Davis, Irving Alvin

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-74,393

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IRVING ALVIN DAVIS, Appellant

v.

THE STATE OF TEXAS

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ON DIRECT APPEAL FROM EL PASO COUNTY

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   Keller, P.J., filed a dissenting opinion in which Keasler and Hervey, JJ., joined.

The Court reverses appellant's conviction on his tenth point of error, claiming that the trial court refused to allow appellant's punishment phase witnesses to testify that appellant did not constitute a future danger to society. Although I agree that the trial court should have permitted the testimony, I would hold that the trial court's errors in this regard were harmless. The Court does not really explain how appellant was harmed but simply concludes that the trial court's errors show "a degree of harm intolerable in a death-penalty case." But that conclusion, aside from being unsupported, makes little sense to me. The harm analysis is the same for error in death and non-death cases. ⁽¹⁾

I also think that the Court's analysis of appellant's ninth point of error, regarding the sufficiency of the evidence of future dangerousness, understates the strength of the evidence against appellant. Because the strength of the State's evidence of future dangerousness is relevant to a harm analysis with respect to the trial court's exclusion of evidence, I will first conduct a more complete sufficiency review before turning to a harm analysis under point of error ten.

1. Legal Sufficiency

In his ninth point of error, appellant claims the evidence is legally insufficient to support the jury's finding that he would pose a future danger to society. In reviewing the sufficiency of the evidence at punishment, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have concluded beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. ⁽²⁾ The circumstances of the crime alone, if severe enough, can support an affirmative finding to the future dangerousness special issue. ⁽³⁾

The circumstances of the offense showed a brutal crime. In addition to being raped, the victim suffered a severe brain injury from blunt force trauma, was strangled, and suffered a ruptured pulmonary artery. The medical examiner testified that any one of the latter three injuries was sufficient to cause death. Moreover, appellant's act of cutting off the victim's fingertips was barbarous, and showed forethought in covering up the crime. ⁽⁴⁾ Further, appellant was convicted of three charges of possession of stolen goods as an adult, was suspended from school as a juvenile for possession of marijuana and assault, and became violent on numerous occasions. Episodes of bad conduct included threatening his brother with a knife, possessing a knife at a nightclub, locking himself in a bedroom with a girl who was passed out from drinking too much, throwing a stool in a bar, and striking an acquaintance in the chest for no reason and pushing that acquaintance's head down while he tried to tie his shoe. This last incident occurred just hours before appellant murdered the victim. Finally, Dr. Edward Brown Gripon, a psychiatrist, testified that a hypothetical person with appellant's background would constitute a continuing threat to society. A rational trier of fact could have found that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society.

2. Lay Testimony

I would hold that the trial court's errors in preventing appellant's lay witnesses from specifically testifying, "Irving Davis would not present a future danger to society," were harmless.

In Potier v. State, we held that the improper exclusion of evidence is unconstitutional only if it significantly undermines the fundamental elements of the accused's defense. ⁽⁵⁾ When the accused is able to present the substance of his defense, the proper harm analysis is conducted under Texas Rule of Appellate Procedure 44.2(b), which states that any non-constitutional error that does not affect a substantial right must be disregarded. ⁽⁶⁾ An error affects the defendant's substantial rights for Rule 44.2(b) purposes when the error has "a substantial and injurious effect or influence in determining the jury's verdict." ⁽⁷⁾ Or stated another way, an error does not affect substantial rights if the appellate court "has fair assurance that the error did not influence the jury, or had but a slight effect." ⁽⁸⁾

Although appellant's witnesses were not allowed to give their ultimate opinion on whether appellant posed a future danger to society, they were able to give opinions as to his non-violent character and their observations supporting those opinions. Carolyn Brookshire was allowed to testify that she had known appellant for four to five years and that he was friends with her son, Corey. She related that appellant was very polite and not aggressive. Corey Brookshire testified that appellant was a family friend he had known for five years. He described appellant as kind-hearted and friendly. He stated further that appellant had never been violent toward him and was a gentleman towards women. Margaret Sanderson testified that appellant was a neighbor and friend of the family who was helpful and respectful. She also stated that the only time she had seen appellant violent was during a fight with his brother and that the fight was nothing more than normal sibling rivalry. Gail Pylant testified that she was the assistant principal where appellant attended high school. She related that appellant was very respectful and did not exhibit any violent tendencies. Michael Sanderson, Jr. testified that he and appellant had been friends and neighbors for eight years. Sanderson described appellant as timid, respectful of his elders, and non-violent. Clare Zawistowski testified that she was the choral director at the high school appellant attended and that appellant was a choir member for two years. She stated that during that time, appellant was respectful and got along with his peers. She went on to say that she never saw him become violent and that he treated women no differently than he treated men. Amanda Sanderson testified that she had known appellant for ten years and he was like a brother to her. She described appellant as protective and very "gentleman-like." She also stated that she had never seen appellant act aggressively or violently. Carol Davis, appellant's mother, testified that appellant was never violent and was very special to her. Bryan Stinson testified that appellant was his best friend and that he had never seen appellant act violently. Star Stinson testified that appellant was friends with her sons and that she had known him for seven or eight years. She related that appellant was helpful and had never been violent or aggressive in her presence. Defense counsel asked eight of these witnesses whether appellant's capital murder conviction changed their opinion of him. ⁽⁹⁾ Six gave an unqualified "no" answer, while two gave a qualified answer. ⁽¹⁰⁾

