NO. 07-10-0374-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MAY 23, 2011
_____________________________
CHRISTOPHER MCGEE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 11,416; HONORABLE DAN MIKE BIRD, PRESIDING
_____________________________
Opinion
_____________________________
Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1
Christopher McGee seeks to overturn his conviction of aggravated sexual assault
of a child by contending that 1) the trial court erred in denying his Batson challenge, 2)
the trial court erred in overruling his motion to suppress his written statement, and 3) the
evidence is legally insufficient. We affirm the judgment.
1
John T. Boyd, Senior Justice retired, sitting by assignment.
Background
Appellant was charged with penetrating the sexual organ of his girlfriend’s five-
year-old daughter with his finger. The victim did not testify, and the primary source of
evidence against him came from his written admission to committing the crime and his
drawing that indicated how far he inserted his finger into the child’s vagina.
Batson Challenge
We first consider appellant’s Batson challenge. The focus of that challenge lies
upon the State’s use of a peremptory challenge against an African-American venireman
named Shepherd. The latter was struck, according to the prosecutor, because he was
asleep during voir dire. We overrule the issue.
One levying a Batson2 challenge must make a prima facie showing of racial
discrimination. Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim. App. 2009), cert.
denied, __ U.S. __, 130 S.Ct. 3411, 177 L.Ed.2d 326 (2010). If that happens, the
burden then shifts to the State to offer a race-neutral explanation for the strike. Id.
Should such an explanation be proffered, then the burden shifts back to the defendant
to show the explanation was really a pretext for discrimination. Id. And, in reviewing
the trial court’s decision, we must allow it to stand unless it is clearly erroneous. Id.
In explaining his decision to challenge the particular venireman, the prosecutor
informed the trial court that, “when I called on him and asked him punishment or
rehabilitation he was startled and woken up [sic] before he answered the question, so
Mr. Shepherd was sleeping during my portion of the voir dire and that’s why I cut him.”
Appellant did not dispute that or question the prosecutor.
2
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
2
Sleeping during voir dire is a race-neutral reason for using a peremptory
challenge. Moore v. State, 265 S.W.3d 73, 82 (Tex. App.–Houston [1st Dist.] 2008, pet.
dism’d, improvidently granted); Lamons v. State, 938 S.W.2d 774, 778 (Tex. App.–
Houston [14th Dist.] 1997, pet. ref’d); Muhammad v. State, 911 S.W.2d 823, 825 (Tex.
App.–Texarkana 1995, no pet.). And, that the prosecutor called out Shepherd’s name
twice to garner the venireman’s attention while all other members answered the
particular question after the prosecutor called their name once lends support to the
contention that Shepard may have been sleeping. See Roberson v. State, 866 S.W.2d
259, 261-62 (Tex. App.–Fort Worth 1993, no pet.) (stating that when the State strikes a
juror on a basis that cannot be easily determined by a reviewing court, that basis must
be substantiated by something other than the prosecutor’s statement). Finally, we note
that appellant did not dispute the contention below. Therefore, we lack basis to
conclude that the trial court’s rejection of the Batson challenge was clearly erroneous.
See Moore v. State, 265 S.W.3d at 82 (stating that the court is in the best position to
determine if the prosecutor was correct that the juror was inattentive, and noting that the
defendant did not dispute the contention thereby resulting in the conclusion that the
record supported it).
Suppression of Evidence
Next, appellant argued that the trial court should have suppressed his written,
inculpatory statement and drawing because he was in custody, “was not properly
warned (Mirandized),” and coerced. We overrule the issue.
As to the matter of involuntarily providing the confession and drawing, appellant
merely concluded that it was the product of coercion. No substantive argument was
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offered to support his conclusion. This omission is fatal to the point since a brief must
contain a clear and concise argument for the contentions made. TEX. R. APP. P. 38.1(i).
If none is provided, then the topic is inadequately briefed and, therefore, waived.
Garcia v. State, 887 S.W.2d 862, 876 (Tex. Crim. App. 1994), overruled on other
grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) (noting that when
an issue is not supported with explanation or argument, it was inadequately briefed).
As for the contention that appellant was not “properly warned (Mirandized)”
before issuing his confession, we note that the interview from which the confession and
drawing arose began with appellant signing a written document containing Miranda
warnings. And, though to us the warnings memorialized in the document conform to the
admonishments itemized in art. 38.22 §2(a) of the Code of Criminal Procedure,
appellant failed to explain how they did not. Given this, we cannot say that the trial
court erred in admitting the confession and drawing because appellant was not properly
Mirandized.
Moreover, even if the warnings afforded appellant were somehow deficient, the
record contained sufficient factual basis upon which the trial court could have
reasonably found that appellant was not in custody at the time. This is of import
because Miranda warnings need not be imparted unless the suspect is in custody.
Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). For instance, 1)
appellant transported himself to the police station to undergo a polygraph examination
and questioning, 2) questioning occurred in a rather large 15’ by 15’ room, 3) he was
never told he was under arrest, 4) he was told he was free to go at any time, 5) no one
threatened him, 6) no one restrained him, 7) those asking the questions and
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administering the polygraph would have stopped if appellant indicated that he wanted to
leave, 8) appellant was at the station for approximately 2.5 hours before confessing, 9)
he had no marks on him to indicate that he underwent any kind of physical abuse, 10)
he not only was asked if he wanted to take a break or use the bathroom but also was
told that he did not have to be there before the examination began, 11) he left the
station after the interview, and 12) nothing indicates that appellant ever attempted to
leave, stop the questioning, take a break, or the like.
A person is in custody if, under the circumstances, a reasonable person would
believe his freedom of movement was restrained to the degree associated with a formal
arrest. Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010), cert. denied, __
U.S. __, 131 S.Ct. 905, 178 L.Ed.2d 760 (2011); Dowthitt v. State, 931 S.W.2d 244, 254
(Tex. Crim. App. 1996). Simply because the questioning occurred at a police station,
the suspect submitted to a polygraph, or the suspect failed a polygraph does not render
the questioning custodial in nature. Dowthitt v. State, 931 S.W.2d at 255. Nor did the
aforementioned litany of evidence and circumstances obligate the trial court to hold that
1) appellant was physically deprived of his freedom in any significant way, 2) someone
told him he could not leave, 3) the officers created an environment that would lead a
reasonable person to believe his freedom of movement was significantly restricted, or 4)
there existed probable cause to arrest appellant and the officers told him he was not
free to leave. Had any of those four scenarios arose then appellant would have been in
custody, id., but the evidence before us allowed the trial court legitimately to conclude
otherwise. See Estrada v. State, 313 S.W.3d at 294-95 (holding that appellant’s
complaint on appeal that the environment was coercive did not change the fact that he
5
was not in custody when he voluntarily went to the police station, was told several times
he could leave, and did leave after the interrogation).
Legal Sufficiency
Finally, appellant claims the evidence was both legally and factually insufficient to
support the verdict. Given his confession and drawing evincing his guilt, we have no
choice but to overrule the issue.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Publish.
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