IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
APRIL 24, 2006
______________________________
LAMAR SANDERS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-401,108; HON. BRAD UNDERWOOD, PRESIDING
_______________________________
Before QUINN, C.J., REAVIS, J., and BOYD, S.J. (1)
Appellant Lamar Sanders appeals his conviction of deadly conduct in three issues. In doing so, he contends, 1) the trial court erred in overruling his Batson motion, 2) the trial court abused its discretion in admitting hearsay testimony, and 3) the evidence is factually insufficient to sustain the conviction. We affirm the judgment of the trial court.
Background
On the evening of August 13, 2002, a dispute arose between the household at 2917 E. Auburn and the household at 2923 E. Auburn in Lubbock. Those located at the 2917 address included Ramona Sterling, her sister Loretta Wilson, her brother Anthony Sterling, Anthony's friend Jeremy Johnson, and Anthony's girlfriend Trelina Taylor. The persons at the 2923 address included appellant's girlfriend Glenda Mitchell, appellant, Glenda's nephew Kip Roddy, Quincy Bell, and two other young men. Earlier in the evening, Jeremy had accosted the sister of Quincy on the street and threatened to kill her. Later, Anthony went down to the 2923 address, leaned on the fence, and began talking to appellant and the other men at the house. They began to argue about the incident with Quincy's sister. Ramona, Loretta, and Trelina eventually went to the 2923 address to convince Anthony to come home. At some point, shots were fired, and Ramona received a bullet in the back of her lower leg.
Batson Challenge
Appellant argues in his first issue that his constitutional rights were violated as well as article 35.261(a) of the Code of Criminal Procedure when the trial court denied his Batson challenge. We overrule the issue.
A litigant may not exercise his peremptory challenges in an invidiously discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986). The party asserting discrimination must establish a prima facie case of the same. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Should the movant fulfill that duty, the party who exercised the strikes must explain why he did so and the reasons proffered must be facially neutral. Id. Unless discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. Purkett v. Elem, 514 U.S. 765, 768-69, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995); Ford v. State, 1 S.W.3d at 693-94. Once this step is satisfied, the movant must persuade the court to conclude that there was purposeful discrimination. Ford v. State, 1 S.W.3d at 693. Because the trial court's decision often turns on credibility, we give great deference to the trial court's decision and will not disturb it unless it is clearly erroneous. Herron v. State, 86 S.W.3d S.W.3d 621, 630 (Tex. Crim. App. 2002); Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002).
Appellant complains of the use of a peremptory strike on prospective juror Betty Payton Bryant who is African-American. (2) He argues that she gave no objectionable answers to any of the voir dire questions posed to her. The court conducted a hearing during which the prosecutor stated that he struck her because 1) she was hesitant to answer the question (and initially shook her head) as to whether she could consider the higher range of punishment although she eventually stated she could, 2) based on her body language, it appeared she did not like the female prosecutor questioning her, and 3) she had been a victim of domestic assault. The State is not required to offer good reasons, only race neutral ones. Splawn v. State, 160 S.W.3d 103, 115 (Tex. App.--Texarkana 2005, pet. ref'd). All of the proffered reasons arguably constitute race neutral reasons for striking the juror. See Hutchinson v. State, 42 S.W.3d 336, 340 (Tex. App.--Texarkana 2001), aff'd, 86 S.W.3d 636 (Tex. Crim. App. 2002) (a problem in assessing punishment is a race neutral reason); Francis v. State, 909 S.W.2d 158, 164 (Tex. App.--Houston [14th Dist.] 1995, no pet.) (perceived hostility towards the prosecutor can be a race neutral reason); Catley v. State, 763 S.W.2d 465, 467 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd) (the fact the juror has been the victim of a crime is race neutral).
Moreover, the burden of persuasion remains with the defendant. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). When the State offers race neutral reasons and the defendant fails to rebut them, as here, we cannot find the trial court's decision to be clearly erroneous. Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905, 124 S. Ct. 2837, 159 L. Ed. 2d 270 (2004); Stewart v. State, 176 S.W.3d 856, 859 (Tex. App.--Houston [1st Dist.] 2005, no pet.). Accordingly, the trial court did not abuse its discretion.
