Derrick Davis v. the State of Texas ( 2024 )

REVERSE and REMAND and Opinion Filed March 29, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01109-CR
DERRICK DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F21-18619
MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Nowell
Opinion by Justice Molberg
Derrick Davis appeals his conviction for stalking. After the jury found
appellant guilty of stalking and that he had committed a prior offense of stalking, it
assessed punishment at sixteen years’ confinement and a $5,000 fine. In ten issues
on appeal, appellant generally contends the jury charge was erroneous, the trial court
abused its discretion by failing to instruct the jury on the lesser-included offense of
harassment, the trial court abused its discretion by allowing the introduction of
evidence regarding appellant’s prior convictions for stalking and terroristic threat,
trial counsel was ineffective for failing to object to the jury charge, and there are
errors in the judgment. Because we agree with appellant the jury charge was
erroneous and the error was egregious, we reverse appellant’s conviction and remand
for further proceedings.
Factual and Procedural Background
Appellant does not challenge the sufficiency of the evidence to support his
conviction; therefore, we provide only a brief recitation of the facts. April Barker
began dating appellant after first meeting him and exchanging telephone numbers
on Christmas Eve. After a few weeks, Barker and appellant became intimate. The
relationship began to sour, and Barker ended the relationship. Appellant then
engaged in behavior that ultimately led to his indictment for stalking with a prior
offense for stalking.
Among other things, appellant took Barker’s telephone from her without her
consent while pushing and grabbing her hands, continued to come over to Barker’s
house although not invited, broke into her house when Barker was not home, came
over her fence into her back yard, used his car to block her vehicle, and smashed a
friend’s car window that was parked in Barker’s driveway. Appellant later got into
a fight with Barker’s male friend that ended with Barker shooting appellant.
Appellant also sent Barker numerous text and social media messages. Among the
messages, appellant told Barker she was “going to have her hands full,” the police
would not be able to save her, his objective was to ruin her, and he was going to burn
her house down. Appellant was properly indicted for stalking, and after hearing the
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evidence, a jury convicted appellant of stalking with a prior conviction for stalking
and assessed punishment at sixteen years’ confinement with a $5,000 fine.
Appellant was also indicted for burglary, but the jury did not convict appellant on
that charge. This appeal followed.
Jury Charge Error
In his first issue, appellant contends he was egregiously harmed when the trial
court omitted two elements of the offense of stalking from the jury charge.
According to appellant, a review of the record as a whole shows the flawed charge
significantly lessened the State’s burden of proof and did not require the jury to
decide “perhaps the most contested issue of the case,” whether Barker felt threatened
by appellant’s conduct. The State concedes the jury charge was erroneous, but
maintains appellant was not egregiously harmed. After reviewing the record, we
agree with appellant.
A. Applicable Law
Constitutional due process protects the accused from conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged. Francis v. Franklin, 471 U.S. 307, 313 (1985). Constitutional
due process also “guarantees criminal defendants ‘a meaningful opportunity to
present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting
California v. Trombetta, 467 U.S. 479, 485(1984)). These are “bedrock, axiomatic[,]
and elementary” constitutional principles that protect a defendant from—among
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other things—jury charge issues that would effectively relieve the State of meeting
its burden on every element of the charged offense. See Francis, 471 U.S. at 313.
We hold the State to such a high burden in criminal prosecutions because the
stakes—one’s life and liberty—are so great and because we as a society have made
a “fundamental value determination” that it is “far worse to convict an innocent man
than to let a guilty man go free.” Id. (quoting In re Winship, 397 U.S. 358, 372 (1970)
(Harlan, J., concurring)).
The purpose of the jury charge is to inform the jury of the applicable law and
guide them in its application to the case. Hutch v. State, 922 S.W.2d 166, 170 (Tex.
Crim. App. 1996). It is not the function of the charge merely to avoid misleading or
confusing the jury. Rather, the jury charge must lead and prevent confusion. Id.When, as here, the defendant does not object to jury-charge error at trial and
raises the issue for the first time on appeal, reversal is warranted only if the error
resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App.
2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Egregious
harm is a difficult standard to meet and should be determined on a case-by-case
basis. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Villarreal
v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Courts are required to
examine the relevant portions of the entire record to determine whether the defendant
suffered actual harm, as opposed to theoretical harm, as a result of the error.
