In The
Court of Appeals
For The
First District of Texas
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NO. 01-01-00705-CR
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FREDDIE CARL WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 840,308
A jury found appellant, Freddie Carl Walker, guilty of deadly conduct, and, after appellant pled true to an enhancement paragraph alleging the offense of robbery, the jury assessed punishment at a fine of $500. In five issues, appellant contends: (1) the trial court erred by not granting his Batson challenge; (2) the State acted in bad faith by charging appellant with unlawful possession of a firearm by a felon and failing to prove up all elements of that offense; (3) the trial court erred by giving the jury a limiting instruction on self-defense; (4) the trial court erred by excluding evidence of appellant's character trait of not being "quick tempered"; and (5) the trial court erred by allowing the State to elicit comments from a police officer about appellant's silence while in custody. We affirm.
Facts
On March 27, 2000, appellant was working as a night clerk at a Diamond Shamrock convenience store located at 11650 Hempstead Highway. A patron, Josh Vinsonhaler, argued with appellant about the price of cigarettes. Vinsonhaler testified that appellant was confrontational and said, "Can't you read the f***ing receipt?" Vinsonhaler said, "F*** it," and threw cash on the counter. What occurred next is disputed.
Vinsonhaler testified that appellant chased him out of the store yelling, "You want to try this sh** again?" Jennifer Harrington, Vinsonhaler's girlfriend, testified that appellant backed Vinsonhaler out of the store yelling, "I cheated you? I cheated you? Did I cheat you? I cheated you, you motherf***er."
On the other hand, Joseph Calles, another patron in the store, testified it was Vinsonhaler who cursed at appellant on his way out of the store. According to Calles, appellant calmly went outside to talk to Vinsonhaler, at which point Vinsonhaler lunged at appellant, and Vinsonhaler's friend, James Gentry, attacked appellant as well.
The testimony is consistent that Vinsonhaler and appellant began fighting. During the struggle, appellant produced a firearm that subsequently discharged twice. The second shot struck and killed Gentry. Vinsonhaler fled, and appellant returned to the store to call the police. Appellant surrendered to the police when they arrived. Appellant was indicted for the offenses of unlawful possession of a firearm and murder. The jury found appellant not guilty of unlawful possession of a firearm and guilty of the lesser-included offense of murder, deadly conduct.
Batson Challenge
In his first issue, appellant contends the trial court erred by denying his Batson challenge regarding the State's use of two peremptory challenges on prospective jurors, numbers 15 and 23. Appellant contends the State did not give race-neutral explanations for the strikes.
The State may not exercise peremptory challenges in a racially discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 80, 106 S. Ct. 1712, 1714 (1986); Tex. Code Crim. P. Ann. art. 35.261(a) (Vernon 1989). To assert a Batson challenge, the defendant must establish a prima facie case of purposeful discrimination. Harris v. State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992). Once the State gives non-discriminatory reasons for the strike, the burden shifts back to the defendant to refute the explanation, or prove it is a pretext for discrimination. Salazar v. State, 795 S.W.2d 187, 192 (Tex. Crim. App. 1990); Tex. Code Crim. P. Ann. art. 35.261(a) (Vernon 1989). The burden of persuasion remains with the defendant at all times. Ford v. State, 1 S.W.3d 691, 694 (Tex. Crim. App. 1999). The trial court's ruling must not be disturbed unless it is clearly erroneous. Harris, 827 S.W.2d at 955.
Defense counsel made the following Batson challenge during voir dire:
Your Honor, at this time the defense makes a Batson challenge as to the State's strikes of Juror No. 15 and Juror No. 23. Those are black males, neither of whom answered questions by either the State or the defense.
The prosecutor responded:
Judge, can I say for the record that I just realized, when we had the Batson motion, that 23 was a black guy. I don't mind showing my sheet to everybody here. On my jury sheet here, I always write on here "black man" or "black female." On 23, I didn't write anything; I didn't realize he was a black person; but at any rate, the reason we struck that person is that we noticed throughout the voir dire, he say [sic] with his arms folded, like he didn't care or wasn't paying attention to what was going on. The person already also [sic] had a prior DWI conviction. We ran criminal history [sic] on all the jurors' information, which we didn't share with the strikes [sic]; so our strike of that juror has nothing to do with the fact that he is a black person.
The court then asked the State about venireperson number 15, and the prosecutor responded:
Let me find my notes. There was a question that I recall that Counselor Katherine asked of him. I thought it had to do with deadly force or the use of force. I don't remember; I think it was in that area. She asked him a question about that. I did not like his answer at that time, although at this time I don't remember specifically what that answer was. That's basically it.
