In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00038-CR
______________________________
LOYD CRAIG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 14,187
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Loyd Craig was romantically involved with three women, Freda Cline, Rosie Brooks, and
Shaniqua Darden. Cline was shot while sitting in her car while Craig was present; the vehicle was
then set ablaze, incinerating the body; Brooks admitted she shot Cline at Craig's behest; Darden
insisted Craig was with her on the day of the homicide. After Brooks admitted shooting Cline, she
pled guilty and was sentenced to twenty-five years' imprisonment; she testified Craig planned and
directed the murder. Craig appeals his conviction for the murder of Cline after being convicted and
sentenced to sixty years' incarceration. We find: 1) the trial court did not err in overruling Craig's
Batson1 challenge to three of the State's peremptory challenges at jury selection; 2) there was
sufficient evidence tending to connect Craig to Cline's murder to corroborate accomplice Brooks'
testimony; and 3) the trial court did not err in denying Craig's motion for new trial. We affirm the
judgment.
I. Batson Challenge
Craig first argues the trial court erred in denying his challenge to the State's use of
peremptory strikes on three veniremembers. See id. A Batson challenge generally gives rise to a
three-step process. First, the defendant must make a prima facie case that a veniremember was
peremptorily excluded on the basis of race. Next, the State must come forward with race-neutral
reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's
1
Batson v. Kentucky, 476 U.S. 79 (1986).
2
explanations. The burden of persuasion remains with the defendant to prove purposeful
discrimination. In Purkett v. Elem, 517 U.S. 765 (1995), the United States Supreme Court explained
that "unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will
be deemed race neutral." Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006). The trial
court determines whether the defendant has carried his or her burden of proving racial
discrimination. Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002). The trial court's
determination is accorded great deference; we will not overturn the determination unless it is clearly
erroneous. Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999).
A. Prima Facie Claims of Racial Discrimination and the State's Responses
Craig told the trial court, "There were three black members on the first two rows, Jerry
Tennison, Shirley Hall, and Darrel Todd, and I noticed all three of them got struck."2 We move to
the State's race-neutral explanations for its strikes.3
2
The record is not clear regarding Craig's race. The United States Supreme Court held in
Powers v. Ohio, 499 U.S. 400 (1991), that, under the Fourteenth Amendment, "a criminal defendant
may object to race-based exclusions of jurors effected through peremptory challenges whether or not
the defendant and the excluded juror share the same race." Therefore, the race of a defendant is
irrelevant to a Batson challenge. Id. at 402; Cook v. State, 858 S.W.2d 467, 471 (Tex. Crim. App.
1993).
3
Where the State offers an explanation for the challenged strike and the trial court makes its
ruling, the issue of whether the defendant presented a prima facie case is moot. Hernandez v. New
York, 500 U.S. 352, 359 (1991).
3
1. Veniremember Tennison
The State inquired whether potential jurors could consider the whole range of punishment,
from community supervision to five to ninety-nine years or life in prison. The State said, "Mr.
Tennison, you cannot consider it?" The venireman answered, "Yes sir. I just raised it [his hand]
slow."
The State told the trial court Tennison "didn't raise his hand to a critical question until I
looked at him and then he raised his hand and said I was just late. That indicated to me that he
wasn't going to raise his hand to that question because he didn't do it until I specifically turned to
him."
Further, the State indicated that, "[H]is actions indicated to me that he wasn't going along
with that."
2. Veniremember Hall
Regarding Hall, the State explained its strike as follows:
THE COURT: Okay. What about Ms. Hall?
[State]: Ms. Hall, if you'll recall was the one that all during my voir dire she
sat there like you're standing, just like this.
THE COURT: She was cold?
[State]: And -- but during [the defense] voir dire she wasn't.
THE COURT: You warmed her up, Mr. Fetter.
[State]: Whatever, but she opened up to him.
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3. Veniremember Todd
The State explained its strike of veniremember Todd:
[State]: Mr. Todd was the one if you'll recall I asked the question about O. J.
Simpson and nobody raised their hand, but he was glaring at me and I made the point
of going back and saying, if you'll recall I did a follow-up are you sure and I was
looking directly at him because of his facial expression. He was mad at [sic] heck
at me for even asking that question and that's why he got struck.
