Annual Davidson III v. the State of Texas

Opinion issued February 24, 2026

In the

Court of Appeals
for the

First District of Texas
————————————
NO. 01-24-00444-CR
———————————
ANNUAL DAVIDSON, III, Appellant
v.
THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1706895

MEMORANDUM OPINION

The State charged appellant Annual Davidson, III, with the murder of Joseph

Kasavage. See TEX. PENAL CODE § 19.02(b). The indictment alleged that appellant

caused Kasavage’s death by striking him on the head with a wooden club. Appellant
pleaded not guilty and waived his right to a jury trial. At the bench trial, appellant

asserted that he acted in self-defense. The trial court found appellant guilty of the

offense of murder and assessed appellant’s punishment at 20 years’ imprisonment.

In a single issue, appellant contends that the State impermissibly commented

during its closing argument at the guilt-innocence stage on his failure to testify. He

asserts that the trial court erred by overruling his objection to the State’s argument.

Because the record does not show that the trial court abused its discretion in

overruling the objection, we affirm.

Background

In his opening statement at trial, appellant stated that the evidence would show

that he struck Kasavage with a wooden club because Kasavage attacked him first

with “a weapon.” Appellant indicated that the detective who interviewed him after

Kasavage’s death—Detective Condon—would testify that appellant said that he and

Kasavage had “a fight” and that Kasavage attacked him with a weapon.

Jamel Woolfolk, appellant’s close friend, was the State’s first witness. She

testified that appellant lived in a house with his two elementary-school-aged

children. Kasavage was appellant’s tenant who lived in the home’s garage. Woolfolk

described Kasavage as being like an uncle to the children and said he took care of

them.

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Woolfolk testified that, while appellant and other friends were at her home,

appellant told them that his children said that Kasavage had inappropriately touched

them. Appellant, Woolfolk, and two other friends, including Marcus McLemore, left

Woolfolk’s home and drove to appellant’s house to ask the children about the

allegations.

Appellant and his friends spoke to the children in their bedroom. They asked

them whether Kasavage had inappropriately touched them, and the children

repeatedly said that he had not. Woodfolk recalled that appellant questioned the

children in a manner indicating that he wanted the children to agree with him.

According to Woolfolk, appellant left the children’s bedroom and went to the

garage where Kasavage lived. Woodfolk remained with the children in their

bedroom. The bedroom shared a wall with the garage, and Woodfolk testified that

she heard appellant yelling at Kasavage. She could not hear what they were saying,

but she heard appellant yelling. Woolfolk then heard what she described as

“thudding” sounds coming from the garage, and Kasavage screaming, “Stop hitting

me.” After she heard four thuds, Kasavage stopped screaming, but the thudding

continued. She went to the garage and saw Kasavage lying on the floor. She testified

that she did not see any weapons near Kasavage.

McLemore testified that he went to the garage and saw appellant hit Kasavage

twice on the back of the head with a wooden club. He intervened, and appellant

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stopped hitting Kasavage. Kasavage was lying on the garage floor bleeding and

unconscious.

McLemore drove Kasavage and appellant to the emergency room. McLemore

testified that, during the drive, appellant suggested throwing Kasavage’s body over

a bridge into a river. He also testified that appellant never said that Kasavage had a

weapon.

Once they arrived at the emergency room, Dr. Andrew Corona treated

Kasavage. Dr. Corona testified that appellant told him that Kasavage had fallen, hit

his head on concrete, and lost consciousness. A CT scan revealed that Kasavage

“had skull fractures extending from the back of his skull to the right side of his skull.”

He also had significant bleeding inside his skull and brain.

Dr. Corona believed that Kasavage’s injuries were not consistent with

appellant’s explanation and again asked appellant what happened. Appellant

admitted to Dr. Corona that he struck Kasavage with “a piece of wood” because

Kasavage “sexually assaulted his child.” Dr. Corona testified that appellant never

said that Kasavage attacked him with a weapon.

Dr. Corona also treated appellant for a hand injury. Appellant told Dr. Corona

that he cut his hand two days earlier and that it was healing but reopened when he

struck Kasavage. Dr. Corona saw no other injuries on appellant.

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Kasavage was transferred to another hospital, where he died. Dr. Pramod

Gumpeni, Deputy Chief Medical Examiner with the Harris County Institute of

Forensic Sciences, performed Kasavage’s autopsy. His examination found that

Kasavage had sustained multiple blunt force injuries to his head. He determined that

Kasavage’s cause of death was blunt trauma of the head with subdural hemorrhage,

brain injury, and skill fractures.

Detective J. Brown and his partner Detective M. Condon of the Houston

Police Department went to appellant’s home to investigate Kasavage’s death.

Detective Brown testified at trial, but Detective Condon did not testify.

Detective Brown testified that he examined the crime scene for evidence while

Detective Condon conducted an interview with appellant at the scene. In walking

the scene, Detective Brown observed multiple pools of blood on the garage floor.

He also saw a wooden club, which he believed was the “homicide weapon.” There

were “other potential weapons” in the garage, but he believed that the club was the

homicide weapon due to its proximity to the pools of blood and information he had

received about the weapon.

