Morris Paul Green v. State ( 2019 )

Opinion issued June 27, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00162-CR
NO. 01-18-00163-CR
———————————
MORRIS PAUL GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Case Nos. 17884 & 17885
MEMORANDUM OPINION
Appellant, Morris Paul Green, was found guilty by a jury of the separately-
charged offenses of aggravated robbery and evading arrest by using a vehicle.1 The
1
See TEX. PENAL CODE § 29.03(a) (aggravated robbery); id. § 38.04(b)(2)(A)
(evading arrest).
jury found two felony enhancement allegations to be true. In accordance with the
habitual offender statute, the jury assessed Appellant’s punishment at life in prison
for each offense.2 Appellant appeals both judgments of conviction.3 In five issues,
Appellant contends that the evidence was insufficient to support the judgment of
conviction for each offense, he received ineffective assistance of counsel, the trial
court abused its discretion in limiting the defense’s closing argument, and the trial
court erred in denying his Batson challenge.4
We affirm both judgments of conviction.
Background
Felder’s Buy-N-Bye is a convenience store in Brenham, Texas. Tootsie’s
Check Cashing is located within Felder’s store. On the morning of November 11,
2016, K. Kroll, an employee of both Felder’s and Tootsie’s, was working behind
the counter as a cashier. Several regular customers were there drinking coffee and
visiting as they normally did in the morning. Then, around 10 a.m., three men
entered the store. Two of the men were wearing masks, and the third man was
2
See TEX. PENAL CODE § 12.42(d) (providing range of punishment of life or
between 25 and 99 years for most felony convictions enhanced by two prior felony
convictions).
3
Appellate cause number 01-18-00162-CR corresponds to trial court cause number
17884 (aggravated robbery) and appellate cause number 01-18-00163-CR
corresponds to trial court cause number 17885 (evading arrest).
4
Batson v. Kentucky, 476 U.S. 79, 86 (1986).
2
wearing sunglasses, a skull cap, gloves, a striped polo shirt, a yellow safety vest,
and black sneakers with orange and white soles. One of the masked men pointed a
handgun at Kroll as he entered the store. He jumped the counter, shoved Kroll
against the wall, and held the gun to her head. He told Kroll that it was a robbery.
The other masked man also had a handgun. He pointed it at the customers, some of
whom were in their 80s, and told them to get down on the floor. The third man,
wearing the yellow safety vest, slid over the counter. He grabbed a cash box from a
cabinet under the counter, a brown paper bag, and a cash-register tray from inside a
drawer above the cabinet.
The masked man holding Kroll swung her around and ordered her to open
the cash register. Kroll complied while at the same time hitting a button activating
a silent alarm. The masked man took the tray out of the cash register’s drawer, and
he pushed Kroll to the floor. The three men quickly left. The entire robbery lasted
about 30 seconds. The robbery was captured on a security camera inside the
convenience store. While she was still on the floor, Kroll looked out the front
through a window crack. She observed the three robbers get into a white four-door
car, parked near the store, and then saw the car leave the parking lot.
T. Kurie, a corporal with the Brenham Police Department, was in his patrol
car when he heard the report of the robbery over his communications system. He
immediately positioned himself in a location where he thought the getaway car
3
would be passing. Within 30 seconds, the white four-door car passed Corporal
Kurie’s location, and he began to follow it. Because of safety concerns, Corporal
Kurie did not initiate a traffic stop of the white car until he was joined by another
law enforcement officer, a state trooper, in a separate vehicle. Once the state
trooper arrived, Corporal Kurie activated the overhead emergency lights of his
marked patrol car. The white car took off at a high rate of speed. Corporal Kurie
activated his siren and pursued the white car. Corporal Kurie later testified that
“the vehicle continued driving in a reckless manner, passing vehicles on the left, on
the right shoulders, multiple times.” He confirmed that people in other vehicles on
the road were placed in jeopardy. The chase continued from where it began in
Washington County into Waller County and ended in Harris County. At least four
law enforcement agencies, 12 to 15 police vehicles, and a helicopter were involved
in the pursuit. The chase finally ended at a point where the road was under
construction. Four men bailed out of the car while it was still in drive. The men
began to run across an adjacent field.
Appellant had been in the front, passenger seat. When he jumped out, he was
carrying a duffle bag. Appellant ran to a fence bordering the field, threw the bag
over it, climbed the fence, and started to run across the field with the bag.
Appellant dropped the bag and continued to run a short distance before laying
down in the field. He was then taken into custody by police. When he was caught,
4
Appellant was wearing only one shoe. The shoe had an orange and white sole like
the shoes worn by the robber at Felder’s, who had slid over the counter and taken
the cash box. When they opened the duffle bag that Appellant had been carrying,
the police found that it contained the cash box, checks, and cash taken from
Tootsie’s and Felder’s during the robbery. The other three occupants of the car
were also caught after they ran.
The police obtained a warrant to search the car. In the front passenger side of
the car, where Appellant had been sitting, the police recovered a striped polo shirt,
a skull cap, gloves, and a yellow safety vest, appearing to be the same as the
clothing worn by the robber who had slid over the counter to take the cash box.
The police also recovered a handgun from the car and the cash register trays taken
during the robbery.
Appellant was separately charged with the offenses of aggravated robbery
and evading arrest by use of a vehicle. The two charged offenses were tried
together to a jury.
During the guilt-innocence phase, the State offered the testimony of the store
clerk, Kroll, and two store customers who were present during the robbery. Six law
enforcement officers who were involved in the pursuit and apprehension of the
four men in the car, including Corporal Kurie, also testified at trial.
