Irving Davis | Murderpedia, the encyclopedia of murderers

Irving Alvin DAVIS

Classification: Murderer

Characteristics: Rape

Number of victims: 1

Date of murder: June 4, 2001

Date of birth: September 17, 1982

Victim profile: Melissa Medina, 16

Method of murder: Strangulation

Location: El Paso County, Texas, USA

Status: Sentenced to death on July 18, 2002

Name	TDCJ Number	Date of Birth
Davis, Irving Alvin	999423	09/17/1982
Date Received	Age (when Received)	Education Level
07/18/2002	19	11
Date of Offense	Age (at the Offense)	County
06/04/2001	18	El Paso
Race	Gender	Hair Color
black	male	black
Height	Weight	Eye Color
5 ft 11 in	168	brown
Native County	Native State	Prior Occupation
Craven	North Carolina	laborer
Prior Prison Record
N/A
Summary of incident
On 06/04/2001, in El Paso, Texas, Davis followed a 16 year old Hispanic female from a party. Davis drug her into an elementary school yard where he choked her with an unknown ligature and hit her in the head with an unknown object and killed the victim. Davis also sexually assaulted the victim.
Co-defendants
N/A
Race and Gender of Victim
Hispanic female

In the Court of Criminal Appeals of Texas

No. AP-74,393

Irving Alvin Davis, Appellant
v.
The State of Texas

On Direct Appeal from El Paso County

Womack, J., delivered the opinion of the Court, in which Price, Johnson, Holcomb, and Cochran, JJ., joined. Keller, P.J., filed a dissenting opinion, in which Keasler and Hervey, JJ., joined. Meyers, J., dissented.

The appellant was convicted of the June 23, 2002, murder of Melissa Medina in the course of committing or attempting to commit aggravated sexual assault.⁽¹⁾ Pursuant to the jury's answers to the special issues,⁽²⁾ the trial judge sentenced the appellant to death.⁽³⁾ The judgment of conviction and sentence of death is subject to automatic review by this Court.⁽⁴⁾

The appellant raises eleven points of error. We shall affirm the judgment of guilt, but reverse and remand the case to the trial court on the issue of punishment.

I. SUFFICIENCY OF THE EVIDENCE OF GUILT

In his fifth point of error, the appellant contends that the evidence is legally insufficient to support the jury's verdict on guilt. He does not argue that the evidence is insufficient to show he murdered Medina, but that the evidence is insufficient to show he did so while committing or attempting to commit aggravated sexual assault.

In reviewing the legal sufficiency of the evidence, this court looks at all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.⁽⁵⁾ In this case, the relevant elements of aggravated sexual assault are that a defendant intentionally or knowingly causes the penetration of the female sexual organ of another person by any means, without that person's consent, and the defendant causes serious bodily injury or attempts to cause the death of the victim or uses or exhibits a deadly weapon in the course of the same criminal episode.⁽⁶⁾

The evidence at trial showed that on the night of June 3, 2001, Medina, the appellant, and some friends gathered at the house of Amy Romero and her brother, Ben Romero. Amy testified she knew Medina well, but had known the appellant for only two months. During the evening, the appellant told Amy that Medina "had a nice butt." Amy asked the appellant to "leave [Medina] alone," but he refused her request. The group talked and drank alcohol until approximately 12:20 a.m.

The group then left the Romeros' house to walk Medina home. Half-way there, Medina told the group she would walk the rest of the way home by herself. She often used a short-cut across an elementary-school campus. The appellant decided to walk her the rest of the way home.

When the appellant returned to the Romero house around 2:00 a.m., Ben noticed scratches on the appellant's neck.

Alejandro Betancourt testified that he worked in the maintenance department of the Anthony Independent School District. On the morning of June 4, 2001, he and a co-worker discovered Medina's body on the school grounds. Her face was black and swollen, and her fingertips had been cut off.

