Affirmed and Memorandum Opinion filed March 17, 2020.




                                      In The

                Fourteenth Court of Appeals
                              NO. 14-18-00597-CR

                       XAVIER DAVENPORT, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1462345

                     MEMORANDUM OPINION

      Appellant Xavier Davenport appeals his conviction for murder. A jury found
appellant guilty and assessed his punishment at 35 years in prison. In two issues,
appellant contends that the trial court erred in (1) excluding from evidence a
videotape that appellant contends showed the complainant’s prior violent conduct,
and (2) refusing to charge the jury on self-defense. We affirm.
                                    Background

      Appellant was charged with the murder of Christopher Joseph, who died
from a gunshot wound to the back of his head. Joseph’s death occurred at an
apartment where he and appellant both lived.

      Harris County Sheriff’s Deputy Adriel Hinojosa testified that on March 22,
2015, he responded to a report of a shooting at an apartment complex. When he
arrived at the scene, he ordered the occupants of the apartment to come out with
their hands up. When the apartment door opened, Hinojosa saw appellant hugging
a woman who was crying hysterically. Hinojosa later determined that the woman
was appellant’s mother. Appellant had blood on his hands and clothes. Hinojosa
handcuffed appellant and placed him in the back of a patrol car. Appellant stated
multiple times that a demon was trying to get him. After placing appellant’s
mother in the back of another patrol car, Hinojosa discovered Joseph’s body in the
dining area of the apartment.

      Rhonda Golden, appellant’s mother, testified that on March 22, 2015, she
was approached by two men, one of whom she recognized as a friend of appellant
and Joseph. Without telling her why, the men took her to appellant’s apartment and
then left. In her trial testimony, she stated that when she entered the apartment, she
saw Joseph lying on the floor, having apparently been shot. She further said that
appellant was standing by the wall, but she did not remember if she saw a gun at
that point. She called 911, and a recording of the call was played for the jury.
During the call, Golden can be heard saying that someone was dead at the scene,
and a male voice, purportedly appellant’s, can be heard saying “she’s lying.” Later
in the call, Golden said “he shot him.” Golden additionally testified that appellant
said something about demons and devils and she felt like there was something
wrong with him. She said that she hugged her son when the police arrived because

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she was afraid the police would do something to him.

      Golden said that she did not remember much about that day and explained
that she suffers from mental illness and memory loss. The prosecutor therefore
asked her about portions of a statement she made to police officers on March 24,
2015, just two days after the shooting. In the statement, Golden told officers that
one of the men who took her to appellant’s apartment was named Vic or Rick and
that she went to the apartment because appellant was “tripping.” When she arrived,
according to her statement, Golden saw appellant with a firearm in his hand
standing over Joseph. Joseph was still alive at that time. Golden begged appellant
not to shoot, but the gun went off. Joseph was face down, not saying anything.
Appellant then hugged Golden and started talking about demons and devils.

      Harris County Sheriff’s Deputy Jesus Ortiz testified that he works in the
department’s crime scene unit. Ortiz noted that a Smith & Wesson .40 caliber
pistol recovered a couple of feet from Joseph’s body had blood splattered on the
barrel and a spent casing still in the chamber. He explained that the casing could
have remained in the gun if the weapon had been fired at point-blank range or if
the shooter was holding the gun loosely when it fired. Ortiz further said that a
rusty, neglected .38 special revolver was found in a couch at the apartment and a
9mm semi-automatic pistol was found inside a jacket pocket on another couch.
Neither of those weapons appeared to have been recently fired. Other witnesses
confirmed that the jacket in question belonged to Joseph. Ortiz took photographs of
the scene, and he interpreted one photo as suggesting someone had left through a
bedroom window because the photograph showed that items had been knocked
outside the window and the window glass and locks were still intact, indicating no
forced entry. Ortiz additionally acknowledged that he could not tell that the
shooting of Joseph was a “justifiable homicide” from the pattern of blood spatter,

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the position of Joseph’s body, or the position of the gun.

      Tammy Lyons, a firearms examiner with the Harris County Institute of
Forensic Sciences, testified that a bullet fragment recovered from Joseph’s head
could have been fired from the Smith & Wesson pistol but could not have been
fired from the other two pistols. She further stated that a spent casing found at the
scene was fired in the Smith & Wesson.