In the present case, the trial court's limitation of the testimony of appellant's lay witnesses did not rise to the level of unconstitutionality because it did not deprive the defendant of the substance of his defense. The testimony that was admitted did serve to present the defendant's position that he was not violent and therefore was not a future danger to society. The remaining question is whether the trial court's ruling affected the defendant's substantial rights. I would hold that it did not.

In one important respect, the present case is similar to Schutz v. State. ⁽¹¹⁾ In Schutz, the trial court erred in admitting the ultimate opinion of two expert witnesses regarding whether the complaining witness was manipulated into making or was fantasizing sexual assault allegations. ⁽¹²⁾ However, the expert witnesses had given permissible testimony concerning whether the complainant exhibited traits associated with manipulation or fantasy. ⁽¹³⁾ Under the circumstances, we found that the jury could have reasonably predicted what the experts' ultimate conclusions about the complainant's credibility would be, and therefore, "the jury was less likely to be improperly influenced by an explicit statement of what was already implicit in the testimony." ⁽¹⁴⁾ While the present case involves the improper exclusion of evidence rather than its improper admission, Schutz's reasoning is relevant here. Although the jury did not hear the ultimate conclusions of the defense lay witnesses regarding appellant's future dangerousness, the evidence it did hear lends itself to the conclusion that the witnesses did not believe appellant was a future danger. The witnesses did testify to appellant's non-violent nature, and the defense elicited from most of them that the conviction for capital murder did not change their opinion of him.

Moreover, there is very little likelihood that the jury would place much weight on the general opinion of family and friends that appellant did not constitute a future danger. Appellant's crime was an entirely unprovoked rape-murder of an acquaintance, and appellant showed foresight in concealing evidence by cutting off the victim's fingertips.

Also, on cross-examination, a few of these witnesses admitted to not knowing about significant activities engaged in by appellant. Carolyn Brookshire testified that she did not know what kind of activities appellant was engaged in when he was not around her. Corey Brookshire admitted that he was unaware of appellant's school disciplinary problems, his possession of marijuana, and his three misdemeanor convictions. Zawistowski acknowledged that she was unaware of appellant's school disciplinary problems and his conviction for possession of stolen goods.

And as discussed earlier in this opinion, appellant had committed a number of prior violent acts, including one that was possibly sexual in nature. I am confident the loss of the slight probative value the excluded testimony would have added to the defense did not have a substantial and injurious effect or influence on the jury's punishment verdict. Thus, I would overrule point of error ten and affirm the judgment of the trial court.

Filed: June 13, 2007

Do Not Publish  

1. Tex. R. App. P. 44.2.

2. Jackson v. Virginia, 443 U.S. 307 (1979); Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993).

3. Sonnier v. State, 913 S.W.2d 511, 517 (Tex. Crim. App. 1996).

4. See Williams v. State, 958 S.W.2d 186, 191 (Tex. Crim. App. 1997)(parking two streets down from victim's house to evade detection).

5. Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002).

6. Id.; Tex. R. App. P. 44.2(b).

7. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)(citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

8. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

9. This question was directed to Carolyn Brookshire, Corey Brookshire, Margaret Sanderson, Michael Sanderson, Jr., Claire Zawistowski, Amanda Sanderson, Bryan Stinson, and Star Stinson.

10. In response to the question, Zawistowski testified, "Not the Irving I knew, no." Star Stinson responded to the question by saying, "I dislike what has happened, but I care very much, though, for him." On the bill of exception, Zawistowski's response to the future dangerousness question was similarly qualified.

11. 63 S.W.3d 442 (Tex. Crim. App. 2001).

12. Id. at 443.

13. Id. at 445.

14. Id. at 446.