Stanley Dewayne Wilson v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00039-CR
STANLEY DEW AYNE W ILSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In five points, Appellant Stanley Dewayne W ilson appeals his conviction for
aggravated robbery with a deadly weapon. We affirm.
1
… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
W ilson pleaded not guilty to aggravated robbery with a deadly weapon, and
a jury found him guilty and assessed his punishment at ninety-nine years’
confinement. In addition to his complaints about the trial court’s admission of
extraneous offense evidence and its denial of his Batson challenge during voir dire,2
W ilson complains that the evidence is legally and factually insufficient to support his
conviction. Therefore, we will discuss the facts in greater detail below.
III. Sufficiency of the Evidence
In his first two points, W ilson complains that the evidence is legally and
factually insufficient to support his conviction for aggravated robbery with a deadly
weapon. However, we will review the evidence only under the legal sufficiency
standard because the court of criminal appeals has recently overruled Clewis v.
State, 922 S.W .2d 126 (Tex. Crim. App. 1996) (setting out the factual sufficiency
standard of review) and decided “that the Jackson v. Virginia legal-sufficiency
standard is the only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense that
the State is required to prove beyond a reasonable doubt.” Brooks v. State, No.
PD-0210-09, 2010 W L 3894613, at *1, 14 (Tex. Crim. App. Oct. 6, 2010).
2
… See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).
2
A. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.
2007).
B. Aggravated Robbery with a Deadly Weapon
A person commits aggravated robbery if, in the course of committing theft and
with intent to obtain or maintain control of the property, he intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death and uses or
exhibits a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003).
A person commits theft if he unlawfully appropriates property with intent to deprive
the owner of the property. Id. § 31.03(a) (Vernon 2003). An appropriation of
property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).
C. Evidence
1. First Robbery—Sandro Reyes
Dawn Fuller stated that on the night in question—April 29, 2005—she lived at
Cypress Club Apartments in Arlington, in a second-story apartment that overlooked
the parking lot. She stated that she heard raised voices in the parking lot in the early
3
morning. She looked outside, saw W ilson 3 and her neighbor Sandro Reyes, heard
a “pop and . . . an ugh sound,” and then saw Reyes hit the ground.4 She watched
as W ilson rifled through Reyes’s pockets and took Reyes’s keys. He then used the
keys to take Reyes’s truck, but he backed it into a culvert. She continued to watch
as W ilson emerged from the truck and ran away up the culvert. She described
W ilson as follows: “Slim build, black guy, low haircut.” She also stated that he was
wearing “[d]ark bottoms [and a] long white tank top” that evening.
W hile outside with the police, Fuller heard a couple of gunshots coming from
the right, to the northeast of the apartment complex.
2. Second Robbery—Scott Stewart
On April 29, 2005, Scott Stewart lived at 1701 Monaco Drive in Arlington.
Larea Buckley and Stewart were outside on his porch around 1:00 a.m. when they
heard a loud bang like a gunshot, followed by some sirens a few minutes later.
Shortly thereafter, Buckley started home. She had barely driven past five houses
when W ilson flagged her down. He was in the middle of the road, waving his arms
frantically.
3
… Fuller identified W ilson at trial as the shooter.
4
… Reyes did not survive the shooting. W e affirmed W ilson’s conviction for
the capital murder of Reyes in Wilson v. State, No. 02-06-00136-CR, 2007 W L
1879792 (Tex. App.—Fort W orth June 28, 2007, pet. ref’d) (mem. op., not
designated for publication).
4
W hen Buckley slowed down, W ilson ran up to her window and asked her for
a ride. Although she could not see him very well, she let him in. She saw W ilson
more clearly when the car’s interior lights came on and realized that she “made a
major mistake.” Sweat poured down his face, and he kept looking around frantically
like someone was after him.5 Her description of W ilson’s attire matched Fuller’s
above: a white “wife-beater” tank top-style T-shirt and blue jeans.
Buckley turned the car around and headed back to Stewart’s house. W hen
they arrived there, she told W ilson that she wanted her friend to do the driving. She
stayed in the running car while she waited for Stewart. Stewart saw them from his
bedroom window and made his way outside to the driveway. She told him that
W ilson needed a ride. Stewart spoke with W ilson from the outside of the vehicle
through the driver’s side window, and W ilson told him that he needed to get to
Dallas. Stewart replied that they would not take him to Dallas or give him a ride.
