Keelan Gore v. State ( 2009 )

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Opinion issued June 18, 2009

In The

Court of Appeals

For The

First District of Texas



NO. 01-08-00391-CR

____________

KEELAN GORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1134139

MEMORANDUM OPINION

Appellant, Keelan Gore, appeals a judgment that convicts him for the third degree felony of second offender assault to a family member. See Tex. Pen. Code Ann. § 22.01 (Vernon Supp. 2008). Appellant pleaded not guilty to the jury. The jury found him guilty and determined his sentence at 16 and one half years in prison. In five points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction, and that the trial court erred by not granting his request to include in the jury charge the lesser offense of misdemeanor assault, by overruling his Batson challenge during voir dire, and by admitting evidence of appellant's prior felony convictions to impeach appellant. We conclude the evidence is legally and factually sufficient. We also conclude the trial court did not err by refusing the lesser included offense instruction, denying the Batson challenge, and admitting the prior convictions. We therefore affirm.

Background

Appellant dated Shannon Sumpter in the late 1990s, and the couple had a daughter. Appellant was convicted of kidnapping Sumpter in 2001, for which he was sentenced to five years in prison.

In 2007, appellant was living with his girlfriend of about two years, Kimberly Rawson. On July 3, 2007, Rawson called 911. Rawson reported that appellant had assaulted her. Following the 911 call, a police officer arrived at Rawson's residence. Rawson told the police officer that appellant became angry when he had to wake Rawson for her to make him breakfast. She said that appellant grabbed her by the hair, threw her down on the floor, and started banging her head against the floor. She also said that appellant kicked her in the face while she was down on the floor. The officer observed that Rawson was bleeding from her chest and had some blood on her left ear.

Rawson was taken to the hospital in an ambulance. Rawson told medical personnel she had been assaulted. Medical personnel documented that Rawson had some bruises on her chest and pain in her back. The night of the assault, Rawson spent the night in a shelter because she had nowhere else to stay.

After a period of time, Rawson signed an affidavit stating that appellant did not assault her. Appellant accompanied her to the notary where she swore to truth of the affidavit. Similar to the affidavit, Rawson testified at trial that appellant did not assault her. Although she had not mentioned another woman in the affidavit, Rawson's trial testimony explained, for the first time, that Rawson argued with appellant after finding him with another woman at their home. At trial, the officer who responded to the scene testified to what Rawson told him the night he responded to the call and to the injuries he observed on Rawson. The State also introduced the statements made during the 911 call.

The State's evidence was disputed by Rawson and appellant. Rawson testified that she lied to the 911 operator, the police officer, and EMS and hospital personnel about appellant assaulting her. Appellant testified that at the time the officer responded to Rawson's call, he was suffering from injuries that prevented him from using his right hand and he also had injuries to his left arm. Appellant said that Rawson became upset when she found him with another woman, which resulted in a physical confrontation between Rawson and the other woman. Appellant denied striking Rawson. Appellant claimed he was injured by Rawson when Rawson threw an unopened soda can at his face.

Sufficiency of the Evidence

Appellant challenges the legal and factual sufficiency of the evidence to sustain the conviction.

A. Legal Sufficiency

In his first point of error, appellant challenges the legal sufficiency of the evidence by asserting there is no evidence that appellant's prior conviction for kidnapping was committed against a person with whom the defendant had a dating relationship. Appellant asserts no legal sufficiency challenge concerning the assault on Rawson; his challenge concerns only the prior conviction that makes the assault on Rawson a felony rather than a misdemeanor.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to give their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). A jury is entitled to accept one version of the facts and reject another, or reject any part of a witness's testimony. Id.

The jury charge instructed that appellant should be found guilty of the felony assault if the evidence showed beyond a reasonable doubt that he was previously convicted of kidnapping "against a person with whom the defendant had a dating relationship." "Dating relationship" was defined in the jury instructions as "a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature." See Tex. Family Code Ann. § 71.0021(b) (Vernon 2008) (emphasis added).

Viewing the evidence in a light most favorable to the jury's verdict, the evidence shows appellant was previously convicted for kidnapping Sumpter in 2001. Appellant accurately notes that the judgment for the prior conviction states "n/a," in reference to "Family Violence." However, the State may use extrinsic evidence to prove family violence when the judgment for a prior conviction uses the term "not applicable" or "not available" when referring to family violence. See State v. Cagle, 77 S.W.3d 344, 348 (Tex. App.--Houston [14th Dist.] 2002, no pet.). Appellant acknowledged in his testimony that Sumpter, the person who testified at this trial, was the same person who he was convicted of kidnapping. Furthermore, Sumpter testified that while she was dating appellant, he kidnapped her and was charged with that offense. Sumpter said that she dated appellant for about two years during the late 1990s and that he was the father of her daughter.

