Esteves v. State, 01-89-00775-CR

• Decision Date: 09 July 1992
• Docket Number: No. 01-89-00775-CR,01-89-00775-CR
• Citation: 845 S.W.2d 291
• Parties: Eric Victor ESTEVES, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 291

845 S.W.2d 291

Eric Victor ESTEVES, Appellant, v. The STATE of Texas, Appellee.

No. 01-89-00775-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

July 9, 1992.

Rehearing Denied Jan. 13, 1993.

Eric Victor Esteves, pro se.

John B. Holmes, Jr., Dist. Atty., Ernest Davilla, Leslie Brock, Asst. Dist. Attys., for appellee.

Before MIRABAL, O'CONNOR and SAM BASS, JJ.

OPINION

SAM BASS, Justice.

A jury found appellant, Esteves, guilty of aggravated robbery. Finding the enhancement allegations true, the jury assessed punishment for life.

We affirm.

Late one evening, Debois and Haba went to see a basketball game. Because they arrived late, they parked some distance from the stadium. As they walked toward the stadium, a blue car approached and stopped, blocking their path. Appellant opened the door and stepped in front of them with a pistol.

Appellant demanded their money and stated "Don't jack with me or I'll kill you," pointing the pistol and waving it back and forth. Terrified, Debois and Haba began looking through their purses.

The driver told appellant to take the purses. Appellant grabbed Debois's arm and took both Debois and Haba's purses. Appellant got back into the car and left. Debois and Haba went to a nearby security guard, who called the police. Debois and Haba gave the police a description of the assailant and the car.

About seven hours later, appellant, along with Riles and Mayfield were arrested at a convenience store for having committed the offenses of criminal mischief and unauthorized use of a motor vehicle. The arresting police officers found several purses in the back seat of the car at the store. The purses were given to the Houston Police Robbery Division, and two were later identified as those stolen from Debois and Haba.

Appellant was placed in a five-man lineup. The lineup was videotaped. One day later, the videotape was separately shown to Debois and Haba. Haba positively identified appellant as the robber.

In point of error one, appellant argues he was denied a fair trial because the State peremptorily struck four black venire members on the basis of race.

The equal protection clause of the fourteenth amendment of the United States Constitution forbids a prosecutor from excluding venirepersons from jury service solely because of their race. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1991); Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986); U.S. CONST. amend. 14. Our State constitution also prohibits Batson-type discrimination in the selection of a jury. Hill v. State, 775 S.W.2d 754, 755 (Tex.App.--Dallas 1989, pet. ref'd); TEX. CONST. art. I, § 3a.

In reviewing a Batson claim, an appellate court must determine if the State exercised its peremptory strikes in a purposefully discriminatory manner. Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App.1988). The standard of review for a Batson challenge is whether the fact findings of the trial court are clearly erroneous. Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (op. on reh'g) (specifically modifying the "supported by the record" standard adopted in Keeton, 749 S.W.2d at 870). A trial court's finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Whitsey, 796 S.W.2d at 728.

Appellant complains the four black venirepersons were peremptorily struck by the State. Because the State's overall conduct in jury selection is relevant in proving discrimination, however, we must review each peremptory strike of a black venireperson and the plausible, racially-neutral explanation offered by the State for each. Whitsey, 796 S.W.2d at 727.

The prosecutor testified she struck Reed because she was not responsive to her questions. Another prosecutor noted that Reed had yawned throughout the voir dire proceedings. This was a legitimate, race-neutral reason to strike. York v. State, 764 S.W.2d 328, 331 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd).

When neutral explanations are offered it becomes the defendant's burden to persuade the court that such challenges were racially motivated. Lewis v. State, 815 S.W.2d 560, 563 (Tex.Crim.App.1991); Jones v. State, 781 S.W.2d 415, 417-18 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd). Appellant offered no rebuttal.

The prosecutor testified she struck Simmons because she had indicated that she would need more than one witness before she could vote for conviction. Only after being repeatedly told by the trial judge did Simmons agree to follow the one-witness rule. Garrett v. State, 815 S.W.2d 333 (Tex.App.--Houston [1st Dist.] 1991, pet. ref'd).

Simmons also stated she had a first cousin who was charged with aggravated robbery.

