Anthony Ray Johnson v. State

No. 04-98-00177-CR

Anthony Ray JOHNSON, Appellant

v.



THE STATE OF TEXAS, Appellee From the 204th Judicial District Court of Dallas County, Texas Trial Court No. F-97-76431-Q Honorable Mark Nancarrow, Judge Presiding

Opinion by: Shirley W. Butts, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Shirley W. Butts, Justice⁽¹⁾

Delivered and Filed: June 30, 1999

AFFIRMED

A jury found Anthony Ray Johnson guilty of murder and enhanced punishment was assessed at life imprisonment. We affirm.

Appellant brings three points of error, first contending the trial court erred in not requiring the State to elect the theory of murder to submit to the jury. Second, he appeals the adverse Batson⁽²⁾ ruling. Last, appellant alleges his counsel rendered ineffective assistance during jury voir dire.

Briefly, the evidence reflects that appellant's former girlfriend gave a party on May 18, 1997. At that time she was living with Louis Davis, Jr., who was shot. Appellant came to the party and argued with Davis outside the house. Appellant went to his car, removed a loaded shotgun from the trunk, and returned and shot Davis. In evidence was appellant's statement to the police, admitting he shot Davis, but he thought Davis was reaching for a weapon. Appellant left after the shooting. The evidence showed that no weapon was found on Davis or at the scene. No witness saw him with a weapon. The court charged the jury on the defense of self-defense.

At the jury charge conference following the guilt-innocence phase of trial, defense counsel objected to the proposed charge, asking the court to require the State to elect either of the alternative theories of guilt in the two charge paragraphs.

The two theories were that appellant intentionally or knowingly caused the death or that he intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of the victim. See Tex. Penal Code Ann. § 19.02(b)(1) & (b)(2) (Vernon 1994). Although not offering formal legal and factual sufficiency points of error, appellant argues the evidence did not support a verdict that he committed murder by intentionally and knowingly causing the victim's death. We note, however, that appellant's action in leaving the scene, deliberately getting a shotgun from his car's trunk, then returning to shoot Davis, was in evidence. The fact finder weighed that evidence and also that he pointed the loaded shotgun at the victim's chest and fired the shotgun at close range. Based on these facts, the jury could have found these acts showed that appellant intentionally and knowingly caused the death of Davis.

In Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 958 (1992), the court reiterated that alternate pleading of the differing methods of committing one offense may be charged in one indictment. Id. at 258. Although the indictment alleges the different methods in the conjunctive, it is proper for the jury to be charged in the disjunctive. Id. In addition, "it is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted." Id.

In this case, the jury returned a general verdict of guilty as charged in the indictment. Texas law requires a general verdict. Tex. Code Crim. Proc. Ann. art. 37.07 § 1(a) (Vernon 1981). See Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992) ("It is well settled that when a general verdict is returned, and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted, the verdict will be upheld."); Rooney v. State, 815 S.W.2d 903, 905-06 (Tex. App.--Fort Worth 1991, no pet.); Riley v. State, 658 S.W.2d 818, 819 (Tex. App.--Fort Worth 1983, no pet.).

Appellant does not argue that the evidence is insufficient to support the verdict that he committed an act clearly dangerous to human life that resulted in the death of the victim. Under this theory alone, the general verdict can be upheld.

The State was not required to elect one of the two theories of the method of commission of the offense of murder. The trial court properly denied the request. Point one is overruled.

The Batson Contest

After voir dire concluded, defense counsel made a Batson⁽³⁾ motion that there were five African Americans within the strike range, and the State struck two, venirepersons 19 and 26. The defense had struck a sixth African American within that range, a probation officer. Three other African Americans were accepted as petit jurors.

The prosecutor gave as reasons for the two strikes:

...In reply to number 19, the notes that the State has would refer that number 19, Ms. Coleman, was unresponsive to the State. She would not look me in the eye and the State had the feeling she did not like the State.

Number 26 had -- was very friendly with the Defense lawyer, in fact, during voir dire he laughed in response to what the Defense lawyer had to say. Never had response to me. State felt he had animosity towards the State. Did not have much to say to me at all and had feelings unfriendliness [not] displayed by the three members who made it to the panel and the one additional member the defense struck himself.

