Gerber v. State

• Decision Date: 14 January 1993
• Docket Number: No. 01-89-01022-CR,01-89-01022-CR
• Citation: 845 S.W.2d 460
• Parties: Ellery Fredrick GERBER, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 460

845 S.W.2d 460

Ellery Fredrick GERBER, Appellant, v. The STATE of Texas, Appellee.

No. 01-89-01022-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 14, 1993.

Discretionary Review Refused

April 14, 1993.

Rehearing Denied May 12, 1993.

Brian W. Wice, Houston, for appellant.

John B. Holmes, Dist. Atty., Timothy G. Taft, Jim Buchanan, Asst. Dist. Attys., Houston, for appellee.

Before DUGGAN, COHEN and PRICE ^*, JJ.

OPINION

DUGGAN, Justice.

A jury convicted appellant of murder, and the trial court assessed his punishment, enhanced by one prior felony conviction, at 40-years confinement. We affirm.

Appellant does not challenge the sufficiency of the evidence to support his conviction; therefore, we briefly state the facts. Appellant, his girlfriend, and the complainant, who were friends, were drinking at appellant's girlfriend's two-story townhome when appellant and the complainant became involved in a fight. Appellant picked up a steak knife, and his girlfriend took it away, sustaining injuries that required surgery to repair the tendons and ligaments in her hand. Everything became quiet, and appellant left the room. Appellant returned a short time later with a gun and fired a shot. The complainant told appellant to "be cool" as the complainant raised his hands and began to back away. Appellant shot the complainant through the left eye, causing his death.

Appellant presented the testimony of one of the police officers who arrived at the scene shortly after the shooting. This officer testified that appellant told him that he thought the gun contained blanks, that the gun "accidentally went off" as he came down the stairs, and that "he didn't intend to shoot but that it was an accident."

The jury was instructed on murder, voluntary manslaughter, involuntary manslaughter, aggravated assault, criminally negligent homicide, and reckless conduct. The trial court also submitted a jury issue on a mistake-of-fact defense that instructed the jury to acquit appellant of murder if it found, or had a reasonable doubt, that he reasonably believed the gun contained blanks. The jury convicted appellant of murder.

The first two points of appellant's nine points of error assert the trial court erred in permitting the State to use its peremptory challenges to exclude five minority veniremembers from the jury in violation of TEX.CODE CRIM.P.ANN. art. 35.261 (Vernon 1989) (point one), and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (point two).

A defendant has standing to assert the equal protection rights of those who are prevented from serving as jurors through the State's discriminatory use of its peremptory strikes, and the defendant does not have to be of the same race as the excluded jurors to have standing to assert their rights. Powers v. Ohio, 499 U.S. 400, ----, 111 S.Ct. 1364, 1370-74, 113 L.Ed.2d 411 (1991); State v. Oliver, 808 S.W.2d 492, 496 (Tex.Crim.App.1991); see Atuesta v. State, 788 S.W.2d 382, 384 (Tex.App.--Houston [1st Dist.] 1990, pet. ref'd); see also Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Once a defendant makes a prima facie case of purposeful discrimination in the State's use of its peremptory challenges, the burden shifts to the State to present race-neutral explanations for its challenges. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Oliver, 808 S.W.2d at 495; see Atuesta, 788 S.W.2d at 384; TEX.CODE CRIM.PROC.ANN. art. 35.261 (Vernon 1989).

An appellate court reviews the trial court's factual findings with "great deference" to determine whether they are clearly erroneous. See Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (op. on reh'g); Moore v. State, 811 S.W.2d 197, 199 (Tex.App.--Houston [1st Dist.] 1991, pet. ref'd). We review the evidence in light of the entire record, and in the light most favorable to the trial court's findings. See Whitsey, 796 S.W.2d at 721 (this analysis is synonymous with the "clearly erroneous" standard); Moore, 811 S.W.2d at 199. An appellate court should not substitute its judgment for the trial court's determination of a witness' credibility and the weight to be given the testimony unless objective or other extrinsic evidence contradicts the witness' testimony, or the witness' testimony is internally inconsistent or implausible on its face. See Whitsey, 796 S.W.2d at 722; ¹ Moore, 811 S.W.2d at 199.