When first questioned by the police, the appellant stated that while he was walking Medina home, a gray car pulled up, she got in it, and the car drove off. He claimed he received the scratches on his neck during a fight with his brother days earlier. However, after speaking with his mother, the appellant admitted to police that he strangled Medina. He claimed that while on the school grounds, he and Medina began to have consensual sex, but she asked him to stop because she liked someone else. The appellant told police that Medina said she would "cry rape" if he told anyone they had intercourse. He claimed that he then "lost it" and strangled her. He also said he cut off Medina's fingertips because she had scratched him and his DNA was under her fingernails.

Dr. Corrine Stern, the medical examiner, performed an autopsy on Medina's body. With respect to sexual assault, Stern testified that Medina had many injuries to her vaginal area, which appeared to be caused around the time of her death, including "mucosal abrasions." In her opinion those injuries were consistent with penile penetration, and she believed that Medina had been sexually assaulted close to or at the time of her death. She also testified that Medina suffered blunt-force trauma to her head, which resulted in a subarachnoid hemorrhage in her brain. She also found that Medina was strangled and had numerous abrasions on her torso, including a particularly severe blow to the chest that ruptured her pulmonary artery and filled her pericardial sac with blood.

From the evidence of Medina's injuries and the medical examiner's testimony about them, the jury could have reasonably inferred she was sexually assaulted. Viewing the evidence in the light most favorable to the verdict, we hold that the jury could have found beyond a reasonable doubt that the appellant murdered Medina during the course of committing or attempting to commit aggravated sexual assault. Point of error five is overruled.

II. OTHER GUILT-PHASE ISSUES

A. Jury selection

In his eleventh point of error, the appellant contends that the trial court erred in two different ways during jury selection. First, he claims that the trial court erred in denying his challenges for cause of prospective jurors Jerry Castillo and Yzela Sigala. Second, he argues that the trial court erred in overruling his objections to the State's use of peremptory challenges on two other prospective jurors pursuant to Batson v. Kentucky.⁽⁷⁾

Although Article 35.13 of the Code of Criminal Procedure requires that, in a capital case in which the State has made it known that it will seek the death penalty, "a juror who has been held to be qualified shall be passed for acceptance or challenge first to the state and then to the defendant," the trial court allowed the parties to make peremptory challenges in the manner traditionally used in non-capital cases: all at once, after voir-dire examination of the entire panel was complete.

For an appellate court to conclude that a defendant was harmed by the denial of a challenge for cause, the record ordinarily must show that the defendant: (1) exhausted his peremptory challenges, (2) made a request for more peremptory challenges that was denied, (3) exercised a peremptory challenge against the complained-of juror (if he had a peremptory strike available to do so), and (4) identified an objectionable juror who served on the jury.⁽⁸⁾

The record reflects that the appellant did not use a peremptory strike on either Castillo or Sigala, and he had available strikes with which to do so.⁽⁹⁾ Moreover, although during voir dire the appellant requested additional peremptory challenges after his challenges for cause were denied -- and those requests were denied -- he did not request additional strikes after he exercised his peremptory challenges. We have previously indicated that, to be effective in demonstrating harm, a request for additional strikes must be made after peremptory challenges have been exhausted.⁽¹⁰⁾ There is a good reason for this requirement: neither the trial court nor the parties are in a position to know whether additional strikes are needed until after the defendant's original allotment of strikes is exhausted. We conclude that the appellant was not harmed by the trial court's failure to grant his challenges for cause.

