Dukes v. State

• Decision Date: 03 March 2016
• Docket Number: NO. 01–14–00938–CR,01–14–00938–CR
• Citation: 486 S.W.3d 170
• Parties: Xavier Shrod Dukes, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

486 S.W.3d 170

Xavier Shrod Dukes, Appellant

v.The State of Texas, Appellee

NO. 01–14–00938–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued March 3, 2016

Rehearing and Rehearing En Banc Overruled March 3, 2016

Celeste Blackburn, Conroe, TX, for Appellant.

Devon Anderson, District Attorney-Harris County, Dan McCrory, Assistant District Attorney, Houston, TX, for State.

Panel consists of Justices Jennings, Keyes, and Bland.

OPINION ON REHEARING

Jane Bland, Justice

A jury convicted Xavier Shrod Dukes of murder and assessed his punishment at 60 years' imprisonment. On appeal, he contends that (1) the trial court erred in denying his challenge for cause against a venire member; (2) the evidence is legally insufficient to convict him; (3) the trial court erred in excluding evidence of an alternative perpetrator; and (4) his counsel rendered ineffective assistance. After a panel of our court issued its opinion in this case, Dukes moved for rehearing and rehearing en banc. We withdraw the opinion and judgment dated December 29, 2015 and issue this opinion and judgment in its stead. The motions for rehearing and rehearing en banc are denied. Finding no error, we affirm.

BACKGROUND

Late one night, Dukes waited in his car in an apartment complex parking lot for the mother of his child, Chaddricka Jackson, to return to her apartment. Dukes planned to bring Jackson and their son to stay with him at a nearby motel room. Dukes and Jackson had been fighting, and Jackson did not want to go with Dukes. Through his open car door, Dukes accused Jackson of cheating on him with a neighbor, John Bates–Williams. Bates–Williams, who was sitting on an electrical utility box nearby, intervened, telling Dukes that he was a friend of Jackson's family and that there was no romantic relationship between them. Bates–Williams placed himself between Dukes and Jackson and told Jackson to go back to her apartment. Jackson walked back to her apartment and Dukes got back in his car, backing out of his parking space as if to leave. While Dukes was backing out his car and driving toward the exit gate, Bates–Williams followed alongside on foot, as the two exchanged words in a heated argument. Per one witness's testimony, Bates–Williams challenged Dukes to “go ahead.” Dukes parked his car in the path of the apartment gate so that it couldn't close. He got out of his car and told Bates–Williams, “you think I'm playing with you.” Dukes then drew a semiautomatic pistol and fired seven shots in the direction of Bates–Williams. A witness to the shooting estimated that Dukes fired from five feet away, but the crime scene investigator estimated that Dukes was about fifteen feet away, based on the location of the spent shell casings. One shot grazed Bates–Williams, and another struck him in the chest. Dukes fled the scene. Bates–Williams was pronounced dead upon the arrival of Houston Fire Department personnel.

At trial, the State relied on the testimony of Chasity Williams, a neighbor, unrelated to Bates–Williams. She testified that she witnessed the shooting from her nearby window. The State corroborated her testimony with footage from a nearby security camera, which did not capture the shooting but captured events immediately before and after it. Chaddricka Jackson testified for the State about the personal circumstances between Dukes and her and the moments before the shooting.

Dukes presented no evidence. At trial, he contended that the State's evidence failed to show that he intended to kill Bates–Williams, but that, given that only two of the seven shots hit Bates–Williams, Dukes fired the shots as a warning, intending to miss, and hit Bates–Williams accidentally.

DISCUSSION

I. Challenge for Cause

On appeal, Dukes first contends that the trial court erred in denying his challenge for cause to venire member 12, a cardiologist named J. Diez. When Dukes' counsel asked the panel if any of them would be unable to give the trial his undivided attention, Diez responded:

DIEZ: In response to your question using your words “undivided attention” I do take every time you're talking but I need to get my medicines so I can take care of people so undivided attention quite possible it will happen sir. [sic]

COUNSEL: Juror No. 12 basically if I understand you you're saying that your life is such that there are things going on constantly that distract you?