In a Batson context, the trial court's role is the most important and the most difficult; it must "consider whether the [prosecutor's] facially neutral explanations are contrived to avoid admitting acts of group discrimination" by considering factors such as those set out in Keeton v. State, 749 S.W.2d 861, 865-69 (Tex.Crim.App.1988) (sets out types of evidence that a trial court should consider in determining whether a defendant establishes a prima facie case of purposeful discrimination, whether the State overcomes the presumption of discrimination with race-neutral explanations, and whether the State's race-neutral explanations are a sham).

Our role is to apply a deferential standard of review to the trial court's findings by considering the voir dire process, including the racial constitution of the venire, the prosecutor's neutral explanations, and appellant's rebuttal and impeaching evidence. See Whitsey, 796 S.W.2d at 726; Keeton, 749 S.W.2d at 869-70. The race of the victim of the offense and the State's witnesses may also be relevant considerations. See Dewberry v. State, 776 S.W.2d 589, 591 (Tex.Crim.App.1989). Where the trial court's findings are based solely on credibility determinations, those findings are largely "insulated" from appellate review. See Whitsey, 796 S.W.2d at 722.

Prior to the jury being sworn, appellant raised a Batson objection. At the Batson hearing, it was established the State used five of its 10 peremptory challenges on minority veniremembers Mouton, Carpenter, Gutierrez, Levi, and Ramsey. ² One minority member served on the jury. Appellant, the complainant, and the eyewitness, who was appellant's girlfriend, are white. Therefore, this is not a case where an all-white jury tried a black defendant for a crime committed against a white person. See Dewberry, 776 S.W.2d at 591. The trial court ruled that appellant established a prima facie case of purposeful discrimination, and directed the prosecutor to explain his reasons for striking the five minority veniremembers. Following the prosecutor's explanations, and appellant's cross-examination of the prosecutor, the trial court denied appellant's Batson claim.

Mouton

During voir dire, Mouton, a black male, told the prosecutor he had been on a criminal jury that had been able to reach a verdict in a "pollution case," and he had testified as a character witness for a friend accused of DWI. The prosecutor explained he peremptorily struck Mouton based on his history of being a character witness for a friend in a DWI case.

On cross-examination, the prosecutor testified that Mouton's prior jury service had nothing to do "with any substantial issue that would be put before the jury concerning this case," and was only one of the factors he considers in making his strikes.

Q.: Any issues of his [Mouton] being involved in having anything to do with any substantial issue that would be put before the jury concerning this case?

A.: His prior jury service. Is that what you're asking?

Q.: Yeah.

A. No, sir. Prior jury service is one of the many issues that is considered when I'm making my strikes. I also struck Juror number 30 who is a white male, 31 years of age who was a prior juror in a possession of a controlled substance case, which indeed was a criminal case. So it is an issue that I take into account when I'm making my strikes. It is not something that I base my total strikes on.

Q.: So you're saying that juror had prior criminal jury experience is jurors you normally strike.

A.: No. I'm not saying that at all. I'm saying that it is one of the factors that I weigh when I'm determining which people to strike.

The trial court indicated the prosecutor's explanation, that he struck Mouton because he was a character witness for a friend in a DWI case, was "a little questionable."

Appellant argues the prosecutor failed to ask Mouton any meaningful questions that supported his later explanation for challenging him. This is a factor the trial court should consider in determining whether purposeful discrimination is shown, but it is not dispositive. E.g., Keeton, 749 S.W.2d at 868.

A potential juror who previously testified as a character witness for an accused in a criminal case might be biased against the State. Moreover, since appellant's questions on cross-examination went only to the prosecutor's consideration of prior jury service in exercising peremptory challenges, the prosecutor's explanation, i.e., that he struck Mouton because Mouton was a character witness for a friend in a criminal case, went unrebutted. See Keeton, 749 S.W.2d at 871-72 (prosecutor's facially "race-neutral" explanation was unrebutted) (Teague, J., concurring). Moreover, there is no evidence that white persons with the same or similar characteristics as Mouton were not struck, while there is evidence that at least one white person with the same or similar characteristics as Mouton was struck. See id. at 868 (disparate treatment is evidence that can be used to show sham or pretext). The trial court's finding is based on the prosecutor's testimony, which is uncontradicted by objective or other extrinsic evidence of disparate treatment or other racial discrimination. See Whitsey, 796 S.W.2d at 722.

Carpenter

The prosecutor testified he struck Carpenter, a black male, because he wore sunglasses during voir dire that prevented the prosecutor from being able to tell whether his eyes were open, or whether he was looking at the questioner during voir dire. The prosecutor admitted he did not ask Carpenter a single question during voir dire except for the...