Dana A. McCray v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-07-393-CR
2-07-394-CR
DANA A. MCCRAY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Dana A. McCray appeals his convictions for aggravated assault
of a public servant and aggravated assault with a deadly weapon. In three
points he challenges the factual sufficiency of the evidence to support both
convictions, contends the trial court erred by denying his Batson challenge, and
1
… See Tex. R. App. P. 47.4.
claims the trial court improperly denied his requested instruction on self-defense
against multiple attackers. We affirm.
Background
Appellant began arguing with Carlos Toledo in the parking lot of a
convenience store after appellant’s car almost collided with Toledo’s friend’s
truck, which Toledo had been standing next to. Two undercover Fort Worth
police officers tried to intervene. After appellant stabbed Toledo and one of the
officers, the other officer shot appellant.
Factual Sufficiency
In his first point, appellant challenges the factual sufficiency of the
evidence to support both convictions. Specifically, he contends the evidence
is too weak to support his convictions. 2
Standard of Review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2
… Although appellant’s ending prayer asks for an acquittal on his first
point, the argument under his first point deals only with factual sufficiency and
specifically requests a new trial. Moreover, in oral argument, appellant confined
his discussion to factual sufficiency only.
2
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the
factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain
v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record
clearly reveals that a different result is appropriate, we must defer to the jury’s
determination of the weight to be given contradictory testimonial evidence
3
because resolution of the conflict “often turns on an evaluation of credibility
and demeanor, and those jurors were in attendance when the testimony was
delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is
necessary to correct manifest injustice, we must give due deference to the
factfinder’s determinations, “particularly those determinations concerning the
weight and credibility of the evidence.” Id. at 9. Our deference in this regard
safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.
Applicable Facts
Carlos Toledo
Toledo, the victim of the aggravated assault with a deadly weapon,
testified that after work on June 15, 2006, he went to a convenience store on
Lancaster and Beach Streets in Fort Worth around 7:00 or 8:00 p.m. His friend
Isidro Salazar was driving the truck the two were riding in; Salazar parked the
truck close to the store’s entrance. Toledo went inside to make some
purchases. After he came back out, he went to get back into the passenger
side of the truck. As he was trying to get in, a man was backing out a car in
the next space and almost hit the back of the truck. Toledo told the man to be
careful, and the man “approached [him], and he cussed [him] and then stabbed”
him with a knife.
4
The man tried to stab Toledo again, but “some police officers came and
stopped him.” Toledo said they identified themselves as police officers and told
everyone to put their hands in the air. Toledo jumped on the sidewalk back
toward the store. He saw the police officers holding the man, but he did not
see appellant stab anyone else, nor did he see the shooting very clearly because
he was feeling dizzy and almost fell. After he heard the shots, he saw the man,
who fell and ended up on the ground. According to Toledo, “it was so quick.”
On cross-examination, Toledo testified that when the man approached
him, Salazar got out of the truck and came over “to go close to” him. He did
not recall Salazar having a sledgehammer. However, a photograph was
admitted into evidence, which Toledo identified as being the back of Salazar’s
truck, showing a sledgehammer in the back.
Chad Mills
Chad Mills, a former officer with the Fort Worth Police Department,
testified that on June 15, 2006, he and his then-partner Officer Garrett Hull
were working undercover investigating narcotics complaints. That night, Mills
was wearing a blue short-sleeve T-shirt, a pair of blue jeans, and a pair of “all-
purpose-type shoes”; he and Officer Hull would normally wear “[s]ome sort of
plain T-shirt and a pair of jeans . . . and tennis shoes” when working
5
undercover so that they would not be recognized. But Mills also wore a badge
on a neck chain under his T-shirt.
That night, Mills and Officer Hull stopped at the store on a break to get
something to drink. After buying a drink, Mills went outside and waited by the
car for Officer Hull to come outside. While he was waiting, he saw “some sort
of confrontation” between the passenger of a pickup truck and the driver of a
car,3 whom he identified as appellant; he could hear the men arguing. As Mills
was watching, appellant got out of the car “in an aggressive manner” and
approached the truck; at the same time, the passenger, whom Mills identified
as Toledo, got out of the truck so that the two were face to face. Mills then
walked around the front of the truck and started to approach appellant and
Toledo, intending to stop the fight. As he walked toward them, Mills pulled out
his badge and identified himself as a Fort Worth police officer. He held the
badge up by his face and told them to stop what they were doing. Appellant
was facing Mills, and Toledo had his back toward Mills.
Mills saw appellant push Toledo; as he got closer and the two men
separated, Mills realized that Toledo was holding his stomach. He did not
realize that Toledo had been injured, though. Appellant then came toward Mills
3
… The officers’ vehicle was parked next to the truck, and appellant’s car
was on the other side of the truck.
6
with “his right hand in the air as if he were going to throw a[n] overhand-type
punch” toward Mills. Mills took a step back and pushed appellant away while
stepping aside trying to avoid appellant. But appellant reached over the top of
Mills’s left shoulder and stabbed him with a knife. Mills tried to step back
farther, but appellant lunged toward him again. Appellant did not stab Mills a
second time, however, because Officer Hull, who was standing behind Mills,
shot appellant twice.
