                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00199-CR
        ______________________________


       THOMAS HUNTER DAVIS, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 102nd Judicial District Court
                Bowie County, Texas
           Trial Court No. 08F0210-102




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                    MEMORANDUM OPINION

        A confrontational telephone call resulted in a fatal showdown between Samuel Glass and

Thomas Hunter Davis at a public park. Both parties drew their weapons, and in front of several

witnesses, Davis emerged the victor. His reward was a jury conviction for Glass’ murder and

resulting punishment of twenty-eight years’ imprisonment. Davis appeals his conviction on the

grounds that (1) double jeopardy was violated because a previous mistrial barred Davis’ second

trial; (2) the trial court failed to seat certain venire panel members; and (3) the jury’s failure to find

that Davis acted in self-defense was against the great weight and preponderance of the evidence.

We conclude that double jeopardy does not bar Davis’ second trial, that no objection to the jury

panel was preserved, and that the jury’s finding was supported by sufficient evidence. Therefore,

we affirm the trial court’s judgment.

I.      Double Jeopardy Was Not Violated

        On June 16, 2009, while Davis sat at counsel table waiting for his murder trial to begin, the

judge sat on the bench waiting for Davis’ first-chair counsel to arrive. To avoid having the jury

wait, the court admonished the jury and allowed the State to proceed with voir dire in the presence

of Davis’ second-chair counsel. After the State’s voir dire, the court relayed the following news

to the jury:

        There is a co-counsel that is to assist Mr. Collins in the trial of this case. Right
        before the noon hour . . . he was supposed to be here and have with him the file [of
        the case] . . . . It is apparent that he is physically impaired. In [sic] route to the
        courthouse he had a single car accident . . . the attorney had been entrusted to


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            present first to the Court certain legal motions and then the evidentiary presentation
            to the jury, he truly would be the lead counsel in this case and simply is not in a
            condition to proceed.

The trial judge decided that his ―only option‖ was to declare a mistrial sua sponte.1 After the

panel was dismissed, the court created a record establishing that Davis’ first-chair attorney was

escorted to the judge by a police officer. The judge described the attorney’s ―slurred speech‖ and

―complete disarray‖ of the file, and concluded he was ―clearly . . . physically impaired and

incapable of proceeding to trial.‖ The attorney pleaded with the judge to allow him to select a

jury, but was arrested for driving while intoxicated instead.

            Davis’ first point of error on appeal is that double jeopardy was violated when he was

finally tried. The Fifth Amendment to the United States Constitution, and Article I, Section 14 of

the Texas Constitution, prohibit double jeopardy and protect individuals from being tried twice for

the same offense, possibly receiving double punishments. Albernaz v. United States, 450 U.S.

333, 343 (1981); Illinois v. Vitale, 447 U.S. 410, 415 (1980); Stephens v. State, 806 S.W.2d 812,

814–15 (Tex. Crim. App. 1990). Here, Davis was not tried twice. A prerequisite to the

implication of double-jeopardy protections is the requirement that ―jeopardy must have attached

initially.‖ State v. Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009). In a jury trial,

jeopardy attaches only when a jury is impaneled and sworn. Id.; Ex parte Preston, 833 S.W.2d

515, 517 (Tex. Crim. App. 1992).                   Here, the initial jury was never issued the oath of office



1
    No party objected to the trial court’s declaration of a mistrial.

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because the panel was dismissed prior to the defense voir dire and selection; consequently,

jeopardy did not attach.      Therefore, we overrule Davis’ first point of error.2

II.     Complaint of Failure to Seat Certain Veniremembers Was Not Preserved

        Next, Davis complains that the trial court erred in failing to seat unchallenged panel

members Jay Glass and Birdie Duricher. A list of all members of the jury panel with counsel’s

notations is included within the clerk’s record. On the defendant’s list, the notation ―cause‖

appears next to Glass’ and Duricher’s names. The State’s list contains the notation ―excused‖ by

these names. These records would reasonably lead to the conclusion that these members were not

seated due to challenges for cause.

