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Opinion filed June 15, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00128-CR
__________
RAYNARD DEWAYNE ALLEN, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F-0372853-J
O P I N I O N
A jury convicted appellant, Raynard Dewayne Allen, of aggravated robbery. The trial court assessed punishment at twenty-two years confinement in the Institutional Division of the Texas Department of Criminal Justice. We find no error and affirm.
Background Facts
The State alleged that Allen robbed Hubert Chandler at gunpoint on or about June 14, 2003. Chandler and a coworker were working the graveyard shift at a 7-Eleven in Oak Cliff. They saw four individuals putting on masks outside the store. Chandler testified that Allen entered the store with a gun and started saying, A[D]rop out.@ Chandler understood this to mean that Allen wanted him to open the register because Allen was pointing the gun at him. Allen also demanded the money in the safe, but Chandler could not open it. Chandler was afraid that he would be shot if he did not comply, and he gave Allen the money from the register.
Chandler recognized Allen because he had seen him in the store before. Chandler later identified Allen in a photo lineup and in court. The jury found Allen guilty as charged in the indictment. The trial court conducted a punishment hearing and sentenced Allen to twenty-two years confinement in the Texas Department of Criminal Justice, Institutional Division.
Issues
Allen challenges his conviction with four issues. Allen alleges first that the trial court erred by denying his Batson[1] challenge; second, that he was erroneously denied the opportunity to cross-examine an accomplice witness about a plea bargain arrangement; third, that the trial court erred by not granting a mistrial because of prosecutorial misconduct during closing argument; and four, that he was improperly denied his right of allocution.
Batson Challenge
Allen contends in his first issue that his constitutional rights were violated because of the State=s use of peremptory strikes to exclude minority veniremembers from serving on his jury. The State struck seven minority veniremembers.[2] Three were black females, one was a black male, and the remaining three were Hispanic females. Four African-Americans were seated on the jury. The record does not indicate if any Hispanics were seated. Allen asserted a Batson objection to the State=s strikes contending that none of the seven prospective jurors had made a disqualifying remark and requested the State to proffer race-neutral reasons for its strikes.
The prosecutor explained that four prospective jurors were struck because they had a criminal history that they failed to reveal during voir dire. One of the four also had a brother who had committed an assault. The prosecutor noted that this was similar to Allen=s charged offense and pointed out that he had struck non-minority veniremembers for not revealing past criminal histories.
Two of the remaining three strikes were made on minority veniremembers who were under the age of twenty-five. Apparently no Anglo member was that young. The prosecutor explained that people under twenty-five were sometimes “light” on life experiences and tended to be more sympathetic toward a young defendant. The last challenged strike was used on an individual who had commented about her personal experience with mistaken identification. The prosecutor stated that, because identity was at issue, he did not feel as though she would make a good juror. No other veniremember made a similar remark. Allen did not cross-examine the prosecutor or offer any evidence. The trial court found the prosecutor=s proffered reasons were racially neutral and overruled Allen=s Batson objection.
We may reverse a trial court=s Batson ruling only if it appears clearly erroneous. Rhoades v. State, 934 S.W.2d 113, 123-24 (Tex. Crim. App. 1996). This requires a definite and firm conviction that a mistake has been made. Id. We give great deference to the trial court=s determination and view the evidence in the light most favorable to the trial court=s ruling. Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001).
The Fourteenth Amendment prohibits the use of peremptory challenges in a racially discriminatory manner. Batson, 467 U.S. at 89. When a defendant makes a Batson objection, he is required to establish a prima facie case of racial discrimination. The burden then shifts to the State to tender a racially neutral reason for its strike. Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999). The burden then returns to the defendant to prove by a preponderance of the evidence that the discrimination was purposeful. Id.
Each of the State=s reasons is racially neutral on its face, and each has been approved by courts in other cases.[3] Allen argues that Miller-El v. Dretke, 545 U.S. 231 (2005), imposes a higher duty on trial courts to examine the genuineness B instead of the reasonableness B of the State=s proffered reasons and that a trial court may not simply accept the State=s reasons at face value but must examine them.