Marshall, 479 S.W.3d at 843; Almanza, 686 S.W.2d at 174. Charge error is
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egregiously harmful if it “affects the very basis of the case, deprives the defendant
of a valuable right, or vitally affects a defensive theory.” Villarreal, 453 S.W.3d at
433; Almanza, 686 S.W.2d at 172. In examining the record to determine whether
charge error has resulted in egregious harm, we consider (1) the entirety of the
charge; (2) the state of the evidence, including the contested issues and weight of
probative evidence; (3) the arguments of counsel; and (4) any other relevant
information revealed by the trial record as a whole. Villarreal, 453 S.W.3d at 433;
Almanza, 686 S.W.2d at 171.
Section 42.072 of the Texas Penal Code provides a person commits the
offense of stalking if the person, on more than one occasion and pursuant to the same
scheme or course of conduct that is directed at a specific other person, knowingly
engages in conduct as defined by three elements set out in subsections (a)(1), (2),
and (3). See TEX. PENAL CODE 42.072. As relevant to this case, the first of these
elements provides the defendant’s conduct must be conduct that constitutes an
offense under section 42.07 (harassment), or that the defendant knows or reasonably
should have known the other person will regard as threatening bodily injury or death
or that an offense will be committed against that person’s property.1 See id.
42.072(a)(1).
1
Section 42.072 also makes it an offense for certain conduct that is directed toward a member
of the complainant’s family or household or an individual with whom the complainant has a dating
relationship. Because the alleged conduct in this case focused on Barker and her property, we
focus on those aspects of the penal code.
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The second element provides the defendant’s conduct must be conduct that
causes the complainant to be placed in fear of bodily injury or death, be placed in
fear that an offense will be committed against the complainant’s property, or feel
harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. See id.
42.072(a)(2). Finally, the third element requires that the defendant’s conduct would
cause a reasonable person to fear bodily injury or death, fear an offense will be
committed against the person’s property, or to feel harassed, annoyed, alarmed,
abused, tormented, embarrassed, or offended. See id. 42.072(a)(3).
B. Discussion
In this case, the entire abstract portion of the jury charge provided as follows:
Our law provides that a person commits the offense of
Stalking if the person, on more than one occasion and
pursuant to the same scheme or course of conduct that is
directed specifically at another person, knowingly engages
in conduct that would cause a reasonable person to: Fear
bodily injury or death for himself or herself; or fear that an
offense will be committed against the person’s property;
or feel harassed, annoyed, alarmed, abused, tormented,
embarrassed, or offended.
You are instructed that different types of conduct, if
engaged in on more than one occasion, may constitute
conduct that is engaged in pursuant to the same scheme or
course of conduct.
In contrast to the indictment and the statute, the abstract portion of the charge sets
forth only the element found in section 42.072(a)(3) of the penal code. The charge
does not inform the jury of the first and second elements required to convict
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appellant. That is, it did not inform the jury the offense of stalking also requires a
finding that appellant knew or should have known Barker would regard the conduct
as threatening. Nor did the charge inform the jury the offense of stalking required
appellant’s conduct to cause Barker to be fearful of death or bodily injury, fearful
that an offense would be committed against her property, or to feel harassed,
annoyed, alarmed, tormented, embarrassed, or offended.
Similarly, the application paragraph instructed the jury to find appellant guilty
of stalking if it found beyond a reasonable doubt appellant “knowingly engaged in
conduct . . . [that] would cause a reasonable person to fear bodily injury or death for
himself or herself; fear that an offense will be committed against the person’s
property; or feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or
offended.” The jury was not asked to determine whether appellant knew or should
have known his conduct would cause a reasonable person to be in fear or that Barker
was in fact afraid as a result of appellant’s conduct. Because the charge omitted two
elements necessary to convict appellant for stalking, it did not fully instruct the jury
on the law applicable to the case and did not fully guide the jury regarding the
application of the law to this case. Thus, appellant asserts, the State concedes, and
we conclude the jury charge is erroneous. Having done so, we must next determine
if the error was egregious.
In examining the record to determine whether charge error has resulted in
egregious harm, we consider (1) the entirety of the charge; (2) the state of the
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evidence, including the contested issues and weight of probative evidence; (3) the
arguments of counsel; and (4) any other relevant information revealed by the trial
record as a whole. Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. We
consider each of these factors in turn.
1. Entirety of the Charge
Here, the jury charge omitted two essential elements of the crime of stalking
in the abstract portion of the charge. Thus, the charge did not comprehensively or
accurately detail the applicable law. Nor did the application portion of the charge
require the jury to find beyond a reasonable doubt all of the elements necessary to
support a conviction for stalking. This is not an instance where jury charge error
was corrected or ameliorated in another portion of the charge. Because the charge
allowed the jury to convict appellant without clearly requiring the jury to find
appellant knew or should have known Barker would regard appellant’s conduct as
threatening or that appellant’s conduct actually caused Barker to be fearful, we
conclude this factor weighs heavily in favor of egregious harm.
