State of Louisiana v. Davario Xavier Cole

Judgment rendered January 10, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,287-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

DAVARIO XAVIER COLE Appellant

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Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 376470

Honorable John D. Mosely, Jr., Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Chad Ikerd

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

REBECCA ARMAND EDWARDS
SAMUEL S. CRICHTON
Assistant District Attorneys

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Before STEPHENS, ROBINSON, and ELLENDER, JJ.

ROBINSON, J.

Davario Xavier Cole (“Cole”) was found guilty as charged by a

Caddo Parish jury of one count each of attempted second degree murder, La.

R.S. 14:30.1 and 14:27, possession of a firearm by a convicted felon, La.

R.S. 14:95.1, and aggravated criminal damage to property, La. R.S. 14:55.

He was sentenced to 25 years at hard labor without benefit of probation,

parole, or suspension of sentence for the attempted murder conviction, 20

years at hard labor without benefit of probation, parole, or suspension of

sentence for the felon in possession of a firearm conviction, and 15 years at

hard labor for the criminal damage to property conviction, all to run

concurrently. The trial court denied Cole’s motion to acquit, motion for a

new trial, and motion to reconsider sentence. Cole appeals his convictions

of attempted second degree murder and aggravated criminal damage to

property based on insufficiency of the evidence.

For the reasons set forth below, we AFFIRM the convictions.

FACTS AND PROCEDURAL HISTORY

On June 16, 2020, a shooting occurred at the home of Vonseca

Woodley (“Woodley”) at approximately 2:00 a.m. An additional alleged

shooting occurred at Woodley’s home later that morning at approximately

7:30 a.m. At the time of the first shooting, Woodley was asleep in her bed

when she was awakened by gunshots into her home, striking the walls and

shattering the glass shower door in the bathroom adjacent to her bedroom.

Her adult daughters, Tia Hudson and Tamera Hudson (“Hudson”), and Tia

Hudson’s boyfriend, were also in the house at the time. No one was injured.

No one witnessed the shooting, but Woodley immediately suspected that the

shooter was Cole, who is Hudson’s ex-boyfriend.

Several of Woodley’s other family members had come to the home

early that morning in response to the 2:00 a.m. shooting and were inspecting

the property. Woodley’s brother, James Turner, a.k.a. “Junior” (“Turner”),

Aleka Youngblood (“Aleka”), Woodley’s and Turner’s sister, and Jordan

Youngblood (“Jordan”), Aleka’s son, were all outside of Woodley’s home

when Cole arrived there. Cole testified that he had come over out of concern

for Hudson’s safety because he had heard about the overnight shooting and

another shooting had happened at his cousin’s home. Woodley claimed she

was inside her home when Cole arrived, while Cole claimed she was outside

like the others, but in the front yard. Cole remained in his vehicle and

Turner approached Cole, and the two had a brief conversation. Turner

claimed he saw a gun in the car and that Cole placed his hand on it while the

two spoke. Cole then backed out of the driveway and began driving down

the road, but made a U-turn to come back by the house. Turner yelled out to

his family outside to run because Cole had a gun. Turner claimed he ran

through the garage in the back yard and heard something hitting the house,

which he claimed were gunshots. Aleka also claimed she heard gunshots.

Jordan stated that he did not hear gunshots due to the chaos of people

running and screaming, but that there was a new area of damage to the home

that had not been there prior to the 7:30 a.m. incident. Corporal Adam

McEntee, the Shreveport Police Department detective who responded to the

shots fired call the morning of June 16, 2020, after the second incident,

noted that the damage to the home was consistent with gunfire.

