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Gilbert v. State

Court of Appeals of Texas, Sixth District, Texarkana

April 3, 2019

GAVIN HEATH GILBERT, Appellant
v.
THE STATE OF TEXAS, Appellee

          Date Submitted: February 12, 2019

          On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 1826694

          Before Morriss, C.J., Burgess and Stevens, JJ.

          OPINION

          Scott E. Stevens, Justice

         A Hopkins County jury rejected Gavin Heath Gilbert's claim that he acted in self-defense and convicted him of the murder[1] of Tyrone Phelps.[2] Based on the jury's verdict, Gilbert was assessed a punishment of fifty-five years' imprisonment. On appeal, Gilbert contends that there was legally insufficient evidence (1) to support his conviction for murder and (2) to support the jury's rejection of his claim of self-defense. Gilbert also contends that the trial court erred in (1) admitting evidence that improperly bolstered the testimony of one of the State's witnesses, (2) admitting a photograph of the victim in the hospital, (3) admitting a video recording of the victim's family during the punishment phase of the trial, (4) submitting a jury instruction on retreat, (5) failing to submit an instruction regarding the effect of self-defense on the lesser-included offense of manslaughter, and (6) failing to submit different manner and means of murder as separate charges. Since we find there is legally sufficient evidence to support Gilbert's conviction and the jury's rejection of his self-defense claim and we find no trial court error on his jury charge and preserved evidentiary complaints, we affirm the trial court's judgment.

         I. The Evidence at Trial

         A. The Testimony of Phelps' Friends

         On the evening of December 17, 2017, Phelps and four of his friends, Larry, John, Jack, and Jim, took Larry's truck to purchase fourteen grams of marihuana from Gilbert. Larry, John, Jack, and Jim gave generally consistent testimony about the events leading up to, and following, the incident. They testified that, two days before the incident, Gilbert sold Larry and John an amount of marihuana that he represented to be fourteen grams, which turned out to be only nine grams. Consequently, Phelps and his friends decided to bring digital scales to the December 17 transaction to weigh the marihuana. They also decided that, if Gilbert shorted them again, they would drive off with the marihuana without paying for it.

         Larry and his friends pulled up and parked on the side of the road in front of Gilbert's house and waited as Gilbert walked down from his house.[3] Gilbert came to the driver's window and gave the marihuana to Larry, who weighed it on the scales. Instead of the fourteen grams agreed upon, the marihuana only weighed around nine grams. After informing Gilbert of the discrepancy, and a short verbal exchange, Larry hit the gas pedal and peeled out toward the road. Larry and his friends testified that no one had threatened Gilbert, yelled at him, pulled a weapon on him, or used the truck as a weapon during the incident.

         At trial, the four young men all agreed that the truck sped up quickly, but several had differing memories regarding the initial movement of the truck. John thought the tires made a squealing sound. Larry testified that the truck spun out a bit and acknowledged that its back end slid to the left and could have hit Gilbert if he had not moved back. Jack acknowledged that the truck spun out, but did not think that it moved toward Gilbert.

         The young men also testified that the truck then sped across the road. They heard Gilbert fire several gunshots, one after another. Then several bullets came through the back of the truck. Phelps screamed that he had been shot. They called 9-1-1 and were told to meet the ambulance at a fire station. On the way to the fire station, one of them threw the marihuana to the side of the road. When they got to the fire station, the young men quickly agreed to tell the police that they had been "free-styling" in the country and had passed close to someone, who then started shooting at them.

         They first told this fabricated story to law enforcement because they were afraid and did not want to disclose the marihuana. But Larry told Lewis Tatum, the Hopkins County Sheriff, what really happened when he rode with Tatum to show him where the incident happened. Later on, the other young men also told law enforcement what really happened when confronted with the physical evidence.

         The young men also testified that Larry had a deer rifle and a shotgun in his truck that night. The rifle was between the front seats with the barrel to the floor, and the shotgun was behind the back seat. The rifle may have been visible to Gilbert.

         B. Mason Gilbert's Testimony

         Mason Gilbert, Gilbert's cousin, testified that, on the evening of December 17, he was visiting Gilbert's brother at their grandmother's house. Gilbert walked outside without saying anything. About thirty minutes later, Mason went to look for Gilbert when he did not answer his cell phone. When Mason went outside, Gilbert called him and explained that he had been robbed. Later, Gilbert revealed that, when he walked outside, he was going to sell marihuana to Larry and carried a gun in his pocket. Gilbert explained that, when he got to Larry's truck, Larry was driving, and Jim was in the front seat. He also said that two or three black people were in the back seat. Mason told law enforcement that Gilbert told him the following:

[Gilbert] kept his hand on his gun the whole time because . . .
. . . .
. . . . [t]hey rob, you know. So he handed it to him. They put it on the scale, and then somebody in the back seat said, f[]k it, let's just go, let's go. And then the tires squealed. . . . [A]s soon as the tires squealed and he felt the truck going off, he came out. And probably about five -- probably about from here to there, he said he shot, like, four or five times and said he didn't know if he hit anyone.