Hearsay Testimony
By way of his second issue, appellant contends that the trial court abused its discretion in admitting hearsay testimony of a police officer that she was told appellant had a gun at the time of the incident. We overrule the issue.
The prosecutor questioned Officer Yolanda Pena as to the source of the information she received that appellant had a gun in his possession on the evening when the incident occurred. She responded, "I had Loretta Wilson, Ramona Sterling and Quincy Bell." Prior to the completion of the question, appellant objected on the basis of hearsay. The court instructed the State to complete the question after which the court overruled the objection. We review the trial court's ruling on the admission of evidence for abuse of discretion. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).
Appellant specifically complains of the reference to Quincy Bell having told the officer that appellant had a gun that night. This is so because Quincy did not testify at trial and was aligned with the people at the 2923 address thereby tending to credibly corroborate the testimony of Ramona and Trelina that appellant had a gun. Moreover, appellant points out that the State referred to the statement of Quincy in its closing argument and the jury made reference to it in a jury note.
The State did not proffer a hearsay exception at trial and the trial court did not state the basis for its ruling. Nevertheless, we must uphold the court's evidentiary ruling if it is reasonably supported by the record and is correct under any theory applicable to the case. Oveal v. State, 164 S.W.3d 735, 742 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd); Williams v. State, 161 S.W.3d 680, 683 (Tex. App.--Beaumont 2005, no pet.). Statements that are offered for the purpose of explaining how a defendant became a suspect and not for the truth of the matter asserted are not hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Davis v. State, 169 S.W.3d 673, 675 (Tex. App.--Fort Worth 2005, no pet.). Officer Pena was one of the officers responding to the 911 call about the shooting, and she testified with respect to her attempts to investigate the incident. When she responded to the State's question as to "the source of information that Lamar Sanders had a gun on that evening," the court could have determined that she was merely stating how appellant became the primary suspect. While it is true that the State referred to the statement of Quincy in its closing argument as though it was evidence of the truth as to whether appellant had a gun, appellant did not object or request that the jury be instructed that it should only consider the matter as evidence of how appellant became a suspect. We therefore find no abuse of discretion by the trial court.
Sufficiency of the EvidenceFinally, appellant challenges the factual sufficiency of the evidence to sustain his conviction. The standard of review for factual sufficiency of the evidence requires that we review all of the evidence neutrally and determine whether it is so weak as to undermine confidence in the jury's determination or the adverse finding is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under that standard, the factfinder may reasonably infer facts from the evidence before it, credit the witnesses it cares to, disbelieve any or all of the testimony proffered, and weigh the evidence in the manner it chooses. Depauw v. State, 658 S.W.2d 628, 633-34 (Tex. App.--Amarillo 1983, pet. ref'd).
Appellant points out that although Ramona testified that she saw him with a gun and that he fired it, she also stated that it was pointed at the ground, his arm was down, she did not know who shot her, and Kip Roddy got a gun out first. Additionally, appellant emphasizes that Trelina only assumed that appellant shot Ramona because she saw him pull out a gun and that there was testimony that Jeremy was at the scene firing a weapon.
However, Ramona also testified that as she was turning to leave, she saw sparks fly from appellant's gun, heard a gunshot, and felt a sensation like glass cutting her leg. She stated that appellant shot first and that she knew it was appellant who shot her due to the direction the shot came from. Although she averred that both Jeremy and Kip had guns that evening, she never identified anyone but appellant as her attacker. Furthermore, Trelina testified that appellant pointed the gun towards the group of people where Ramona was standing and empty shell casings were found near where appellant was standing. The conflicting evidence as to whether Jeremy stayed at the 2917 address or was at the 2923 address at the time of the shooting and whether appellant actually had a gun was for the jury to resolve as was the credibility of Ramona. A jury could reasonably infer from the evidence that appellant discharged a firearm at or in the direction of Ramona and such a finding does not undermine our confidence in the outcome of the proceeding.
We therefore must and do affirm the judgment of the trial court.
John T. Boyd
Senior Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon 2005).
