Opinion
NO. 14-18-00463-CR
02-20-2020
JASMINE LYNNETTE STUART, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court No. 3 Galveston County, Texas
Trial Court Cause No. MD-0374186
MEMORANDUM OPINION
A jury found appellant, Jasmine Lynnette Stuart, guilty of misdemeanor theft. In two issues, appellant challenges her conviction. First, appellant contends that the trial court erred in denying her "Motion to Dismiss the Venire Panel and to Require a Jury Selection Providing a Venire Which Includes African-American Citizens." Second, appellant contends that the trial court denied her right to confrontation with regard to the admission of certain business records. We affirm.
I. FAIR-CROSS-SECTION REQUIREMENT
In her first issue, appellant contends that the trial court erred in denying her motion to dismiss the venire panel because doing so deprived appellant of her Sixth Amendment right to a fair and impartial jury drawn from a fair cross section of the community and violated Texas Code of Criminal Procedure Article 35.07.
Appellant also specifically contends in her issues presented that she was denied her Sixth Amendment right to confrontation, federal and state rights to a fair jury, as well as her federal and state rights to due process. In the body of the brief, appellant fails to make any argument, analysis, or point to any authority that her right to confrontation, federal and state rights to a fair jury or due process afford her any additional protections beyond those raised in her Sixth Amendment fair-cross-section complaint. As a result, her complaints based on those provisions are inadequately briefed and present nothing for our review. See Aldrich v. State, 928 S.W.2d 558, 560 (Tex. Crim. App. 1996) ("[A]ppellant argues that the trial court's denial of his motion to quash the jury panel violated several of his rights under Article 1, §§ 10, 13, and 19 of the Texas Constitution. However, because appellant proffers no argument or authority as to the protection provided by the state constitutional provisions in question, his claims based on those provisions are inadequately briefed and present nothing for our review."); Stone v. State, 951 S.W.2d 205, 207-08 (Tex. App.—Houston [14th Dist.] 1997, no writ). Appellant also complains that she was denied her right to shuffle the jury. Appellant failed to request a jury shuffle in the trial court. Thus, this complaint has not been preserved on appeal. Tex. R. App. P. 33.1; see also Latham v. State, 656 S.W.2d 478, 480 (Tex. Crim. App. 1983) ("The accused who desires a shuffle must urge his motion to shuffle prior to the commencement of the voir dire examination of the assigned jury panel.").
A. Legal Principles
"The Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community." Berghuis v. Smith, 559 U.S. 314, 319 (2010). The Texas constitution provides the same protection as the federal constitution regarding an impartial jury drawn from sources reflecting a fair cross section of the community. Marquez v. State, 725 S.W.2d 217, 243 (Tex. Crim. App. 1987); see also Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018). To establish a prima facie violation of the fair-cross-section requirement, a criminal defendant must make three showings. Berghuis, 559 U.S. at 319 (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)). The defendant must show that (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id.
"Disproportionate representation in a single panel does not demonstrate the systematic exclusion of distinctive groups in violation of the appellant's rights under the Sixth Amendment." May v. State, 738 S.W.2d 261, 269 (Tex. Crim. App. 1987); see also Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996). There is no requirement for proportionate representation of races on jury panels, although selection must be without discrimination as to race. May, 738 S.W.2d at 269.
Under Article 35.07 of the Texas Code of Criminal Procedure, a party may challenge the array "on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or an acquittal." Tex. Code Crim. Proc. art. 35.07.
B. Background
Prior to voir dire, appellant's trial counsel objected to the twenty-four-member venire. Appellant filed a written motion requesting that the trial court dismiss the twenty-four-member venire and issue a new venire with steps taken to assure that another "all-white" venire was not produced. Attached to the motion was the United States Census data regarding the population of Galveston County by "Race and Hispanic Origin." The census data shows that 13.5% of the population of Galveston County is "Black or African American," while 80% is "White."
The trial court conducted an evidentiary hearing on the motion. A deputy district clerk with the Galveston County District Clerk's office testified regarding the process employed by the District Clerk's office in summoning and qualifying potential jurors. She testified that the Secretary of State provides a list of county residents potentially qualified to be jurors. The clerk's office uses this list to summon large "pools" of potential jurors which are distributed to the trial courts as needed. Of approximately 1700 persons that are summoned to jury duty each week, around twenty to twenty-five percent appear for service. Upon arriving at jury duty, the qualifying judge determines whether those appearing are disqualified by statute, exempted, or need to reschedule. For the week of appellant's trial, 477 persons remained in the "pool" of qualified, potential jurors available to serve on a jury for trials that week. For purposes of this opinion, we will refer to the 477 qualified, potential jurors as the "general venire."