Other courts have recognized that kinship to a person who has trouble with the law can constitute a legitimate, racially-neutral reason for striking a venireperson. Sims v. State, 768 S.W.2d 863, 865 (Tex.App.--Texarkana 1989) pet. dism'd, 792 S.W.2d 81 (Tex.Crim.App.1990) (citing Rijo v. State, 721 S.W.2d 562 (Tex.App.--Amarillo 1986, no pet.). Appellant offered no rebuttal.

The prosecutor testified Harrison was struck because she had an uncle convicted for sexual assault of a child. Sims, 768 S.W.2d at 865. In response to the appellant's rebuttal, the prosecutor explained she did not strike a white venireperson who had a nephew in prison for armed robbery because the venireperson explained he was not close to his nephew and had completely forgotten about his nephew's Louisiana conviction until he was questioned during voir dire. This explanation was sufficient to explain the differences in the strikes of the two parties so as to show no racial basis.

The prosecutor explained she struck Ross because Ross had stared at her from the moment that she entered the courtroom. No other member stared at her to that degree. Again, appellant offered no rebuttal.

The trial court's determination to accept the prosecutor's explanations should be reviewed with great deference as they involve an evaluation of credibility. Tompkins v. State, 774 S.W.2d 195, 202 (Tex.Crim.App.1987). Here, the appellant has not shown that the trial court's determination was "clearly erroneous." Whitsey, 796 S.W.2d at 726.

We overrule appellant's point of error one.

In point of error two, appellant argues the trial court erred in allowing the State to introduce testimony of a pretrial lineup identification. Appellant contends the lineup shown was impermissibly suggestive and it resulted in irreparable misidentification.

Houston Police Sergeant McClane testified the lineup was held less than two days after the offense. The lineup consisted of five men wearing similar pants but different colored shirts. Appellant was allowed to chose his position in the lineup. The men had similar hair length and facial hair.

The next day, Debois and Haba were each shown a videotape of the lineup. Although Debois could not positively identify the appellant, Haba immediately picked appellant as her assailant. Sergeant McClane stated Debois and Haba viewed the videotape separately and were told the lineup may not include the persons that robbed them.

Appellant argues the lineup contained height, weight, and shirt disparities between the participants. Sergeant McClane testified the appellant was 6' 1"' and weighed 180 pounds. The other four men were: 6' 4"', 180 pounds; 6' 1"', 150 pounds; 6' 2"', 216 pounds; and 5' 10"', 165 pounds. Appellant was the only participant wearing an orange shirt. ¹

We do not find the circumstances of the lineup impermissibly suggestive. It is not essential that all the individuals be identical. Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App.1985). "[N]either due process of law nor common sense" requires such exactitude. Herrera v. State, 682 S.W.2d 313, 319 (Tex.Crim.App.1984) (citing Dickson v. State, 492 S.W.2d 267, 271 (Tex.Crim.App.1973)).

Even if we assume for purposes of argument that the procedure was suggestive, we find Haba's identification reliable. Reliability is the "linchpin" in determining the admissibility of identification testimony. Munguia v. State, 603 S.W.2d 876, 878 (Tex.Crim.App.1980) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977)).

In determining the reliability, we consider: (1) the witness' opportunity to view the defendant during the commission of the offense; (2) the witness' degree of attention; (3) the accuracy of the prior description of the accused; (4) the level of certainty of the identification; and (5) the amount of time between the crime and the identification. Munguia, 603 S.W.2d at 878.

Here, Haba testified the area was well lit and she got a good look at appellant's face. Haba had described appellant to the police as a black man with dark complexion, approximately 6' tall and 170 to 200 pounds. At trial, she expressed no doubt appellant was her assailant and stated she could have identified the appellant at trial even if she had not seen the videotaped lineup. In addition, less than 40 hours had elapsed between the offense and the showing of the lineup.

Unless it is shown by clear and convincing evidence that the identification was irreparably tainted, this Court will not reverse a conviction on these grounds. Jackson v. State, 628 S.W.2d 446, 448 (Tex.Crim.App.1982).

We overrule appellant's point of error two.

In points of error three, four, and 12, the appellant argues his counsel was ineffective for failing to object to testimony concerning the circumstances of his arrest as improper evidence of an extraneous offense.

To obtain a reversal on the ground of ineffective assistance of counsel, an appellant must show: (1) his counsel's performance was so deficient that counsel was not...