Derrick Davis v. the State of Texas

REVERSE and REMAND and Opinion Filed March 29, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01109-CR

DERRICK DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F21-18619

MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Nowell
Opinion by Justice Molberg
Derrick Davis appeals his conviction for stalking. After the jury found

appellant guilty of stalking and that he had committed a prior offense of stalking, it

assessed punishment at sixteen years’ confinement and a $5,000 fine. In ten issues

on appeal, appellant generally contends the jury charge was erroneous, the trial court

abused its discretion by failing to instruct the jury on the lesser-included offense of

harassment, the trial court abused its discretion by allowing the introduction of

evidence regarding appellant’s prior convictions for stalking and terroristic threat,

trial counsel was ineffective for failing to object to the jury charge, and there are
errors in the judgment. Because we agree with appellant the jury charge was

erroneous and the error was egregious, we reverse appellant’s conviction and remand

for further proceedings.

Factual and Procedural Background

Appellant does not challenge the sufficiency of the evidence to support his

conviction; therefore, we provide only a brief recitation of the facts. April Barker

began dating appellant after first meeting him and exchanging telephone numbers

on Christmas Eve. After a few weeks, Barker and appellant became intimate. The

relationship began to sour, and Barker ended the relationship. Appellant then

engaged in behavior that ultimately led to his indictment for stalking with a prior

offense for stalking.

Among other things, appellant took Barker’s telephone from her without her

consent while pushing and grabbing her hands, continued to come over to Barker’s

house although not invited, broke into her house when Barker was not home, came

over her fence into her back yard, used his car to block her vehicle, and smashed a

friend’s car window that was parked in Barker’s driveway. Appellant later got into

a fight with Barker’s male friend that ended with Barker shooting appellant.

Appellant also sent Barker numerous text and social media messages. Among the

messages, appellant told Barker she was “going to have her hands full,” the police

would not be able to save her, his objective was to ruin her, and he was going to burn

her house down. Appellant was properly indicted for stalking, and after hearing the

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evidence, a jury convicted appellant of stalking with a prior conviction for stalking

and assessed punishment at sixteen years’ confinement with a $5,000 fine.

Appellant was also indicted for burglary, but the jury did not convict appellant on

that charge. This appeal followed.

Jury Charge Error

In his first issue, appellant contends he was egregiously harmed when the trial

court omitted two elements of the offense of stalking from the jury charge.

According to appellant, a review of the record as a whole shows the flawed charge

significantly lessened the State’s burden of proof and did not require the jury to

decide “perhaps the most contested issue of the case,” whether Barker felt threatened

by appellant’s conduct. The State concedes the jury charge was erroneous, but

maintains appellant was not egregiously harmed. After reviewing the record, we

agree with appellant.

A. Applicable Law

Constitutional due process protects the accused from conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged. Francis v. Franklin, 471 U.S. 307, 313 (1985). Constitutional

due process also “guarantees criminal defendants ‘a meaningful opportunity to

present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting

California v. Trombetta, 467 U.S. 479, 485(1984)). These are “bedrock, axiomatic[,]

and elementary” constitutional principles that protect a defendant from—among

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other things—jury charge issues that would effectively relieve the State of meeting

its burden on every element of the charged offense. See Francis, 471 U.S. at 313.

We hold the State to such a high burden in criminal prosecutions because the

stakes—one’s life and liberty—are so great and because we as a society have made

a “fundamental value determination” that it is “far worse to convict an innocent man

than to let a guilty man go free.” Id. (quoting In re Winship, 397 U.S. 358, 372 (1970)

(Harlan, J., concurring)).

The purpose of the jury charge is to inform the jury of the applicable law and

guide them in its application to the case. Hutch v. State, 922 S.W.2d 166, 170 (Tex.

Crim. App. 1996). It is not the function of the charge merely to avoid misleading or

confusing the jury. Rather, the jury charge must lead and prevent confusion. Id.

When, as here, the defendant does not object to jury-charge error at trial and

raises the issue for the first time on appeal, reversal is warranted only if the error

resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App.

2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Egregious

harm is a difficult standard to meet and should be determined on a case-by-case

basis. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Villarreal

v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Courts are required to

examine the relevant portions of the entire record to determine whether the defendant

suffered actual harm, as opposed to theoretical harm, as a result of the error.

