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Date: 09-23-2020
Case Style:
Markell Deon Davis v. The State of Texas
Case Number: 01-19-00733-CR
Judge: Sherry Radack
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: The Honorable Kim K Ogg
Bridget Holloway
Defendant's Attorney:
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Shelly Steward and Gerald Coleman participated in a “pill mill” scheme to
obtain money. The men would “pick people up to take them to [pain clinics]” and
“the clinics would give [them] kickbacks.” Steward and Coleman would pick up
their “patients,” coach them about what to say at the clinic, drive them to the clinic,
then escort them to a pharmacy to fill the prescription received from the clinic and
pay the patient for their time. Steward and Coleman would then take the pills and
sell them to a pre-arranged buyer. In addition to paying the patients, Steward and
Coleman would sometimes pay people for referring patients. Patients received about
$70 per clinic visit and referrers received about $30.
On July 3, 2017, Steward and Coleman picked up a patient, Carl Henegan,
and took him to a clinic near I-45 in Houston. They left Henegan at the clinic with
1 When a defendant is found guilty in a capital felony and the State has not sought the
death penalty, a sentence of life without parole is mandatory. TEX. CODE CRIM.
PROC. art. 37.071, § 1(a); TEX. PENAL CODE § 12.31(a)(2).
3
several other patients who had driven there on their own and went to pick up a female
patient near Stella Link and the South Loop. When the female patient changed her
mind, the men contacted Emilio Hernandez, who sometime acted as a referrer for
them. Hernandez put them in touch with appellant, who had told Hernandez the day
before that he was looking for a way to make some money.
On Hernandez’s recommendation, Steward and Coleman picked up appellant,
who they knew as “Black,” at Sunrise Grocery Store near the Villages at Meyerland
Apartments. Appellant got into Steward’s car, sitting behind Steward, who was
driving. On the drive to the pain clinic, Steward and Coleman coached appellant
about what to say at the clinic. Once at the clinic, appellant identified himself as
“Markell Davis,” which Steward wrote down on a sticky note for the receptionist.
The clinic, however, was not seeing any more patients that day, so appellant,
Steward, and Coleman waited outside for the other patients, including Henegan, to
finish their appointments.
Once Henegan was finished at the clinic, he got in the car with appellant,
Steward, and Coleman to go fill his prescription. Steward was driving, Coleman
was in the passenger seat, Henegan was sitting behind Steward, and appellant was
sitting behind Coleman. After filling Henegan’s prescription at Burke Pharmacy in
Pasadena, Steward drove to a nearby Valero gas station and sold the pills to three
women from Louisiana.
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Steward took appellant to the Sunrise Grocery store where he picked him up,
and then he planned to go to another pharmacy to get more pills for the women from
Louisiana, who were following Steward in their car. While appellant was in the
backseat, Steward told him he was sorry it did not work out. Coleman gave appellant
$20 for his time, and the men decided to meet appellant two days later to try again.
As appellant was getting out of the car, he put his arm around Coleman’s neck
and began choking him. Appellant then pulled out a gun and demanded that they
give him money, or he would shoot Coleman. Steward heard the first gunshot as he
and Henegan “bailed out” of the driver’s side doors and began running. Henegan
fled to a nearby grocery store and Steward hid behind a nearby car.
Steward eventually returned to his car, where he found Coleman slumped
back with a gunshot wound to his head. Steward got back in the car and drove a short
distance away to the Nob Hill Apartments before pulling over, getting out of the car,
and screaming for help, crying that his “brother” had been shot. Two women from
the Nob Hill apartments responded to his calls: Morgan Williams called 9-1-1 and
Anna Jordan began performing CPR on Coleman. Steward returned to the car while
Jordan was performing CPR. She testified that Steward was hysterical and was on
the phone asking someone to bring guns. Steward also took the money from
Coleman’s pocket and a couple of cell phones from the car and gave them to the
women from Louisiana who had been following him and were still behind him. The
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women eventually turned the items over to police. Williams reported that she saw a
woman remove a gun from the car. No murder weapon was ever found.
