Shannon Lewellyn v. State

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SHANNON LEWELLYN,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

' ' ' ' '

No. 08-02-00284-CR Appeal from the 204th District Court of Dallas County, Texas (TC# F-0175010-HQ)

                                                    MEMORANDUM OPINION

Shannon Lewellyn appeals his conviction for robbery.  We affirm the trial court=s judgment.

Facts

Shannon Lewellyn was convicted of robbing Calvin Ware of his vehicle in Dallas, Texas.  The vehicle was located in front of the Concentra Medical Clinic. Ware had parked the car temporarily with the keys in the vehicle and the trunk open.  Ware noticed someone shutting the trunk of his vehicle and surmised that there was a theft in progress.

Returning to his car, Ware found Lewellyn in his driver=s seat with the motor running.  Ware testified that he leaned inside the vehicle and attempted to shift the car to park while the vehicle was backing up, in order to thwart the theft.  Lewellyn then clenched a fist and swung at Ware.  Ware also testified to believing that Lewellyn possessed a weapon, perhaps a gun.  Ware felt threatened and believed there was imminent harm to his person.  Lewellyn called two defense witnesses, who testified that they had witnessed the car theft, but saw no interaction between Ware and Lewellyn.  The vehicle was found three days later in Lewellyn=s possession in Memphis, Tennessee.

The Trial Court Did Not Err in Refusing to Charge the Jury on Theft

 Lewellyn=s first point of error asserts that the jury should have received an instruction on the lesser-included offense of theft.  He argues that the conflicting testimony of witnesses should have afforded this to him.  Our standard of review for this issue is twofold:  first, the lesser-included offense must be included within the proof charged; and second, the record must illustrate some evidence that if guilty, the accused was guilty only of the lesser offense.  See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).  See also Tex. Code Crim. Proc. Ann. art. 37.09.^[1]

 The dual inquiry of Aguilar/Rousseau becomes a four-step process in determining whether Lewellyn was entitled to a lesser-offense charge: (1) statutory analysis in light of the charged offense; (2) factual analysis in light of the charged offense; (3) examination of the elements of the lesser offense to see if they are functionally the same or less than those required to prove the charged offense; (4) then the proof or facts actually presented to prove the elements of the charged offense to determine whether the proof also supports the lesser offense.  Jacob v. State, 892 S.W.2d 905, 908 (Tex. Crim. App. 1995).

First, we examine the statute in light of the charged offense.  To find a defendant guilty of robbery under Texas Penal Code section 29.02,^[2] the statute requires both a theft element and Aintentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death.@ See Harper v. State, 675 S.W.2d 534 (Tex. App.--Houston [14th Dist.] 1984, pet. ref=d).  However, the actual commission of the offense of theft is not a prerequisite to the commission of the offense of robbery; rather, the gravaman of robbery is its assaultive nature and not theft.  See Purser v. State, 902 S.W.2d 641, 647 (Tex. App.--El Paso 1995, pet. ref=d).  We are not convinced, therefore, that theft is an appropriate lesser-included offense to the assaultive offense of robbery, but for the moment we will assume that it is and examine the other steps in the analysis.

Second, then, we superimpose the factual analysis over the charged offense. The victim in this case testified that he believed there was a gun present and that there was imminent harm to him.  A conviction for robbery under section 29.02(a)(2) requires proof of actual or threatened violence to the victim, or intimidation of such a nature that the victim was put in fear.  Green v. State, 567 S.W.2d 211, 213 (Tex. Crim. App. 1978); Wilmeth v. State, 808 S.W.2d 703, 705 (Tex. App.--Tyler 1991, no pet.).  The fear must be of such nature as in reason and common experience, it is likely to induce a person to part with his property against his will. Green, 567 S.W.2d at 213; Wilmeth, 808 S.W.2d at 705.  The victim=s fear may not arise merely from some timidity, but must result from some conduct of the perpetrator.   Devine v. State, 786 S.W.2d 268, 271 (Tex. Crim. App. 1989).