Marshall, 479 S.W.3d at 843; Almanza, 686 S.W.2d at 174. Charge error is

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egregiously harmful if it “affects the very basis of the case, deprives the defendant

of a valuable right, or vitally affects a defensive theory.” Villarreal, 453 S.W.3d at

433; Almanza, 686 S.W.2d at 172. In examining the record to determine whether

charge error has resulted in egregious harm, we consider (1) the entirety of the

charge; (2) the state of the evidence, including the contested issues and weight of

probative evidence; (3) the arguments of counsel; and (4) any other relevant

information revealed by the trial record as a whole. Villarreal, 453 S.W.3d at 433;

Almanza, 686 S.W.2d at 171.

Section 42.072 of the Texas Penal Code provides a person commits the

offense of stalking if the person, on more than one occasion and pursuant to the same

scheme or course of conduct that is directed at a specific other person, knowingly

engages in conduct as defined by three elements set out in subsections (a)(1), (2),

and (3). See TEX. PENAL CODE 42.072. As relevant to this case, the first of these

elements provides the defendant’s conduct must be conduct that constitutes an

offense under section 42.07 (harassment), or that the defendant knows or reasonably

should have known the other person will regard as threatening bodily injury or death

or that an offense will be committed against that person’s property.1 See id.

42.072(a)(1).

1
Section 42.072 also makes it an offense for certain conduct that is directed toward a member
of the complainant’s family or household or an individual with whom the complainant has a dating
relationship. Because the alleged conduct in this case focused on Barker and her property, we
focus on those aspects of the penal code.
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The second element provides the defendant’s conduct must be conduct that

causes the complainant to be placed in fear of bodily injury or death, be placed in

fear that an offense will be committed against the complainant’s property, or feel

harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. See id.

42.072(a)(2). Finally, the third element requires that the defendant’s conduct would

cause a reasonable person to fear bodily injury or death, fear an offense will be

committed against the person’s property, or to feel harassed, annoyed, alarmed,

abused, tormented, embarrassed, or offended. See id. 42.072(a)(3).

B. Discussion

In this case, the entire abstract portion of the jury charge provided as follows:

Our law provides that a person commits the offense of
Stalking if the person, on more than one occasion and
pursuant to the same scheme or course of conduct that is
directed specifically at another person, knowingly engages
in conduct that would cause a reasonable person to: Fear
bodily injury or death for himself or herself; or fear that an
offense will be committed against the person’s property;
or feel harassed, annoyed, alarmed, abused, tormented,
embarrassed, or offended.

You are instructed that different types of conduct, if
engaged in on more than one occasion, may constitute
conduct that is engaged in pursuant to the same scheme or
course of conduct.

In contrast to the indictment and the statute, the abstract portion of the charge sets

forth only the element found in section 42.072(a)(3) of the penal code. The charge

does not inform the jury of the first and second elements required to convict

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appellant. That is, it did not inform the jury the offense of stalking also requires a

finding that appellant knew or should have known Barker would regard the conduct

as threatening. Nor did the charge inform the jury the offense of stalking required

appellant’s conduct to cause Barker to be fearful of death or bodily injury, fearful

that an offense would be committed against her property, or to feel harassed,

annoyed, alarmed, tormented, embarrassed, or offended.

Similarly, the application paragraph instructed the jury to find appellant guilty

of stalking if it found beyond a reasonable doubt appellant “knowingly engaged in

conduct . . . [that] would cause a reasonable person to fear bodily injury or death for

himself or herself; fear that an offense will be committed against the person’s

property; or feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or

offended.” The jury was not asked to determine whether appellant knew or should

have known his conduct would cause a reasonable person to be in fear or that Barker

was in fact afraid as a result of appellant’s conduct. Because the charge omitted two

elements necessary to convict appellant for stalking, it did not fully instruct the jury

on the law applicable to the case and did not fully guide the jury regarding the

application of the law to this case. Thus, appellant asserts, the State concedes, and

we conclude the jury charge is erroneous. Having done so, we must next determine

if the error was egregious.

In examining the record to determine whether charge error has resulted in

egregious harm, we consider (1) the entirety of the charge; (2) the state of the

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evidence, including the contested issues and weight of probative evidence; (3) the

arguments of counsel; and (4) any other relevant information revealed by the trial

record as a whole. Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. We

consider each of these factors in turn.

1. Entirety of the Charge

Here, the jury charge omitted two essential elements of the crime of stalking

in the abstract portion of the charge. Thus, the charge did not comprehensively or

accurately detail the applicable law. Nor did the application portion of the charge

require the jury to find beyond a reasonable doubt all of the elements necessary to

support a conviction for stalking. This is not an instance where jury charge error

was corrected or ameliorated in another portion of the charge. Because the charge

allowed the jury to convict appellant without clearly requiring the jury to find

appellant knew or should have known Barker would regard appellant’s conduct as

threatening or that appellant’s conduct actually caused Barker to be fearful, we

conclude this factor weighs heavily in favor of egregious harm.