Steward initially told police that the killing occurred during a marijuana sale
gone wrong because he did not want to tell them about his “pill-mill” operation. He
did, however, tell police that he believed the shooter to be a man he knew as “Black.”
After his initial questioning by police, Steward called Hernandez, who had
connected him with Black, and asked for Black’s phone number.2
When Steward
googled the number, the name “Markell Davis” appeared, which Steward
remembered to be the name Black used at the clinic. Steward then used that name to
locate photographs of the man he knew as “Black” on Facebook. Steward then met
with officers again and gave them the photographs of appellant that he had retrieved
from Facebook. He did not tell police that Henegan was also in the car the day of the
murder; but police discovered his involvement when surveillance footage from the
Sunrise Grocery showed an additional passenger. When confronted with the
surveillance footage, Steward told police about Henegan.
Not knowing that Henegan had participated in Steward’s Google research,
police officers presented him with a photographic array using one of appellant’s
Facebook photographs. Henegan said that he was “3000%” sure that the photograph
2 Hernandez had previously given Black’s number to Coleman.
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of appellant that he saw in the array was the man named Black that he had been with
in the car on the day of the murder. He also identified appellant at trial.
The police also showed the photographic array to Robyn Singh, a bystander
who had been opening the curtains of her apartment at the Villages of Meyerland on
the day of the murder when she heard a gunshot and saw people scattering from a
car. She had previously told police that one of the men fleeing the car was a man she
knew as Black, who lived or stayed at the Villages of Meyerland Apartments too.
However, when presented with the photographic array, Singh testified that she “was
not sure” and that she wanted to be one hundred percent sure.
Police arrested appellant and he gave a statement, in which he claimed that he
did not know the area where the murder took place, even though he lived less than a
block away. He claimed that on the day of the murder, he went to a park, then his
cousin’s house, and then back to the park. He also claimed that he was on the
telephone with his girlfriend during the time of the murder, and he denied ever using
the name Black. However, an analysis of appellant’s phone records showed that he
was not in the locations that he claimed to have been in; instead, the records showed
him to be where Steward testified that appellant was—near the Sunshine Grocery
store, then traveling down 610 and I-45 toward the pain clinic, then in an area of
Pasadena near Burke Pharmacy, and finally, back in the area of the Villages of
Meyerland Apartments. Text messages on appellant’s phone refer to him by the
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name “Black.” And, although he talked to his girlfriend on the day of the murder, he
was not on the phone with her during the time of the murder.
After a trial, at which Steward, Henegan, and Hernandez testified after being
given use immunity and promised that their testimony, if truthful, would not be used
against them in connection with any case involving the “pill mill” scheme, a jury
convicted appellant of capital murder. The trial court assessed punishment at
confinement for life because the State did not seek the death penalty. This appeal
followed.
MOTION TO SUPPRESS IDENTIFICATIONS
In his first issue, appellant contends that “the trial court committed reversible
error by denying [his] motion to suppress the impermissible suggestive out-of-court
and in-court identifications.” Specifically, he complains that the identification
procedures were impermissibly suggestive because Steward had shown Henegan
appellant’s Facebook photo before police used the same photograph in the
photographic array that they showed Henegan.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence for abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court
abuses its discretion when its ruling is arbitrary or unreasonable. State v. Mechler,
153 S.W.3d 435, 439 (Tex. Crim. App. 2005). We will affirm a trial court’s ruling
8
on a motion to suppress if it is reasonably supported by the record and is correct
under any theory of law applicable to the case. Young v. State, 283 S.W.3d 854, 873
(Tex. Crim. App. 2009).
We apply a bifurcated standard when reviewing a trial court’s ruling on a
motion to suppress evidence. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.