5
In addition, the State offered the accomplice-witness testimony of
Christopher Bazile. He had entered a plea of guilty in exchange for a 25-year
prison sentence. Bazile admitted he was one of the robbers. Bazile testified that,
during the robbery, he “had jumped over the counter” and “grabbed her [Kroll]”
with a gun pointed at her head. Bazile identified a man named “Jevon” as the
robber who had ordered the customers on the ground. He stated that Appellant was
the man who had jumped the counter and taken the cash box, and he indicated that
Appellant had participated in the planning of the robbery. The State also elicited
testimony from Bazile that, when the men were fleeing in the white car, Appellant
had asked Jevon for a gun so that he could shoot at police.
The State’s evidence also included several videos. These included the
security video from the store, showing the robbery, and a dash-camera video from
one of the police cars, showing the pursuit of the getaway car, the four men
jumping out of the car, and the foot pursuit and apprehension of Appellant and his
accomplices. The State’s exhibits also included still photos from the videos, photos
of the contents of the duffle bag and the car, and photos of the clothing that
Appellant was wearing when he was caught, including his shoe with its distinctive
orange and white sole. In addition, the clothing items recovered from the front
passenger side of the car were admitted into evidence.
6
The charge permitted the jury to find Appellant guilty of both offenses as
either the principal actor or as a party. The jury found Appellant guilty of both
charged offenses: aggravated robbery and evading arrest with a vehicle. During the
punishment phase, the jury determined that Appellant had two prior felony
convictions and assessed Appellant’s punishment at life in prison for each offense.
Appellant now challenges both judgments of conviction, raising five issues.
Sufficiency of the Evidence
In his first and third issues, Appellant challenges the sufficiency of the
evidence to support the two judgments of conviction.
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single
standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)
(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
Pursuant to the Jackson standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
7
319; In re Winship, 397 U.S. 358, 361 (1970); Laster v. State, 275 S.W.3d 512,
517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). We can hold evidence to be insufficient under the Jackson standard in
two circumstances: (1) the record contains no evidence, or merely a “modicum” of
evidence, probative of an element of the offense, or (2) the evidence conclusively
establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319; see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An
appellate court presumes that the fact finder resolved any conflicts in the evidence
in favor of the verdict and defers to that resolution, provided that the resolution is
rational. See Jackson, 443 U.S. at 326.
In our review of the record, direct and circumstantial evidence are treated
equally; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point
directly and independently to the guilt of the appellant, as long as the cumulative
8
force of all the incriminating circumstances is sufficient to support the conviction.”
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Aggravated Robbery
In his third issue, Appellant contends that the evidence was “insufficient to
sustain the jury’s verdict because the State failed to prove beyond a reasonable
doubt that he participated, either as a principal or a party, in the aggravated robbery
as the only evidence tending to connect him to the offense was the uncorroborated
testimony of [Bazile].” Bazile admitted that he was the robber who held Kroll at
gunpoint and forced her to open the cash register. Bazile testified that Appellant
was the robber who slid over the counter and grabbed the cash box. The State
responds that evidence, aside from Bazile’s testimony, was presented connecting
Appellant to the offense. We agree with the State.
Regarding accomplice-witness testimony, the Texas Code of Criminal
Procedure provides:
A conviction cannot be had upon the testimony of an accomplice
unless corroborated by other evidence tending to connect the
defendant with the offense committed; and the corroboration is not
sufficient if it merely shows the commission of the offense.
TEX. CODE CRIM. PROC. art. 38.14.
When reviewing the sufficiency of the corroborating evidence, we exclude
the accomplice testimony from our consideration and determine whether there is
any independent evidence that tends to connect the defendant with the commission
9
of the offense. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008);
Hernandez v. State, 454 S.W.3d 643, 647 (Tex. App.—Houston [1st Dist.] 2014,
pet. ref’d). We view the corroborating evidence in the light most favorable to the
jury’s verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008). If
there are two views of the evidence, one tending to connect the accused to the
offense and the other not, we defer to the jury’s view. Smith v. State, 332 S.W.3d
425, 442 (Tex. Crim. App. 2011). “[I]t is not appropriate for appellate courts to
independently construe the non-accomplice evidence.” Id. It is not necessary that
corroborating evidence directly connect a defendant to an offense or be sufficient
by itself to establish guilt. Cathey v. State, 992 S.W.2d 460, 462 (Tex. (Tex. Crim.
App. 1999). The corroborating evidence may be direct or circumstantial. See
Smith, 332 S.W.3d at 442. The evidence must simply link the accused in some way
to the commission of the offense and show that rational jurors could conclude that
the evidence sufficiently tended to connect the accused to the offense. Simmons v.
State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009).
To establish that he committed the offense of aggravated robbery, the State
was required to prove that Appellant, while in the course of committing theft of
property owned by K. Kroll, and with intent to obtain and maintain control of the
property, intentionally and knowingly threatened and placed Kroll in fear of
imminent bodily injury and death while using and exhibiting a deadly weapon,
10
namely, a handgun. See TEX. PENAL CODE § 29.03(a)(2); see also id. § 31.03
(setting out elements of theft). The trial court’s charge permitted Appellant to be
found guilty as either the principal actor or as a party to the offense.
The charge instructed the jury that “[a] person is criminally responsible as a
party to an offense if the offense is committed by his own conduct, by the conduct
of another for which he is criminally responsible, or by both.” Id. § 7.01(a). A
person is “criminally responsible” for an offense committed by the conduct of
another if, acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense. Id. § 7.02(a)(2).
Here, parties agree that Bazile was an accomplice. Therefore, we must
disregard Bazile’s testimony in our analysis and determine whether other evidence
tends to connect Appellant to the offense of aggravated robbery.
