Johnson v. State

• Decision Date: 30 January 2002
• Docket Number: No. 73765.,73765.
• Citation: 68 S.W.3d 644
• Parties: Derrick Lamone JOHNSON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

68 S.W.3d 644

Derrick Lamone JOHNSON, Appellant, v. The STATE of Texas.

No. 73765.

Court of Criminal Appeals of Texas.

January 30, 2002.

Douglas H. Parks, Dallas, for appellant.

Anne B. Wetherholt, Assist. DA, Dallas, Matthew Paul, State's Attorney, Austin, for state.

OPINION

KELLER, P.J., delivered the opinion of the Court in which MEYERS, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was convicted in November 1999 of capital murder.¹ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure, Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death.² Direct appeal to this Court is automatic.³ Appellant raises twenty-three points of error. We will affirm.

A. Facts

On January 21, 1999, LaTausha Curry, age 25, lived with her parents in the Oak Cliff area of Dallas. She owned a red, 1987 Ford Taurus. That evening she set out for Camp Wisdom road to meet someone for a date. She never returned. In a written confession, appellant admitted that he and an accomplice sexually assaulted and killed Curry, and in an oral statement given before the body had been discovered, he told the police where Curry's body could be found. The body was found where appellant said it would be. Appellant's fingerprints were found in the victim's car, and DNA testing matched appellant to seminal fluid found on Curry's sweat pants.

At around midnight on the evening Curry disappeared, Stella Wilson went to a gas station. At the station, she noticed what she described as a "burgundy" car occupied by two young black men. One of these men later pointed a gun at her and demanded her purse, which she relinquished. In court, she identified appellant as the robber and driver of the car. She also identified Curry's red Ford Taurus as the car he was driving.

About 1:30 to 2:00 a.m. on January 22nd, Tanya Robinson, an assistant manager at a Jack in the Box, was driving home from work. She noticed behind her a reddish car occupied by two people. The red car began to chase her and hit her car while both vehicles were going about seventy-five miles per hour. She stopped her car, and when the driver of the red car got out of the car, she put the car in reverse and tried to run over him. Robinson then drove back to the Jack-in-the-Box and asked an employee to call the police. She then began to chase the red car to get a license plate number. The police subsequently joined the chase.

During the chase, Officer Larry Byers saw the red car crash and two black males run from the car. Byers identified appellant as the driver. Robinson caught up with the red car after the occupants had fled and therefore was not able to identify the driver at trial. She did, however, identify the victim's Ford Taurus as the car that had chased her. The victim's car was impounded and searched, resulting in the recovery of various items, including a pipe made to look like a gun, a mace dispenser, and a cell phone.

As a result of this incident appellant was charged with the capital murder of Curry under three different legal theories: murder in the course of kidnapping, murder in the course of robbery, and murder in the course of aggravated sexual assault. Two different theories of party liability were submitted to the jury: intent to promote the commission of the offense⁴ and commission of the offense during a conspiracy.⁵

B. Guilt

1. Batson

In point of error one, appellant contends that the trial court erred in failing to sustain his Batson⁶ objection to the State's exercise of a peremptory challenge against prospective juror Vines. Vines is an African American. In response to appellant's objection, the State offered the following reasons for the strike:

1. Vines failed to disclose, on her jury questionnaire, a prior arrest for driving while her license was suspended.

2. Vines's answers to questions revealed a resentment towards police officers.

3. Vines had an undue tendency to answer the future dangerousness affirmatively, was biased against the minimum range of punishment for the lesser included offense of murder, and harbored a bias against the mitigation special issue.

Defense counsel offered no evidence to rebut the State's reasons.

