Billy Richardson v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Billy Richardson

Appellant

Vs.                   No. 11-02-00291-CR -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted Billy Richardson of the offense of aggravated sexual assault of a child under the age of 14.  The jury then assessed punishment at confinement for 35 years and a $5,000 fine.  We affirm.

Appellant presents three points of error.  In the third point of error, appellant challenges the factual sufficiency of the evidence supporting his conviction.  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). 

The record shows that, along with others, appellant and the victim, his 13-year-old cousin, were staying with their grandmother at the time of the offense.  The victim was visiting her grandmother for a week.  The victim testified that she and appellant=s sister, Brittany Scott, slept in the same bed.  According to the victim, she woke up one night because she felt appellant on top of her.  Appellant had moved the victim=s panties over to the side and was forcing his private part into hers.  The victim pushed appellant off, and he left the room. After unsuccessfully trying to wake Brittany up, the victim went into the den crying.  She told a cousin and her grandmother that appellant had Aput his hands on@ her.  The victim=s grandmother talked to appellant and instructed the victim not to tell her mother.

After she returned home the next week, the victim experienced discomfort and discharge in her vaginal area.  She told her mother in detail what had happened.  The victim=s mother took her to the doctor, and the victim was diagnosed with a bacterial infection that Awas sexualin nature.@ 

The victim=s mother testified as an outcry witness; her testimony was similar to the victim=s.  The victim=s mother also testified that appellant called her and initially denied that anything had happened but then admitted that he had committed the offense and apologized for it.  Furthermore, the State introduced appellant=s handwritten statement into evidence.  In his statement, appellant stated that he and the victim had Avilontary (sic) sex@ in Brittany=s room. 

Both Brittany and the grandmother testified. They testified that Brittany was a light sleeper and that she would have been awakened if appellant had gotten into the bed with her and the victim.  The victim=s grandmother testified that the victim woke her up and told her that appellant Atried@ to touch her and pull her underwear down but that he did not touch her.  Appellant told his grandmother that he did not touch the victim.  According to their grandmother, there was no blood, semen, or any stains on the sheets where the victim had been sleeping. 

After reviewing all of the evidence in a neutral light, we hold that the evidence supporting the verdict is neither too weak nor so greatly outweighed by contrary evidence as to render the verdict clearly wrong and manifestly unjust.  Therefore, the evidence is factually sufficient to support appellant=s conviction.  The third point of error is overruled. 

In the first point, appellant contends that the trial court erred in failing to grant his Amotion for mistrial@ after the prosecutor improperly commented upon his failure to testify.^[1]  During the State=s closing argument at the guilt/innocence phase of trial, the prosecutor made the following argument:

I don=t care if the Defense wants to call this [appellant=s written statement] a trump card or not.  That makes no difference to me, because what I=m asking you to do is to consider all the evidence that you=ve heard and to follow it.

You know, had this statement said something else, don=t you know that the argument would have been, well, guess what?  He said he didn=t do it. But now the statement now that he gave, a voluntary statement, he is admitting that he did it.  What evidence have you heard?  What have you heard at all from the Defense to refute or even challenge what it was that he put in his statement?

Defense counsel objected that the State was commenting on appellant=s failure to testify.  The prosecutor responded that she was “talking about the statement,” and the trial court overruled the objection. 

On appeal, the State asserts that the comment was made in response to opposing counsel=s argument and that the comment was not a direct comment on appellant=s failure to testify.  Prior to the State=s closing argument, defense counsel had argued to the jury:

But they think this is their trump card.  Any good officer can get an idiot to say anything that they want.  You-all can take this back with you.  See how he writes “voluntary.”  How did he get the word “voluntary” in there?  The kid can’t even spell.  His own sister told you, she can’t tell you that he’s smart.  As much as she liked to.  She’s under oath.  I’m sorry. They cannot use this as a trump card, because it didn=t happen.

Generally, a prosecutor may not comment upon a defendant’s failure to testify.  See Griffin v. California, 380 U.S. 609 (1965); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Cr.App.2001).  However, we hold that the comment in this case did not violate appellant=s rights because it was made in response to the argument of appellant=s counsel and because it could have been construed to refer to the absence of other evidence favorable to appellant, such as testimony from the officer who took the statement.  See Canales v. State, 98 S.W.3d 690, 695 (Tex.Cr.App.2003)(upholding prosecutor’s comment that referred to the defendant=s failure to explain admission he had made in a letter); see also Madden v. State, 799 S.W.2d 683, 699 (Tex.Cr.App.1990).  The first point of error is overruled. 