Mills testified that appellant fell to the ground after Officer Hull shot him,
and the knife fell out of his hand. But appellant quickly got back up, grabbed
the knife off the ground, and ran to the front doors of the store. Mills did not
realize he had been stabbed; he and Officer Hull detained appellant before he
could go inside the store. They then sought medical attention for Toledo,
whom Mills realized had been injured. Mills did not know that appellant had
stabbed him too until Officer Hull told him.
On cross-examination, Mills admitted that he did not see Salazar get out
of the truck; he was focused on what was happening between appellant and
Toledo. Mills testified that “immediately when [he] was identifying [himself] as
a police officer is when [appellant] lunged towards [him] with his right hand and
stabbed [him] in [the] shoulder.” He clarified that when he pulled the badge out
from under his shirt and displayed it, he also said loudly, “police officer, Fort
7
Worth police officer.” According to Mills, the entire encounter lasted only
seconds.
When Officer Hull shot appellant, Mills heard the shots coming from his
left side. Mills testified that Officer Hull, who was dressed similarly to Mills,
had identified himself as a Fort Worth police officer as well. Mills corroborated
still photographs from the surveillance camera at the store, which indicated that
the entire incident took less than one minute.
Officer Bill Yeager
Fort Worth Police crime scene officer Bill Yeager examined the scene after
the stabbings and shooting. The State offered fourteen photographs of the
scene taken by Officer Yeager as well as a diagram that he had prepared
showing the location of the items he found.
Officer Yeager first found a fired casing under appellant’s car. He found
a second fired casing on the ground in front of appellant’s car, but he never did
find any bullets. Officer Yeager also photographed the blood trail from
appellant; he said it was not a continual stream but spots or drops without a
“discernable directionality.” On the diagram, Officer Yeager drew the line of
the blood trail around the back of Salazar’s truck and the vehicle Mills and
Officer Hull were driving up to the front of the store. Officer Yeager noted that
8
there were blood stains on the glass around the store’s front door, the door
itself, and the door handles.
On the sidewalk in front of the store, in between Salazar’s truck and the
officers’ vehicle, Officer Yeager found a bloodstained white shirt. Also on the
sidewalk, closer to the front door of the store, Officer Yeager found a ball cap.
He found a cell phone in the parking lot just outside the store’s front doors,
near the path of the blood trail. Immediately in front of the store’s front doors,
Officer Yeager found a knife and a cap for the knife; a blood-stained, torn 4
orange shirt; two earrings; a blood-stained white tank top; a blood-stained
receipt; and a blood-stained condom in a wrapper.
Officer Yeager testified that from the location of the casings, he could tell
that the bullets were shot from the area in front of appellant’s and Salazar’s
vehicles. He also testified that, in his opinion, the knife was a deadly weapon,
capable of causing serious bodily injury or death.
On cross-examination, Officer Yeager admitted that the photographs he
took at the scene did not show the blood trail that he drew on the diagram. He
also admitted that it was “a possibility” that if someone had been shot at the
4
… Officer Yeager explained that the shirt’s condition indicated “[m]edical
intervention where the ambulance personnel arrive at the scene and remove the
clothing.”
9
door, it could create a spatter such as the one he observed on the door of the
store. When asked if the blood spatter at the door was inconsistent with
someone being injured by the vehicles, Officer Yeager stated,
No. If somebody was injured, they could cause that blood spatter
to be on the doors, and there also could be a blood trail - - whether
it be two drops or 100 drops, there could actually be a blood trail
on the parking lot. However, it was not - - the blood trail was not
photographed or projected in a photograph from my testimony.
On redirect, Officer Yeager testified that the blood on the door handle
was a smear, which indicates “someone already having blood on their hands
and then smearing it down the handle or the blood was already there and then
they - - they smeared the blood that was already there.” According to Officer
Yeager, the blood on the door was possibly consistent with someone bleeding
from the chest with blood on his hands or someone transferring the blood to the
door from bloody clothing or an injury. But Officer Yeager also admitted that
if blood had been on the door, the officers could have smeared it when they
walked in after the shooting. He also said that the blood trail he noted on the
diagram that was around the vehicles did not show up on the photographs
because of a malfunction of his camera’s flash.
Officer Yeager admitted that he did not know who the earrings, receipt,
or wrapped condom belonged to. He simply photographed them because he
found them at the scene. But someone told him that the cell phone he found
10
belonged to appellant. There was blood spatter on the inside of the cell phone,
which was lying in the open position.
Officer Garrett Hull
Officer Hull testified that on the night in question, he was exiting the
store and going to the driver’s side of the car when Mills got his attention.
Mills told Officer Hull that he thought something was going on in the parking
lot. Officer Hull then saw the car and truck parked next to them; he said it
“looked like there was some sort of confrontation going on between the two
parties.” But he could not hear what the men were saying.
According to Officer Hull, he and Mills displayed their badges and had
already begun verbally identifying themselves as police officers 5 as they were
walking around to where appellant and Toledo were standing. Officer Hull was
standing behind Mills as Mills got between appellant and Toledo; it was then
that Officer Hull saw appellant stab Mills. Officer Hull described the stabbing
and following events:
I . . . saw that he had made a punching-type motion to Mr.
Toledo, but I didn’t realize at that time that he had a knife in his
hand. It wasn’t until I saw the defendant’s hand above his head
with the knife and come down on Chad is when I observed, oh,
5
… Officer Hull was also wearing a T-shirt and jeans, but, like Mills, he
had his badge around his neck.
11
he’s got a knife in his hand, and I realized that he had stabbed Mr.
