Before Morriss, C.J., Burgess and Stevens, JJ. Opinion by Justice Burgess OPINION The 188th Judicial District Court of Gregg County, Texas, convicted Chad Adrian Davis of attempted burglary of a habitation, found that Davis had used or exhibited a deadly weapon during the commission of the offense, and sentenced him to seventeen years’ imprisonment. On appeal, Davis argues that the trial court erred in admitting extraneous-offense testimony, that the evidence is legally insufficient to support the finding of guilt and the deadly-weapon finding, and that his sentence violates the Eighth Amendment to the United State Constitution because it is grossly disproportionate to the offense committed. We find that Davis waived his first point of error because he failed to object each time that the extraneous-offense evidence was admitted. We also find that legally sufficient evidence supports both the finding of Davis’s guilt and the trial court’s deadly-weapon finding and that Davis failed to preserve his Eighth Amendment complaint. As a result, we affirm the trial court’s judgment. Factual Background Joseph Hernandez and Cedric Davis (Cedric), officers with the Longview Police Department (LPD), were dispatched to a home belonging to Davis’s parents, Ala and Glenda Davis, in September 2018. According to Hernandez, “dispatch . . . said that [Davis] was trying to kick in the door” and reported the offense of “a burglary in progress.” Hernandez heard people yelling for help in the backyard and peered over a privacy fence to witness Ala and Glenda struggling to keep Davis on the ground. Ala told the officers to tear down the fence gate to help. The officers broke the gate, subdued Davis, handcuffed him, and took him to the patrol vehicle. The officers found a knife in a backpack that was hanging from the privacy fence and another knife laying on the ground just outside the backyard beside the privacy fence. According to Hernandez, Ala said that the knives belonged to Davis. Hernandez also found a smudged shoe print on the front door indicating that someone had kicked it and said that “the door appeared to kind of been jarred a little bit.” Because Davis had an injury to his head, officers took him to the emergency room where, according to Hernandez, Davis told a nurse that “he had went there to kill his dad.” Chris Dotson, another LPD officer, arrived after Davis had been handcuffed. Dotson testified, without objection, that he had responded to the home in July on a family violence complaint and had arrested Davis as a result. After Dotson said, “[Davis] was in the back yard with his mother and father and lunged at his father and hit him with a closed fist,” Davis’s counsel objected “to [that] line of questioning” on the ground that the extraneous offense was not relevant, but the trial court overruled the objection after the State argued it was admissible under Rule 404(b) to show intent, motive, or lack of mistake. Ala, Davis’s sixty-nine-year-old father, testified that his relationship with Davis deteriorated as the result of Davis’s drug use. Davis, who did not live with Ala and Glenda, was told that he was not welcome at their home. Without objection, Ala testified that, in July 2018, Davis came to the residence and told Ala, “[Y]ou owe me,” before he lunged at Ala and punched him in the face. Glenda also testified, without objection, that Davis had hit Ala during the incident, and a 9-1-1 recording from the July incident, which was admitted at the beginning of trial without objection, was played for the trial court. Davis was arrested for the July incident and was issued a criminal trespass warning. On the day of the September incident, Ala said he was outside of the home when he saw Davis at the house and told him he was not supposed to be there. Ala rushed inside, leaving Davis outside. Ala and Glenda testified that Davis started banging and kicking on the front door and “was trying to break in.” Davis was also hitting the glass panels on the side of the front door, turning the knob, and yelling, “Let me in. I have a right to come in.” Because Ala and Glenda feared that Davis might cause them bodily harm, Ala decided to grab his gun while Glenda called LPD. When Davis gave up on the front door, he jumped the fence to the backyard even though Ala was firing warning shots and reminding Davis that he was not supposed to be there. According to Ala, Davis said, “I’m going to get you, I’m going to kick your . . . ass. I’m going to kill you’re [sic] ass.”