Plato August Splawn, Jr. v. State

IN THE
TENTH COURT OF APPEALS
No. 10-14-00054-CR
PLATO AUGUST SPLAWN, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 12th District Court
Walker County, Texas
Trial Court No. 25,790
MEMORANDUM OPINION
In two issues, appellant, Plato August Splawn Jr., challenges his conviction for
attempted capital murder of multiple persons. See TEX. PENAL CODE ANN. § 15.01(a)
(West 2011). Specifically, Splawn contends that the trial court: (1) committed reversible
error by denying his Batson challenge as to Juror Number 7, see generally Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); and (2) erred by making a
deadly-weapon finding. We affirm.
I. BACKGROUND
On February 21, 2012, Splawn was indicted for the offense of attempted capital
murder of multiple persons. The offense stems from an incident where Splawn shot his
estranged wife, Sandra, and killed his longtime friend and employee, Edwin Garcia, after
Splawn learned that Sandra and Edwin were having an affair.
Pursuant to a plea bargain with the State, Splawn pleaded guilty to the charged
offense and elected for the jury to assess his punishment. After hearing testimony during
the punishment phase, the jury sentenced Splawn to life imprisonment in the Institutional
Division of the Texas Department of Criminal Justice. The trial court made a deadly-
weapon finding and certified Splawn’s right to appeal the imposed sentence only.
Thereafter, Splawn filed a motion for new trial and a motion in arrest of judgment. Both
motions were overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c). This appeal
followed.
II. SPLAWN’S BATSON CHALLENGE
In his first issue, Splawn contends that the trial court erred in denying his Batson
challenge to the State’s use of a peremptory strike against Juror Number 7.
A. Applicable Law
In Batson, the United States Supreme Court held that, while a prosecutor ordinarily
may exercise peremptory strikes for any reason related to his views concerning the
outcome of the trial, “the Equal Protection Clause forbids the prosecutor to challenge
Splawn v. State Page 2
potential jurors on account of their race.” 476 U.S. at 89, 106 S. Ct. at 1719. A Batson
challenge to a peremptory strike consists of three steps: (1) the opponent of the strike
must establish a prima facie showing of racial discrimination; (2) the proponent of the
strike must articulate a race-neutral explanation; and (3) the trial court must decide
whether the opponent has proved purposeful racial discrimination. See Purkett v. Elem,
514 U.S. 765, 767-68, 115 S. Ct. 1769, 1770-71, 131 L. Ed. 2d (1995); Young v. State, 283
S.W.3d 854, 866 (Tex. Crim. App. 2009).
Once the State proffers race-neutral explanations for its peremptory strikes, the
burden is on the defendant to convince the trial court that the prosecution’s reasons were
not race-neutral. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Thus, the burden
of production shifts from the defendant in step one to the State in step two; but the burden
of persuasion never shifts from the defendant. Id. The trial court’s ruling in the third
step must be sustained on appeal unless it is clearly erroneous. Grant v. State, 325 S.W.3d
655, 657 (Tex. Crim. App. 2010) (citing Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct.
1203, 1207-08, 170 L. Ed. 2d 175 (2008)). “Because the trial court’s ruling requires an
evaluation of the credibility and demeanor of prosecutors and venire members, and
because this evaluation lies peculiarly within the trial court’s province, we defer to the
trial court in the absence of exceptional circumstances.” Id.; see Watkins v. State, 245
S.W.3d 444, 448 (Tex. Crim. App. 2008) (“[A] reviewing court should examine the trial
court’s conclusion that a facially race-neutral explanation for a peremptory challenge is
Splawn v. State Page 3
genuine, rather than a pretext, with great deference, reversing only when the conclusion
is, in the view of the record as a whole, clearly erroneous.”).
B. Discussion
During voir dire, Splawn objected to the State’s exercise of peremptory strikes on
Juror Numbers 6, 7, 13, 18, 19, and 27; however, on appeal, Splawn focuses his first issue
on Juror Number 7, who is an African-American male named Malcolm Corby. At trial,
Splawn contended that the State exercised its peremptory strike on Juror Number 7
“based upon race and gender,” which, as Splawn argued, violated his “rights under the
purview of Batson versus Kentucky under the equal protection clause of the Fourteenth
Amendment to the United States Constitution.” In response to Splawn’s contention, the
State provided the following explanation for the strike: “Mr. Corby was called up earlier
on, your Honor. He had knowledge of the case and had read about the case in the
newspaper and he also believed that the relationship of the parties would be relevant to
his punishment decision.” The trial court subsequently denied Splawn’s Batson
challenge.
Here, Splawn made a prima facie showing that the State’s strike may have been
racially motivated. However, the State responded to Splawn’s Batson challenge with a
race-neutral reason for using a preemptory strike on Juror Number 7—knowledge of the
case and possible bias regarding the relationship of the parties and the punishment
decision. Splawn was unable to refute the prosecution’s explanation or demonstrate that
Splawn v. State Page 4
the State’s explanation was merely a pretext for discrimination.1 See Williams v. State, 301
S.W.3d 675, 688 (Tex. Crim. App. 2009); see also Ford, 1 S.W.3d at 693. Therefore, according
great deference to the trial court’s denial of Splawn’s Batson challenge, we cannot say that,
based on our review of the record, the trial court’s ruling is clearly erroneous. See Snyder,
552 U.S. at 477, 128 S. Ct. 1207-08; Grant, 325 S.W.3d at 657; Watkins, 245 S.W.3d at 448; see
also Landrum v. State, No. 10-13-00281-CR, 2014 Tex. App. LEXIS 10194, at *4 (Tex. App.—
Waco Sept. 11, 2014, pet. ref’d) (mem. op., not designated for publication). We overrule
Splawn’s first issue.
