                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-07-00206-CR

WILLIE EDWARD DAVIS,
                                                          Appellant
       v.

THE STATE OF TEXAS,
                                                          Appellee


                              From the 85th District Court
                                  Brazos County, Texas
                            Trial Court No. 06-01284-CRF-85


                                       OPINION


      Appellant Willie Davis (Davis) was charged by indictment with the capital

murder of Tommy Andrade. The indictment alleged that Davis shot Andrade while in

the course of committing or attempting to commit the offenses of burglary of a

habitation and aggravated robbery. The State‖s case against Davis was premised on his

being criminally responsible under the law of parties (as part of a conspiracy to commit

the felony offenses of burglary of a habitation and aggravated robbery), and the jury

was charged on that theory. See TEX. PEN. CODE ANN. 7.02(b) (Vernon 2003). The jury

found Davis guilty, and he received an automatic life sentence because the State did not
seek the death penalty. Raising forty-eight issues, Davis appeals. We will affirm.

                                            Recusal

        Davis‖s first three issues concern recusal of the trial judge. In August 2008, we

held that the presiding judge of the administrative judicial district erred in holding the

motion to recuse to be insufficient and abated the appeal and remanded the case to the

trial court for further proceedings. Davis v. State, No. 10-07-00206-CR, 2008 WL 3845284,

*1-2 (Tex. App.—Waco Aug. 13, 2008, order) (not designated for publication). After a

hearing on Davis‖s recusal motion (which asserted four grounds for recusal) had been

held and the motion had been denied by the Honorable Ed Magre, we abated the case a

second time in March 2009 for the resolution of additional issues, and in July 2009, the

case was reinstated and amended briefs were filed by both parties.

        The fourth ground in the recusal motion was that the trial judge had a prejudice

against Davis because Davis‖s trial counsel had cooperated with the Commission on

Judicial Conduct by providing an affidavit to the Commission at the request of Ron

Bennett, a Commission investigator. The affidavit, which was attached to the recusal

motion, concerned the trial counsel‖s experiences and views relating to the trial judge‖s

courtroom demeanor and conduct.

        In anticipation of the recusal hearing, Davis sought to cause a subpoena to be

issued to Bennett to testify at the recusal hearing. The Commission filed a motion for

protective order seeking to prevent the subpoena from being issued and Davis from

obtaining any Commission records relating to the fourth ground. A telephone hearing

on the motion for protective order occurred, and Judge Magre granted the motion for

Davis v. State                                                                       Page 2
protective order.   Davis was not present and did not participate in the telephone

hearing. His first issue complains that he was denied his constitutional and statutory

rights to be present for that hearing. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10;

TEX. CODE CRIM. PROC. ANN. art. 33.03 (Vernon 2006); Faretta v. California, 422 U.S. 806,

820 n.15, 95 S.Ct. 2525, 2533 n.15, 45 L.Ed.2d 562 (1975) (“It is now accepted, for

example, that an accused has a right to be present at all stages of the trial where his

absence might frustrate the fairness of the proceedings”).

        A defendant‖s absence will not result in reversal unless there is a showing of

actual injury or a showing of facts from which injury might reasonably be inferred.

Mares v. State, 571 S.W.2d 303, 307 (Tex. Crim. App. 1978); see also Carrion v. State, 926

S.W.2d 625, 629 (Tex. App.—Eastland 1996, pet. ref‖d); Aguero v. State, 818 S.W.2d 128,

133 (Tex. App.—San Antonio 1991, pet. ref‖d); West v. State, 752 S.W.2d 593, 597 (Tex.

App.—Tyler 1987, pet. ref‖d). The record of the telephone hearing shows that Davis‖s

appellate counsel did not request Davis‖s presence for that hearing. Nor was there an

objection to Davis‖s absence. Finally, Davis makes no showing or argument that he was

harmed. Assuming there was error in Davis‖s absence, Davis was not injured, and the

assumed error is harmless beyond a reasonable doubt. See Carrion, 926 S.W.2d at 629;

Aguero, 818 S.W.2d at 133; West, 752 S.W.2d at 597. We overrule the first issue.

        The second issue complains of Judge Magre‖s grant of the Commission‖s motion

for protective order, which asserted that the information sought from Bennett was

constitutionally and statutorily confidential and privileged. See TEX. CONST. art. V, § 1-

a(10); TEX. GOV‖T CODE ANN. § 33.032(a) (Vernon 2004). We review that ruling for abuse

Davis v. State                                                                       Page 3
of discretion. See General Tire, Inc. v. Kepple, 970 S.W.2d 520, 525-26 (Tex. 1998); Roberts

v. West, 123 S.W.3d 436, 440 (Tex. App.—San Antonio 2003, pet. denied); see also Drew v.

State, 743 S.W.2d 207, 225 n.11 (Tex. Crim. App. 1987).