Toledo as well.
....
[T]he whole time, approaching the situation, I was constantly
identifying ourselves as police officers trying to get it to stop. And,
at that time, I realized that the threat was imminent, and he - -
Chad - - when Chad got stabbed, he kind of pushed away from the
defendant, and the defendant was still in a real close proximity to
us and Mr. Toledo, and he still had the knife raised in an aggressive
manner, so it was an imminent threat. And, at that time, I drew
my service weapon and fired.
Officer Hull said that he used deadly force against appellant because he thought
he, Mills, and Toledo were all at risk of serious bodily injury or death because
of appellant’s actions. Officer Hull saw the driver of the truck, Salazar, inside
the truck during the argument and also saw him get out of the truck after the
stabbing to check on Toledo; however, he never saw Salazar with a
sledgehammer.
John Salazar
John Salazar6 , a witness who was pumping gas during the incident,
testified that he saw “a skirmish, a fight” in front of the store. As he described
it, the events “started out with a verbal argument, and then . . . rose to a kind
of shoving match to a fight.” According to Salazar, the two men just started
6
… Isidro Salazar, Toledo’s friend and the driver of the truck he was riding
in, did not testify.
12
out talking to each other, then got in each other’s faces, shouting and then
shoving. It was too far away for him to hear what the men were saying, but
he heard shouting. When the first officer approached the men, Salazar could
tell that he was telling them something, but he was too far away to hear
exactly what. He could not hear whether Mills identified himself as a police
officer.
Salazar testified that when Mills arrived at the two men, he started to
“break up the fight.” He then took aside appellant and was talking to him, “and
they started putting hands on each other and then, . . . they were fighting.”
According to Salazar, appellant and Mills “kind of wrestled around a couple of
seconds.” Officer Hull then came out of the store, and Salazar heard someone
shout, “[H]e’s got a knife”; Salazar heard Officer Hull say freeze and saw him
fire two shots a couple of seconds later. Salazar was certain Officer Hull said
“freeze” but could only say that he thought Officer Hull also said “freeze,
police.” 7 Salazar did see Officer Hull’s badge in “his torso area.”
Salazar said that appellant “ran kind of like in a half circle back towards
the store door” after he had been shot. In other words, he initially ran toward
the rear of the vehicles but then turned back to go toward the store doors,
7
… Salazar clarified, “I was too far away to hear exactly what he was
saying.”
13
which is where he collapsed. Salazar testified that the route he saw appellant
take was consistent with the blood trail outlined by Officer Yeager. Salazar
could not recall what direction appellant was facing when Officer Hull shot him.
He did not see a knife in appellant’s hands, but he was about twenty-five to
thirty feet away from what was happening.
Charles Hollie
Charles Hollie testified that he had gone to the store to buy a drink. As
he was waiting in line, he heard “a little bang, like a shot.” He looked around
and saw a man running toward the store; he then heard someone say “police,
freeze,” followed by another gunshot. He saw Officer Hull shoot appellant in
the arm. The State questioned Hollie about the statement Hollie gave to the
police about an hour after the shooting in which he stated that he heard
“police” before the first shot. When confronted with his statement, Hollie
initially maintained that he heard Officer Hull say “police” after the first shot.
But when asked if he was not telling the truth in the statement, Hollie said, “I
really don’t remember ma’am. I’m just - - I really don’t remember.”
Victoria Van Fleet
Victoria Van Fleet, a forensic firearms examiner with the Fort Worth
Police Department, examined the T-shirt appellant had been wearing when he
was shot to determine whether holes in it were “bullet defects” and to see if
14
she could “notice any gun powder or some kind of residue on it to determine
. . . a muzzle-to-target distance.” She found a hole in the left arm that
appeared to be caused by the passage of a bullet; the hole was a little smaller
in the front than in the back, possibly indicating that the direction of the shot
was from the front to the back. She also examined a white tank top that
appellant had been wearing; it had a hole that was “quite a bit larger” in the
back than in the front. She testified that this was consistent with a hollow
point bullet 8 passing from the front to the back of the shirt because those
bullets expand upon striking something. However, Van Fleet also testified that
she could not be sure the holes she saw in the shirts were bullet holes; the
chemical tests she ran for gunpowder and lead came back negative. She
conceded on cross-examination that it is possible that holes in the back of a
shirt could become bigger from a person’s lying on the ground and being moved
around.
When asked by appellant’s counsel whether a surgeon could tell which
way a bullet entered a person’s body by the direction it was facing when the
surgeon removed it, Van Fleet explained that a bullet can rotate inside a person
after entry, “[s]o just because the direction is pointing one way does not mean
8
… According to Van Fleet, the Fort Worth Police Department uses hollow
point bullets.
15
that’s the way it was fired.” Also on cross-examination, the defense offered,
and the trial court admitted, appellant’s medical records, in which the doctor
treating his gunshot wound stated numerous times that one of the wounds was
to appellant’s back, exiting his left nipple. But Van Fleet also testified, both on
direct and cross, that the report said elsewhere that the entrance wound was
under the nipple. In addition, the discharge report showed that appellant had
been treated for a “GSW left chest.”
Detective Troy Lawrence
The State called Troy Lawrence, a Fort Worth police detective. He
testified that he interviewed three adults and one child who had witnessed
some of the events at the store. He also retrieved the store’s video surveillance
system on a CD. The State offered still photos from the surveillance system.
