Moss v. State

• Decision Date: 18 March 1993
• Docket Number: No. C14-91-01320-CR,C14-91-01320-CR
• Citation: 850 S.W.2d 788
• Parties: Eddie Roy MOSS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 788

850 S.W.2d 788

Eddie Roy MOSS, Appellant, v. The STATE of Texas, Appellee.

No. C14-91-01320-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

March 18, 1993.

Rehearing Denied April 22, 1993.

John E. Wright, Huntsville, for appellant.

Kay Douglas, Huntsville, for appellee.

Before ROBERTSON, CANNON and BOWERS, JJ.

OPINION

BOWERS, Justice.

Appellant entered a plea of not guilty before the jury to the offense of possession with intent to deliver a controlled substance, namely cocaine. TEX.HEALTH & SAFETY CODE ANN. § 481.112. He was convicted and the court assessed punishment, enhanced under TEX.PENAL CODE ANN. § 12.42(d), at life imprisonment. Appellant asserts 23 points of error. We affirm.

On the night of December 19, 1990, two officers of the East Texas Narcotics Task Force were investigating drug activities at the Cedarwood Apartments in Huntsville, Walker County, Texas. The officers provided Alfred Simmons, a private citizen, with money to buy drugs. The officers also wired Simmons with a transmitter so that any conversations Simmons engaged in could be monitored.

Simmons came into contact with appellant who offered to sell him cocaine. The transaction took place with Simmons briefly out of the officer's sight. After the transaction was completed, Simmons met with the officers and gave them the cocaine he had purchased from appellant.

The task force officers then contacted a uniformed police officer from the Huntsville Police Department. After getting a description of appellant, a police officer went to the location and found appellant. When the officer attempted to stop appellant, he ran into an apartment. The officer and other officers who had arrived on the scene obtained permission from the person in charge of the apartment to enter the apartment in pursuit of appellant. Once inside the apartment, the officers discovered appellant, who had removed all his clothing except his underwear. Appellant then escaped through a window. He was found hiding in an apartment in a different apartment complex.

After appellant was placed in custody, the officers returned to the first apartment to search for the clothes appellant had discarded. The officers found the clothes on the ground outside the apartment window. Upon retrieving the clothes the officers found plastic bags containing 75 rocks of crack cocaine in the pocket. At the jail, an officer handed appellant the clothes, which he took and put on without complaint.

In his first point of error, appellant argues the trial court erred by refusing to grant him relief on his Batson ¹ motion.

Before the actual voir dire examination by the attorneys, the judge invited prospective jurors to approach the bench if they believed they had some reason that would hinder their service. At that time, prospective juror, Bobby McGowan approached the bench. McGowan told the judge that appellant is the husband, boyfriend or common law husband of McGowan's niece, Diane Mack. The judge questioned McGowan as to how often McGowan sees his niece and established that McGowan did not personally know appellant.

After voir dire, both attorneys made their strikes. The State struck McGowan. After the State had exercised its strikes, but before the jury was impanelled and sworn, appellant, a black man, filed and urged his Batson motion complaining that the State had struck a black juror without a racially neutral reason.

To establish a prima facie case of purposeful discrimination in selecting the jury, appellant must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove venire members of appellant's race. Batson, 476 U.S. at 96, 106 S.Ct. at 1722.

Once appellant makes a prima facie showing of purposeful discrimination, the burden shifts to the State to come forward with neutral explanations for challenging black jurors. Id. at 97, 106 S.Ct. at 1723. The prosecutor must give "clear and reasonably specific" explanations of "legitimate reasons" for striking a juror. Whitsey v. State, 796 S.W.2d 707 (Tex.Crim.App.1989) (citing Batson ). The State gave the following reasons for striking McGowan:

1. Mr. McGowan came forward prior to voir dire to inform the court that he had somewhat of a relationship with [appellant].

2. The Chief Investigator (who is also black), informed the district attorney that several other of Mr. McGowan's kinfolks had been handled by the District Attorney's office at one time or another.