The prosecutor gave these specific reasons:

She (number 19) didn't cooperate. She didn't talk to me about the issues. She wouldn't make eye contact ... didn't smile [as many others did] ... the nonverbal response, coming back and forth from other members who were minorities that made it onto the panel [and those who did not].

The prosecutor stated that she had written a comment that Ms. Coleman "doesn't like me." Also she had struck another venireperson, number 25, whose "posture I didn't deem as friendly." Number 25 was struck because she was "chatty" with the defense counsel, responding to him, but her body posture showed little friendliness to the prosecutor. She repeated that she struck the subject number 26, Wendell Brown, for his body language and the distinction between his behavior toward defense counsel on answering questions versus that toward the State. "Body language, how they responded and kept eye contact, how they seemed to appear to me when I glanced in their direction and tried to communicate with them."

The trial court found the State's explanation showed that the peremptory strikes of numbers 19 and 26 were exercised for race-neutral reasons. Appellant maintains the court erred by finding that the State offered race-neutral reasons for the two peremptory strikes.

In our review, we must accept that finding unless we determine that it is clearly erroneous. See Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992); Allen v. State, 811 S.W.2d 673, 675 (Tex. App.--Dallas 1991, pet. ref'd).

Appellant established that he was a member of a cognizable racial group. See Batson, 476 U.S. at 96. The burden then shifted to the State to present a racially-neutral explanation for the challenges, and it must be related to the case. Id. at 97. Williams v. State, 804 S.W.2d 95, 96-97 (Tex. Crim. App.), cert. denied, 501 U.S. 1239 (1991); see also Purkett v. Elem, 514 U.S. 765, 767 (1995). The reason need not rise to the level of a challenge for cause, but it must be race-neutral. See Hawkins v. State, 793 S.W.2d 291, 293 (Tex. App.--Dallas 1990, pet. ref'd).

The burden of production as well as persuasion remains with the defendant who is asserting that the prosecutor engaged in a discriminatory selection process to arrive at a petit jury, and therefore must prove existence of the purposeful discrimination. Williams, 804 S.W.2d at 97. Once the prosecutor articulates racially neutral explanations, the burden shifts back to the defendant to persuade the court that the neutral explanations are really a pretext for discrimination. See Satterwhite v. State, 858 S.W.2d 412, 423 (Tex. Crim. App.), cert. denied, 510 U.S. 970 (1993). The burden remains with the defendant to establish purposeful discrimination. Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989); see also Lewis v. State, 815 S.W.2d 560, 564 (Tex. Crim. App. 1991), cert. denied, 503 U.S. 920 (1992).

In Gaines v. State, 811 S.W.2d 245, 250 (Tex. App.--Dallas 1991, pet. ref'd), this court stressed that prosecutors may rely on nonverbal as well as verbal aspects of a venireperson's answers in assessing whether a venireperson is hostile to the prosecutor in a particular case. Our review does not encompass whether the explanation of the prosecutor is credible. We must rely upon the trial court's observation of the venireperson's answers and demeanor relative to such explanation. Id.

Without supporting evidence in the record, appellant is asking this court to speculate that the real reason for the strikes was that the prosecutor did not want five African American jurors. We review the evidence in the light most favorable to the trial court's ruling. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992). Appellant must prove affirmatively that the State's race-neutral explanations were a sham or pretext. Webb v. State, 840 S.W.2d 543, 544 (Tex. App.--Dallas 1992, no pet.). This burden is not met by appellant's mere disagreement with the explanations. Id.

Moreover, the affirmative showing of pretext must be made in the trial court. On appeal appellant must show that the trial court, having heard the affirmative showing of pretext, overruled the Batson challenge, thereby abusing its discretion. Instead, at the trial level, appellant disagreed with the prosecutor's explanations, but did not offer evidence to show purposeful discrimination or pretext. We conclude that the decision of the trial court was not clearly erroneous. Point two is overruled.

Effective Assistance of Counsel

Appellant contends that his counsel rendered ineffective assistance of counsel during voir dire for failure to challenge for cause or to peremptorily strike venireperson 36, Donald Fendrick, who became foreman of the jury.

