Brown, Marvin Dwayne v. State

AFFIRM; Opinion issued November 13, 2012
In The
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No. 05-i 1-00247-CR
MARVIN BE WAYNE BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203 Judicial District Court
Dallas County, Texas
Trial Court Cause No. FI0-58542-P
MEMORANDUM OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Morris
A jury found Marvin Dwayne Brown guilty of possession of a controlled substance with
intent to deliver. I-Ic complains on appeal that the trial court erred in overruling his Batson
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complaints. We affirm the trial court’s judgment. The background of the case and the evidence
adduced at trial are well known to the parties. and therefore we limit recitation of the facts. We issue
this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to
be applied in the case is well settled.
l)uring jury selection, prospective juror Davis and others were asked by the prosecutor what
Ba/Son v. Keniuokv. 476 U.S. 79(1986).
they would look for to show them the defendant was intending to deliver drugs. Davis responded,
“Trying to deliver it to someone.” Later, the prosecutor asked if any of the prospective jurors had
travel plans or doctor appointments that might conflict with the trial. Prospective juror Terrell
volunteered that he had a doctor appointment in two days. The prosecutor asked if he could
reschedule, and Terrell stated, “I can call and reschedule.”
The State exercised peremptory- strikes against Davis and Terrell. among others. Appellant.
noting that Davis, Terrell, and appellant were all African-American, made a Ba/son motion
requesting the trial court to deny the strikes. Offering her reasons for the strikes, the prosecutor
commented.
Juror 17, he had a doctor’s appointment Thursday. Wasn’t sure whether or
not he was able to reschedule it. We struck on the basis of that. We didn’t want an
inconvenience for him.
And the same reason for Juror 1 8 with the autistic brother.
[Davis] was the only one who wanted the actual delivery to be taking place
or be an occurrence [sic]. We looked at that, the possibility she would want the
buyer to he here. We don’t have that person as a witness so we struck her.
Defense counsel countered that the fact Terrell “may have a doctor’s appointment maybe he can’t
reschedule” did not prevent Terrell from sitting and claimed that there were additional prospective
jurors “who indicated other medical issues preventing them.” In response, the prosecutor
commented,
Ifs all fun and games until we hit Thursday and Mr. Terrell says he can’t be
here and Mr. King can’t be here Friday and [we] push the case into next week —
assuming everybody on the jury can be here next week.
That just occurred in Auxiliary 1 last month. It’s not his inconvenience as
much as I don’t want to come back next week or the week after to finish the case.
With respect to Davis, defense counsel argued that because appellant was not accused of
delivery, the fact that Davis would “want the person that he delivered to” in a delivery case was not
relevant in appellant’s case because he was charged only with possession with intent to deliver. The
trial court denied appellant’s Baison motions.
In his two points of error on appeal, appellant complains the trial court erred in denying his
Ba/son motions. The following three-step process applies to a Ba/son challenge: (1) the defendant
must make a prima facie showing that the prosecutor exercised peremptory strikes on the basis of
race. (2) the burden then shifts to the prosecutor to state a race-neutral reason for the strikes, and (3)
the trial court must decide whether the defendant has proved purposeful racial discrimination. See
Grantv. Slate. 325 S.W.3d 655, 657 (Tex. Crim. App. 2010). When reviewing a Batson objection.
we examine the record in the light most favorable to the trial court’s ruling and reverse only when
the ruling is clearly erroneous. See Bausiei’ v. S/ate. 997 S.W.2d 313, 315 ((Tex. App.—Dallas
1999. pet. ref d). We give great deference to the trial court’s decision on the issue of purposeful
discrimination because it requires an assessment of credibility and content of the prosecutor’s
reasons and all other relevant facts and circumstances. Alexander r. State. 866 S.W.2d 1. 8 (Tex.
Crim. App. 1993).
Here, the prosecutor offered reasons for her strikes that were race-neutral on their face.
Appellant challenged the strikes but never rebutted the strikes to a degree that showed the prosecutor
was being untruthful about the strikes or using them as a pretext for racial discrimination. Pretext
is not shown merely because an explanation is factually correct. Greer v. State, 310 S.W.3d 11, 16
(Tex. App.—Dallas 2009. no pet.). Only when the State’s explanation for striking ajuror is clearly
contrary to the evidence have we held that there is “no innocent mistake” and reversed for Ba/son
error. id. To the extent the prosecutor in appellant’s case may have exaggerated Terrell’s inability
to reschedule his doctor appointment or Davis’s need to have evidence of the actual person to which
appellant delivered the controlled substance, such exaggeration does not amount to proof her reasons
were pretexts for racially motivated strikes. See 1dair i’. Stale. 336 S.W.3d 680. 692 (Tex.
App—Houston [1 Dist.1 2010, pet. refd). Deferring to the trial court’s decision, we conclude it
did not err in denying appellant’s Batson motions. We overrule his two points of error.
We affirm the trial court’s judgment.
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JUDGMENT
MARVIN DEWAYNE BROWN. Appellant Appeal from the 203w Judicial District Court
of Dallas County, Texas. (Tr.Ct.No. F10-
No. 05-11-00247-CR V. 58542-P).
Opinion delivered by Justice Morris,
THE STATE OF TEXAS. Appellee Justices Francis and Murphy participating.
Based on the Court’s opinion of this date. the judgment of the trial court is AFFIRi’IED.
Judgment entered November 13, 2012.
JOET?JOiRIS
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