In the same point of error, the appellant argues that the trial court erred in overruling his Batson v. Kentucky⁽¹¹⁾ objections to the State's peremptory challenges of prospective jurors Walter Lee Murrell and Ericka Renae Bracey. Under Batson, a defendant must establish a prima facie showing of racial discrimination in the State's exercise of its peremptory strikes. The burden then shifts to the State to articulate race-neutral explanations for its questioned strikes. Once the prosecutor has articulated race-neutral explanations, the burden shifts to the defendant to show that the explanations are really a pretext for racial discrimination. The trial court must then determine whether the defendant has carried his burden of proving racial discrimination. The trial court's determination is accorded great deference and will not be overturned on appeal unless it is clearly erroneous.⁽¹²⁾

When the appellant made his Batson challenges to the State's use of peremptory strikes on Murrell and Bracey, the prosecutor offered race-neutral explanations for using the strikes. As for Murrell, the State pointed out that he was "wishy-washy" with regard to his beliefs about the death penalty and stated he would hold the State to a higher burden of proof. With respect to Bracey, the State contended that she was aloof and hesitant in her answers, which gave prosecutors the impression she could not follow the law. Further, she stated she knew someone who went to prison for "dropping a baby" and minimized that person's conduct. Finally, she showed no emotion when describing her service as a witness in a rape case.

When the burden shifted to the appellant to show that the State's explanations were really a pretext for discrimination, the appellant made no attempt to rebut the prosecutor's race-neutral explanations, and the trial court overruled the appellant's Batson challenges. The trial court did not abuse its discretion in finding that the appellant failed to carry his burden of showing purposeful racial discrimination. Point of error eleven is overruled.

B. Admissibility of Confession

In his first point of error, the appellant argues the trial court erred in denying his motion to suppress his confession. Specifically, he claims his confession should not have been admitted at trial because police officers should have terminated his interview when he told them he wanted to go home. As authority for his claim, the appellant relies on Miranda v. Arizona⁽¹³⁾ and subsequent cases requiring officers to "scrupulously honor" the invocation of Miranda rights.

Miranda applies only to custodial interrogation.⁽¹⁴⁾ A person is in "custody" for Miranda purposes "if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest."⁽¹⁵⁾ When a person is in custody, interrogation must cease if the person invokes one of the rights mentioned in the warnings required by Miranda.⁽¹⁶⁾ An accused's invocation of his rights must be unambiguous to trigger this requirement, and officers are under no duty to clarify ambiguous remarks.⁽¹⁷⁾ In determining whether the authorities failed to comply with Miranda, we "afford almost total deference to the trial court's rulings on questions of historical fact and on application of law to fact questions that turn upon credibility and demeanor while we review de novo the trial court's rulings on application of law to fact questions that do not turn upon credibility and demeanor."⁽¹⁸⁾

At the hearing on the motion to suppress evidence, Detective Ron Nanos testified that he and Detective Mark Graham arrived at the appellant's house in the early morning hours of June 5, 2001. Nanos notified the appellant that he was working on a case and that he and the other detectives working on the case had some questions for him. The appellant agreed to accompany Nanos and Graham to the police station. Before they left, Nanos read the appellant his Miranda rights. The appellant was not handcuffed on the way to the station, and when he and the detectives arrived, Nanos again advised him of his Miranda rights. The appellant signed an acknowledgment of those rights. While waiting for the other detectives assigned to the case to arrive, Nanos took the appellant outside so that he could smoke a cigarette.

Detective Albert Licon testified that when he arrived at the station he met with the appellant, who was not handcuffed. Licon showed the appellant the form he had signed acknowledging his Miranda rights and asked him if he understood his rights. The appellant responded that he did, and he then agreed to waive those rights and speak with Licon. They began to discuss the appellant's whereabouts the night before and his interaction with Medina. The appellant told Licon that he walked Medina through the neighborhood but did not walk her all the way home because she got into a gray car. Licon then asked him about the scratches on his neck. The appellant said that he received the scratches in a fight with his brother. A few minutes later, Licon stopped the interview to take a break, and the appellant asked for a cigarette. Licon found him a cigarette and showed him outside to the smoking area, where he left him unattended. Licon testified that the appellant was free to leave at this point, had he wished to do so. When the interview resumed, Detective Sonia Vega accompanied Licon to the interview room and began asking the appellant questions. Licon related that the appellant's demeanor visibly changed when Vega was questioning him. While the appellant had been defensive with Nanos, he seemed "shaken up" and "a little scared" of Vega.