[1] Ala testified that, as he was backing up, Davis lunged toward him, grabbed him, and drug them both to the ground. Glenda and Ala got on top of Davis and were able to get control of him. Ala testified that the knife on the ground was just outside of the backyard fence where Davis had climbed over. Both Ala and Glenda confirmed that Davis did not bring a knife into the backyard or threaten them with a knife. During his direct testimony, Davis admitted that the knives were his and testified that he went to the home to fight Ala because, after the July incident, “[Ala] got a criminal trespassing charge against [Davis].” Davis continued, “He pissed me off again.” When asked if he was trying to cut or hurt is father, Davis responded, “It was the only kind of weapon I could get. If I had a gun, I would have, but I don’t got no gun.” Davis said he kicked the front door, “Not to burglarize nobody, but just to fight [Ala].” After hearing this evidence, the trial court found Davis guilty of attempted burglary of a habitation with a deadly weapon. Davis Waived His First Point of Error In his first point of error, Davis argues that the trial court abused its discretion in allowing Dotson to testify about the July extraneous offense. The State argues that Davis waived this point of error. We agree. Before any testimony was taken, Davis affirmatively stated that he had no objection to State’s Exhibit 1, which contained the 9-1-1 calls that Glenda made to report both the July and September incidents.[2] While Davis objected to and secured an adverse ruling on the State’s “line of questioning” related to the extraneous offense during its examination of Dotson, Davis did not secure a running objection from the trial court. As a result, the State elicited details of the extraneous offenses from other witness without objection.[3] As explained by the Texas Court of Criminal Appeals: [T]o preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection. In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (second alteration in original) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); see Smith v. State, 494 S.W.3d 243, 255 (Tex. App.—Texarkana 2015, no pet.) (quoting Long v. State, 10 S.W.3d 389, 399 (Tex. App.—Texarkana 2000, pet. ref’d)). This rule applies whether the same evidence was admitted “without objection . . . before or after the complained-of ruling.” Lane, 151 S.W.3d at 193 (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)). Also, on direct examination, Davis testified that he was issued a criminal trespass warning because of the July incident. “As a general rule, a complaint regarding improperly- admitted evidence is waived if the same evidence is introduced by the defendant himself.” Cisneros v. State, 290 S.W.3d 457, 468 (Tex. App.—Houston [14th Dist.] 2009, pet. dism’d) (citing Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993)). “An exception to this general rule applies when the accused introduces the evidence in an effort to meet, rebut, destroy, deny, or explain evidence that already has been improperly admitted.” Id. (citing Rogers, 853 S.W.2d at 35). Here, Davis admitted the prior extraneous offense. “By testifying first on direct examination, [an] appellant waive[s] any error on the trial court’s ruling regarding admissibility of the [extraneous offense].” Id. (citing Wootton v. State, 132 S.W.3d 80, 84 (Tex. App.— Houston [14th Dist.] 2004, pet. ref’d)). Because we find that Davis waived his complaint about the extraneous offense, we overrule his first point of error. Legally Sufficient Evidence Supports Davis’s Conviction and the Deadly-Weapon Finding 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 legal sufficiency 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). Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. Here, Davis’s offense was attempted burglary of a habitation. The indictment alleged that, on or about the 22nd day of September, 2018, . . . CHAD ADRIAN DAVIS . . . did then and there, with the specific intent to commit the offense of Burglary of a Habitation with Intent to Commit a Felony, against Ala Davis, [did] an act, namely: strike or kick an entrance door at Ala Davis’ habitation; twist or move an entrance door handle at Ala Davis’ habitation; while trying to enter Ala Davis’ habitation state that the Defendant was going to assault or kick Ala Davis’ ass; state that the Defendant’s intention while at Ala Davis’ habitation was to kill Ala Davis; and the Defendant brought or possessed a deadly weapon or knife to Ala Davis’ habitation, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended. A person commits the offense of burglary if, without the effective consent of the owner, the person “enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault.” TEX. PENAL CODE ANN. § 30.02. “A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” TEX. PENAL CODE ANN. § 15.01(a). The evidence showed that Davis attempted to enter Ala’s home without