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Court of Appeals Fifth District of Texas at DallasJul 27, 2012
No. 05-11-00983-CR (Tex. App. Jul. 27, 2012)

No. 05-11-00983-CR



Affirmed; Opinion issued July 27, 2012

On Appeal from the 15th Judicial District Court

Grayson County, Texas

Trial Court Cause No. 059901


Before Justices Bridges, Francis, and Lang

Opinion By Justice Francis

David Glenn Boyd, Jr. appeals his conviction for the capital murder of Alan Frank Gravette. After the jury found appellant guilty, the trial court assessed punishment at life in prison without parole. In three issues, appellant claims the trial court abused its discretion in failing to suppress statements made during interrogation and in admitting certain evidence, and the evidence is insufficient to support his conviction. We affirm.

In his third issue, appellant claims the evidence is legally insufficient to support a conviction for capital murder because no evidence establishes appellant caused Gravette's death in the course of committing or attempting to commit robbery.

On a legal sufficiency challenge, we review the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We must give deference to the “trier of fact fairly to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and, therefore, is free to accept any or all evidence presented by either side. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury's determinations of credibility and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

A person commits the offense of capital murder if he intentionally commits the murder in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (West 2011). The indictment charged appellant with intentionally or knowingly causing Gravette's death by shooting him with a firearm or by hitting him with a firearm causing blunt force injury, or by a combination of both, and that the appellant did this while in the course of committing or attempting to commit the offense of robbery.

On May 21, 2010, Detective Riley Day of the Sherman Police Department responded to a call about a body in a car that had crashed near Rosedale Park. Day arrived on the scene around 9:20 p.m. and found Gravette's body in the car. He had been shot and severely beaten in the face. The officers blocked off the streets and canvassed the area but found no evidence of what had occurred. They recovered Gravette's wallet, containing $176 and Gravette's driver's license. Phone records showed that around 9:08 p.m., Gravette received a short phone call from Joanne Johnson, his girlfriend; however, Gravette's cell phone was not recovered. Officers noted the driver's side window of the car had been rolled down prior to the crash and Gravette's left front pocket had been partially turned inside out. Texas Ranger Brad Oliver helped process the evidence recovered from the crime scene. He said the pocket had distinct transfer blood on it, indicating some person other than Gravette had blood on his hands and had contact with the pocket. The medical examiner, Dr. Janice Townsend-Parchman, performed the autopsy and told the jury Gravette had been shot in the left cheek at close range, about one to three feet, and the bullet lodged in the base of his neck. The gunshot wound to Gravette's neck caused his death.

The morning after Gravette's death, Day received a call that a gun had been discovered near a creek in Rosedale Park. Officers recovered a Ruger semi-automatic .22 pistol, a pair of latex gloves, and two unfired .22 cartridges. Uyen Henson, DNA analyst for the Texas Department of Public Safety at Garland, confirmed blood found on the pistol and the gloves belonged to Gravette, and trace DNA evidence on the inside of the gloves was a match to appellant. Tests conducted by DPS firearms experts also confirmed the unfired .22 cartridges were from the Ruger. The cartridges matched those later found in an ammunition case in the trunk of a car owned by appellant's sister, Chaisty Moore.

Appellant's girlfriend at the time of trial, LaPorcha Hart, told the jury that on the night of May 21, 2010, she picked appellant up at a house near Rosedale Park and drove him to the Hilltop Village apartment complex, where she left him. Over the course of the next few days, appellant told her details of how he pistol whipped, robbed, and killed Gravette. Hart said Gravette owed appellant money, and “he just wanted his money.” Appellant did not tell her he killed Gravette in self defense.

Shanice Wimbish lived at the Hilltop Village Apartments and dated appellant around the time of Gravette's death. On the night of May 21, appellant told Wimbish he hit and shot Gravette, and had intended to rob Gravette of $700 as payback for money Gravette owed him. Christy Sommers also lived in the Hilltop Village apartments and overheard appellant's conversations on the night of Gravette's death. She confirmed Wimbish's testimony. Sommers also added that appellant said the robbery, set up by Johnson, had “ended up bad.”

Police obtained a search warrant to access appellant's text message records, which confirmed Hart's and Wimbish's testimony about the robbery. In addition, appellant had a text message conversation with a man known as Frank Lucas. Lucas contacted appellant to find out what happened with Gravette, and appellant told him it was “a lick” he had set up that “went sour,” so he beat and killed Gravette. Day testified that “a lick” is a term used as slang for a theft or robbery. Additionally, appellant told Lucas that he got a “quick 700” from Gravette and there were no witnesses because he had planned it “too smooth.”

In the course of their investigation, Day and Oliver interviewed appellant, already in custody for unrelated offenses. In a video-taped interview, appellant admitted to shooting Gravette but did not say he was trying to defend himself.

