AFFIRMED
FEBRUARY 28, 1990
NO.10-89-069-CR
Trial Court
# 89-37-C
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
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IRA JOE CARTER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
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From 54th Judicial District Court
McLennan County, Texas
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O P I N I O N
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A jury convicted Appellant of aggravated robbery and assessed his punishment at ninety-nine years in prison. See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon Supp. 1990). Appellant complains that the evidence was insufficient to establish that he was the perpetrator of the offense. He also asserts that the court erred when it denied his Batson motion, and when it charged the jury on the punishment range for both aggravated robbery and aggravated robbery by a habitual offender. Finally, he seeks to supplement the record to reflect an alleged statement made by a prosecutor in reference to the race of the parties. The judgment will be affirmed.
Appellant claims in point three that the evidence was insufficient to support his conviction because it failed to establish that he was the perpetrator of the offense. The standard on appeal is whether, viewing the evidence in the light most favorable to the conviction, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). Additionally, when reviewing circumstantial evidence, the question is whether the evidence excludes every other reasonable hypothesis except the defendant's guilt. Id.
At approximately 10:00 p.m. on December 20, 1988, Vicki Looney and her nine-year-old son were robbed in the parking lot of a Target store. Looney testified that her assailant was a dark-skinned black man, and that she saw his face. She also stated that he wore a "shirt jacket type thing." Although she admitted that she had been unable to select his picture from a photographic array, she explained that the picture in the array appeared to depict someone with lighter skin than Appellant's. Furthermore, when she asked for a "live" line-up, officers were unable to comply because Appellant had already "bonded out" of jail. When Looney identified Appellant at trial, she did so without "any doubt."
As Ronald Williamson exited Target that night, he noticed a black man crouched beside a car in which a white woman and child were sitting motionless. Williamson got into his car, parked approximately three spaces from the car he was observing, and watched until the black man left. Williamson then drove his car slowly after the man, who was wearing a dark jacket, and observed him getting into another automobile which drove away. Although Williamson was unable to observe the man clearly enough to identify him, he described the black man as about "six feet tall with a medium build." Further, he said the black man rode away in a 1977 orange Mustang with dealer's tag number P11021.
Officers Freeman and Scarbrough, who traced the tag number to Darlene Norwood, began a "stake-out" on her residence. Freeman spotted the orange Mustang around midnight, and pursued the vehicle without stopping it until Officer Scarbrough could back him up. The Mustang entered the HEB parking lot where officers arrested Appellant, who was driving the car, and Norwood, the passenger. Both officers testified that Appellant was wearing a dark jacket at the time of his arrest.
Based on this testimony and the record as a whole, the jury could have determined beyond a reasonable doubt that Appellant was the perpetrator of the crime charged. See id. Furthermore, the record as a whole excludes every other reasonable hypothesis except Appellant's guilt. See id. Point three is overruled.
At the conclusion of the voir dire examination, but before the jury was sworn, Appellant made a Batson motion. He met his burden of showing that: (1) he is a member of a cognizable racial group; (2) the prosecutor exercised a peremptory challenge to exclude a member of that racial group from the jury; and (3) Barbara Holmes was one of only three blacks within the "strike zone," and that one of the three blacks was stricken for cause. See Batson v, Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 1723, 90 L. Ed. 2d 69 (1986). The prosecutors explained their reasons for striking Holmes as follows:
Your Honor, in response, the State of course denies that we excluded anyone on the basis of race from the jury selection process. There were only two black members of the panel subject to peremptory strikes. The State did exercise a peremptory strike on one black person. Mrs. Holmes, to which the defense refers, is a young, black female who was inattentive throughout the entire voir dire process, not only for the State but for the defense. She continually chewed gum, looked around the room, did not pay attention to questions that were asked of any juror, much less herself. She is likely because of her age to be weak on the punishment issue, and the State excluded her on those bases, and not because of her being a member of a minority race.
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I don't believe there were any young white females of approximately the same age. I do not know whether we struck any white females for any reason that had anything to do with race at all. I deny that we did.
Some only had one child. Most other jurors that we struck had no children or few children. That was the factors in striking her.
In point two, Appellant complains that the court erred when it overruled his Batson motion.
When reviewing the decision below, the evidence must be considered in the light most favorable to the court's rulings, and as long as those rulings are supported by the record, they will not be disturbed on appeal. See Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988). This is because the trial judge is in a better position to observe the behavior and statements of the veniremembers and the attorneys. Glenn v. State, 754 S.W.2d 290, 292 (Tex. App.--Houston [1st Dist.] 1988, no pet.). Once a defendant establishes a prima facie case, the burden shifts to the state to give "clear and reasonably specific" explanations of "legitimate reasons" for the use of its peremptory challenges. Whitsey v. State, No. 1121-87, slip op. at p. 9 (Tex. Crim. App., May 10, 1989) (pending on rehearing).