However, none of those photos show clearly what happened outside the store,
only what was going on inside.
The State played a recording of Detective Lawrence’s interview with
Hollie. When asked what he saw and heard that night, Hollie told Detective
Lawrence that he heard a shot, “police, police,” and a second shot. When
Detective Lawrence asked Hollie to clarify when he heard “police, police,” Hollie
initially said “after,” but then quickly corrected himself and said that he heard
it before the first shot. According to Hollie, he heard the first shot, saw
16
appellant running, heard the second shot, and finally heard appellant say,
“Allright, allright” and fall down in front of the door. But he also said that he
hid after the second shot.
On cross-examination, Detective Lawrence testified that when reviewing
the surveillance tape, he could hear the gunshots but not any talking outside
the store; however, he also said that just because the recorder did not pick up
the sound of voices outside the store did not mean that a person inside the
store could not have heard them.
Appellant’s Witnesses
Appellant called three witnesses, two of whom testified that before the
incident, appellant had been at their house to watch television and had left
sometime after 8:00 p.m. to go to the store. Marsha Adams, a Fort Worth
police administrative assistant in the internal affairs division, testified that no
internal affairs investigation file for Officer Hull existed.
Analysis
Appellant contends that the following shows that the evidence as a whole
is too weak to be factually sufficient as to both convictions: (1) John Salazar,
the witness who was pumping gas at the time of the incident, heard Mills say,
“freeze,” but could not be sure that he heard him say “freeze, police”; (2) the
blood spatter on the door and the medical reports support a contention that
17
appellant could have been shot in the back rather than in his chest; and (3) “the
witnesses called by [appellant] established that [appellant] appeared to have no
anger issues or an agenda when he left the house other [than] to buy beer and
return to watch a ball game.”
The jury is the sole judge of the weight and credibility of the evidence and
is entitled to resolve conflicts in the evidence. See Tex. Code Crim. Proc. Ann.
art. 36.13 (Vernon 2007); Johnson, 23 S.W.3d at 7. The jury was thus
entitled to believe Toledo, Mills, and Officer Hull, who all testified that the
officers identified themselves to appellant before he stabbed Mills. Moreover,
it was also entitled to resolve the conflict between Hollie’s in-court testimony
and his recorded statement and believe that the version of the facts in his
statement was more credible. Accordingly, we conclude that the fact that a
different witness, who was not standing as close to the events as the others,
may or may not have heard the officers identify themselves as such, does not
render the evidence too weak to support the conclusion that appellant knew
Mills was an officer. Moreover, this evidence has no bearing on the conviction
for aggravated assault of Toledo with a deadly weapon.
Additionally, we fail to see how where Officer Hull shot appellant (either
in the back or in the chest, or by the vehicles or the store door) has any bearing
on the credibility of the witnesses who testified that appellant stabbed both
18
Toledo and Mills or how it creates doubt about his knowledge that Mills was a
police officer. The jury was entitled to believe that appellant, having heard and
seen Mills identify himself as a police officer, nevertheless stabbed him, then
attempted to flee.
Finally, although appellant contends that his witnesses “established that
[he] appeared to have no anger issues or an agenda when he left the house
other [than] to buy beer and return to watch a ball game,” we note that neither
witness testified about appellant’s emotional state. They testified simply that
appellant was at their house watching a game and then left in the evening to
go to the store. Neither was at the store when the event occurred, and their
testimony has no bearing on what happened when appellant arrived there.
Additionally, their testimony does not serve to weaken the testimony of the
eyewitnesses and participants.
We have detailed all the evidence from which the jurors could have
concluded that appellant was guilty of both offenses beyond a reasonable
doubt; after considering appellant’s contentions and the evidence as a whole,
we cannot say that it is so weak that the jury’s verdict was clearly wrong and
manifestly unjust. Accordingly, we conclude and hold that the evidence is
factually sufficient to support both of appellant’s convictions, and we overrule
appellant’s first point.
19
Self-Defense Against Multiple Attackers Instruction
In his third point,9 appellant contends that the trial court erred by denying
his request for a jury instruction on self-defense against multiple attackers. The
State contends that the issue need not be reached because there was no
evidence to support any self-defense instruction in light of appellant’s use of
deadly force.
Applicable Law
A defendant is entitled to an instruction on every defensive issue raised
by the evidence “whether that evidence is weak or strong, unimpeached or
uncontradicted, and regardless of what the trial court may or may not think
about the credibility of the defense.” Allen v. State, 253 S.W.3d 260, 267
(Tex. Crim. App. 2008); see Tex. Code Crim. Proc. Ann. arts. 36.14–.15
(Vernon 2007); Quattrocchi v. State, 173 S.W.3d 120, 122 (Tex. App.—Fort
Worth 2005, pet. ref’d). A self-defense against multiple attackers charge is
warranted if “there is evidence, viewed from the accused’s standpoint, that he
was in danger of an unlawful attack or a threatened attack at the hands of
more than one assailant.” Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim.
App. 1985) (quoting Wilson v. State, 140 Tex. Crim. 424, 145 S.W.2d 890,
9
… We address appellant’s third point out of order because it relies in part
on the facts discussed in his first point.
20
893 (1940)).10 Thus, the issue is whether there is evidence that, viewed from
appellant’s standpoint, he was in danger of an unlawful attack or threatened
attack from Toledo, Mills, and Officer Hull.