III. DEADLY-WEAPON FINDING
In his second issue, Splawn contends that the trial court erred in making a deadly-
weapon finding because no such formal finding was made by the jury.
A trial court must enter a deadly-weapon finding in the judgment if the trier of
fact affirmatively finds that the defendant used or exhibited a deadly weapon during the
commission of a felony offense or during immediate flight therefrom. TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2014); see Polk v. State, 693 S.W.2d 391, 394
(Tex. Crim. App. 1985). “On an affirmative finding that the deadly weapon was a firearm,
the court shall enter that finding in its judgment.” TEX. CODE CRIM. PROC. ANN. art. 42.12,
1 In response to the State’s contention, Splawn did argue that: “[E]specially with regard to Juror
No. 7, other jurors had indicated that they had read something about this case and the State didn’t exercise
peremptory challenges on them, so we would reurge our objection.” However, Splawn did not address
the State’s contention that Juror Number 7 was possibly biased with respect to the relationship of the parties
and the punishment decision.
Splawn v. State Page 5
§ 3g(a)(2). An affirmative finding by the factfinder is required; an implied finding will
not support the entry of a deadly-weapon finding. Sanders v. State, 25 S.W.3d 854, 856
(Tex. App.—Houston [14th Dist.] 2000, pet. dism’d); see Polk, 693 S.W.2d at 394.
Since Splawn was tried by a jury, the trial court had no authority to make an
independent, affirmative deadly-weapon finding. See Sanders, 25 S.W.3d at 856 (citing
Easterling v. State, 710 S.W.2d 569, 581 (Tex. Crim. App. 1986)). However, a trial court is
authorized to make an affirmative deadly-weapon finding in the following three
situations: where the jury has (1) found guilt as alleged in the indictment and the deadly
weapon has been specifically plead as such using “deadly weapon” nomenclature in the
indictment; (2) found guilt as alleged in the indictment but, though not specifically plead
as a deadly weapon, the weapon plead is per se a deadly weapon; or (3) affirmatively
answered a special issue on deadly weapon use. Id. (citing Davis v. State, 897 S.W.2d 791,
793-94 (Tex. Crim. App. 1995); Polk, 693 S.W.2d at 396).
In the instant case, the indictment alleged the following:
[T]hat on or about the 6th day of December, 2011, and anterior to the
presentment of this indictment, in the County and State aforesaid PLATO
AUGUST SPLAWN, JR. did then and there, with specific intent to commit
the offense of capital murder of Sandra Splawn, do an act, to-wit: cause the
death of Edwin Garcia and then shoot Sandra Splawn with a firearm, which
amounted to more than mere preparation that tended but failed to effect
the commission of the offense intended . . . .
(Emphasis added). Splawn pleaded guilty to the charged offense and elected to have the
jury assess his punishment. The State concedes that the punishment charge did not
Splawn v. State Page 6
contain the phrase “as charged in the indictment,” and the record does not reflect that the
punishment charge included a special deadly-weapon issue; however, the punishment
charge did state the following: “You have found the defendant, PLATO AUGUST
SPLAWN, JR., guilty of the offense of ATTEMPTED CAPITAL MURDER.”
The statutory definition of “deadly weapon” includes “a firearm” or “anything
that in the manner of its use . . . is capable of causing death . . . .” TEX. PENAL CODE ANN.
§ 1.07(a)(17) (West Supp. 2014). And as mentioned earlier, the indictment alleged that
Splawn caused the death of Edwin and shot Sandra with a firearm—an allegation to
which Splawn pleaded guilty. See id.; see also Drichas v. State, 175 S.W.3d 795, 798 (Tex.
Crim. App. 2005) (“To hold evidence legally sufficient to sustain a deadly weapon
finding, the evidence must demonstrate that: (1) the object meets the statutory definition
of a dangerous weapon; (2) the deadly weapon was used or exhibited during the
transaction from which the felony conviction was obtained; and (3) that other people
were put in actual danger.” (internal citations & quotations omitted)). Furthermore, the
jury found Splawn guilty of the charged offense.
Having found Splawn guilty of the charged offense of attempted capital murder,
the jury necessarily found that Splawn used something that in the manner of its use was
capable of causing—and did cause—death. See Crumpton v. State, 301 S.W.3d 663, 664
(Tex. Crim. App. 2009) (“Another reason is that a verdict of homicide is a finding that a
deadly weapon was used. . . . Having found the defendant guilty of homicide, the jury
Splawn v. State Page 7
necessarily found that the defendant used something that in the manner of its use was
capable of causing—and did cause—death. Therefore the verdict was an adequate basis
for the trial court’s entry of the deadly-weapon finding in the judgment.”). Accordingly,
we conclude that the verdict was an adequate basis for the trial court’s entry of the
deadly-weapon finding in the judgment. See id. We overrule Splawn’s second issue.
IV. CONCLUSION
Having overruled both of Splawn’s issues, we affirm the judgment of the trial
court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 30, 2015
Do not publish
[CRPM]
Splawn v. State Page 8