11th Court of Appeals
Eastland, Texas
Opinion
Cecil Keith Hayes
Appellant
Vs. No. 11-02-00348-CR B Appeal from Dallas County
State of Texas
Appellee
The jury found appellant guilty of aggravated robbery and sentenced him to confinement for a term of 70 years and assessed a $10,000 fine. Appellant raises five points of error on appeal. We affirm.
Appellant’s conviction arises from a robbery occurring outside of a coin-operated laundry on October 7, 2001. The victim, a high school student, was approached by a man as she stood outside of the laundry. The man grabbed her arm and stuck a gun in her side. He ordered her to go into an adjacent alley. He then ordered her to give him the keys to her car. When the victim denied that the keys were in her possession, the man pointed the gun at her head and ordered her to give him all of her money. After the victim handed the robber eight dollars in quarters, the robber forcibly stuck his tongue in the victim’s mouth and then fled. The victim identified appellant as the robber both in a photographic lineup and at trial. The sufficiency of the evidence is not challenged.
In his first point, appellant, an African-American, argues that the trial court erred in overruling his Batson[1] objections to the State’s peremptory challenges to all African-American veniremembers. Appellant contends that the State’s challenges to these veniremembers were racially motivated. The use of peremptory challenges to exclude persons from the petit jury because of race violates the equal protection clause of the 14th Amendment to the U.S. Constitution. Batson v. Kentucky, supra; Ladd v. State, 3 S.W.3d 547, 563 (Tex.Cr.App.1999), cert. den’d, 529 U.S. 1070 (2000). The party objecting under Batson must make a prima facie showing of discriminatory motives. If the objecting party makes a prima facie showing, then the burden shifts to the other party to come forward with a race-neutral explanation. The objecting party may rebut the race-neutral explanation. The trial court must then decide whether the objecting party has proven purposeful discrimination. Because the trial court’s decision frequently turns on an evaluation of credibility, we give the trial court’s decision great deference and will not disturb it unless it is clearly erroneous. Herron v. State, 86 S.W.3d 621, 630 (Tex.Cr.App.2002).
The State offered the following race-neutral explanations and reasons for striking the veniremembers:
(1) Veniremember No. 6. The veniremember was asleep for a large portion of the voir dire proceedings. The veniremember appeared to be “extremely grandmotherly,” did not respond to questions, and did not appear to understand the proceedings.
(2) Veniremember No. 11. The veniremember gave conflicting answers in response to questions. The veniremember had trouble staying awake. A relative of the veniremember is currently in prison, and the veniremember believed that rehabilitation was the primary purpose of punishment.
(3) Veniremember No. 15. The veniremember did not respond to the judge=s questions. The veniremember had a bad veniremember rating in a previous case. The veniremember displayed hostile body language to the prosecutor. The veniremember also believed that rehabilitation was the primary purpose of punishment.
(4) Veniremember No. 16. The veniremember gave inconsistent answers. The veniremember also believed that rehabilitation was the primary purpose of punishment. A relative of the veniremember was awaiting prosecution in a pending case.
(5) Veniremember No. 22. The veniremember gave false answers about his own criminal record, and the veniremember also believed that rehabilitation was the primary purpose of punishment.
(6) Veniremember No. 26. The veniremember was curt in her answers to the prosecutor=s questions. The veniremember=s nephew was serving a 40-year sentence for robbery, and the veniremember also believed that rehabilitation was the primary purpose of punishment.
(7) Veniremember No. 35. The veniremember gave inconsistent answers and would require the State to present the testimony of more than one witness in order to obtain a conviction. The veniremember was unemployed.
(8) Veniremember No. 46.[2] The veniremember gave inconsistent answers. The veniremember also had friends or family members that had been arrested, charged, or convicted.