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have determined beyond a reasonable doubt that appellant was previously convicted of kidnapping "against a person with whom the defendant had a dating relationship." See id. We hold the evidence is legally sufficient. See King, 29 S.W.3d at 562. We overrule the first point of error.

B. Factual Sufficiency

In his fifth point of error, appellant contends the evidence is factually insufficient to prove that appellant assaulted Rawson.

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record. Id. The jury may choose to believe some testimony and disbelieve other testimony. Id. at 707.

Appellant challenges the adequacy of the State's proof to show that appellant hit and kicked Rawson. Appellant refers to Rawson's testimony that her claims of assault were lies told to the 911 operator, the responding police officer, the emergency medical personnel, and the hospital personnel. Appellant contends this evidence corroborates his own testimony that he did not assault her and that Rawson received her injuries from the woman with appellant, rather than from appellant.

Appellant's challenges to the factual sufficiency of the evidence are based on the credibility of witnesses and the weight to give their testimony, issues on which we must defer to the jury. See id. at 705. Although Rawson and the appellant denied the assault in their trial testimony, the jury could have reasonably discredited that testimony based on other evidence admitted at the trial. The jury heard Rawson's statements and demeanor on the 911 call, as well as the responding officers account of Rawson's statements and demeanor on the night of the call. Rawson's medical records were also admitted, which describe how Rawson received the injuries. Photos showing visible injuries of Rawson's injuries were provided to the jury. The jury also heard Rawson spent the night at a homeless shelter. Based on this evidence, the jury could have reasonably discounted the explanations for the injuries provided by Rawson and appellant.

We conclude that, viewed in a neutral light, the evidence tending to prove that appellant committed felony assault is not so weak as to render the jury's verdict clearly wrong or manifestly unjust. See Johnson, 23 S.W.3d at 11. We also conclude that, viewed in a neutral light, the verdict is not against the great weight and preponderance of the evidence that appellant committed felony assault. See id. We hold that the evidence is factually sufficient to sustain the jury's guilty verdict. We overrule appellant's fifth point of error.

Failure to Give Jury Instruction In his second point of error, appellant contends the trial court erred in failing to instruct the jury on the lesser included offense of misdemeanor assault. Appellant contends that because there was insufficient evidence that appellant's prior conviction for kidnapping was committed against a person with whom he had a dating relationship, he was entitled to an instruction allowing the jury to convict for the lesser offense of misdemeanor assault.

Upon request, an instruction on a   lesser-  included   offense should be included in the jury charge only if (1) the requested charge is a   lesser-  included   offense of the charged offense, and (2) there is some evidence that, if the defendant is guilty, she is guilty only of the lesser offense. Robalin v. State, 224 S.W.3d 470, (Tex. App.--Houston [1st Dist.] 2007, no pet.)         (quoting   Hayward v. State,     158 S.W.3d 476, 478 (Tex. Crim. App. 2005)). The State concedes the first prong is met.

    Here, the second prong is not met because there is no evidence that, if the defendant is guilty, he is guilty only of the lesser offense. See Hayward, 158 S.W.3d at 478. As noted above, the term "dating relationship" includes a relationship between individuals who have had a continuing relationship of an intimate nature. See Tex. Family Code Ann. § 71.0021(b). The record undisputedly shows that appellant was convicted of kidnapping Sumpter, the mother of his child, who he dated for about two years before the kidnapping. In his testimony, appellant acknowledged that he pleaded guilty to kidnapping Sumpter. Because the prior conviction for kidnapping of a person with a dating relationship was undisputed, there is no evidence that appellant is guilty of the lesser offense only. See Hayward, 158 S.W.3d at 478. We hold the trial court did not err by refusing to instruct the jury on the lesser charge of misdemeanor assault. We overrule the second point of error.   Batson Challenge

In his third point of error, appellant contends the trial court erred by overruling his Batson challenge regarding prospective juror number seven.

A. Batson Principles

Using a peremptory challenge to strike a potential juror because of race violates the equal protection guarantee of the United States Constitution, Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986), as well as article 35.261 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon Supp. 2008). In the face of perceived purposeful discrimination, the defendant may request a Batson hearing. See id. art. 35.261(a).