The presence of any of the following factors suggests that a peremptory challenge was exercised impermissibly:
1. The reason given for the peremptory challenge is not related to the facts of the case;
2. There was a lack of questioning to the challenged juror or a lack of meaningful questions;
3. Disparate treatment--persons with the same or similar characteristics as the challenged juror were not struck;
4. Disparate examination of the members of the venire, i.e., questioning a challenged juror so as to evoke a certain response without asking the same question of other panel members; and
5. An explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.
Id. However, the state may exercise its peremptory challenges on the basis of the prosecutor's past experience or legitimate "hunches," as long as the motive is not racial discrimination. Keeton, 749 S.W.2d at 865.
Here, Appellant has failed to demonstrate to the court below or to this court the existence of any factor which would suggest that the prosecutors used their challenges impermissibly. The prosecutors explained that Holmes was inattentive, and that based on their experience she would be "weak" on punishment. Considering the evidence in the light most favorable to the court's ruling, the court did not err when it overruled Appellant's Batson motion. Point two is overruled.
At the punishment stage, Appellant pleaded "true" to both of the enhancement allegations contained in the indictment. However, in its charge the court informed the jury that they were to assess punishment for aggravated robbery, and instructed them as follows:
You are instructed that the punishment for the offense of Aggravated Robbery is by confinement in the Texas Department of Corrections for Life, or for any term of years, not less that five years, nor more than 99 years, and in addition thereto, [Appellant] may be assessed a fine in any amount not to exceed $10,000.00.
See TEX. PENAL CODE ANN. § 12.32 (Vernon Supp. 1990). The court also instructed the jury that, because Appellant pleaded "true" to the habitual-offender portion of the indictment, his punishment must be assessed "at confinement in the Texas Department of Corrections for Life, or for any term of years not less than twenty five years, nor more than 99 years." See id. at § 12.42(d).
Appellant did not object to the punishment charge. His first point is that the court erred when it instructed the jury on the punishment range for both aggravated robbery and aggravated robbery by a habitual offender. Because the punishment range for aggravated robbery includes a possible fine, he claims that the court submitted to the jury a penalty range more severe than that authorized for aggravated robbery by a habitual offender. Even though the jury assessed punishment within the lawful range for aggravated robbery by a habitual offender, Appellant nevertheless argues that the charge was fundamentally erroneous and deprived him of a fair and impartial trial because it authorized the jury to consider a fine in assessing punishment. See Uribe v. State, 688 S.W.2d 534, 539 (Tex. Crim. App. 1985); TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 1990). Whenever a verdict was unauthorized by law, the rationale followed in the Uribe line of cases was that the appellate court did not have the legal authority to reform the verdict. Bogany v. State, 661 S.W.2d 957, 958 (Tex. Crim. App. 1983). Additionally, the appellate court would not presume that the jury would have assessed the same punishment if the correct instruction on punishment had been provided. Uribe, 688 S.W.2d at 538.
In 1985, article 37.10 of the Code of Criminal Procedure was amended by the addition of subsection (b), which provides:
(b) If the jury assesses punishment in a case and in the verdict assesses both punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense, the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law. If the trial court is required to reform a verdict under this subsection and fails to do so, the appellate court shall reform the verdict as provided by this subsection.
TEX. CODE CRIM. PROC. ANN. art. 37.10(b) (Vernon Supp. 1990). This provision allows the trial or appellate court to reform a verdict and judgment containing an unauthorized punishment, a defect which under prior law would have rendered the verdict void. Ex parte Johnson, 697 S.W.2d 605, 607 (Tex. Crim. App. 1985).
Here, there was no defect in the judgment because the jury's assessment of punishment of ninety-nine years in prison was proper under the habitual-offender law. See TEX. PENAL CODE. ANN. § 12.42(d) (Vernon Supp. 1990). Because a defect in a verdict may now be cured by the trial or appellate court, consideration by the jury of a more severe punishment than authorized by law is no longer fundamental error. Therefore, the critical inquiry is whether Appellant suffered egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (on rehearing).
Based on Appellant's plea of "true" to burglary of a habitation and burglary of an office, and on the other evidence introduced at the punishment phase, which included other prior felony offenses committed by him, the assessment of punishment at ninety-nine years was clearly warranted. Appellant did not suffer egregious harm from the receipt of such punishment. Point one is overruled.
In point four, Appellant requests supplementation of the record to include an alleged statement made by a prosecutor referring to the race of the parties. Nothing in the record indicates that such a statement was ever made. Point four is overruled because Appellant has failed to produce a record on appeal complete enough to show error. See TEX. R. APP. P. 50(d). The judgment is affirmed.
BOB L. THOMAS
DO NOT PUBLISHChief Justice