State of Louisiana v. Xavier Watson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-350

STATE OF LOUISIANA

VERSUS

XAVIER WATSON

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 22-K-1899-A
HONORABLE GREGORY JAMES DOUCET, DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602
(337) 491-0570
COUNSEL FOR DEFENDANT-APPELLANT:
Xavier Watson

Chad Pitre
District Attorney, Twenty-Seventh Judicial District
Kathleen E. Ryan
Assistant District Attorney
P.O. Box 1968
Opelousas, LA 70571
(337) 948-3041
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Chief Judge.

FACTS

On May 4, 2022, at approximately 10:00 p.m., Eunice police officers

received an alert regarding a shooting. Upon arrival on the scene, police

discovered a fourteen-year-old male with a gunshot wound to the abdomen. A

civilian drove the victim to a hospital to avoid any delay in treatment. Although

the area was very dark, officers observed blood and bullet casings in the road,

along with flip-flops and three bicycles.

An officer, Keith Peters, went to the hospital and spoke to the victim, who

identified the shooter by the nickname “Xa.” Police attempts to locate the suspect

were initially unsuccessful.

Detective Victor Fontenot interviewed two witnesses, one of whom was a

juvenile. Detective Fontenot learned there were gunshots in the area prior to the

shooting at issue. The victim and the juvenile witness were riding their bicycles in

the road, and the victim asked the defendant why he was shooting. Another shot

rang out, and the victim fell to the ground. The adult witness was the victim’s

aunt. She testified that the defendant told her, as he left the scene, that he shot the

victim because “they were fucking with me.”

Detective Fontenot also interviewed the defendant’s girlfriend, Tori Janice.

She used her cell phone to show Detective Fontenot pictures of the defendant, as

the detective had not seen him before. In the course of the investigation, police

determined the flip-flops at the scene belonged to the victim and the juvenile

witness. All the bullet casings at the scene were of the same caliber. Investigators

did not locate the weapon used in the crime.

Elvin Thomas testified that he was sixteen years old in May 2022. On May

4 of that year, he and the victim, C.V., helped a relative of the victim move into a

house.1 They helped with moving between about noon and two in the afternoon.

The victim’s relative paid them, and they went to the store and bought some food.

Afterward, they sat in front of Thomas’s mother’s house. Later, Thomas said he

and the victim saw the defendant in the area. Thomas sat on the porch with some

relatives. The victim sat on a bicycle in the street. The witness saw the victim and

the defendant talking but did not hear what they said. Thomas turned to speak with

people on the porch. As his back was to the street, he heard gunshots. He rushed

to get his nieces and nephews into the house, then he ran out into the street to help

the victim’s grandmother and “nanny” get him into a car. According to Thomas,

the grandmother drove the victim to the hospital. Thomas saw the defendant flee

the scene with a gun in his hand. Thomas noted that there had been no prior

trouble or disagreements between the victim and the defendant.

On cross-examination, Thomas reiterated that his back was turned when he

heard the gunshot, but he was in the yard not on the porch. On redirect, Thomas

noted that one of his friends on the porch had a gun and fired at the defendant as he

fled.

The victim, C.V., also testified. On the night of the shooting, he was

fourteen years old. He testified he was not with Elvin Thomas on the day of the

shooting and did not help move any furniture. He noted that he was high from

smoking marijuana at the time of the offense. Also, he testified the shooter’s face

was covered. Thus, the victim indicated he could not identify the defendant as the

man who shot him. He admitted to having accidentally shot himself in the knee in

a separate incident but affirmed that in the incident at issue, another person shot

1
We use juveniles’ initials to protect the identity of minor victims. La.R.S. 46:1844(W).

2

him. He was also shot in another incident a month later, but at trial he displayed a

scar from the incident at issue.

C.V.’s testimony that he could not identify the shooter differed from his

earlier testimony, which suggested he knew who the shooter was. He stated that as

he was about to bicycle to his aunt’s house to take her some food, he heard gunfire.

He approached a man at the corner and asked that man if he heard the gunshots.

The victim indicated that he recognized the person from seeing him in the area at

various times before the offense. After C.V. asked the man about the gunshots,

C.V. then heard more shots, then realized that he had been hit. The victim did not

see the gun but stated the shots came “out of his jacket.” C.V. noted that although

he had previously seen the man around the area at various times, he did not know

the man’s name. He identified the defendant in court as the same man. However,

C.V. also said he could not see the shooter’s face on the night of the offense

because he had something over it.

