Hawkins v. State, 05-88-01389-CR

• Decision Date: 25 June 1990
• Docket Number: No. 05-88-01389-CR,05-88-01389-CR
• Parties: Melvin Dewayne HAWKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 291

793 S.W.2d 291

Melvin Dewayne HAWKINS, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-01389-CR.

Court of Appeals of Texas,

Dallas.

June 25, 1990.

John Nation, Dallas, for appellant.

Yolanda M. Joosten, Dallas, for appellee.

Before HOWELL, BAKER and BURNETT, JJ.

OPINION

BAKER, Justice.

Melvin Dewayne Hawkins was found guilty of delivery of a simulated controlled substance and was assessed a ten year sentence. On original submission, we abated this appeal to the trial court to conduct a Batson ¹ hearing. See Hawkins v. State, 783 S.W.2d 288 (Tex.App.--Dallas 1989, no pet.). Pursuant to our order, the trial court held the hearing, entered findings of fact and conclusions of law, and determined that no racial discrimination had been present during jury selection. These findings and conclusions and the transcript of the testimony at the Batson hearing are now before the Court.

This case is now before us to consider appellant's complaints that the trial court erred in: (1) denying him access to the prosecutor's jury selection notes for the purpose of cross-examination during the Batson hearing; (2) finding that no racial discrimination was used by the State because of its peremptory challenges; and (3) overruling his objections to prosecution argument which was outside the record. We affirm the trial court's judgment.

In his first supplemental point of error, appellant contends that the trial court erred by refusing him access to the prosecutor's jury selection notes for the purpose of cross-examination. During cross-examination of the prosecutor who conducted the jury selection, defense counsel established that the prosecutor had reviewed her notes prior to testifying. Defense counsel requested that these notes be produced for cross-examination. The State objected, contending that the notes were exempt from disclosure as attorney work product. See TEX.CODE CRIM.PROC.ANN. art. 39.14 (Vernon 1979). The trial court sustained the State's objection. Appellant argues that rule 611 of the Texas Rules of Criminal Evidence requires production of any writing used by a witness to refresh his memory for the purposes of testifying. See TEX.R.CRIM.EVID. 611; Ballew v. State, 640 S.W.2d 237, 244 (Tex.Crim.App.1982) (op. on reh'g); Marsh v. State, 749 S.W.2d 646, 648 (Tex.App.--Amarillo 1988, pet. ref'd). We hold that appellant has failed to preserve error, if any. It was appellant's burden to include in the record all matters which illustrate the error he asserts. TEX.R.APP.P. 50(d); Garcia v. State, 758 S.W.2d 937, 939 (Tex.App.--El Paso 1988, no pet.). Appellant failed to perfect a bill to include the prosecutor's notes in the record as is required to preserve error. TEX.R.APP.P. 52; see Odom v. State, 766 S.W.2d 257, 259 (Tex.Crim.App.1989); Hoffman v. State, 514 S.W.2d 248, 252 (Tex.Crim.App.1974). We overrule appellant's first supplemental point.

In his second supplemental point of error, appellant contends that the trial court erred by finding that no racial discrimination was exercised by the State in its use of its peremptory challenges against five potential jurors who were of appellant's race. The Equal Protection Clause forbids a prosecutor from challenging potential jurors solely on account of their race or on the assumption that jurors of the same race as defendant, as a group, will be unable to impartially consider the State's case against that defendant. Batson, 476 U.S. at 96, 106 S.Ct. at 1722; Dewberry v. State, 776 S.W.2d 589, 590 (Tex.Crim.App.1989). Because we previously determined that appellant established an inference of discrimination, the burden shifted to the State to come forward with a racially neutral explanation for the strikes exercised. See Hawkins, 783 S.W.2d at 292. While the State's reason for striking a particular juror need not rise to the level of a challenge for cause, it must be racially neutral. See Tompkins v. State, 774 S.W.2d 195, 200 (Tex.Crim.App.1987), aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989). Under Batson, the State may still rely on legitimate "hunches" and past experiences as guidance in exercising its peremptory strikes so long as racial discrimination is not the motive. See Keeton v. State, 749 S.W.2d 861, 865 (Tex.Crim.App.1988) (Keeton II ). However, the State's burden is to articulate a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried and which is nondiscriminatory. Keeton II, 749 S.W.2d at 868. When reviewing the lower court proceedings involving a Batson challenge, the appellate court's focus is similar to that of the trial judge. We must consider whether a case of purposeful discrimination was established. Keeton II, 749 S.W.2d at 870. We are not to substitute our judgment of the witnesses' credibility and evidentiary weight for those of the fact finder. Tompkins, 774 S.W.2d at 202. We are required to consider the evidence in the light most favorable to the trial judge's rulings and determine if those rulings are supported by the record. ² If the record supports the trial judge's finding, they will not be disturbed on appeal. Keeton II, 749 S.W.2d at 870.