      Mary Eakin, a DNA analyst with the Harris County Institute of Forensic
Sciences, testified about the testing of swab samples from the Smith & Wesson
pistol. Three swabs were tested from the pistol trigger, grip, and barrel. Eakin
stated that no conclusions could be reached about the source of DNA found on the
trigger. Joseph was excluded as a possible contributor to DNA found on the grip.
But there was a high probability that Joseph was the source of DNA found on the
barrel.

      LaQuetha Davis, Joseph’s mother, testified that Joseph stayed at her
apartment the night before he was killed. She also testified that he commonly
carried a gun in his jacket pocket.

      Harris County Sheriff’s Deputy Michael Jones was the lead homicide
investigator in this case. He testified that no firearms were found on Joseph and
photographs of appellant taken shortly after the shooting did not show any injuries.
Jones opined that appellant did not appear to have been in an altercation. Jones
further testified that Victor Webb’s cell phone was found near the window where
someone apparently exited.

      During trial, defense counsel sought to introduce into evidence a video
recording that showed Joseph and others listening and dancing to music in the
apartment where the shooting occurred. In the video, Joseph and others are holding


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handguns, pointing them, and pretending to shoot. Also, in the video, Joseph
appears in the jacket that was found at the scene of the shooting. Appellant does
not appear in the video. The trial court excluded the video from evidence.

                           Exclusion of Video Recording

      As stated, in his first issue, appellant contends that the trial court erred in
excluding from evidence the video showing Joseph and others dancing and
handling firearms. Appellant contends that the video shows Joseph’s “prior violent
acts and possession of a firearm” and therefore was admissible as evidence tending
to show that Joseph was the first aggressor in the confrontation that led to his death
and appellant acted in self-defense.

      Standards of Review. We review a trial court’s decision to admit or exclude
evidence under an abuse of discretion standard and will not reverse the decision if
it is within the zone of reasonable disagreement. Tillman v. State, 354 S.W.3d 425,
435 (Tex. Crim. App. 2011). We review the trial court’s decision in light of what
was before the judge at the time the ruling was made and uphold the decision if it
is reasonably supported by the record and correct under any theory of law
applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.
2002).

      Evidence of specific conduct “is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in accordance with
the character.” Tex. R. Evid. 404(b)(1). However, a criminal defendant may
introduce evidence of a victim’s prior specific violent acts for a non-character
purpose, such as the victim’s specific intent, motive for an attack on the defendant,
or hostility. Ex parte Miller, 330 S.W.3d 610, 620 (Tex. Crim. App. 2009); see
also Tex. R. Evid. 404(b)(2). In the present case, appellant sought to introduce
evidence of specific conduct to demonstrate Joseph was the first aggressor. See
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Allen v. State, 473 S.W.3d 426, 446 (Tex. App.–Houston [14th Dist.] 2015, pet.
dism’d) (“[A] victim’s prior acts of violence . . . may be admissible to clarify the
issue of first aggressor if the proffered act explains the victim’s ambiguously
aggressive conduct.”). In such cases, “[a]s long as the proffered violent acts
explain the outward aggressive conduct of the deceased at the time of the killing,
and in a manner other than demonstrating character conformity only, prior specific
acts of violence may be admitted even though those acts were not directed against
the defendant.” Torres v. State, 71 S.W.3d 758, 762 (Tex. Crim. App. 2002). “The
proper predicate for the specific violent prior act by the deceased is some act of
aggression that tends to raise the issue of self-defense, which the violent act may
then help clarify.” Torres v. State, 117 S.W.3d 891, 895 (Tex. Crim. App. 2003)
(emphasis in the original).

      Analysis. Even assuming the video at issue in this case can be described as
showing violent behavior—a conclusion we need not and do not reach in this
opinion—appellant failed to provide the proper predicate for its admission because
there was no evidence of an ambiguously or clearly aggressive action by Joseph to
raise the issue of self-defense. See id.; Allen, 473 S.W.3d at 446.

      Appellant makes the following arguments in support of his contention that
the evidence raised the self-defense issue:

          • There must have been a violent altercation between appellant and
            Joseph immediately prior to the shooting because someone (probably
            Victor Webb) left through the apartment’s bedroom window rather
            than walking to the front door through the area where Joseph was
            shot.

          • DNA recovered from the handgun suggests there may have been a
            struggle over the weapon, and Deputy Ortiz stated he could not tell
            that the shooting was justifiable from the pattern of blood spatter, the
            position of Joseph’s body, or the position of the gun.

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         • Joseph’s mother said that her son commonly carried a handgun and
           came to her house the night before his death.