2. State of the Evidence

We next consider the state of the evidence, including contested issues and the

weight of the probative evidence. See Almanza, 686 S.W.2d at 171. This is not a

case where the evidence overwhelmingly supported one party’s theory of the case

and there was scant evidence of the other view. Rather, the record shows the issue

of whether Barker was placed in fear and sought police assistance after appellant

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began stalking her, or whether she made a false accusation and was calling the police

in an attempt to retaliate or because she wanted appellant out of the house without

having to go through eviction proceedings, was a central question at trial.

Further, Barker’s credibility was strongly contested at trial and the jury heard

evidence that although Barker reported appellant’s conduct to the police on several

occasions, it was not until she shot appellant and a new detective was assigned to the

case that any action was taken against appellant. The original detective assigned to

the case did not think Barker was credible because, among other things, she had sex

with appellant after she had ended the relationship, there was a video recording

showing Barker and appellant speaking amicably in her backyard during the time in

question, and because she was potentially living with appellant at the time of the

offense. The jury also heard evidence that Barker tried to obtain a protective order

against appellant but was unable to do so because she did not meet the screening

criteria. Finally, the fact the jury acquitted appellant for the offense of burglary

suggests the jury had concerns regarding Barker’s credibility.

Significantly, the charge error in this case related directly to the contested

issue of Barker’s credibility. Under the charge in this case, not every juror had to

be persuaded that Barker was placed in fear because of appellant’s conduct. The

charge allowed for conviction without that determination. Consequently, we

conclude this factor weighs heavily in favor of egregious harm.

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3. Arguments of Counsel

We next look to whether any statements made by the State, appellant, or the

trial court during trial exacerbated or ameliorated error in the charge. Arrington v.

State, 451 S.W.3d 834, 844 (Tex. Crim. App. 2015). Although both the State and

appellant argued about appellant’s and Barker’s states of mind, neither appellant nor

the State made curative arguments regarding the missing elements. Nothing in the

arguments alerted the jury to their obligation to make findings regarding the missing

elements. On the other hand, nothing in the arguments emphasized or compounded

the error either. Consequently, this factor does not weigh for or against egregious

harm.

4. Other Relevant Record Information

Finally, we review the record for other relevant information that may require

consideration. Here, beginning with voir dire, the jury was not properly instructed

regarding the elements necessary for a conviction for stalking. During voir dire, the

State told the potential jurors that a person commits the offense of stalking if “the

person on one or more occasion or pursuant to the same scheme or course of conduct

that is directed specifically at another person knowingly engages in conduct that

constitutes an offense under section 42.07, which is essentially harassment, or the

actor knows or reasonably should know that the other person will regard as

threatening bodily injury or death for a member of the other person’s family or

household or for an individual with home [sic] the other person has a dating

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relationship.” Similar to the jury charge, this statement at voir dire provided an

incomplete statement of the elements of stalking. And, like the jury charge, it

omitted any requirement of a finding that Barker was placed in fear by appellant’s

conduct.

Further, we note the jury rejected Barker’s version of events regarding the

charge of burglary, finding appellant was not guilty of that offense. We recognize

this was a distinct inquiry from whether appellant committed the offense of stalking.

However, it indicates the jury did not find Barker’s version of events completely

credible. Given the circumstances of this case, we cannot conclude it is highly likely

the jury would have convicted appellant of stalking if the jury had been clearly

instructed on the necessity of finding Barker was placed in fear by appellant’s

conduct. We conclude this factor also weighs in favor of egregious harm.

C. Conclusion

After considering the various Almanza factors, we conclude the error in the

jury charge deprived appellant of his right to due process and affected his main

defensive theory by relieving the State of its high burden of proving, beyond a

reasonable doubt, that Barker was placed in fear by appellant’s conduct. Thus, we

hold appellant was egregiously harmed and we sustain appellant’s first issue.

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Having done so, we need not address appellant’s remaining issues. See TEX.

R. APP. P. 47.1. We reverse the trial court’s judgment and remand for further

proceedings.

/Ken Molberg/
KEN MOLBERG
JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

221109F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DERRICK DAVIS, Appellant On Appeal from the 291st Judicial
District Court, Dallas County, Texas
No. 05-22-01109-CR V. Trial Court Cause No. F21-18619.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Molberg. Justices Pedersen, III and
Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.

Judgment entered March 29, 2024

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