The deputy testified that she had seen the general venire but did not know the racial composition of those who had appeared that week. She stated that once a trial court requests a jury for a trial, she types in the number of potential jurors requested into a computer program. The computer program provides a random list of qualified, potential jurors from the general venire. The deputy provides the randomly generated list to the clerk of the requesting trial court. The deputy testified that she does not review or look at the listed race of any of the potential jurors or manipulate the list provided by the computer program. To the best of the deputy's knowledge, no one in the clerk's office had ever made any attempt to exclude any persons from jury service because of race.
C. Analysis
African-Americans are a distinctive group in the community. See Pondexter, 942 S.W.2d at 580. Appellant must meet all three parts of the Duren test to show a prima facie violation of the Sixth Amendment's fair cross section requirement. As detailed below, appellant failed to present any evidence of part three of the Duren test, systematic exclusion of African-Americans.
While the twenty-four-member venire in this case did not have a single African-American, appellant failed to put on any evidence to show any systematic exclusion of African-Americans in the system implemented in Galveston County. There was no evidence of the racial composition of the general venire from which this specific twenty-four-member venire was drawn. There was no evidence of the racial composition of those persons selected to jury duty over the prior weeks or months leading up to appellant's trial. There was no evidence of any racial composition of any other jury around the same time as appellant's trial. See Duren, 439 U.S. at 366 (demonstrated systematic exclusion with particularity by proving women's underrepresentation was persistent—occurring in every weekly venire for almost a year—and identified where the systematic exclusion took place); Pondexter, 943 S.W.2d at 581 (failed to show systematic exclusion where defendant brought forth information relating only to his venire and offered no evidence that the selection process operated in any way to systematically exclude African-Americans from the panel); see also Berghuis, 559 U.S. at 330 (failed to show systematic exclusion of African-Americans); Feagins, 142 S.W.3d at 536-37 (same).
Appellant argues that the failure to have some sort of safe-guard in place to ensure that an all-white trial venire is not selected is evidence of systematic exclusion of African-Americans. Appellant has not cited to any source or authority that indicates it would be appropriate for such a safe-guard to be put into place, as opposed to a completely random selection from the general venire. The evidence showed that the District Clerk's office does not consider or review the racial makeup of any trial venire drawn from the general venire. Such trial panels are chosen from the general venire at random through a computer program. No evidence was presented to show that the computer program used by the clerk's office was not actually random or was considering factors it should not when providing a randomly generated list for a trial venire. Disproportionate representation in a single panel does not demonstrate systematic exclusion of distinctive groups in violation of appellant's Sixth Amendment cross section rights. See May, 738 S.W.2d at 269; see also Pondexter, 942 S.W.2d at 581; Lacy v. State, 899 S.W.2d 284, 288 (Tex. App.—Tyler 1995, no writ) (failed to show that under-representation of African-Americans on venire panels was due to a systematic exclusion in the jury selection process, or that it was the result of any State action or opportunity demonstrating systematic exclusion).
Appellant has also failed to show that the "officer summoning the jury" willfully summoned jurors with a view of securing a conviction or an acquittal. See Tex. Code Crim. Proc. art. 35.07. The deputy testified that the Secretary of State provides a list of county residents potentially qualified to be jurors. The clerk's office uses this list to summon large "pools" of potential jurors. The clerk further testified that a qualifying judge determines whether the potential jurors are disqualified by statute. Finally, the clerk testified that the trial venires are selected at random through the use of a computer program. The trial court did not err in denying appellant's challenge under Article 35.07.
We overrule appellant's first issue.
II. RIGHT TO CONFRONTATION
In her second issue, appellant contends that the trial court denied her right to confrontation of the witnesses against her under both the Sixth Amendment and the Texas constitution, as well as denied her federal and state due process rights by admitting six exhibits into evidence without providing appellant an opportunity to cross-examine the preparer of those exhibits.
Appellant objected at trial to the exhibits as denying her right to confrontation and as hearsay. To the extent, if any, that appellant's federal and state due process challenge and challenge under the Texas constitution is different from her argument regarding denial of confrontation under the Sixth Amendment, such argument has not been preserved for review. See Tex. R. App. P. 33.1; see also Clark v. State, 365 S.W.3d 333, 380 (Tex. Crim. App. 2012) ("The court needs to be presented with and have the chance to rule on the specific constitutional objection because it can have such heavy implications on appeal."). Appellant has also failed to make any argument, analysis, or point to any authority that her state right to confrontation and state and federal rights to due process afford her any additional protections beyond those raised in her Sixth Amendment confrontation argument.
A. Legal Principles
The Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend VI; see also Melendez-Diaz v. Mass., 557 U.S. 305, 309 (2009). The Confrontation Clause applies only to out-of-court statements that are testimonial in nature. Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim. App. 2011) (citing Crawford v. Washington, 541 U.S. 36, 51-52 (2004)). The Confrontation Clause does not bar the admission of non-testimonial hearsay. Id.