In Miller-El, 545 U.S. 231, the Supreme Court considered a habeas corpus challenge to a death penalty sentence on the basis of the State’s alleged use of peremptory challenges in a racially discriminatory manner. The Supreme Court neither altered Batson=s three-part, shifting burden nor specifically altered the procedures for conducting a Batson hearing. The court looked at the particular facts of that case and made a determination based upon those facts that a constitutional violation had been shown. Miller-El=s impact comes not from the establishment of new rules or procedures but from its illustration of a proper Batson challenge review. See Murphy v. Dretke, 416 F.3d 427, 439 (5th Cir. 2005), cert. denied, 126 S. Ct. 1028 (2006) (The Supreme Court “did not announce any new elements or criteria for determining a Batson claim, but rather simply made a final factual and evidentiary determination of that particular petitioner’s Batson claim.”).
We do not read Miller-El to alter the adversarial process by requiring the trial court to develop evidence as opposed to weighing the parties’ evidence. Trial courts have the discretion to ask counsel or prospective jurors questions to clarify the issues, but the ultimate responsibility for developing evidence remains with the parties. This assures that those with the most at stake will have every incentive to develop the evidence necessary to support their position and should result in the trial court having the benefit of all relevant information when making its decision.
The range of potential relevant evidence is broad. The Supreme Court’s analysis indicates that it is appropriate to consider the effect of the State’s strikes on the racial composition of the jury, perform side-by-side comparisons of minority veniremembers who were struck with Anglos who were not, assess the prosecutor’s credibility, consider any disparity in the types of questions asked of minority veniremembers versus Anglos, examine the use of procedural tactics to alter the panel’s order, and review any extrinsic evidence of discrimination. 545 U.S. 231. In Miller-El, each of these factors weighed in favor of a finding of purposeful discrimination. They do not in this case.
In Miller-El, the State struck nineteen of twenty prospective African-American jurors. In this case, the State struck four African-Americans. Two were excluded by agreement, and four others served on the jury. The record does not indicate whether Allen struck any minority veniremembers; therefore, it is impossible for us to determine the exact statistical impact of the State’s strikes on the panel. However, even if Allen struck no minorities, we cannot say that a numerical analysis of the State’s strikes clearly points to purposeful discrimination.
Allen points us to no evidence that the State treated minority veniremembers any differently during questioning than it did Anglos, that it struck minority veniremembers for reasons which also applied to Anglos who were not struck, that the prosecutor asked for a shuffle, or that the prosecutor made any factual misstatements during the voire dire hearing. No extrinsic evidence was offered to show a general policy or practice by the prosecutor’s office of excluding minority veniremembers.[4] Finally, Allen makes no claim that he was not afforded a reasonable opportunity to rebut the prosecutor’s explanations. Cf. Davis v. Fisk Elec. Co., 187 S.W.3d 570 (Tex. App.CHouston [14th Dist.] 2006, pet. filed). We cannot say that the trial court’s decision to deny Allen’s Batson challenge was clearly erroneous. Allen=s first issue, therefore, is overruled.
Cross-Examination of Accomplice Witness
The State called Truman Husband as a witness during its case-in-chief. Husband had previously entered an open plea of guilty to the same robbery charged against Allen and had waived his right to a jury trial. The judge presiding over Allen’s trial received the plea and was responsible for assessing Husband’s punishment. Husband had not been sentenced at the time of Allen’s trial. Allen’s counsel requested that the prosecutor disclose any plea agreement with Husband. The prosecutor responded that no plea bargain had been offered and that Husband was going open to the judge for punishment.
During Husband’s direct examination, he testified that no one from the district attorney’s office had made him any promise, that he had entered an open plea, and that the trial court was solely responsible for assessing his punishment. He acknowledged that he faced anything from probation to life in prison.