        Again, the recusal motion‖s fourth ground sought recusal of the trial judge

because Davis‖s trial counsel had provided an affidavit to the Commission at Bennett‖s

request; that affidavit was attached to the recusal motion. The trial judge, who declined

to recuse himself, was aware of the affidavit by its filing with the motion.

               [T]he invocation of a privilege, statutory or otherwise, will not
        prevent the disclosure of information when confronted with the
        fundamental principles of due process of law in the fair administration of
        justice. A presumption in favor of upholding the privilege against
        disclosure does exist. However, the presumption is rebutted by the
        demonstration of the need and relevancy of the requested information.

Tex. Dep’t Corrections v. Dalehite, 623 S.W.2d 420, 423 (Tex. Crim. App. 1981) (emphasis

added).

        Given the allegation in the recusal motion‖s fourth ground, Davis has not

demonstrated the need and relevancy of Bennett‖s testimony or the Commission‖s

records relating to the trial judge. The only document relevant to the fourth ground is

trial counsel‖s affidavit, and because it was attached to the recusal motion, the parties,

the trial judge, and Judge Magre had it or access to it or awareness of it. Accordingly,

we cannot say that Judge Magre abused his discretion in granting the motion for

protective order. Issue two is overruled.

        For the same reason we overrule issue three, which complains that Judge Magre

abused his discretion in failing to conduct an in camera review of the Commission‖s


Davis v. State                                                                        Page 4
records, which Davis‖s appellate counsel did not request in the telephone hearing.

Instead, a request was made that the Commission seal the records and send them to this

court of appeals, and Judge Magre approved that request. The Commission sent us the

sealed records. The proper procedure would have been for Judge Magre—not this

court—to conduct an in camera review of the Commission records if such a review were

warranted.

        Because Davis has not demonstrated—before Judge Magre or in this appeal—the

need and relevancy of the Commission‖s records (other than trial counsel‖s affidavit,

which all had or were aware of) relating to the trial judge, Judge Magre did not err in

failing to conduct an in camera review of the Commission‖s records.

                                            Voir Dire

        In his fourth issue, Davis complains that the trial court abused its discretion by

imposing a time limit on voir dire that prevented trial counsel from asking proper

questions of prospective jurors. Davis was initially given ninety minutes for voir dire,

and the record reflects that his counsel took around two hours. When the trial court

refused to allow further voir dire, Davis‖s trial counsel stated three topics for which

they sought additional voir dire time to cover: the impact of drugs on panel members;

the panel‖s view on testimony by witnesses who had made deals with the State; and the

panel‖s knowledge of any of the State‖s local witnesses. Trial counsel did not put on the

record any questions that would have been asked.

        When a party complains that the trial court erred in not allowing additional time

for voir dire, a two-part test applies: (1) whether the complaining party attempted to

Davis v. State                                                                      Page 5
prolong the voir dire; and (2) whether the questions the party was not permitted to ask

were proper voir dire questions. See McCarter v. State, 837 S.W.2d 117, 120 (Tex. Crim.

App. 1992; S.D.G. v. State, 936 S.W.2d 371, 380 (Tex. App.—Houston [14th Dist.] 1996,

writ denied). To preserve a complaint on the manner of voir dire, appellant must point

to a question the trial court did not allow the panel to answer. S.D.G., 936 S.W.2d at 380

(citing Caldwell v. State, 818 S.W.2d 790, 794 (Tex. Crim. App. 1991), overruled on other

grounds by Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995)); see also Cordova

v. State, 296 S.W.3d 302, 307 (Tex. App.—Amarillo 2009, pet. denied). Providing the

trial court with topics or issues that counsel needs additional time to cover does not

preserve the complaint for appellate review. S.D.G., 936 S.W.2d at 380; see also Cordova,

296 S.W.3d at 307. Because Davis‖s trial counsel did not present questions that he can

point to on appeal, the complaint has not been preserved and issue four is overruled.

                                 Sufficiency of the Evidence

         Issues five, seven, and nine assert, respectively, that the evidence is legally

insufficient to prove that Davis entered into a conspiracy to commit the robbery or

burglary of Andrade, that capital murder should have been anticipated by Davis as a

result of carrying out the conspiracy, and that the shooting of Andrade was in the

furtherance of the unlawful purpose of the conspiracy. Issues six, eight, and ten assert

that the evidence is factually insufficient on those same three elements.

Standard of Review

        When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the

Davis v. State                                                                       Page 6
evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to

determine if the finding of the trier of fact is rational by viewing all of the evidence

admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d

418, 422 (Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in

favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

                 In reviewing the sufficiency of the evidence, we should look at
        “events occurring before, during and after the commission of the offense
        and may rely on actions of the defendant which show an understanding
        and common design to do the prohibited act.” Cordova v. State, 698 S.W.2d
        107, 111 (Tex. Crim. App. 1985). Each fact need not point directly and
        independently to the guilt of the appellant, as long as the cumulative force
        of all the incriminating circumstances is sufficient to support the
        conviction. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)
        (“[i]t is not necessary that every fact point directly and independently to
        the defendant‖s guilt; it is enough if the conclusion is warranted by the
        combined and cumulative force of all the incriminating circumstances.”);
        Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Alexander v.
        State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). Circumstantial evidence
        is as probative as direct evidence in establishing the guilt of an actor, and
        circumstantial evidence alone can be sufficient to establish guilt. Guevara,
        152 S.W.3d at 49. On appeal, the same standard of review is used for both
        circumstantial and direct evidence cases. Id.