A defendant's Batson challenge to a peremptory strike is a three-step process. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct. 1769, 1770-71 (1995); Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003). The defendant must first make a prima facie case of racial discrimination, based on the totality of relevant facts about the prosecutor's conduct during the trial. Miller-El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317, 2324 (2005); Purkett, 514 U.S. at 767, 115 S. Ct. at 1770; Simpson, 119 S.W.3d at 268; see Tex. Code Crim. Proc. Ann. art. 35.261. If the defendant makes a prima facie case, the burden of production shifts to the State to present a race-neutral reason for its challenged strike, a reason that is "a clear and reasonably specific explanation of [the] legitimate reasons" for exercising its strike. Miller-El, 545 U.S. at 239, 125 S. Ct. at 2324; see Tex. Code Crim. Proc. Ann. art. 35.261(a) ("If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the State to give a racially neutral explanation for the challenges."). A reason is deemed race-neutral if no discriminatory intent is inherent in the prosecutor's explanation. Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Thomas v. State, 209 S.W.3d 268, 270 (Tex. App.--Houston [1st Dist.] 2006, no pet.)

When the prosecutor responds by offering a race-neutral explanation, the inquiry whether the defendant has made a prima facie case becomes moot, and the defendant may rebut the State's explanation. Simpson, 119 S.W.3d at 268; Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). In the third and final step, the trial court must decide whether the defendant carried the burden to establish purposeful discrimination. Miller-El, 545 U.S. at 239, 125 S. Ct. at 2324-25; Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Simpson, 119 S.W.3d at 268. The trial court's inquiry addresses whether the neutral reasons provided by the prosecutor for the peremptory challenge were contrived in order to conceal racially discriminatory intent. Jasper, 61 S.W.3d at 421.

Throughout the challenge, the burden of persuasion remains with the defendant, Tex. Code Crim. Proc. Ann. art. 35.261(a), who may continue to rebut the prosecutor's explanations before the trial court decides the Batson challenge. Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Simpson, 119 S.W.3d at 268; see Thomas, 209 S.W.3d at 270.

A reviewing court examines jury selection from a cold record. Satterwhite v. State, 858 S.W.2d 412, 415 (Tex. Crim. App. 1993). In other words, it is the trial court who has the opportunity to view each venire person's demeanor and to evaluate his or her credibility and, ultimately, is in the better position to pass on the challenges for cause presented. Satterwhite, 858 S.W.2d at 415 (citing Smith v. State, 676 S.W.2d 379, 387 (Tex. Crim. App. 1984)). Consequently, we cannot reverse a trial court's ruling on a Batson challenge unless it is clearly erroneous. See Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). To hold that a trial court clearly erred, we must have a "definite and firm conviction that a mistake has been committed." Goldberg v. State, 95 S.W.3d 345, 385 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd). We may not substitute our opinion for the trial court's factual assessment of the neutrality of the prosecutor's explanation for exercising strikes, and we focus on the genuineness, rather than the reasonableness, of the prosecutor's asserted nonracial motive. Gibson, 144 S.W.3d at 534 n.5 (citing Purkett, 514 U.S. at 769, 115 S. Ct. at 1771-72). We give great deference to the trial court's determination, and we view the evidence in the light most favorable to the trial court's ruling. Gibson, 144 S.W.3d at 534 n.6 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); Jasper, 61 S.W.3d at 422.

B. Analysis

Appellant initiated the first step of the Batson challenge, which requires that appellant make a prima facie case, by objecting to the State's use of a peremptory strike to exclude juror seven, who according to appellant was a Hispanic man. The State moved to the second step of Batson, by giving an explanation for the strike, as follows:

Juror No. 7, Mr. Hernandez, I noted in my review of his employment, he is a cook at Hooters; and although I can't place why I don't like that, I just didn't like that for my case being that it does involve a family member case.

Appellant did not rebut this justification, and the trial court found that it was racially neutral.

In this appeal, the State explains that the "juror was struck because he worked at a restaurant that was notorious for objectifying women" and that the "prosecutor obviously did not want such a juror, who could have been acclimated to such an environment, sitting in judgment of a domestic violence case where a woman was assaulted."

The trial court could reasonably have concluded that the State articulated a racially neutral reason for striking juror number seven. Based on the circumstances before the trial court, we hold it did not abuse its discretion in allowing venire member seven to be removed by peremptory strike. We overrule appellant's third point of error.  Admission of Prior Convictions

In his fourth point of error, appellant contends the trial court erred in admitting his prior convictions as impeachment evidence because the prejudicial effect of the evidence outweighed its probative value.