Here, there was contradicting testimony as to whether the element Afear of imminent bodily injury or death,@ necessary to establish a robbery, was present.  Tex. Pen. Code Ann. ' 29.02(a)(2) (Vernon 2003).  Evidence of this element was provided solely through the testimony of the victim, Ware.  This evidence was contested through the testimony of the defense=s two witnesses.  A confrontation between the victim and Lewellyn becomes an element of the greater offense, that is of actual or threatened violence to the victim, resulting in fear of imminent danger.  In contrast, Lewellyn=s witnesses testified that they had seen the theft but no interaction between the two men.  The lesser offense in this case, theft, does not require an actual or perceived threat of imminent physical harm.  Compare Tex. Pen. Code Ann. ' 29.02 (Vernon 2003), with Tex. Pen. Code Ann. ' 31.03 (Vernon 2003).  We find this step in the analysis supports a charge including the lesser-included offense of theft.

Third, we examine the elements of the claimed lesser-included offense to determine whether it is actually a lesser-included offense of the offense charged. See Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002).  This we do on a case-by-case basis.

Initially, we note that Texas once held that Atheft is an integral part of the offense of aggravated robbery.@  See Ex parte Crosby, 703 S.W.2d 683, 685 (Tex. Crim. App. 1986). However, we believe caution is called for before assuming that theft will be a lesser-included offense under our present penal code, as more recent cases have characterized theft as an assaultive offense, not a type of aggravated theft. See Ex parte Hawkins, 6 S.W.3d 554, 559-60 (Tex. Crim. App. 1999) (comparing the Penal Code of 1925 and the Penal Code of 1974, determining that robbery is a form of assault and  holding that Athe present robbery offense is no longer a form of theft@) cf., Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) (stating that A[n]o dispute exists that a completed theft is a lesser included offense of aggravated robbery@).

We look next, therefore, to the statute which specifies a value defined for property within the code.  Tex. Pen. Code Ann. ' 31.03(e) (Vernon 2003).  AReceipt of property and proof of its value are critical elements in the offense of theft.@ Sanders v. State, 664 S.W.2d 705, 708 (Tex. Crim. App. 1982) (emphasis in original).  This value for the property in question affects the grade of the misdemeanor or felony offense of the act.  See Campbell v. State, 5 S.W.3d 693, 700 n.13 (Tex. Crim. App. 1999).  No such requirement of value is present in proving a robbery charge, and we therefore cannot find that this step supported a charge on theft.

Our fourth and final step is an examination of the evidence presented to prove the charged offense, and determine whether the proof also supports the lesser offense.  This step requires that the record contain some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense.  Campbell, 5 S.W.3d at 700 n.13. A lesser-included offense is raised if anything more than a scintilla of evidence, Aeither affirmatively refutes or negates an element establishing the greater offense, or the evidence on the issue is subject to two different interpretations, and one of the interpretations negates or rebuts an element of the greater.@ Schweinle v. State, 915 S.W.2d 17, 18-19 (Tex. Crim. App. 1996) (per curiam).

Here, as mentioned in the third step of our analysis, the record contains no evidence pertaining to the value of the property stolen.  When no evidence is presented to show the value of the property taken, a theft instruction is not supported by the facts.  See, e.g., Cavazos v. State, 904 S.W.2d 744, 749 (Tex. App.--Corpus Christi 1995, pet. ref=d).

Thus, we conclude that a rational trier of facts could find the elements of robbery inclusive of being placed in fear of imminent harm, but that value of the item is an essential element of the offense of theft and that element was not raised by the evidence, therefore a jury instruction on the lesser offense of theft was not warranted, and the trial court did not err in declining to submit it.  We overrule Point of Error One.

The State=s Jury Argument was Appropriate or Resulted in Harmless Error

Lewellyn contends in his second point of error that the trial court erred in allowing an impermissible jury argument wherein the prosecutor commented on the victim=s credibility.

The standard of review for jury argument is abuse of discretion.  Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).

The State contends that the argument complained of was simply a response to the remarks of defense counsel, and therefore permissible. We find that is a credible assertion. The prosecutor may answer jury arguments of opposing counsel, limited to the scope of counsel=s invitation.  Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988).  Defense counsel made the following statements during closing argument:

Defense:  Can we really believe what this man [the testifying victim] says? . . .  He=s changing up all of these things.  Or does it make sense that this man felt bad about leaving his keys in his car that day? He got his car stolen.  It is not his fault that his car got stolen.  But it sure sounds a lot better than, hey, a guy got in my car and drove off because I left the keys in it or, hey, I went out there and saw the guy.  He had a gun. He stuck a gun in my face.  He had a dark object, so I backed up off him.  I didn=t want to get hurt. It=s not worth a car.  I was in fear.

