Larry Wayne Davis v. State
04-16-00228-CR
| Tex. App. | Feb 8, 2017Background
- Larry Wayne Davis was convicted by a jury of assault with a deadly weapon; punishment: 40 years’ confinement.
- Incident: Davis shot the complainant at least five times while the complainant stood in the street with his hands up.
- Two San Antonio police officers testified they responded to a "shots fired" call to 921 Rivas Street; both described the area as familiar and high-crime.
- Officer Silva, when describing prior calls to the house, testified someone at a past accident had pointed to Davis’s house and said it was a "drug house." Defense objected for hearsay; the trial court sustained the objection and instructed the jury to disregard. The court denied a mistrial.
- On appeal Davis argued the statement constituted prejudicial extraneous‑offense evidence implicating Texas Rule of Evidence 404(b)(1); the State and court treated the objection as preserved only on hearsay grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying a mistrial after hearsay testimony that the house was a "drug house" | Davis: statement was prejudicial extraneous‑offense evidence that invited character‑conformity inference in violation of Rule 404(b) | State: objection at trial was hearsay only; no Rule 404(b) objection preserved; curative instruction sufficed | Court: No error — 404(b) complaint not preserved; curative instruction cured hearsay; denial of mistrial affirmed |
Key Cases Cited
- Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003) (standard for mistrial — required when improper question is clearly prejudicial and impossible to cure)
- Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000) (prompt instruction to disregard ordinarily cures improper question/answer)
- Thrift v. State, 176 S.W.3d 221 (Tex. Crim. App. 2005) (presumption that jury follows curative instructions; appellant must rebut)
- Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993) (failure to object on correct evidentiary ground forfeits that complaint on appeal)
- Roberson v. State, 100 S.W.3d 36 (Tex. App.—Waco 2002) (factors for evaluating effectiveness of curative instruction)
- Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000) (definition of when mistrial is required)