Vega testified that when she began asking the appellant about the scratches on his neck, he became very nervous and asked to go home for an hour to see his mother because he was concerned about her health. The appellant told Vega that if he could leave for an hour, he would return and tell the truth about what he had done. At this point, Licon asked the appellant: "Well, what are you saying at this point? Do you want to terminate the interview? Is it that you want it to cease, to stop?" The appellant answered, "No," that he just wanted to get this over with. Licon then called the appellant's mother on the telephone and allowed him to speak with her. After the appellant finished speaking with his mother, he agreed to continue the interview and confessed to killing Medina. Nanos stopped to advise the appellant of his Miranda rights once again. The appellant indicated that he understood his rights, waived them, and agreed to give a written statement.

The trial court made findings of fact and conclusions of law that the appellant was not coerced, threatened, or made promises in exchange for his statement. Further, the court found that the appellant was coherent and understood what was happening while giving his statements. The trial court concluded that he had been advised of his rights and had intelligently and voluntarily waived them. The trial court also concluded that he was not in custody at the time he made the oral and written statements.

Giving due deference to the trial court's assessment of the facts, we conclude that the appellant was not in custody at the time the statements were made. The police did nothing to lead a reasonable person to believe that he was restrained to the degree associated with a formal arrest. Dowthitt v. State provides an illustrative contrast to this case. There, we found that "custody" of the defendant who confessed had occurred, given the following factors: (1) stationhouse questioning had lasted for fifteen hours, (2) the defendant's requests to contact his wife had been ignored, (3) the defendant had been accompanied by law enforcement representatives on all restroom breaks, and (4) the defendant made a crucial oral admission establishing probable cause to arrest.⁽¹⁹⁾

Although the present case also involved a crucial oral admission before the taking of a written statement (and after the defendant had voluntarily accompanied the police to the station), the similarity ends there. While Dowthitt admitted to being present at the murder in his case, the appellant admitted he had been with the victim but said that she had left in a car. Also the appellant was not questioned for an undue length of time, he was permitted an unattended smoke break outside the building, and he was allowed to contact his mother. The manifestation of police control was not present here, as it was in Dowthitt.

Because the appellant was not in custody, law enforcement officials had no obligation under Miranda to scrupulously honor a request to terminate questioning.⁽²⁰⁾ Although Miranda warnings were given (unnecessarily), that fact does not change the analysis. We have recognized that the prosecution cannot impeach a defendant with his post-Miranda silence, even if Miranda warnings were given prematurely.⁽²¹⁾ This recognition was based on the idea that it is fundamentally unfair to make the implicit promise that silence will carry no penalty and then to break that promise by using the defendant's silence against him at trial.⁽²²⁾ The scrupulous honoring of rights, however, presents a different situation. The need to scrupulously honor a defendant's invocation of Miranda rights does not arise until created by the pressures of custodial interrogation.⁽²³⁾ Without those pressures, the police are free to attempt to persuade a reluctant suspect to talk, and the immediate termination of the interrogation after the invocation of rights is simply not required.⁽²⁴⁾

Moreover, even if the requirement to "scrupulously honor" an unambiguous invocation of Miranda rights applied to the present case, that requirement was not violated here. In Dowthitt, we held that a defendant's indication that he was too sick to continue did not constitute an unambiguous invocation of his right to silence: his "statement merely indicate[d] that he believed he was physically unable to continue -- not that he desired to quit."⁽²⁵⁾ Likewise here, the appellant's expression of concern about his mother did not show that he actually desired to terminate the interview. To the contrary, he expressed a desire to continue the interview once his concern about his mother had been satisfied, and when expressly asked whether he wanted to terminate the interview, the appellant replied that he did not. After the police responded to the appellant's concern by calling his mother and allowing him to speak to her, he agreed to continue with the interview. Under these circumstances, the appellant has not shown that he unambiguously invoked his right to silence. Point of error one is overruled.