Appellant contends that there is no evidence tending to connect him to the
aggravated-robbery offense. To support his position, Appellant points out that
neither Kroll nor the customers in the convenience store could identify Appellant
as one of the robbers. And he points out that none of the clothing items recovered
from the getaway car, such as a yellow safety vest, skull cap, gloves, and striped
polo shirt—matching clothing worn by the robber who took the cash box—were
tested for DNA evidence. Appellant also anticipates that “[t]he State will surely
11
argue that appellant was arrested after exiting a vehicle that was allegedly
connected to the crime. Without the accomplice witness testimony, there is no
evidence as to how appellant got into that vehicle or if he participated in any
capacity.”
The State asserts that there is evidence tending to connect Appellant to the
aggravated robbery, and there is sufficient evidence to support his conviction. We
agree with the State.
The convenience store’s security video, and still photos from the video,
show the man who slid over the counter and grabbed the cash box while the two
other robbers held Kroll and the customers at gunpoint. That man had black tennis
shoes with distinctive orange and white soles. When he was taken into custody in
the field following the car chase, Appellant was wearing one tennis shoe. The
evidence included photos of Appellant lying on the ground in the field wearing the
shoe and photos of the inventoried items Appellant was wearing when arrested,
which include the shoe. The shoe has a distinctive pattern and coloration that
appears to be the same as the shoes worn by the man who jumped the counter at
the convenience store and took the cash box. The man in the security video was
wearing sunglasses and a skull cap, but unlike the two other robbers, he was not
wearing a mask. Other than his eyes, Appellant’s facial features as well as his skin
tone, body shape, and size can be seen in the video. The jury was free to compare
12
these images to Appellant’s appearance at trial and in the photos from when he was
captured and conclude that he was the robber who jumped the counter. See
Johnson v. State, 354 S.W.3d 491, 494 (Tex. App.—San Antonio 2011, pet. ref’d)
(determining surveillance photographs sufficient independent evidence tending to
connect defendant to robbery); see also Simmons v. State, 282 S.W.3d 504, 509
(Tex. Crim. App. 2009) (stating issue “is not how an appellate court would
independently assess the non-accomplice evidence but whether a rational [jury]
could conclude that the non-accomplice evidence ‘tends to connect’ [the] appellant
to the offense”).
In addition, the evidence shows Kroll saw the robbers get into a white four-
door car and leave the convenience store parking lot. Corporal Kurie heard a
dispatch about the robbery and positioned his patrol car so that he could follow the
white car when it passed. He testified it took only 10 seconds to position his car,
and then he saw the white four-door car less than 30 seconds later. He began to
follow the car. From that point on, police were following the car until the pursuit
ended. Thus, the evidence shows that Appellant was in the car from at least the
time Corporal Kurie first saw the car, which was shortly after the robbery. See
Smith, 332 S.W.3d at 443 (“[P]roof that the accused was at or near the scene of the
crime at or about the time of its commission, when coupled with other suspicious
13
circumstances, may tend to connect the accused to the crime so as to furnish
sufficient corroboration to support a conviction.” (internal quotations omitted)).
When the pursuit ended, Appellant jumped out of the car and began to flee
on foot from the police. One of the police officers involved in the capture of
Appellant testified that, when the car chase ended, he saw Appellant jump out of
the vehicle carrying a duffle bag. Appellant carried the bag as he fled on foot from
police. He ran to a fence surrounding a field, threw the bag over the fence, climbed
the fence, and began to run through the field with the bag. Appellant dropped the
bag and ran before lying down in the field. He was then taken into custody by
police. The evidence showed that the duffle bag carried by Appellant as he ran
from police contained checks and cash taken from Tootsie’s and Felder’s, the
businesses that were robbed. The bag also contained the metal cash box taken
during the robbery by the man in the video wearing shoes like the shoe Appellant
was wearing when he was captured. See Keith v. State, 384 S.W.3d 452, 458 (Tex.
App.—Eastland 2012, pet. ref’d) (“A defendant’s unexplained possession of
property recently stolen permits an inference that the defendant is the one who
committed the theft.”).
Items recovered from the car were linked to the robbery. The drawers from
the convenience store’s cash register, a handgun, and items of clothing that appear
to be the same as those worn by the robber who slid over the counter were found in
14
the car in which Appellant had been riding since immediately after the robbery.
See Washington v. State, 449 S.W.3d 555, 571–72 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) (citing fleeing from police and being in vehicle with items
linked to offense as evidence tending to connect defendant with offense).
Eliminating the accomplice testimony from consideration, we conclude that
the combined weight of the non-accomplice evidence, viewed in the light most
favorable to the jury’s verdict, sufficiently tends to connect Appellant to the
offense of aggravated robbery as charged. See Simmons, 282 S.W.3d at 508;
Malone, 253 S.W.3d at 257. And, viewing the evidence—including Bazile’s
testimony and the other circumstantial evidence connecting Appellant to the
offense—in the light most favorable to the verdict, we conclude a rational fact
finder could have found beyond a reasonable doubt each element necessary to
support the finding that Appellant committed the offense of aggravated robbery as
a party to the offense. Accordingly, we hold that the evidence was sufficient to
support the judgment of conviction for the offense of aggravated robbery.
We overrule Appellant’s third issue.
C. Evading Arrest by Using a Vehicle
In his first issue, Appellant contends that the evidence was insufficient to
support his conviction “for evading arrest with a vehicle.” A person commits an
offense “if he intentionally flees from a person he knows is a peace officer or
15
federal special investigator attempting lawfully to arrest or detain him” and “uses a
vehicle while [he] is in flight.” See TEX. PENAL CODE § 38.04(a), (b)(2)(A).