DIEZ: My life is taking care of other's [sic] so I have to plan for whose going to do this or that.

COUNSEL: So do you feel that because your life is that way that it would interfere with your ability to be a fair juror because you would be distracted and you might miss something?

DIEZ: In regard to your question regarding undivided attention I'm disclosing.

COUNSEL: Okay. Thank you.

Defense counsel challenged Diez for cause, claiming that Diez could not be fair because his work duties would be a distraction. The trial court denied the challenge.

To preserve an objection to the denial of a challenge for cause, counsel must (1) exercise a peremptory challenge on the objectionable venire member, (2) exhaust all peremptory challenges, (3) request, and be denied, additional peremptory challenges, and (4) identify another objectionable juror who sat on the case because counsel used all his peremptory challenges. Johnson v. State, 43 S.W.3d 1, 5–6 (Tex.Crim.App.2001). When the jury was empaneled, defense counsel objected to the empanelment of several jurors on whom he claimed he would have used peremptory challenges had his challenges for cause been granted or had he received the additional strikes that he had requested. Because counsel complied with Johnson's requirements, he properly preserved error. Id.

Article 35.16 of the Code of Criminal Procedure lists a number of reasons for which counsel may challenge a venire member for cause. Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006). It does not include as a possible reason that the venireperson may be distracted by personal matters; thus, Diez's responses do not provide a statutory basis for granting a challenge for cause. See id. The trial court may, however, in its sound discretion grant challenges for cause for reasons not enumerated in article 35.16. See Maldonado v. State, 998 S.W.2d 239, 248 n. 14 (Tex.Crim.App.1999) (“[C]hallenges not based upon a ground specifically enumerated in Article 35.16 are addressed to the sound discretion of the trial judge.”). A trial judge's ruling on a challenge for cause may be reversed only for a clear abuse of discretion. Davis v. State, 329 S.W.3d 798, 807 (Tex.Crim.App.2010). We afford particular deference to the trial judge's ruling on a challenge for cause when a venire member's answers are vacillating, unclear, or contradictory. Id.

Because it observed the venire member's demeanor, the trial court was in the best position to interpret the venire member's remarks. Id. In this instance, the venire member responded that he had responsibilities to attend to and that he would have to plan for, but he did not clearly state that these responsibilities would prevent him from paying attention to the trial. The trial court, therefore, acted within its discretion in concluding that this venire member, had he been selected to serve, would have followed the trial court's instructions and fulfilled his duties as a juror. Therefore, we hold that the trial court did not abuse its discretion in denying Dukes' challenge.

II. Legal Sufficiency

Dukes contends that the evidence is not legally sufficient to support his conviction for murder. Specifically, he argues that the evidence does not prove that he intended to shoot Bates–Williams.

Standard of Review

Under the standard of review for legal sufficiency challenges, the evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970) ; Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009) ; Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). The factfinder must resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts. Murray v. State, 457 S.W.3d 446, 448 (Tex.Crim.App.2015) (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 ). For review, we determine whether necessary inferences are reasonable in light of the combined and cumulative force of all the evidence, viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). We presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793 ; Clayton, 235 S.W.3d at 778. We also defer to the factfinder's evaluation of the credibility and weight of the evidence. Williams, 235 S.W.3d at 750. The standard of review is the same for circumstantial and direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000).

Analysis

Murder is a “result-of-conduct” crime, which the Penal Code defines in terms of the result of the perpetrator's actions. See Young v. State, 341 S.W.3d 417, 423 (Tex.Crim.App.2011) (observing that “result of conduct” offenses concern the product of certain conduct). A person commits murder by (1) intentionally or knowingly causing the death of an individual or (2) with intent to cause serious bodily injury, committing an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1), (2) (West 2011). A person acts intentionally with respect to his conduct when it is his objective to cause the prohibited result, and a person acts knowingly with respect to his conduct when he is aware that his conduct is reasonably likely to...