        ...

               Under the Jackson test, we permit juries to draw multiple reasonable
        inferences as long as each inference is supported by the evidence
        presented at trial. However, juries are not permitted to come to
        conclusions based on mere speculation or factually unsupported
        inferences or presumptions.

        ...

                 [C]ourts of appeals should adhere to the Jackson standard and

Davis v. State                                                                          Page 7
        determine whether the necessary inferences are reasonable based upon
        the combined and cumulative force of all the evidence when viewed in the
        light most favorable to the verdict.

Hooper v. State, 214 S.W.3d 9, 13, 15-17 (Tex. Crim. App. 2007).

        The Court of Criminal Appeals recently overruled Clewis v. State, 922 S.W.2d 126

(Tex. Crim. App. 1996) and factual-sufficiency review. See Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010). The court held that the Jackson v. Virginia legal-

sufficiency standard is the only standard a reviewing court should apply in determining

the sufficiency of the evidence. Id. Because we cannot review the evidence for factual

sufficiency, we overrule issues six, eight, and ten, and we will proceed to a legal-

sufficiency review.

Conspiracy to commit the robbery or burglary of Andrade

        The State presented evidence that Davis and his two sons, Chad Davis1 and Trey

Davis,2 operated a major drug-trafficking operation. Chad was its leader, and Davis

was the bookkeeper and also acted as a courier, using a tour bus and a fishing boat to

transport drugs. Andrade was a fledgling rap-music producer and drug dealer. The

evidence showed that Chad and Trey recruited three men, Boris Mogilevich, Bradley

Padrick, and Jesse Mancuso, to recover $100,000 that Andrade had allegedly stolen from

Chad during a recent drug deal in Houston.



        1  We affirmed Chad Davis‖s conviction for the capital murder of Andrade in 2008. See Davis v.
State, 276 S.W.3d 491, 502 (Tex. App.—Waco 2008, pet. ref‖d). Like his father, Chad was convicted on the
State‖s conspiracy theory. See id. at 494-97.

        2 Trey Davis received plea-bargained convictions for the same underlying robbery and burglary,

agreeing to two consecutive twenty-year prison sentences. See Davis v. State, 205 S.W.3d 606, 606 (Tex.
App.—Waco 2006, no pet.).

Davis v. State                                                                                   Page 8
        On the night in question (August 7, 2003), with Chad and Trey in a separate

vehicle parked a half-mile away, the three assailants went to Andrade‖s home, kicked in

the door, and began asking him for the stolen money. They told Andrade that he was

coming with them, and as Andrade was putting his shoes on, he was able to grab a gun

and began shooting, hitting both Mogilevich and Padrick and killing Mancuso. After

Mogilevich was shot, he shot and killed Andrade. Mogilevich and Padrick then fled the

scene, leaving Mancuso behind. Chad and Trey took them to a motel, and Davis

arrived soon thereafter in the tour bus. After treating Mogilevich and Padrick, Davis

drove them to Atlanta in the tour bus. Information on Mancuso‖s body eventually led

police to the Davises.

        Issue five asserts that the evidence is legally insufficient to prove that Davis

entered into a conspiracy to commit the robbery or burglary of Andrade. He argues

that the evidence shows that he only had knowledge of the conspiracy, that there is no

direct evidence he was a part of the conspiracy, and that any inferences that he was part

of the conspiracy are irrational or unreasonable.

               A person commits capital murder if he intentionally causes the
        death of an individual in the course of committing or attempting to
        commit robbery. TEX. PEN. CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (Vernon
        2003 & Supp. 2008). If, in an attempt to carry out a conspiracy to commit
        one felony, another felony is committed by one of the conspirators, all
        conspirators are guilty of the felony actually committed, though having no
        intent to commit it, if the offense was committed in furtherance of the
        unlawful purpose and was one that should have been anticipated as a
        result of carrying out the conspiracy. Id. § 7.02(b) (Vernon 2003); see
        Hooper v. State, 255 S.W.3d 262, 265-66 (Tex. App.—Waco 2008, no pet.).
        Each conspirator is guilty of the resulting offense, even if he did not
        intend to commit it or intend that it be committed. Ruiz v. State, 579
        S.W.2d 206, 209 (Tex. Crim. App. 1979); see also Fuller v. State, 827 S.W.2d

Davis v. State                                                                         Page 9
        919, 932 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 922; Love v. State, 199
        S.W.3d 447, 453 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (“a
        defendant in a capital murder case may be convicted solely on a
        conspiracy theory of culpability contained in the jury charge”); Hanson v.
        State, 55 S.W.3d 681, 691 (Tex. App.—Austin 2001, pet ref‖d).