         Mason also affirmed that Gilbert never told him that anybody pulled a weapon on him, threatened him, hit him with a vehicle, or tried to run over him.

         Around midnight, they learned through social media that Gilbert had killed someone. They then took Gilbert's Glock 9mm pistol into the woods and buried it, and Gilbert threw the live bullets into the trash pile. They also went two or three times to the site of the shooting to try to find the spent bullet casings, but could not find them. They then hid the Glock pistol's box in a drawer in a shed. Mason testified that Gilbert was very upset about the incident and that he stayed up with him until about 1:00 a.m. because he was worried about him. When law enforcement came the following day with a search warrant, Mason led them to the buried Glock pistol and its box. The officers also told him that they had located the spent casings.

         After being confronted with a recording of a jail telephone call, Mason admitted that Gilbert had asked him not to testify. He also acknowledged that, when the SWAT team came to arrest Gilbert, Mason's father told Mason not to talk with the officers.

         C. Law Enforcement Testimony

         Sheriff Tatum testified that the young men had told law enforcement that they were driving down the road and drove past a person who shot through the back of the truck, striking one of them. He did not believe that account. Tatum testified that he struck up a conversation with Larry and asked him if he could show Tatum where the shooting had taken place. As they talked, Larry told him a different story. Larry also showed him where the shooting took place, and Tatum directed his investigators to the location. Tatum also testified about the details of Larry's statement and that the statement was consistent with the physical evidence found in the truck and at the scene.

         Kenneth Dean, the jail administrator for the Hopkins County Sheriff's Department (HCSD), testified that Gilbert had no injuries when he was booked into jail the day after the shooting. Dean also identified the persons speaking on five recordings of telephone calls between Gilbert, his father, his mother, and Mason. On the recording from December 23, Gilbert said that one of his friends had told him that the charges against him would be dropped. The recording from January 20, 2018, showed that Gilbert learned for the first time that law enforcement had executed a search warrant on the property. Gilbert asked his mother repeatedly where they had looked and what had been found in the search. When his mother told him that law enforcement had talked to Mason, he quizzed her about where they talked to Mason and what he told them. When his father came to the phone and informed him that law enforcement found a 9mm pistol in the safe, Gilbert responded that he was not worried. On the recording from February 27, 2018, Gilbert urged Mason not to testify at his trial, no matter what the State offered him.

         John Vance, a Texas Ranger with the Texas Department of Public Safety (DPS), was the lead investigator. He testified that four spent shell casings were found on the scene and that their locations showed that the shooter fired twice, retreated, and fired two more times.[4] The locations of the spent shell casings revealed that the bullets were fired when the truck was crossing the road and travelling toward a mailbox on the other side of the road. Vance gave extensive testimony about his inspection of Larry's truck. The inspection showed that four bullets penetrated the truck and showed the trajectory of the bullets. One of the bullets was recovered from Phelps' left leg and another from his chest. Vance also testified that the physical evidence of the bullet trajectories showed that the shooter was directly behind the truck. Vance also explained that, after Mason led him to the back of the property near a trash pile, they recovered the Glock 9mm pistol from beneath an old recliner chair.

         On cross-examination, Vance testified that he had interviewed Larry, John, Jack, and Jim twice. After his initial interviews of the young men, he learned from Tatum that there was new information. After interviewing the young men a second time, he characterized their first statements as lies.

         Shea Shaw, a sergeant with the HCSD, was also involved in the investigation. On cross-examination, Shaw testified that, if someone was standing by a truck in a muddy location and the truck accelerated rapidly, it could place the person in danger. He also testified that it was possible that the truck could skid out and knock the person down.

         Dennis Findley, a criminal investigator for the HCSD, testified that, during the execution of the search warrant on December 18, he recovered a Ruger 9mm pistol and 9mm ammunition from a gun safe in the main house on the property. He also testified that a Glock 9mm pistol was found on the property.

         Corley Weatherford, chief investigator for the HCSD, took a statement from Mason. He testified that Mason told him that he and Gilbert knew that law enforcement would come, so they hid the gun and removed the live bullets from the gun, which they threw in the trash pile. Mason also said that they looked for the spent casings at the scene of the shooting so they could remove them. In addition, Mason told him that the young men took Gilbert's last bag of marihuana and that that was probably why Gilbert was so angry.

         Nathan Tunnell is a firearms and tool marks examiner for the DPS Crime Laboratory in Tyler. He testified that the four recovered shell casings and the bullets recovered from Phelps' thigh and chest were all fired from the Glock 9mm pistol recovered from the Gilbert property.

         Dr. Chester Gwin is a medical examiner for the Dallas County Medical Examiner's Office. He testified that Phelps had two gunshot wounds to his body. One bullet entered his left upper back, hit the aorta and the right side of his heart, and lodged in soft tissue, where it was recovered. Gwin testified that Phelps would only have had seconds to minutes to live from such a wound. The second bullet entered the front of Phelps' left thigh, where it was recovered.[5]

         D. Gilbert's Testimony

         Testifying in his own defense, Gilbert said that he had turned seventeen years old about six weeks before the incident. He had lived with his grandmother, Kathy Temples, since he was four or five years old. Two days before the incident, he sold Larry fourteen grams of marihuana for $90.00. Two hours later, Larry texted him and said that he thought it was short. In response, Gilbert offered to sell him some better stuff.