* * *
We also noticed that he's been on his job - - he is 55 years old and has only been on his job for a year and a half. We felt that might - - that was a factor that we looked at in striking him. It had nothing to do with his race, though.
Our review of the record does not identify any responses to a deadly force question from prospective juror number 15. Strikes based on employment status and age, however, are permissible. Earhart v. State, 823 S.W.2d 607, 625 (Tex. Crim. App. 1991) (unemployment, or instability on the job, are race-neutral reasons for peremptory strikes); McGee v. State, 909 S.W.2d 516, 520-21 (Tex. App.--Tyler 1995, pet. ref'd) (age and unemployment are valid reasons for peremptory strikes). Regarding prospective juror number 23, he was both non-responsive during voir dire and had a prior DWI conviction. Inattentiveness is a legitimate reason for striking a panel member. Vargas v. State, 838 S.W.2d 552, 555 (Tex. Crim. App. 1992). Moreover, a prior misdemeanor conviction constitutes a race-neutral reason for a peremptory challenge. Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988). The State offered race-neutral explanations, and appellant did not rebut them. The trial court's ruling was not clearly erroneous.
We overrule appellant's first issue.
Bad Faith Prosecution
In his second issue, appellant contends the prosecution did not prove all the elements of the unlawful possession of a firearm charge and consequently acted in bad faith. Appellant also contends the introduction of the underlying robbery offense was prejudicial.
To preserve error, a timely objection stating specific grounds must be made at trial. See Tex. R. App. Proc. 33.1(a). Appellant made no objection to either a bad faith prosecution for the firearm possession charge or to the introduction of the underlying robbery offense at trial. Consequently, appellant has failed to preserve this issue for review.
We overrule appellant's second issue.
Self-Defense Limitation
In his third issue, appellant contends the trial court erred by limiting his claim of self-defense in the jury charge. The jury charge included an instruction on self-defense and the following limitation to self-defense:
You are further instructed as part of the law of this case, and as a qualification of the law on self-defense, that the use of force by a defendant against another is not justified if the defendant sought an explanation from or discussion with the other person concerning the defendant's differences with the other person while the defendant was carrying a weapon in violation of the law.
When a defensive issue is raised by the evidence and a charge on the issue is properly requested, the issue must be submitted to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). If raised by the evidence and requested by the State, an instruction limiting a self-defense charge is warranted. Williams v. State, 35 S.W.3d 783, 786 (Tex. App.--Beaumont 2001, pet. ref'd).
Section 9.31(b)(5) sets forth the following limitation to claim of self-defense:
The use of force against another is not justified if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:
- carrying a weapon in violation of Section 46.02; or
- possessing or transporting a weapon in violation of Section 46.05.
Tex. Penal Code Ann. § 9.31(b)(5) (Vernon Supp. 2002).
There was evidence that appellant confronted Vinsonhaler about "cheating" him on the price of cigarettes. Appellant contends the statement, "Yeah, you want to f*** with me now," was a rhetorical statement. We disagree.
A verbal confrontation arises when one seeks an explanation or discussion under section 9.31(b)(5). Bumguardner v. State, 963 S.W.2d 171, 175 (Tex. App.--Waco 1998, pet. ref'd) (holding "If you want that ugly m-f, you can have him," qualified as seeking explanation or discussion). The statement, "I cheated you? I cheated you? Did I cheat you? I cheated you, you motherf***er," qualifies as seeking an explanation or discussion. See Williams, 35 S.W.3d at 786 (wanting to talk about replacing broken reflector qualified as seeking explanation or discussion). Because there was evidence that appellant sought an explanation or discussion with Vinsonhaler concerning differences appellant had with Vinsonhaler, the trial court did not err in submitting the limiting instruction.
We overrule appellant's third issue.
Character Evidence
In his fourth issue, appellant contends the trial court erred by excluding character testimony that he is not "quick tempered." At trial, appellant attempted to elicit character testimony from his wife:
Defense Counsel: I want to talk to you about the type of person that Freddie is.
Witness: Yes, ma'am.
Defense Counsel: Can you describe his personality or demeanor?
Witness: He's quiet. He doesn't -
Prosecutor: Objection. Improper character testimony, not the proper foundation, and not the proper question.
Trial Court: Sustained.
Defense Counsel: Was he argumentative?
Prosecutor: Same Objection.
Defense Counsel: May I respond?
Trial Court: No.
Defense Counsel: Well, let me ask you, Ms. Walker, did he have a propensity for violence?
Witness: No.
Defense Counsel: Do you have an opinion, Ms. Walker, about whether or not Mr. Walker is a peaceful person?
Witness: Yes, he is.