Davis v. State, 276 S.W.3d 491, 494-95 (Tex. App.—Waco 2008, pet. ref‖d); see also Ervin v.

State, --- S.W.3d ---, ---, 2010 WL 3212095, at *6-7 (Tex. App.—Houston [1st Dist.] Aug.

11, 2010, pet. ref‖d); Love v. State, 199 S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.]

2006, pet. ref―d).

        An agreement constituting a conspiracy may be inferred from acts of the parties.

TEX. PEN. CODE ANN. § 15.02(a) (Vernon 2003). Direct evidence of a formal agreement to

conspire is not required.      Turner v. State, 720 S.W.2d 161, 164-65 (Tex. App.—San

Antonio 1986, pet. ref‖d).

              In determining whether the accused participated as a party, the
        court may look to events occurring before, during, and after the
        commission of the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex.
        Crim. App. 1994). …

               Since an agreement between parties to act together in common
        design can seldom be proven by words, the State often must rely on the
        actions of the parties, shown by direct or circumstantial evidence, to
        establish an understanding or a common design to commit the offense.
        Miller v. State, 83 S.W.3d 308, 314 (Tex. App.—Austin 2002, pet ref―d); see
        Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977) (circumstantial
        evidence sufficient to show guilt as party). The agreement, if any, must be
        made before or contemporaneous with the criminal event, but in
        determining whether one has participated in an offense, the court may
        examine the events occurring before, during, and after the commission of
        the offense. Beier v. State, 687 S.W.2d 2, 3–4 (Tex. Crim. App. 1985); Miller,
        83 S.W.3d at 314.

Ervin, --- S.W.3d at ---, 2010 WL 3212095, at *7.

          The State asserts that the following evidence is legally sufficient to show that

Davis v. State                                                                            Page 10
Davis entered into the conspiracy to burglarize and rob Andrade:

        Davis, his sons, and the others in the conspiracy were drug dealers who dealt in
        large amounts of cash and carried guns. Guns were found in Davis‖s home and
        in vehicles at his home.

        Davis was integrally involved in the drug dealing as the bookkeeper, keeping
        track of drug transactions and paying bills (including for many cell phones), and
        he transported drugs in the tour bus and while pulling the boat on a trailer,
        including to Houston, Atlanta, and Florida.

        After Andrade had robbed Chad in Houston, Davis arrived soon thereafter and
        talked with Chad.

        In the week before the invasion of Andrade‖s home, Padrick and Mogilevich
        were at Davis‖s house, staying in the tour bus the entire week. Mancuso‖s
        mother testified that he called her the day before and said he was staying on an
        “incredible bus.”

        Trey bought an old car from Travis Crockett for the three assailants to use for
        going to Andrade‖s home, and it was paid for and kept at Davis‖s house.

        The day before the murder, Crockett was at Davis‖s house for a couple of hours
        and saw an array of guns in Trey‖s bedroom. Trey and Chad were in the room,
        and Crockett overhead them planning the visit to Andrade‖s home. One of them
        said, “If guns off, they go off.”

        After Mogilevich and Padrick were taken to a motel, Davis showed up in the
        tour bus with first aid items, bandages, pain medication, and clean clothes.
        Davis helped treat Mogilevich and Padrick, and all of the bloody clothes and
        motel bedding were put in a trash bag that was put on the bus. Davis drove
        Mogilevich and Padrick nonstop to Atlanta.

        Once in Atlanta, Davis met T.J. Parent, an Atlanta-area drug dealer, at a Wal-
        Mart parking lot, and Parent arranged for hotel rooms for Mogilevich and
        Padrick. He also got his mother and an associate‖s mother, both of whom were
        nurses, to come to the hotel to treat Mogilevich and Padrick.

        Parent‖s mother, Sandra Albably, was upset when she saw Mogilevich and
        Padrick, refused to treat them, and said they needed to go to a hospital or she
        would call 9-1-1. Parent then drove her to the bus, where she met Davis. She
        complained to Davis for driving them to Atlanta and not getting them medical
        help, and he replied, “I told my boys this would happen. I was just waiting for

Davis v. State                                                                    Page 11
        that call. I knew this was going to happen.”

        An analysis of the cell phone bills showed that Davis called Chad from Atlanta
        forty-three times.

        A law-enforcement officer investigating Andrade‖s murder asked Davis where
        the tour bus was on August 7, and Davis said it was at his home, but a Louisiana
        state trooper had spotted it near Rustin, heading east.

        Davis got a message to Kim Weathers to tell Marte Fox, Chad‖s girlfriend, to
        keep a low profile if she did not want to be involved in the trial.

