Camacho v. State

• Decision Date: 13 October 1993
• Docket Number: No. 71098,71098
• Parties: Genaro Ruiz CAMACHO, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 524

864 S.W.2d 524

Genaro Ruiz CAMACHO, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 71098.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 13, 1993.

Lawrence B. Mitchell, on appeal only, Dallas, for appellant.

John Vance, Dist. Atty., and Teresa Tolle, Hugh Lucas, Dennis Jones and Mark Nancarrow, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appellant, Genaro Ruiz Camacho, was convicted by a jury of capital murder pursuant to V.T.C.A., Penal Code, Section 19.03(a)(2). ¹ The jury answered the special issues in the affirmative. Article 37.071(b), V.A.C.C.P. The trial court then imposed a sentence of death. Article 37.071(g). Appeal to this Court is automatic. Article 37.071(h), V.A.C.C.P. We will affirm.

Appellant brings fourteen points of error to this Court. The sufficiency of the evidence to support the verdict or the answers to the special issues is not challenged. Point of error number eleven complains that the trial court forced appellant to state his grounds for challenge for cause in the presence of the challenged venireman. Point of error number four complains that the trial court erred in not extending the voir dire of the venirepersons who had been selected for the jury to determine whether any of them had changed their attitudes regarding the case. Appellant argues that those selected early on to serve on the jury had exposure to prejudicial news stories published in the community. Points of error numbers one, two and three assert that the State employed its peremptory challenges in a discriminatory fashion. Points of error numbers five, six, and seven challenge the court's action in admitting evidence of extraneous offenses. Point of error number ten alleges that the trial court erred in failing to recess the trial for the purpose of allowing appellant time in which to examine the written statement of a witness called by the State. Point of error number eight argues that the trial court, at the guilt stage, should have given a limiting instruction to the jury with respect to extraneous offenses. Points of error numbers nine, twelve, thirteen and fourteen object to the refusal of the trial court to give requested instructions, definitions and charges to the jury.

We will affirm.

Although the sufficiency of the evidence to support either the verdict of guilt or the answers of the jury to the special issues is not challenged, a brief recitation of the facts will be helpful.

On May 20, 1988, appellant entered the residence of one Sam Wright. He was accompanied by co-actors all of whom possessed firearms. Appellant confronted Wright, his spouse and his three-year-old son and demanded that Wright pay appellant some $20,000, a debt allegedly arising out of prior drug transactions. An employee of Sam Wright, David Wilburn, then arrived at the residence, knocked on the door and was admitted. Appellant then shot the employee. Having shot Wilburn, appellant ordered that Wright's spouse be handcuffed. At that moment the sound of a door slamming shut in another part of the house distracted appellant and his group. Sam Wright took advantage of that moment of inattention to escape from the house. Appellant then retreated from the house with the Wright's son and spouse. Some days later, members of appellant's group killed both the son and the spouse.

Dallas police recovered evidence of forced entry into the residence of Sam Wright, including a severed chain which had secured a set of burglar bars in front of the entrance to Wright's residence and a broken door frame lying in the entryway.

In points of error one, two and three appellant alleges that the State peremptorily struck venirepersons solely because of the race and in violation of TEX.CODE CRIM.PROC.ANN. art. 35.261. Appellant specifically identifies Elizabeth Gamboa, a Hispanic, Johnny Crowder, and Charles Brooks both of whom are black as those venirepersons who were struck by the State because of their race. Appellant states that the discriminatory use of peremptory strikes by the State violates both Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and our own Article 35.261, V.A.C.C.P. Having filed his pre-trial motion to prohibit the State from using peremptory challenges in a racially biased manner, appellant then sought a Batson hearing at the conclusion of voir dire, which hearing was conducted before the jury was sworn. In the hearing, the State's attorney was questioned by appellant and stated his reasons for striking the three venirepersons named above.