Allen’s counsel reserved his right to cross-examine Husband and later called him as a witness during Allen’s case-in-chief. Counsel indicated to the court, outside the presence of the jury, that he intended to ask Husband about any offers of punishment that he may have received. The trial court refused to allow questions about any specific plea-bargain offer but did allow Allen’s counsel to question Husband about whether he expected to gain some benefit by testifying. The trial court explained its ruling saying: “[R]ight now, [Allen’s counsel] can’t ask [Husband] what was C what was your plea deal because, as far as the Court’s concerned, there is no plea deal.”
Allen argues that he was denied evidence bearing on Husband’s credibility. Allen relies upon Virts v. State, 739 S.W.2d 25 (Tex. Crim. App. 1987), for the proposition that the failure to allow cross-examination regarding all portions of a plea-bargain arrangement is clearly erroneous because it deprived him of the opportunity to demonstrate bias or motive. Allen argues that the rule is no different for open pleas, relying upon Parker v. State, 657 S.W.2d 137 (Tex. Crim. App. 1983), and Spain v. State, 585 S.W.2d 705 (Tex. Crim. App. 1979).
Trial courts have wide latitude to impose reasonable restrictions on cross-examination. Virts, 739 S.W.2d at 28; see also Blanco v. State, 18 S.W.3d 218, 222 (Tex. Crim. App. 2000) (trial courts have broad discretion to impose limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence). Accordingly, we review the trial court’s ruling for an abuse of discretion.
In Virts, 739 S.W.2d at 25, the trial court refused to allow the defendant to question an accomplice witness about her mental health medical history. The court held this was error. Id. at 27-30. The court focused on the fact that the defendant and accomplice provided significantly different versions of the crime and that the jury’s verdict indicated that it had accepted the accomplice’s version and rejected the defendant’s. This case is distinguishable because the jury in Virts had no knowledge that the accomplice had a history of mental illness. Here, the jury knew that Husband had pleaded guilty and would be subsequently sentenced by the trial court and, therefore, that his motive for testifying and could factor this into their assessment of Husband’s credibility.
Parker, 657 S.W.2d 137, and Spain, 585 S.W.2d 705, are similarly distinguishable because in each case the accomplice received something of value from the prosecutor’s office which could serve as a motivating factor for their testimony but which was not disclosed to the jury. In Parker, the prosecutor dismissed several charges against the accomplice, including the same robbery charge for which the defendant was tried, before trial. 657 S.W.2d at 138-39. In Spain, the accomplice received a probated sentence for the same offense. 585 S.W.2d at 710. Neither jury, however, was aware of the witness’s potential motivation. In the present case, it is clear that Husband received nothing of value from the prosecution. His motive was potential leniency from the trial court. The jury was well aware of that motivation.
Allen has identified no additional substantive information that further cross-examination could have revealed that would have aided the jury. Cf. Ramirez v. State, 976 S.W.2d 219, 223 (Tex. App.CEl Paso 1998, pet. ref=d) (trial court did not err by prohibiting defense counsel from asking the State’s witness about the dismissal of the original charges filed against him because the jury knew of an agreement between the witness and the State; knew the witness’s vulnerable relationship with the State; and could evaluate his potential motive, bias, or interest). Even if we completely discount the prosecution’s statement that no offers had been made, any offer was immaterial since the trial court was solely responsible for assessing punishment. We find the trial court did not abuse its discretion when it limited the scope of Allen’s cross-examination. Allen’s second issue is overruled.
Prosecutorial Misconduct During Closing Argument
The State called Chandler as its first witness. Chandler described the robbery and identified Allen as the man who held a gun on him. Outside the jury’s presence, Allen’s counsel indicated his intention to reserve cross-examination. Allen’s counsel did not call Chandler during his case-in-chief, but the State recalled Chandler during rebuttal. Allen’s counsel did not cross-examine Chandler following his rebuttal testimony.
The State made the following comments, during its closing, about the lack of cross-examination:
[PROSECUTOR]: Let’s talk about the credibility of Mr. Chandler. Now, folks, I=ll submit to you, and I think you=ve seen through their performance in trial, these are excellent attorneys. They=re knowledgeable, they’re experienced. Folks, if they could impeach the credibility of Hubert Chandler in any way, they would have tried to cross-examine him. They did not ask one single question. And why is that?