C. Charge on Confession

In his second point of error, the appellant alleges the trial court erred in refusing to include his requested instruction in the jury charge that the jurors were not to consider his confession for any purpose if they found it had been obtained illegally. The appellant requested the following instruction:

You're instructed that under our law, confession of a defendant may involve a defendant [who] was in jail or other place of confinement, or in the custody of an officer, shall be admissible in evidence if it appears that the same was freely and voluntarily made without compulsion or persuasion, provided, however, that it be made in writing, signed by the accused, and show that the accused is warned prior to making such statement or confession by the person to whom the same is made. That, one, he has the right to remain silent, not make any statement at all, that any statement he makes may be used against him at trial; and two, any statement that he makes may be used as evidence against him in court; and, three he has a right to have a lawyer present to advise him prior to and during any questioning; and four, he may have his own lawyer. If he's unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning. Five, he has a right to terminate the interview or questioning at any time. Therefore, furthermore, the State must prove beyond a reasonable doubt that agents of the State honored the rights mentioned above. Therefore, if you believe the agents of the State did not honor defendant's request to terminate the interview, if any, you will not consider the confession for any purpose.

He claims he was entitled to this instruction because there was some evidence that he invoked his right to silence and to counsel during a custodial interrogation and that police did not honor those invocations.

The alleged invocation of the right to silence involves the appellant's request to go home and see his mother, and the facts surrounding that incident have been discussed earlier in this opinion. The evidence introduced at trial on this matter was essentially the same as the evidence offered at the pretrial motion-to-suppress hearing. With regard to the allegation that the appellant requested counsel, the testimony he relies on came from his uncle, who quoted the appellant as asking the police, "Do I need a lawyer?" This was asked while the appellant was still at his home. At trial, defense counsel also relied upon the appellant's uncle's testimony that the police told the appellant "that he was just being held for questioning." From the above-discussed evidence, defense counsel alleged at trial that there was "at least a scintilla of evidence" that the appellant "was being detained" and that the defendant made a "request for an attorney" and a "request to leave the police station house."

The jury received the following instruction:

You are instructed that unless you believe from the evidence beyond a reasonable doubt that the alleged confession or statement introduced into evidence was freely and voluntarily made by the defendant without compulsion or persuasion, or if you have a reasonable doubt thereof, you shall not consider such alleged statement or confession for any purpose nor any evidence obtained as a result thereof.

The State cites to Mendoza⁽²⁶⁾ for the proposition that a general instruction on voluntariness is all that is required by Articles 38.22 and 38.23 of the Code of Criminal Procedure .

In Mendoza, we held that the defendant was not entitled under Article 38.22 to fact-bound instructions that could constitute a comment on the weight of the evidence.⁽²⁷⁾ But the instructions in Mendoza addressed two different areas of "voluntariness" law: compulsion and persuasion under Article 38.21, and Miranda warnings under Article 38.22.⁽²⁸⁾ The appellant's requested instruction pertained to the second area of law, but he received an instruction under the first.

Article 38.22 and Article 38.23 each command that a jury instruction in conformity with its requirements be given if an issue under that provision is raised by the evidence.⁽²⁹⁾ Assuming, without deciding, that the appellant's requested instruction would be authorized by Article 38.22 or Article 38.23 in an appropriate case, we turn to whether the issue was raised by the evidence in the present case. To merit a jury instruction on such issues, there must be "some positive evidence [that] appellant's statements were coerced,"⁽³⁰⁾ or the evidence must show a "factual dispute" over whether the appellant had in fact invoked his right to counsel.⁽³¹⁾