Appellant argues that the evidence was not sufficient to prove that he “used”
a vehicle to flee from the police because the evidence showed that he was not the
driver of the getaway car but was instead a front-seat passenger. Appellant asserts
that “driving (or operation of the vehicle) is the gravamen of the offense of evading
arrest while using a vehicle.” In short, Appellant claims that only a vehicle’s driver
or operator can be found guilty of evading arrest while using a vehicle. Irrespective
of the merit (or lack of merit) of this claim, Appellant’s argument presumes that
the jury found him guilty as the principal actor of evading arrest with a vehicle.
However, the charge permitted the jury to find Appellant guilty of evading arrest
with a vehicle as either a principal actor or as a party to the offense. When a
court’s charge authorizes the jury to convict on more than one theory, the verdict
of guilty will be upheld if the evidence is sufficient on any one of the theories.
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
As with the aggravated-robbery charge, the trial court instructed the jury that
“[a] person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both.” TEX. PENAL CODE § 7.01(a). A person is
“criminally responsible” for an offense committed by the conduct of another if,
16
acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.
Id. § 7.02(a)(2).
In determining whether a person acted as a party, the fact finder may
consider events occurring before, during, and after the commission of the offense
and may rely on the person’s actions showing an understanding and a common
design to commit the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex.
Crim. App. 1994). Evidence is sufficient to convict under the law of parties if the
defendant is physically present at the commission of the offense and encourages its
commission by words or other agreement. Id. Participation as a party in a criminal
offense may be inferred from circumstances and need not be shown by direct
evidence. Trenor v. State, 333 S.W.3d 799, 807 (Tex. App.—Houston [1st Dist.]
2010, no pet.).
Here, to determine whether Appellant is criminally liable as a party to the
offense, we consider the events occurring before, during, and after Appellant and
his accomplices fled from police and Appellant’s actions showing an
understanding and a common design to flee from police in the getaway car. The
evidence showed that, during the convenience store robbery, Appellant slid over
the counter, took the cash box while Bazile held Kroll at gunpoint and forced her
to open the cash register. A third man, Jevon, held the customers at gunpoint and
17
made them lie on the floor. The robbers ran from the store to a white car waiting in
the parking lot that was driven by a fourth man and then took off. Corporal Kurie
followed the robbers and, once joined by another officer, initiated a traffic stop by
activating his lights. The white car sped away at a high rate of speed, driving
recklessly through traffic. The police pursuit began in Washington County,
continued through Waller County, and ended in Harris County. The evidence
showed that, while they were fleeing in the car, Appellant asked Jevon for a gun so
that he (Appellant) could shoot at police. At the end of car pursuit, Appellant
grabbed the bag containing the cash and checks taken during the robbery. The
robbers bailed out of the car while it was still in drive, and Appellant and the other
three men ran from police through a field but were apprehended.
From the evidence, the jury could have reasonably found that Appellant’s
words and actions showed an understanding and common design to commit the
offense of evading arrest while using a vehicle. See Ransom, 920 S.W.2d at 302.
And the jury could have reasonably found that Appellant, with intent to promote or
assist the commission of the offense, encouraged and attempted to aid the driver of
the getaway car in the flight from police. See TEX. PENAL CODE § 7.02(a)(2).
Viewing the evidence in the light most favorable to the verdict, we conclude
a rational fact finder could have found beyond a reasonable doubt each element
necessary to support the finding that Appellant committed the offense of evading
18
arrest with a vehicle as a party to the offense. Accordingly, we hold that the
evidence was sufficient to support the judgment of conviction.
We overrule Appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, Appellant argues that he received ineffective assistance
of counsel because his trial attorney did not request a jury instruction for simple
evading arrest on foot as a lesser-included offense of evading arrest with a vehicle.
A. Governing Legal Principles
We evaluate ineffective assistance claims under the two-pronged test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of
ineffective assistance, an appellant must show that (1) counsel’s performance fell
below an objective standard of reasonableness based on prevailing professional
norms, and (2) but for counsel’s deficient performance, there is a reasonable
probability that the result of the proceeding would have been different. Id. at 687–
88. An appellant must prove deficient performance and sufficient prejudice by a
preponderance of the evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010).
In reviewing ineffective-assistance claims, we begin with a strong
presumption that counsel’s behavior fell within the range of reasonable
professional conduct. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
19
1994). “[I]n the absence of evidence of counsel’s reasons for the challenged
conduct, an appellate court commonly will assume a strategic motivation if any can
possibly be imagined.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001) (internal quotations omitted). To overcome this presumption, “allegation[s]
of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999).
When the record is silent regarding counsel’s strategy, we will not find
deficient performance unless the challenged conduct is “so outrageous that no
competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440.
Consequently, the record on direct appeal will ordinarily not give reviewing courts
enough information to evaluate the merits of an ineffectiveness claim. See Andrews
v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).
B. Analysis
Assuming without deciding that a lesser-included offense instruction would
have been permissible, the record does not reflect why trial counsel did not request
a lesser-included offense instruction of simple evading arrest. Trial counsel may
have chosen not to request the lesser-included offense because he believed that the
jury would acquit Appellant of the charged offense of evading arrest with a motor
vehicle. “[I]t is a reasonable trial strategy to decide to not request a charge on a
20
lesser included offense.” Davis v. State, 930 S.W.2d 765, 768 (Tex. App.—
Houston [1st Dist.] 1996, pet. ref’d); see Ex parte White, 160 S.W.3d 46, 55 (Tex.
Crim. App. 2004) (holding counsel not ineffective for failure to request lesser-
included offense because all-or-nothing approach was strategy decision). Because
the decision not to request the lesser-included offense instruction may have been
strategic, and the record is silent regarding counsel’s reasons, Appellant has not
shown deficient performance. See Washington v. State, 417 S.W.3d 713, 726 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d) (determining that, because record
contained no explanation for trial counsel’s failure to request lesser-included
offense instruction, “[t]he decision to not request a lesser included could have been
strategic; thus, appellant has failed to show deficient performance”).
