did not see, the shooting. After the shots were fired, appellant sped through the
intersection.
On Kelly’s telephone video recording, Maize heard the driver’s voice and a gun rack, but
it was not appellant racking his gun. Maize thought the driver would have shot them had appellant
not fired his gun. Later, he saw the incident reported on the news and knew police would have
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questions, but never thought to contact them because “they said it was a kid in the car with him”
and Maize thought he and appellant were “in the right.”
The trial court instructed the jury on self-defense, but the jury rejected the defense and
found appellant guilty of aggravated assault with a deadly weapon.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant argues the evidence is insufficient to support his aggravated
assault with a deadly weapon conviction because no rational jury could have found against him on
his claim of self-defense. Specifically, appellant contends the evidence shows he reasonably
believed deadly force was immediately necessary to protect himself from the use or attempted use
of unlawful deadly force.
A defendant commits the offense of aggravated assault with a deadly weapon if the
defendant commits assault as defined in penal code section 22.01 and uses or exhibits
a deadly weapon during the commission of the assault. See TEX. PEN. CODE ANN. §
22.02(a)(2). A defendant commits assault under section 22.01 if the defendant “intentionally,
knowingly, or recklessly causes bodily injury to another.” Id. § 22.01(a)(1). A firearm is a deadly
weapon. See id. § 1.07(a)(17)(A).
Under certain circumstances, self-defense may justify a defendant’s use of deadly force
against another. See id. § 9.32(a). “Deadly force” is “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.” Id. § 9.01(3). A defendant is justified in using force against another when and to the
degree the defendant reasonably believes the force is immediately necessary to protect the
defendant against the other’s use or attempted use of unlawful force. See id. § 9.31(a). A
defendant is justified in using deadly force against another (1) if the defendant would be justified
in using force and (2) when and to the degree the defendant reasonably believes the deadly force
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is immediately necessary to protect the defendant against the other’s use or attempted use of
unlawful deadly force. See id. § 9.32(a). A “reasonable belief” is a belief that would be held by
an ordinary and prudent person in the same circumstances as the defendant. See id. at §
1.07(a)(42).
The defendant has an initial burden to produce evidence supporting a justification defense.
Braughton v. State, No. PD-0907-17, 2018 WL 6626621, at *12 (Tex. Crim. App. Dec. 19, 2018).
If the defendant produces some evidence, the State has the burden of persuasion to disprove the
defense. Id.; Gaona v. State, 498 S.W.3d 706, 709 (Tex. App.—Dallas 2016, pet. ref’d). The
State need not produce evidence refuting the defense; it may meet its burden by proving its case
beyond a reasonable doubt. Braughton, 2018 WL 6626621, at *12. If the jury determines the
defendant is guilty, there is an implicit finding against the defensive theory. Id.For a challenge to the sufficiency of the evidence supporting a jury’s rejection of a
justification defense, we view all the evidence in the light most favorable to the verdict and
determine whether any rational factfinder would have found beyond a reasonable doubt (1) the
essential elements of the offense and (2) against the defendant on the defensive issue. Id. Self-
defense is a fact issue determined by the jury, which resolves any conflicts in the testimony and
determines the credibility of the witnesses and the weight to be given their testimony. Id. at *11–
12. If the record supports conflicting inferences, we defer to the jury’s determination, presuming
it resolved the conflicts in favor of its verdict. Id.Appellant does not argue the State failed to prove any element of the aggravated assault
offense, but contends he shot at Kelly’s car only because he “thought he was under attack and was
in fear of the use of unlawful deadly force against him[self].” In doing so, he cites the evidence
that the altercation took place in a high crime area full of gang activity and Maize’s testimony that
Jackson’s voice and Jackson racking a gun can be heard on the video recording. Appellant also
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complains the State did not do “a good job investigating this case” and could have done more to
establish “the verity of [Kelly’s] assertion that the encounter was unprovoked.”