The testimony of the appellant's uncle raised a fact issue as to custody.⁽³²⁾ But no evidence raised a fact issue regarding whether the appellant unambiguously invoked his right to terminate the interview and his right to counsel. The appellant did not offer any evidence to controvert the testimony offered by the State that he asked to go home to check on his mother, promised to come back when he did, expressly denied that he wanted to terminate the interview, and agreed to resume the interview after talking to his mother on the phone. Regarding the right to counsel, the appellant's uncle's testimony shows only that the appellant asked if he needed an attorney. At least one court has held that such a question does not rise even to the level of an ambiguous invocation of the right to counsel, much less the unambiguous invocation now required to invoke the protections conferred by Miranda.⁽³³⁾ The appellant's question was even more ambiguous than the statement found to be ambiguous by the Supreme Court in Davis,⁽³⁴⁾ and a number of other courts have held that this kind of question does not amount to an unambiguous request for counsel.⁽³⁵⁾ We hold that the question, "Do I need a lawyer?" does not amount to an unambiguous request. Consequently, the uncle's testimony that the appellant asked that question is not sufficient to raise a fact issue on whether the right to counsel was invoked. Point of error two is overruled.

D. Post-arrest Silence

In his eighth point of error, the appellant contends the trial court erred by allowing the State to elicit testimony regarding his post-arrest silence in violation of the Fifth Amendment prohibition against self-incrimination. At the guilt phase of trial, Dr. Kenneth Berumen, an emergency-room physician, testified that he performed a medical evaluation of the appellant on June 4, 2001. When the prosecutor inquired as to the appellant's demeanor during the evaluation, the appellant objected that the question was "so insolubly ambiguous, [it] shouldn't even be received before the jury." The trial court overruled the objection.

Berumen continued that the appellant was extremely quiet, would not maintain eye contact, and would not answer questions about how he received his injuries. The appellant again objected. This time he argued that, since he was in custody during his medical evaluation, the question violated the appellant's Miranda rights and Articles 38.22 and 38.23 of the Code of Criminal Procedure. The trial court reserved ruling on the objection until the State had a chance to ask a few predicate questions in an attempt to qualify Berumen's characterization of the appellant's demeanor as a statement taken for the purposes of medical treatment or diagnosis. After the State's predicate questioning, the trial court sustained the appellant's objection. The appellant neither asked for an instruction to disregard Berumen's prior testimony nor requested a mistrial.

In order to preserve error for appellate review, a defendant must object with sufficient specificity to make the trial court aware of his complaint,⁽³⁶⁾ and he must pursue his complaint to the point of obtaining an adverse ruling.⁽³⁷⁾ When the trial court sustains the defendant's objection, the defendant must request an instruction to disregard if such an instruction would cure the error,⁽³⁸⁾ and, if that request is granted, he must move for a mistrial.⁽³⁹⁾ Even if an instruction to disregard would not cure the error, the defendant still must request a mistrial.⁽⁴⁰⁾ "It is well settled that when the appellant has been given all the relief he requested at trial, there is nothing to complain of on appeal."⁽⁴¹⁾

The appellant's "insolubly ambiguous" objection failed to alert the trial court to the Doyle complaint he now advances on appeal. Even if assuming arguendo his second set of objections were sufficient to make the trial court aware of his current complaint, he failed to preserve error for appeal by failing to ask for an instruction to disregard and by failing to request a mistrial. Point of error eight is overruled.

III. PUNISHMENT-PHASE ISSUES

In his ninth point of error, the appellant claims that the evidence is legally insufficient to support the jury's finding during the punishment phase that he would pose a future danger to society. We have held that the facts of the crime alone may be enough to support an affirmative finding on the future dangerousness special issue.⁽⁴²⁾ In addition to the circumstances of the case, other evidence, including psychiatric evidence, may support the finding.⁽⁴³⁾ Taking into account the gruesome nature of the offenses, which included cutting off the victim's fingertips, as well the State's expert testimony regarding future dangerousness, we hold that a rational jury could have concluded that the appellant would be a continuing threat to society. Point of error nine is overruled.