        While the Sheriff‖s department was executing a search warrant at Davis‖s home
        and a person was being questioned, a deputy saw Davis put his finger to his lips
        and shake his head side to side, indicating to the person to keep quiet.

        Viewing the evidence in the light most favorable to verdict, a rational jury could

have found that Davis, acting as a conspirator under the law of parties, entered into the

conspiracy to rob and burglarize Andrade. While there was no direct evidence, the jury

could reasonably infer from the above evidence that Davis entered into the conspiracy.

We overrule issue five.

Murder should have been anticipated as a result of carrying out the conspiracy

        Issue seven asserts that the evidence is legally insufficient to prove that capital

murder should have been anticipated by Davis as a result of carrying out the

conspiracy.      He argues that there was no direct evidence that he knew the three

assailants took weapons with them to Andrade‖s home, and he primarily relies on

Tippitt v. State, 41 S.W.3d 316 (Tex. App.—Fort Worth 2001, no pet.), which the Court of

Criminal Appeals has disapproved. See Hooper, 214 S.W.3d at 15.

              [T]he State does not have to prove that the accused intended to
        shoot or kill the victim, or intended that the victim be shot, as long as the
        evidence established he conspired to commit the robbery and that he

Davis v. State                                                                          Page 12
        “should have anticipated the murder as a result of carrying out the
        conspiracy to commit the robbery. Moore v. State, 24 S.W.3d 444, 447 (Tex.
        App.—Texarkana 2000, pet. ref‖d).

                Evidence that a defendant knew his co-conspirators might use guns
        in the course of the robbery can be sufficient to demonstrate that the
        defendant should have anticipated the possibility of murder occurring
        during the course of the robbery. See Hooper, 255 S.W.3d at 266; see also
        Love, 199 S.W.3d at 453 (holding evidence was sufficient to show murder
        was committed in attempt to carry out robbery and should have been
        anticipated by appellant when appellant helped plan robbery and knew
        that firearms would be used).

Davis, 276 S.W.3d at 495; see also Love, 199 S.W.3d at 453 n.1.

        The State points again to the guns-and-drugs environment that Davis was a part

of, that the gunmen stayed on the tour bus at Davis‖s home, and that the guns were

passed out there. Most importantly, the State points out Davis‖s statement to Albably

after she had chastised him for not getting medical care for the gunshot victims: “I told

my boys this would happen. I was just waiting for that call. I knew this was going to

happen.” In the context of the conversation, “this” can only be a reference to the

shootings, and it is direct evidence that Davis knew guns were being taken to

Andrade‖s home.

        Viewing the evidence in the light most favorable to the verdict, a rational jury

could have found that that capital murder should have been anticipated by Davis as a

result of carrying out the conspiracy. We overrule issue seven.

Shooting of Andrade was in the furtherance of the unlawful purpose of the conspiracy

        Issue nine asserts that the evidence is legally insufficient to prove that the

shooting of Andrade was in the furtherance of the unlawful purpose of the conspiracy.



Davis v. State                                                                       Page 13
Davis contends that the evidence shows only a conspiracy to rob and burglarize

Andrade, not murder him, which merely begs the “furtherance” question.

        The State reiterates the evidence pertaining to the gun culture within drug

trafficking, the Davises‖ guns, and the statement by one of Davis‖s sons, “If guns off,

they go off.” And again, the jury heard Albably testify that Davis told her, “I told my

boys this would happen. … I knew this was going to happen.” Viewing the evidence

in the light most favorable to the verdict, a rational jury could have found that the

shooting of Andrade was in the furtherance of the unlawful purpose of the conspiracy.

We overrule issue nine.

                                Extraneous-Offense Evidence

        Issues eleven through twenty-two complain that the trial court abused its

discretion in admitting twelve items of extraneous-offense evidence. The State contends

that the extraneous-offense evidence was properly admitted as same-transaction

contextual evidence.

        “Whether extraneous offense evidence has relevance apart from character

conformity, as required by Rule 404(b), is a question for the trial court.” De La Paz v.

State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009) (quoting Moses v. State, 105 S.W.3d

622, 627 (Tex. Crim. App. 2003)). We review a trial court‖s ruling on the admissibility of

extraneous offenses under an abuse-of-discretion standard. Id. As long as the trial

court‖s ruling is within the “zone of reasonable disagreement,” it will be upheld. Id.

        Under Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts is not

admissible “to prove the character of a person in order to show action in conformity

Davis v. State                                                                     Page 14
therewith.” TEX. R. EVID. 404(b). However, it may be admissible for other purposes,

“such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” De La Paz, 279 S.W.3d at 342-43. The rule excludes

only that evidence that is offered solely for the purpose of proving bad character and

conduct in conformity with that character. Id. at 343. In addition, evidence admissible

under rule 404(b) may nonetheless be excluded if the trial judge determines that its

probative value is substantially outweighed by the danger of unfair prejudice. TEX. R.