Prior to the shooting incidents, Cole and Hudson had been in a

tumultuous relationship for several years, which included heated arguments,

infidelity, family tension, and multiple occasions of violence by both
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individuals. In 2019, a protective order was issued prohibiting Cole from

contact with Hudson and Woodley. Despite the protective order, Hudson

and Cole continued to contact each other. At one point, Cole received a

felony conviction for unauthorized entry of an inhabited dwelling,

Woodley’s home. Woodley testified regarding a specific incident with Cole

that occurred just a few weeks prior to the shootings in which Cole had

forced Hudson out of the vehicle they were in, which happened to be owned

by Woodley. Woodley confronted Cole and a heated argument took place,

whereafter Woodley firmly told Hudson she would no longer allow Hudson

to live with her or use her car if she continued to be in a relationship. Cole

repeatedly sent harassing messages to or about Hudson and/or her family

before and after the protective order, as well as after the shooting incidents

while Cole was in jail.

The State originally charged Cole with attempted first degree murder

of Turner, but later amended the bill of information to include an attempted

second degree murder of Woodley along with the gun possession and

criminal property damage charges. Cole pled not guilty. Prior to trial, the

court held an evidentiary hearing on the admissibility and relevance of

phone calls and text messages sent by and received by Cole while he was in

jail. The court found them relevant and admissible, based on the nature of

their content. The defense objected to the ruling and continued to object

throughout trial with a running objection. During trial, the defense also

objected to the admissibility of the existence of a protective order being

disclosed, since Cole was not charged with violating the protective order.

Part of the State’s argument for admission of the protective order was that it

was res gestae to these crimes, and because there was a misdemeanor bill
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that would be tried. The State did not submit the misdemeanor violation to

the trial court prior to trial, and only raised the issue post-trial.

DISCUSSION

Sufficiency of Evidence

Cole argues that there was insufficient evidence to prove he is guilty

of attempted second degree murder and aggravated criminal damage to

property. He notes that there is no forensic evidence tying him to either

shooting, including DNA, fingerprints, or ballistics. No shell casings were

recovered, no bullets were matched to a gun associated with Cole, there was

no cellphone tower triangulation evidence showing he was in the vicinity of

Woodley’s house during the 2:00 a.m. shooting, and there were no witnesses

to the 2:00 shooting at all or to Cole shooting at the 7:30 incident. He argues

that the messages in which he made terrible statements to Hudson or her

family did not include any threats toward Woodley prior to the incidents,

and that only those negative messages were shown at trial and none that

showed him as thoughtful and apologetic. It is Cole’s position that there

was solely speculation that he was guilty based on his tumultuous

relationship with Hudson.

Cole also argues that the fact that shots were fired into Woodley’s

bedroom and bathroom area does not indicate that she was an intended

victim. He notes in particular that Woodley’s neighborhood is a high-crime

area and it was not uncommon to hear gunshots at night, which was

supported by Woodley’s own testimony, making it a reasonable possibility

that the bedroom could receive inadvertent damage from random gun

violence.

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Cole claims that it is unclear whether there was even a shooting at the

7:30 a.m. incident because no one saw him fire the gun and it is disputed

what sound was actually heard by Turner and Aleka. He points out that

Linwood Avenue, where the shots were allegedly fired from, is close enough

to the house where everyone outside should have been able to clearly hear

gunshots. He also claims that it does not make sense that he would attempt

to kill Woodley in the middle of the night, flee to avoid being seen, then

return in person a few hours later in broad daylight to shoot again. Cole

notes that Woodley’s family members immediately presumed he was the one

who shot at the house at 2:00 a.m., which was what led Turner to believe

that Cole was a threat when he came to the house later that morning.

Further, it is undisputed that Woodley wasn’t in the area outside with the

rest of the family during the second incident where the alleged shots were

fired, so she could not have been a targeted victim. He also points out that

the State decided not to charge Cole with attempted murder of Turner or

anyone else who had been in the vicinity of the alleged shootings, but only

for the attempted murder of Woodley.

