Victoria man describes finding homicide victim

Sept. 20, 2012 at 4:20 a.m.
Updated Sept. 21, 2012 at 4:21 a.m.

Hours after police inspected a bullet hole in the side of his house, Thomas Gibson's daughter noticed what she thought was a landscaper sleeping in his backyard.

"I said, 'Well, if he's asleep, he's got no business working for me,'" Gibson said, recalling how his daughter pointed out the man to him about noon on July 30, 2011.

Gibson testified Thursday in the trial of 21-year-old Marcellus Brown, one of six people charged with murder in the shooting death of Daniel Davila.

Davila, 24, police said, may have been unintentionally shot as teens sought revenge for a fight about a beer bottle someone smashed at a party at 806 Ash St. hours earlier.

Gibson said he went around the shed to surprise Davila, clad in a pink T-shirt, khaki shorts and white tennis shoes, but noticed something wasn't right.

Davila was face down, his face resting on a nicked, wooden saw horse, Gibson said.

"I tried to shake him awake," he told jurors. "I said, 'Ants don't crawl on a live person like that.'"

Gibson said it has haunted him to this day how he and Officer B. Hlavach didn't see Davila when they were walking three sides of the property in the 900 block of Goldman Street, after he reported the shooting about 3 a.m.

The area they looked at using flashlights included behind the shed where Davila was later found, he said.

"I said maybe someone could have dumped him there ... but I haven't arrived at any conclusions. I just don't know," Gibson said.

Gibson wasn't the only one who heard a commotion that night.

Brian Vassar and his roommate Paul Martinez were sleeping in their apartment complex in the 1000 block of Pine Street and dialed 911 after shots rang out.

Vassar said he peeled back a small corner of foil on two of his windows to watch as one person fired a shotgun near the intersection of Jecker and Pine streets and another person fired a .22-caliber revolver.

"I heard, 'Get in the car! Get in the car!'" Vassar said of how the group soon fled.

Vassar first said he was 100-percent certain Brown was there that night, firing the .22-caliber revolver.

But, after incorrectly identifying Brown's mug shot in a photo array, he lowered it to a 50-percent certainty.

"People change, their faces change and the lighting changes," he said, describing how headlights shined in his eyes that night. "They look different in person than in photos."

Victoria Police Department investigators described in detail how they responded to the crime and collected evidence.

Hlavach, who was the first to work the scene as Gibson watched, said he was not a ballistics expert, but a bullet fragment he found behind a green Chevrolet truck on Goldman Street could've been fired from the 806 Ash St. area.

Hlavach said he didn't check for bullet casings on Ash Street.

He had previously discovered about 13 9-mm shell casings.

The state maintains Brown shot and killed Davila with a 9-mm semiautomatic handgun.

Tyere Lewis, who went to the 806 Ash St. party and returned with the disgruntled group later, offered yet another vantage point of the incident.

The former East High School football player said the shooting occurred at the corner of Ash and Goldman streets, unlike witnesses who testified before him.

He said he drank from a cup that could have held as much as 63 ounces of liquor and was texting nearby as Brown and Jefferson Hill, a co-defendant, fired shots at 35 people running toward them from Pine Street Park.

"Some people say texting is addictive, but that really stretches credulity," District Attorney Stephen Tyler said of how Lewis didn't get out of the line of fire.

It was an action Lewis described as "brave."

Meanwhile, defense attorney Micah Hatley honed in on how Lewis could not say what kind of gun Brown had or where Brown may have carried it.

Lewis overall said he was relieved he hadn't been charged with the crime like his friend Hill, who he talks to occasionally on the phone.

"I didn't have a gun in my hand," he said. "We just try to be positive."



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