EVID. 403; Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999).

        An exception to rule 404(b) exists in that extraneous offenses may be admissible

as same-transaction contextual evidence when “several crimes are intermixed, or

blended with one another, or connected so that they form an indivisible criminal

transaction.” Prible v. State, 175 S.W.3d 724, 731-32 (Tex. Crim. App. 2005) (quoting

Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). This type of evidence results

when an extraneous matter is so intertwined with the State‖s proof of the charged crime

that avoiding reference to it would make the State‖s case difficult to understand or

incomplete. Id. at 732. Same-transaction contextual evidence is “admissible to show the

context in which the criminal act occurred.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000). “[E]vents do not occur in a vacuum, and the jury has a right to hear

what occurred immediately prior to and subsequent to the commission of that act so

that it may realistically evaluate the evidence.” Id.

               There are two types of contextual evidence: (1) evidence of other
        offenses connected with the primary offense, referred to as same
        transaction contextual evidence; and (2) general background evidence,

Davis v. State                                                                     Page 15
        referred to as background contextual evidence. Mayes v. State, 816 S.W.2d
        79, 86-87 (Tex. Crim. App. 1991). Same transaction contextual evidence is
        admissible as an exception under Rule 404(b) where such evidence is
        necessary to the jury‖s understanding of the charged offense. See Wyatt, 23
        S.W.3d at 25; Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993).
        Extraneous conduct is considered to be same transaction contextual
        evidence when the charged offense would make little or no sense without
        also bringing in the same transaction evidence. Rogers, 853 S.W.2d at 33.
        Such evidence provides the jury information essential to understanding
        the context and circumstances of events that are blended or interwoven.
        Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).

               The purpose of admitting same transaction contextual evidence is
        not to show that the extraneous charged offenses are part of a common
        scheme or that the charged offense was committed in an identical
        signature manner. Jones v. State, 962 S.W.2d 158, 166 (Tex. App.—Fort
        Worth 1998, no pet.). Nor is the purpose to show that appellant
        committed the charged offense merely because he also committed the
        extraneous offense. Id. Rather, the purpose of admitting extraneous
        evidence as same transaction contextual evidence is to put the instant
        offense in context. Id.; Mayes, 816 S.W.2d at 86-87; Camacho, 864 S.W.2d at
        532.

Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism‖d).

        The evidence that Davis complains about can be divided into two categories:

guns and cash, and drug transactions and drug use.

Guns and Cash

        The evidence and issues are:

                 Chad‖s semi-automatic rifle (issue 11) and a magazine loaded with five
                 rounds (issue 12), seized at Chad‖s home when he was arrested.

                 Numerous photographs of money and guns seized at Chad‖s home (issue
                 16).

                 Trey‖s assault rifle, found in his bedroom in Davis‖s home (issue 17), and
                 an invoice and receipt for that rifle (issue 18), showing that it was
                 purchased the day before the offense.


Davis v. State                                                                        Page 16
                 Travis Crockett‖s testimony about Trey‖s lifestyle with multiple vehicles
                 (issue 21).

                 Cash and ammunition found on the tour bus (issue 22).

        Much evidence was presented that drug dealers are concerned about being

robbed of their drugs and money, and they thus possess and carry weapons. The State

asserts that the motive for the conspiracy was to retrieve money from Andrade and to

retaliate for Andrade‖s $100,000 robbery of Chad. We agree that, to put the conspiracy

offense in context, evidence that the Davises were drug dealers who dealt in large

amounts of cash and with guns to protect their drugs and cash was necessary. Because

this category of evidence was same-transaction contextual evidence and background

contextual evidence, the trial court did not abuse its discretion in admitting this

evidence. Issues 11, 12, 16, 17, 18, 21, and 22 are overruled.

Drug Transactions and Drug Use

        The evidence and issues are:

                 Jason Bishop‖s testimony about two prior drug transactions in Georgia in
                 which Davis, Chad, and Trey were selling drugs to Bishop and then to
                 Bishop‖s friend Mike, and the drugs had been transported to Georgia
                 hidden in the boat that was pulled by a vehicle driven by Davis, who
                 helped take the drugs out of the boat and give them to Bishop (issue 13).

                 Leonard Luna‖s testimony about his large-volume drug business with
                 Chad several years before the offense (issue 14).

                 Chad‖s calendar showing drug transactions, including transactions with
                 Davis (issue 15).

                 Marte Fox‖s testimony about the Houston drug deal where Andrade
                 robbed Chad and Davis showed up soon thereafter (issue 19).

                 Leslie Leshe‖s testimony about smoking marijuana with Trey at Davis‖s

Davis v. State                                                                     Page 17
                 home and about marijuana kept in the freezer there, along with Davis‖s
                 cigarettes (issue 20).

