Opinion
No. 05-01-01047-CR No. 05-01-01159-CR
Opinion Filed July 7, 2003 Do Not Publish
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-72064-WP and F00-72113-WP. Affirmed
OPINION
Appellant, Quiano E. Taylor, was twice indicted for aggravated robbery. Taylor scheduled a guilty plea to a jury on one of the cases, trial court cause number F00-72064-P (our cause number 05-01-01047-CR). A venire panel was summoned and a jury was selected from the panel. After receiving Taylor's guilty plea and hearing evidence and argument of counsel, the jury found Taylor guilty and assessed his punishment at confinement in the penitentiary for sixteen years. Taylor then entered a plea of guilty before the trial court in the other aggravated robbery case, trial court cause number F00-72113-WP (our cause number 05-01-01159-CR). This plea was pursuant to a plea bargain. The trial court received Taylor's plea and followed the plea bargain, finding Taylor guilty and sentencing him to ten years in prison. On appeal from the conviction in trial court cause number F00-72064-P, Taylor brings one point of error alleging Batson error in the jury selection process. On appeal from the conviction in trial court cause number F00-72113-WP, Taylor brings one point of error, maintaining his guilty plea was involuntary. We affirm. Since sufficiency of the evidence is not challenged, only a brief survey of the evidence is necessary. During the trial in trial court cause number F00-72064-P, the State presented testimonial evidence that three men kidnapped the victim, Ryan Bartlett, and stole his blue Honda automobile in the early morning hours of July 23, 2000. After driving around with their captive and threatening Bartlett with death, the men took Bartlett out of the car and, as he fled on foot, shot at him once with a single barrel sawed-off shotgun. Bartlett escaped into some woods and ultimately summoned Dallas police. Later that day, a City of Highland Park police officer ran a check on the license plates of a blue Honda occupied by three men. When the check revealed the Honda had been reported stolen, the officer and fellow Highland Park officers arrested the three men. A search of the car revealed a single shot shotgun. At jail, Taylor was found to possess several credit/debit/ATM type cards, one of which bore the name Walter Romero. Walter Romero testified he was robbed of his cash and ATM card by three males in a small blue car on July 23, 2000. He identified the card taken from Taylor as his. He also identified the shotgun taken from the Honda as the one used to threaten him during the robbery. Several family members testified on Taylor's behalf. Taylor's probation officer from Chicago, Illinois also testified. Finally, Taylor testified. At the conclusion of the testimony, the jury returned the guilty verdict and sixteen-year sentence. On appeal, Taylor complains he was denied his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution when the State used a peremptory challenge in violation of the precepts of Batson v. Kentucky. See Batson v. Kentucky, 476 U.S. 79, 85-86 (1986); see also U.S. Const. amend. XIV. This allegation centers around the State's use of a peremptory challenge against venire person number 21, Argie Houston. Houston was an African-American female. After Taylor questioned the State's motivation for striking her, the prosecutor presented an explanation: Houston was asleep during portions of the voir dire. The prosecutor also stated that Houston exhibited facial expressions during the State's voir dire that indicated negative feelings ("bad vibes" in the prosecutor's parlance) towards the State. Taylor, while not cross-examining the State's attorney, did make known his own observations of Houston. Taylor noted that he carefully viewed all of the panel during voir dire and did not make any notations that Houston was sleeping at any time. Taylor also faulted the State for not calling Houston up to the bench and questioning her about her supposed "attitude." To this last criticism, the prosecutor responded that because none of her opposition to Houston stemmed from anything that amounted to a valid reason to challenge Houston for cause, it would have been a waste of the court's time to bring Houston up for further questioning. At the end of this exchange, the trial court made specific findings accepting the prosecutor's observations of Houston as accurate and truthful. The trial court then specifically found that the State's peremptory strike against Houston was based on neutral reasons and was not racially motivated. Finally, the trial court denied Taylor's Batson challenge. On appeal, Taylor asserts that the reasons given by the prosecutor were pretextual, and that in reality, the strike was racially motivated. A claim of Batson error must begin by the objecting party making a prima facie case of discrimination. See Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App. 2002). Once a prima facie showing has been made, it becomes the burden of the striking party to produce race-neutral reasons for the complained of strikes. See Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999). If that burden is met by fostering race-neutral reasons, then the objecting party must prove, with evidence, purposeful discrimination. See Johnson, 68 S.W.3d at 649; Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996). The burden of proof for this third step is by a preponderance of the evidence. See Johnson v. State, 959 S.W.2d 284, 292 (Tex.App.