Ladale Cubit v. State ( 2014 )

Affirmed and Opinion Filed June 17, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01549-CR
LADALE CUBIT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F11-34970-K
OPINION
Before Justices FitzGerald, Fillmore, and Evans
Opinion by Justice FitzGerald
A jury convicted appellant Ladale Cubit of capital murder, and the trial judge sentenced
him to imprisonment for life. On appeal, appellant raises five points of error complaining that
the trial judge erred by refusing to strike certain veniremembers for cause and by refusing to
grant appellant additional peremptory strikes. Appellant also raises one point of error
complaining about the assessment of court costs. We affirm.
I. BACKGROUND
The evidence at trial showed that Mehboob Pirani and his cousin Rahim Merchant were
shot to death in Irving, Texas, on July 24, 2011. Circumstantial evidence connected appellant to
the shooting, and he was located and arrested. He was indicted for capital murder for the death
of Pirani. Appellant pleaded not guilty and was tried before a jury. The jury found appellant
guilty of capital murder. The trial judge then sentenced appellant to life in prison. Appellant
timely filed his notice of appeal.
II. ANALYSIS
A. Denial of challenges for cause
In his first four points of error, appellant argues that the trial judge erred by denying four
of his challenges of veniremembers for cause. He argues that the four veniremembers were
biased because they were predisposed to give police officers greater credibility than other
witnesses. The State does not dispute that appellant preserved error as to the four unsuccessful
challenges for cause.
1. Applicable law
A veniremember is challengeable for cause if he or she cannot impartially judge the
credibility of witnesses. Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999); see also TEX.
CODE CRIM. PROC. ANN. art. 35.16(a)(9) (West 2006) (providing that challenge for cause may be
made if potential juror has a bias or prejudice for or against the defendant). This means only that
jurors must be open minded and persuadable, with no extreme or absolute positions regarding the
credibility of any witness. Ladd, 3 S.W.3d at 560. A veniremember’s inclination to give certain
classes of witnesses a slight edge in terms of credibility does not justify a challenge for cause.
Id.; see also Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App. 2002) (holding that
veniremember was not challengeable for cause even though he said he “would ‘lean towards’
believing an officer over a lay person”); Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App.
1998) (holding that veniremember “was not challengeable for cause simply because she stated
she would be more skeptical of accomplice witnesses than of witnesses generally”) (footnote
omitted).
–2–
We review a trial judge’s ruling on a challenge for cause for abuse of discretion. Ladd, 3
S.W.3d at 559. We must defer to the trial judge’s decision if the record supports it. Id. If a
veniremember equivocates or vacillates with respect to his or her ability to follow the law, the
appellate court must defer to the trial judge’s decision. Id.
2. Application of the law to the facts
Appellant’s first point of error concerns veniremember 12. During general voir dire, she
said that she would “tend to start a police officer off . . . at a higher level of credibility just
because they are police officers.” During individual voir dire, the trial judge asked her some
questions, and the following exchanges took place:
The Judge: Okay. The question is, can you start off any witness or
witnesses at the same level and wait until they have testified to
determine if you want to give more credibility or more weight
to that person’s testimony as to another testimony? Can you do
that?
Veniremember: Can I wait after I hear someone else’s testimony?
The Judge: Can you wait until you hear everything?
Veniremember: Yes.
...
The Judge: Okay. So the question is, can you wait until you hear the
evidence, even though you may hold police in higher regard,
but can you wait until you hear the evidence until you decide
where you place their testimony in relationship to all the
testimony in the case, can you do that?
Veniremember: Yes.
The record shows that veniremember 12 did not take an extreme or absolute position with
regard to the credibility of any witness. See Ladd, 3 S.W.3d at 560. Although she first said that
she would tend to give police officers more credibility than other witnesses, she later said that
she could listen to the evidence and then decide how much credibility to give police officers’
testimony in relation to testimony from other witnesses. These facts are similar to those in Huitt
–3–
v. State, in which a veniremember first said he would give a police officer more credibility but
later said that he could “start everyone on a level playing field.” No. 05-06-00632-CR, 2007 WL
1192266, at *3 (Tex. App.—Dallas Apr. 24, 2007, no pet.) (not designated for publication). The
trial judge refused to strike the veniremember for cause, and we affirmed based on the equivocal
nature of the veniremember’s answers. Id. at *5. Because veniremember 12’s statements in this
case were equivocal, we must defer to the trial judge’s determination.
Appellant’s second point of error concerns veniremember 25. During general voir dire,
appellant’s counsel asked veniremember 25 if he would tend to think that police officers “are
credible and give them more credibility, their testimony more weight.” Veniremember 25
replied, “Actually, compared to someone on the street, yes.” During individualized questioning,
veniremember 25 said, “I’ve had the privilege of working with good agents and working
alongside good police officers, and just like when we were sitting here in this setting today, I—
the person next to me had a felony record or something like that, as compared to if I see a police
officer, I keep them in a high regard.” Soon thereafter, this exchange occurred:
The Judge: You don’t know if there would be two police officers
contradicting one another, and then you are in a dilemma, and
so, really, the question is even though you may hold them in
higher regard than the average witness, the question is, if their
testimony is worthy of no more weight than anybody else’s or
less than anybody else’s, could you make that decision and
judge their testimony fairly like along with everybody else, just
like any other witness?
Veniremember: Yes, I can.
