Opinion
Nos. 05-02-01665-CR, 05-02-01666-CR, 05-02-01667-CR
Opinion issued January 14, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-54898-Kn; F01-54899-Kn; and F01-54900-Kn.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
OPINION
Emanual DeLeon Fields was convicted of three aggravated robberies and sentenced to sixty years in prison. In five points of error, appellant complains the trial judge erred in (1) overruling his Batson objections to five jurors, (2) questioning a witness at the punishment phase, (3) allowing an improper argument at punishment, and (4) failing to sign the guilt-innocence charge. We affirm. In his first point of error, appellant complains the trial judge erred in overruling his Batson objections. Appellant asserts the State exercised peremptory challenges against all five African American venire members within strike reach in a racially discriminatory manner. In particular, he argues the State struck these prospective jurors for having the same or similar characteristics as nonminority venire persons who were seated on the jury. To successfully challenge the State's use of a peremptory strike, a defendant must initially make a prima facie showing of discrimination. See Batson, 476 U.S. at 96. Once the defendant makes such a showing, the State must provide a race-neutral explanation for challenging the minority venire person. Batson, 476 U.S. at 97. A race-neutral explanation means any explanation based on something other than race. See Purkett v. Elem, 514 U.S. 765, 768 (1995). Unless a discriminatory intent is inherent in the prosecutor's explanation, the reasons offered will be deemed race neutral. Purkett, 514 U.S. at 768. If the prosecutor gives a race-neutral explanation, the defendant must rebut the explanation to show it was a sham or pretext. See Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App. 1991). One method of rebutting the prosecutor's explanation is showing disparate treatment of similarly situated jurors. See Cantu v. State, 842 S.W.2d 667, 688 (Tex.Crim.App. 1992). One circumstance to indicate disparate treatment is the State striking minority venire persons who gave answers similar to nonminority prospective jurors the State did not strike. See Johnson v. State, 959 S.W.2d 284, 292 (Tex. App.-Dallas 1997, pet. ref'd). We review a trial judge's decision on a Batson challenge under a clearly erroneous standard of review. Hernandez v. New York, 500 U.S. 352, 365-69 (1991); Adanandus v. State, 866 S.W.2d 210, 224 (Tex.Crim.App. 1993). A reversal is mandated only if a review of the voir dire record, the State's explanation, the composition of the jury panel, and the appellant's rebuttal and impeachment evidence leave us with a definite and firm conviction that the trial judge erred. Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App. 1992); Contreras v. State, 56 S.W.3d 274, 279 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). In making our review, we accord great deference to the trial judge who was present to assess the credibility of the prosecutor and his explanations. Cantu, 842 S.W.2d at 689. Appellant first complains about the State's striking of Jurors 15, 40, and 49. At the Batson hearing, the prosecutor gave the following reasons for the strikes: (1) Juror 15 had a son convicted of assault in Dallas and she "agreed" with the defense that it could appear that a person was lying if he stuttered on the stand; (2) Juror 40 had a brother convicted of robbery and had failed to admit his own prior DWI conviction; and (3) Juror 49 had a "brother in the penitentiary right now." Appellant did not offer any rebuttal evidence nor did he make the disparate treatment claim he now makes on appeal. However, a defendant is not required to request a trial judge to make his findings upon a Batson motion based on comparisons of veniremen in order to have the same evidence considered on direct appeal. See Young v. State, 826 S.W.2d 141, 145-46 (Tex.Crim.App. 1991). We will therefore consider appellant's disparate treatment argument. Initially, we note that striking a prospective juror who has relatives who have been convicted or charged with a criminal offense is legitimate and race-neutral. See Emerson v. State, 851 S.W.2d 269, 272 (Tex.Crim.App. 1993). Appellant contends this reason is a pretext because three white venire members "possessing this same `characteristic' served on the jury." With respect to Jurors 15 and 40, the State gave additional reasons for striking them, and each reason was facially race-neutral. When the State offers numerous race-neutral reasons for challenging a potential juror, the fact that other jurors possessed one or more of the objectionable attributes is not sufficient to establish disparate treatment. See Cantu, 842 S.W.2d at 689 ("It is unlikely that two venire persons on one panel will possess the same objectionable attribute or character trait in precisely the same degree. Such quantitative distinctions may cause a prosecutor to challenge one venire person and not the other."). The seated jurors did not give the same answer as Juror 15 about a stuttering witness nor did any of the seated jurors lie about their past criminal history. In other words, while all may have shared a similar objectionable attribute (having a relative previously convicted of a crime), Jurors 15 and 40 had an objectionable characteristic not shared by the seated jurors. Thus, there is a distinction other than race between the seated jurors and Jurors 15 and 40. Appellant has not shown disparate treatment. The State gave one reason for striking Juror 49: she had a "brother that's in the penitentiary right now doing a two-year sentence." Of the three jurors seated who had relatives previously convicted of a crime, none had a relative currently in prison as did Juror 49. Consequently, these jurors were not "similarly situated." No error is shown with respect to this juror. Next, appellant argues the State's reason for striking Juror 22 — that he was wearing a gold necklace and had gold teeth — was more "along the lines of a `racial strike'" because it was based on characteristics "peculiar to the African American race." As