Roy White v. State

White v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-269-CR

     ROY WHITE,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 12,802

                                                                                                    

O P I N I O N

                                                                                                    

      Roy White was convicted of aggravated assault against an employee of the Texas Department of Criminal Justice-Institutional Division and sentenced to twenty years in prison. See Tex. Penal Code Ann. § 22.02 (Vernon Supp. 1993). On appeal, he raises one point of error: that the trial court's ruling in the Batson hearing was clearly erroneous. White argues that the trial court improperly denied his motion to dismiss the array. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989).

       Case law regarding Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), continues to be developed. The correct standard of review for a Batson hearing is the "clear error standard." Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992) (citing Hernandez v. New York, U.S. , 111 S. Ct. 1859, 1871, 114 L. Ed. 2d 395 (1991)). The standard is applied by reviewing the trial court record including the voir dire, racial makeup of the venire and the explanations of the prosecutor. The finding of the judge must be supported by the record so that it is not clearly erroneous. Vargas, 838 S.W.2d at 554. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Whitsey v. State, 796 S.W.2d 707, 721 (Tex. Crim. App. 1990) (on rehearing) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948)). We find no such error here.

      The party raising a Batson challenge must first make a prima facie showing that the opposing party has made its preemptory strikes with discriminatory purpose. Batson, 106 S.Ct. at 1723, see also Emerson v. State, No. 1139-90, slip op. at 2 (Tex. Crim. App. Feb. 24, 1993); Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App.), cert. denied, 111 S. Ct. 2875, 115 L. Ed. 2d 1038 (1991). The burden then shifts, requiring the opposing party to provide non-discriminatory explanations for its preemptory strikes. The explanations must be clear and reasonably specific to the veniremember challenged. Whitsey, 796 S.W.2d at 713. The court then decides whether the party raising the issue has succeeded in sustaining its burden of persuasion; that is, were the non-discriminatory reasons provided by the opposing party merely pretextual. Id. at 716. The trial court must adequately preserve both its reasoning and the evidentiary basis for its decision on the record. Williams, 804 S.W.2d at 101.

      The trial court found that White, who is black, made a prima facie showing of discrimination by the State when the prosecutor used a preemptory strike against Veniremember Number 21, who was the only black veniremember. In light of the court's language in Keeton v. State, 724 S.W.2d 58, 65 n.5 (Tex. Crim. App. 1987), a party may not eliminate any potential juror with discriminatory purpose.

        The State asked only cursory questions to Veniremember Number 21. White argues that this lack of examination by the State implicates the holdings in Whitsey and Emerson. This case is distinguishable from both. In each of those cases, the prosecution failed to ask veniremembers any questions that would have assisted in determining whether the veniremember did indeed have those qualities ascribed to him at the later Batson hearing. Each prosecutor offered the explanation that the veniremember in question was a teacher and that teachers tend to be liberal, but failed to provide evidence that this generalization applied to the individual in question. In both cases the Court of Criminal Appeals found this explanation, based on group bias where the group trait is not shown to apply to the individual veniremember, deficient as a non-discriminatory reason.

      In the present case, the State introduced evidence of a non-discriminatory reason for the strike. The prosecutor offered data from the juror information card as evidence that the veniremember was a clergyman. See Cornish v. State, 848 S.W.2d 144 (Tex. Crim. App. 1993) (holding that juror information cards, though not formally introduced into the record, were nevertheless part of the record on appeal). The prosecutor contended that members of the clergy tended to be more forgiving and thus less useful to the State. Although the prosecutor did not directly examine the veniremember on this point, he did offer other evidence that the characteristics ascribed to the veniremember were sufficiently individualized to show a non-discriminatory motive. An investigator for the District Attorney's office testified at the Batson hearing that the church where Veniremember Number 21 was employed as associate pastor had, within that period of employment, declined to prosecute a felony involving theft of $2,000.00 of the church's money. We hold that direct examination of the veniremember is not absolutely required if there is other evidence in the record that tends to show the veniremember possesses the group trait ascribed to him.