[DEFENSE COUNSEL]: Excuse me, Judge. I=m going to object to that. That goes to our strategy. Its outside of anything that has C that=s absolutely improper statement by the prosecutor to suggest why we=re doing something.
[THE COURT]: I=ll overrule your objection.
[PROSECUTOR]: Folks, do you remember when we spent two hours going through police reports? Did that really help you at all? It really didn=t. It wasn=t really about the people that were there and the people that saw what happened.
If they=re willing to spend two hours on police reports about stuff that=s really not that important, can=t they ask a few questions of the man who ID=d their client?
[DEFENSE COUNSEL]: I=m going to object to that, that=s a matter for counsel.
[THE COURT]: Sustained.
[DEFENSE COUNSEL]: If you=d instruct the jury to disregard the last remark.
[THE COURT]: Folks, if you=d disregard the last remark.
[DEFENSE COUNSEL]: Ask for a mistrial.
[THE COURT]: Overruled.
. . . .
[PROSECUTOR]: [The defense counsel] wants to comment on Hubert=s memory. Well, I=ll submit to you, why didn=t he test his memory? Let=s think about that.
[DEFENSE COUNSEL]: I=m going to object to that. That=s going to C
[THE COURT]: Sustained.
[PROSECUTOR]: Hubert remembered everything else.
[DEFENSE COUNSEL]: Would you admonish the jury to disregard that.
[THE COURT]: Disregard those words.
[DEFENSE COUNSEL]: We=d ask for a mistrial.
[PROSECUTOR]: Hubert remembered every other last detail. Every other last detail, he remembered.
Allen argues that the prosecution=s argument was an attempt to strike at him through his counsel and cites Gomez v. State, 704 S.W.2d 770 (Tex. Crim. App. 1985), for the proposition that this requires a new trial. In Gomez, the court reversed a decision of this court[5] and held that the prosecutor=s comments during closing argument denied the defendant a fair trial. This court had found the argument improper but held any error was cured by the trial court=s instruction to the jury to disregard.
In Gomez, the State accused the defense counsel of manufacturing evidence and being paid to get the defendant off the hook. Id. at 771. The court noted that this constituted uninvited and unsubstantiated accusations of improper conduct. The harm flowed from the fact that the public does not generally understand that a defense counsel has an ethical obligation to defend his client regardless of any personal opinion on his client=s guilt. Accusations of improper conduct, then, have an inherently inflammatory character because they invite the jury to discredit the accused=s defense.
The State responds initially that Allen is presenting a multifarious point of error because he is complaining of three separate comments in one issue. The three comments are sufficiently similar that it is appropriate to consider them in one issue. Next, the State contends that nothing has been preserved for review because Allen=s objections were imprecise. Two of the three objections were sustained. If the State felt the objections were imprecise, it was the State=s burden to raise that challenge at trial. Finally, the State contends the issue has been waived because the record does not contain a ruling on Allen=s final motion for mistrial. Allen=s first motion for mistrial was overruled. The subsequent argument raised the same issue, and Allen=s objection to it was sustained. The record suggests that counsel and the court were speaking over one another, which can cause confusion in the record or proceedings. Allen=s counsel should have obtained a specific ruling on the last motion for mistrial; but, under all of the facts, we find that the issue has been preserved for our review.
Alternatively, the State contends that, if the issue has been preserved, no reversible error is shown because its comments on defense counsel=s failure to cross-examine a witness were permissible. We need not determine if the prosecution=s comments were appropriate and express no opinion on them. Even if the trial court correctly held the argument was inappropriate, the distinction between the comments in Gomez and those made by the prosecution in this case is the absence of any charge of misconduct. That distinction is critical.
Proper jury arguments by the prosecution are (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000). Chandler=s credibility was an appropriate subject of comment. The prosecution=s comments do not rise to the level of accusing defense counsel of improper conduct and were not an attempt to inflame the jury by reference to general prejudice against defense counsel or to matters outside the record.
