Payton v. State

• Decision Date: 30 April 1992
• Docket Number: No. B14-91-00788-CR,B14-91-00788-CR
• Citation: 830 S.W.2d 722
• Parties: Delano PAYTON, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 722

830 S.W.2d 722

Delano PAYTON, Appellant, v. The STATE of Texas, Appellee.

No. B14-91-00788-CR.

Court of Appeals of Texas Houston (14th Dist.).

April 30, 1992.

John Paschall, Hearne, for appellant.

Kyle Davis, Bryan, for appellee.

Before PAUL PRESSLER, MURPHY and CANNON, JJ.

OPINION

CANNON, Justice.

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

The Brazos Valley Narcotics Task Force received information from two confidential informants that the residence located at 708 West 23rd St. in Bryan, Texas, was a "crack house." On February 26, 1991, the task force executed a search warrant at that residence, which was occupied at the time by appellant and another man. A search of the premises with drug-sniffing dogs uncovered approximately thirty-five grams of cocaine.

In his first point of error, appellant contends the trial court erred in allowing the jury to pose written questions to witnesses.

Investigator T.J. Hawkins, who was the affiant on the search warrant, testified that a fellow investigator found some cocaine inside a "Chicago Bulls" baseball cap, which, along with a photograph of the same, was admitted into evidence as State Exhibits 7 and 35, respectively. At the conclusion of questioning by the prosecutor and defense counsel, the trial court asked members of the jury if they had any questions. A question submitted in writing by a juror read as follows: "What is the black ball cap, State's Exhibit 35?" The court held a hearing outside the presence of the jury to determine the admissibility of the question. At that time, the court overruled defense counsel's objection to the entire procedure. The jury returned to the courtroom where the judge posed the tendered question, verbatim to Investigator Hawkins. In his response, Investigator Hawkins reiterated his earlier testimony that the cap was "recovered by Investigator Jones and it contained a rock of crack cocaine." Both the prosecutor and defense counsel declined the court's invitation to ask follow-up questions limited to the subject matter of the question and the witness was excused.

This court has approved an identical procedure in Allen v. State, 807 S.W.2d 639, 641-42 (Tex.App.--Houston [14th Dist.] 1991, pet. granted) and Buchanan v. State, 807 S.W.2d 644, 645-46 (Tex.App.--Houston [14th Dist.] 1991, pet. granted). Even if it had been error for the court to allow juror questions, we conclude that any error was harmless beyond a reasonable doubt. TEX.R.APP.P. 81(b)(2). Only one question was submitted by a juror throughout the entire trial. Appellant concedes that his only objection was to the procedure, not to the form or admissibility of the question. Appellant does not contend that he was harmed by the question asked or the answer given. The question and answer at issue merely clarified the significance of a piece of evidence and did not prove an otherwise missing element of the offense. Appellant was not harmed by such an innocuous question and answer. Carr v. State, 475 S.W.2d 755, 757 (Tex.Crim.App.1972), cert. denied, 409 U.S. 1099, 93 S.Ct. 919, 34 L.Ed.2d 682 (1973); Nichols v. State, 815 S.W.2d 306, 307-8 (Tex.App.--Houston [1st Dist.] 1991, no pet.). We overrule appellant's first point of error.

In his second and fourth points of error, appellant contends the State struck veniremembers Kimberly Paul and Sylvester Lister, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and TEX.CODE CRIM.PROC.ANN. art. 35.261.

A prosecutor is prohibited by the equal protection clause of the Fourteenth Amendment from challenging potential jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). The burden of establishing a prima facie case of purposeful racial discrimination is on the defendant. Tennard v. State, 802 S.W.2d 678, 680 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). To establish a prima facie case, a defendant is required to show that he is member of a cognizable racial group; that the prosecutor exercised peremptory challenges to remove from the veniremembers of the defendant's race; and, that these facts and any other relevant circumstances raise an inference that the prosecutor used the State's peremptory challenges to exclude veniremembers from the jury on account of their race. Tennard, 802 S.W.2d at 680; Thompkins v. State, 774 S.W.2d 195, 200 (Tex.Crim.App.1987), aff'd by an equally divided Court, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989).