             The trial court found the evidence of non-discriminatory purpose compelling and amply supported its reasoning in the record. We hold the court's denial of White's motion to dismiss the array was not clearly erroneous. White's point is overruled.

      We affirm.

 

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed June 2, 1993

Do not publish

cence charge regarding evidence of extraneous offenses (including convictions).  One instructed the jury that it could not consider this evidence for any purpose unless the jury was convinced beyond a reasonable doubt that James had committed the extraneous offenses.  The other instructed the jury that this evidence should be considered, if at all, only for evaluating the weight to be given James’s testimony.

          Because the court provided these instructions to the jury, James cannot show “a reasonable probability that, but for counsel’s [failure to request a limiting instruction], the result of the proceeding would have been different.”  See Andrews, 159 S.W.3d at 102 (quoting Strickland v. Wash., 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984)); Rodriguez, 129 S.W.3d at 560-61; Walker v. State, 4 S.W.3d 98, 106-07 (Tex. App.—Waco 1999, pet. ref’d).

          Regarding counsel’s failure to request an instruction on the lesser-included offense of manslaughter, counsel is not ineffective in failing to request such an instruction if it is not supported by the evidence.  See Flores v. State, 42 S.W.3d 277, 282 (Tex. App.—Corpus Christi 2001, no pet.).

          Under the evidence, no rational trier of fact could have found that, if James was guilty, he was guilty of only manslaughter because no rational trier of fact could have concluded that James acted only recklessly.  See Jackson v. State, 115 S.W.3d 326, 330-31 (Tex. App.—Dallas 2003, no pet.); Ahrens v. State, 43 S.W.3d 630, 635-36 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).  Thus, James would not have been entitled to an instruction on the lesser-included offense of manslaughter.  Id.  Accordingly, we cannot say his counsel rendered ineffective assistance by failing to request such an instruction.  See Flores, 42 S.W.3d at 282.  Therefore, we overrule James’s fifth point.

Ineffective Assistance—Punishment

          James contends in his sixth point that he received ineffective assistance of counsel during the punishment phase because counsel: (1) failed to present mitigating evidence; and (2) applied the parole law to James’s potential sentence during closing argument.

          A claim that counsel was ineffective for failing to present mitigating evidence cannot succeed on direct appeal if the appellant does not identify the particular evidence which counsel failed to present and if counsel is not given an opportunity to explain his trial strategy.  See Bone, 77 S.W.3d at 834-35.  Here, James observes in his brief only generally that “a number of” his friends were available to testify, that his brother and co-defendant John “could have been asked some questions that might have helped humanize [James],” and that he “could have testified himself with regard to whatever remorse he felt about the complainant’s death.”

          Ineffective assistance claims must “be firmly founded in the record.”  Id. at 835 (quoting Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)).  James’s general allegations of potential mitigating evidence do not satisfy this test.  See Bone, 77 S.W.3d at 834-35.

          The record reflects that counsel tried to use the parole law to James’s advantage by encouraging the jury to assess the minimum punishment of twenty-five years because he would be seventy-two years’ old on the earliest date at which he would be eligible for parole.[2]  We can only speculate as to the wisdom of this strategy. However, “that a trial strategy does not work does not mean that counsel was ineffective.”  See Johnson v. State, 2004 Tex. App. LEXIS 5939 at **14-15 (Tex. App.—Houston [1st Dist.] July 1, 2004, pet. ref’d).  Accordingly, we overrule James’s sixth issue.

We affirm the judgment.

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed October 12, 2005

Do not publish

[CRPM]

 

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[1]           John Cooper’s appeal is docketed in this Court under cause no. 10-04-00170-CR.

[2]           James was indicted as an habitual felon.  See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2004–2005).  Because this was a 3g offense, James will not be eligible for parole until he has served one-half of his sentence.  See Tex. Code Crim. Proc. Ann. arts. 37.07, § 4(a), 42.12, § 3g(a)(1)(A) (Vernon Supp. 2004–2005).