W ilson stepped out of the car and looked like he was going to walk away, but
after a few steps, he returned to the driver’s side of the vehicle, where Buckley and
Stewart were standing. Buckley testified that W ilson begged and pleaded with them
for a ride, and he lunged towards the driver’s side of the car more than once, trying
to jump into the vehicle. Stewart barred W ilson’s way and told Buckley to get in the
5
… W ilson told her that he had been in a fight with his girlfriend and needed
to get out of there, and then, “[o]ut of the blue he just turned and said: ‘W here are
we? W here am I?’” She thought it odd that he did not know where his girlfriend
lived.
5
house and call the police. Stewart testified that W ilson confronted him with a drawn
gun and opened fire.
Buckley testified that when she turned around before going inside the house
to call the police, she saw W ilson draw a silver handgun and fire the first shot into
Stewart. She stated that she thought that, since they were not going to give W ilson
a ride, he was going to take her car “to get out of there.” Stewart testified that he
thought he might die when Wilson started firing—W ilson was only four feet away
when he started shooting—and, based on W ilson’s demeanor and actions, he
thought W ilson was trying to take the car. W ilson shot Stewart a total of five times
while Buckley called the police.6
Stewart’s wounds were inflicted as he tried to take a defensive posture and
go for the gun. W hen the shooting stopped, he kicked the gun out of W ilson’s hand
and tackled W ilson. He testified that he remembers hitting the ground, that he
blacked out “a little bit,” and that when he regained consciousness, W ilson was
running away. Stewart acknowledged on cross-examination that it would have been
pretty easy for someone to take the car once he was down. But he also replied,
“yes,” when asked whether he was “able to position [him]self in such a way that the
car was never entered[.]”
6
… W ilson shot Stewart in both arms, both sides of his chest, and once “in the
butt,” causing severe injuries that required several surgeries.
6
After W ilson ran off, Stewart calmly walked to the top of the driveway and sat
down “Indian Style” to wait for an ambulance. W hen Buckley came back outside,
there was blood everywhere. Buckley testified that she still finds blood from the
shooting inside her car.
3. Police Investigation
Arlington Police Detective Brett W orman testified that he was a patrol officer
in April 2005 and was dispatched to the Cypress Club Apartments at 1:39 a.m. when
the shooting was reported. W hen he arrived, he saw a truck backed into a drainage
culvert on the north side of the apartment complex. He and the other attending
officers cleared that vehicle first to make sure the suspect was not still there, then
attended to Reyes, who was laying on his back in the parking lot with a gunshot
wound.
At 1:52 a.m.—thirteen minutes after his initial dispatch to the Cypress Club
Apartments—Detective W orman was dispatched to a shooting-in-progress call at
1701 Monaco Drive. He testified that, running police lights and sirens, it takes thirty
to forty-five seconds to get from the Cypress Club Apartments to Stewart’s house
and that they are approximately half a mile apart. When he arrived, he found
Stewart sitting “Indian-style” at the top of the driveway, and he could not tell how
many times Stewart had been shot because of the amount of blood. Stewart told
him that he had been shot by a black male. Detective W orman applied pressure to
7
Stewart’s wounds until the paramedics arrived a few minutes later, and then he
roped off the crime scene.
Elizabeth Rosenhaur and Peter Salicco, who were both Arlington Police
Department crime scene investigators at the time, also testified at trial. They arrived
separately at the Cypress Club Apartments around 2 a.m.; Reyes was already dead.
Salicco went on to the Monaco Drive crime scene. Rosenhaur photographed the
Cypress Club crime scene, collected blood that had spilled near where Reyes’s body
was found, and collected fingerprints from the truck in the culvert. When asked
whether it appeared to her that someone could drive the truck out of the culvert,
Rosenhaur said no.
Salicco photographed the Monaco Drive crime scene and fingerprinted
Buckley’s vehicle. He stated that there was a lot of blood at the scene and that,
based on the amount of Stewart’s blood loss, he was surprised Stewart survived.
He stated that he photographed blood on the inside of Buckley’s vehicle on the
driver’s side and that the explanation for that was either the window was down, or
the door open, at the time of the shooting. There was also blood on the exterior side
of the door and blood spatter on the ground next to the driver’s side of the vehicle.