The next witness was Ethel Fontenot, the victim’s aunt. Although she could

not remember the date of the incident, she remembered the events. As she was

walking to her car that evening, she heard gunshots. After waiting a while, she

walked toward the road. The victim then passed by on a bicycle. She saw him

approach another male, and they “exchanged words.” The victim asked the other

male about the earlier gunshots. The other person shot him. At that point, Mrs.

Fontenot could not see the shooter’s face because he was in a dark area. She did

not see the gun but saw the flash of gunfire. She went to her nephew, and the

shooter walked past her as he left the scene. She asked the man if he shot the

victim, and he responded that people were “fucking with him.” She identified the

shooter as “Xa” and stated that she had seen him speaking with the victim on

various prior occasions. Also, the victim identified the shooter to her as “Xa.”
3

The state also adduced further testimony from Detective Fontenot.

Detective Fontenot testified regarding statements the defendant made to police.

The defendant claimed that he was not in the area at the time of the shooting, as he

had moved to California two months prior to the event. Police retrieved him from

California during the investigation. The defendant was aware of the shooting and

that his name had been brought up in connection with it. The detective testified

that Ms. Janice, the defendant’s girlfriend, was still in Eunice on the date of the

shooting. During the detective’s interview of Elvin Thomas’s mother around

midnight on the night of the offense, she received a telephone call and advised

Detective Fontenot that the defendant was in the neighborhood.

On February 20, 2024, the state filed an amended bill of information

charging the defendant Xavier Watson with attempted murder, a violation of

La.R.S. 14:27 and La.R.S. 14:30.1.2 On the same date, the parties selected a trial

jury. The jury began hearing evidence the next day and ultimately found the

defendant guilty as charged. On May 2, 2024, the district court sentenced him to

forty years of incarceration.

The defendant now appeals his conviction, assigning four errors.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find there are no errors patent.

ASSIGNMENTS OF ERROR

1. The evidence presented at trial, when viewed in the light most
favorable to the prosecution, was insufficient to find Mr. Watson
guilty of attempted second degree murder beyond a reasonable doubt.

2
The state filed the original bill on December 16, 2022. The amended bill simply changed
the identification of the victim from “a juvenile” to “C.V.”
4

2. The trial court’s denial of Defense counsel’s request to question a
State’s witness regarding the juvenile victim’s prior criminal
convictions deprived Mr. Watson of his constitutional right to cross-
examine the witnesses against him.

3. The trial court erred in admitting prejudicial other crimes evidence
when the court and both counsel previously had a prior discussion
excluding such evidence.

4. The failure of the trial court to exclude inadmissible hearsay evidence
violated Mr. Watson’s constitutional right to a fair trial.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant argues the trial evidence was

insufficient to support his conviction. When a defendant makes such a challenge,

the analysis is settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however, the
record must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

As observed earlier, the jury convicted the defendant of attempted second degree

murder. Attempt is defined by La.R.S. 14:27(A):

Any person who, having a specific intent to commit a crime,
does or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.

5

According to La.R.S. 14:30.1(A)(1), second degree murder is a homicide

committed “[w]hen the offender has specific intent to kill or to inflict great bodily

harm.” Further, the jurisprudence has stated that an attempted murder conviction

must be supported by proof of specific intent to kill. State v. Deville, 22-350

(La.App. 3 Cir. 11/23/22), 354 So.3d 99; State v. Thomas, 10-269 (La.App. 3 Cir.

10/6/10), 48 So.3d 1210, writ denied, 10-2527 (La. 4/1/11), 60 So.3d 1248, cert.

denied, 565 U.S. 859, 132 S.Ct. 196 (2011).

The defendant makes two arguments: first, there was insufficient proof of

his identity as the shooter. Second, if this court finds his identity was proved, there

was insufficient proof that he had specific intent to kill.

As the defendant’s first argument puts identity at issue, “the State is required

to negate any reasonable probability of misidentification.” State v. Hughes, 05-992,

p. 5 (La. 11/29/06), 943 So.2d 1047, 1051. However, the state notes that a single

witness’s identification of an offender is sufficient to uphold a conviction. State v.