Analysis
Appellant’s requested instruction read as follows: “This right of self-
defense also applies when the defendant reasonable [sic] believes that he is
under attack by more than one person. In such circumstances, the defendant
has a right to defend himself against any one or more of the persons or against
all of them.” Appellant points to the evidence that the entire incident happened
quickly in “a matter of seconds.” He contends that the short time frame raises
the issue of whether he perceived himself under attack from all three persons;
in other words, while he was arguing with Toledo, Mills and Officer Hull came
upon him so fast that he perceived he was the victim of a concerted group
attack. He also points to the evidence that John Salazar, the man pumping gas
at the time, saw Toledo and appellant shouting at and shoving each other and
10
… The State contends that a separate instruction is not required in this
case because it is not a statutory defense under the penal code. See Giesberg
v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (“[A] defense which
is not recognized by the Legislature as either a defense or as an affirmative
defense does not warrant a separate instruction.”), cert. denied, 525 U.S. 1147
(1999). But we need not decide whether such an instruction is available, given
our disposition of appellant’s point. See Tex. R. App. P. 47.1.
21
the testimony that Mills pushed appellant first after getting in between appellant
and Toledo.
Viewing the evidence in the light most favorable to appellant, we
conclude that he has not shown he was entitled to such an instruction, if one
is even available. See Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App.
1999).
The theory behind the multiple assailants charge is that, when it is
clear that an attack is being conducted by multiple people as a
group, a defendant is justified in using force against any member
of the group, even if the recipient of that force is not engaging in
conduct that would, by itself, justify the use of force (or deadly
force as the case may be).
Dickey v. State, 22 S.W.3d 490, 493 (Tex. Crim. App. 1999) (Keller, J.,
concurring); see Black v. State, 65 Tex. Crim. 336, 145 S.W. 944, 945–47
(1912) (explaining deficiency in charge that did not incorporate this concept).
Here, the evidence shows that appellant stabbed Toledo before Mills got
to the two men. Toledo and Mills, the two closest to appellant at the time,
both testified that Mills was identifying himself as an officer while approaching.
Officer Hull did not see appellant stab Toledo, and he testified that he did not
draw his weapon until after appellant stabbed Mills. He was behind Mills and
not involved in the physical confrontation; in fact, there is no evidence that
appellant even saw Officer Hull.
22
John Salazar’s version of events does not contradict the other witnesses’
versions of the events in these respects; he simply could not confirm what was
or was not said because he was standing too far away. He testified that Mills
was already wrestling with appellant before Officer Hull came out of the store.
He also heard someone say that appellant had a knife before he heard shots.
Appellant’s requested defense appears to rely on the absence of evidence
rather than on “weak or strong, unimpeached or uncontradicted” evidence that
was actually admitted. Accordingly, we conclude and hold that, regardless of
the availability of the requested instruction at law, the defensive issue was not
raised by the evidence and, therefore, the trial court did not err by refusing to
include it in the charge. We overrule appellant’s third point.
Batson Challenge
In his second point, appellant challenges the trial court’s ruling denying
his Batson challenge.
Applicable Facts
At the end of voir dire, the trial court called the following veniremembers
to be seated on the jury: 4, 11, 13, 22, 24, 29–31, 36, and 38–40. Instead
of being sworn in at that time, the trial court released the jury until the next
day. The next day, the trial court called the same juror numbers and then
administered the oath. Afterwards, appellant’s counsel asked the trial court,
23
“Your Honor, am I to understand that a juror has changed? No one brought
that to my attention.” The trial court then explained that the day before, when
he had called the selected jury members, number 34, who had not been
selected and whom the State had peremptorily struck, sat in the jury box with
the other selected jurors and number 40 mistakenly left with the other
discharged veniremembers. The mistake was corrected so that when the jury
was sworn, number 40 was seated instead of number 34.
Appellant’s counsel then raised a Batson challenge on the ground that
“the jury was composed of three African-Americans on yesterday
evening . . . [a]nd this morning, it’s composed of two African-Americans.”
Juror 34 is an African-American female, and appellant is an African-American
male.
The State pointed out to the trial court that the jury had already been
sworn,11 but the trial court requested that the State respond to the motion
11
… The State contends that appellant’s Batson challenge was untimely
because the jury had already been sworn. See Tex. Code Crim. Proc.
Ann. art. 35.261 (Vernon 2006); Hill v. State, 827 S.W.2d 860, 873–74 (Tex.
Crim. App. 1992), cert. denied, 506 U.S. 905 (1992). In these unusual
circumstances, however, appellant was apparently not able to discern the
change in the panel from the day before until the jury was actually being sworn
and he could visually examine the correct panel. And appellant raised his
challenge immediately after the jury was sworn. Accordingly, on these facts,
and in the interest of justice, we will address the merits of his complaint. See
Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1); Lagrone v. State, 942
24
nevertheless. The State explained that it struck juror 34 because in her
questionnaire, she indicated that her ex-husband had been in and out of prison
for years in response to a question about whether she or someone close to her
had had an unpleasant experience with law enforcement. The defense then
offered the questionnaires of five other non-African-American 1 2
veniremembers—Jurors 10, 11, 17, 39, and 43, two of whom were seated on
the jury—who also answered that they or a family member had had a bad
experience with law enforcement. According to the defense, the State’s
explanation failed because it did not strike these similarly situated
veniremembers. The trial court denied appellant’s Batson challenge, stating,
“At this time, I’m going to find that you failed to meet the burden of showing
there was a disproportionate number of jurors who were struck as a minority
race. I’ll find that this is a race-neutral jury.”