Blood had pooled at the top of the driveway. He found bullet fragments at the scene,
and a bloody t-shirt was collected in the yard of 2010 Monaco Drive, just down the
street from the crime scene.
8
Salicco, a latent print examiner, performed the physical examination on the
fingerprints that he and Rosenhaur had collected at the two crime scenes after they
were run through the Automated Fingerprint Identification System (AFIS). He
testified that the fingerprints that he lifted from the outside of the passenger side
door matched W ilson’s, as did the fingerprints that Rosenhaur collected from the
exterior driver’s side door of Reyes’s pickup, and that no two people in the world
have the same fingerprints.
Four days later, Dallas Police Officer Christopher Lewis arrested W ilson at a
Dallas apartment complex. W ilson’s sister answered the door and gave police
permission to search the apartment. They found W ilson hiding in a hall closet.
Officer Lewis described W ilson’s demeanor as “kind of defeated. I mean, he . . . he
just knew that he had been caught and that was it.”
Arlington Police Detective Ben Lopez, the lead detective on the case, testified
that he took buccal swaps of both W ilson and Stewart. Constance Patton, senior
forensic biologist and DNA technical leader for the Tarrant County Medical
Examiner’s Officer crime laboratory, testified that she tested the bloody t-shirt found
on Monaco Drive and W ilson’s shoes and pants that he was wearing when he was
arrested. The presumptive test for blood that she performed on the shoes indicated
that blood was present, and the stain on the left shoe had male DNA from at least
two individuals. W ilson and Stewart could not be excluded from the .001% of the
population who could have contributed that DNA.
9
Patton tested two different areas on the t-shirt: the neck and one of the blood
stains on the front. From the neck sample, she stated that neither W ilson nor
Stewart could be excluded—they fell within the 0.6% of the population that had the
types possible to contribute to the mixture—but that there were some other “types”
that were also detected that could not have originated with either one. Therefore,
she was unable, on the probability of exclusion, to say with any certainty whose T-
shirt it was. The bloodstain found on the shirt belonged to Stewart.
Patton testified that, as to the pants, one of the stains tested positive for blood,
but it met a partial profile of W ilson and excluded both Stewart and Reyes. Another
stain was a mixture, but most of it was from a male matching Stewart’s DNA profile.
D. Analysis
W ilson was charged with intentionally or knowingly, while in the course of
committing theft of property and with intent to obtain or maintain control of said
property, threatening or placing Scott Stewart in fear of imminent bodily injury or
death on or about April 29, 2005, while using or exhibiting a deadly weapon
(firearm). Wilson concedes that there is sufficient evidence to show that he
committed aggravated assault, and based on the facts above, we agree.
W ilson specifically challenges the evidence to support the “in the course of
committing theft of property and with the intent to maintain control of the property”
aggravated robbery element, arguing that “[t]here were plenty of opportunities for the
vehicle to have been stolen[,] [b]ut it did not happen.”
10
W e must review circumstantial evidence of intent with the same scrutiny as
other elements of an offense. Laster v. State, 275 S.W .3d 512, 519–21 (Tex. Crim.
App. 2009) (overruling Margraves v. State, 34 S.W .3d 912, 919 (Tex. Crim. App.
2000)).
Both Buckley and Stewart testified that they believed W ilson intended to steal
Buckley’s car, and their testimonies about his actions—such as lunging towards the
driver’s seat multiple times and his insistence on getting a ride to Dallas—viewed in
the light most favorable to the prosecution—support the conclusion that a rational
trier of fact could have found the essential elements of theft necessary for W ilson’s
aggravated robbery with a deadly weapon conviction. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d at 778.
Furthermore, although W ilson argues that there were numerous opportunities
for him to have stolen the vehicle, including after Stewart had been shot and was on
the ground, the jury could have still concluded that W ilson intended to steal the
vehicle. That is, until Buckley and Stewart refused to give in to his pleading for a
ride back to Dallas, W ilson had no need to draw the gun and to attempt to take the
vehicle by force. And Stewart also testified that he was able to position himself in
such a way that W ilson never entered the vehicle.