George, 09-143 (La.App. 3 Cir. 10/7/09), 19 So.3d 614. As noted above, the state

produced eyewitnesses, including the victim’s friend, Elvin Thomas. Although

Thomas’s back was to the scene at the time of the shooting, he testified that he saw

the defendant leave the scene with a gun. The victim initially appeared to identify

the defendant as the shooter during direct testimony but then said the shooter’s face

was obscured. During cross-examination, the victim indicated that he could not

identify who shot him. Mrs. Fontenot identified the defendant as the man who shot

her nephew.

The combined testimony of Mr. Thomas and Mrs. Fontenot, discussed

above, sufficiently support a rational conclusion that the defendant was the man

who shot the victim. Mr. Thomas saw the defendant flee the scene with a gun in

his hand; Mrs. Fontenot saw the shooting and spoke to the defendant as he left the
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scene. Further, Officer Keith Peters testified that in the hospital, the victim

identified the shooter as “Xa.” Numerous references in the record indicate that

“Xa” is the defendant’s nickname.

There is a significant discrepancy between Thomas’s testimony and the

victim’s testimony. Thomas indicated the pair had been together during the day

helping move furniture, but the victim said he knew nothing about that. Also, there

was testimony indicating that the area was dark at the time of the offense.

Regarding such points, we note that a factfinder is free to believe some, none, or

all of the testimony presented to it. State v. Perkins, 11-955 (La.App. 3 Cir.

3/7/12), 85 So.3d 810. Also, as mentioned in Kennerson, an “appellate court

should not second guess the credibility determinations of the triers of fact[.]”

Kennerson, 695 So.2d at 1371.

For the reasons discussed, this argument lacks merit.

The defendant’s second argument is that the state failed to show he had the

specific intent to kill the victim. Mrs. Fontenot testified that she witnessed

multiple gunshots. The victim’s testimony also indicated that the assailant fired at

him more than once. Also, even though Thomas did not see the shooting, he

testified that he heard multiple gunshots at the relevant time. The jurisprudence

reflects that multiple gunshots are indicative of specific intent to kill. See, e.g.,

State v. Thomas, 19-409 (La.App. 1 Cir. 10/25/19), 289 So.3d 1030, writ granted

in part and remanded, 19-1819 (La. 6/22/20), 297 So.3d 727;3 State v. Jones, 11-

399 (La.App. 3 Cir. 11/2/11), 76 So.3d 1274.

Thus, this argument and the assignment of error lack merit.

3
The writ was granted in light of Ramos v. Louisiana, 590 U.S. 83, 140 S.Ct. 1390 (2020),
which requires unanimous jury verdicts for serious felony convictions.

7

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant argues the district court

erred by denying his motion to cross-examine the victim about his juvenile

delinquency record. The defendant argues, as he did below, that the testimony of a

police officer “opened the door” to an exploration of the victim’s record.

During the testimony of Officer Trace Tilbury of the Eunice Police

Department, he noted that at the scene he recognized the victim from “past

encounters.” At the close of the state’s direct examination, the defendant’s counsel

asked to approach the bench. He then made his argument, seeking to question the

witness regarding the victim’s juvenile record. Counsel acknowledged that in a

pretrial conference the court and the parties had discussed said juvenile record’s

inadmissibility. Defense counsel sought to pursue a theory that the victim was

actually shot accidentally by another juvenile.

The state argued that under La.Code Crim.P. art. 609.1, only a conviction or

convictions would be admissible. Arrests and details of convictions are not

admissible. The defendant acknowledges that pursuant to La.Code Crim.P. art

609.1(F), juvenile adjudications are normally inadmissible in a criminal case.

The court denied the defendant’s motion, expressing concern that evidence

of the victim’s delinquent past would confuse the jury and was irrelevant. The

court also noted that the arrest under discussion did not occur until after the offense

at issue. Also, the court stated its belief that the defendant would be able to elicit

the information he was seeking from the juvenile witnesses and the victim’s aunt.