Defense:  You can=t believe what he [testifying victim] says because there are too many contradictions in his testimony.  His credibility gone, wiped out.

Defense:  He=s [Appellant] not guilty.  Let him go. That=s the right thing to do, because beyond a reasonable doubt--Mr. Ware [testifying victim] himself should have given enough reasonable doubt about his testimony on the day out there what happened versus his testimony in here.

He doesn=t even know what happened.

The prosecutor made the following comments during the final jury argument at the guilt/innocence phase of the trial:

Prosecutor:  It=s been alluded to that he=s [the testifying victim is] not believable.  If you don=t believe his testimony and you don=t believe that he=s telling you what he remembers as best he can, then I do want you to find the defendant not guilty. He=s telling you as best he can what he recalls in that situation.

I think that we all know from common sense in our lives that if you tell a lie you usually make it better than it would have been with the truth.  I think that if Mr. Ware were going to come in here and perjure himself --

Defense:  I=m going to object to what the State=s counsel thinks.

The Court:  Overrule, Counsel.

Prosecutor:  I think that if he was going to come in here and commit a third-degree felony and perjure himself for somebody he=s never met, he would probably make it better than just I think I saw a gun.

I think what you=ve got is a real honest guy who says, you know what--

Defense:  Objection. She=s commenting on the credibility of the complainant in this case.  That=s improper argument.

The Court:  Overrule, Counsel.

Prosecutor:  If you don=t believe him then walk the guy.  But I think we do believe him, and I think he=s telling us as much as he can . . . .

In reviewing defense counsel=s argument and the prosecutor=s response, we cannot say the trial court abused its discretion in concluding any comment on the victim=s believability was invited by defense counsel.  The response was within the scope of the invited argument, and no error occurred.  We overrule Point of Error Two.

Batson Argument

We combine Lewellyn=s third, fourth, and fifth points of error.  Lewellyn asserts that race-based peremptory challenges were made to venire persons eight, sixteen, nineteen, and that eight of the ten peremptory strikes by the prosecution were African-Americans.  This is commonly known as a Batson challenge. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The trial court=s decision on the ultimate question of discriminatory intent represents a finding of fact to be accorded great deference on appeal which we will not overturn unless clearly erroneous.  Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003).  This deference is necessary because the reviewing court analyzes only the transcript from voir dire, and is not positioned to make credibility determinations.  Id.

There is a three-step process to this challenge:  (1) the challenging party makes a prima facie showing that the juror strikes were made on an impermissible basis, (2) after a prima facie case is made, the burden shifts to the challenged party to provide neutral reasoning for the strike or strikes, and (3) once a neutral reason is provided, the challenger must then show that the reason provided is a mere pretext for discrimination.  Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24. This Batson challenge is also in accordance with Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989).^[3]   See also Hutchinson v. State, 86 S.W.3d 636, 639 (Tex. Crim. App. 2002).  After each of the three prongs has been satisfied, the trial court must then decide whether the objecting party has proven purposeful discrimination, based largely on an evaluation of credibility.  Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002) (citing Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999)).  Applying this standard to the instant case, we find the trial court=s findings were supported by the record.

Lewellyn, through his attorney, made an original motion to challenge the peremptory strikes of jurors on March 5, 2002, for a trial and voir dire that began on May 28, 2002.

If a hearing has not been held, then the appellate court should abate the appeal and remand for a Batson hearing; however, when such a hearing has been held, because of the standard of clear error necessary there are few cases that are returned to the trial court for cause.  See, e.g., Hutchinson, 86 S.W.3d at 639-40.  The record shows that a hearing on the challenge was held; therefore, we do not remand and continue our analysis.

