Morris v. State, No. 06-09-00147-CR (Tex. App. 4/23/2010)
| Decision Date | 23 April 2010 |
| Docket Number | No. 06-09-00147-CR.,06-09-00147-CR. |
| Parties | LEE EDWARD MORRIS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 6th Judicial District Court, Lamar County, Texas, Trial Court No. 22425.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
DO NOT PUBLISH
Narcotics investigators were able to make an audio recording of Lee Edward Morris selling cocaine to confidential informants, and Morris was convicted by a jury of two counts of delivery of more than one, but less than four, grams of a controlled substance.1 The jury also found the second of those deliveries occurred within 1,000 feet of a playground (a drug-free zone). Punishment was enhanced by Morris's prior felony convictions for possession of a deadly weapon in a penal institution and engaging in organized criminal activity. Consequently, Morris was sentenced to fifty years' imprisonment on the first count and seventy-five years' imprisonment on the second count, to be served concurrently.
On appeal, Morris first complains that the trial court erred in overruling a Batson2 challenge. We conclude the trial court did not clearly abuse its discretion in making its ruling. Morris next complains the trial court erred in seating the final jury panel, failing to require the court reporter to record a bench conference during voir dire, and in commenting on Morris's right not to testify and present mitigating evidence during punishment. Because Morris's trial counsel failed to preserve error on these points of error, they are overruled. Recognizing that preservation would likely prevent our review on certain points, Morris raised ineffective assistance of counsel in failing to object to the jury panel and the court's allegedly impermissible comments during punishment. However, Morris failed to sufficiently demonstrate counsel's ineffectiveness and we overrule his ineffective assistance of counsel claims.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prevents the exercise of peremptory strikes based on a prospective juror's race. Batson v. Kentucky, 476 U.S. 79 (1986); Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002); Splawn v. State, 160 S.W.3d 103, 114 (Tex. App.-Texarkana 2005, pet. ref'd); see TEX. CODE CRIM. PROC. ANN. art. 35.21 (Vernon 2006).
Once a Batson challenge is raised, the trial court engages in a three-step inquiry. Purkett v. Elem, 514 U.S. 765, 767-68 (1995); Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999); Montgomery v. State, 198 S.W.3d 67, 76 (Tex. App.-Fort Worth 2006, pet. ref'd). Under the first step, the person raising a Batson challenge is required to make a prima facie showing of racial discrimination. Ford, 1 S.W.3d at 693; Montgomery, 198 S.W.3d at 76. Once that prima facie showing is accomplished, the burden shifts to the State to present a racially neutral reason for the challenged jury strikes. Ford, 1 S.W.3d at 693; Montgomery, 198 S.W.3d at 76. Third, and finally, once the State's reason is proffered, the burden of persuasion shifts back and the person raising the challenge must then convince the court that the reason given by the State was not race-neutral, and was merely pretext for concealing discrimination. Ford, 1 S.W.3d at 693 (citing Purkett, 514 U.S. at 767-68).
We review the evidence relevant to the Batson challenge in the light most favorable to the trial court's ruling. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992); Roberts v. State, 963 S.W.2d 894, 899 (Tex. App.-Texarkana 1998, no pet.). A high degree of deference is given to the trial court, who is in the best position to determine if the State's facially neutral explanation for a peremptory strike is genuine. Splawn, 160 S.W.3d at 114 (citing Jasper v. State, 61 S.W.3d 413, 421-22 (Tex. Crim. App. 2001)). Thus, a "clearly erroneous" standard of review is applied to the trial court's decision to overrule a Batson challenge. Hernandez v. New York, 500 U.S. 352, 369 (1991);Splawn, 160 S.W.3d at 114 (citing Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004)). A finding is clearly erroneous where the reviewing court "is left with the definite and firm conviction that the trial court committed a mistake." Roberts, 963 S.W.2d at 899.
During voir dire, the State individually elicited veniremember responses to the following inquiry:
There are a number of theories about why jurors do what they do, and jurors punish and return the verdicts that they return, because in the same case, same set of facts, two separate juries will do two completely different things.