stated by the trial judge, there was no statistical information presented to show whether African Americans "have more gold teeth and gold chains" than any other group. Moreover, the prosecutor stated that if Juror 22 had been white, he would have struck him because of the gold teeth and gold necklace. Appellant has not shown error with respect to Juror 22. Finally, appellant argues the State's reason for striking Juror 24 — falling asleep during voir dire — was a sham because a white female juror, who also fell asleep during voir dire, served on the jury. At the hearing, the prosecutor told the judge that Juror 24 fell asleep during his voir dire but was "bright-eyed and bushy-tailed" during the defense voir dire. Additionally, the prosecutor said he struck Juror 24 because he did not like his answer that the accuser's credibility in an aggravated robbery should be evaluated. The prosecutor said he did not want a juror "already suspect of my victims." Both of the prosecutor's reasons are race-neutral. See Muhammad v. State, 911 S.W.2d 823, 825 (Tex. App.-Texarkana 1995, no pet.) (noting that sleeping during voir dire is race-neutral reason for striking prospective juror); Straughter v. State, 801 S.W.2d 607, 614 (Tex. App.-Houston [1st Dist.] 1990, no pet.) (concluding peremptory challenge may be validly based on manner in which prospective juror reacts to questions as well as verbal statements in record). In rebuttal, appellant did not cross-examine the prosecutor or develop any evidence. Rather, he simply asserted that a woman, Haas, was seated on the jury who also fell asleep; he did not challenge appellant's second reason. The prosecutor told the judge he did not see Haas fall asleep. Moreover, the seated juror did not give an answer in voir dire that made the prosecutor think she was "suspect" of his victim. We cannot conclude the trial judge's decision to overrule appellant's objection to this juror was clearly erroneous. See Cantu, 842 S.W.2d at 689. We overrule the first point of error. In his second point of error, appellant complains he was denied equal protection under the law and was denied his federal and state constitutional rights to a fair trial and to be judged by a jury of his peers. Within this point, he reiterates his previous complaint that "inherent discriminatory intent was obvious" in the State's striking of the five African-American prospective jurors. We have decided this precise issue against appellant and necessarily reach the same conclusion here. We overrule the point of error. In his third point of error, appellant complains the trial judge erred by asking one question of a witness at punishment in a way that made the judge appear "not be neutral and detached." Appellant did not object to the trial judge's question; thus, we conclude error, if any, is not preserved. See Tex.R.App.P. 33.1(a)(1). To the extent appellant argues the error is of a fundamental nature, we disagree. The witness was appellant's great-great aunt and was called by the defense for the purpose of asking the jury for leniency in sentencing. On cross-examination, the witness acknowledged that she was aware appellant had previously been on probation for shooting someone. After the State ended its questioning, the trial judge asked the witness a single question: "Do you know the person [appellant] was on probation for shooting?" The witness replied, "I didn't know him. I knew of his reputation." The defense then clarified, through its questioning of the witness, that although appellant had been on probation, he had not been finally convicted of a felony. A trial judge is permitted to question a witness provided the judge maintains an impartial attitude. See Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978). Here, there is nothing to suggest the trial judge did not maintain an impartial attitude when asking the question. The judge did not suggest the answer or otherwise indicate how the witness should testify. Under these circumstances, we fail to see how the trial judge's question resulted in fundamental error. We overrule the third point of error. In his fourth point of error, appellant complains the prosecutor made an improper closing argument, which denied him his right to a fair trial. Appellant did not object to the argument at trial. Before a defendant can complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he must show he objected and pursued his objection to an adverse ruling. Otherwise, the complaint is waived. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996) (overruling prior cases allowing defendants to appeal improper jury argument even when no objection made). We overrule the fourth point of error. In his fifth point of error, appellant complains the trial judge erred by failing to sign the court's jury charge on guilt-innocence. Again, appellant did not object; thus, error if any is waived. See Tex.R.App.P. 33.1(a)(1). Even assuming this is the type of charge error requiring a harm review even when no objection is made, reversal is required only when the error is so egregious and created such harm that the defendant was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on mot. for reh'g). Here, we fail to see how the trial judge's failure to sign the jury charge could have denied appellant a fair and impartial trial. Appellant speculates (1) the judge did not read the full charge to the jury or would have noticed the blank signature line and (2) because the judge must not have read the full charge, the jury may not have taken time to read the charge and therefore deliberated without full knowledge of the applicable law. However, there is absolutely nothing in the record to support such speculation. Moreover, there is no complaint of error in the jury charge or that the wrong charge was given to the jury. We overrule the fifth point of error. We affirm the trial court's judgments.
Batson v. Kentucky, 476 U.S. 79 (1986).
One juror had a brother who had been convicted of a "criminal case;" the second juror had a sister with a DWI conviction and a brother with a robbery conviction; and the third juror had a nephew who had just been released from prison.