S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk
v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). Moreover, because
we hold that he is not entitled to relief on the merits, our disposition is the
same. See Tex. R. App. P. 47.1.
12
… The only part of the record indicating the race of the veniremembers
is appellant’s counsel’s statement that “for the record . . . I do believe they are
members of the Caucasian race.”
25
Applicable Law
The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution prohibits race-based jury selection. U.S. Const. amend.
XIV; Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986);
Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). When a
defendant challenges the racial composition of a jury under Batson, he or she
must prove that the prosecutor engaged in purposeful discrimination against a
member of a constitutionally protected class in exercising the State’s
peremptory challenges. Batson, 476 U.S. at 96–98, 106 S. Ct. at 1723–24;
Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008), cert. denied,
129 S. Ct. 92 (2008). The defense must first make a prima facie case of racial
discrimination (step one). Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct.
1769, 1770–71 (1995); Watkins, 245 S.W.3d at 447. The burden of
production then shifts to the State to come forward with a race-neutral
explanation (step two). Purkett, 514 U.S. at 767, 115 S. Ct. at 1770–71;
Watkins, 245 S.W.3d at 447. If the State tenders such a race-neutral
explanation, the trial court must then decide whether the defendant has proved
purposeful racial discrimination (step three). Purkett, 514 U.S. at 767, 115 S.
Ct. at 1770–71; Watkins, 245 S.W.3d at 447.
26
The step-two explanation need only be race neutral on its face. Purkett,
514 U.S. at 767–68, 115 S. Ct. at 1771; Watkins, 245 S.W.3d at 447. The
ultimate plausibility of that race-neutral explanation is to be considered as part
of the third step of the analysis, in which the trial court determines whether the
defendant has satisfied his or her burden to prove the strike was indeed the
product of the State’s purposeful discrimination. Purkett, 514 U.S. at 768, 115
S. Ct. at 1771; Watkins, 245 S.W.3d at 447. Whether the defendant satisfies
the burden of persuasion to show that the proponent’s facially race-neutral
explanation for the strike is pretextual and not genuine is a question of fact for
the trial court to resolve in the first instance. Watkins, 245 S.W.3d at 447;
Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004); see Purkett,
514 U.S. at 769, 115 S. Ct. at 1771.
After the defendant has made out a prima facie case of racial
discrimination, if the trial court then proceeds immediately to the second step
by inquiring of the State whether it had a nondiscriminatory purpose—as the
trial court did here—a reviewing court is to assume that the defendant has
satisfied the step-one obligation to make a prima facie case of purposeful
discrimination and address only the second and third steps. Watkins, 245
S.W.3d at 447–48. The court of criminal appeals has explained this court’s
role on review of a trial court’s Batson ruling as follows:
27
The reviewing court should not overturn the trial court’s
resolution of the Batson issue unless it determines that the trial
court’s ruling was clearly erroneous. In assaying the record for
clear error, vel non, the reviewing court should consider the entire
record of voir dire; it need not limit itself to arguments or
considerations that the parties specifically called to the trial court’s
attention so long as those arguments or considerations are
manifestly grounded in the appellate record. But a reviewing court
should examine a trial court’s conclusion that a facially race-neutral
explanation for a peremptory challenge is genuine, rather than a
pretext, with great deference, reversing only when that conclusion
is, in view of the record as a whole, clearly erroneous.
Id. at 448 (citations omitted).
In our analysis of the second and third steps, we are guided by the
Supreme Court’s recent opinion in Miller-El v. Dretke, in which the Court
“considered the combined impact of a number of factors in concluding that, by
clear and convincing evidence, the prosecutors exercised two peremptory
challenges on a racially discriminatory basis, notwithstanding the race-neutral
explanations they offered at the Batson hearing.” Id. (citing Miller-El v. Dretke,
545 U.S. 231, 266, 125 S. Ct. 2317, 2340 (2005)). Among the factors the
Court considered in Miller-El, viewing the voir dire as a whole and considering
the collective and cumulative impact of those factors, were (1) statistics
showing the State struck a higher percentage of African-Americans than non-
African-Americans, (2) the State’s given reasons for striking African-American
jurors appeared to apply equally to non-African-American jurors the State did
28
not strike, (3) evidence that the State used jury shuffles in an attempt to
manipulate the racial makeup of the panel, (4) the State 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) evidence
that Dallas County had a formal policy of excluding minority jurors from service.
Miller-El, 545 U.S. at 240–64, 125 S. Ct. at 2325–39; Watkins, 245 S.W.3d
at 448–49.
Only the second factor was raised during the Batson hearing in appellant’s
case. Accordingly, although we are not limited to considering only those
matters specifically raised at the hearing, we will begin by undertaking a side-
by-side comparison of Juror 34 with Jurors 10, 11, 17, 39, and 43.
Comparative Juror Analysis
Juror 34
Juror 34’s questionnaire showed that she was forty years old. She listed
her occupation as “CDL Driver Prospect.” Her education was listed as
“Complete 10th/w diploma.” 13 To the question, “Have you or someone close
to you ever had an unpleasant experience with the police,” she answered, “ex-
13
… The copy of the questionnaire is light, and it is possible the notation
says, “Complete 12th/w diploma.” Either way, it appears she has a high school
education.