In Satterwhite v. State, 858 S.W.2d 412, 424-25 (Tex. Crim. App. 1993), one of the defendant=s attorneys testified in a competency hearing in connection with a capital murder case. During closing argument, the prosecutor made negative comments about counsel=s credibility. The court held this was appropriate because prosecutors are allowed to argue about the credibility of the defendant=s witnesses. The defense counsel placed his credibility as a witness in issue when he testified. The court drew a distinction between arguing the credibility of a witness=s testimony and attacking the role of a defense lawyer.
The prosecution=s argument did not suggest any impropriety by Allen=s counsel. It did not appeal to any prejudice against defense lawyers or inject matters outside the record C the jury was aware counsel did not cross-examine the victim. If it was improper to point out the lack of cross-examination in support of the victim=s credibility, the trial court=s instruction to the jury to disregard the prosecution=s comments was sufficient to address any harm. Allen=s third issue is overruled.
Defendant=s Right of Allocution
Allen waived his right to testify in both the guilt/innocence and punishment phases of the trial. The State waived its opening argument in the punishment phase. Allen=s counsel requested that Allen be allowed to briefly address the court before he began his oral argument. The trial court denied that request. Following the conclusion of oral argument, the trial court announced that Allen was being sentenced to twenty-two years confinement in the Institutional Division of the Texas Department of Criminal Justice.
Allen argues that he had a right before the trial court pronounced sentence to be asked if he had anything to say why the sentence should not be pronounced against him, citing Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon Supp. 2005). This statute provides:
Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. The only reasons which can be shown, on account of which sentence cannot be pronounced, are:
1. That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged.
2. That the defendant is incompetent to stand trial; and if evidence be shown to support a finding of incompetency to stand trial, no sentence shall be pronounced, and the court shall proceed under Chapter 46B; and
3. When a person who has been convicted escapes after conviction and before sentence and an individual supposed to be the same has been arrested he may before sentence is pronounced, deny that he is the person convicted, and an issue be accordingly tried before a jury, or before the court if a jury is waived, as to his identity.
Allen does not contend that any of Article 42.07=s three reasons for withholding pronouncement of sentence apply to him. His position appears to be that a defendant has a right to speak in mitigation of his sentence. In Eisen v. State, 40 S.W.3d 628, 636 (Tex. App.CWaco 2001, pet. ref=d), the court held that a defendant did not have a constitutional right of allocution and that the trial court=s failure to follow Article 42.07 was not preserved for review when the defendant did not contend that one of the statute=s three reasons applied to him. We find the court=s reasoning persuasive. Allen had the right, through counsel, to present evidence and argument during the punishment phase of the trial to support a mitigation request. The trial court should have afforded Allen the opportunity to speak before sentence was pronounced, but because Allen does not claim that he has been pardoned, is incompetent, or has been misidentified following an escape, he has not established reversible error. Allen=s fourth issue is overruled.
Holding
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
June 15, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and, Strange, J.
[1]Batson v. Kentucky, 476 U.S. 79 (1986).
[2]Three minority veniremembers were excluded by agreement. It appears that two of these were African-American and one was Hispanic.
[3]See, e.g., Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002) (failure to disclose prior arrest); Hughes v. State, 962 S.W.2d 89, 91 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d) (personal experience or belief concerning eyewitness identification); Brown v. State, 960 S.W.2d 265, 269 (Tex. App.CCorpus Christi 1997, no pet.) (age).
[4]We note that Miller-El arose out of a case prosecuted by the Dallas County District Attorney=s Office and that a 1968 manual from that office and testimony about its historical jury selection policies from the late 50s through 1978 were considered by the Supreme Court. 545 U.S. 231. The continued relevance of this evidence is best decided by the trial court in the first instance. Our role as the appellate court is to Adetermine whether the trial court=s determination of the prosecutor=s neutrality with respect to race was objectively unreasonable and has been rebutted by clear and convincing evidence to the contrary.@ Miller-El v. Cockrell, 537 U.S. 322, 341 (2003).
[5]Gomez v. State, No. 11-83-00308-CR (Tex. App.CEastland Oct. 25, 1984)(not designated for publication).