Based on Buckley’s and Stewart’s testimonies, as well as Fuller’s testimony
about seeing W ilson search Reyes’s pockets and take Reyes’s keys after shooting
him and before taking Reyes’s vehicle, and the corroborating testimony about
11
W ilson’s fingerprints on Reyes’s vehicle—demonstrating that W ilson had already
committed one theft of a vehicle that evening 7 —we conclude that the evidence is
legally sufficient to support the theft element of W ilson’s aggravated robbery with a
deadly weapon conviction, and we overrule his second point.
IV. Extraneous Offense Evidence
In his third and fourth points, W ilson argues that the trial court erred when it
overruled his objection to the admission of the extraneous capital murder offense
and when it ruled that the probative value of this extraneous offense evidence was
not outweighed by its prejudicial effect.
A. Standard of Review
The admissibility of evidence is within the trial court’s discretion and will not
be overturned absent an abuse of discretion. Moses v. State, 105 S.W .3d 622, 627
(Tex. Crim. App. 2003). So long as the trial court’s ruling lies within the zone of
reasonable disagreement, the appellate court should affirm. Id.
7
… In his third and fourth points, W ilson complains about the admission of
testimony about the Reyes murder as an extraneous offense. However, an appellate
court must consider all evidence actually admitted at trial in its sufficiency review and
give it whatever weight and probative value it could rationally convey to a jury. See
Moff v. State, 131 S.W .3d 485, 489 (Tex. Crim. App. 2004).
12
B. Analysis
W ilson objected before each witness’s testimony about the Reyes shooting,8
principally citing evidence rules 403, 404(a)(1), and 404(b), the rules now argued
before us. The trial court overruled each objection, finding that the evidence was
“same transaction contextual evidence.”
“Same transaction contextual evidence” is evidence reflecting the context in
which a criminal act occurred. Wesbrook v. State, 29 S.W .3d 103, 115 (Tex. Crim.
App. 2000), cert. denied, 532 U.S. 944 (2001). It is a recognition that events do not
occur in a vacuum, and a jury has a right to hear what occurred immediately before
and after the offense in order to realistically evaluate the evidence. Id. Extraneous
offenses may be admissible as same transaction contextual evidence when several
crimes are intermixed, or blended with one another, or connected so that they form
an indivisible criminal transaction. Prible v. State, 175 S.W.3d 724, 731–32 (Tex.
Crim. App.), cert. denied, 546 U.S. 962 (2005). This type of evidence results when
an extraneous matter is so intertwined with the State’s proof of the charged offense
that avoiding reference to it would make the State’s case incomplete or difficult to
understand. Id. at 732.
Evidence rule 404 states,
8
… That is, testimony by Fuller, Rosenhaur, Salicco, and Detectives W orman
and Lopez.
13
(a) Character Evidence Generally. Evidence of a person’s character or
character trait is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent character trait
offered:
(A) by an accused in a criminal case, or by the prosecution to
rebut the same . . .
...
(b) Other Crimes, W rongs or Acts. Evidence of other crimes, wrongs
or acts is not admissible to prove the character of the person in order
to show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon timely request by the accused in a criminal
case, reasonable notice is given in advance of trial of intent to introduce
in the State’s case-in-chief such evidence other than that arising in the
same transaction.
Tex. R. Evid. 404(a)(1), (b).
W ilson argues that the two offenses were not indivisibly connected because
they were at two separate locations and because the Reyes murder was not
necessary to the State proving the Stewart robbery. He further contends that
Reyes’s death did not occur immediately prior to the robbery and shooting. W e
disagree.
The crime scenes were close enough for Buckley and Stewart to hear the
gunshot that killed Reyes and for Fuller to hear the gunshots that Wilson fired into
Stewart. Less than thirteen minutes after police arrived at the Reyes murder scene
and around half a mile away, Buckley encountered a sweating and frantic Wilson
14
looking to get back to Dallas. Until she and Stewart refused to give W ilson a ride in
her vehicle, W ilson did not try to jump into the driver’s side of Buckley’s vehicle or
draw his weapon and fire on Stewart. This evidence had little to do with the
character of someone likely to steal a vehicle and actions in conformity therewith.