The issue for the trial court and the appellate court at this juncture is the facial validity of the
explanation given. Purkett, 514 U.S. at 768; Goode v. Shoukfeh, 943 S.W.2d 441, 445 (Tex. 1997).
In evaluating whether the explanation offered is race neutral, a court must determine whether the
peremptory challenge violates the Equal Protection Clause as a matter of law, assuming the reasons
for the peremptory challenge are true. Goode, 943 S.W.2d at 445. A race-neutral explanation means
that the challenge was based on something other than the juror's race. Id. Unless a discriminatory
intent is inherent in the explanation, the reason offered will be deemed race neutral for purposes of
the analysis at step two. Id. We do not see a discriminatory intent in the State's three explanations
and therefore proceed to the next step.
B. Defense Burden to Show Pretext
Following the State's presentation of its race-neutral reasons for its peremptory strikes, the
defendant then bears the burden to convince the trial court that the State's reasons are pretexts for
racially discriminatory use of its strikes. The ultimate burden of proof of a Batson violation rests
with the defendant. Craig told the trial court,
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Mr. Tennison, you know, he might have been slow in raising up but he answered the
question the same as everybody else. And Mr. Todd, you know, I don't remember the
glaring and all that stuff but -- nobody raised their hand up and thought O. J. was
innocent. You know, he didn't affirmatively make any statements or indicate that he
disagreed.
Craig did not rebut the State's description of Hall as "cold."
Regarding Tennison, who the State said was late raising his hand to a question about
considering the full range of punishment, an inability to consider the full range of punishment is a
race-neutral reason for striking a veniremember. Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim.
App. 1993);4 see also Yarbough v. State, 732 S.W.2d 86 (Tex. App.—Dallas 1987), vacated &
remanded on other grounds, 761 S.W.2d 17 (Tex. Crim. App. 1988). After asking the general
question to the panel if they could consider life imprisonment as a punishment in the proper murder
case, the attorney then stated, "Okay. Mr. Tennison you cannot consider it?" which suggests that
Tennison either did not raise his hand or as he stated was "slow" to do so. Craig's only answer was
that Tennison "answered the question the same as everybody else." However, Tennison's reaction
was apparently not the same as everyone else. Even though Tennison did not give an answer
indicating that he was hostile to the State, the State did identify Tennison's tardiness in answering
4
Further, a prospective juror's inability to understand relevant legal concepts provides a
race-neutral explanation for exercising a peremptory strike. See Chiles v. State, 57 S.W.3d 512,
516–17 (Tex. App.—Waco 2001, pet. dism'd, untimely filed) (recognizing that prospective juror's
inability to understand the concepts of insanity defense and single-witness testimony constituted
race-neutral reason); Williams v. State, 939 S.W.2d 703, 706–07 (Tex. App.—Eastland 1997, no
pet.) (recognizing that prospective juror's inability to understand concept of "beyond a reasonable
doubt" constituted race-neutral reason).
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that he could consider a life sentence as a specific, objective reaction which the State interpreted as
some hesitancy to consider the entire range of punishment. We cannot determine that such an
interpretation was unreasonable or without foundation.
As for venireman Todd, the State said he was "mad at [sic] heck" and "glaring" at him when
the latter asked the panel whether anyone thought O. J. Simpson was innocent. Lack of eye contact
and attentiveness and no development of a back-and-forth relationship during voir dire has been
upheld as a race-neutral explanation. Townsend v. State, 730 S.W.2d 24, 26 (Tex. App.—Texarkana
1987, no pet.). So, too, where a potential juror was "very hostile" toward the prosecutor questioning
her, as demonstrated by "her facial expression, even body language, with her arms folded and
peering." Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993). The State's explanation for
striking Todd was race neutral. Craig responded to the State's explanation by saying, "I don't
remember the glaring and all that stuff but -- nobody raised their hand up and thought O. J. was
innocent. You know, he didn't affirmatively make any statements or indicate that he disagreed." The
defendant must do more than simply state his or her disagreement with some of the State's
explanations. The defendant must prove affirmatively that the State's race-neutral explanations were
a sham or pretext. Webb v. State, 840 S.W.2d 543, 544 (Tex. App.—Dallas 1992, no pet.);
Straughter v. State, 801 S.W.2d 607, 613 (Tex. App.—Houston [1st Dist.] 1990, no pet.). As for
Craig's statement to the trial court that "nobody raised their hand up and thought O. J. was innocent,"
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there is no further discussion or questioning by either party with any other panel members on this
topic.