The State argues that, viewed in the light most favorable to the

prosecution, the evidence sufficed to prove beyond a reasonable doubt that

Cole committed attempted second degree murder by shooting at Woodley’s

house multiple times in the area of her bedroom and bath where she would

be sleeping in the early morning hours, and that Cole committed the crime of

aggravated damage to property in connection thereto. Woodley and Turner

both testified regarding Hudson’s and the family’s hostile relationship with

Cole, as evidenced by the texts showing various threats by Cole prior to the

shooting. Cole made numerous threats toward Hudson and her family, both
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before and after the shooting incidents. Woodley testified that Cole was the

only person who had a problem with her due to her efforts to separate him

from Hudson, and noted that she did not know many people in the area since

she had not lived in Shreveport very long. Woodley and Hudson had a

protective order against Cole. Cole also had a prior conviction for

unlawfully entering Woodley’s home.

The State urges that the jury reasonably rejected the theories that the

first shooting was random gunfire, that Cole did not fire a gun during the

second incident, and that the two incidents were unrelated. The State points

out that the damage to the home from the first shooting was isolated to the

area where Woodley would be sleeping at night, and Cole was admittedly

very familiar with the layout of the home. Both Turner and Aleka, who

were outside the home during the second incident, stated that they heard

gunshots at the exact time that Cole would be driving past the house after he

made a U-turn in the road and sped toward the house. Jordan testified that

he had come to Woodley’s home with a specific purpose, to inspect damage,

and that the damage to the home immediately after the second incident was

not there previously. The officer on the scene following the second incident

testified that the damage to the home was consistent with gunfire. The State

claims that Cole’s involvement in the second incident, and the ongoing,

tumultuous relationship with Hudson and her family, bolstered the

establishment of Cole’s identity as the perpetrator of the 2:00 shooting.

For attempted second degree murder, the State must prove that Cole

had the specific intent to kill a human being and that he committed an overt

act in furtherance of that goal. La. R.S. 14:27; La. R.S. 14:30.1. As defined

by La. R.S. 14:10(1), specific intent is the state of mind existing when
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circumstances indicate the offender actively desired the prescribed criminal

consequences of his act or failure to act. Specific intent to kill may be

inferred from the circumstances and actions of the defendant, including his

intentional use of a deadly weapon, pointing a gun and firing in the direction

of a person, or firing a gun toward a house where people were standing out

front or where he knew people were present within. State v. Patterson,

50,305 (La. App. 2 Cir. 11/18/15), 184 So. 3d 739, writ denied, 15-2333 (La.

3/24/16), 190 So. 3d 1190. Aggravated criminal damage to property is “the

intentional damaging of any structure, watercraft, or movable, wherein it is

foreseeable that human life might be endangered, by any means other than

fire or explosion.” La. R.S. 14:55. The offense is not a specific intent crime.

The standard by which appellate courts are to review the sufficiency

of evidence in criminal prosecutions is enumerated in Jackson v. Virginia,

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), as follows:

A conviction must be based on proof sufficient for any rational
trier of fact, when viewing the evidence in the light most
favorable to the prosecution, to find the essential elements of the
crime beyond a reasonable doubt.

In conducting a Jackson review, the reviewing court may not “substitute its

own appreciation of the evidence for that of the factfinder,” assess the

credibility of witnesses, or reweigh the evidence. State v. Pigford, 05-0477

(La. 2/22/06), 922 So. 2d 517, State v. Smith, 94-3116 (La. 10/16/95), 661

So. 2d 442, State v. Nelson, 44,762 (La. App. 2 Cir. 10/28/09), 25 So. 3d

905. A jury’s decision to accept or reject the testimony of a witness in

whole or in part is entitled to great deference. State v. Eason, 43,788 (La.

App. 2 Cir. 2/25/09), 3 So. 3d 685. The fact-finder weighs the respective

credibility of the witnesses, and appellate courts will generally not second-

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guess those determinations. State v. Dabney, 02-0934 (La. 4/9/03), 842 So.

2d 326; State ex rel. Graffagnino v. King, 436 So. 2d 559 (La. 1983).

This standard applies in cases involving both direct and circumstantial

evidence. State v. Prude, 53,193 (La. App. 2 Cir. 3/4/20), 293 So. 3d 183;

State v. Henry, 47,323 (La. App. 2 Cir. 7/25/12), 103 So. 3d 424, writ

denied, 12-1917 (La. 3/8/13), 109 So. 3d 356; State v. Hill, 47,568 (La. App.

