Johnson v. State

• Decision Date: 05 November 1987
• Docket Number: No. B14-86-362-CR,B14-86-362-CR
• Parties: Arthur JOHNSON, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 868

740 S.W.2d 868

Arthur JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. B14-86-362-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Nov. 5, 1987.

Walter J. Pink, Houston, for appellant.

John B. Holmes, Jr., Roe Morris, Pamela Derbyshire, Houston, for appellee.

Before PAUL PRESSLER, MURPHY and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Arthur Johnson, appeals from a judgment of conviction for the offense of burglary of a habitation with intent to commit sexual assault, enhanced by one prior felony conviction. The jury rejected appellant's not guilty plea and found him guilty as charged in the indictment. The court found the enhancement count "true" and assessed punishment at confinement for life in the Texas Department of Corrections. We affirm.

Appellant presents four points of error. In his first point, appellant, who is black, claims that the trial court erred by denying his motion to dismiss the petit jury panel, arguing that the State purposefully used peremptory challenges to discriminate by excluding all blacks from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). His second and third points challenge the validity of a prior New York conviction and the sufficiency of that conviction to support enhancement. His fourth point is based on an alleged denial of his allocution rights. We affirm.

We first address appellant's challenge to the State's use of peremptory strikes to exclude black jurors. Appellant made a timely objection to the petit jury, claiming the State used its peremptory challenges to exclude all blacks from the jury. The court overruled his objection. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that a defendant could establish a prima facie case of purposeful discrimination, in violation of the equal protection guarantees of the fourteenth amendment, by showing that the prosecutor used peremptory strikes against members of the defendant's race. Batson, 476 U.S. at 95-99, 106 S.Ct. 1722-24. Once the defendant establishes such a prima facie case, the burden shifts to the State to furnish a racially neutral explanation for the challenges. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Henry v. State, 729 S.W.2d 732, 734 (Tex.Crim.App.1987).

In the case before us, the trial court conducted voir dire on April 28, 1986, two days prior to the United States Supreme Court's decision in the Batson case. However, Batson is to be applied retroactively. Griffith v. Kentucky, 476 U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). After reviewing the record, we determined that appellant established a prima facie showing of purposeful discrimination under Batson since the prosecutor peremptorily struck black venirepersons. Pursuant to Tex.R.App.P. 81(a), we ordered the trial court to conduct a Batson hearing to provide the State an opportunity to come forward with an explanation for the strikes and to decide whether purposeful racial discrimination motivated the strikes. Henry, 729 S.W.2d at 737; Keeton v. State, 724 S.W.2d 58, 65-66 (Tex.Crim.App.1987) (opinion on rehearing on court's own motion, en banc).

Tompkins v. State, No. 68, 870 slip. op. (Tex.Crim.App. Oct. 7, 1987) clarifies our task in reviewing a trial court's Batson hearing. Tompkins states that a trial court conducting a Batson hearing has a two-fold role once the accused presents a prima facie case of purposeful discrimination. First, the court must evaluate the reasons the State advances for the strikes, to determine whether they are legally sufficient to support a judgment in the State's favor. Id. at 7. At a minimum under Batson, the prosecutor must do more than merely deny discriminatory motive. Chambers v. State, 724 S.W.2d 440, 441 (Tex.App.--Houston [14th Dist.] 1987, no pet.) (citing Batson, 476 U.S. at 98, 106 S.Ct. at 1723). Nor may the State rely on an assumption that jurors of the same race as the defendant would be biased. Id. However, the explanations need not rise to the level justifying challenges for cause. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Second, the trial court must weigh the State's reasons to determine whether the accused has established purposeful discrimination by a preponderance of the evidence, an inquiry which is essentially factual. Tompkins, slip op. at 7-8. Tompkins makes clear that although the burden shifts temporarily to the State on the accused's presenting a prima facie case, Batson, 476 U.S. at 96, 106 S.Ct. at 1723, the ultimate burden to establish purposeful discrimination rests with the accused. Tompkins, slip op. at 8.

The court below conducted the Batson hearing on July 20, 1987, entered findings of fact, and concluded that no purposeful racial discrimination motivated the State to use nine of its peremptory strikes against black venirepersons.