Typically, business-record exceptions to the hearsay rule are non-testimonial. See Crawford, 541 U.S. at 56 ("Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy."); Infante v. State, 404 S.W.3d 656, 664 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ("Typically, documents filed in compliance with the public-records or business-records exceptions to the hearsay rule are non-testimonial."). However, business records may be testimonial if they contain a "factual description of specific observations or events akin to testimony." Segundo v. State, 270 S.W.3d 79, 106-07 (Tex. Crim. App. 2008). Generally business and public records are "admissible absent confrontation . . . because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial." Melendez-Diaz, 557 U.S. at 324. Whether a statement is testimonial or not is a question of law. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010).
B. Background
Appellant was charged with theft related to her employment as a cashier at an annual winter light festival. The president and custodian of business records for the annual winter light festival testified regarding the business operations. Every night during the festival, the cashiers sign-in for their shift and check-out a "bank" before going to their assigned cash register. The amount each cashier is provided in the bank is recorded on a document that the cashier signs and dates to verify the amount received. During their shift, the cashier records sales by pushing different keys on their cash register to denote the type of ticket sold and the method of payment. This information is collected by the register and reported through an internet connection to a computer in the main office in real-time. At the end of the shift, each cashier comes back to the main office to account for the cash in their register. The manager in the office uses the software to generate a report of the amount of cash and credit sales that occurred for each cashier individually on that date and, thus, how much cash should be present in the cashier's register minus the amount in the bank initially checked-out to that cashier. The president and custodian of records testified that she requested appellant's cash register report to be generated. She also testified that she was in the main-office the night of the incident watching the real-time sales.
The State offered the printed reports of the cash and credit sales for six cashiers who worked on the night in question, including the printed report for appellant's cash register. Appellant objected to the printed reports on the ground that it violated her Sixth Amendment right to confrontation because appellant alleges that the printed reports were compiled by an outside company, ExtremeTix, and a representative from ExtremeTix was not present to testify. ExtremeTix is the company that provided the computer software used by the business to track the sale of tickets. Each report contains a cashier's name, the date, and a spreadsheet of the cash and credit ticket sales recorded by that cashier on that date.
C. Analysis
Statements in records that were not created for the purpose of establishing some fact at trial and that would exist as part of business records even if no charges had ever been filed are not testimonial and do not violate the Confrontation Clause. See Melendez-Diaz, 557 U.S. at 324. The reports were used by the business nightly during the festival so that the cashiers could account for the amounts in their cash registers when their shift ended. The purpose of the reports was not to establish any fact at trial, but instead to keep track of ticket sales and cash received by the business. If no charges had ever been filed, the reports would still be used by the business for a business purpose. The reports themselves provide no commentary or discussion, just the total number of sales made and the amounts that the cashier should have in the register. The reports contain no analysis, representations as to personal observations, opinions, or attestations regarding the accuracy of the amounts provided or the means by which those amounts were obtained. See Infante, 404 S.W.3d at 666.
Appellant cites to Bullcoming v. New Mexico to support her argument that the admission of the reports in this case requires testimony from an individual at ExtremeTix. 564 U.S. 647 (2011). In Bullcoming, the prosecution introduced a forensic laboratory report containing a testimonial certification through the in-court testimony of a "surrogate" lab technician who did not certify the report and did not perform or observe the test reported in the certification. Id. at 652. The Court reasoned that the "surrogate" could not testify regarding what the certifying analyst "knew or observed about the events his certification concerned . . . . Nor could such surrogate testimony expose any lapses or lies on the certifying analyst's part." Id. at 661-62. The Court concluded that the defendant had a right to confront the certifying analyst. Id. at 658-59. Here, we have concluded that the reports are not testimonial in nature and no confrontation right is implicated in their admission into evidence. Because the printed reports are not testimonial, their admission into evidence did not violate appellant's Sixth Amendment right to confrontation of the witnesses against her. We overrule appellant's second issue.
Even if the reports at issue are testimonial, the State satisfied its burden through the testimony of the president and custodian of records of the complainant. This witness testified that she generated the reports through the software and was present on the night in question reviewing the reports and the amounts being received "live" in the main office. She also testified that she was an "expert" on this software because she had received extensive training and had also trained others in its use. Thus, no "surrogate" testimony was offered. Appellant had an opportunity to cross-examine the witness regarding the substance of the reports, namely the amounts reported as sales, the accuracy or the reports, and the accuracy of the software generally.
III. CONCLUSION
Having overruled both of appellant's issues, we affirm the trial court's judgment.
/s/ Ken Wise
Justice Panel consists of Chief Justice Frost and Justices Wise and Hassan. Do Not Publish — TEX. R. APP. P. 47.2(b).