App. 2000). Under this standard of review, we afford “almost total deference to a
trial court’s determination of historical facts” if supported by the record. Valtierra
v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We review the trial court’s
application of the law to those facts de novo. See id.
The trial judge is the sole trier of fact and exclusive judge of the credibility of
the witnesses and the weight to be given to their testimony. St. George v. State, 237
S.W.3d 720, 725 (Tex. Crim. App. 2007). Absent a showing that the trial court
abused its discretion by making a finding unsupported by the record, we defer to the
trial court’s findings of fact and will not disturb them on appeal. See State v.
Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011).
Applicable Law
A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the accused due process of law. See Simmons v. United States, 390 U.S. 377, 384
(1968); Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995). An in-court
9
identification is inadmissible when it has been tainted by an impermissibly
suggestive pretrial photographic identification. Luna v. State, 268 S.W.3d 594, 605
(Tex. Crim. App. 2008) (citing Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App.
1999)).
We employ a two-step analysis to determine the admissibility of an in-court
identification when a defendant contends that suggestive pretrial identification
procedures tainted the in-court identification. Delk v. State, 855 S.W.2d 700, 706
(Tex. Crim. App. 1993); Santos v. State, 116 S.W.3d 447, 451 (Tex. App.—Houston
[14th Dist.] 2003, pet. ref’d). First, we determine if the pretrial identification
procedure was impermissibly suggestive. Delk, 855 S.W.2d at 706; Santiago v.
State, 425 S.W.3d 437, 440 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
Second, if we conclude that the procedure was impermissibly suggestive, we then
determine if the impermissibly suggestive procedure gave rise to a very substantial
likelihood of irreparable misidentification. See Santiago, 425 S.W.3d at 440. The
defendant must prove both elements by clear and convincing evidence. Barley, 906
S.W.2d at 33–34. Only if we determine that the pretrial identification procedure is
impermissibly suggestive do we examine whether it tainted the in-court
identification. Id. at 34.
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Analysis
Appellant contends that the pretrial identification procedure was
impermissibly suggestive because, before the police used appellant’s photograph in
the photographic array, Henegan had already seen the photograph when Steward
located it on Facebook and showed it to him. Appellant further argues that
Henegan’s out–of-court identification tainted his subsequent in-court identification.
We are guided by the Court of Criminal Appeals’s opinion in Rogers v. State,
774 S.W.2d 247 (Tex. Crim. App. 1989), overruled on other grounds, Peek v. State,
106 S.W.3d 72 (Tex. Crim. App. 2003). In Rogers, several witnesses identified a
capital murder suspect from a lineup the day after they had seen a newspaper picture
of the defendant’s arrest. 774 S.W.2d at 259. At trial, the witnesses again identified
the defendant. Id. On appeal, the defendant complained that the trial court should
have suppressed the witnesses’ in-court identifications because they were tainted by
the suggestive out-of-court photograph. Id.
In rejecting the defendant’s argument, the Court reasoned:
Given the absence of any official action contributing to the likelihood
of misidentification in this case, the constitutional sanction of
inadmissibility should not be applied, regardless of the extent to which
any witness’s in-court identification might have been rendered less
reliable by prior exposure to the newspaper photograph.
. . . .
Since the police procedure was not itself suggestive, the fact that
several eyewitnesses were exposed to a media photo of appellant one
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day before attending a police lineup might, at most, be taken to affect
the weight, although not the admissibility, of their trial testimony.
Id. at 260 (citations omitted); see also Perry v. New Hampshire, 565 U.S. 228, 232
n.1 (2012) (noting that “what triggers due process concerns [regarding the admission
of eyewitness identification] is police use of an unnecessarily suggestive
identification procedure”).