Statements about the demeanor or appearance of veniremembers must be judged for their
credibility by trial courts, whose findings must be reviewed deferentially by appellate courts.
Yarborough v. State, 947 S.W.2d 892, 893 (Tex. Crim. App. 1997). Strikes based on claims not
easily verifiable through objective proof should be viewed with ''healthy skepticism,'' but, under this
view, the skepticism is to be exercised by the trial court, not by the appellate court. Moss v. State,
877 S.W.2d 895, 899 (Tex. App.—Waco 1994, no pet.) (appellate court owes deference to trial court
decision, which should be disturbed only if ''clearly erroneous'').
Craig offered no rebuttal to the State's race-neutral explanation for striking veniremember
Hall. A party's failure to offer any real rebuttal to a proffered race-neutral explanation can be fatal
to his or her claim. Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002); Ford v. State,
1 S.W.3d 691, 694 (Tex. Crim. App. 1999) (defendant failed to rebut State's reason by
cross-examining prosecutor or offering rebuttal evidence).
C. Trial Court Not Clearly Erroneous
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. Herron v. State, 86 S.W.3d
621, 630 (Tex. Crim. App. 2002). A ruling is clearly erroneous when, after searching the record, we
are left with the definite and firm conviction that the trial court has made a mistake. Goldberg v.
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State, 95 S.W.3d 345, 385 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd); Bausley v. State, 997
S.W.2d 313, 315 (Tex. App.—Dallas 1999, pet. ref'd). The "clearly erroneous" standard "is a highly
deferential standard because the trial court is in the best position to determine whether a prosecutor's
facially race-neutral explanation for a peremptory strike is genuinely race-neutral." Gibson v. State,
144 S.W.3d 530, 534 (Tex. Crim. App. 2004). We may not substitute our opinion for the trial court's
factual assessment of the neutrality of the State's explanation for exercising strikes, and we focus on
the genuineness, rather than the reasonableness, of the State's asserted nonracial motive. Id. at 534
& n.5 (citing Purkett, 514 U.S. 765).
Reviewing the record before us, we find the State presented racially neutral explanations for
the three challenged strikes. Based on Craig's limited rebuttals, we are not "left with the definite and
firm conviction that the trial court has made a mistake." We overrule Craig's first point of error.
II. Corroboration of Accomplice-Witness Testimony
A conviction cannot be had on the testimony of an accomplice unless corroborated by other
evidence tending to connect the defendant with the offense committed; the corroboration is not
sufficient if it merely shows the commission of the offense. TEX . CODE CRIM . PROC. ANN . art. 38.14
(Vernon 2005). While required by neither common law nor our Federal and State Constitutions,
Article 38.14's codification reflects the Texas Legislature's determination that accomplice-witness
testimony implicating another "should be viewed with some level of caution." Gill v. State, 873
S.W.2d 45, 48 (Tex. Crim. App. 1994); see also Brown v. State, 159 S.W.3d 703, 707 (Tex.
9
App.—Texarkana 2004, pet. ref'd) (discussing covert witness rule of Article 38.141 and its parallels
to Article 38.14's accomplice-witness rule). Article 38.14 requires the corroboration of
accomplice-witness testimony, but there is no exact rule as to the amount of evidence required for
corroboration. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). "All that is required
is that there be some non-accomplice evidence which tends to connect the accused to the commission
of the offense alleged in the indictment." Gill, 873 S.W.2d at 48; cf. Jeffery v. State, 169 S.W.3d
439, 448 (Tex. App.—Texarkana 2005, pet. ref'd) (applying similar analysis for corroboration of
covert-witness testimony); Brown, 159 S.W.3d at 707–08. Such evidence may be either direct or
circumstantial. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).