Lewellyn made a Batson challenge and the State then articulated reasons for the strike.  Once the State has offered race-neutral explanations for peremptory challenges and the trial court has ruled on the question of purposeful discrimination, the preliminary issue of a prima facie case becomes moot.  Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996) (citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991)).  Once the prosecutor has articulated race-neutral explanations, the burden shifts back to the defendant to show that the explanations are really a pretext for discrimination.  Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002).  Here, the record is silent as to the defense offering any further argument.  This important third prong of the Batson challenge is insufficient.  In order to move forward with his burden, the challenger must then prove by a preponderance of the evidence that the reasons given by the State are a sham or pretext for discrimination.  See Keeton v. State, 749 S.W.2d 861, 868 (Tex. Crim. App. 1988).

The third prong or step of this inquiry is afforded the greatest weight. It is not until the third step that the persuasiveness of the justification becomes relevant -- the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.  Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). A[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.@  Id.  It is the trial court=s job to determine whether the prosecutor=s race-neutral explanations are credible, which it impliedly did here.  See Miller-El, 123 S.Ct. at 1040.  Defendant did not respond with evidence of pretext, and therefore no grounds for reversal exist.

Out of an abundance of caution, however, we will examine the State=s articulated reasons for its peremptory challenges.  As to venire person number eight, the State offered as its reason for strike of this person his inability to apply the maximum punishment and the one witness rule, and although he was rehabilitated on those comments, the State felt he was insincere.  A juror=s view on punishment is a race-neutral reason for a peremptory strike. See Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim. App. 1993); Esteves v. State, 849 S.W.2d 822, 823 (Tex. Crim. App. 1993).  Additionally, the potential juror approached the court and stated his stepson had been involved in a robbery four years previously and that he felt his relative had received a sentence unwarranted by the crime.  We have held that the arrest or conviction of a venire person=s relative is a race-neutral reason for strike.  See Munson v. State, 774 S.W.2d 778, 779-80 (Tex. App.--El Paso 1989, no pet.).

As to venire person number sixteen, the State=s reason for strike was his response to a hypothetical situation, in which a victim is threatened and then robbed.  This potential juror stated that a threat might be more characterized as verbal abuse and that in order for an actual threat to exist, the assailant would actually have to Afollow through with it.@ Venire person sixteen also seemed to have difficulty accepting robbery as theft accompanied by a mere threat and not necessarily accompanying violence.

Prosecution:  [Venire person sixteen], how do you feel about that [a threat versus commission of the crime]?

Venire Person:  I kind of feel its the same.  But a threat is like verbal abuse instead of just taking action against him.  I guess in the way you characterize it, you=re going to show a course of action, follow through with it.

Prosecution:  Do you think robbery is too strong of a charge for someone--let=s say they threatened to bloody your nose to take your wallet.

Venire Person: You got to look at it--when you talk about a robbery, you=re talking about stealing something; you=re talking about robbery.

Later, the prosecution posed a hypothetical, in which a person threatens to slap another if the victim does not give the perpetrator his wallet; he then asked this venire person if he could convict of robbery.  The venire person exhibited a reluctance to convict for robbery, in lieu of a theft conviction, and then stated, AYou would have to have a real pathetic witness and a lot of corroboration.@ The State=s strike here appears race neutral.

Finally, addressing the strike to venire person nineteen, the prosecutor stated the strike was due to his work with gang members and youth programmer. The prosecution also struck venire person eleven, a white juror and childcare worker for the same reason. For each of these strikes, the prosecution=s stated reason was their occupation made them predisposed to being sympathetic and lenient jurors and not a typical State juror.  We have held that striking a venire person because of employment is a race-neutral explanation for a peremptory strike.  Brewer v. State, 932 S.W.2d 161, 165 (Tex. App.--El Paso 1996, no pet.).

The overriding standard is whether the trial court=s decision was supported by the record such that it was not clearly erroneous.  Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992).  We hold that the trial court did not abuse its discretion by finding that the jury strikes were race neutral.  We overrule Points of Error Three, Four, and Five.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

August 14, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

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^[1]Lesser included offense

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.  Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).

^[2](a) A person commits an offense if, in the course of committing theft as defined in             Chapter 31 and with intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

(b) An offense under this section is a felony of the second degree.  Tex. Pen. Code Ann. ' 29.02 (Vernon 2003).

^[3]Peremptory challenges based on race prohibited

(a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case.  The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race.  If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges.  The burden of persuasion remains with the defendant to establish purposeful discrimination.

(b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.