2 Cir. 9/26/12), 106 So. 3d 617. The facts established by the direct evidence

and inferred from the circumstances established by that evidence must be

sufficient for a rational trier of fact to find beyond a reasonable doubt that

the defendant was guilty of every essential element of the crime. State v.

Sutton, 436 So. 2d 471 (La. 1983); State v. Taylor, 28,736 (La. App. 2 Cir.

10/30/96), 682 So. 2d 827. Regarding circumstantial evidence, La. R.S.

15:438 requires that “assuming every fact to be proved that the evidence

tends to prove, in order to convict, it must exclude every reasonable

hypothesis of innocence.” State v. Young, 20-1041 (La. 5/13/21), 320 So. 3d

356. The circumstantial evidence rule is neither separate from nor stricter

than the Jackson standard of review. Taylor, supra.

The trial court heard testimony from several witnesses, including

Cole, and was in the best position to assess their credibility. This Court will

not disturb those determinations. Although this case hinges mostly on

circumstantial evidence, when viewed in the light most favorable to the

prosecution, there was sufficient evidence to prove beyond a reasonable

doubt Cole’s identification as the perpetrator and each of the essential

elements of the offenses of attempted second degree murder and aggravated

criminal damage to property, and every reasonable hypothesis of innocence

to find Cole guilty as charged was excluded.
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Relevance and Admissibility of Jail Calls and Texts

Cole argues that the trial court erred in admitting certain text

messages he sent to Hudson because many were hearsay admitted through a

third party and were not relevant, and their admission was prejudicial and

not harmless due to their inflammatory nature. Many of the messages were

sent while Cole was in jail and did not implicate him in either incident. The

messages also concerned Cole’s relationship with Hudson, not Woodley. He

argues that they did not admit guilt or address any particular facts of the

case, but were merely him lashing out under the circumstances.

The State claims that Cole’s jail texts and calls were highly probative

of his intent, his motivation for the shootings, his consciousness of guilt, and

his apparently successful efforts to deter Hudson from testifying. They were

res gestae of Cole’s abusive, toxic relationship with Hudson that led to the

offenses committed, which also support the credibility of both Woodley and

Turner in their testimony about Cole. Cole made threats to kill Hudson

and/or her family members, which were also relevant to demonstrate why

Hudson was not there to testify. In particular, Cole texted a month prior to

trial to “keep my name out of your mother f***ing mouth or get one of y’all

killed out there.” He also commented about not being able to get convicted

without Turner’s testimony. Further, Cole’s communications include

admissions of guilt. He asks for forgiveness for the “wrong” he did and for

another chance, promising he “won’t act crazy and flash out.” He

specifically threatened that “your momma, your uncle, your daddy, all y’all

going to feel that iron.”

“Relevant evidence” is “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the
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action more probable or less probable than it would be without the

evidence.” La. C.E. art. 401. All relevant evidence is admissible. La. C.E.

art. 402. However, relevant evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, or

waste of time. La. C.E. art. 403. The trial court is vested with much

discretion in determining relevance, and its determination regarding the

relevance and admissibility of evidence is not to be overturned on appeal in

the absence of a clear abuse of discretion. State v. Magee, 11-0574 (La.

9/28/12), 103 So. 3d 285; State v. Duck, 54,597 (La. App. 2 Cir. 12/14/22),

352 So. 2d 1097, writ denied, 23-00079 (La. 12/5/23), 2023 WL 8431617.

The jail calls and texts between Cole and Hudson are highly relevant

and probative. They paint a clear picture of the nature of their relationship,

which was essential to showing Cole’s motivation and intent, and it

bolstered the testimony of Woodley and Turner. Although the inflammatory

communications between Cole and Hudson are prejudicial to Cole’s defense,

their value is not outweighed by the danger of unfair prejudice. We find that

there is no clear abuse of discretion by the trial court in its evidentiary ruling

on the relevance and admissibility of the jail communications.