Here, as in Rogers, no evidence shows that the police had any part in
Steward’s independent research on Facebook, his discovery of appellant’s
photograph, or the presentation of that photo to Henegan before Henegan viewed the
photographic array. Because appellant does not challenge the suggestiveness of the
pretrial photographic array or the manner in which the police presented the array to
Henegan, and because no state action was involved in Henegan’s initial viewing of
appellant’s Facebook photo, appellant has failed to demonstrate that the out-of-court
identification procedures in this case were impermissibly suggestive. See Rogers,
774 S.W.2d at 260; Gilmore v. State, 397 S.W.3d 226, 238 (Tex. App.—Fort Worth
2012, pet. ref’d) (concluding witnesses’ viewing of defendant’s picture in television
news broadcast about shooting incident did not support determination that witnesses’
identification of defendant as shooter was result of impermissibly suggestive
identification procedures when no state action was involved in witnesses’ viewing
of defendant’s photograph on news); Craig v. State, 985 S.W.2d 693, 694 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d) (holding sexual assault victim’s in-court
12
identification of defendant was not subject to suppression on ground that victim’s
out-of-court identification from news report was result of unduly suggestive
procedure, when there was no police involvement in news report); see also Bell v.
State, No. 03-11-00247-CR, 2012 WL 3797597, at *6–9 (Tex. App.—Austin Aug.
28, 2012, no pet.) (mem. op., not designated for publication) (rejecting defendant’s
argument that witness’s in-court identification was tainted by having previously
viewed, without police arrangement, photograph on internet identifying defendant
as suspect in offense).
Further, the record shows that Henegan had previously met appellant and that,
on the day in question, he rode in the back seat of Steward’s car with appellant when
they went (1) to the pharmacy to fill the prescriptions, (2) to a gas station to sell the
pills, and (3) to the Sunrise Grocery Store to drop off appellant. Henegan also saw
appellant, during the offense, when appellant demanded the money from the pills,
waived a gun, and threatened to shoot Coleman in the head. Henegan said that he
was “3,000 percent sure” of his identification of appellant. The fact that Henegan
saw the social media photograph of appellant before viewing the police’s
photographic array “might, at most, be taken to affect the weight, although not the
admissibility,” of Henegan’s testimony and in-court identification of appellant. See
Rogers, 774 S.W.2d at 260. Because appellant has not satisfied the first step of the
analysis, we do not reach the second step, i.e., whether the procedure gave rise to a
13
very substantial likelihood of irreparable misidentification. See Barley, 906 S.W.2d
at 34 (citing Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988)).
Because the trial court properly denied appellant’s motion to suppress
Henegan’s out-of-court and in-court identifications of appellant, we overrule
appellant’s first issue.
AUTOMATIC PUNISHMENT OF LIFE WITHOUTH PAROLE
In his second and third issues, appellant contends that the automatic
punishment of life without parole violates the Eighth Amendment of the United
States Constitution and Article I, section 13 of the Texas Constitution “because there
is no vehicle for consideration of mitigating evidence which would justify a less
severe sentence, either by a jury or by parole authorities.”
Preservation of error is a systemic requirement on appeal. Darcy v. State, 488
S.W.3d 325, 327 (Tex. Crim. App. 2016). Generally, all errors—even constitutional
errors—may be forfeited on appeal if an appellant fails to object at trial. Garza v.
State, 435 S.W.3d 258, 260–61 (Tex. Crim. App. 2014). To preserve a complaint
that a sentence constitutes cruel and unusual punishment or violates due process and
due course of law under the United States or Texas Constitutions, a defendant must
make a timely, specific objection in the trial court. Burt v. State, 396 S.W.3d 574,
577 (Tex. Crim. App. 2013); Lucero v. State, 246 S.W.3d 86, 98 (Tex. Crim. App.
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2008); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); see also Gavin
v. State, 404 S.W.3d 597, 602–03 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
Because appellant failed to raise any constitutional complaints regarding his
statutorily mandated sentence in the trial court, he is not entitled to appellate review
of those issues.
3
We overrule appellant’s second and third issues.
Outcome: We affirm the trial court’s judgment.
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