consent, and Davis does not challenge these elements. Instead, Davis challenges the element of intent and argues that the State did not prove that he had the intent to assault, kick, or kill Ala because he made no threats while at the front door. “The necessary specific intent can be proven through circumstantial evidence, and we may rely on events that took place before, during, or after the commission of the offense.” Cary v. State, 507 S.W.3d 750, 758 (Tex. Crim. App. 2016); see Metcalf v. State, 597 S.W.3d 847, 856 (Tex. Crim. App. 2020) (“In assaying the record for evidence of intent, we look to ‘events before, during and after the commission of the offense.’”) (quoting Wygal v. State, 555 S.W.2d 465, 468–69 (Tex. Crim. App. 1977)). Here, Davis himself testified that he was angry when he went to the house and kicked at the front door “just to fight [Ala].” He brought two knives with him because they were “the only kind of weapon [he] could get.” While in the backyard, Davis told Ala, “I’m going to get you, I’m going to kick your . . . ass. I’m going to kill you’re [sic] ass.” Based on this evidence, we conclude that a rational fact-finder could determine, beyond a reasonable doubt, that Davis attempted to enter the home, without Ala’s consent, with the intent to assault or kill Ala. As a result, we find the evidence legally sufficient to support the finding of guilt. We overrule Davis’ second point of error. Sufficient Evidence Supported the Deadly-Weapon Finding Next, Davis argues that the deadly-weapon finding is not supported by sufficient evidence. A deadly weapon is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (Supp.). A defendant is not eligible for judge-ordered community supervision if the trial court finds that a deadly weapon as defined by Section 1.07, Penal Code, was used or exhibited during the: commission of a felony offense; or immediate flight from the commission of a felony offense; and the defendant: used or exhibited the deadly weapon; or was a party to the offense and knew that a deadly weapon would be used or exhibited. TEX. CODE CRIM. PROC. ANN. art. 42A.054(b). “Thus, a deadly-weapon finding carries with it serious legal consequences.” Plummer v. State, 410 S.W.3d 855, 858 (Tex. Crim. App. 2013). Butcher knives, “kitchen knives, utility knives, straight razors, and eating utensils are manifestly designed for other purposes and, consequently, do not qualify as deadly weapons” per se. McCain v. State, 22 S.W.3d 497, 502–03 (Tex. Crim. App. 2000) (quoting Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991)). However, Davis’s own testimony in this case established that he intended to use the knives to cause death or serious bodily injury. Also, the knives were admitted into evidence so that their length and sharpness could be measured by the trial court. As a result, sufficient evidence showed that the knives were deadly weapons. However, there was no evidence showing that the knives were exhibited during the commission of the offense or immediate flight therefrom. “[T]he term ‘exhibited a deadly weapon’ means that the weapon was consciously shown or displayed during the commission of the offense.” Plummer, 410 S.W.3d at 858 (quoting Patterson v. State, 769 S.W.2d 938, 940, 941 (Tex. Crim. App. 1989)). Ala and Glenda said they had not seen or been threatened with the knives, one knife was concealed inside of a backpack, and the knife on the ground was laying outside of the backyard. As a result, we must determine whether the knives were used.[4] The Texas Court of Criminal Appeals has explained, “Use,” as a verb, may mean a number of things. For example, “use” is defined as “to put into action or service: have recourse to or enjoyment of: employ . . . to carry out a purpose or action by means of; make instrumental to an end or process: apply to advantage: turn to account: utilize.” In explicating the word the dictionary provides the following synonym: “employ, utilize, apply, avail: use is general and indicates putting to service of a thing, usu. for an intended or fit purpose “ Safian v. State, 543 S.W.3d 216, 223 (Tex. Crim. App. 2018) (quoting Patterson, 769 S.W.2d at 940–41; WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1976), p. 796, 2523–24). As a result, “one can ‘use’ a weapon without exhibiting it,” but not vice versa. Plummer, 410 S.W.3d at 858; Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004). The deterrence rationale of the deadly-weapon finding “works only if the actor makes a conscious decision to ‘use’ . . . the weapon to assist in committing the felony.” Plummer, 410 S.W.3d at 864. “[U]sing a deadly weapon during the commission of a felony offense extend[s] to ‘any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony.’” Safian, 