2. Two other African-Americans were seated on the jury.
ccent 3"/>
NO. 07-10-0181-CV
NO. 07-10-0182-CV
NO. 07-10-0183-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MAY 19, 2010
______________________________
BENNY JOE PALOMO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NOS. 18,223-B, 18,368-B, & 18,369-B; HONORABLE JOHN B. BOARD, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
OPINION ON ABATEMENT
On February 25, 2010, in each referenced cause, pursuant to § 501.014(e) of the Texas Government Code, the trial court signed and entered an Order to Withdraw Inmate Funds.[1] By the withdrawal notifications entered in each cause, the trial court directed the Texas Department of Criminal Justice Institutional Division to withhold the following amounts: (1) $1,810.31 in cause number 18,223-B; (2) $616.50 in cause number 18,368-B; and (3) $616.50 in cause number 18,369-B. Appellant filed pro se notices of appeal on May 5, 2010, challenging the withdrawal notifications. While each withdrawal notification contained the statement that "court costs, fines and fees have been incurred as represented in the certified Bill of Cost/Judgment attached hereto," none contained an attachment of any kind. Furthermore, while the judgment entered in each case provides that "the State of Texas do have and recover of said [Appellant] all court costs in this prosecution expended . . . ," the summary portion of each judgment leaves costs blank.
In Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate trust account pursuant to § 501.014(e) is a civil matter[2] akin to a garnishment action or an action to obtain a turnover order. Harrell, 286 S.W.3d at 317-19. In determining whether Harrell was accorded constitutional due process in that proceeding, the Court balanced three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), and noted that Harrell had "already received some measure of due process." Harrell, 286 S.W.3d at 320.
The three Eldridge factors considered in Harrell are: (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail. The Court found that private interest to be easily ascertainable--"the amount identified in a prior court document", i.e., "the costs assessed when the convicting court sentenced him." Harrell, 286 S.W.3d at 320. Regarding the risk of erroneous deprivation, the Court identified the risk as modest where withdrawal notifications under the statute are based on an amount identified in a previous court document. See Tex. Gov't Code Ann. § 501.014(e)(1)-(6) (Vernon Supp. 2009). The Court noted that "Harrell was . . . notified of the costs assessed when the convicting court sentenced him" and he was free to contest them at the time they were assessed. Harrell, 286 S.W.3d at 320. However, the Court went on to recognize there could be a greater risk of erroneous deprivation in instances in which the amount in the withdrawal notification varied from the amount in the underlying judgment or those instances where there were clerical or other errors. Id. In assessing the final factor, the Government's interest, the Court addressed the fiscal and administrative burdens of added or alternative procedures and concluded that the Texas Department of Criminal Justice would face expending more money than it would collect if it were required to conform to "full-blown" statutory garnishment requirements. In the Court's opinion, such a drawn-out procedure might subvert the Legislature's goal of efficient cost-collection. Id.
Harrell had been convicted of drug charges in 1997 and 2003. In 2006, the convicting trial court signed an order authorizing the Texas Department of Criminal Justice Institutional Division to withdraw funds from his inmate trust account to pay for court costs and fees for appointed counsel. Harrell was provided with copies of the withdrawal notifications. He then moved to rescind the withdrawal notifications alleging denial of due process. His motion was denied, and his direct appeal to this Court was dismissed for want of jurisdiction on the ground that no statutory mechanism was available for appealing a withdrawal notification. See Harrell v. State, Nos. 07-06-0469-CR and 07-06-0470-CR, 2007 Tex. App. LEXIS 6416, at *3 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex. 2008).
In reversing this Court and rendering judgment affirming the trial court's order denying Harrell's motion to rescind, the Supreme Court held that due process entitles an inmate to receive notice[3] and an opportunity to be heard, even though those requirements might be accorded the inmate after funds are withdrawn. Harrell, 286 S.W.3d at 321. It concluded that because Harrell had received notice (a copy of the withdrawal notification) and an opportunity to be heard[4] (the motion to rescind), he had received all that due process required. Id. The Court added, "[t]he Constitution does not require pre-withdrawal notice or a comprehensive civil garnishment proceeding." Id.
