Opinion issued June 14, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00213-CR
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Daniel Harris, Appellant
V.
The State of Texas, Appellee
On Appeal from the 182nd Judicial District Court
Harris County, Texas
Trial Court Case No. 1204054
MEMORANDUM OPINION
A jury found appellant, Daniel Harris, guilty of the offense of aggravated kidnapping,[1] and the trial court assessed his punishment at confinement for thirty-three years. In two issues, appellant contends that the trial court erred in denying his Batson[2] challenge to the composition of the venire panel and he received ineffective assistance of counsel.
We affirm.
Background
Angela Odom, the complainant, testified that on February 18, 2009, while she was sleeping at her home, appellant, her sister’s husband, came to her house at approximately 3:00 or 4:00 a.m. Appellant pointed a firearm at Odom and demanded to be shown where her sister was staying. Odom then drove appellant to the apartment complex where her sister was staying, and appellant pointed the firearm at Odom for the duration of the drive. She parked her car and, because she did not want to show appellant where her sister was staying, Odom led appellant to the apartment of her uncle, who was staying at the same apartment complex as her sister. After her uncle answered the door and offered for the two of them to come inside his apartment, appellant grabbed Odom by the arm and led her back to her car, where he discharged the firearm into the car’s dashboard because he was “frustrated.” As they sat in the car, Odom saw two police patrol cars park nearby. Police officers then approached her car and took appellant and Odom out of the car. After questioning appellant, Odom, her uncle, and her sister, the police officers arrested appellant for aggravated kidnapping.
Appellant testified that he and his wife, Renee Harris, had a fight three weeks before February 18, 2009, and she had moved out of his house into Odom’s house, bringing their two children. He stated that he went to Odom’s house at 4:00 a.m. to pick up his children, and he admitted to having a firearm in his pocket because he had previously been “physically assaulted.” When Odom answered her door, she informed appellant that Harris had left and taken the children elsewhere. He asked Odom to show him where Harris was staying, and Odom eventually agreed to show him Harris’s apartment. Odom took him to the apartment of her uncle and told her uncle that appellant was carrying a firearm, but appellant left the apartment with Odom when he discovered that his children were not there. When they returned to Odom’s car, she drove to a different parking spot in the same apartment complex, but before they exited the car they were approached by police officers. The police officers ordered both of them out of the car, and two of them pointed firearms at appellant. Appellant reached into his pocket to remove his firearm and “throw it under the seat,” but one of the police officers ordered him to hand over his firearm, “jumped” on appellant, and restrained his right hand, which was holding the firearm. Another officer proceeded to use a taser on appellant, causing appellant to accidentally discharge the firearm. Eventually, one of the police officers pried the firearm from his hand and placed him under arrest. Appellant denied ever taking the firearm out of his pocket, pointing it at Odom, or threatening her in any manner. On cross-examination, appellant admitted that it is “against the law for [him] to be in possession of a firearm.” Appellant objected to the line of questioning as “argumentative” and on the ground that “there’s a time period with regard to a felon in possession and so forth,” but the trial court denied both objections.
During its voir dire, the State asked the venire panel, “What do you feel is a more important goal of the criminal justice system to you?” It limited the possible answers to “punishment” and “rehabilitation.” Several venire members answered, “rehabilitation,” including venire members 24, 29, and 43.
At the conclusion of voir dire, appellant raised his Batson challenge to the composition of the venire panel because it included no African-American jurors. Specifically, appellant noted that the State used a peremptory challenge on venire members 24 and 29, both African-Americans, and “possibly a strike” on venire member 43, also African-American. The State responded that it had simply “struck everybody that was left that said rehabilitation” and “didn’t even look at their races.” The trial court denied appellant’s Batson challenge, stating that it did “believe that those are race-neutral reasons.” Appellant later renewed his Batson challenge, arguing that “it appears that all the racial minorities are struck by the State.” The trial court again denied the challenge.
Batson Challenge
In his first issue, appellant argues that the trial court erred in denying his Batson challenge because the State’s use of its peremptory challenges eliminated all of the African-American members of the venire panel. Appellant asserts that the State, in asking the venire panel what they considered to be the most important goal of the criminal justice system, “expressly designed to elicit grounds for peremptory challenges disproportionately.”
The use of a peremptory challenge to strike a potential juror because of race violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986). It also violates Texas law. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon Supp. 2011). In Batson, the United States Supreme Court provided a three-step process for trial courts to use in adjudicating a claim that a peremptory challenge is based on racial discrimination. Snyder v. Louisiana, 552 U.S. 472, 476–78, 128 S. Ct. 1203, 1207 (2008); Miller-El v. Cockrell, 537 U.S. 322, 328–329, 123 S. Ct. 1029, 1035 (2003); Batson, 476 U.S. at 96–98, 106 S. Ct. at 1723; Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). First, a defendant must make a prima facie showing that the peremptory challenge has been exercised on the basis of racial discrimination. Miller-El, 537 U.S. at 328–329, 123 S. Ct. at 1035. Second, if the prima facie showing has been made, the State must offer a race-neutral explanation for the strike. Id. Third, the trial court must decide whether the defendant has shown purposeful racial discrimination. Id.; Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010).