According to Tompkins, our review of the trial court's findings supporting its conclusions of law is the same given any preponderance of the evidence question. Tompkins, slip op. at 8. That is, we view the entire record as supporting the lower court's decision; we may not reverse its factual determinations unless no rational trier of fact could have reached the same determinations by a preponderance of the evidence. Id. This standard requires that we give great deference to the lower court as the factfinder since it alone determines the credibility of the prosecutor in advancing plausible reasons for exercising the strikes. Id. at 8, 11C n. 6; Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21.

The trial court found that the prosecutor used nine of her ten peremptory strikes against blacks but concluded that her reasons were racially neutral and that appellant had failed to establish purposeful racial discrimination in the State's peremptory challenges by a preponderance of the evidence. In support of its conclusions the court entered the following findings concerning each juror struck. The court found that the State struck Venirepersons:

1. Number Eleven because he had a prior conviction for possession of marijuana.

2. Number Thirteen because he was close to appellant's age, unmarried, had moved very recently, and because he was very attentive to appellant's counsel during his voir dire.

3. Number Sixteen because he had never been the victim of a crime, was unattentive to counsel for the State during its voir dire, yet nodded his head in agreement with appellant's counsel during his voir dire and questioned him concerning lesser included offenses.

4. Number Seventeen because she had never been the victim of a crime, did not respond to either individual or row-by-row questions, and seemed to lack intelligence to understand the law in the case as evidenced by the blanks and misspellings on her juror card.

5. Number Twenty-Two because he did not seem to have sufficient ties with the community, was forty-one, almost the same age as appellant, misspelled his religion, indicated date, instead of place, of birth on his juror form and had been at his job only ten months.

6. Number Twenty-Five because he had never been the victim of a crime; was unemployed at age forty-seven, as was his wife; had no children, insufficient ties to the community; and failed to answer all the questions on his juror form.

7. Number Twenty-eight because he had approached the bench in advance of voir dire to inform the court that it would violate his conscience and religious beliefs to sit in judgment against anyone.

8. Number Thirty because he left several blanks on his juror form and inserted his own name in the blank marked "spouse", was unmarried, had no children, was at his job only six weeks although he was thirty-six years old, and did not appear to have sufficient ties with the community.

9. Number Thirty-one because he had approached the bench prior to voir dire to inform the court that he could not be fair because of his economic condition, and stated repeatedly that he would be sympathetic towards criminals.

10. Number Thirty-Five because he had approached the court and stated that personal problems, with his marriage and car, left him uncertain about his ability to be fair.

We fail to find merit in appellant's point of error. The court below properly placed the burden of persuasion on appellant to establish purposeful racial discrimination and properly applied a preponderance of the evidence standard. Tompkins, slip op. at 8. The State's reasons are plausible and sufficiently neutral since they concern age, occupation, problems with the law, gestures, as well as religious preference. Chambers v. State, 724 S.W.2d 440, 441-42 (Tex.App.--Houston [14th Dist.] 1987, no pet.); Rodgers v. State, 725 S.W.2d 477 (Tex.App.--Houston [1st Dist.] 1987, no pet.). Likewise, poor reading and writing ability could create problems in interpreting complex instructions such as the three page charge in the instant case. Tompkins, slip op. at 11 B. Having found the State's explanations categorically racially neutral, we hold that any rational trier of fact could have likewise failed to find purposeful racial discrimination, by a preponderance of the evidence, in the State's using nine of its ten peremptory strikes against black venirepersons. Appellant's first point of error is overruled.

In points of error two and three appellant challenges the sufficiency of a prior New York state conviction to support enhancement and the validity of that conviction.

We first address appellant's third point of error in which he challenges the validity of the prior conviction for purposes of enhancement. Appellant's point actually raises two challenges to use of the conviction for enhancement. The first is evidentiary: appellant contends the trial court erred in admitting, over objection, State's Exhibit 3A, a penitentiary packet, as evidence of a prior New York felony conviction. He argues the exhibit fails to comply with Tex.Rev.Civ.Stat.Ann. art....