Barnes v. State, No. 14-05-00144-CR (Tex. App. 9/5/2006), 14-05-00144-CR.
| Decision Date | 05 September 2006 |
| Docket Number | No. 14-05-00145-CR.,No. 14-05-00144-CR.,14-05-00144-CR.,14-05-00145-CR. |
| Parties | ROMAN ANTHONY BARNES, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause Nos. 972,564 & 972,563.
Affirmed.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
In separate cases tried together, a jury convicted appellant Roman Anthony Barnes of aggravated assault and taking a weapon from a peace officer. The jury also found two enhancement paragraphs true and assessed appellant's punishment at forty years' confinement in the Texas Department of Corrections, Institutional Division. On appeal, appellant raises three issues common to both cases, and also challenges the legal and factual sufficiency of the evidence supporting specific elements of each offense. The issues common to both cases are that the trial court erred by (1) refusing to discharge the jury panel underBatson v. Kentucky, (2) allowing the State to amend its indictment, over appellant's objection, after commencement of trial, and (3) allowing the State to introduce a prior felony conviction into evidence without timely notice in violation of the trial court's order. Specific to appellant's conviction for aggravated assault, appellant contends the evidence is legally and factually insufficient to prove that he used or exhibited a firearm during the offense and that he had the intent to threaten the complainant with imminent bodily injury. Specific to appellant's conviction for taking a weapon from a peace officer, he contends the evidence is legally and factually insufficient to prove that he had the intent to harm the complainant. We affirm.
On the evening of December 30, 2003, Corporal Rudy Guillen of the Harris County Constables Office, Precinct 3, responded to a domestic disturbance call at a Harris County residence. When Guillen arrived, he saw appellant and a female at the door of the residence. Guillen separated the two as he conducted his investigation, placing appellant in the back seat of his patrol car. When Guillen learned a warrant had been issued for appellant's arrest, he decided to arrest appellant and take him to jail. However, when Guillen attempted to handcuff appellant, appellant's attitude changed. Appellant grabbed Guillen and pulled on him; Guillen lost his balance and fell into the patrol car with appellant.
Appellant then grabbed Guillen's gun and, as Guillen tried to back out of the car, appellant removed the gun from its holster. Guillen shouted "He's got my gun" and appellant and Guillen began struggling over the gun. Guillen heard the gun's safety disengage. Appellant pointed the gun towards Guillen's lower body and pulled the trigger. Guillen jumped, and the bullet missed his leg by less than an inch before lodging in the car's back seat. As appellant yelled that he was "going to shoot it again," Guillen ejected the gun's magazine. He then jammed the live round already in the gun with his hand.
Appellant continued to fight Guillen and two other officers who had come to his aid. During the struggle, appellant stated several times that he wanted to speak to his mother, and he also stated that he wanted to shoot himself. One of the officers was eventually able to pry appellant's fingers from the gun, and another transported appellant to jail. Appellant was charged in two separate indictments with taking a weapon from a peace officer and aggravated assault of a peace officer. Audio of the struggle was captured on the video recorder inside Guillen's patrol car, and the videotape was later played for the jury during appellant's trial.
At trial, appellant testified that Corporal Guillen, the complainant, began punching him while trying to place the handcuffs on him. Appellant got scared and tried to grab Guillen's left hand. When appellant saw Guillen's gun, he grabbed it by the barrel and held on to it with his right hand. While struggling over the gun, appellant heard it go off. He admitted that he twice said, "Watch out, I'll shoot it again." Appellant testified that he could not remember if his finger was on the trigger when the gun went off. He also testified that he never intended to shoot Guillen.
In his first issue, appellant contends the trial court erred in failing to discharge the jury panel under Batson v. Kentucky, 476 U. S. 79 (1986). Specifically, appellant alleges that the trial court erred in allowing the State to peremptorily strike a veniremember solely on the basis of her race, in violation of Batson and Texas Code of Criminal Procedure article 35.261. We examine Batson challenges under a "clearly erroneous" standard of review, viewing the evidence in the light most favorable to the trial court's ruling. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim App. 2004).
Once a party raises a Batson challenge, the court must engage in a three-step process. First, the party opposing the peremptory strikes must make a prima facie showing of racial discrimination and thus carries a burden of production. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Second, the burden shifts to the party who exercised the peremptory strikes to give a facially-neutral explanation. Id. Finally, the court must determine whether or not the challenging party has made out a case of discrimination. Id. The burden of persuasion always rests on the party challenging the use of the peremptory strikes. Id. (citing Purkett v. Elem, 514 U.S. 765, 767-68 (1995)). However, the court must evaluate the reasons proffered for the strikes in light of what it observes during voir dire and during the Batson hearing. See, e.g., Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002) ().
The record does not reflect the race of the challenged veniremember, number twenty-two, or the other panel members. Appellant challenged the State's strike of the veniremember in the following exchange:
[Defense]: Except for Juror 22, I've got comments for all of them except 22. I'm wondering how she ended up getting struck — I mean, peremptory challenged.
[State]: She was struck by the State, Judge.
[State]: Judge, the notes I have on 22 are that I had a bad vibe during my voir dire. She kept giving me hostile looks and wasn't very interested in my voir dire.
The Court: Either side have anything else?
[Defense]: Judge, I would challenge. I saw no animosity from No. 22 at all, none to either side including the Court.
The Court: Well, as far as the reason that has been provided, the State has provided race neutral reasons.
Anything else?
[State]: Nothing else from the State, judge.
[Defense]: (Moves head side to side).
In Purkett v. Elem, the Supreme Court held that, " Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)). Thus, any reason offered by the State, as long as it is facially valid and not inherently discriminatory, is sufficient to rebut the defendant's prima facie case of intentional discrimination. See id. The defendant then has the burden of showing that the race-neutral reasons articulated by the State were in fact a pretext for purposeful discrimination. See Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996).
On appeal, appellant does not assert that the prosecutor's race-neutral explanation was racially discriminatory. He claims only that the reason given—that the veniremember was hostile and disinterested—was "incredible." However, appellant never cross-examined the prosecutor or offered any evidence to show that the State's explanation was pretextual; appellant did nothing more than point out the allegedly racially-struck veniremember, ask for a race-neutral explanation, and claim that he saw no animosity exhibited by the juror. The court was present at the proceeding and capable of resolving the matter. Based on the applicable law and the record before us, we hold that the trial court's ruling was not clearly erroneous.
We overrule appellant's first issue.
In his second issue, appellant contends the trial court erred in permitting the State to amend the indictment, over appellant's objection, after the commencement of trial, in violation of Texas Code of Criminal Procedure article 28.10(b). See TEX. CODE CRIM. PROC. art. 28.10(b) (). Specifically, appellant contends the State's attempt to abandon the...
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