The defendant seeks to leap the hurdle of La.Code Crim.P. art. 609.1 by

citing State v. Toledano, 391 So.2d 817 (La.1980). Toledano has since been

explained by a subsequent supreme court case:

8

When a defendant moves for production of the juvenile records
of a witness the trial court is called upon to determine whether the
impeachment value of these adjudications is outweighed by the state’s
interest in maintaining the confidentiality of juvenile records. Davis
v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State
v. Toledano, 391 So.2d 817 (La.1980). As we have explained: “The
critical question in cases involving a witness’s juvenile record and the
sixth amendment right to confrontation is whether the defendant will
be precluded from utilizing a method of impeachment that would be
effective in the circumstances of his case were the juvenile record
available to defendant.” State v. Smith, 437 So.2d 802, 804 (La.1983).
In reviewing juvenile records, the issue thus becomes whether the
witness’s juvenile adjudications have such discrediting value that
there is a reasonable likelihood it would affect the verdict. State v.
Toledano, supra, 391 So.2d at 820. That determination can only be
made after an examination of the juvenile record by the trial court and
preservation of that record for review. State v. Hillard, 398 So.2d
1057, 1060 (La.1981). In the instant case, the Court of Appeal denied
the defendant’s application for writs from the trial court’s ruling
denying production of the juvenile records of two of the State’s
primary witnesses without first reviewing those records, under seal, to
determine if the trial court’s ruling with respect to the materiality of
the prior juvenile adjudications was the correct one. This was error.
The Court of Appeal’s writ denial in this matter is therefore vacated
and this case is remanded to the Court of Appeal for the purpose of
obtaining the juvenile records, under seal, and reviewing those records
to determine whether the trial court erred in denying their production.

State v. Perkins, 03-1680, pp. 1–2 (La. 6/27/03), 852 So.2d 989, 989–90.

The defendant complains that the district court did not follow the Toledano

procedure in this case. This appears to be true regarding the trial objection at issue.

However, the victim’s juvenile record and its potential admissibility were

discussed in a pretrial proceeding. The pretrial conference may well have satisfied

Perkins and Toledano. Unfortunately, this proceeding does not appear in the

current record. Further, trial counsel did not proffer the relevant information and

appellate counsel’s brief does not indicate that counsel made any effort to obtain a

copy of the juvenile record or a transcription of the pertinent pretrial proceeding.

Thus, it is not possible to review the defendant’s Toledano-based argument on the

current record. It is possible that a related argument could be raised in the post-

conviction relief process, where the record could be more fully developed.
9

The district court opined that defense counsel could glean the information he

needed regarding his defense that it was an accidental shooting by another juvenile

from the victim, Thomas, and Mrs. Fontenot. When Thomas testified, the

defendant’s counsel asked him if he and the victim were playing with a weapon

and accidentally shot the victim. Counsel also asked Thomas if he feared

admitting having a gun because possession of a weapon would violate Thomas’s

probation. The witness denied the allegations couched in these questions. The

witness had previously noted that he wore an ankle monitor due to his being on

probation.

In response to the defendant’s cross-examination, the victim acknowledged

that he was also shot in a separate incident a month after the incident at issue. The

state objected as to relevance, but the court overruled the objection. In response to

further defense questioning, C.V. testified that in an earlier incident, he shot

himself in his knee. The defendant next asked whose gun he shot himself with, but

the state again raised an objection as to relevance, which the court sustained.

The defendant questioned Mrs. Fontenot regarding whether she would try to

help Thomas if he got in trouble. She denied that she was protecting Thomas.

However, when the defendant asked squarely whether Thomas was actually the

shooter, the court sustained the state’s objection. The defendant did not object to

the court’s ruling.

The linchpin of the defendant’s assignment of error appears to be that the

district court failed to conduct an in camera inspection of the victim’s juvenile

record, ultimately depriving the defendant of the ability to cross-examine him

regarding said record. As noted earlier, the pretrial hearing regarding the victim’s

juvenile record was not included in the current appeal. If there was any error, it

would be harmless since it did not prevent defense counsel from thoroughly
10

pursuing his line of questioning as to whether this was an accidental shooting by

another juvenile.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant argues the district court erred

by allowing prejudicial “other crimes evidence” to be admitted at trial. During his

testimony, Detective Fontenot discussed his investigation of the offense at issue.

He noted that he discovered information that the defendant had been firing his

weapon in the neighborhood before the shooting of C.V. Further, the defendant

may have fired at a dog that was barking at him. Defense counsel immediately

asked to approach, and the parties discussed the matter with the district court in

chambers. In the conference, the defendant sought a mistrial due to the reference

to another crime.

Regarding mistrial, La.Code Crim.P. art. 770(2), states:

Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument,
refers directly or indirectly to:

.....

(2) Another crime committed or alleged to have been
committed by the defendant as to which evidence is not admissible[.]