Appellant is black. The State's two principal witnesses were not. After challenges for cause, thirty-five potential jurors were available to serve. Of these thirty-five jurors, eight were black. The State exercised all of its ten peremptory challenges. Five of these challenges were used to strike black jurors. The State did not exercise peremptory challenges on two black jurors who served on the jury. The eighth black juror was struck by the defense. During voir dire, the State did not individually question the prospective jurors. The five black jurors struck by the State were number five, Reginald Hill; number seven, Betris Loyd; number sixteen, Bette Joe Tippett; number nineteen, Karon Sherman; and number thirty, Anese Grafton.

The prosecutor testified that she struck number five, Reginald Hill, because Hill indicated during questioning that he had had a bad experience with police officers in the past and didn't feel he was treated right by the police. In this case, the State's primary witnesses were police officers. Also, according to the State's record check, there was a misdemeanor theft involving a person who had the same name and birth date as Hill. However when later questioned by the court, Hill denied that he had a theft conviction. Appellant argues that these facts establish grounds for a challenge for cause, and therefore the State's failure to seek a challenge for cause on Hill weighs heavily against the legitimacy of the State's explanation for peremptorily striking Hill. We disagree. A reason for striking a particular juror need not rise to the level of a challenge for cause; it need only be racially neutral. See Tompkins, 774 S.W.2d at 200. We hold when the evidence is considered in the light most favorable to the trial judge's ruling, that the ruling is supported by the record.

The prosecutor testified that she struck number seven, Betris Loyd, because Loyd indicated on more than one occasion that she was having difficulty with the law. This was a simulated controlled substance case, and the prosecutor testified that she thought Loyd was not open-minded toward the law at all and indicated that Loyd felt the law was unfair. At the Batson hearing, appellant's trial counsel testified that he likewise recalled that Loyd had a problem with the law on that particular offense. Appellant argues that Loyd's responses to the State's questions were equivocal and that under the circumstances this does not translate to a bias or prejudice against the law upon which the State was entitled to rely. Appellant argues that had Loyd been biased or prejudiced against the State's ability to punish someone for selling a simulated, controlled substance, Loyd would have been subject to exclusion for cause. See TEX.CODE CRIM.PROC.ANN. art. 35.16(b)(3) (Vernon 1989). Again, the reason for striking a particular juror need not rise to the level of a challenge for cause; it need only be racially neutral. Tompkins, 774 S.W.2d at 200. This was a simulated controlled substance case, and the juror expressed reservations about the law's fairness. When the evidence is considered in the light most favorable to the trial judge's ruling, we find the ruling is supported by the record.

The prosecutor testified that she struck number sixteen, Bette Joe Tippett, because Tippett indicated that she had family members involved in drugs. The prosecutor recalled Tippett indicated she had a brother who was killed, that she had witnessed a murder, and also that she had a sister who was involved with drugs. Appellant argues that the record reflects that the State made no attempt to question Tippett further so as to evoke any bias or prejudice against the State's position. Although this juror's responses do not rise to the level of a challenge for cause, because of their relation to the circumstances of the case itself, we hold the record supports the trial court's ruling that this challenge was not for racial reasons.

The prosecutor testified that she struck number nineteen, Karon Sherman, because Sherman indicated that she would have difficulty finding an accused guilty if only one witness testified and that she had a family member who was hurt by drugs. Appellant argues that Sherman was examined by the court and that her answer to the court indicated that she was opposed to the use of drugs rather than against enforcement of drug laws. He argues Sherman's examination shows no bias or prejudice against the law upon which the State was entitled to rely. Again, this particular juror's responses do not rise to the level of a challenge for cause; but, because of their relation to the facts of the case, we hold that the record supports the court's ruling that this challenge was not for racial reasons.

The prosecutor testified that number...