On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. Snyder v. Louisiana, 552 U.S. at 477–78, 128 S. Ct. at 1207. The “critical question” in determining whether the opponent of a strike has proved “purposeful discrimination” is “the persuasiveness of the prosecutor’s justification for his peremptory strike.” Miller-El, 537 U.S. at 338–39, 123 S. Ct. at 1040. The State must “stand or fall on the plausibility of [its] reasons” for striking a juror. Miller-El v. Dretke, 545 U.S. 231, 252, 125 S. Ct. 2317, 2332 (2005). The State’s proffer of a “pretextual explanation naturally gives rise to an inference of discriminatory intent.” Snyder, 552 U.S. at 485, 128 S. Ct. at 1212. “[W]hen the State’s explanation for striking a juror is clearly contrary to the evidence, . . . there is no innocent mistake” and the case must be “reversed for Batson error.” Greer v. State, 310 S.W.3d 11, 16 (Tex. App.—Dallas 2009, no pet.).
Here, appellant argues that the State used its peremptory challenges to remove all potential African-American venire members from the panel, specifically referring to venire members 24, 29, and 43. The State’s purported race-neutral explanation for its strikes was that they believed that “rehabilitation” is the primary purpose of the criminal justice system, and it asserted that it struck “everybody that was left that said rehabilitation.” The State maintained, and the voir dire record demonstrates, that none of the jurors who answered “rehabilitation” were seated on the jury. In his brief, appellant concedes that the State’s purported race-neutral reason “did appear to apply to all jurors.”[3] Although appellant complains of the “ultimate discriminatory effect” of the State’s strikes, a peremptory challenge of a juror on the basis of his belief that rehabilitation is the primary goal of punishment is an acceptable race-neutral reason. See Adanandus v. State, 866 S.W.2d 210, 224–25 (Tex. Crim. App. 1993), cert. denied 114 S. Ct. 1338 (1994); Montgomery v. State, 198 S.W.3d 67, 76 (Tex. App.—Fort Worth 2006, pet. ref’d); Victor v. State, 995 S.W.2d 216, 221—22 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Based on this record, we cannot conclude that the trial court’s finding that the State’s reason for striking venire members 24, 29, and 43 was clearly erroneous. Accordingly, we hold that the trial court did not err in denying appellant’s Batson challenge.
We overrule appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, appellant argues that his trial counsel provided ineffective assistance of counsel because he did not object to the State’s introduction of testimony regarding appellant’s possession of a firearm “on the grounds of lack of notice of extraneous offense and failure to request a limiting instruction.”
In order to prove an ineffective-assistance-of-counsel claim, appellant must show that his trial counsel’s performance fell below an objective standard of reasonableness and, but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A failure to make a showing under either prong defeats a claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Allegations of ineffectiveness must be firmly founded in the record. See Thompson, 9 S.W.3d at 813. When the record is silent, we may not speculate to find trial counsel ineffective. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation, if any can possibly be imagined, and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id.
Appellant asserts that his trial counsel was ineffective in not properly objecting when, in the course of the State’s cross-examination of him about his possession of a firearm during the incident, the State asked, “Now, you understand that it’s against the law for you to be in possession of a firearm, correct?” Counsel objected to the question as “argumentative,” and the trial court overruled his objection. When the State again tried to ask the question, counsel objected a second time, stating, “I believe there’s a time period with regard to a felon in possession and so forth, which is where I think the State’s going with this . . . .” The trial court overruled the objection, and the State proceeded,
[State]: Do you understand that it’s against the law for you to be in possession of a firearm?
[Appellant]: Yeah.
[State]: And you knew that when you were carrying around the firearm, correct?
[Appellant]: Yes.
[State]: But you did it anyway?
[Appellant]: Well, due to the fact that I was assaulted.
[State]: But you understand there’s no exception to that law. There’s no exception for, “Well, I thought I was going to be assaulted. So, that’s why I carried it?”
Appellant asserts that trial counsel “failed to object to the lack of notice of extraneous offense” and “failed to request a limiting instruction on the introduction of this extraneous offense.”
First, we note that appellant, on direct examination, admitted to carrying a firearm when he confronted Odom. Odom and the police officers who arrived at the scene also testified to appellant’s possession of a firearm. Moreover, appellant, at the beginning of his testimony, stated that he had been twice convicted of arson in 1996 and sentenced to confinement. Finally, although appellant did not receive an instruction specifically related to the unlawfulness of his possession of a firearm, the trial court did instruct the jury on extraneous offenses in general as follows,
You are instructed that certain evidence was admitted before you in regard to the defendant’s having been charged and convicted of an offense or offenses other than the one for which he is on trial. Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give his testimony, and you will not consider the same for any other purpose.
In sum, despite appellant’s contention that his trial counsel’s ineffective assistance left the jury “with the final impression that [he] was simply a gun-toting kidnapper,” the jury had already heard evidence that appellant possessed a firearm and had been twice previously convicted of two felony offenses, and the trial court instructed the jury on extraneous offenses in general. Thus, even assuming that trial counsel was ineffective in not objecting to the admission of testimony that appellant’s possession of a firearm was “unlawful,” we cannot conclude that there is a reasonable probability that the result of the trial would have been different. Accordingly, we hold that appellant has failed to satisfy the second Strickland prong.
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Penal Code Ann. § 20.04 (Vernon 2011).
[2] Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).
[3] Counsel’s list of peremptory challenges and challenges for cause and the juror identification cards are not part of the appellate record. However, the transcript of the voir dire hearing includes the State’s strikes and the trial court’s confirmation of the venire members who sat on the jury.