         On December 17, Larry texted and asked if he had any marihuana. Gilbert offered to sell him a half of an ounce, [6] but no price was discussed. After Gilbert refused to come to town, Larry said he would come to his house. When Larry arrived, he texted Gilbert, who walked down to meet them. Gilbert said he brought his gun with him because "the whole thing just seemed a little weird," and no price had been requested. When he got to the truck, it was running, but no lights were on. Gilbert went to the driver's window, and Larry asked if he could weigh the marihuana. He gave the marihuana to Larry and leaned against the door. Gilbert saw Larry and a front seat passenger, but he could not see how many people were in the back seat.

         Larry said the marihuana only weighed "nine something." Gilbert asked if Larry would give him $100.00, to which Larry responded, "[Y]es." Then someone in the truck said, "[J]ust take it." Larry punched the accelerator and took off. When the truck took off, it pushed Gilbert back a couple of steps. Gilbert said he was scared and just reacted and fired without aiming at anything. He claimed he did not know if he hit anything or how many times he fired his pistol. Gilbert testified that he heard the tires squeal, that it startled him a little, and that he felt he was in danger. He said he knew that Larry had guns in his truck, but he never saw one and nobody pointed one at him.

         Once the truck got down the road, Gilbert ran to his house and met up with Mason. Gilbert told Mason that he had been robbed. They talked for a short while, then Gilbert went to his room. About two hours later, he saw posts on social media that someone had shot at Larry's truck and that there was a death. Accordingly, Gilbert knew it was about the incident, so he threw the gun in the woods and told Mason he needed to talk to him. They buried the gun by the trash pile and threw out the remaining ammunition. A few hours later, law enforcement arrived and arrested Gilbert.

         Gilbert said that he did not intend to shoot anybody and that he was not aiming at anything. Rather, he claimed he was just shooting out of reaction because he was scared. He did not know Phelps, but had seen him around. Until he saw the Facebook post, Gilbert did not realize he had hit anything. He said he was backing up as he was firing and only fired four shots. He was sorry for what happened.

         On cross-examination, Gilbert admitted that he had lied to Vance when he denied that he met up with Larry and sold him marihuana. He admitted that the bag of marihuana taken by Larry was his last bag, but denied that it upset him. He acknowledged that he did not find out that law enforcement had searched his house until one month after he was arrested. Gilbert also admitted that, when he told his mother and father that there were no new charges, he believed that his gun had not been found and thought his plan had worked. He further admitted that he got upset when he found out Mason had talked with law enforcement. Gilbert then admitted that, when his father told him that only the Ruger 9mm pistol out of the safe had been found, he was not worried because he thought law enforcement had not found the gun he used to kill Phelps.

         Gilbert acknowledged that he later discovered Mason had cooperated with law enforcement from his lawyer and that he was furious with Mason at the time. About a month later, he spoke with Mason and told him not to get on the stand no matter what they offered him. Gilbert admitted that, at the time, he thought he would not get convicted.

         Gilbert testified that he had the pistol in his possession for about thirty days. He admitted getting it out of the drawer that evening and loading it. He identified the Glock 9mm pistol as the gun he used to kill Phelps. While admitting that he hit the truck with all the bullets he fired, he maintained that it was an accident. He acknowledged that, looking back at it now, he did not have good cause to fire at the truck. He admitted that he fired the bullets and that he caused the death of Phelps by shooting him with a firearm. He also admitted that he knowingly discharged the gun in the direction of the truck.

         Gilbert also called his grandmother, Kathy Temples, as a witness. Temples testified that Gilbert had lived with her since he was three years old. She did not think he had a violent nature.

         II. Legally Sufficient Evidence Supports Gilbert's Conviction

         In his first and second issues, Gilbert complains that there is legally insufficient evidence to support (1) the jury's verdict that he committed murder and (2) the jury's implicit rejection of his claim of self-defense. We disagree.

         A. Standard of Review

         In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex Crim App 2010) (plurality op) (citing Jackson v Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v State, 305 S.W.3d 859, 863 (Tex App-Texarkana 2010, pet ref'd) Our rigorous review focuses on the quality of the evidence presented Brooks, 323 S.W.3d at 917-18 (Cochran, J, concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In drawing reasonable inferences, the jury "may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life." Duren v. State, 87 S.W.3d 719, 724 (Tex. App.-Texarkana 2002, pet. struck) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)). The jury is also the sole judge of the credibility of the witnesses and the weight to be given their testimony and may "believe all of a witness['] testimony, portions of it, or none of it." Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). We give "almost complete deference to a jury's decision when that decision is based on an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

         In our review, we consider "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). It is not required that each fact "point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Id. Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). And we consider all the evidence admitted at trial, even improperly admitted evidence. Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004).

         B. Sufficient Evidence Supports the Murder Conviction

         Under the Texas Penal Code, a person commits first-degree murder if he:

(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death ...

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