Appellant now claims that the State's reasons were insufficient. According to Batson v. Kentucky, the use of peremptory challenges to intentionally exclude persons from the jury because of race violates the Fourteenth Amendment of the United States Constitution.⁷ There is a three-step process for advancing a Batson claim: (1) The objecting party must make a prima facie case of discrimination, (2) once a prima facie case is made, the striking party must tender race-neutral reasons for the strike, and (3) if race-neutral reasons are tendered, the objecting party must prove purposeful discrimination.⁸ Appellate courts must give great deference to credibility and demeanor determinations made by the trial court in connection with a Batson inquiry.⁹

Because the State offered its reasons for the strike, the prima facie case inquiry is moot, and we move on to whether the reasons offered are in fact race-neutral.¹⁰ Regarding the State's first reason—Vines's failure to reveal her prior arrest—appellant contends that the record contains no evidence to support this claim besides the prosecutor's "bare assertion." The record shows that a person of the same name and date of birth as this prospective juror was arrested in Dallas County for driving while her license was suspended. Appellant complains that the State failed to inquire further and ask this prospective juror whether she was in fact the person arrested.

As the party making the Batson challenge, appellant had the burden to show that the explanation given was merely a pretext for discrimination.¹¹ It is not enough merely to show that a proffered explanation turns out to be incorrect.¹² Moreover, a party's failure to offer any real rebuttal to a proffered race neutral explanation can be fatal to his claim.¹³ Here, appellant has failed to prove that the prosecutor's explanation was incorrect, much less that it was a pretext for discrimination.

Regarding the State's second reason—the prospective juror's resentment towards the police—appellant contends that the trial court overlooked other testimony given by Vines that was favorable to police officers. Vines made both positive and negative comments about police officers. She stated that she thought some officers took advantage of their uniforms and positions to harass innocent victims— including her twenty-one year old nephew—but she also stated that she was grateful to officers who put their lives on the line and her main complaint was that too much time was spent on traffic violations rather than enforcement against serious offenses. While Vines did give some positive feedback about police officers, the State was entitled to believe, based upon the negative feedback that she gave, that her presence on the jury would be adverse to the State's interests.

Finally, appellant contends that the State's third reason is a sham because it shows that Vines is a good State's juror on death penalty issues. However, the State is not limited to challenging only defense-oriented prospective jurors. In the area of challenges for cause, we have held that the State may exercise challenges against jurors who are biased in ways that are adverse to the defendant,¹⁴ including jurors who cannot consider the minimum end of the punishment range for an offense.¹⁵ This is so because the State's interest is not merely to convict, but to ensure that justice is done, which includes procuring fair and impartial jurors.¹⁶ For this reason, the State's ability to challenge veniremen for cause is broader than and encompasses the defendant's ability to challenge a potential juror.¹⁷ The same reasoning applies to peremptory challenges. In ensuring that justice is done, the State may legitimately strike prospective jurors who appear to be unfavorable to the defense in ways that call into question their impartiality. The trial court was entitled to believe that the State did not strike Vines on account of her race. Finding that the State has advanced race-neutral reasons for its peremptory challenge, and that appellant has failed to meet his burden of showing intentional discrimination, we overrule point of error one.

2. Extraneous offenses

In points of error seven through twelve, appellant claims that the trial court erred in admitting the extraneous offenses committed against Wilson and Robinson. He argues that the evidence was irrelevant under Texas Rule of Evidence 401,¹⁸ constituted an inadmissible extraneous offense under Rule 404(b),¹⁹ and was substantially more prejudicial than probative under Rule 403.²⁰ The State responds that the extraneous offenses were admissible as same transaction contextual evidence,²¹ to establish identity, and to show conspiracy liability. We need not address the same transaction contextual evidence theory advanced by the State because we find the evidence to be relevant under Rule 404(b) (and Rule 401) for several other purposes.

First, the evidence was admissible to show identity. Ordinarily, to be admissible to show identity, an extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant's handiwork.²² For such evidence to be admissible, identity must be an issue in the case.²³ In determining similarity of the offenses for the purpose of establishing identity, appellate courts should take into account both the specific characteristics of the various offenses and the time interval between them.²⁴

Here, the time interval was very short. If the offenses were not "same transaction contextual offenses" they came very close to being such. The exactness that might be required of an offense committed at a more remote period of time might not necessarily be required for an offense committed within a very...