Cf. Tex. R. Evid. 404(a)(1), (b). Rather, to the extent that it might otherwise not be
same transaction contextual evidence of W ilson’s shooting-and-vehicle-stealing
crime spree on April 29, 2005, evidence of Reyes’s shooting and the other evidence
collected at the crime scene pertaining to the shooting (such as the truck in the
culvert) demonstrated W ilson’s motive, intent, and identity with regard to the Stewart
aggravated robbery. See Tex. R. Evid. 404(b); Prible, 175 S.W .3d at 731–32.
Therefore, we conclude that the trial court did not abuse its discretion by allowing
this testimony.
Furthermore, under Texas Rule of Evidence 403, although otherwise relevant
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, we do not believe the trial court abused its discretion by
allowing the State to present this evidence. See Tex. R. Evid. 403. Considering the
evidence’s probative value against its potential to impress the jury in some irrational,
indelible way, the time taken to develop the evidence, and the State’s need for it, we
cannot say on these facts that the trial court abused its discretion because—as
stated above—the State needed this evidence to demonstrate W ilson’s intent to
steal a second vehicle within thirteen minutes after his first attempt ended with an
15
immovable truck in a drainage culvert. See Erazo v. State, 144 S.W .3d 487, 489
(Tex. Crim. App. 2004). Although W ilson killed Reyes, we do not think this fact
would inflame the jury any more than Stewart’s testimony about being shot five times
at close range by W ilson, particularly in light of Stewart’s descriptions of his wounds
and the photographs of them that were presented to the jury. See id. And although
a trial court must still perform a balancing test to see if same transaction contextual
evidence’s probative value is substantially outweighed by its prejudicial effect, the
prejudicial nature of contextual evidence rarely renders such evidence inadmissible,
as long as it sets the stage for the jury’s comprehension of the whole criminal
transaction, as it did here. See Swarb v. State, 125 S.W.3d 672, 681 (Tex.
App.—Houston [1st Dist.] 2003, pet. dism’d). Therefore, we overrule W ilson’s third
and fourth points.
V. Batson Challenge
In his fifth point, W ilson contends that the trial court erred when it overruled
his Batson objection at the conclusion of voir dire.
A. Standard of Review
A defendant objecting under Batson must make a prima facie showing of
racial discrimination in the State’s exercise of its peremptory strikes. Williams v.
State, 301 S.W .3d 675, 688 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411
(2010). The burden then shifts to the State to articulate race-neutral explanations
for its strikes. Id. Once the prosecutor has articulated race-neutral explanations, the
16
burden shifts back to the defendant to show that the explanations are really a pretext
for discrimination. Id. The trial court must then determine whether the defendant
has carried his burden of proving discrimination. Id. The trial court’s determination
is accorded great deference and will not be overturned on appeal unless it is clearly
erroneous. Id.; Watkins v. State, 245 S.W .3d 444, 448 (Tex. Crim. App.), cert.
denied, 129 S. Ct. 92 (2008).
Appellate courts must give great deference to credibility and demeanor
determinations made by the trial court in connection with a Batson inquiry, and the
court of criminal appeals has explained our review of a Batson ruling as follows,
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.
Watkins, 245 S.W .3d at 448 (citations omitted). Factors that the United States
Supreme Court has considered to determine whether peremptory challenges were
used on a racially discriminatory basis include: (1) whether the State struck a higher
percentage of African-Americans than non-African-Americans, (2) whether the
State’s reasons for striking African-Americans appeared to apply equally to
non-African-Americans whom the State did not strike, (3) whether the State used
jury shuffles in a manner that supported an inference of racial discrimination, (4)
17
whether the State questioned African-Americans and non-African-Americans
differently and in a way designed to obtain answers justifying strikes of
African-Americans, and (5) whether the county in which the defendant was
prosecuted had a formal policy of excluding minority jurors from service. See Miller-
El v. Dretke, 545 U.S. 231, 240–64, 125 S. Ct. 2317, 2325–39 (2005).
B. Voir Dire
Before voir dire began, W ilson’s counsel requested and received a jury shuffle
of the forty-eight member venire panel. At the conclusion of voir dire, the trial court
struck veniremembers #3, #7, #9, #13, #14, #26, #31, #35, #37, and #39 for cause.