Detective Condon recorded appellant’s interview at the scene. The recorded

interview was not admitted into evidence, but Detective Brown stated that he

reviewed the case materials during the investigation and before testifying.

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Detective Brown testified that, when they arrived at the scene, appellant was

“crying hysterically.” Regarding what led to the incident, appellant said that he was

concerned about Kasavage entering his children’s bedroom and “was trying to . . .

get to the bottom of what happened.” Detective Brown did not remember appellant

saying that he and Kasavage had a “fight” but agreed that there was an “altercation”

between appellant and Kasavage. Detective Brown recalled that appellant said that

his leg hurt, he was limping, and the inside of appellant’s lip was bloody.

When the defense asked Detective Brown whether appellant said that

Kasavage had a weapon, the State objected based on hearsay. A discussion was held

off the record. When the trial court went back on the record, appellant did not pursue

an answer to the question, and Detective Brown never testified whether appellant

said that Kasavage had a weapon.

Appellant did not testify during the guilt-innocence phase. In his closing

argument, appellant asserted that the evidence showed that he acted in self-defense.

He claimed that he “established through Detective Brown” that he “told Detective

Condon and Detective Brown that there was a weapon involved that Mr. Kasavage

had.” The State objected that was “a misstatement of the facts.” The trial court did

not rule on the objection, stating that it would “refer to what the evidence is.” The

defense again asserted that Detective Brown testified that appellant told Detective

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Condon that appellant had a weapon and that there was “a fight.” Appellant argued,

“[W]hat we have from Detective Brown is a question of self-defense.”

The State began its rebuttal closing argument as follows:

[Appellant’s] actions were not justified. There has been no credible
evidence, physical or testimony, that has been presented to this Court
that shows the defendant acted in self-defense. He had several
opportunities to tell a story of self-defense, but he never mentioned self-
defense.

Appellant objected that the State’s argument was “a comment on his right to

testify [sic].” The trial court overruled the objection.

The State proceeded to argue that, although he spoke with several people after

the incident, appellant did not tell any of them that Kasavage had attacked him with

a weapon. The State asserted that appellant did not tell Woolfolk or McLemore that

Kasavage had attacked him with a weapon. The State emphasized that appellant told

Dr. Corona that he struck Kasavage because he “molested his kids,” not because he

was attacked with a weapon. The State asserted that Detective Brown did not testify

that appellant told Detective Condon that Kasavage attacked him with a weapon.

Appellant objected that was “a misstatement,” and the trial court again stated that it

had “heard the evidence” without ruling on the objection. The State argued that at

“[n]o time did the defendant say to any of these people that he was in fear for his life

or that he was in fear of serious bodily injury or death, that [Kasavage] had a

weapon.”

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The trial court found appellant guilty of the offense of murder and assessed

his punishment at 20 years’ imprisonment.

Comment on Failure to Testify

In his sole issue, appellant contends that the trial court erred in overruling his

objection that the State impermissibly commented on his failure to testify during its

closing argument. He asserts that permitting the argument violated his constitutional

right against self-incrimination.

A. Standard of Review

We review a trial court’s ruling on an objection to improper closing argument,

such as an improper comment on a defendant’s decision not to testify, for abuse of

discretion. Cantu v. State, 395 S.W.3d 202, 209 (Tex. App.—Houston [1st Dist.]

2012, pet. ref’d) (citing Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.

2004)). A trial court abuses its discretion when its decision lies outside the zone of

reasonable disagreement; that is, when the decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Henley v. State,

493 S.W.3d 77, 83 (Tex. Crim. App. 2016).

B. Applicable Law

Proper closing argument generally falls within one of four areas:

(1) summation of the evidence, (2) reasonable deduction from the evidence,

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(3) answer to an argument of opposing counsel, and (4) plea for law enforcement.

Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019).

Closing argument that comments on the defendant’s failure to testify is

improper because it “violates the privilege against self-incrimination and the

freedom from being compelled to testify contained in the Fifth Amendment of the

United States Constitution and Article I, § 10, of the Texas Constitution.”1

Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001); see U.S. CONST.

amend. V; TEX. CONST. art. I, § 10. Statutory law also provides that a defendant’s

failure to testify “shall not be taken as a circumstance against him, nor shall the same

be alluded to or commented on by counsel in the cause.” TEX. CODE CRIM. PROC.

art. 38.08.

To determine “whether a prosecutor’s comment violated the Fifth

Amendment, a court should view the prosecutor’s argument from the [factfinder’s]

standpoint and resolve any ambiguities in favor of the argument being permissible.”

Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020) (citing Randolph v.

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Although he cites the Texas Constitution in his brief, appellant does not distinguish
his state constitutional right against self-incrimination from his federal
constitutional right, nor does he argue that the Texas Constitution provides greater
protection than the federal Constitution. Accordingly, we consider only whether the
State’s argument violated appellant’s Fifth Amendment privilege against self-
incrimination. See Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020)
(citing Lagrone v. State, 942 S.W.2d 602, 612 (Tex. Crim. App. 1997) (declining to
address state constitutional claims because appellant did not distinguish them from
or argue that Texas Constitution provides greater protections than federal
Constitution).
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State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011)). “Thus, the implication that the

State referred to the defendant’s failure to testify must be a clear and necessary one.