        But we need not attempt to decide this matter based upon our impression of the clerk’s

record. It is Davis’ burden to present a sufficient record to the appellate court to show error

requiring reversal. TEX. R. APP. P. 33.1(a). In this case, there is no reporter’s record of the

parties’ challenges for cause. The only record before us indicates both Glass and Duricher were

excused for cause. Davis has failed to meet the prerequisite that he bring to us a record showing

that the complaint within his point of error was made to the trial court with specificity, and that the

trial court ruled on his request. Id. Because Davis has failed to preserve this point of error, it is

overruled.     See Giesberg v. State, 945 S.W.2d 120, 128 (Tex. App.—Houston [1st Dist.] 1996),

aff’d, 984 S.W.2d 245 (Tex. Crim. App. 1998) (holding no error preserved when there was no


2
Davis contends that because the mistrial was not manifestly necessary, jeopardy attached. Based upon our ruling,
we need not address this contention.

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record of court ruling excluding evidence).

III.        The Jury’s Finding that Davis Did Not Act in Self-Defense Was Based on Factually
            Sufficient Evidence

            Davis argues that ―the jury’s refusal to find that [he] acted in self defense [was] against the

great weight and preponderance of the evidence.‖3 To raise a claim of self-defense, Davis bore a

burden of production requiring him to produce some evidence in support of his claim. Zuliani v.

State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex.

Crim. App. 1991). Once this was accomplished, the State was required to bear the burden of

persuasion to disprove the raised defense beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594.

Since the jury found Davis guilty of murder, there is an implicit finding rejecting Davis’

self-defense theory. Id.; Saxton, 804 S.W.2d at 914.

            In a factual sufficiency review of a self-defense claim, we examine all of the evidence in a

neutral light and ask whether the verdict of guilt was either so contrary to the overwhelming

weight of the evidence as to be clearly wrong and manifestly unjust, or was against the great

weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim.

App. 2006); Zuliani, 97 S.W.3d at 595. Unless the record clearly reveals a different result is

appropriate, we must defer to the jury's determination concerning what weight to give

contradictory testimony.            Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008);

Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

3
    Davis does not otherwise challenge for legal or factual sufficiency the jury’s finding on the elements of murder.

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       In this case, the jury was properly instructed that a person cannot use deadly force if he or

she ―provoke[d] the person against whom the force was used‖ and is not justified in using

self-defense if the ―actor sought an explanation from or discussion with the other person

concerning the actor’s differences with the other person while the actor was . . . carrying a weapon

in violation of Section 46.02 of the Texas Penal Code. TEX. PENAL CODE ANN. §§ 9.31(b)(4), (5),

9.32(b)(2) (Vernon Supp. 2009). Section 46.02 provides that

       a person commits an offense if the person intentionally, knowingly, or recklessly
       carries on or about his or her person a handgun . . . if the person is not: (1) on the
       person’s own premises under the person’s control or (2) inside of or directly en
       route to a motor vehicle that is owned by the person or under the person’s control.

TEX. PENAL CODE ANN. § 46.02(a) (Vernon Supp. 2009).

       The jury heard testimony that Davis was jealous of his girlfriend’s attraction to Glass.

They also heard the following uncontested evidence: an early morning telephone call from Davis

to Glass resulted in death threats and an invitation to meet at a local park, both Davis and Glass

were armed with deadly weapons, and as Glass approached Davis in the park with his gun, Davis

shot and killed him.

       The jury was free to conclude, based on these facts, that Davis provoked Glass. In his

appellate brief, Davis agrees that ―the evidence establishes that Glass and Davis met for mutual

combat.‖ The Texas Court of Criminal Appeals has stated ―[t]he right of self-defense is not

accorded against acts committed in mutual combat.‖ Rater v. State, 152 Tex. Crim. 150, 211

S.W.2d 237 (Tex. Crim. App. 1948). Additionally, the jury could conclude that Davis called


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Glass, asked him to meet at the park for the purpose of a discussion concerning their differences,

and that Davis unlawfully carried a weapon into the park.

       Because the jury could conclude that Davis provoked Glass or sought a discussion with

Glass about their differences while unlawfully carrying a gun, we conclude the jury’s verdict was

not against the great weight and preponderance of the evidence. Thus, Davis’ last point of error is

overruled.

IV.    Conclusion

       We affirm the trial court’s judgment.



                                                     Jack Carter
                                                     Justice

Date Submitted:       July 6, 2010
Date Decided:         July 8, 2010

Do Not Publish




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