The jury heard evidence supporting a claim of self-defense, including Maize’s testimony
that, as a result of Jackson “talking crazy and cussing” and “digging down” in his seat like he was
reaching for something, Maize thought Jackson would have shot them had appellant not fired his
weapon. The jury also heard evidence that police could have possibly obtained additional video
of the altercation and more witness statements, conducted a forensic analysis of Kelly’s telephone,
and shown the extent of the inventory search of Kelly’s car. But appellant ignores conflicting
evidence that supports the jury’s rejection of his justification defense. There was testimony that
neither Jackson nor Kelly owned or carried a firearm. No firearm was located during a search of
Kelly’s car or at the scene. Neither Jackson nor Kelly threatened appellant, and Maize first
brandished a firearm. Kelly was so concerned that she began recording the confrontation, and a
still shot from her video shows appellant aiming a firearm toward the passenger-side window of
her car. The fired cartridge cases and bullet located at the scene were fired from the gun recovered
from appellant’s apartment.
The jury, charged with resolving the conflicts in the evidence, was free to conclude
appellant was the aggressor, he was not responding to the use of deadly force, and his use of deadly
force was not immediately necessary to protect himself. See PEN. § 9.32(a). Considering all the
evidence in a light most favorable to the verdict, we conclude the jury could have rationally found
beyond a reasonable doubt that appellant, using a deadly weapon, intentionally, knowingly, or
recklessly caused bodily injury to Kelly and also could have rejected appellant’s claim of self-
defense. See PEN. § 22.02(a)(2); see also, e.g., Gaona, 498 S.W.3d at 710. Accordingly, we
overrule appellant’s first issue.
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CONSENT TO SEARCH
In his second issue, appellant contends the trial court erred in denying his motion to
suppress evidence of the firearm, along with two magazines, forty-four rounds of ammunition and
a black holster, recovered from appellant’s apartment without a search warrant. Appellant argues
Sherlanski Donaldson’s consent to the search was involuntary due to duress and coercion.
At a pretrial hearing on appellant’s motion, DPD Sergeant James Shirley testified he was
called to an apartment building where appellant had been apprehended in his vehicle. In the
parking lot, DPD officer James Gentry was speaking with Donaldson, who Shirley believed
appellant had identified as his wife. Gentry asked if Donaldson knew where appellant kept his
gun, and she responded that she did not know. Shirley asked Donaldson to keep a close eye on a
toddler he saw in the apartment in case appellant had stashed a gun there. Donaldson stopped
Shirley as he was leaving because appellant “had been doing something under her sink” and she
wanted to make sure nothing posed a danger. Shirley and Gentry entered the apartment, and
Donaldson pointed to a cabinet and directed Gentry to a panel over a hole in the wall under the
cabinet. Gentry moved the panel and found a shopping bag containing a gun, magazines, and
ammunition. Shirley did not ask to search the apartment or use coercive language to locate the
gun. Shirley and Gentry searched only the sink area and were in the apartment no more than five
minutes.
Donaldson testified she was in the apartment at the time of appellant’s arrest. An officer
came to the door and asked her to step outside and identify appellant. About ten minutes later, the
officer returned, asserting appellant said Donaldson knew where his gun was located. Donaldson
said she did not know what he was talking about, to which the officer responded that, if he came
back, “it’s not gonna be nice.” Donaldson said she did not have anything to hide, the officer replied
that he was not going to take her word for it, and she told him he could search if he wanted to do
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so. Donaldson testified she was scared and “under distress, duress.” However, she also testified
the officers were “calm” and “nice” and did not put their hands on her. She gave the officers
consent to search because she had nothing to hide. Donaldson denied ever flagging an officer
down, directing an officer to her kitchen sink, knowing the gun was under the kitchen sink, or that
an officer told her to take care due to the toddler. She also testified that the officers were in the
apartment approximately twenty-five minutes and searched more than just the kitchen.
At the close of the hearing, the trial court noted it found Donaldson’s story the more
believable. Even so, the trial court believed she gave consent and the officers’ actions did not
render the consent involuntary. The trial court denied the motion to suppress, but never entered
any written findings of fact.
Appellant re-urged his motion at trial, but the trial court admitted the items into evidence
during Shirley’s testimony. Shirley again testified that, when he arrived at the apartment building,
Gentry was speaking with Donaldson, who had come out of the apartment. A young woman and
a toddler were standing in the apartment doorway. Shirley asked Donaldson to keep an eye on the
toddler in case appellant had stashed a gun. When Shirley was driving away, Donaldson stopped
him because she was concerned about something in her apartment. Shirley called Gentry back to
the apartment, and Donaldson let them in and directed them to the kitchen sink. Inside the cabinet,
a wood panel covered a hole. Gentry removed the panel and found a shopping bag containing a
9-millimeter handgun, two magazines, a nylon holster, and a box of ammunition. Shirley believed
the location suggested appellant was attempting to conceal the weapon.