We review a trial court's decision regarding the admissibility of evidence of prior convictions for a "clear abuse of discretion." Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App.1992); Morris v. State, 67 S.W.3d 257, 262 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). A trial court abuses its "wide discretion" when its decision to admit a prior conviction lies outside the zone of reasonable disagreement. Theus, 845 S.W.2d at 881; Morris, 67 S.W.3d at 262.

Texas Rule of Evidence 609 provides that evidence of a witness's prior conviction shall be admitted for purposes of impeachment if the crime was a felony or a crime of moral turpitude and the court determines that the probative value of admitting the evidence of the conviction outweighs its prejudicial effect. Tex. R. Evid. 609(a). However, such evidence is not admissible if more than 10 years has elapsed since the date of the conviction or the witness's release from confinement, whichever is later, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. Id. 609(b). On appeal, appellant and the State agree that Rule 609(a) governs the disposition of this issue.

In Theus, the Court of Criminal Appeals set out a nonexclusive list of factors courts should use to weigh the probative value of a conviction against its prejudicial effect. Theus, 845 S.W.2d at 880. Such factors include (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness's subsequent history, (3) the similarity between the past crime and the charged offense, (4) the importance of the witness's testimony, and (5) the importance of the witness's credibility. Id. The proponent seeking to introduce evidence pursuant to Rule 609 has the burden of demonstrating that the probative value of a conviction outweighs, or in this case substantially outweighs, its prejudicial effect. See id.

During cross-examination of appellant, the State asked if appellant was the same person who had been convicted of unauthorized use of a motor vehicle (UUMV) on two previous occasions. At that point, appellant's attorney objected by stating, "Judge, the State did not give notice under 609. Additionally, the prior convictions are more than ten years old." Appellant's attorney further stated, "We would also object to remoteness, Judge; they're more than ten years old." The State responded that notice was given because the offenses were listed in the indictment and notice was in the court's file. Noting that one conviction was in 1989, one conviction was in 1992, and the conviction for kidnapping was in 2001, the court ruled the convictions were admissible under "tacking." After that, appellant's attorney stated, "Judge, the kidnapping is not alleged as a reason for attacking his credibility." The court overruled the objection, responding, "Well, that's an element of the offense. If he's on the stand, an element of the offense certainly is relevant." In regard to the first factor, we note that the impeachment value of prior offenses involving deception or moral turpitude is greater than for offenses involving violence. Theus, 845 S.W.2d at 881. Here, appellant's prior convictions for UUMV are crimes involving deception. See Baca v. State, 223 S.W.3d 478, 484 (Tex. App.--Amarillo 2006, no pet.); Lowe v. State, No. 01-93-00985-CR, 1995 WL 19052, at *5 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (not designated for publication). Accordingly, we conclude the first factor favors admission of appellant's two prior UUMV convictions.

In regard to the second factor, temporal proximity and subsequent history, the law favors admission of past offenses if they are recent and the witness has demonstrated a pattern of running afoul of the law. Theus, 845 S.W.2d at 881. In this case, the record shows appellant was convicted of UUMV in 1989 and again in 1992. Appellant was then convicted in 2001 of a kidnapping that occurred in 1999. Because the evidence shows a lack of reformation, the second factor favors admission of appellant's two prior convictions. See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989) (stating that "[e]vidence of the lack of reformation or subsequent felony and certain misdemeanor convictions may then cause the prior conviction to fall outside the general rule and not be subject to the objection of remoteness" and that "[t]he question is one of discretion for the trial court").

In regard to the third factor, similarity between an offense and the current offense militates against admissibility, whereas dissimilarity between the past offense and the current offense favors admissibility. Theus, 845 S.W.2d at 881; Rodriguez v. State, 129 S.W.3d 551, 560 (Tex. App.--Houston [1st Dist.] 2003, pet ref'd). The present case involves the offense of felony assault, which is not similar to appellant's prior convictions of UUMV. Thus, we conclude that the third factor favors admission because there is a lessened possibility of prejudice. See Theus, 845 S.W.2d at 881.

In regard to the fourth and fifth factors, we consider the importance of appellant's testimony and of his credibility. Id. at 880. We consider the defendant's defense and the means at his disposal to prove that defense. Id. at 881. In this case, appellant's testimony was corroborated by the testimony of Rawson, but Rawson's testimony was itself heavily impeached. Nevertheless, appellant's testimony and credibility were not as critical as they would have been if appellant had been the only defense witness. See id.

Based on our consideration of all of the Theus factors, we hold the trial court did not abuse its discretion in denying appellant's Theus motion and admitting evidence of appellant's prior convictions. We overrule appellant's fourth point of error. Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Jennings, Alcala, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).