         • It is clear from the audio recording of the 911 call that appellant was
           distraught after the shooting, and appellant can be heard on the
           recording saying that his mother was lying.

         • Appellant told his mother and Deputy Hinojosa that a demon was
           trying to get him.
We will address each assertion in turn.

      Although there is evidence that someone, perhaps Webb, left the apartment
through a window, there is no direct evidence as to why the person did so. Even if
we assume that someone left through the window because of events occurring in
the other room, there is nothing in the record to suggest that Joseph was acting
aggressively or violently in any confrontation. Joseph was shot through the back of
his head, and appellant’s mother told police that she saw appellant shoot Joseph
while standing above him. We otherwise have no information regarding what
transpired between them before the shooting.

      The fact that Joseph’s DNA was found on the barrel of the handgun can be
explained by the fact that Joseph’s blood was on that part of the gun. Deputy Ortiz
described the blood on the gun as “blood splatter” from Joseph’s wound. There is
no suggestion in the record that Joseph’s DNA was on the gun due to a struggle
over the weapon. Moreover, Ortiz’s statement that he could not tell that the
shooting was justifiable in no way suggests appellant acted in self-defense.

      The mere fact that a person is known to regularly carry a gun is not evidence
that the person acted aggressively or violently in a particular incident. See, e.g.,
Gutierrez v. State, 764 S.W.2d 796, 798 (Tex. Crim. App. 1989); Cadoree v. State,
810 S.W.2d 786, 791 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).
Likewise, the fact that Joseph may have come to his mother’s house does not
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indicate that Joseph was behaving aggressively or violently.

      That appellant sounded distressed on the 911 call and said that his mother
was lying during the call in no way suggests Joseph had acted aggressively or
violently. Appellant may have been distraught, he may have been in denial, or he
might not have wanted his mother to tell authorities what he had done. Appellant
does not suggest that he referenced Joseph’s conduct in any way on the phone call.

      Lastly, appellant’s statements that a demon was trying to get him do not
suggest that Joseph behaved aggressively or violently. Appellant was likely
speaking metaphorically, or he may have been experiencing trauma due to what
had just occurred; regardless, there is no indication that appellant meant that
Joseph was the “demon” trying to get him.

      In short, none of the evidence appellant points to suggests that Joseph acted
aggressively or violently in the incident leading to his death. Accordingly,
appellant has not demonstrated that he laid the required predicate for admission of
the video of prior conduct into evidence. See Torres, 117 S.W.3d at 895. We
overrule appellant’s first issue.

                          Jury Instruction on Self-Defense

      In his second issue, appellant contends that the trial court erred in refusing to
instruct the jury on self-defense. A defendant is entitled to a self-defense jury
instruction when the issue is raised by the evidence, “whether that evidence is
strong or weak, unimpeached or contradicted, and regardless of what the trial court
may think about the credibility of the defense.” Gamino v. State, 537 S.W.3d 507,
510 (Tex. Crim. App. 2017). In evaluating the trial court’s ruling, we view the
evidence in the light most favorable to the defendant’s requested submission. Id. A
trial court errs in denying a self-defense instruction if there is some evidence, from

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any source, that will support the elements of self-defense. Id. A person generally is
justified in using deadly force against another in self-defense if, among other
things, that person reasonably believes the force is immediately necessary to
protect against the other’s use or attempted use of unlawful deadly force. Hocko v.
State, No. 14-16-00959-CR, 2019 WL 6320218, at *5 (Tex. App.—Houston [14th
Dist.] Nov. 26, 2019, no pet. h.) (citing Tex. Penal Code §§ 9.31, 9.32).

      In support of his assertion that he was entitled to a jury instruction on self-
defense, appellant references the same evidence that he did in arguing that Joseph
had acted aggressively or violently in the confrontation that led to his death. As
discussed above, the cited evidence did not show that Joseph engaged in any
aggressive or violent conduct. Based on the same analysis, we conclude that the
evidence likewise did not raise the issue of self-defense; in other words, there was
no evidence from any source indicating appellant reasonably believed deadly force
was immediately necessary to protect himself against Joseph’s use or attempted
use of unlawful deadly force. See Hocko, 2019 WL 6320218, at *5. Accordingly,
we overrule appellant’s second issue. See Gamino, 537 S.W.3d at 510.

      We affirm the trial court’s judgment.




                                       /s/       Frances Bourliot
                                                 Justice



Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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