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with racially-neutral explanations for the challenges. Thompkins, 774 S.W.2d at 201; Keeton v. State, 749 S.W.2d 861, 868 (Tex.Crim.App.1988). If the prosecutor articulates racially-neutral reasons for the strikes, the defendant may offer evidence showing that the prosecutor's reasons are merely a sham or pretext. Keeton, 749 S.W.2d at 868. At a hearing conducted pursuant to Batson, the trial judge is the factfinder, and it is his responsibility to weigh the evidence and determine the credibility of the witnesses. Thompkins, 774 S.W.2d at 202, n. 6. An appellate court is not free to substitute its judgment of the witnesses' credibility and evidentiary weight for those of the factfinder. 774 S.W.2d at 202. The trial court's ruling will not be reversed unless it is clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991); Tennard v. State, 802 S.W.2d 678, 681 (Tex.Crim.App.1990); Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (opin. on State's motion for reh'g). To determine whether the factfinder's decision is "clearly erroneous," an appellate court must look to the record to see if it is left with the "definite and firm conviction that a mistake has been committed." Hill v. State, 827 S.W.2d 860 (Tex.Crim.App.1992); 796 S.W.2d at 721 (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). Batson has been codified in article 35.261, which requires the trial court to call a new array if it finds that the State has challenged prospective jurors on the basis of race.

In the instant case, the trial court called upon the State to explain why it struck certain members of the venire, who were members of a cognizable racial group. The State contends that the burden is on the appellant, not the trial court, to establish a prima facie case of purposeful discrimination. While that may be true, the issue of whether the defendant established a prima facie case is moot where, as here, the prosecutor has articulated his reasons for the challenged peremptory strikes and the trial court has ruled on the ultimate question of intentional discrimination. Hill, 827 S.W.2d at 865.

The prosecutor struck Mr. Lister because he stated that he would have difficulty sitting in judgment of a defendant who was arrested on the basis of information supplied by a confidential informant without hearing the testimony of the informant. The prosecutor's challenge for cause of Mr. Lister was denied. Plainly, the prosecutor's peremptory strike of Mr. Lister was for the reason of Mr. Lister's bias toward the State's case.

The prosecutor struck Ms. Paul because she worked for the Department of Mental Health Mental Retardation (MHMR) and she knew another veniremember, Vickie Skrhak, who worked at MHMR. The prosecutor explained that MHMR employees did not make "proper" jurors because of their involvement with crack cocaine babies. He also stated that Ms. Paul's posture and responses reflected an apathetic attitude toward the proceedings and that she "came across as being an unwilling juror." Appellant points out that, while Ms. Paul and Ms. Skrhak were struck, another MHMR employee, Ruby Harris, served on the jury. See Keeton, 749 S.W.2d at 868 (disparate treatment of veniremembers is evidence of sham or pretext). The prosecutor noted, however, that he did not strike Ms. Harris because she had also worked for the Bryan Police Department. Appellant points out that the prosecutor did not direct any questions to Ms. Paul to demonstrate her apathetic attitude toward the proceedings. Id. (lack of questioning to challenged juror is evidence of sham or pretext). While appellant's observation is correct, the trial court specifically found that Ms. Paul's answers and body language demonstrated a passive or apathetic attitude toward the proceedings. Prosecutors may rely on nonverbal as well as verbal aspects of a veniremember's answers in assessing whether a veniremember is hostile to the prosecutor in a particular case. Hill, 827 S.W.2d at 869-870; Gaines v. State, 811 S.W.2d 245, 250 (Tex.App.--Dallas 1991, pet. ref'd). Further, the reason for striking a particular juror need not rise to the level of a challenge for cause; it need only be racially neutral. Thompkins, 774 S.W.2d at 200; Hawkins v. State, 793 S.W.2d 291, 294 (Tex.App.--Dallas 1990, pet. ref'd). We cannot say that trial court's findings were clearly erroneous. We overrule appellant's second and fourth points of error.

In his third point of error, appellant contends the trial court erred in allowing the State to question veniremember Sylvester Lister "on the facts of the case."

During voir dire, the prosecutor questioned Mr. Lister as follows:

Q: Mr. Lister, when we spoke earlier you mentioned that you would require the State to, if there was a confidential informant, you would--you would want to hear from him and you--

A: I mean I'd...