We note that the record demonstrates that appellant's pretrial motion related only to the potential violation of the rule in Batson supra. Therefore we must hold that appellant has failed to preserve for review by this Court the point which he seeks to present here, namely that Art. 35.261, V.A.C.C.P. has been violated. Harris v. State, 784 S.W.2d 5, 27 (Tex.Cr.App.1989). Only the claim that the State violated the requirement of Batson, supra is before us. We have held that appellate review of a Batson claim shall be conducted by an examination of the record in the light most favorable to the ruling of the trial court. Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988). The standard of review is whether the ruling of the trial court was or was not "clearly erroneous". Whitsey v. State, 796 S.W.2d 707 (Tex.Cr.App.1990) (opinion on rehearing). If supported by the record, including the voir dire, the prosecutor's explanation of his use of a peremptory challenge, the rebuttal by appellant and impeaching evidence, the decision of the trial court will not be clearly erroneous. Vargas v. State, 838 S.W.2d 552 (Tex.Cr.App.1992). To prevail, appellant must establish that the reasons offered by the State for the peremptory challenge were merely pretextual and a cover for a racially motivated challenge. Hill v. State, 827 S.W.2d 860, 870 (Tex.Cr.App.1992).

After the conclusion of the voir dire, but before the jurors were sworn, the trial court conducted a hearing on the charge by appellant that the State had employed racially motivated strikes. The trial court then made findings of fact and conclusions of law on the record. The trial court found no racially discriminatory purpose in the State's peremptory challenges.

In regard to venireperson Gamboa, appellant argues that the decision of the trial court was incorrect, and states the following facts in support of this argument:

(1) The venireperson and appellant were of the same ethnic minority, viz. Hispanic.

(2) While the prosecutor under questioning said that Gamboa was too young (24 years old) and was undereducated, the prosecutor actually accepted a veniremen age 26 who was white, and Gamboa testified in voir dire that she was a high school graduate and that she held a diploma from El Centro Junior College.

(3) The prosecutor described Ms. Gamboa as tentative and diffident, not characteristics which he wanted in jurors on cases that he was trying. The personality of Ms. Gamboa, as disclosed in the record, however, is of a person who displayed appropriate responses to the voir dire questioning and who did not equivocate.

In its reply to the foregoing, the State points out that the jury finally selected contained two Hispanic women, that the youngest juror seated was 29 and that venireperson Gamboa was the youngest venireperson actually questioned. The State also emphasizes portions of the voir dire examination of Ms. Gamboa which reveal that she twice allowed her voice to fall below audible levels. The voir dire examination showed that she did not grasp the difference between "mercy" and "mitigation" and that the indictment language was difficult for her to understand fully.

Consonant with the standard of review applicable to the error asserted here, we hold that the decision of the trial court was supported by the record, was not clearly erroneous. Point of error number one overruled.

In regard to venireperson Johnny Crowder, the record reflects that the State exercised one of its peremptory strikes against him ² after it had leveled three different challenges for cause to his serving. All three challenges were denied ³.

During the Batson hearing the prosecutor placed great emphasis upon the venireman's answers to the jury questionnaire. He did not refer to or mention the three challenges for cause that he had presented during the voir dire of Mr. Crowder. From this apparent omission, appellant concludes that the proffered reason for the peremptory strike of Crowder was pretextual.

The prosecutor testified without contradiction that Mr. Crowder had circled the following answer on his juror questionnaire:

3. Although I do not personally believe in the death penalty, as long as the law provides for it, I could assess it under the proper set of facts and circumstances.

The prosecutor testified that this put him on guard concerning the attitude of Mr. Crowder. The record also reflects that the prosecutor examined this venireman extensively about his attitude toward the death penalty. Furthermore, the State says, no venireman who gave a "bad" response to the following question which was on the jury questionnaire escaped peremptory challenge by the State. The question was:

Do you believe in the death penalty? --

I believe that the death penalty is appropriate in all murder cases.

I believe that the death penalty is appropriate in some murder cases.

Although I do not personally believe in the death penalty, as long as the law provides for it, I could assess it under the proper set of facts and circumstances.

I could never, under any circumstances, return a verdict which assessed the death penalty.

The State points out that among veniremen who showed, from his or her answers to the above questions, a bias against the death penalty and were removed by a peremptory challenge, four were white.

Neither a perfunctory...