However, the jurisprudence states that a police officer is not a “court

official” within the meaning of Article 770. State v. Watson, 449 So.2d 1321, 1328

(La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939 (1985). The defendant also

cites La.Code Crim.P. art 771(2):

In the following cases, upon the request of the defendant or the
state, the court shall promptly admonish the jury to disregard a remark
or comment made during the trial, or in argument within the hearing
of the jury, when the remark is irrelevant or immaterial and of such a
nature that it might create prejudice against the defendant, or the state,
in the mind of the jury:

11

....

(2) When the remark or comment is made by a witness or
person other than the judge, district attorney, or a court official,
regardless of whether the remark or comment is within the scope of
Article 770.

In such cases, on motion of the defendant, the court may grant a
mistrial if it is satisfied that an admonition is not sufficient to assure
the defendant a fair trial.

Defendant also notes La.Code Evid. art. 404(B)(1):

B. Other crimes, wrongs, or acts; creative or artistic
expression. (1)(a) Except as provided in Article 412 or as otherwise
provided by law, evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident,
provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial, of the
nature of any such evidence it intends to introduce at trial for such
purposes, or when it relates to conduct that constitutes an integral part
of the act or transaction that is the subject of the present proceeding.

In chambers, defense counsel stated that the matter had been discussed

before trial, but one of the prosecutors stated the court had not ruled on the

admissibility of the incident. There is nothing in the record which reflects this

matter was considered by the court pretrial.

The information in the record contains an argument of the issue which could

be analyzed.

“For an appellate court to reverse a trial court’s denial of mistrial, the

defendant must show actual prejudice resulting from the underlying error.” State

v. Hernandez, 17-803, p. 6 (La.App. 3 Cir. 3/7/18), 241 So.3d 1053, 1058. The

defendant has not demonstrated that his case was actually prejudiced by the

testimony regarding shots possibly being fired by the defendant earlier in the

evening.

12

There was no objection to Detective Fontenot’s testimony that the defendant

was shooting in the area before the shooting of C.V. The objection focused on the

alleged act of shooting at a dog. The detective’s mention of this point, along with

the testimonies of the three eyewitnesses noted earlier in this opinion, made the

jury aware that the defendant had already been shooting in the area before he shot

the victim. As discussed under the first assignment of error, the state also

presented eyewitnesses who testified the defendant shot the victim.

Through its eyewitnesses, the state presented solid evidence of guilt. It is

not clear how the testimony that there was a previous shooting incident would have

had an appreciable influence on the case. The defendant suggests it potentially

influenced the weight or credibility of the evidence. It is not clear how it would

have had any more influence than the evidence of the defendant’s act of shooting

in the area. As noted, the jury had already been made aware that the defendant was

shooting in the neighborhood before he shot the victim.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth and final assignment of error, the defendant argues that the

district court erred by allowing inadmissible hearsay into evidence. As he notes,

Detective Fontenot testified that Mrs. Fontenot asked to speak with him at the

police station. At the station, she told the detective that she heard gunshots in the

road, she saw her nephew and another juvenile riding bicycles, and she heard her

nephew asking “Xa” why he was shooting. The defendant then objected, and the

court sustained the objection. The detective went on to say that Mrs. Fontenot

witnessed the shooting, and the defendant told her he did it because “they were

fucking with me.” The defendant objected, and the court again sustained the

objection.
13

Regarding Detective Fontenot’s exposition of Mrs. Fontenot’s statements,

there is nothing for the court to review. Trial counsel made hearsay objections,

and the district court sustained them. Further, Mrs. Fontenot testified at the trial

and presented the same testimony to the jury. She was subject to cross-

examination by defense counsel on these statements. Therefore, this argument

lacks merit.

Detective Fontenot also spoke to Elvin Thomas. As discussed in the

previous assignment of error, the detective testified that Thomas told him that the

defendant had been shooting in the neighborhood and may have fired at a dog.

The objection that the defendant raised is the “other bad acts” evidence discussed

previously and was not based on hearsay. As there was no hearsay-based objection

to Thomas’s testimony, this argument lacks merit.

Finally, the defendant complains that Detective Fontenot testified about

information he received from the defendant’s girlfriend, Tori Janice. However,

appellate counsel concedes that trial counsel did not object to this testimony. As

the defendant failed to make a contemporaneous objection, the issue was not

preserved for review. La.Code Crim.P. art. 841(A).

As all of the defendant’s arguments under this assignment fail for the

reasons discussed, this assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

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