On the limited record before this Court, we are unable to determine if Appellant has been given all that due process requires. Specifically, we are unable to determine whether Appellant has been (1) provided with the necessary underlying documentation and (2) afforded an adequate opportunity "to compare the amounts assessed by the trial court [in the underlying criminal proceedings] to the amount[s] withdrawn and alert the court of any alleged errors." Id. Because the trial court has not entered an appealable order either granting or denying a motion to confirm, modify, correct, or rescind the prior withdrawal notification, we find Appellant's notices of appeal to be premature. See Williams v. State, __ S.W.3d __, Nos. 07-10-0091-CV, 07-10-0100-CV, and 07-10-0101, 2010 Tex. App. LEXIS, 2998, at *8-9, (Tex.App.--Amarillo April 22, 2010, no pet. h.).
Accordingly, this Court sua sponte abates this appeal for 180 days from the date of this order to allow Appellant time to take such action as is necessary to (1) obtain the necessary documentation of the underlying court order; (2) compare the underlying court order to the withdrawal notification; (3) file an appropriate motion to modify, correct, or rescind the withdrawal notification; (4) present that motion to the trial court; (5) schedule any necessary hearing; and (6) obtain from the trial court a final appealable order addressing that motion. See Tex. R. App. P. 27.2. See also Iacono v. Lyons, 6 S.W.3d 715 (Tex.App.--Houston [1st Dist.] 1999, no pet.). All appellate timetables will begin to run from the date a final, appealable order is signed.
It is so ordered.
Per Curiam
[1]This document is not an "order" in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding. The controlling statute, Tex. Gov't Code Ann. § 501.014(e) (Vernon Supp. 2009), describes the process as a "notification by a court" directing prison officials to withdraw sums from an inmate's trust account, in accordance with a schedule of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay by order of the court." See id. at § 501.014(e)(1)-(6). See also Harrell v. State, 286 S.W.3d 315, 316, n.1 (Tex. 2009). This document is more akin to a judgment nisi. A judgment nisi, commonly used in bond forfeiture proceedings, is a provisional judgment entered when an accused fails to appear for trial. A judgment nisi triggers the issuance of a capias and it serves as notice of the institution of a bond forfeiture proceeding. It is not final or absolute, but may become final. See Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App. 2008). Nisi means "unless," so a judgment nisi is valid unless a party takes action causing it to be withdrawn. Id. Similarly, a withdrawal notification issued pursuant to § 501.014(e), triggers a trust fund withdrawal, serves as notice of the collection proceeding, and continues to operate unless the inmate takes action causing the notification to be withdrawn. Therefore, rather than refer to that document as an order, we prefer to use the term "withdrawal notification" to avoid confusion with an underlying court order or judgment ordering the payment of a sum falling within at least one of the six priority categories listed in the statute.
[2]See Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App. 2008) (holding that orders directing withdrawal of funds from inmate trust accounts is not a criminal matter).
[3]In assessing the risk of erroneous deprivation of property, the Supreme Court in Harrell considered the risk to be "modest" because notice under the statute is "based on an amount identified in a prior court document." Harrell, 286 S.W.3d at 320 (emphasis added). The Court went on to comment that the risk would be minimized if the trial court included a copy of the underlying order or judgment that assessed costs when it issues a withdrawal notification. We wholeheartedly adopt the Supreme Court's recommendation in this regard. We express no opinion as to whether a clerk issued bill of costs or a statement in an underlying court document which merely assesses "costs of court" against the defendant without stating the basis or amount of those costs constitutes adequate notice for purposes of due process. We further note that the mere assessment of attorney fees does not make them collectable through this process. Under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees only if the court makes a fact-specific determination that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009). See also Mayer v. State, ___ S.W.3d ___, No. PD-0069-09, 2010 Tex. Crim. App. LEXIS 100, at *11 (Tex.Crim.App. March 24, 2010).
[4]While the court of appeals's opinion is silent on whether a hearing was held on Harrell's motion to rescind, Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex. App. LEXIS 6416, at *3 (Tex.App.--Amarillo, Aug. 13, 2007), revd, 286 S.W.3d 315 (Tex. 2008), the trial court did enter a specific order denying his motion to rescind the withdrawal notification. We read the Supreme Court's opinion as assuming that, by this process, Harrell was given "an opportunity to be heard." Harrell, 286 S.W.3d at 321.