543 S.W.3d at 223–24 (quoting Patterson, 769 S.W.2d at 941); see Plummer, 410 S.W.3d at 865 (“In sum, we hold that a deadly-weapon finding for a felony offense must contain some facilitation connection between the weapon and the felony. The deadly weapon must, in some manner, help facilitate the commission of the felony.”). In finding that Davis used a deadly weapon during the commission of the offense, the court reasoned, I do think that I can exercise common sense and Mr. Chad Davis did bring those two knives to the habitation. I think that just common sense tells me that he went to the front door with his backpack with the knives and then he heard his dad in the back yard so he attempted to jump the fence to get in the back yard. Here, Davis testified that his purpose for going to the home was to assault Ala. He said that he packed the knives because they were the only weapons he could find, showing that he had made a conscious decision to use them before going to the house. Circumstantial evidence showed that Davis attempted to break down the front door while he possessed the knives, and Davis himself testified that he was trying to break in, “[n]ot to burglarize nobody, but just to fight [Ala].” The offense of burglary requires an “intent to commit a felony, theft, or an assault” and the State alleged intent to assault or kill Ala as the underlying offenses. TEX. PENAL CODE ANN. § 30.02. The evidence, mostly Davis’s own testimony, showed that Davis possessed the deadly weapons for the purpose of committing the underlying felony of assault. Because “simple possession, if such possession facilitates the associated felony,” is sufficient, we find that the deadly weapon finding was supported by legally sufficient evidence. Safian 543 S.W.3d at 223–24. As a result, we overrule this point of error. Davis Failed to Preserve His Eighth Amendment Complaint In his last point of error, Davis argues that his sentence is grossly disproportionate to the offense. The State argues that this issue is unpreserved. We agree. “To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.” Navarro v. State, 588 S.W.3d 689, 690 (Tex. App.—Texarkana 2019, no pet.) (quoting Russell v. State, 341 S.W.3d 526, 527 (Tex. App.—Fort Worth 2011, no pet.) (quoting Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (citations omitted) (citing Williams v. State, 191 S.W.3d 242, 262 (Tex. App.—Austin 2006, no pet.) (“a defendant must preserve an Eighth Amendment claim”)). Davis did not object to his sentence at trial, but he filed a motion for new trial arguing “that the verdict is excessive in view of the evidence and the offense charged.” Davis did not request a hearing on his motion. “A defendant is required to ‘present’ a motion to the trial court within ten days of filing it, unless the court, in its discretion, extends that time period.” Id. at 691 (quoting Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009) (citing TEX. R. APP. P. 21.6)). “The Texas Court of Criminal Appeals ‘consistently has held the filing of a motion for new trial alone is not sufficient to show “presentment”‘ and does not preserve an issue for appellate review in the absence of a showing that the trial court has seen the motion.” Id. (quoting Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998) (citing Colone v. State, 573 S.W.3d 249, 259 (Tex. Crim. App. 2019); Lopez v. State, 96 S.W.3d 406, 414 (Tex. App.—Austin 2002, pet. ref’d) (“[T]he mere filing of a motion for a new trial . . . will not preserve the error.”))); see Caldwell v. State, 356 S.W.3d 42, 49 (Tex. App.—Texarkana 2011, no pet.) (“Mere filing of the motion for new trial with the trial court is insufficient to constitute presentment.”); Todd v. State, 242 S.W.3d 126, 133 (Tex. App.—Texarkana 2007, pet. ref’d). “The purpose of the presentment rule is ‘to put the trial court on actual notice that a defendant desires the trial court to take some action on the motion for new trial such as a ruling or a hearing on it.’” Stokes, 277 S.W.3d at 21 (quoting Carranza, 960 S.W.2d at 78). A review of the appellate record leads us to conclude that nothing demonstrates that Davis’s motion for new trial was presented to the trial court. The motion was not hand-delivered to the trial court, there is no notation on the motion indicating that the trial court had seen it, and there is no docket entry showing that the motion was brought to the trial court’s attention. As a result, we overrule Davis’s last point of error because it is unpreserved. See Navarro, 588 S.W.3d at 691; Todd, 242 S.W.3d at 133. Conclusion We affirm the trial court’s judgment. Ralph K. Burgess Justice Date Submitted: August 13, 2020 Date Decided: November 10, 2020 Publish