3. Both the District Attorney and the Chief Investigator informed the prosecutor that Mr. McGowan's niece, Diane Mack, had criminal charges currently pending against her.

4. Based upon the family relationships, the prosecutor believed that it was in the State's best interest to strike Mr. McGowan. The prosecutor's experience had been that people with close family relations often have difficulty in setting themselves aside and trying to be fair and impartial. ²

This court must determine if these reasons are legitimate. Factors we must consider include:

1. Was the reason given for the peremptory challenge related to the facts of the case;

2. Was there a lack of questioning to the challenged juror or a lack of meaningful questions;

3. Were persons with the same or similar characteristics as the challenged juror struck;

4. Was the challenged juror questioned so as to evoke a certain response without asking the same question of other panel members; and

5. Was the State's explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically?

Id. at 713-714. None of these factors are present in the State's reasons for excluding McGowan. The State clearly produced race-neutral reasons for striking McGowan.

If the prosecutor sustains his burden of producing race-neutral explanations, the burden shifts back to appellant to rebut the prosecutor's explanations or to show that the explanations were merely a pretext. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.1991), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991).

Appellant's counsel did not ask the prosecutor any questions. Appellant's only comment pertained to just one of the State's reasons for striking McGowan. Appellant's counsel told the trial court appellant was not related to McGowan and that the State failed to determine whether McGowan was "happy or unhappy with [appellant]." Although the State is allowed to challenge for cause any prospective juror because he is related within the third degree of consanguinity or affinity, the State did not challenge McGowan on this basis. TEX.CODE CRIM.PROC.ANN. art. 35.16(b)(2).

This court can reverse only if the trial court's findings of fact are "clearly erroneous" in light of the entire record. Williams, 804 S.W.2d at 101. Appellant has the burden to persuade the trial court by a preponderance of the evidence that the allegations of purposeful discrimination are true. Tennard v. State, 802 S.W.2d 678, 681 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). Appellant failed to meet this burden. We overrule appellant's first point of error.

In his second and third points of error, appellant argues the trial court erred by overruling his motion to quash the indictment. Appellant contends the indictment failed to give adequate notice of the charge against him and failed to adequately specify the transaction complained of in such a manner that appellant would be protected from a second prosecution based on the same facts.

In his sixteenth and seventeenth points of error, appellant complains the jury charge failed to identify the transaction in question with sufficient particularity. We will address these four points of error together.

Appellant is entitled to allegations of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise notice of the offense with which he was charged. Castillo v. State, 689 S.W.2d 443 (Tex.Crim.App.1984). Appellant contends that because he was not apprised sufficiently of the charge against him, he was not able to prepare a defense or evaluate an offered plea bargain.

When considering a motion to quash, the court must decide whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Jeffers v. State, 646 S.W.2d 185, 187 (Tex.Crim.App.1981). The indictment charged that appellant:

intentionally and knowingly possess with intent to deliver a controlled substance, to wit: cocaine, of an aggregate weight, including any adulterants or dilutants of less than twenty-eight grams.

The jury charge refers to the indictment and to the offense of "possession with intent to deliver a controlled substance, to-wit: cocaine." The charge defines "possession" as the "actual care, custody, control or management of the controlled substance." "Deliver" is defined as the "actual transfer from one person to another of cocaine."

Appellant argues that two transactions are involved and that the indictment and jury charge were not clear as to which one of the two transactions was the basis of the instant prosecution. The first transaction occurred between appellant and Simmons. The second transaction involved the cocaine found in appellant's clothes. Appellant argues that he has been "tried and found guilty in one instance, but remains eligible to be tried on the other. But which one?"

Appellant maintains that a reasonable juror could believe appellant sold Simmons cocaine and at the same time that same juror could have a reasonable doubt as to whether the cocaine found in the clothing belonged to appellant.

Appellant misconstrues the two transactions. His view is that there are two distinct offenses, i.e. selling the cocaine to Simmons and possession of cocaine. We regard the evidence as showing not two distinct possessions with intent to deliver,...