So people who study this sort of thing have found three common themes among jurors, why jurors set the sentences that they do. Some jurors will return a sentence because they want to keep other people from committing the same or similar crimes [punishment theory one]; . . . .
Some jurors favor number two, rehabilitation; we're going to try to help the person who has committed this crime, we're going to give them probation, or we're going to recommend that they go to a mental hospital, or whatever the case might be.
. . . some jurors out there just want to punish that defendant for what he's done, to send a message to him [punishment theory three] . . . .
. . . . I want to find out from you which of these theories you subscribe to.
After the State presented its list of peremptory strikes, Morris's counsel objected that the State improperly struck Sarah Williams (juror number eight) and Elane Hill (juror number eleven) from the jury based on their African-American race. The State proffered this race-neutral reason for striking Williams and Hill:
The Court may recall that I asked the jury panel, as a whole, their particular theories on punishment, whether it was the deterrence, rehabilitation or punishment for punishment's sake. I asked the jurors to give me their number, one, two or three, whichever one they chose.
Two was rehabilitation. If a juror felt that rehabilitation would be the guiding principle or the theory behind which he would set punishment, I wrote down by that juror's name, two. I went back to the jury room, and in counting up the numbers, I discovered that 12 potential jurors had identified rehabilitation as the theory behind how they would assess punishment, or the criteria they would use to assess punishment in this case.
I think [Morris's counsel] would agree with me, this is a punishment case. Guilt is not the real issue here. Both transactions were captured on videotapes. The real issue in this case is going to be what kind of sentence is the defendant going to receive.
All of the jurors that answered, rehabilitation, I struck. There were white jurors, there were black jurors, there were some jurors that, quite frankly, I would like to have kept. I struck every juror, white, black, Hispanic, Indian, Asian, whoever they were, I struck every single juror that answered rehabilitation as their punishment theory.
Indeed, each of the veniremembers peremptorily struck by the State (including Williams and Hill) responded affirmatively that they believed in the theory of punishment number two posited by the State——rehabilitation. The State pointed out that it exhausted its peremptory strikes and would have struck even more members of the jury pool who believed in the second theory of punishment if it had additional strikes. Once the State's reasoning was offered, and it was confirmed that all the veniremembers struck by the State responded they believed in the second theory, Morris's counsel failed to argue that the State's reasoning was pretext for discrimination. Counsel merely stated he was "making an objection for the record."
In Montgomery and Victor, our sister courts found that "a veniremember's belief in rehabilitation as the primary goal of punishment is a race-neutral reason for the exercise of a peremptory challenge." Montgomery, 198 S.W.3d at 76; Victor v. State, 995 S.W.2d 216, 222 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). We conclude that the trial court's finding (i.e., that the State proffered a sufficient race-neutral reason for striking Williams and Hill and that Morris failed to meet his burden of persuasion to demonstrate otherwise) was not clearly erroneous. See Splawn, 160 S.W.3d at 115.
In his appellate brief, Morris additionally argues that the State struck jurors thirty-one and thirty-two, but did not strike juror number thirty, who also subscribed to the rehabilitation punishment theory. However, this challenge to the State's race-neutral reason was never presented to the trial court.3 Because the trial court was thus unable to consider this argument, it is not preserved for our consideration.
Morris's first point of error is overruled.
Morris's counsel peremptorily struck "Ricky Bond" and listed him as juror number "36." A review of the jury list reveals that Bond was actually juror number 35 and that juror number 36 was Gary Reed, who was not chosen to be on the jury and whose name did not appear on either strike list. Morris argues on appeal that the trial court erred in allowing Bond to sit on the jury and also erred because "Reed should be juror # 9 instead of Bond."
"It is well settled that it is the responsibility of the parties to assure that the jury impaneled does not include a juror that has been struck."Jackson v. State, 826 S.W.2d 751, 752 (Tex. App.-Houston [14th Dist.] 1992, pet. ref'd); see also Miller v. State, 692 S.W.2d 88, 93 n.10 (Tex. Crim. App. 1985). The party must object before the panel is sworn, or else show that the juror was otherwise disqualified because of prejudice toward the appellant. Jackson, ...
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