Appellant responded to the reasons given by the State by arguing that prosecutors asked incomplete questions during voir dire as a tool to produce inconsistent responses which could serve as reasons for striking veniremembers. Appellant also disputed the State=s contentions that some of the veniremembers were sleeping. Appellant further asserted that some of the veniremembers which the State did not strike also indicated that they believed rehabilitation was the primary purpose of punishment.
The trial court made detailed findings on the record regarding the State=s peremptory challenges and the State=s reasons. The trial court determined that the State did not question the veniremembers in an unfair manner as argued by appellant. With respect to Veniremember Nos. 11, 16, 35, and 46, the trial court agreed with the State=s assertion that these veniremembers gave inconsistent answers. The trial court also found that Veniremember No. 22 did not disclose his criminal background when asked to do so.[3] With respect to Veniremember No. 15, the trial court accepted the State=s perception of hostility from the veniremember as a race-neutral explanation. The trial court also agreed with the State=s contention that the manner in which Veniremember No. 26 responded to the State=s questions indicated hostility. The trial court disallowed the State=s peremptory challenge to Veniremember No. 6, thereby permitting Veniremember No. 6 to serve on the jury.
The reasons given by the prosecutor were race-neutral. See Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Cr.App.1993), cert. den’d, 510 U.S. 1215 (1994)(rehabilitation is a primary goal for punishment); Earhart v. State, 823 S.W.2d 607 (Tex.Cr.App.1991)(unemployment); Dorsey v. State, 940 S.W.2d 169, 175 (Tex.App. B Dallas 1996, pet’n ref’d)(sleeping, inattentiveness, relatives who have been convicted or charged with a criminal offense); Ivatury v. State, 792 S.W.2d 845, 848 (Tex.App. - Dallas 1990, pet’n ref’d)(sleeping during voir dire); Anderson v. State, 758 S.W.2d 676, 680 (Tex.App. - Fort Worth 1988, pet’n ref’d)(trouble with the law); Chambers v. State, 724 S.W.2d 440, 442 (Tex.App. - Houston [14th Dist.] 1987, pet’n ref’d)(body language).
Appellant argues in his brief that the prosecutor engaged in disparate treatment of the minority veniremembers. The record reveals that the trial court conducted an extensive review of the reasons offered by the State for striking the minority veniremembers. This review required the trial court to make an evaluation of the prosecutor’s credibility and its own observation of the veniremembers. The trial court’s ruling was not clearly erroneous. Appellant’s first point of error is overruled. See Pondexter v. State, 942 S.W.2d 577 (Tex.Cr.App.1996), cert. den’d, 552 U.S. 825 (1997).
Appellant argues in his second point of error that the trial court erred in denying his motion to suppress the admission of two written confessions.[4] We have recently considered another appeal brought by appellant from a conviction for aggravated robbery. Hayes v. State, No. 11-02-00244-CR, 2003 WL 2010949 (Tex.App. B Eastland 2003, pet’n filed)(not designated for publication) (hereinafter referred to as Cause No. 11-02-00244-CR). Appellant’s contention under his second point of error in this appeal is factually identical to an issue addressed in Cause No. 11-02-00244-CR. Appellant appealed the trial court’s refusal to suppress three written confessions in Cause No. 11-02-00244-CR. The two written confessions at issue in this appeal were also considered in Cause No. 11-02-00244-CR. The trial court in this appeal did not conduct a hearing on appellant’s motion to suppress. Instead, the parties submitted the reporter’s record from the suppression hearing conducted in Cause No. 11-02-00244-CR. The trial court simply accepted the rulings made in the underlying trial of Cause No. 11-02-00244-CR without receiving any additional evidence or argument of counsel. Accordingly, appellant’s second point of error in this appeal involves two of the same written confessions and the same appellate record that were considered in Cause No. 11-02-00244-CR.