In his tenth point of error, the appellant argues that the trial court abused its discretion in excluding the testimony of his lay witnesses regarding their opinions on whether the appellant would be a future danger. At the punishment phase, when each of the appellant's witnesses was asked whether he or she thought the appellant would pose a future danger, the State objected that only expert witnesses were allowed to give that type of opinion. The trial court sustained the State's objections. The appellant made a bill of exception, including the testimony of each of these witnesses that, in his or her opinion, the appellant would not pose a future danger.

The State concedes error. We shall therefore consider the issue of harm.

In Potier v. State, we held that the improper exclusion of evidence is unconstitutional only if it significantly undermines the fundamental elements of the accused's defense.⁽⁴⁴⁾ When the accused is able to present the substance of his defense, the proper harm analysis is conducted under Rule of Appellate Procedure 44.2(b), which states that any non-constitutional error that does not affect a substantial right must be disregarded.⁽⁴⁵⁾ An error affects the defendant's substantial rights for Rule 44.2(b) purposes when the error has "a substantial and injurious effect or influence in determining the jury's verdict."⁽⁴⁶⁾ Conversely, an error does not affect substantial rights if the appellate court "has fair assurance that the error did not influence the jury, or had but a slight effect."⁽⁴⁷⁾

The question of whether there is a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society⁽⁴⁸⁾ is the life-or-death question. The State's witness, a psychiatrist, was permitted to express an opinion that a hypothetical person who had committed a similar crime and whose social and criminal history was like the appellant's would be a continuing threat to society. This court also has allowed lay witnesses who "knew the appellant and were in a position to express the opinions they did" to give their opinions on the issue of future dangerousness.⁽⁴⁹⁾

The opinions of nine lay witnesses who actually knew the appellant were erroneously withheld, while the contrary opinion of an expert as to a hypothetical person was admitted. This shows a degree of harm that is intolerable in a death-penalty case.

We shall reverse the judgment of death and remand the case to the trial court for a punishment hearing at which the appellant could present the evidence that we have held is admissible.

Since we reverse, we need not reach the appellant's remaining points of error three (admission at the punishment phase of a videotape recording of the crime scene), four (mention at the punishment phase of photographs found in the appellant's bedroom), six (argument at the punishment phase), and seven (the phrasing of a ruling during argument at the punishment phase).

The judgment of guilt is affirmed. The judgment of death is reversed, and the case is remanded to the district court for a new trial on punishment.

Delivered June 13, 2007.

Do Not Publish.

*****

1. See Penal Code § 19.03(a)(2).

2. See Code Crim. Proc., art. 37.071 §§ 2(b) & (e).

3. See id., § 2(g).

4. Id., § 2(h).

5. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tello v. State, 180 S.W.3d 150, 150 n.1 (Tex. Cr. App. 2005).

6. See Penal Code § 22.021.

7. 476 U.S. 79 (1986).

8. Newbury v. State, 135 S.W.3d 22, 30-32 (Tex. Cr. App. 2004).

9. See id., at 32.

10. Brooks v. State, 990 S.W.2d 278, 289 (Tex. Cr. App. 1999).

11. 476 U.S. 79 (1986).

12. Mathis v. State, 67 S.W.3d 918, 924 (Tex. Cr. App. 2002).

13. 384 U.S. 436 (1966).

14. Id., at 444.

15. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Cr. App. 1996) (citing Stansbury v. California, 511 U.S. 318 (1994)).

16. Miranda, 384 U.S. at 473-74; Dowthitt, 931 S.W.2d, at 257.

17. Davis v. United States, 512 U.S. 452 (1994); Dowthitt, 931 S.W.2d, at 257.

18. Ripkowski v. State, 61 S.W.3d 378, 381-82 (Tex. Cr. App. 2001) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Cr. App. 1997)).

19. 931 S.W.2d, at 256.

20. Id., at 257.

21. Griffith v. State, 55 S.W.3d 598, 604 (Tex. Cr. App. 2001)("the Supreme Court held that it is a denial of due process for officials to tell a defendant, even erroneously, that he has the right to remain silent and to speak to an attorney, and then to use the resultant silence or request for an attorney as substantive evidence against him," (emphasis added), citing Doyle v. Ohio, 426 U.S. 610 (1976)); see also Doyle, 426 U.S. at 618, n. 9.

