Court of Appeals of Texas, Sixth District, Texarkana
Submitted: February 12, 2019
Appeal from the 8th District Court Hopkins County, Texas
Trial Court No. 1826694
Morriss, C.J., Burgess and Stevens, JJ.
E. Stevens, Justice
Hopkins County jury rejected Gavin Heath Gilbert's claim
that he acted in self-defense and convicted him of the
murder of Tyrone Phelps. 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.
The Evidence at Trial
The Testimony of Phelps' Friends
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.
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. 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.
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.
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.
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
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
Mason Gilbert's Testimony
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,
fk 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
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.
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.
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
Law Enforcement Testimony
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.
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.
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. 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.
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.
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.
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.
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.
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.
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
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.
December 17, Larry texted and asked if he had any marihuana.
Gilbert offered to sell him a half of an ounce,
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.
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.
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.
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.
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
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.
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.
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
Legally Sufficient Evidence Supports Gilbert's
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.
Standard of Review
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.
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).
Sufficient Evidence Supports the Murder Conviction
the Texas Penal Code, a person commits first-degree murder if
(1) intentionally or knowingly causes the death of an
(2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death ...