Appellant urges that his two written confessions were involuntary because the detectives did not honor his request for an attorney and because the detectives promised not to file all the cases they had against appellant if he would cooperate with them. When an accused requests counsel, all interrogations must cease unless an attorney is present. Miranda v. Arizona, 384 U.S. 436 (1966). Also, certain promises made to an accused by persons in authority that would likely influence the accused to speak untruthfully can render a confession involuntary. See Janecka v. State, 937 S.W.2d 456, 466 (Tex.Cr.App.1996), cert. den’d, 522 U.S. 825 (1997). At a suppression hearing, the trial court is the trier of fact and assesses the witnesses’ credibility and the weight to be given to their testimony. We afford almost total deference to a trial court’s findings of historical fact that are supported by the evidence. Herron v. State, supra at 627. Furthermore, we defer to a trial court’s application of law to fact rulings if they turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997).
At the pretrial suppression hearing, the State presented the testimony of police officers William Ellstrom, Walter Hughey, and David Westfallen. Appellant testified that he requested an attorney and that he was told that other cases would not be filed against him if he cooperated with the officers and helped them clear the books. The officers refuted appellant’s testimony. The trial court made oral findings and conclusions in the record. The trial court found beyond a reasonable doubt that appellant never asked for an attorney or never asked to terminate the interview. The trial court found that, after being advised of his rights, appellant intelligently, knowingly, and voluntarily waived those rights. The court expressly found that no promises were made and no agreements were made not to file other cases in exchange for appellant’s statements. The findings of the trial court are supported by the record; therefore, the trial court acted within its discretion in holding that the confessions were admissible. Appellant’s second point of error is overruled. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Cr.App.1996).
Appellant’s third point of error addresses the admission of impeachment evidence. Appellant testified in his own behalf during the guilt/innocence phase of the trial. Trial counsel asked appellant during direct examination if appellant recalled either his whereabouts or activities on the date of the alleged offense. Appellant testified that he did not have any specific recollection. At the conclusion of appellant’s direct examination, the prosecutor informed the trial court outside the presence of the jury of the State’s desire to cross-examine appellant about his testimony in the underlying trial of Case No. 11-02-00244-CR. The State sought to impeach appellant’s failure to recall any activities with his prior testimony where he admitted attempting to rob another victim with a gun on the same date.[5] Appellant lodged the following objection to the State’s intent to impeach appellant:
Well, I would object to the State being able to go into the robbery of [the other victim] on October 7th as a way of impeaching [appellant] when he says he doesn’t remember anything specific about October 7th.
The trial court overruled this objection.[6]
Appellant sought to deny the charge brought against him by creating the impression during his direct examination that he did not recall any of his activities on the date of the alleged offense. The State is permitted to correct a “false impression” elicited on direct examination by the defense. See Wheeler v. State, 67 S.W.3d 879, 885 (Tex.Cr.App.2002); Saglimbeni v. State, 100 S.W.3d 429, 433-34 (Tex.App. B San Antonio 2002, pet’n ref’d). This rule of correction extends to collateral matters to which the witness has voluntarily testified. Lopez v. State, 928 S.W.2d 528, 531 (Tex.Cr.App.1996); Poole v. State, 974 S.W.2d 892, 905 (Tex.App. ‑ Austin 1998, pet’n ref’d). The State may use extraneous offense evidence to correct the false impression if the evidence tends to correct the false impression. Wheeler v. State, supra at 885; Saglimbeni v. State, supra at 433-34 (“In most false impression cases, the general rule is that ‘[w]here a false picture is presented by the defense, the prosecution may impeach the defense witnesses’ testimony by introduction of extraneous offenses.’”) The trial court did not err in permitting the State to cross-examine appellant about the incident involving the other victim occurring on October 7, 2001, when appellant voluntarily testified that he could not recall his activities on that date. Appellant’s third point of error is overruled.
Appellant’s fourth point of error attacks the trial court’s admission of appellant’s “book-in” photographs. Appellant objected to the admission of the photographs solely on the basis that they were “not material in any respect.” He additionally alleges on appeal that the admission of the photographs caused unfair prejudice.