22. Griffith, 55 S.W.3d, at 604-05.

23. Beckwith v. United States, 425 U.S. 341, 346 (1976); Miranda, 384 U.S., at 457-58.

24. Dowthitt, 931 S.W.2d, at 254, 257; see also State v. Carroll, 645 A.2d 82, 87 (1994)(pre-custodial assertion of right to remain silent, even after Miranda warnings given, does not require termination of interrogation); State v. Lavoie, 562 A.2d 146, 149 (Me. 1989)(same); Davis v. Allsbrooks, 778 F.2d 168, 170 (4th Cir. 1985)(same).

25. Dowthitt, 931 S.W.2d at 257.

26. 88 S.W.3d 236 (Tex. Cr. App. 2002).

27. Id., at 240.

28. Id., at 237-38, nn.1-4.

29. Code Crim. Proc. art. 38.22, § 7; art. 38.23(a).

30. Janecka v. State, 937 S.W.2d 456, 472 (Tex. Cr. App. 1996).

31. Dinkins v. State, 894 S.W.2d 330, 354 (Tex. Cr. App. 1995).

32. See Kaupp v. Texas, 538 U.S. 626, 630 (2003) (involuntary removal from home to police station constitutes restraint equivalent to arrest).

33. United States v. Ogbuehi, 18 F.3d 807, 813-814 (9th Cir. 1994) ("Do I need a lawyer?").

34. Davis v. United States, 512 U.S. 452, 462 (1994) ("Maybe I should talk to a lawyer"); see also Dinkins, 894 S.W.2d, at 352 ("Maybe I should talk to someone" held more ambiguous than statement made in Davis).

35. State v. Dumas, 750 A.2d 420, 424 (R.I. 2000) ("Do I need a lawyer?"); Diaz v. Senkowski, 76 F.3d 61, 63-64 (2d Cir. 1996) ("Do you think I need a lawyer?"); Higgins v. State, 879 S.W.2d 424, 426-28 (1994) (same); State v. Greybull, 579 N.W.2d 161, 163-64 (N.D. 1998) ("Do I need to get a lawyer?"); State v. Glatzmayer, 789 So. 2d 297, 304-05 (Fla. 2001) (defendant asked police if they thought he should have an attorney).

36. R. App. P. 33.1(a)(1)(A).

37. Cook v. State, 858 S.W.2d 467, 473 (Tex. Cr. App. 1993); Young v. State, 137 S.W.3d 65, 69 (Tex. Cr. App. 2004).

38. Young, 137 S.W.3d, at 70.

39. Cook, 858 S.W.2d, at 473.

40. Young, 137 S.W.3d, at 70; Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Cr. App. 1996).

41. Cook, 858 S.W.2d, at 473.

42. Guevara v. State, 97 S.W.3d 579, 581 (Tex. Cr. App. 2003), Allridge v. State, 850 S.W.2d 471, 488 (Tex. Cr. App. 1991).

43. Hayes v. State, 85 S.W.3d 809, 814 (Tex. Crim. Ap. 2002).

44. 68 S.W.3d 657, 666 (Tex. Cr. App. 2002).

45. Id.; R. App. Proc. 44.2(b).

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

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

48. Code Crim. Proc., art. 37.071 § 2(b)(1).

49. E.g., Fierro v. State, 706 S.W.2d 310, 317 (Tex. Cr. App. 1986); Russell v. State, 665 S.W.2d 771, 779 (Tex. Cr. App. 1983).

*****

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

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

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

1. Legal Sufficiency

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

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

2. Lay Testimony

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

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

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

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

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

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

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

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

Filed: June 13, 2007

Do Not Publish

*****

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

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

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

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

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

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

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

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

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

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

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

12. Id. at 443.

13. Id. at 445.

14. Id. at 446.