-Dallas 1997, pet. ref'd.). Appellate review of the trial court's decision on the Batson claim is done under the clearly erroneous standard. See Pondexter, 942 S.W.2d at 581. The evidence produced or judicially noticed (such as the voir dire) at the Batson hearing is reviewed on appeal in the light most favorable to the trial court's ruling. See Kemp v. State, 846 S.W.2d 289, 304 (Tex.Crim.App. 1992). Often, the trial court's decision of whether the prosecutor is telling the truth about the strike in question being race-neutral will turn on an evaluation of credibility. See Ladd v. State, 3 S.W.3d 547, 563 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1070 (2000). Therefore, appellate courts are charged with giving great deference to credibility determinations made by the trial court in connection with a Batson inquiry. See Johnson, 68 S.W.3d at 649. The trial court's ruling will be found to be clearly erroneous only if no plausible basis exists to support it. See Whitsey v. State, 796 S.W.2d 707, 722 (Tex.Crim.App. 1990) (op. on reh'g.) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 575-76 (1985)). Put another way, a trial court's ruling is clearly erroneous if, upon examination of the record, the reviewing court is left with the definite and firm conviction that a mistake has been committed. See Bausley v. State, 997 S.W.2d 313, 315 (Tex.App.-Dallas 1999, pet. ref'd). If the trial judge's ruling is supported by the record, including the voir dire examination of the venire panel, the proffered reason or reasons for the strike, and the strike's opponent's evidence (or lack thereof) on rebuttal, then the trial judge's ruling is not clearly erroneous. See id. In this case, because the State came forward with reasons for the strike against venire person Houston, Taylor's burden of production to make a prima facie case of discrimination has been satisfied. See Malone v. State, 919 S.W.2d 410, 412 (Tex.Crim.App. 1996). Concerning the race-neutral nature of the explanations, an explanation for the exercise of a peremptory strike is "neutral" if it is based on something other than the race (or gender) of the juror. See Sparks v. State, 68 S.W.3d 6, 11 (Tex.App.-Dallas 2001, no pet.) (citing Hernandez v. New York, 500 U.S. 352, 360 (1991)). Unless discriminatory intent is "inherent" in the explanation, the explanation will be deemed race or gender neutral. See id. Here, the State offered two explanations for the strike against Houston: she slept during part of the voir dire and she displayed a negative attitude toward the State. Each of these explanations is facially race-neutral. Neither even approaches having discriminatory intent inherent within. We therefore conclude the trial court's express finding, that the reasons given by the prosecutor for the strike against Houston were race-neutral, was supported by the record and is not clearly erroneous. Again, we are mandated to give great deference to credibility determinations made by the trial court in arriving at a decision on how to rule on the Batson challenge. See Johnson, 68 S.W.3d at 649. At the conclusion of the hearing, the trial court specifically found that the prosecutor was truthful in her race-neutral explanations and chose to believe her. We conclude the trial court's ruling had a plausible basis in the record. See Whitsey, 796 S.W.2d at 722. Additionally, there is sufficient support for the decision in the record such that we are not left with the definite and firm conviction that a mistake has been committed. See Bausley, 997 S.W.2d at 315. We therefore conclude the trial court's decision to deny the Batson challenge was not clearly erroneous. See id. Moreover, Taylor has come forward with little affirmative evidence that the strike against Houston was racially motivated. Taylor did dispute one reason that the State gave (Houston sleeping) and chastised the State for not inquiring further about the other (Houston's perceived attitude). However, Taylor did not question the prosecutor or otherwise offer any affirmative evidence that the strike was motivated by a desire to exclude Houston from the jury because of her race. See Salazar v. State, 795 S.W.2d 187, 192-93 (Tex.Crim.App. 1990); Bausley, 997 S.W.2d at 317. Therefore, Taylor has not met his burden of persuasion to successfully challenge the State's peremptory strike against Houston. See Ford, 1 S.W.3d at 694. For these reasons, we overrule Taylor's point of error on appeal from the conviction in trial cause number F00-72064-P. In his appeal from his conviction in trial court cause number F00-72113-WP, Taylor claims his guilty plea was involuntary. Article 26.13 of the code of criminal procedure provides: "No plea of guilty . . . shall be accepted by the court unless it appears that the plea is free and voluntary." See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2003). Taylor maintains his guilty plea in this case was conditioned or premised on his right to appeal the sixteen year punishment verdict in the other robbery case. He cites Killebrew v. State for the proposition that a trial court may not accept a guilty plea that is conditioned or premised on the defendant's being able to appeal some matter. See Killebrew v. State, 464 S.W.2d 838, 839 (Tex.Crim.App. 1971). Killebrew was a case where the defendant pleaded nolo contendere with the intent of appealing the trial court's adverse ruling on his motion to suppress the search