29
husband in and out of prison for years.” In response to the question, “Have
you or someone close to you ever been arrested for or charged with a crime
([i]ncluding hot checks),” she answered, “Traffic Ticket 1997.” She had never
served on a civil or criminal jury. The only party to question Juror 34 directly
was the State, who asked, “[Y]ou’ve had family that was involved in the
criminal justice system. Is there anything about that case that would affect you
sitting as a juror here?” The juror responded simply, “No.” The State did not
question her further.
Juror 10
Juror 10, a thirty-six year-old male, indicated on his questionnaire that he
was a teacher and that his wife also worked for the same school district. He
had a master’s degree in Christian Education. In response to the question about
unpleasant experiences with the police, he answered, “older brother got into
much trouble with DWI’s and such - of course, I only heard his side.” He had
never served on a criminal or civil jury.
During questioning by the State, he volunteered the following: “It was
not with a deadly weapon, but my wife was raped before I met her, so she was
assaulted.” When asked if he would have strong feelings about the instant
case, he stated, “Well, I certainly have strong feelings, but I don’t know - - I
can’t say how I would feel based on the facts in any case.” He admitted it was
30
possible that “there might be some part of the emotional part that involves
violence that [he] might have a hard time with,” but he also added that his
wife’s assault had taken place “a long time ago.” The defense challenged him
for cause.
On further questioning by the trial court, Juror 10 stated that what
happened to his wife would not affect his judgment in the case, that the two
cases were “totally different,” and that his wife’s assault did not seem to be
relevant to the instant case. He also stated that he could be fair and impartial
to appellant and the State.
Thus, although Juror 10 also listed a close family member with more than
one unpleasant experience with the police, his brother, he also was married to
someone who had been the victim of an assault. Additionally, when defense
counsel asked who wanted to serve on the jury, Juror 10 responded that he
did. Accordingly, we conclude and hold that there are sufficient differences
between Juror 10 and Juror 34 such that the State’s reasoning did not apply
equally as to both of them.
Juror 11
Juror 11 was fifty-eight at the time of trial, and he listed his occupation
as “Ret Fed Gov’t.” For his educational background, he listed “AA Degree.”
In response to the question about bad experiences with police, he listed, “Wife
31
arrested erroneously. Same name & someone with a warrant.” He had also
served in the United States Army and had a nephew who was a Grand Prairie
policeman. Finally, Juror 11 had served on both a civil and a criminal jury in the
past.
When the State asked whether he could be fair (presumably in relation to
having a relative in law enforcement), he stated, “I think I could be fair.” When
asked if, with respect to his “experience,” he could “put that aside and judge
each person as they came in here,” he said, “Yes, ma’am.” Later, Juror 11 and
defense counsel engaged in the following colloquy:
[Juror 11]: Well, I think you have the right to defend yourself by
any means necessary to get out of the situation.
[Defense counsel]: Okay.
[Juror 11]: Unless it’s against law enforcement, then he has the
gun and you don’t have a right to pull a gun against him.
[Defense counsel]: Okay. But what if I didn’t know it was law
enforcement?
[Juror 11]: Well, you should have been warned prior to.
[Defense counsel]: Okay. So in the course of me being
attacked and defending myself, I should be more astute as to who
the person is?
[Juror 11]: No, I’m not saying that. Law enforcement would
inform you that they’re law enforcement.
Juror 11 ultimately sat on the jury.
32
Unlike Juror 34, Juror 11 had a relative in law enforcement. And, also
unlike Juror 34, his spouse’s experience with the police was a one-time event,
not multiple encounters over a period of years. Additionally, his wife’s
experience was one of mistaken identity and presumably did not involve prison
time. Accordingly, we conclude and hold that Juror 11’s characteristics that
could be considered more favorable to the State distinguish him sufficiently
from Juror 34 such that the State’s failure to strike him does not show
pretense as to its striking Juror 34.
Juror 17
There is some confusion in the record regarding Juror 17; it appears that
two jurors, 17 and 20, shared the same last name.14 Juror 17 was 69 years
14
… Although the State contends in its brief that it “can find no indication
that there were two veniremembers with the same last name,” it is clear that
Juror 20, whom the trial court questioned separately, had the same last name
as Juror 17. The trial court identified Juror 20 specifically after striking him for
cause; Juror 20 had told the trial court point-blank that he could not be fair and
impartial in the case because his wife had been a victim of a violent sexual
assault. Juror 17’s questionnaire has “No” circled in response to the question
about whether the juror or someone close had ever been the victim of a crime.
Earlier, when the prosecutor was asking whether panel members could be fair
in light of their experiences with the police, she asked Juror 17 if he “felt like
the process was fair or [if he] could . . . put that aside?” He answered, “[Y]ou
may have the wrong [person with the same last name]. I’ve got grandsons, but
I wasn’t really involved.” When she further asked, “So you weren’t close
enough to that for it to affect you, sitting in this room,” he answered, “No.”
Although the record is somewhat confusing, it is apparent that Juror 17 and
Juror 20 had the same last name. Accordingly, we will not attribute Juror 20’s
33
old and retired from the National Weather Service. His wife was retired from
the “Texas Probation Dept.” He had previously served on both a civil jury and
a criminal jury. He listed his education as “High school grad with some
college.” In response to the question about unpleasant experiences with the
police, he stated, “I have grandsons that are or have been in prison in
Oklahoma.” He had a nephew who was an Everman police officer, and he had
served in the United States Air Force for ten years.