The test for weighing the sufficiency of corroborating evidence is to eliminate from
consideration the accomplice's testimony, and then examine the remaining testimony and evidence
to determine if there is evidence that tends to connect the defendant with the commission of the
offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Reed, 744 S.W.2d at 125;
Hall v. State, 161 S.W.3d 142, 149 (Tex. App.—Texarkana 2005, pet. ref'd). The nonaccomplice
testimony does not have to directly link the accused to the crime, it alone need not establish guilt
beyond a reasonable doubt, and it need not prove all the elements of the alleged offense. Gill, 873
S.W.2d at 48; Munoz, 853 S.W.2d at 559; Reed, 744 S.W.2d at 126; Jeffery, 169 S.W.3d at 448. The
accused's presence at the scene of the crime is, by itself, insufficient to corroborate an accomplice's
testimony. However, "evidence that an accused was in the company of the accomplice close to the
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time of the offense, coupled with other suspicious circumstances, may tend to connect the accused
to the offense." Gill, 873 S.W.2d at 49; see also Reed, 744 S.W.2d at 127; Jeffery, 169 S.W.3d at
447; Brown, 159 S.W.3d at 708. Moreover, while evidence that addresses only motive or
opportunity to commit the crime is, by itself, insufficient to corroborate the accomplice-witness
testimony, motive or opportunity evidence may be considered in conjunction with other evidence
tending to connect the accused to the crime. Reed, 744 S.W.2d at 127. "Cumulative evidence of
'suspicious circumstances' may be sufficient even if none of the circumstances would be sufficient
individually." Jeffery, 169 S.W.3d at 447; see also Brown, 159 S.W.3d at 708. In the end, every
case "must be considered on its own facts and circumstances--on its own merit." Munoz, 853
S.W.2d at 559; see also Reed, 744 S.W.2d at 126.
A. Craig's Accomplice, Rosie Brooks
Cline had been living with Craig until a few days before her death. Brooks testified that, two
days before the murder, she met with Craig and "someone had told him that Freda was out to get him
and that she was going to make him pay and he had asked me if I would shoot her and I told him that
I would." On the day of the murder, Brooks got Craig's truck from him. Craig and Cline were
together in a Dodge Intrepid. They all drove to Eric Harper's house, where Craig and Cline sat in
Cline's car in Harper's front yard. When Craig and Cline left, Brooks followed; she got the truck
stuck, and Craig called Harper, who came and extricated Brooks and the truck. Brooks testified she
followed Craig and Cline "through the country" to an area near Mule Deer and Minx Roads; Craig
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was outside Cline's car, talking to Cline, who was seated in the driver's seat, when she began
apologizing for seeing other men. Brooks said that, at Craig's instruction, she got a pistol he had
behind his back. When Cline begged Craig to tell Brooks not to shoot her, Craig said it was not up
to him, it was up to Brooks. Brooks also said Craig told her that, if she did shoot Cline, to be sure
and shoot her in the head. After Brooks shot Cline, Craig then retrieved a jug of gasoline, which
Brooks had purchased at Craig's instruction, from the truck and told her to turn the truck around.
Craig then poured the gasoline on Cline and her car and set them ablaze. Craig got in the truck with
Brooks, and they left.
Brooks acknowledged that, in her first statement to law enforcement officers, she stated Craig
was not with her at the time of the murder.
B. Nonaccomplice Testimony
Setting aside Brooks' testimony, we now consider only other evidence which tends to connect
Craig to Cline's murder. Harper testified that, on the night now identified as the night of the murder,
Craig pulled into Harper's front yard in a vehicle that looked like Cline's Dodge Intrepid. There was
another person in the car with Craig, but Harper could not tell the person's race or gender. Harper
said Brooks parked in his yard Craig's blue Chevrolet truck she was driving. When the two vehicles
and their occupants then drove away from Harper's residence, Brooks got stuck; Craig called Harper,
and he came out and helped get the vehicle out. Cell phone records verify that several calls from
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Craig's phone were made to Harper's phone on the night of the murder. These incidents corroborate
Brooks' testimony and tend to connect Craig to the events preceding the murder.
A few days later, Harper received a call from Craig asking him to meet with Craig at Craig's
mother's house. Craig asked Harper if he had heard what happened, to which Harper replied, "I think
so." Craig then told him "it" had happened that night, when Brooks and Craig were in the two
vehicles in Harper's yard. From the context of the questioning and testimony of this portion of the
reporter's record, "it" refers to the death of Cline. Harper said Craig told him the police might come
talk to Harper, and Craig had forgotten to tell the police he had been at Harper's house the night of
the murder. Craig told Harper that, if Harper told police Craig had been to Harper's house that night,
Craig would have to tell police he had forgotten to tell them he had been to Harper's. Harper testified
he got nervous and left.