The State used seven of its ten peremptory strikes, striking veniremembers #4, #5,
#11, #22, #29, #38, and #40; W ilson’s counsel used all of her peremptory strikes,
striking veniremembers #1, #11, #16, #19, #20, #21, #23, #25, #33, and #36. See
Tex. Code Crim. Proc. Ann. art. 35.15(b) (Vernon 2003).
W ilson’s counsel raised a Batson objection at the conclusion of voir dire,
challenging the State’s peremptory strike of veniremember #40, stating that this
individual was African-American, “within range,” and “did not give any reason to have
been struck.”9 The prosecutor responded as follows to the trial court’s request for
a race neutral reason for striking veniremember #40:
There must be a prima faci[e] showing of a non-race neutral—or a non-
race neutral reason to exclude this juror. There has been none. But
9
… The trial court took judicial notice that W ilson is African-American.
18
the fact that she has a BA in criminal justice, the fact that she lists as
her TV shows [“]The First 48,[“] [“]CSI Miami,[“] [“]Head Hunters,[“]
[“]Forensic Files[,“] and [“]The Investigators[,”] and this is going to be a
very forensic evidence heavy case, and I don’t want somebody that
thinks they know what this is about from TV.[10 ] And also she has a
family member who has been in the penitentiary, federal penitentiary,
for some type of fraud. And I don’t want to have somebody on the jury
that has a family member that is that close to them, as [veniremember
#40] because it was her sister, on the jury.[11 ]
After W ilson’s counsel responded that she did not think that the facts that
veniremember #40 watches TV or has a degree in criminal justice were race neutral
reasons to strike her, the prosecutor pointed out that the State had also struck
veniremember #5, a white male with family members in prison, and veniremember
#29, a white female “whose fiancé is in the pen.” The prosecutor then argued that
the State struck everyone who had a family member that was in prison. 12
10
… The prosecutor made clear during the State’s voir dire that this concerned
him—immediately after questioning veniremember #40 about motive and medical
records, he stated,
Now, DNA, fingerprints, a robbery on videotape. Okay. Anything like
that, anything you see in [“]CSI Miami,[“] [“]Forensic Files,[“] any of
those shows that you guys love to watch, okay, where they get DNA in
like 30 seconds, it takes me like eight months to get DNA. Okay. It
doesn’t take 30 seconds. Those are things that we do not have to
prove to you. Okay?
11
… Veniremember #40 stated during voir dire that her sister had been to
federal prison and that it had made her sister a better person. She said, “I hate to
say it but I am not glad she went through it but she came out a better person.”
12
… More accurately, the State struck everyone who had a member of his or
her immediate family either in jail or recently incarcerated—that is, veniremembers
#4 (son in jail over the summer for probation problems, now out on probation) and
19
W ilson’s counsel then pointed out that juror #6 made it onto the jury panel,
“[h]er husband having been arrested and had a drug related case who was in jail[,]” 13
and that juror #5 (formerly veniremember #12) had a niece serving a sentence for
bank robbery and two nephews that were wanted and on the run.14 She argued that
the State also did not strike everyone who watches scientific crime television shows,
such as juror #4 (formerly veniremember #10)15 and juror #12, who both watch “Law
& Order,” and that veniremember #40 never said that watching those shows would
affect her ability to be a juror.16 The prosecutor responded that veniremember #40
#29 (fiancé in prison for forgery). Juror #1 (formerly veniremember #2) said that her
best friend’s daughter had gone to jail for sixty days but was out now. Juror #12
(formerly veniremember #30) said that her ex-husband had been subjected to an
illegal search, resulting in his incarceration for four days several years ago. Juror
#6 (formerly veniremember #15) stated,
My husband and both brothers have been in prison or jail before. It’s
been quite a few years ago. But they came out a better person [sic]
and have good lives now. So I don’t think it would sway my judgment.
But I am sure they had a tough time while they were there. But it’s
over. It’s been many years ago[.]
13
… The jury questionnaires were not included in the record, and nothing was
revealed on voir dire about the nature of the crime committed by juror #6’s husband.
14
… Juror #5 said that his niece was in prison for bank robbery but he does not
correspond directly with her and that he had two nephews on the run for petty
crimes.
15
… The court observed that Juror #4 is African-American.
16
… The State struck veniremember #22, who gave the following responses
during voir dire with regard to proof that the robbery was committed with a weapon:
[State]: [W ]hat do you think you’d like to see?