We overrule Appellant’s second issue.
Batson Challenge
In his fifth issue, Appellant contends that the trial court erred when it denied
his Batson challenge after the State used peremptory challenges to strike two
African-American prospective jurors.
A. Batson Challenge in Trial Court
At the end of voir dire, the State used two of its peremptory challenges to
strike two African-American prospective jurors from the venire panel (Prospective
Jurors 32 and 37). Appellant then raised a Batson challenge to the strikes.
21
The following discussion occurred regarding the challenge:
[Defense Counsel]: Yes, Your Honor. I would just like to, for the
record, note that the race of the defendant is an African-
American male and that there were two African-Americans
within the strike zone for the jury, one African-American within
the strike zone for an alternate. Both African-Americans for the
jury were struck by the State. No African-Americans were
struck by the defense. There is an African-American as an
alternate but, of course, she is not on the jury. She’s allowed to
sit through the jury, but she’s not allowed to be a part of
deliberations unless one of the jury members is excused for
some reason; and so I think that at this point, it’s incumbent
upon the State—the burden’s upon the State to provide race
neutral reasons for the strike of Juror Number 32, who was an
African-American male, and Juror Number 37, who was an
African-American male. Juror Number 42 is the alternate who
has been seated as an alternate but is not a juror.
....
[The State]: First of all, I was not even aware that Juror 37 was an
African-American in going through our list. Regardless, with
regard to 32, there was a number of questions that were asked
that he gave responses that I do not believe were favorable for
the State and so we struck him. The first was on a question of
whether local law enforcement is worthy of respect, it was a 1
to 5 scale with 5 being the strongly agree, 4 being agreed, 3
being neutral, 2 being disagree, and 1 being strongly disagree
and he said 3, which is neutral; and out of the entire panel, he is
the only—he gave the lowest response to that. He is the only
person that gave a 3 in response to law enforcement officers in
our local community being worthy of respect.
The second question that we found that he was negative
to the State was the question on whether or not a person’s
previous criminal history—person’s past criminal behavior
should be taken into consideration in current punishment.
Again, this was a 5 to 1 scale with strongly agree, agree,
neutral, disagree, or strongly disagree. He gave the answer of
22
neutral on whether a person’s past criminal behavior should be
taken into consideration in current punishment. It is the position
of the State the defendant has a very lengthy criminal history
and we think that this case is going to come down to
punishment and we want jurors who are going to take his past
criminal history into account. That’s why we felt that [Juror 32]
was not a good candidate for this particular jury. . . .
THE COURT: Let me take up [Juror 32] first. Is there any response
from the defense?
[The Defense]: No, Your Honor, and I noted those same—those same
responses and I think it’s Number 37 who I’m more looking at
because I figured he was going to say those were the answers
but–
[The State]: Sure.
[The Defense]: —for the record, I needed to make the record.
[The State]: Okay.
THE COURT: Okay. The Court does find in regard to Juror Number
32, [E.] Ragston, that the State did have race neutral reasons for
striking the juror. Therefore, the Batson challenge as to Juror
Number 32 is denied. We’ll move now to Juror Number 37,
[N.] Evans.
[The State]: Thank you, Your Honor. In regard to Mr. Evans, the first
answer on whether or not local law enforcement was worthy of
respect, he gave a 4, which was about average. Some people
gave 5s. Some people gave 4s. He gave a 4 but then on the
question of whether or not a person’s past criminal behavior
should be taken in consideration in current punishment, he gave
a 3, a 3 being neutral; and again, Mr. Green’s criminal history is
very lengthy and we expect that this case really is a case about
punishment and since he only was neutral with regards to a
person’s past criminal behavior being taken into consideration
for current punishment, we struck him. Additionally, we struck
Jurors Number 12, who was a, for the record, white female,
church secretary, Ms. Putnam. She had a 5 on respect for law
23
enforcement, but she only gave a 3 with regard to past criminal
behavior; and we struck her because of the 3 she gave on the
past criminal behavior. Additionally, with regard to Juror
Number 18, again, she gave a 3. Ms. Cardenas, she gave a 3 on
past criminal behavior being taken into consideration and we
struck her. I believe she was a Hispanic female and, yeah, Mr.
Evans was the other individual that gave a 3 with regard to the
past criminal behavior being taken into consideration for
current punishment. Those are the only jurors who gave those
answers. Every juror that gave a 3 on that answer, we struck.
THE COURT: Any response from the defense?
[The Defense]: Only that on the local law enforcement worthy of
respect, there were 13 people who also gave a 4 out of 32 total,
so I would—so I think it would require something more.
THE COURT: Anything else?
[The State]: Nothing further, Your Honor.
THE COURT: Court does find that the State had race neutral reasons
for striking Juror Number 37, [N.] Evans. Therefore, the
defense’s objection on Batson challenges is denied.
Anything else, Mr. Richardson?
[Defense Counsel]: No, Your Honor.
C. Applicable Legal Principles
In Batson v. Kentucky, the United States Supreme Court held that the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution
prohibits a prosecutor from exercising peremptory challenges based solely on the
race of potential jurors. 476 U.S. 79, 89 (1986); see also Nieto v. State, 365 S.W.3d
673, 675 (Tex. Crim. App. 2012). Even a single impermissible strike for a racially
24
motivated reason invalidates the jury-selection process and requires a new trial.
Snyder v. Louisiana, 552 U.S. 472, 478 (2008); Finley v. State, 529 S.W.3d 198,
205 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).