Appellant admitted to selling drugs for the past ten years. He told the jury he and Gravette knew each other because Gravette dated Johnson. Appellant knew Johnson from the drug business and sometimes referred to her as his aunt. Gravette also bought drugs from appellant and owed appellant $950 for previous buys. During those drug deals, Gravette and appellant usually drove to a parking lot in Rosedale Park where Gravette gave appellant money for drugs. Appellant would then go to a nearby house to buy drugs from his supplier.

On May 21, 2010, Johnson texted appellant, wanting to buy drugs. Around 8:00 p.m., appellant and his friend, Zxavier Crockett, walked to Johnson's apartment. Appellant went inside and talked to Johnson and Gravette for a few minutes. The three men drove to the Rosedale parking lot but his time, Gravette wanted to meet appellant's supplier. The two men were arguing about whether Gravette could meet the supplier when Gravette got a phone call. Appellant got out of the car and walked around to the driver's side where Gravette's window was rolled down.

Gravette got off the phone, and the two men continued arguing. All of a sudden, Gravette grabbed appellant and started to pull him into the car. Appellant felt the car moving, grabbed his gun and began hitting Gravette with both the barrel and the handle until Gravette let go. Appellant began to walk away, but realized the car was coming toward him. He jumped out of the way and fired two shots at the car. One of the shots struck Gravette.

Appellant said he carried a gun and wore gloves that night because he always did so during drug deals. Appellant claimed he was not concerned about Gravette owing him money and that, after the drug deal, he would have made back much of what Gravette owed him. Appellant admitted he had not told anyone before trial that he shot Gravette in self defense. Appellant said he did not see Sommers at the apartment complex after Gravette's murder. Appellant could not explain the meaning of the text messages sent from his phone saying he was “going to hit a lick,” and later that he “made a quick 700, shot a guy, pistol whipped him,” and thought “he [was] dead.” Likewise, he thought he was probably talking about some dope deal when he wrote the text “It was dark. I plan it too smooth. [K]new no eyewitnesses or nutn. Man, the nigga didn't make it I heard.”

This evidence shows Gravette owed appellant $950 from previous drug deals. On the night of May 21, 2010, appellant, Gravette and Crockett drove to Rosedale Park with the expectation of doing a drug deal. Upon arriving, appellant pulled a gun and shot Gravette at close range. Appellant told his friends about it that evening and over the following days. He also sent text messages about the “lick” and killing. When interviewed by police, he admitted killing Gravette but did not claim he did so in self defense. After reviewing the evidence in the light most favorable to the verdict, we conclude the evidence was sufficient for any rational jury to find appellant guilty of capital murder. We overrule appellant's third issue. In his first issue, appellant claims the trial court abused its discretion by failing to suppress his statements made during interrogation because he invoked his right to remain silent during interrogation. In addition, he contends he suffers from mental retardation which also rendered his statements involuntary.

When reviewing a ruling on a motion to suppress, we give great deference to the trial court's findings of historical facts. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003). We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id.

Before questioning a person in custody, law enforcement officials must inform him he has the right to remain silent and any statement he makes may be used against him in court. Dickerson v. United States, 530 U.S. 428, 438-439 (2000). If the individual in custody indicates in any manner, at any time before or during questioning, that he wishes to remain silent, the interrogation must stop.” Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). The suspect need not use any particular wording to invoke the right to remain silent. Ramos v. State, 245 S.W.3d 410, 418 (2008). But an interrogating officer need not stop his questioning unless the suspect's invocation of rights is clear and unambiguous; the officer is not required to clarify ambiguous remarks. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996).

An inquiry into the waiver of Miranda rights has two distinct dimensions. First, the waiver must be voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Colorado v. Spring, 479 U.S. 564, 573 (1987). Second, the waiver must be made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Id. When determining whether a confession is voluntary, we exam the totality of the circumstances surrounding the acquisition of the confession. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App.); Griffin v. State, 765 S.W.2d 422, 429 (Tex. Crim. App. 1989). Mental deficiency is a factor, but not alone determinative, in ascertaining the voluntariness of a confession and the waiver of the Fifth Amendment privilege against self-incrimination. Penry, 903 S.W.2d at 744.

At the hearing on the motion to suppress, Oliver said he and Day interviewed appellant about Gravette's murder. Day read appellant his rights and asked if he understood those rights. Appellant nodded. Day asked if he wished to waive those rights and talk to them. Appellant again nodded.

Appellant initially denied knowing Gravette or recognizing his car. The officers told appellant they found a gun and some latex gloves at the park. The bullet taken from Gravette's body matched the gun they found and the gloves bore Gravette's blood and appellant's DNA. They also said appellant's DNA was found inside Gravette's car.