20
was “the only person who only listed these shows” and the only one that had that
many of the shows listed.17
The trial court concluded as follows:
W ell, my understanding what the State proferred has been
explanation is that . . . venireperson Number 40, was a person with
great interest in a number of shows. In fact, she listed four shows, is
that right, on her questionnaire? I don’t have the questionnaires. By
the way, in fact, let me see the questionnaire.
....
Okay. All right. I am going to deny your Batson challenge. The
Court is going to make the finding the State offered a race neutral
reason, that being that she has a Bachelor of Arts degree in criminal
[Veniremember #22]: Well, a video or something would be nice to that
effect.
[State]: Maybe the victim who had the gun pointed at them?
[Veniremember #22]: Yeah. And there is [sic] witnesses. But I also
would have to make sure that the witness positively ID’s the Defendant.
[State]: Positively ID, do you think maybe sometimes witnesses’
memories can be shak[y]?
[Veniremember #22]: Yes, I do.
[State]: And if you had maybe a shaky ID, would you want to see
fingerprint or DNA or something like that?
[Veniremember #22]: It would be nice.
[State]: Okay. I appreciate that. Thank you, sir.
17
… During the State’s voir dire, veniremember #40 acknowledged that she
watched “Law & Order,” “CSI,” and “Forensic Files.”
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justice, as well as her interest in programs that deal[] with criminal
investigation more so than other persons who were not struck by the
State. I believe that race neutral reason for it.
C. Analysis
The decision to strike a particular venireperson “is a fluid process, often
hinging on the interaction of a number of variables and permutations” and it “is
unlikely that two venirepersons on one panel will possess the same objectionable
attribute or character trait in precisely the same degree.” Cantu v. State, 842 S.W .2d
667, 689 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993). Thus, when the
State has offered more than one plausible reason for striking a venireperson, it is
proper to review these reasons in their entirety in order to assess whether the State’s
explanation was valid or merely pretextual, as we have set out above. See id.
Under the circumstances here, we cannot conclude that W ilson made a prima
facie showing of racial discrimination because other than veniremember #40 and
Juror #4, we cannot tell from the record how many of the forty-eight veniremembers
were African-American or how many African-Americans were in the strike zone. See
Williams, 301 S.W .3d at 688; cf. Miller-El, 545 U.S. at 240–41, 125 S. Ct. at 2325
(“‘The prosecutors used their peremptory strikes to exclude 91% of the eligible
African-American venire members . . . . Happenstance is unlikely to produce this
disparity’” (internal citation omitted)); Leadon v. State, Nos. 01-08-00839-CR, 01-08-
00840-CR, 2010 W L 143467, at *11 (Tex. App.—Houston [1st Dist.] Jan. 14, 2010,
no pet.) (observing that the State used a statistically disproportionate number of
22
strikes on African-American members of the venirepanel when 14.29% of the panel
within the strike zone were black, but the State used 36.36% of its strikes on black
panel members, resulting in a prima facie case of racial discrimination).
Nonetheless, assuming that W ilson made his prima facie showing, we cannot
say, based on this record, that the trial court’s decision to deny his Batson challenge
was clearly erroneous. W ilson’s counsel, and not the prosecutor, requested the jury
shuffle, and veniremember #40 was originally veniremember #23—well within the
strike zone. Cf. Miller-El, 545 U.S. at 253–54, 125 S. Ct. at 2332–33 (stating that the
prosecution’s shuffles raised a suspicion that the State sought to exclude African-
Americans from the jury).
And notwithstanding the State’s failure to strike everyone who had ever known
anyone who had been incarcerated—which the trial court did not include as a reason
for its decision—veniremember #40 was not the only veniremember that the State
struck for having an interest in scientific evidence, and she was the only one
revealed on this record to have a degree in criminal justice.18 Cf. id. at 241–53, 125
S. Ct. at 2325–32 (referencing panelists’ voir dire and questionnaire answers to
determine whether prosecutor’s proffered reason to strike applied just as well to an
otherwise-similar nonblack who was permitted to serve). Therefore, we overrule
W ilson’s fifth point.
18
… As previously noted, the jury questionnaires were not included in the
record.
23
VI. Conclusion
Having overruled all of W ilson’s points, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, W ALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 28, 2010
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