        The State sought to show that Davis was an active participant with Chad and

Trey in a large-volume and dangerous drug business—and not just an after-the-fact bus

driver—to explain why Davis would have entered into the conspiracy with his sons to

rob Andrade. The trial court did not abuse its discretion in admitting this evidence; it

too was same-transaction contextual evidence and background contextual evidence that

put in context the conspiracy offense that Davis was charged with. Issues 13, 14, 15, 19,

and 20 are overruled.

        Davis alleges in issues twenty-three through thirty-four that the same twelve

items of evidence should have been excluded because its prejudicial effect outweighed

its probative value. See TEX. R. EVID. 403.

               In its seminal decision in Montgomery v. State, the Court of Criminal
        Appeals identified four non-exclusive factors to be considered in
        determining whether evidence should be excluded under Rule 403. Those
        factors were: (1) the probative value of the evidence; (2) the potential to
        impress the jury in some irrational, yet indelible, way; (3) the time needed
        to develop the evidence; and, (4) the proponent‖s need for the evidence.

              More recently, the Court has looked to the language of Rule 403
        and restated the pertinent factors.

                  [A] trial court, when undertaking a Rule 403 analysis, must
           balance (1) the inherent probative force of the proffered item of
           evidence along with (2) the proponent‖s need for that evidence
           against (3) any tendency of the evidence to suggest decision on an
           improper basis, (4) any tendency of the evidence to confuse or
           distract the jury from the main issues, (5) any tendency of the
           evidence to be given undue weight by a jury that has not been
           equipped to evaluate the probative force of the evidence, and (6) the
           likelihood that presentation of the evidence will consume an
           inordinate amount of time or merely repeat evidence already

Davis v. State                                                                         Page 18
           admitted.     Of course, these factors may well blend together in
           practice.

        Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
        (footnotes omitted).

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref‖d) (footnote and

citations omitted).

        “Rule 403 ―envisions exclusion of [relevant] evidence only when there is a ―clear

disparity between the degree of prejudice of the offered evidence and its probative

value.‖” Id. at 322-23 (quoting Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App.

2009)). In this case, given the State‖s need for circumstantial evidence to prove that

Davis entered into the conspiracy to rob Andrade, and after considering the above

factors, we cannot say that there is a “clear disparity” between the danger of unfair

prejudice posed by this evidence and its probative value. Thus, the trial court did not

abuse its discretion by overruling Davis‖s rule 403 objections.                 We overrule issues

twenty-three through thirty-four.

Limiting Instruction

        Issues thirty-five through forty-five complain of the trial court‖s refusal to give a

limiting instruction when the complained-of (and other3) extraneous-offense evidence

was offered.

                Rule 105 of the Texas Rules of Evidence requires a limiting
        instruction, upon proper request, when evidence is admitted for one
        purpose but is not admissible for another purpose. TEX. R. EVID. 105(a); see


       3 A Louisiana state trooper testified that he had spotted the tour bus near Rustin, heading east,

and had run a license check on it. Davis requested a limiting instruction regarding Davis‖s transporting
Mogilevich and Padrick to Atlanta on the tour bus.

Davis v. State                                                                                  Page 19
        also Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996). Because
        evidence of extraneous acts is admissible for some purposes but
        inadmissible for others, on request, the accused is entitled to a mid-trial
        limiting instruction addressing extraneous offense evidence. Rankin, 974
        S.W.2d at 711-12.

               The trial court is not required, however, to give a limiting
        instruction for same transaction contextual evidence. See Castaldo v. State,
        78 S.W.3d 345, 352 (Tex. Crim. App. 2002); Wesbrook, 29 S.W.3d at 114-15;
        Camacho, 864 S.W.2d at 535.

King v. State, 189 S.W.3d 347, 356-57 (Tex. App.—Fort Worth 2006, no pet.); see Glockzin

v. State, 220 S.W.3d 140, 151 (Tex. App.—Waco 2007, pet. ref‖d). Because the evidence at

issue is same-transaction contextual evidence, the trial court did not abuse its discretion

in refusing to give limiting instructions. We overrule issues thirty-five through forty-

five.

                                       Jury Charge

        Issue forty-six complains that the charge‖s application paragraph erroneously

instructed the jury that it could convict Davis of capital murder if it found beyond a

reasonable doubt that the shooting—not capital murder— should have been anticipated

by Davis as a result of the carrying out of the conspiracy. See TEX. PEN. CODE ANN. §

7.02(b). Thus, Davis alleges, the State‖s burden of proof was lessened. In analyzing a

jury-charge issue, we first decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743

(Tex. Crim. App. 2005).

        The abstract portion of the charge stated:

              Therefore, before you can find a person guilty of capital murder as
        a conspirator, you must find beyond a reasonable doubt that the capital
        murder was an offense committed in furtherance of the unlawful purpose
        and that should have been anticipated by the defendant as a result of

Davis v. State                                                                         Page 20
        carrying out the conspiracy.