A Batson challenge is a three-step process. Purkett v. Elem, 514 U.S. 765,
767–68 (1995); Nieto, 365 S.W.3d at 675. First, the defendant must make a prima
facie showing of racial discrimination in the State’s use of a peremptory strike.
Purkett, 514 U.S. at 767; Nieto, 365 S.W.3d at 676. Second, once the defendant
makes the requisite showing, the State must articulate a race-neutral explanation
for the strike. Nieto, 365 S.W.3d at 675. The race-neutral explanation is a burden
of production only and does not have to be “persuasive, or even plausible.”
Purkett, 514 U.S. at 767–68. The issue is the facial validity of the explanation;
unless a discriminatory intent is inherent, the explanation will be deemed race
neutral. Id. Third, the trial court must determine if the defendant has proven
purposeful discrimination by a preponderance of the evidence. Blackman v. State,
414 S.W.3d 757, 764-65 (Tex. Crim. App. 2013); Nieto, 365 S.W.3d at 676. The
burden of persuasion always remains on the defendant, who can rebut the State’s
explanations before the trial court rules on the defendant’s objection. See Jasper v.
State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); see also Purkett, 514 U.S. at
768 (“[T]he ultimate burden of persuasion regarding racial motivation rests with,
and never shifts from, the opponent of the [peremptory] strike.”).
25
D. Analysis
We start by recognizing that, if the State offered a race-neutral explanation
for its strikes to the trial court, the first step of the analysis, regarding whether
Appellant made a prima facia case of discrimination, is moot. See Simpson v. State,
119 S.W.3d 262, 268 (Tex. Crim. App. 2003); Moore v. State, 265 S.W.3d 73, 78
(Tex. App.—Houston [1st Dist.] 2008, pet. dism’d). Thus, we turn to the second
step in the Batson analysis, determining whether the State proffered race-neutral
explanations for striking Prospective Jurors 32 and 37.
A race-neutral explanation is one based on something other than the race of
the venire member. Hernandez v. New York, 500 U.S. 352, 360 (1991). At this step
of the inquiry, the issue is simply the facial validity of the prosecutor’s
explanation. Id. Unless discriminatory intent is inherent in the explanation, the
offered reason is race neutral. Id.
As shown above, the State asked prospective jurors to rate from one to five
whether they agreed or disagreed with certain statements. The rating scale ranged
from (1) strongly agree, (2) agree, (3) neutral, (4) disagree, to (5) strongly disagree.
The State explained that, when it asked Prospective Juror 32 whether local law
enforcement is worthy of respect, he had responded “3,” meaning he had a neutral
view of that statement. The State said that this was the lowest response to that
26
question given by any venire member and that Prospective Juror 32 was the only
venire member to give that response.
The State explained that it also struck Prospective Juror 32 because, in
response to its question whether a person’s past criminal behavior should be
considered in assessing punishment, the prospective juror answered “three,”
meaning neutral. The State explained, “It is the position of the State the defendant
has a very lengthy criminal history and we think that this case is going to come
down to punishment and we want jurors who are going to take his past criminal
history into account.”
The State acknowledged that Prospective Juror 37 had answered “4,” which
means he agreed, when asked whether local law enforcement deserves respect. The
State said that “some people gave 5s” and “[s]ome people gave 4s.” The State then
indicated that the reason it struck Prospective Juror 37 was because “on the
question of whether or not a person’s past criminal behavior should be taken in
consideration in current punishment, he gave a 3, a 3 being neutral.” The State
continued, “[Appellant’s] criminal history is very lengthy, and we expect that this
case really is a case about punishment and since he only was neutral with regards
to a person’s past criminal behavior being taken into consideration for current
punishment, we struck him.”
27
The State pointed out that it had struck “[e]very juror that gave a 3 on that
answer.” The State said that the prospective jurors it struck for answering “3”
included a white female who was employed as a church secretary and had
answered “strongly agree” when asked whether she thought local law enforcement
deserved respect and another female prospective juror who the State believed to be
Hispanic.
Prospective Juror 32’s response of “neutral” to the questions regarding
respect for local law enforcement and consideration of past criminal behavior in
assessing punishment and Prospective Juror 37’s response of “neutral” to the
question regarding past criminal behavior, in the context of the State’s explanation
that Appellant had an extensive criminal history, constitute race-neutral reasons for
the preemptory strikes. See Jones v. State, 431 S.W.3d 149, 155 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d) (concluding that State’s explanation that use
of peremptory strikes was based on ratings that venire members returned for their
local law enforcement was facially race neutral). We turn to the third step.
In the third step, we must determine whether the defendant proved
purposeful discrimination; that is, whether the trial court clearly erred in failing to
find purposeful discrimination in the State’s use of peremptory strikes. See Stewart
v. State, 176 S.W.3d 856, 858–59 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
The trial judge must evaluate the facially race-neutral reasons given by the
28
prosecutor to determine whether those explanations are genuine or merely a pretext
for purposeful discrimination. Whitsey v. State, 796 S.W.2d 707, 713 (Tex. Crim.
App. 1989).
When the trial court asked defense counsel if he had a response to the State’s
given reasons for striking for Prospective Juror 32, counsel said, “No, Your Honor,
and I noted those same—those same responses and I think it’s [Prospective Juror]
Number 37 who I’m more looking at because I figured [the State] was going to say
those were the answers” it was relying on to strike Prospective Juror 32. Regarding
Prospective Juror No. 37, the defense pointed out that 13 other prospective jurors
had also answered “4,” meaning they agreed, when asked if local law enforcement
was worthy of respect. The defense was intimating that those prospective jurors
had not been struck for that response. However, the defense did not address the
reason identified by State for striking Prospective Juror 37, which was his answer
of “neutral” to the question of whether he could consider past crimes in assessing
current punishment.