In his second point, appellant complains of a Batson^[2] error.  He contends that the State’s use of a peremptory strike on Veniremember Miller was racially motivated.  The use of peremptory challenges to strike potential jurors on the basis of race is prohibited.  Batson v. Kentucky, supra; TEX. CODE CRIM. PRO. ANN. art. 35.261 (Vernon 1989).  In Purkett v. Elem, 514 U.S. 765 (1995), the Supreme Court delineated the three-step process for properly determining a Batson challenge.  First, the opponent of a peremptory challenge must make out a prima facie case of racial discrimination, essentially a burden of production.  In the second step, the burden of production shifts to the proponent of the strike to respond with a race-neutral explanation. Third, if a race-neutral explanation has been proffered, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination.  The burden of persuasion is on the opponent of the strike to convince the trial court that the strike was racially motivated.  Purkett v. Elem, supra; Ford v. State, 1 S.W.3d 691, 693 (Tex.Cr.App.1999); Camacho v. State, 864 S.W.2d 524, 529 (Tex.Cr.App.1993), cert. den=d, 510 U.S. 1215 (1994). 

The record shows that appellant objected that the State had struck six of the seven eligible “African Americans within strike distance.”  The prosecutor explained all six strikes, stating in  particular that Veniremember Miller was struck because “she was not very decisive about the one-witness rule.”  The “one-witness rule” refers to a question by the prosecutor concerning whether the veniremembers could convict based upon the testimony of only one eyewitness or whether they would require more than one eyewitness.  According to the prosecutor, Veniremember Miller vacillated enough times on this issue to concern the State.

In response to the State’s explanation, defense counsel stated that, at the end of the discussion regarding the one-witness rule, none of the veniremembers raised their hand in response to the prosecutor’s question asking whether anyone still had a problem with that rule.  The record showed that the prosecutor actually asked whether anyone had any “questions” about the rule, not a problem with it. On appeal, appellant points out that the State did not strike Veniremember McCann even though she also stated that she could not follow the one-witness rule.  The record on appeal does not show whether Veniremember McCann was excused for cause or whether she was too far down the list to be eligible to sit on the jury, but it does show that Veniremember McCann did not sit as a juror in this case and that neither the State nor appellant peremptorily struck her. 

The record shows that, in response to the prosecutor=s question regarding the one-witness rule, Veniremember Miller stated: 

[VENIREMEMBER MILLER]:  There’s always two sides to the story.  Still, you have this one witness.  I understand the scenario that you’re looking for, but there’s also a flip.

[PROSECUTOR]:  There’s always a flip.  That’s right.  And that’s why I’m taking that flip out of my scenario, in my hypothetical.  Can’t go there with me?

[VENIREMEMBER MILLER]:  No.

Veniremember Miller was subsequently called for questioning on a one-on-one basis and asked whether she would require more than one witness.  Her responses varied, and she ultimately stated that she thought she could follow the law. 

We find that the State’s explanation was reasonable and racially neutral and that appellant’s rebuttal did not show that the State=s race-neutral reason for striking Veniremember Miller was a pretext for discrimination.  The use of a peremptory strike on a veniremember based on concerns involving the one-witness rule is justified.  Esteves v. State, 849 S.W.2d 822, 823 (Tex.Cr.App.1993); Garrett v. State, 815 S.W.2d 333, 335-36 (Tex.App. - Houston [1st Dist.] 1991, pet’n ref’d).  We hold that the trial court=s determination on the Batson issue was not clearly erroneous.  See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Cr.App.1999), cert. den’d, 528 U.S. 1082 (2000); Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Cr.App.1993), cert. den’d, 510 U.S. 1215 (1994).  The second point of error is overruled. 

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

October 23, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J. 

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^[1]The record shows that no motion for mistrial was made but that appellant=s timely objection was overruled.  Therefore, the issue was preserved and will be addressed on appeal despite the State=s contention that appellant=s point of error regarding a Amotion for mistrial@ does not comport with his objection at trial. Both the objection and the point of error involve appellant=s contention that the State improperly commented upon his failure to testify.

^[2]Batson v. Kentucky, 476 U.S. 79 (1986).