that led to his marijuana conviction. See id. At that time, there existed a rule of law that a plea of guilty or nolo contendere, if voluntarily and understandingly made, was conclusive as to the defendant's guilt and waived all non-jurisdictional defects, including claimed deprivation of federal constitutional due process rights such as freedom from unreasonable searches and seizures. See Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App. 1972), overruled, Young v. State, 8 S.W.3d 656, 666 (Tex.Crim.App. 2000). Killebrew, therefore, holds that because the defendant could not appeal the trial court's adverse ruling on his motion to suppress the search that led to his marijuana conviction, the trial court should not have accepted his plea (which was conditioned on his ability to appeal the ruling). A guilty plea that is conditioned on the defendant's belief that some matter can be appealed is involuntary and should not be received if the matter may not be appealed and the belief is therefore erroneous. See Christal v. State, 692 S.W.2d 656, 659 (Tex.Crim.App. 1981). However, this rule of due process waiver was heavily modified to allow certain appeals of pre-trial matters in 1977. See Lemmons v. State, 818 S.W.2d 58, 60-63 (Tex.Crim.App. 1991); see also Act of May 23, 1977, 65th Leg., R.S., ch. 351, § 1, 1977 Tex. Gen. Laws 940 (adding a proviso to article 44.02 of the code of criminal procedure). Ultimately, and well before Taylor's trials in these cases, the rule was abandoned in toto. See Young, 8 S.W.3d at 656-67. Thus, unlike the defendant in Killebrew who could not appeal the matter in question after his plea, Taylor was able to appeal his conviction after his plea. Thus Killebrew and the Helms line of cases are inapplicable to the case at bar and provide Taylor with no authority for the proposition either that his plea was impermissibly conditional or that his plea was involuntary. We therefore find no merit in Taylor's point of error. For the reasons stated, we overrule Taylor's point of error on appeal from the conviction in trial cause number F00-72113-WP. We affirm the trial court's judgments.
See Batson v. Kentucky, 476 U.S. 79, 85-86 (1986); see also U.S. Const. amend XIV.
Taylor disputed this fact. Appellate courts accept as true factual assertions made by counsel in a Batson hearing which are not disputed by opposing counsel. See Yarborough v. State, 947 S.W.2d 892, 895 (Tex.Crim.App. 1997); Canada v. State, 660 S.W.2d 528, 530 (Tex.Crim.App. 1983). Since Taylor disputed the prosecutor's assertions, this doctrine does not apply here.
The striking party can either be the State or the defendant, for the prohibition against striking a person because of their race applies equally to both, and both have standing to complain under Batson. See Yarborough, 947 S.W.2d at 894-95 (citing Georgia v. McCollum, 505 U.S. 42 (1992)).
It is in evaluating the trial court's decision at step three that the "clearly erroneous" standard of appellate review is most often applied. See Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App. 1989) (op. on reh'g).
Where a prosecutor articulates a reason for a preemptory challenge, the preliminary issue of whether the defendant has made a prima facie showing of purposeful discrimination is moot. See Malone v. State, 919 S.W.2d 410, 412 (Tex.Crim.App. 1996) (citing Hernandez v. New York, 500 U.S. 352, 359 (1991)).
It is equally improper to strike based on gender as it is to strike based on race. See Fritz v. State, 946 S.W.2d 844, 847 (Tex.Crim.App. 1997) (citing J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 146 (1994).
Moreover, under our current appellate rules, Taylor may very well not be allowed to challenge the voluntariness of his plea on direct appeal. See Tex.R.App.P. 25.2(b) (former rule). After Taylor had given his notice of appeal, the court of criminal appeals, in a 5-4 decision, interpreted former rule 25.2(b) in such a way as to disallow a direct appeal contesting the voluntariness of a guilty plea that was made pursuant to a plea bargain subsequently followed by the trial court. See Cooper v. State, 45 S.W.3d 77, 83 (Tex.Crim.App. 2001). Prior to Cooper and former rule 25.2(b), the law allowed the issue of the voluntariness of a guilty plea to be raised on direct appeal from a plea bargained or negotiated plea. See id. at 78.
As previously stated, Taylor's plea and notice of appeal was given prior to the date on which the holding in Cooper was rendered. Cooper itself did not specifically address its retroactive or prospective application. Whether the rule in Cooper should apply to this appeal is a question easy to pose but difficult to answer. See Jordan v. State, 54 S.W.3d 783, 787 (Tex.Crim.App. 2001).
In Jordan, the court of criminal appeals stated that a balancing test is used to determine whether a new rule of non-constitutional origin should be applied retroactively or prospectively. See id. at 87. When the rule adversely affects a defendant, the following factors are balanced:
(a) the purpose to be served by the new rule,
(b) the extent to which accused persons have relied on and the prejudice they may suffer from application of the new rule, and
(c) the effect on the administration of justice of a retroactive application of the new rule.
See id. Having rejected Taylor's point of error on the merits, we need not decide here whether the holding in Cooper is a "new rule" or, if it is, whether it should be applied retroactively.