After the State cross-examined Mrs. Walker, appellant offered the following bill of exceptions:
Defense Counsel: Ms. Walker, I'm going to ask you a few questions outside the presence of the jury. What I want to talk to you about is your husband's character.
Witness: Uh-huh.
Defense Counsel: Could you describe his demeanor and his personality, please?
Witness: He's nice, quiet, and he doesn't talk a lot.
Defense Counsel: Is he argumentative?
Witness: No, he's not.
Defense Counsel: Do you know him to get into arguments with strangers?
Witness: He don't do that.
Defense Counsel: Is he quick tempered?
Witness: No, he's not.
Defense Counsel: Is he likely to fly off the handle?
Witness: No.
Defense Counsel: Have you had an opportunity to watch him at work?
Witness: Yes.
Defense Counsel: Have you gone up there to see him?
Witness: Yes.
Defense Counsel: Have you seen his interaction with customers?
Witness: Yes.
Defense Counsel: Have you ever seen him get angry and strike at a customer?
Witness: No.
Defense Counsel: Have you ever seen him get angry or strike at his family members?
Witness: No.
Defense Counsel: Is it in his nature to pick fights?
Witness: No.
Defense Counsel: How does he respond to a fight or argument?
Witness: He will leave. He doesn't talk. He'll tell you he don't like arguing. He doesn't like it.
Defense Counsel: That's all I have, Judge.
Appellant contends evidence that he is not quick tempered was improperly excluded. Assuming, without deciding, that it was error to exclude the evidence, the error did not affect the substantial rights of appellant. See Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002) (standard for reviewing erroneous exclusion of evidence is whether substantial right of party is affected). Evidence was introduced through the same witness that appellant did not have a propensity for violence and that he was a peaceful person. Moreover, appellant's manager, sister, two cousins, and the witness in the store, all testified that appellant was peaceful, never became abusive or aggressive, and had no propensity for violence. Any error in excluding evidence that appellant was not quick tempered was harmless when five other witnesses testified appellant was peaceful and had no propensity for violence. See Sosa v. State, 845 S.W.2d 479, 485-86 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd) (holding exclusion of character evidence harmless when other witnesses testify to similar evidence).
We overrule appellant's fourth issue.
Improper Prosecutorial Comments
In his fifth point of error, appellant contends the prosecutor improperly elicited testimony that referred to appellant's silence after the police arrived. During cross-examination of Officer J.J. Brieden, defense counsel asked the following questions:
Defense Counsel: And during the time that you had any dealings with Mr. Walker that evening, did he ever act aggressive or belligerent, or ugly around you?
Brieden: No, sir, he never said anything.
Defense Counsel: So, he certainly wasn't mouthy?
Brieden: No, sir.
After cross-examination, the prosecutor approached the bench:
Prosecutor: Judge, as I indicated, I believe on cross-examination counsel asked the officer about the defendant's cooperativeness and if the defendant said anything to him or talked with him. And in view of that, I wish to ask the witness - - and again, I would ask to do it. I've approached the Bench in an abundance of caution and trying to be fair here. The question I want to ask is this: As the defendant walked from the back of the store and came out the door, did he make any attempt to explain to you what happened out there? That's basically it.
Defense Counsel: Judge, we would - - clearly, the defendant - - clearly, Mr. Walker was in custody at the time. We would object to there being any attempt by the prosecutor to elicit statements that were made or the fact there no statements made, which would be a form of communication by Mr. Walker, at the time as being a violation of the rules setting out any kind of interrogation of a suspect in custody.
Court: Overruled. He will be able to ask that question. Bring the jury in.
The prosecutor then asked Officer Brieden the following question:
Prosecutor: During cross-examination, counsel asked you about any conversation you had or anything you said or that the defendant said to you when he was coming out of the store or after you got him out of the store. I want to ask you this: As he was coming out of the store, did the defendant attempt in any way to explain to you what had happened out there?
Defense Counsel: Objection. Objection.
Court: Overruled.
Brieden: No, sir.
Prosecutor: No further questions.
Although comments concerning a defendant's post-arrest silence are a violation of the Fifth Amendment prohibition against self-incrimination, a defendant can open the door by soliciting testimony concerning post-arrest silence. Bell v. State, 935 S.W.2d 958, 962 (Tex. App.--Waco 1994, no pet.) (holding prosecutor may refer to accused's failure to testify when appellant has already introduced it through another witness). We hold the trial court did not err by allowing the prosecutor to ask about appellant's post-arrest silence because appellant's counsel had already referred to it.
We overrule appellant's fifth point of error.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Mirabal, Taft, and Smith. (1)
Do not publish. Tex. R. App. P. 47.4.
1. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First
District of Texas at Houston, participating by assignment.