About twenty-five minutes after the questioning began, the officers told appellant they executed a search warrant and got his sister's cell phone with his text messages to her, including one in which she offered to be his alibi for the time of Gravette's murder. Appellant asked if he could leave. Day continued asking about the murder but Oliver told appellant he could not leave because he was in custody. Oliver then said, “[W]hat are you asking us to - what are you asking?” Appellant replied, “What you mean what am I asking?” Oliver responded, “I don't know. What are you asking, [can you] leave? What are you asking?” Appellant did not respond to Oliver but began answering Day's questions. The interview continued for another forty-five minutes before appellant said he was sick of talking about it. When Oliver said they would like to continue talking with him, appellant said he could not talk about it anymore and to “do it tomorrow.” The officers stopped the interview.

Dr. Charles Keenan, a psychologist, met with appellant for about eight hours over three separate visits and gave him a battery of tests. According to Keenan, appellant had “extremely limited” verbal comprehension and demonstrated a “pervasive and significant deficit in his capacity to comprehend,” meaning he had difficulties understanding “what somebody is saying to him and what it might mean.” Appellant's IQ was about 61, placing him in the category of mild mental retardation. Although he watched the video tape of appellant's interview with Day and Oliver, he could not draw any conclusions about appellant's comprehension of his rights. Keenan's report concluded appellant was “marginally competent to stand trial.”

Appellant's probation officer, Tommy Parker, testified appellant was adjudicated as delinquent in 2005 when he was thirteen year old. His adjudication was modified three times. Each time he appeared, he was represented by counsel and was read his rights, including the right to counsel and the right to remain silent. Parker said he had no doubt appellant understood his rights at his original adjudication. When asked if appellant was referred to a facility for mental health issues, Parker said the only facility appellant was sent to was one for drug rehabilitation.

The record from the motion to suppress hearing also reflects appellant appeared before two justices of the peace for various offenses and was read his rights by them a minimum of seven times. Each justice said he read the rights to appellant as a member of a group and then called appellant up individually to go over his rights and make sure he understood them. According to both justices, appellant said he understood his rights. Each time, he also requested appointment of counsel.

Appellant argues the trial court erred in denying his motion to suppress because he invoked his right to remain silent by asking if he could leave the interrogation. We disagree. When appellant said he wanted to leave, he was asked to explain what he meant. Appellant did not say he did not want to talk or that he wanted an attorney. In fact, he continued answering questions for another forty-five minutes. When he finally said he could not talk about it anymore, the officers immediately terminated the interview. We conclude appellant's request to leave was not a clear and unambiguous invocation of his right to remain silent or to counsel.

Regarding his argument he lacked the mental capacity to understand his rights, the record shows appellant previously had been read his rights on at least seven different occasions and understood those rights. Nothing in the record suggests his comprehension had diminished since those hearings. The video taped recording of his interview with Oliver and Day shows appellant was advised of his statutory rights, he understood them, and voluntarily waived them before speaking with the officers. To the extent Dr. Keenan testified appellant had a low IQ and suffered “mild mental retardation,” this evidence alone does not render his statements inadmissable. The bulk of the evidence shows that appellant had the basic reasoning skills necessary to understand the warnings and waive his rights. We overrule appellant's first issue.

In his second issue, appellant claims the trial court abused its discretion by admitting cell phone text messages because the content of the messages constituted impermissible hearsay. On the first full day of trial, the State offered exhibit 79, a CD of the text messages from Moore's cell phone. Appellant responded, “We have no objection.” The following day, the State offered exhibit 87, cell phone records with paper printouts of text messages from appellant's cell phone. Appellant again responded, “No objections, Your Honor.” Both exhibit 79 and exhibit 87 were admitted.

Shortly thereafter, the State, while questioning a witness about exhibit 79, offered exhibits 88 through 92, poster boards with enlarged copies of text messages from exhibit 79. Appellant objected to the exhibits on hearsay grounds. The trial court overruled his objection, noting exhibits 79 and 87 had been admitted previously and, at that time, appellant said he had no objections. Because appellant affirmatively asserted he had no objection, he waived any error. See Tex. R. App. P. 33.1(a)(1); Estrada v. State, 313 S.W.3d 274, 302 (Tex. Crim. App. 2010). We overrule his second issue.

We affirm the trial court's judgment.



Do Not Publish

Tex. R. App. P. 47


Court of Appeals
Fifth District of Texas at Dallas JUDGMENT




No. 05-11-00983-CR

Appeal from the 15th Judicial District Court of Grayson County, Texas. (Tr.Ct.No. 059901).

Opinion delivered by Justice Francis, Justices Bridges and Lang participating.

Based on the Court's opinion of this date, we AFFIRM the trial court's judgment.

Judgment entered July 27, 2012.