According to Gentry, who also testified at trial, appellant had asked for some medication
and paperwork from his apartment and said his wife could help. Donaldson answered when Gentry
knocked on the apartment door and retrieved the medication and paperwork. Gentry asked
Donaldson if appellant kept a firearm in the house or if she knew where one was, and she responded
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that she did not know. Gentry subsequently returned to the apartment with Shirley, and Donaldson
allowed them to enter. Inside, she led them into the kitchen and under the sink to a hole in the
wall containing a plastic bag with a firearm and ammunition. The officers would not have found
the hole had Donaldson not led them to it. They did not search anywhere else in the apartment,
and Gentry would not have entered the apartment if Donaldson had not let him enter.
A search conducted pursuant to a voluntary consent is an exception to the Fourth
Amendment’s general prohibition on warrantless searches. See Tucker v. State, 369 S.W.3d 179,
185 (Tex. Crim. App. 2012); Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App.
2011). Consent is not voluntary if it is the product of duress or coercion, actual or implied.
Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007). The State must show by clear
and convincing evidence that consent to search was given voluntarily. Id. Whether consent is
voluntary is a fact question determined by the totality of the circumstances from an objectively
reasonable person’s point of view. Tucker, 369 S.W.3d at 185; Gutierrez, 221 S.W.3d at 686. A
trial court may consider numerous factors relevant to voluntariness, including “physical
mistreatment, use of violence, threats, threats of violence, promises or inducements, deception or
trickery, and the physical and mental condition and capacity” of the person. Meekins, 340 S.W.3d
at 460, n.26 (quoting United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998)).
We review a trial court’s finding of voluntary consent for an abuse of discretion and must
accept the finding unless it is clearly erroneous. See Meekins, 340 S.W.3d at 460, 465. The
prevailing party “is afforded the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn from that evidence.” Id. at 460 (quoting State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008)). If there are no written findings explaining the factual
basis for the trial court’s decision, we imply findings of fact that support the trial court’s decision
as long as the evidence, viewed in the light most favorable to the trial court’s ruling, supports those
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findings. See Meekins, 340 S.W.3d at 460. When the parties re-litigate a suppression issue at trial
following a pretrial suppression hearing, we consider the evidence from both the pretrial hearing
and the trial. See Gutierrez, 221 S.W.3d at 687.
Appellant asserts, based on the totality of the circumstances, that Donaldson’s consent was
coerced or made under duress because she simply acquiesced to an officer’s insistence that she
knew where appellant’s gun was located and was told it would not “be nice” if the officer had to
return. Appellant further contends that, because the trial court expressly found Donaldson’s
account more credible, it erred in determining her consent was voluntary.
The trial court did not enter written findings of fact, so we must imply findings that support
its decision so long as the evidence, viewed in the light most favorable to its ruling, supports the
findings. See Meekins, 340 S.W.3d at 460. And, viewed in the light most favorable to the trial
court’s ruling, the evidence supports an implied finding that Donaldson’s consent was not the
product of coercion or duress and, thus, was voluntary. Considering the totality of the
circumstances surrounding the search from an objectively reasonable person’s point of view, the
trial court was free to find the officer’s statements did not constitute a threat, mistreatment, or force
sufficient to taint the voluntariness of Donaldson’s consent. Indeed, Donaldson testified she
consented to the search because she had nothing to hide. She further testified the officers were
“calm” and “nice” and did not put their hands on her. Accordingly, we conclude the trial court’s
ruling that Donaldson voluntarily consented to the search is not clearly erroneous and, thus, not an
abuse of discretion. We overrule appellant’s second issue.
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We affirm the trial court’s judgment.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180059F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILLIE DESHUN WADE, Appellant On Appeal from the 265th Judicial District
Court, Dallas County, Texas
No. 05-18-00059-CR V. Trial Court Cause No. F-1775793-R.
Opinion delivered by Justice Brown;
THE STATE OF TEXAS, Appellee Justices Schenck and Pedersen
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 27th day of February, 2019.
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