If the language might reasonably be construed as merely an implied or indirect

allusion, there is no violation.” Randolph, 353 S.W.3d at 891 (footnotes omitted).

The test “is whether the language used was manifestly intended or was of such

a character that the [factfinder] would necessarily and naturally take it as a comment

on the defendant’s failure to testify.” Id. “In applying this standard, the context in

which the comment was made must be analyzed to determine whether the language

used was of such character.” Id. A court “cannot find that the prosecutor manifestly

intended to comment on the defendant[’s] failure to testify, if some other explanation

for his remark is equally plausible.” Id. (quoting United States v. Rochan, 563 F.2d

1246, 1249 (5th Cir. 1977)).

C. Analysis

At the beginning of its rebuttal closing argument, the State asserted:

[Appellant]’s actions were not justified. There has been no credible
evidence, physical or testimony, that has been presented to this Court
that shows the defendant acted in self-defense. He had several
opportunities to tell a story of self-defense, but he never mentioned self-
defense.

(Emphasis added.)

Appellant asserts that the italicized portion of the argument was an improper

comment on his choice not to testify. On appeal, he argues that the comment was

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improper because it referred to evidence that only he could provide, namely, “what

occurred in the garage when [appellant] confronted Kasavage about molesting his

children.” See Cantu, 395 S.W.3d at 210 (“A jury argument is improper where it

calls the jury’s attention to the absence of evidence that only the defendant’s

testimony could supply.”). However, in making his argument, appellant does not

fully consider the context in which the comment was made. See Randolph, 353

S.W.3d at 891.

When the context is considered, the record does not support appellant’s claim

that the comment was an attempt to draw the trial court’s attention to evidence only

appellant could provide. Instead, in commenting that appellant “had several

opportunities to tell a story of self-defense” but did not mention it, the State was

reminding the trial court, as the factfinder, that the evidence showed that appellant

spoke with several people following the incident but did not mention to them that

Kasavage attacked him with a weapon or that they fought.

McLemore, who drove Kasavage and appellant to the hospital, testified that

appellant suggested throwing Kasavage’s body over a bridge into a river and

confirmed that appellant did not tell him that Kasavage had a weapon. Dr. Corona

testified that appellant told him that he struck Kasavage with a piece of wood

because he “sexually assaulted his child,” but appellant never said that Kasavage

attacked him with a weapon. And Detective Brown testified that he did not recall

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appellant saying that there was a “fight.” Thus, when considering the context, the

complained-of comment was permissible closing argument—summation of, and a

reasonable deduction from, the record evidence. See Archie v. State, 340 S.W.3d

734, 739 (Tex. Crim. App. 2011) (holding that portion of prosecutor’s argument was

permissible because it was “a reasonable deduction from the evidence” and not

improper comment on defendant’s failure to testify); see also Milton, 572 S.W.3d at

239 (stating proper closing argument includes summation of, and reasonable

deductions from, evidence).

Additionally, in his closing argument, appellant asserted that Detective Brown

testified that appellant told Detective Condon that Kasavage had a weapon. This

assertion was crucial to appellant’s argument that “what we have from Detective

Brown is a question of self-defense.” The State objected to appellant’s assertion and

disputed that Detective Brown testified that appellant told Detective Condon that

Kasavage had a weapon. The State’s comment that appellant “had several

opportunities to tell a story of self-defense,” but did not mention it, can also be

plausibly viewed as an answer to appellant’s self-defense argument based on his

claim about Detective Brown’s testimony. See Milton, 572 S.W.3d at 239 (stating

proper closing argument includes answer to argument of opposing counsel). The

State’s comment highlighted its position that, not only did Detective Brown’s

testimony not show that appellant told Detective Condon that Kasavage had a

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weapon, but the record evidence also showed that appellant did not tell the other

witnesses with whom he spoke after the incident that Kasavage had a weapon,

despite opportunities to do so.

We conclude that the record does not show that the State manifestly intended

the remark to be a comment on appellant’s failure to testify at trial. See Randolph,

353 S.W.3d at 891. The trial court would not have naturally and necessarily

understood the comment to refer to appellant’s choice not to testify. Id. Given the

context in which it was made, the State’s comment can reasonably be construed as

a reference to the evidence showing that appellant did not tell the witnesses with

whom he interacted after the incident that Kasavage attacked him with a weapon or

that they fought. Because there is an equally plausible explanation for the State’s

comment, the record does not support the conclusion that appellant’s right against

self-incrimination was violated. Id. Accordingly, we hold that the trial court did not

abuse its discretion by overruling appellant’s objection to the State’s comment.

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Amparo “Amy” Guerra
Justice

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Panel consists of Justices Guerra, Caughey, and Dokupil.

Do not publish. TEX. R. APP. P. 47.2(b).

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