In his written statement, Craig maintained he was with Darden at all times during the night
of the murder. However, in an oral statement given to investigators, and received in evidence, Craig
admitted he and Brooks drove up and down Mule Deer Road where Cline's burned car and remains
were found. Darden, at one time, told police Craig instructed her to tell them he was with her all day
on the day of the murder.5 The State also introduced evidence Craig had dialed Cline's cell phone
5
Darden gave two statements to the police. The first said that Craig had been with her from
the afternoon through the night of the murder; in her second statement, she refuted the first and said
Craig had told her what to say. At trial, Darden testified in line with her first statement and said she
had been threatened by law enforcement with loss of her children to Child Protective Services if she
did not give a story inculpating Craig. The interviewing officers testified they never made such
threats.
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111 times the day before the murder and only four times on the day of the murder (all four occurring
before 10:00 a.m.). Evidence that an accused was in the company of the accomplice close to the time
of the offense, coupled with other suspicious circumstances, may tend to connect the accused to the
offense. Gill, 873 S.W.2d at 49.
There was sufficient evidence tending to connect Craig to Cline's murder; we overrule this
point of error.
III. Motion for New Trial, Claiming Newly Discovered Evidence
Craig's third point of error claims the trial court erroneously denied Craig's motion for new
trial.
Article 40.001 of the Texas Code of Criminal Procedure provides that "[a] new trial shall be
granted an accused where material evidence favorable to the accused has been discovered since
trial." TEX . CODE CRIM . PROC. ANN . art. 40.001 (Vernon 2006). Under that statute, a defendant is
entitled to have his or her motion for new trial granted if (1) the newly discovered evidence was
unknown to the defendant at the time of trial; (2) the failure to discover the new evidence was not
due to the defendant's lack of due diligence; (3) the new evidence is admissible and not merely
cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and
will probably bring about a different result in a new trial. Keeter v. State, 74 S.W.3d 31, 36–37 (Tex.
Crim. App. 2002).
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Not only does the decision to grant or deny such a motion fall within the sound discretion of
the trial court, subject to reversal only on a finding of an abuse of that discretion, but these motions
are generally disfavored by the courts and viewed with great caution. Fox v. State, 175 S.W.3d 475,
484 (Tex. App.—Texarkana 2005, pet. ref'd).
Craig's amended motion for new trial claimed entitlement to relief because a newly
discovered letter, purportedly from accomplice Brooks to Craig's sister, implicated some other
unknown male and said Craig was not involved. In the letter, Brooks denied responsibility for
Cline's murder and said she was just at the scene and saw the murder. At the hearing, Craig's sister
Teresa Walton said she had received a letter from Brooks sometime in 2004, but put it in a plastic
bag with her other mail to be sorted later. She could not find it in time for trial, but did find it in
time for the hearing on the motion for new trial.6 At the hearing, both Walton and Craig's other
sister, Pamela Allen, testified they were aware of the contents of the letter and had told both Craig
and his trial attorney of the letter and its contents, prior to the trial. This is fatal to Craig's appellate
point of error, as the new evidence relied on for a new trial must have been unknown to the
defendant at trial. See id. at 485. While we do not address whether the letter was admissible, we
point out that it would at most be available for the purpose of impeaching Brooks' trial testimony.
6
The trial was December 4–6, 2006; the motion for new trial was heard February 13, 2007.
15
Further, even if the letter had been admitted into evidence at trial, it would be reasonable for
the trial court to conclude it was not probable that such evidence would bring about a different result.
Undisputedly, Brooks at one time made statements that absolved Craig from all responsibility for
the murder and later changed her statement. Even if this letter was found to be authentic, it would
have added little to Brooks' previous testimony that Craig was not even present when the murder was
committed. That testimony was already before the jury, and Brooks' credibility was thoroughly
examined at the trial for this very reason. We overrule this point of error.
We affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: December 4, 2007
Date Decided: January 10, 2008
Do Not Publish
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