In response to the State’s questioning about whether his grandsons’
unpleasant experience with law enforcement would affect him, Juror 17
answered, “No,” after which he volunteered, “I’ve got a nephew that’s a police
officer.” Based on the foregoing, we conclude and hold that Juror 17’s
experience with law enforcement, in addition to his other questionnaire answers
which could be perceived as more favorable to the State, was sufficiently
different from Juror 34’s such that the State’s failure to strike Juror 17 does
not show that its stated reason for striking Juror 34 was merely pretextual.
Juror 39
Juror 39, a female, was twenty-seven at the time of trial. She listed her
occupation as an elementary school teacher’s assistant and “CNA Cherry Tree
answers to the trial court’s questions to Juror 17.
34
Residential.” Under “Educational Background,” she wrote, “college education.”
In response to the negative experience with law enforcement question, she
noted, “Pulled over because someone [else] had tickets in my car and a license
plate light was out.” To the question asking if the juror or someone close had
ever been arrested for or charged with a crime, she answered, “Boyfriend theft
by check off probation 6 yrs.” She had never served on a jury before. Juror
39 was seated on appellant’s jury.
Although she did not note it on her questionnaire, when asked by the
State whether her bad experience with law enforcement would affect her as a
juror, Juror 39 answered,
[Juror 39]: No, ma’am. I have family in law enforcement as well
as - -.
[State]: So you could - - either way?
[Juror 39]: Yeah.
[State]: You wouldn’t be biased toward them because of your
family relationships and you wouldn’t be bais[ed] against them
because - -
[Juror 39]: No.
Jurors 34 and 39 were similar in that they had both had traffic-related
encounters with police and had someone close to them charged with a crime.
The record is not developed about the extent to which this might have affected
35
either woman; we do not know how close Juror 34 was to her ex-husband or
her feelings toward him at the time of trial, nor do we know anything about
Juror 39’s relationship with her boyfriend. Their experiences could likely be
distinguished on the basis that Juror 34’s ex-husband apparently had chronic
problems with the law while, in contrast, Juror 39’s boyfriend had been out of
trouble for at least six years after his probation. Moreover, Juror 39 said during
questioning that she had family in law enforcement. And although she said that
she would not be biased for or against a police officer, it makes sense that the
State would favor jurors with relatives in law enforcement in a case such as
this, in which appellant was accused of assaulting a police officer. For these
reasons, we conclude and hold that the State’s failure to strike Juror 39 does
not show that its reasons for striking Juror 34 were not race-neutral or merely
pretextual.
Juror 43
Juror 43 was forty-nine years old at the time of trial. He listed his
occupation as “Millwright Self Employed,” and he had a tenth grade education.
In response to the negative experience with law enforcement question, Juror
43 wrote, “Friend Agg Aus.” He also noted that his stepson had been arrested
or charged for “drugs.” He had not served on a civil or criminal jury and did not
have a relative in law enforcement.
36
When the State asked Juror 43 whether his friend’s experience would
affect him in this case, he answered “No.” He also said that he could be fair
to both sides. When the defense asked the panel what they first thought when
they heard the offense, he answered, “I feel like I would have to have more
[details].”
The similarities between Juror 43 and Juror 34 are much closer. Both
were in their forties and had about an equal amount of education. Neither had
previously served on a jury. Juror 43’s answers to the law enforcement and
crime questions do not indicate whether his friend’s and stepson’s problems
were chronic or one-time, nor do they explain whether either of them spent
time in jail or prison. However, we do know that Juror 34’s ex-husband not
only had been arrested and charged, he was “in and out of prison for years.”
Finally, the State notes that Juror 43 was toward the end of the strike zone
and, thus, unlikely to be selected. In fact, he did not sit on the jury.
Although there is a much closer question as to Jurors 34 and 43, there
are at least some distinguishing characteristics between the two. And even if
there were not, faced with the record of the entire voir dire—which shows that
out of three African-Americans on a panel of more than forty-three, two sat on
the jury and only one was struck—we cannot say that the trial court clearly
erred in overruling appellant’s Batson challenge. See Watkins, 245 S.W.3d at
37
453 (holding, when State struck one African-American juror and three non-
African-American jurors for having reservations about assessing a life sentence,
but did not strike other non-African-American juror who also expressed
reservations, that “[w]e are unable to say on this state of the record that [the
African-American juror] was struck on a basis that did not apply equally to most
of the non-African-American veniremen” (emphasis added)). In addition to
showing that a fairly high percentage of African-Americans actually served on
the jury, the record does not reveal a pattern of disparate questioning,15 nor is
there any indication that the prosecutors used a jury shuffle at all, much less
for an improper purpose. Although the prosecutor did not question Juror 34
any further once she said her ex-husband’s experience would not affect her in
this case, she likewise did not ask follow-up questions of at least some of the
other panel members. Accordingly, on this record, we conclude and hold that
the trial court’s denial of appellant’s Batson challenge was not clearly
erroneous. We overrule appellant’s second point.
15
… Not knowing the identities of the two African-American jurors who
sat on the jury, we cannot evaluate whether the lack of further questioning was
limited only to African-American jurors.
38
Conclusion
Having overruled appellant’s three points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON and MCCOY, JJ.; WILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment)
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2009
39