The record reveals a difference between the description given by the victim of her assailant and appellant’s appearance at trial. TEX.R.EVID. 401 provides that evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The book-in photographs were, therefore, relevant to the issue of the victim’s identification of appellant. Moreover, the admission of the photographs did not cause unfair prejudice. See TEX.R.EVID. 403. The book-in photographs consisted of a front-view and side-view image of appellant’s head from the neck up. The images are very similar to the photograph of appellant contained in the photo lineup provided to the victim, a copy of which was admitted into evidence without objection. The fact that the book-in photographs were associated with appellant’s arrest was of little consequence given the fact that the jury was well aware that appellant had been arrested for the offense for which he was being tried. Appellant’s fourth point of error is overruled.
As was the case with appellant’s second point of error, his fifth point of error concerns the identical issue and the same appellate record considered in Cause No. 11-02-00244-CR. Appellant complains that the trial court erred at the punishment stage of the trial by admitting the testimony of Terri Coplin. Appellant contends that an extraneous offense was not proved beyond a reasonable doubt. Specifically, appellant cites Harrell v. State, 884 S.W.2d 154, 160 (Tex.Cr.App.1994), and argues that the trial court erred in its initial determination that a jury could reasonably find beyond a reasonable doubt that appellant committed the extraneous offense against Coplin. The court in Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Cr.App.1996), held that a trial court’s threshold determination of admissibility under TEX. CODE CRIM. PRO. ANN. art. 37.07, § 3(a) (Vernon Supp. 2003) is based on relevancy, not on reasonable doubt determination, and is reviewed by this court under an abuse of discretion standard. The court stated:
Consequently, we find that the trial court is deemed the authority on the threshold issue of admissibility of relevant evidence during the punishment phase of a trial, while the jury, as the “exclusive judge of the facts,” i.e. finder of fact, determines whether or not the burden of proof for those offenses presented has been satisfied by the party offering the evidence.
At the hearing to determine the admissibility of several extraneous offenses, on direct examination, Coplin identified appellant as the person who had robbed her while she was in her car. On cross-examination, Coplin admitted that she could not ”absolutely positively” say that appellant was the man who robbed her. Coplin stated that she did not get a good look at the man, but that “[i]t just [felt] like him.” She stated that appellant looked “familiar” to her and that she felt “like he certainly could be the man that robbed” her. Although not unequivocal, Coplin’s identification testimony made it “more probable” that appellant was the robber; and, thus, the evidence was relevant. See Rule 401. The trial court instructed the jury not to consider the extraneous offenses unless the jury found that the State proved them beyond a reasonable doubt. The trial court’s decision to admit the evidence was not an abuse of discretion. Appellant’s final point of error is overruled.
The judgment of the trial court is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
September 4, 2003
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]Batson v. Kentucky, 476 U.S. 79 (1986).
[2]The State offered an explanation for striking Veniremember No. 46. The trial court noted on the record that this strike was immaterial because Veniremember No. 46 would not have been reached in the jury selection process.
[3]Appellant does not challenge the State=s contention that Veniremember No. 22 had a criminal record.
[4]Appellant gave the first confession at 8:10 a.m. on November 7, 2001. He stated as follows in the first confession: AI Cecil Hayes took money from a lady in Garland as she was leaving a laundry mat.@ He gave the second confession at 11:30 a.m. on November 7, 2001. He stated as follows in the second confession:
I approached a lady at a laundry mat and asked her To Give me a Jump start. She let me in her car when I ask her for her money she was very afraid I assured her that I would not hurt her she gave me her money with was $10 Dollar in quarters I ask her how she would finish Drying her clothes she said she didn=t know I gaver $2 in quarters back Gave her a hug and left her car.
[5]Appellant did not specifically testify in the prior proceeding that he robbed the other victim on October 7, 2001. However, the other victim testified that the incident occurred on October 7, 2001, and appellant admitted that the victim=s account of the events were accurate.
[6]Appellant did not object to the manner in which the State subsequently cross-examined him about his prior testimony.