Voir dire is a critical stage of criminal proceedings for constitutional purposes. See Gomez v. United States, 490 U.S. 858, 873, 109 S. Ct. 2237, 2246, 104 L. Ed. 2d 923 (1989). Selection of the jury is a necessary part of trial by jury. The Sixth Amendment of the United States Constitution and article 1, section 10 of the Texas Constitution apply to guarantee the assistance of counsel during this critical stage of criminal proceedings.

In reviewing the effectiveness of counsel during the voir dire stage of trial, the court in Knight v. State, 839 S.W.2d 505 (Tex. App.--Beaumont 1992, no pet.) applied the standard declared in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Knight, 839 S.W.2d at 506.

In our review, Strickland requires that we first determine whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. If it did not, that ends our inquiry. But if the performance is determined to be deficient, then this court must decide whether there is a reasonable probability that but for trial counsel's deficient performance, the result of the trial would have been different. Strickland, 466 U.S. at 687. We will presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 689.

At the beginning of voir dire, the court inquired whether there were some who felt they might have a problem being fair. Fendrick said, "I think I would have a problem being fair in this case, given family history. I had family members murdered in the past." Three other venirepersons expressed doubt about their fairness because they also had family members who had been murdered.

The trial court advised the venirepersons, "[J]ust because you've been a victim of crime does not disqualify you from sitting as a juror." They were told that to be disqualified one would be unable to judge the parties on the courtroom evidence. The court explained that meant that something of so great a magnitude had happened to them that it would be impossible for them to set it aside and judge this case on its merits.

The prosecutor discussed generally other matters with the group. Then she asked whether they could consider five years minimum punishment in some cases. Fendrick answered, "No way," if the definition of "intentional" murder was proved.

A potential juror may be challenged for cause by the defense for the reason that he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely as to the punishment therefor. See Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 1999). However, on appeal appellant cites the provision prohibiting a juror's bias or prejudice in favor of or against the defendant. See Tex. Code Crim. Proc. Ann. art. 35.16 (a)(9) (Vernon 1989). Here the only matter raised is Fendrick's initial refusal to consider the minimum sentence (the law). Again, on questions by the prosecutor regarding the prospective jurors' feelings about the justice system, Fendrick said his brother was convicted of three counts of armed robbery in Nebraska. He said, however, the justice system was good, but he had problems with the jail system. When asked if he had any particular feelings for one side or the other that might make it hard for him to be a juror, he answered, "Not necessarily." When the defense counsel asked Fendrick later whether he had any questions, he said,

Yeah, I wanted to clarify something. When you asked me about the minimum sentence for murder, I indicated that I thought five years was too little. Since that time I've thought it over. There's probably occasions where five years is fine.

* * *

Appellant's first statement concerning inability to consider the minimum sentence of five years if there was an intentional murder was clarified and showed that in some cases that sentence would be "fine." A defendant has a right to challenge for cause any juror who could not give the minimum punishment. Von Byrd v. State, 569 S.W.2d 883, 891 (Tex. Crim. App. 1978), cert. denied, 441 U.S. 967 (1979). In Russell v. State, 727 S.W.2d 92, 93-94 (Tex. App.--Dallas 1987, pet. ref'd), the prospective juror was rehabilitated after he expressed doubts as to his ability to give probation. He admitted that "in a proper case, under all of the testimony and facts, I guess I probably would." Id. at 93. The court held the trial court did not err in overruling the defendant's challenge for cause. Id. at 93-94.

In the present case the record does not support appellant's contention that venireperson Fendrick was subject to challenge for cause. Therefore, defense counsel's failure to challenge for cause does not demonstrate deficient performance under the first prong of Strickland. Further reason that counsel may not have desired to exercise a peremptory challenge under the facts shown may have included the admission by the juror that his brother had been convicted of armed robbery. This may properly be termed trial strategy. Because appellant has not met his Strickland burden to prove ineffective assistance of counsel, we overrule point three.

The judgment is affirmed.

SHIRLEY W. BUTTS

JUSTICE

DO NOT PUBLISH

1. Assigned to this case by the Chief Justice of the Supreme Court.

2. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

3. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).