Courts have held that a number of factors, if present, tend to show
purposeful discrimination. See, e.g. Miller–El v. Dretke, 545 U.S. 231, 264–65
(2005). (considering combined impact of number of factors in concluding that
prosecutors struck prospective jurors on racially discriminatory basis); see also
Whitsey, 796 S.W.2d at 713–14 (setting forth “nonexclusive list of factors which
29
weigh against the legitimacy of a race-neutral explanation”). In Miller–El, the
Supreme Court identified the following factors: (1) that the State had struck a
higher percentage of African Americans than non-African Americans, (2) that the
State’s reasons for striking African-American jurors appeared to apply equally to
non-African-American jurors whom the State did not strike, (3) that the State had
used jury shuffles in a manner that supported an inference of racial discrimination,
(4) that the State had questioned African-American and non-African–American
jurors differently and in a way designed to obtain answers justifying strikes of
African-American jurors, and (5) that the county in which the defendant was
prosecuted had a formal policy of excluding minority jurors from service. 545 U.S.
at 240–64.
Here, Appellant intimates that the State’s explanation was not genuine and
therefore a pretext for discrimination because the State used two of its 10
preemptory strikes to strike the only two African-American prospective jurors in
the first strike zone of 41 prospective jurors. In other words, the State used 20% of
its strikes to strike less than 5% of the venire panel. Thus, the State used a
statistically disproportionate number of strikes on African-American prospective
jurors. See Watkins v. State, 245 S.W.3d 444, 451 (Tex. Crim. App. 2008) (noting
that use of 55% of peremptory strikes to exclude 88% of black venire members
was clearly disproportionate).
30
The disproportionality in the use of strikes may “support the appellant’s
ultimate burden of persuasion that the State’s proffered race-neutral explanations
are a sham.” Watkins, 245 S.W.3d at 452. But, as the Supreme Court in Miller–El
noted, a comparative analysis is “[m]ore powerful” than “bare statistics,” and thus
we consider the State’s proffered reason for striking Prospective Jurors 32 and 37.
See 545 U.S. at 241.
The State’s reasons for striking Prospective Juror 32 were his answers of
“neutral” when asked whether he respected local law enforcement and whether he
could consider past crimes in assessing current punishment. The State pointed out
that Prospective Juror 32 was the only venire member to answer “neutral” when
asked whether local law enforcement deserved respect. The other 40 venire
members answered “agree” or “strongly agree.” The State’s explanation for
striking Prospective Juror 32, based on a numerical rating system in which the
prospective jurors chose the number, has support in the record and does not
provide evidence of a discriminatory intent. See Johnson v. State, 68 S.W.3d 644,
649 (Tex. Crim. App. 2002) (determining that prospective juror’s comments about
her view of police entitled State to believe her presence on jury would be adverse
to its interests). Moreover, the State’s reasons for striking Prospective Juror 32
went unchallenged during the Batson hearing. Instead, defense counsel
acknowledged that he had also made notations of the responses cited by the State
31
for striking Prospective Juror 32. See id. (“[A] party’s failure to offer any real
rebuttal to a proffered race neutral explanation can be fatal to his claim.”).
The State’s reason for striking Prospective Juror 37 was his answer of
“neutral” to the question whether he could consider past crimes in assessing
punishment. The State pointed out that all prospective jurors who responded
“neutral” to this question were stricken by the State. This is not a case in which the
State’s reasons for striking African-American jurors were not equally applied to
strike non-African-American jurors. To the contrary, white and Hispanic
prospective jurors were also stricken by the State for answering “neutral.” Thus,
the defense did not cross-examine the State about the strike or offer any rebuttal or
impeachment evidence tending to show that the State’s reason was pretextual. We
conclude that the trial court could have reasonably found that the State did not
have a discriminatory intent when it struck Prospective Jurors 32 and 37 but rather
struck them for the reasons it gave at the Batson hearing.
The remaining Miller-El factors support the trial court’s ruling. The State
did not utilize a jury shuffle, and there is no evidence in the record that
Washington County has a formal policy of excluding minority jurors from service.
In fact, one African-American veniremember was seated as an alternate juror.
Moreover, Appellant does not assert that African-American venire members were
singled out for specific questioning to create a pretext to strike them. To the
32
contrary, all prospective jurors were asked the same questions by the State in
utilizing its numeric rating system.
We conclude that Appellant has not met his burden to establish purposeful
discrimination. See Jasper v. State, 61 S.W.3d 413, 421–22 (Tex. Crim. App.
2001); Stewart, 176 S.W.3d at 858–59. We hold that the trial court did not clearly
err in denying Appellant’s Batson challenge.
We overrule Appellant’s fifth issue.
Limiting Jury Argument
In his fourth issue, Appellant contends that “[t]he trial court abused its
discretion in limiting proper defense argument thereby denying [him] the effective
assistance of counsel” during the punishment phase of trial.
A. Standard of Review
A trial court’s limitation of a defendant’s closing argument is reviewed for
an abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App.
2010). The trial court has broad discretion in controlling the scope of closing
argument, but it may not prevent defense counsel from making a point essential to
the defense. Wilson v. State, 473 S.W.3d 889, 902 (Tex. App.—Houston [1st Dist.]
2015, pet. ref’d). A defendant has the right to argue any theory supported by the
evidence and may make all inferences from the evidence that are legal, fair, and
33
legitimate. Id. Prohibiting counsel from making a particular jury argument when
counsel is entitled to do so is a denial of a defendant’s right to counsel. Id.