Denial of Witness Based on Sequestration

Cole claims that the trial court also erred in not allowing his mother to

testify, because she was not going to directly contradict a fact previously

testified to by another witness and the concerns of sequestration were not

implicated. Cole’s mother was present during the entirety of the trial after

the rule of sequestration had been invoked, but he argues that she should

have been able to testify regarding the inflammatory messages between Cole
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and Hudson despite sequestration issues, since he was unable to cross-

examine Hudson to show that he was never serious with any threats and was

merely hotheaded, as evidenced by Hudson’s staying in a relationship with

him for years without any harm to her or her family. Cole argues that

because Hudson did not testify, he was forced to testify himself or have his

mother testify as to his propensity to say extreme things he did not mean.

He asserts that the State continuously attacked Cole’s character and opened

the door so that he should have been able to offer character evidence in

rebuttal. Cole further claims that his mother was only going to generally

address his “reckless mouth” and was not going to testify to directly

contradict any factual questions answered by the State’s witnesses because

no witness had been asked whether Cole tended to act on his threats. Cole

cites State v. Breaux, 12-0555 (La. App. 4 Cir. 2/27/13), 110 So. 3d 281,

writ denied, 13-0699 (La. 10/25/13), 124 So. 3d 1093, in which the Fourth

Circuit stated “presence alone is not enough to warrant a witness’s

disqualification.”

The State argues that testimony by Cole’s mother regarding his

“reckless mouth” in response to the admission of evidence regarding his

threats was exactly the type of scenario for which the sequestration rules

were meant to apply. Because his mother was present for all the testimony

concerning Cole’s communications, she was well aware of what she was

expected to answer in response to Cole’s question. The State notes that Ms.

Cole was not a party, nor was she listed anywhere in connection to the

offenses, and the rule of sequestration was actually requested by the defense.

It also refers to Breaux, claiming a similarity in that court’s ruling to exclude

the defendant’s father from testifying as to defendant’s not residing where he
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was believed to live, after he had been present during testimony of a police

officer who testified about the execution of a search warrant at that

residence. The State also disputes Cole’s claim that it opened the door to the

introduction of character evidence. It argues that Cole’s various

communications were relevant to establishing intent; therefore, any

testimony regarding Cole’s character would be impermissible.

The State also points out that Cole knew exactly what evidence it

intended to present since it had all been provided timely to the defense and

was the subject of extensive argument prior to any testimony. It also notes

that Hudson’s material witness warrant was recalled prior to opening

arguments; therefore, Cole was aware that Hudson was not being presented

as a witness and could not be cross-examined, yet his mother was allowed to

remain in court throughout the State’s case after the rule of sequestration

was invoked. The State further notes that Cole was not forced to testify;

rather, he was persistent about testifying on his own behalf, seemingly

regardless of whether or not his mother took the stand to answer the question

about his reckless mouth.

The State also urges that Ms. Cole’s excluded testimony, as well the

admitted jail communications, were harmless error if deemed improper. An

error is harmless when the guilty verdict was surely unattributable to the

error. State v. Robertson, 06-1537 (La. 1/16/08), 988 So. 2d 166. The State

claims that there was ample evidence to convict Cole by way of Turner’s

and Woodley’s testimony, the damage to the home, and other circumstantial

evidence outside of the communications with Hudson; and his mother’s

biased testimony would have been inconsequential.

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This Court agrees with the trial court’s ruling to disallow the

testimony of Cole’s mother after she had been present throughout the

entirety of the trial, because it would be in clear violation of the

sequestration rules. It is clear that her anticipated answer was intended to

directly rebut the testimony of other witnesses regarding the nature of Cole’s

communications with Hudson. In addition, we do not find that Cole’s guilty

verdict would have been impacted in any way by the allowance of the

additional testimony.

CONCLUSION

For the foregoing reasons, this Court AFFIRMS the defendant’s

convictions of attempted second degree murder, La. R.S. 14:30.1 and 14:27,

and aggravated criminal damage to property, La. R.S. 14:55.

AFFIRMED.

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