Harris v. State

Decision Date22 April 1992
Docket NumberNo. 70167,70167
Citation827 S.W.2d 949
PartiesKenneth Bernard HARRIS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

CAMPBELL, Judge.

At a trial held in Harris County in late 1987 and early 1988, a jury found appellant, Kenneth Bernard Harris, guilty of capital murder. See Tex.Penal Code § 19.03(a)(2). At the punishment stage of the trial, the jury answered affirmatively the special issues required by Article 37.071(b) of the Texas Code of Criminal Procedure, 1 and appellant's punishment was assessed at death. Direct appeal to this Court is automatic under Article 37.071(h). We will affirm the judgment of the trial court.

Viewed in the light most favorable to the jury's verdict, the evidence at trial established that on June 7, 1986, in Harris County, appellant strangled the victim while in the course of sexually assaulting her. Appellant does not challenge the sufficiency of the evidence to support the finding of guilt or the assessment of punishment.

In twenty points of error, appellant argues the trial court erred in: denying him the opportunity to cross-examine the prosecutor at his Batson 2 hearings; allowing the prosecutor to strike four black venirepersons solely on the basis of their race; denying appellant's motions to dismiss for want of a speedy trial; admitting in evidence, at the guilt/innocence stage, two incriminating, tape-recorded statements made by appellant after his arrest; denying appellant's motion for mistrial based on the State's failure to disclose evidence favorable to the defense; admitting evidence of extraneous misconduct at the punishment stage; refusing to instruct the jury to disregard certain testimony; and refusing to instruct the jury on the meaning of the term "deliberately" as used in the court's charge on punishment. Appellant also contends the prosecutor engaged in incurably harmful final argument at the punishment stage. We will address these points of error in the order in which they arose at trial.

In his first point of error, appellant argues the trial court erred in not allowing him to cross-examine the prosecutor during pretrial hearings held pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State argues in response that appellant had no right to cross-examine the prosecutor during these hearings.

The record reflects that appellant is black and that the prosecutor peremptorily struck four black venirepersons: Dawnella Swan, Gloria Paul, Anthony Hackett, and Corine Charles. The record reflects also that after each strike, appellant objected that it was made solely on the basis of race, in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. Although the trial court found each time that a prima facie showing of racial discrimination had been made, and then required the prosecutor to provide racially-neutral explanations for the strikes, the trial court did not allow appellant to cross-examine the prosecutor regarding those explanations.

On June 5, 1991, in an unpublished opinion, we sustained appellant's first point of error, abated the appeal, and remanded the cause to the trial court for a full, adversarial Batson hearing. We ordered that appellant be given an opportunity at that hearing to cross-examine the prosecutor with respect to the reasons the prosecutor had previously given for the peremptory strikes in question. See Salazar v. State, 795 S.W.2d 187, 192 (Tex.Cr.App.1990) (right to cross-examine prosecutor is necessary component of Fourteenth Amendment right to Batson hearing).

On January 30, 1992, another Batson hearing was held in the trial court, pursuant to this Court's order. Although given an opportunity at that time to cross-examine the prosecutor, appellant's counsel declined to do so on the ground that, unavoidably, he was "not ready to proceed." Appellant's counsel explained to the trial court that his file of appellant's case--including his notes of the voir dire--had been "temporarily lost" and that he was unable to proceed without that file. He requested thirty additional days in which to search for the missing file. Appellant's counsel made this request despite the fact that he had been on notice since June 5, 1991, that another Batson hearing was pending.

The trial court, exhibiting commendable patience, gave appellant's counsel until February 27, 1992, to locate the missing file. Appellant's counsel apparently failed to do so, and on February 27, the trial court forwarded the record of the January 30 hearing to this Court.

Appellant does not now complain of the trial court's handling of the final Batson hearing. We hold, therefore, that with respect to his first point of error, appellant has received all the relief which he has requested or to which he is entitled.

In his second point of error, appellant argues the trial court erred in denying his Batson objections and allowing the prosecutor to peremptorily strike the four black venirepersons mentioned previously. Appellant argues that the voir dire record shows that the reasons the prosecutor gave for the peremptory strikes were mere pretexts for intentional racial discrimination. The State argues in response that the record supports the trial court's finding of no purposeful discrimination.

At the pretrial Batson hearings, the prosecutor testified that he struck venireperson Swan because, inter alia, Swan's brother was then on eight years probation for burglary 3; that he struck venireperson Paul because she "expressed an inability to ... vote for the death penalty," i.e., to vote "yes" to the two punishment issues; that he struck venireperson Hackett because Hackett indicated that "he would hold the State to proof beyond any and all doubt [rather than proof beyond a reasonable doubt] before he could answer [punishment issues] one and two 'yes' "; and that he struck venireperson Charles because, inter alia, she stated that she could never answer "yes" to the two punishment issues.

The Fourteenth Amendment's equal protection clause prohibits purposeful racial discrimination by the State in its use of peremptory strikes. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 1367, 113 L.Ed.2d 411 (1991); Batson, 476 U.S. at 85, 106 S.Ct. at 1717. To establish a prima facie 4 case of purposeful discrimination in the State's use of peremptory strikes,

the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. [Next], the defendant must show that [this] fact[ ] and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race....

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances....

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging [the] jurors [in question]. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, ... the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause.... The prosecutor ... must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.

Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-24.

Because the trial judge is able to evaluate the credibility of the witnesses at the Batson hearing before he makes his ruling, a reviewing court must view the record in the light most favorable to that ruling and must not disturb that ruling unless it is clearly erroneous. In other words, a reviewing court must not reverse a trial court's Batson decision unless the reviewing court is left with a firm conviction that a mistake has been committed. Williams v. State, 804 S.W.2d 95, 101 (Tex.Cr.App.), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991); Whitsey v. State, 796 S.W.2d 707, 721 (Tex.Cr.App.1990).

Having carefully examined the record of the Batson hearing and the voir dire, we conclude that the trial court's finding of no purposeful discrimination is supported by the record and is not, therefore, clearly erroneous. The prosecutor's explanations for his peremptory strikes were racially neutral, logically related to the case to be tried, and based directly on the responses of the venirepersons in question. See Tennard v. State, 802 S.W.2d 678, 681-682 (Tex.Cr.App.1990) (venireperson properly struck because she was opposed to death penalty), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991); DeBlanc v. State, 799 S.W.2d 701, 711-712 (Tex.Cr.App.1990) (venireperson properly struck because he would hold State to too-high burden of proof), cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); Wilson v. State, 769 S.W.2d 682, 683 (Tex.App.--Beaumont 1989, no pet.) (venireperson properly struck because his family member was convicted of burglary). Furthermore, appellant has shown us nothing in the record indicating that the prosecutor's reasons mentioned above were pretexts for intentional discrimination. Appellant's second point of error is overruled.

In point of error number three, appellant argues the trial court erred in denying his motion, based on the Texas Speedy Trial Act, to dismiss the indictment for want of a speedy trial. The State argues in response that the Act is...

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