Again, the record does not show that the veniremember espoused an extreme or absolute
position regarding the credibility of police officers as witnesses. He just said that he would tend
to think police officers are more credible than “someone on the street” and that he kept them “in
a high regard.” The veniremember’s answer quoted above indicated that he could judge their
testimony “fairly like along with everybody else, just like any other witness.” Because the
–4–
veniremember’s position was not extreme or absolute, and because the veniremember indicated
he could judge the credibility of police officers just like any other witness, the trial judge did not
abuse his discretion by refusing to strike veniremember 25 for cause.
Appellant’s third point of error concerns veniremember 28. During general voir dire, she
said she would tend to start a police officer off at a higher level of credibility simply because he
or she was a police officer. During individual questioning, she explained that she would “put
them in a higher regard” because “[t]hey take some kind of oath in regard to the honesty of the
best of their knowledge.” Then the following exchange occurred:
The Judge: Okay. So what does that—tell me how that translates into, you
are on a jury and police officer comes in here and testifies and
you know nothing about him. How does that translate into
where you want to start him?
Veniremember: I have to hear the testimony.
The Judge: Okay. Are you going to say that he is a police officer, he took
an oath to be a police officer, so I know everything he is saying
is the truth, or are you going to listen to what he has to say and
size it up according to what it is in relationship to whatever
testimony there may be in the case?
Veniremember: Your second answer is what I would do.
Once again, we conclude that the record does not show that veniremember 28 held an
absolute or extreme position regarding the veracity of police officers. During individual
questioning, the veniremember said she would have to hear the testimony before deciding where
to start a police officer in terms of credibility, and she affirmed that she would weigh a police
officer’s testimony according to its relationship to the other testimony in the case. Given the
equivocal nature of her responses, we defer to the trial judge’s determination that she should not
be removed for cause.
Appellant’s fourth point of error concerns veniremember 46. During general voir dire,
veniremember 46 said that she would tend to believe police officers because of the training they
–5–
have received in how to collect information. She also said she did not think of police officers “as
any other witness.” During individual questioning, the judge asked veniremember 46 what she
would do if she decided that a police officer witness was mistaken, and she answered that she
would not give that testimony any more weight than anybody else’s testimony. Then this
exchange occurred:
The Judge: Where you start off is one thing, where you end is up [sic]
somewhere else.
Veniremember: That’s true.
The Judge: What I need to find out is, is if a police officer testifies and
they either don’t know what they are talking about, got it all
wrong or conflicted with one another, or not any better than
any other non-police officer witness, can you judge that fairly
and come to a fair conclusion as to the weight to be given to
the credibility or weight to be given to their testimony?
Veniremember: Yes, I do. I could do that.
Again, we conclude that the trial judge did not abuse his discretion. Veniremember 46’s
testimony did not show an extreme or absolute position regarding the credibility of police
officers as witnesses. Based on the veniremember’s response to the judge’s last question, the
judge could have reasonably concluded that the veniremember would consider the testimony of a
police officer as no better than the testimony of a non-police officer and would judge a police
officer’s credibility fairly.
We overrule appellant’s first four points of error.
B. Request for additional peremptory strikes
After the trial judge refused to strike the above-described veniremembers for cause,
appellant used four peremptory strikes against those four veniremembers, identified four other
objectionable veniremembers, and asked the trial judge for four additional peremptory strikes to
use against those other four veniremembers. The trial judge denied the request for additional
strikes. In his fifth point of error on appeal, appellant argues that this ruling was erroneous.
–6–
Appellant’s argument is without merit. We review the trial judge’s ruling on appellant’s
request for additional peremptory strikes for abuse of discretion. See Cooks v. State, 844 S.W.2d
697, 717 (Tex. Crim. App. 1992). The denial of such a request is not an abuse of discretion “in
the absence of ‘wrongdoing’ on the part of the trial court.” Id. “Such wrongdoing may exist if
the trial court has improperly overruled a defendant’s challenge for cause and the defendant has
accordingly used a strike on a juror who is subject to a challenge for cause.” Id. In this case,
appellant’s only argument that he was entitled to additional peremptory strikes is that the trial
judge erroneously denied his four challenges for cause, thereby preventing appellant from using
peremptory strikes on four other veniremembers that he found objectionable. We have already
concluded that the trial judge did not err by denying appellant’s challenges for cause.
Accordingly, we overrule his fifth point of error.
C. Court costs
In his sixth and final point of error, appellant contends that there is insufficient evidence
in the record to support the part of the judgment requiring him to pay $264 in court costs. He
bases his contention on the absence of a bill of costs from the clerk’s record. After appellant
filed his brief, we ordered the district clerk to file a supplemental record containing a proper bill
of costs. Appellant then filed an objection to the supplemental clerk’s record after it was filed,
arguing that the bill of costs contained therein was still insufficient and that it was not before the
trial court at the time of judgment.
Appellant’s arguments and objections have been addressed and rejected by the court of
criminal appeals and by this Court. See Johnson v. State, 423 S.W.3d 385, 391–96 (Tex. Crim.
App. 2014); Coronel v. State, 416 S.W.3d 550, 555–56 (Tex. App.—Dallas 2013, pet. ref’d).
We overrule Appellant’s Objection to Supplemental Clerk’s Record, and we overrule his sixth
point of error on appeal.
–7–
III. DISPOSITION
For the foregoing reasons, we affirm the trial court’s judgment.
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
121549F.U05
–8–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LADALE CUBIT, Appellant On Appeal from the Criminal District Court
No. 4, Dallas County, Texas
No. 05-12-01549-CR V. Trial Court Cause No. F11-34970-K.
Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee Justices Fillmore and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 17, 2014
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
–9–