2. State of the Evidence
We next consider the state of the evidence, including contested issues and the
weight of the probative evidence. See Almanza, 686 S.W.2d at 171. This is not a
case where the evidence overwhelmingly supported one party’s theory of the case
and there was scant evidence of the other view. Rather, the record shows the issue
of whether Barker was placed in fear and sought police assistance after appellant
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began stalking her, or whether she made a false accusation and was calling the police
in an attempt to retaliate or because she wanted appellant out of the house without
having to go through eviction proceedings, was a central question at trial.
Further, Barker’s credibility was strongly contested at trial and the jury heard
evidence that although Barker reported appellant’s conduct to the police on several
occasions, it was not until she shot appellant and a new detective was assigned to the
case that any action was taken against appellant. The original detective assigned to
the case did not think Barker was credible because, among other things, she had sex
with appellant after she had ended the relationship, there was a video recording
showing Barker and appellant speaking amicably in her backyard during the time in
question, and because she was potentially living with appellant at the time of the
offense. The jury also heard evidence that Barker tried to obtain a protective order
against appellant but was unable to do so because she did not meet the screening
criteria. Finally, the fact the jury acquitted appellant for the offense of burglary
suggests the jury had concerns regarding Barker’s credibility.
Significantly, the charge error in this case related directly to the contested
issue of Barker’s credibility. Under the charge in this case, not every juror had to
be persuaded that Barker was placed in fear because of appellant’s conduct. The
charge allowed for conviction without that determination. Consequently, we
conclude this factor weighs heavily in favor of egregious harm.
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3. Arguments of Counsel
We next look to whether any statements made by the State, appellant, or the
trial court during trial exacerbated or ameliorated error in the charge. Arrington v.
State, 451 S.W.3d 834, 844 (Tex. Crim. App. 2015). Although both the State and
appellant argued about appellant’s and Barker’s states of mind, neither appellant nor
the State made curative arguments regarding the missing elements. Nothing in the
arguments alerted the jury to their obligation to make findings regarding the missing
elements. On the other hand, nothing in the arguments emphasized or compounded
the error either. Consequently, this factor does not weigh for or against egregious
harm.
4. Other Relevant Record Information
Finally, we review the record for other relevant information that may require
consideration. Here, beginning with voir dire, the jury was not properly instructed
regarding the elements necessary for a conviction for stalking. During voir dire, the
State told the potential jurors that a person commits the offense of stalking if “the
person on one or more occasion or pursuant to the same scheme or course of conduct
that is directed specifically at another person knowingly engages in conduct that
constitutes an offense under section 42.07, which is essentially harassment, or the
actor knows or reasonably should know that the other person will regard as
threatening bodily injury or death for a member of the other person’s family or
household or for an individual with home [sic] the other person has a dating
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relationship.” Similar to the jury charge, this statement at voir dire provided an
incomplete statement of the elements of stalking. And, like the jury charge, it
omitted any requirement of a finding that Barker was placed in fear by appellant’s
conduct.
Further, we note the jury rejected Barker’s version of events regarding the
charge of burglary, finding appellant was not guilty of that offense. We recognize
this was a distinct inquiry from whether appellant committed the offense of stalking.
However, it indicates the jury did not find Barker’s version of events completely
credible. Given the circumstances of this case, we cannot conclude it is highly likely
the jury would have convicted appellant of stalking if the jury had been clearly
instructed on the necessity of finding Barker was placed in fear by appellant’s
conduct. We conclude this factor also weighs in favor of egregious harm.
C. Conclusion
After considering the various Almanza factors, we conclude the error in the
jury charge deprived appellant of his right to due process and affected his main
defensive theory by relieving the State of its high burden of proving, beyond a
reasonable doubt, that Barker was placed in fear by appellant’s conduct. Thus, we
hold appellant was egregiously harmed and we sustain appellant’s first issue.
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Having done so, we need not address appellant’s remaining issues. See TEX.
R. APP. P. 47.1. We reverse the trial court’s judgment and remand for further
proceedings.
/Ken Molberg/
KEN MOLBERG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
221109F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DERRICK DAVIS, Appellant On Appeal from the 291st Judicial
District Court, Dallas County, Texas
No. 05-22-01109-CR V. Trial Court Cause No. F21-18619.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Molberg. Justices Pedersen, III and
Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.
Judgment entered March 29, 2024
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