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Victoria man, 21, cleared of murder

By BY JESSICA PRIEST - JPRIEST@VICAD.COM
Sept. 24, 2012 at 4:24 a.m.
Updated Sept. 25, 2012 at 4:25 a.m.

Marcellus Brown

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A sentencing hearing is set for 9 a.m. Tuesday before Judge Stephen Williams.

Engaging in organized criminal activity is a second-degree felony punishable with up to 20 years in prison and a fine of up to $10,000 could be assessed.

Brown was convicted in April 2009 of possession of a controlled substance greater than 4 grams but equal to 28 grams, a felony offense. He was sentenced to five years in prison, but was released in October 2009, according to court records.

After about 3 1/2 hours of deliberation on Monday, a jury found 21-year-old Marcellus Brown not guilty of murder, but guilty of engaging in organized criminal activity.

Brown is the first of a group of teens to go on trial for the shooting death of Daniel Davila, a 24-year-old Victoria man who was found dead at the 900 block of Goldman about noon on July 30, 2011.

Prosecutors alleged Brown wielded the 9-mm semiautomatic handgun that killed Davila near the intersection of Pine and Goldman streets.

They said this happened after his friends got into a brawl about beer at 806 Ash St. hours earlier and wanted to retaliate.

The Davila family declined to comment after the trial.

Brown appeared pensive and his mother, Rennia Brown, cried in the courtroom as the verdict was read.

"I'm glad he wasn't (convicted of) murder, but I still feel like they didn't have enough evidence to put him there," she said. "I wish he could've been acquitted of both charges."

Defense Attorney Micah Hatley called the verdict "bitter sweet."

He said he was a little disappointed Brown was convicted of the second, lesser charge.

"But, certainly, I respect the jury's decision," he said. "They did their job in terms of evaluating it."

District Attorney Stephen Tyler, who said earlier that he believed Brown to be most culpable for the crime, also appreciated the jury's effort to "painstakingly" review the evidence.

"Most culpable doesn't mean easiest to prove ... I believe (the co-defendants) deferred to (Brown) for guidance," he said of how some testified Brown distributed the 22-caliber revolver and shotgun police think were fired by co-defendants Jefferson Hill, 19, and Joshua McClure, 20, respectively.

The weapons were never recovered.

Tyler said he did not think the jury was confused by the count one murder charge, which stipulated Tyler needed to prove beyond all reasonable doubt that as a party Brown committed deadly conduct, or shot in the direction of homes and people, and in the course of doing so endangered human life, or, in this case, Davila's.

Jurors sent a question about 2 p.m. to the judge, asking whether Brown had to have a gun in his hand at the scene to be guilty of murder.

"Apparently, in the end, they were able to work through it," Tyler said.

During closing arguments, Hatley tried to cast doubt on the state's evidence by pointing to the testimony of Matthew Balboa, an East High School student who claimed to have been walking through Pine Street Park with Davila before he was shot.

Balboa could not say whether Brown was there that night, but instead said a witness, Tyere Lewis, might have been the third shooter.

Hatley also said police built a case around Brown without searching for shell casings around 806 Ash St., brushing for fingerprints and relying on co-defendants' changing statements.

"The only thing that's been consistent about this case is the inconsistencies," he said.

Tyler said detectives used techniques taught throughout the criminal justice field to interview suspects, not to just get the answer they wanted.

"We haven't held anything back, even if it hurt our case," he said. "There is no evidence, none whatsoever, to indicate anyone was shooting (at the party house) except the defendant and his accomplices."

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