        The indictment alleged that Davis committed capital murder by shooting

Andrade while in the course of committing or attempting to commit the offenses of

burglary of a habitation and aggravated robbery. The State argues that because the

indictment alleged the shooting, it was necessary for the application paragraph, which

applied the law to the facts, to refer to the shooting that Davis should have anticipated.

We agree and find no error. Issue forty-six is overruled.

                                       Jury Argument

        In issue forty-seven, Davis alleges that the trial court erred by overruling his

objection that the prosecutor commented on Davis‖s failure to testify at trial. Jury

argument is limited to: (1) summation of the evidence; (2) reasonable deduction from

the evidence; (3) answers to argument of opposing counsel; or (4) a plea for law

enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Sandoval v. State,

52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref‖d). A comment on an

accused‖s failure to testify violates the accused‖s state and federal constitutional

privileges against self-incrimination. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim.

App. 2001). To determine whether a party‖s argument properly falls within one of these

categories, we must consider the argument in light of the entire record. Sandoval, 52

S.W.3d at 857.

        Davis‖s defensive theory, which his attorney argued, was that, after the

shootings, he agreed to drive the injured assailants to Georgia, and that he had not

entered into the conspiracy to rob Andrade beforehand. In rebuttal, the State argued in

Davis v. State                                                                     Page 21
part that Davis did more than drive the injured to Georgia and mentioned how, before

trial, Davis got a message to Marte Fox to keep a low profile. The prosecutor then

added: “That‖s someone who‖s afraid to respond to 12 good citizens with the truth.”

The trial court overruled Davis‖s objection that this statement commented on his failure

to testify.

              It is well settled that a prosecutor‖s comment amounts to a
        comment on a defendant‖s failure to testify only if the prosecutor
        manifestly intends the comment to be, or the comment is of such character
        that a typical jury would naturally and necessarily take it to be, a
        comment on the defendant‖s failure to testify. United States v. Jefferson, 258
        F.3d 405, 414 (5th Cir. 2001); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.
        Crim. App. 2001). It is not sufficient that the comment might be construed
        as an implied or indirect allusion to the defendant‖s failure to testify.
        Bustamante, 48 S.W.3d at 765.

Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004).

        We first find that the statement could only be construed as an implied or indirect

allusion to the defendant‖s failure to testify, which is insufficient to serve as a comment

on Davis‖s failure to testify. Further, the prosecutor‖s statement was, as a response to

the defense argument that all Davis did was drive the bus to Georgia, not improper

because the statement was linked to Davis‖s attempt to silence a witness who would

testify about matters occurring before the shooting. See Albiar v. State, 739 S.W.2d 360,

362 (Tex. Crim. App. 1987) (“If the defense counsel invites argument, as is the case here,

then it is appropriate for the State to respond.”). Finally, because the statement related

to Davis‖s attempt to possibly keep Fox from testifying, it was a reasonable deduction

from the evidence. The trial court did not err in overruling Davis‖s objection, and we

overrule issue forty-seven.

Davis v. State                                                                           Page 22
                             Disclosure of Exculpatory Evidence

        In issue forty-eight, his final issue, Davis complains that the trial court abused its

discretion in denying his motion for new trial based on the State‖s alleged tardy

disclosure of possible exculpatory evidence.               On the last day of testimony, the

prosecution told defense counsel that Mogilevich, who had recently been captured, had

stated that, after he had been shot by Andrade (including a graze wound to his head),

he had blood on his face, raised his pistol, and shot Andrade.4 Davis asserts that

Mogilevich‖s statement is exculpatory because it raises a question on his intent to kill.

        Davis initially requested a continuance but then withdrew that request and

sought a mistrial. The State argues that by abandoning the continuance request, Davis

has procedurally defaulted his claim that the State belatedly disclosed exculpatory

evidence. We agree. See Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999).

        Having overruled all of Davis‖s issues, we affirm the trial court‖s judgment.



                                                        REX D. DAVIS
                                                        Justice

Before Justice Davis and
       Judge Gallagher5



        4In voir dire, one of Davis‖s attorneys referenced that Mogilevich had been shot in the head and
had blood on his face, and based on that, a lesser-included murder charge would be requested.
Moreover, several witnesses testified that Mogilevich‖s face was bloody, and that fact came out in the
testimony in Chad‖s trial, which defense counsel was aware of.

        5 The Honorable George Gallagher, Judge of the 396th District Court, sitting by assignment of the

Chief Justice of the Supreme Court of Texas pursuant to section 74.003(a) of the Government Code. See
TEX. GOV‖T CODE ANN. § 74.003(a) (Vernon 2005).


Davis v. State                                                                                   Page 23
Affirmed
Opinion delivered and filed February 2, 2011
Do Not Publish
[CRPM]




         The Honorable Felipe Reyna, a former justice on this court, was on the panel and present for
argument, but having left office on December 31, 2010, he did not participate in this decision. See TEX. R.
APP. P. 41.1(c).

Davis v. State                                                                                     Page 24