B. Analysis
During the guilt-innocence phase of trial, the jury learned that Appellant’s
accomplice, Bazile, had received a 25-year sentence as part of his plea deal with
the State. After the close of evidence in the punishment phase, the trial court heard
argument to determine whether Appellant should be permitted to argue to the jury
that, because Bazile received a 25-year sentence, Appellant should also be
sentenced to 25 years. Defense counsel framed his request to make the argument as
follows:
I’m asking to specifically talk about evidence that was
introduced at this trial through Christopher Bazile and through Ms.
[K.] Kroll.
What I would ask the Court that I be allowed to argue is that
Christopher Bazile was—had egregious conduct as testified to by [K.]
Kroll, that his conduct was that he jumped the counter with a pistol in
his hand, that he stuck that pistol to her head, that he pushed her face
against the cigarettes on the shelf, that he then grabbed her and pulled
her to the ground, and that he was sentenced as part of his agreement
to 25 years and that if he was sentenced to 25 years, then the man who
merely jumped the counter without a weapon should be sentenced to
around the same amount of time, 25 years.
If the Court—if the Court didn’t want me to make that—that
clear comparison, then I would simply say—say everything I said
before up until the point that Christopher Bazile was sentenced to 25
years. I recommend that [Appellant] also be sentenced to 25 years.
Those are the two propositions that I’m making to the Court . . . .
34
The State opposed Appellant referring to Bazile’s sentence as a basis for
assessing Appellant’s sentence. The State asserted that Appellant’s proposed
argument would not be proper because it involved incomplete evidence and
evidence outside the record. The prosecutor pointed out that the jury had not heard
evidence regarding how Bazile’s 25-year sentence was reached and why the State
had agreed to it. The prosecutor argued as follows:
[E]verything that went into factoring what was appropriate for
Mr. Bazile’s punishment is not before this Court or before the jury.
They do not have any evidence of his prior criminal history. They do
not have evidence of his cooperation not only in this case but in other
cases and his agreements to testify. They do not have any of the
information before the Court with regard to Mr. Bazile.
So what I’m saying is it’s improper to bring in arguments
related to the merits of Mr. Bazile’s case because Mr. Bazile’s case
and all the information behind it, the evidence, is not before this jury,
only a small—you know, if there was 50 slides of information relating
to his punishment, they’ve seen one or two because that’s not the
point of this hearing; and so it would be saying—taking a small—a
small sliver of the information where we have about the reason he
received his punishment and then making arguments as if that was the
totality. It creates a completely wrong impression because it’s going
to create the impression by Mr. Richardson to the jury that, “Oh, yeah,
he did all these horrible things and, you know, all he did is get up and
testify against my guy and that’s why he got this offer,” and that’s not
true.
It’s also because they have a vastly different criminal history.
Mr. Bazile only has two non-violent charges compared to
[Appellant’s] multiple different robberies. It also doesn’t present the
fact that that he provided information regarding another unindicted
codefendant that planned it and is currently in federal custody for a
bank robbery and that information has been tied back to HPD. I mean,
he gave up a lot more than just this case, all of which is not before this
35
jury; and so if he opens the argument of, “Oh, well, you know, Bazile
got 25 so so should he,” well, then I should be—open the door for me
to say, “Oh, yeah, but this is what you don’t know. Here’s all the
different reasons why Bazile got what he got,” which would require
me to then, I think, commit error by arguing outside the record. So it’s
better just not to open the door . . . .
The trial court ruled in the State’s favor to limit Appellant’s closing
argument. The court prohibited Appellant from arguing either that his sentence
should not be greater than Bazile’s sentence because Bazile’s actions during the
robbery were more egregious than his or from recommending Appellant’s sentence
be the same as Bazile’s sentence.
“The purpose of closing argument is to facilitate the jury in properly
analyzing the evidence presented at trial so that it may arrive at a just and
reasonable conclusion based on the evidence alone, and not on any fact not
admitted in evidence.” Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App.
2019) (internal quotation marks omitted). “It should not arouse the passion or
prejudice of the jury by matters not properly before them. Id.
Proper jury argument generally falls within one of four areas: (1) summation
of the evidence, (2) reasonable deduction from the evidence, (3) answer to an
argument of opposing counsel, and (4) plea for law enforcement. Freeman v. State,
340 S.W.3d 717, 727 (Tex. Crim. App. 2011). “[R]eliance upon these four areas of
permissible argument was born out of the prohibition against introducing matters
in argument that were not presented as evidence.” Milton, 572 S.W.3d at 239.
36
On appeal, Appellant asserts that the trial court abused its discretion in
limiting his closing statement because his proposed argument was a proper
summation of the evidence. We disagree.
Appellant’s proposed argument implied that Bazile’s sentence was based
solely on his conduct during the robbery and on his agreement to testify against
Appellant. However, the prosecutor stated on the record that was not true. He
informed the trial court that Bazile’s sentence was also based on his cooperation
with law enforcement in unrelated criminal matters and on his own criminal
history, which was shorter and less violent than that of Appellant. Appellant’s
reliance on Bazile’s sentence would have implicitly involved evidence that was not
admitted at trial.
Permitting the argument would not have facilitated the jury in properly
analyzing the evidence presented at trial to arrive at a just and reasonable
conclusion based on the evidence alone. See id. Instead, it would have provided a
false basis for the jury to analyze the evidence in assessing Appellant’s sentence.
See id. Thus, Appellant’s proposed argument was not a proper summation of the
evidence. We hold that the trial court did not abuse its discretion in limiting
Appellant’s argument.
We overrule Appellant’s fourth issue.
37
Conclusion
We affirm the judgment of conviction in each appeal.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Landau.
Do not publish. TEX. R. APP. P. 47.2(b).
38