Pondexter v. State

• Decision Date: 16 October 1996
• Docket Number: No. 71967,71967
• Parties: Willie Earl PONDEXTER, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 577

942 S.W.2d 577

Willie Earl PONDEXTER, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 71967.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 16, 1996.

Rehearing Denied Jan. 29, 1997.

Craig L. Henry, Texarkana, for appellant.

Laura Bayouth Popps, Asst. Atty. General, Matthew Paul, State's Atty, Austin, for State.

Before the court en banc.

OPINION

OVERSTREET, Judge.

Appellant was indicted for the offense of capital murder pursuant to V.T.C.A. Penal Code § 19.03(a)(2), alleging murder in the course of committing and attempting to commit burglary of a habitation or robbery, alleged to have occurred on or about October 29, 1993, in Red River County. Prior to trial, venue was changed from the 6th Judicial District Court of Red River County to the 102nd Judicial District Court of Red River and Bowie Counties. In July of 1994, in a trial by jury, appellant was found guilty of capital murder. The jury answered the two statutory special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071 "yes" and "no" respectively. The trial court assessed punishment at death. Appeal to this court is automatic pursuant to article 37.071 § 2(h) V.A.C.C.P. In his appeal to this court, appellant raises twenty four points of error.

I. SUMMARY OF PERTINENT FACTS

On the night of October 28, 1993, Ricky Bell, James Bell, Deon Williams, and appellant met at an apartment and discussed robbing "an old lady." Following this discussion, the group walked to a corner store, and then to the decedent's house where they checked to see what kind of car she owned. The group then walked to a trailer park, and then to a friend's house. Once there, they met with James Henderson. Appellant borrowed a car and all five drove to Annona to buy beer and go to a club. During the drive to and from Annona, the five talked about robbing the old lady, and about "crips and bloods and stuff." Specifically, they discussed which crip "had the heart" to do what they were planning to do to the old lady. On the way to the decedent's house, the group stopped at a store where they talked about which crip had the heart to knock out a man who happened to be getting gas. Although Williams and Henderson did get out of the car, no harm was actually done to the man. The group drove to the decedent's house, but parked the car a few blocks away. On their first attempt to enter the house, they were scared away by the sight of a patrolling police car. Four of the five ran back to the car, but James Bell ran in another direction and was not seen by the rest of the group again that night. Appellant, Henderson, Williams, and Ricky Bell went back to the decedent's house where appellant kicked in the front door. All four proceeded up the stairs and into the bedroom where the decedent was sitting on her bed. Once all four were in the bedroom, Williams took the seven dollars that was in the decedent's coin purse. Immediately thereafter, Henderson shot the decedent in the head and then handed the gun to appellant, who also shot the decedent in the head. They took the decedent's car, and drove to Dallas where they were arrested in the decedent's car.

II. VOIR DIRE

In points of error six and seven appellant contends that the trial court violated the Sixth Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by refusing to dismiss the petit jury array. Appellant contends that because there was undisputed statistical evidence to show that African-Americans made up twenty-two percent of Bowie County and less than ten percent of the veniremembers on the petit jury array were African-American, the venire did not represent a fair cross-section of the community as required by Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) and Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

Prior to trial, appellant filed a motion challenging the jury array, and a hearing was held. Appellant introduced evidence that minorities comprised only about ten percent of the panel, while African-Americans made up about twenty-two percent of the population of the county. The State countered first by reminding the court that under Article 35.07 of the Code of Criminal Procedure, a party may challenge the array only on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or acquittal. The State also argued that appellant had not met its burden under the second and third prongs of Duren.

As set out in Duren, in order to establish a prima facie violation of the requirement that there be a fair cross section of the community represented, appellant must show: 1) that the group alleged to be excluded is a "distinctive" group in the community; 2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren, 439 U.S. at 364, 99 S.Ct. at 668.

In the instant case, appellant did meet the first prong of Duren, because the group allegedly excluded is distinctive; African-Americans. However, for the following reasons, appellant fails to carry his burden in meeting prong two, a showing of unfairness and unreasonableness, and prong three, a showing of systematic exclusion. The record shows that veniremembers were chosen randomly, by computer through voter registration, driver's license and identification card registration lists. There was no evidence introduced by appellant that showed that the difference between the percentage of African-Americans in the county and the percentage on the jury panel was in fact not fair and reasonable. While on its face, ten percent of the array versus twenty-two percent county-wide raises an inference of unfairness or unreasonableness, appellant failed to show that the number of African-Americans who qualified for the selection process (registered voters, and those with driver's licenses or identification cards) were of the same or similar percentages as the population of the county.

Appellant also failed to show "systematic exclusion." Appellant brought forth information relating only to the venire in this case. In May v. State, 738 S.W.2d 261, 269 (Tex.Cr.App.1987), we stated that "disproportionate representation in a single panel does not demonstrate the systematic exclusion of distinctive groups in violation of appellant's rights under the Sixth Amendment." Additionally, as previously stated, the veniremembers were chosen through voter registration, driver's license and identification card registration by computer. Appellant simply offered no evidence that the selection process operated in any way to systematically exclude African-Americans from the panel.

Appellant also complains regarding a violation of the Equal Protection Clause of the Fourteenth Amendment. Castaneda, 430 U.S. at 492, 97 S.Ct at 1279, requires a showing of intentional discrimination. In the instant case, appellant fails to demonstrate in any manner that the underrepresentation of African-Americans was caused by intentional acts of the State. Appellant's sixth and seventh points of error are overruled.

In point of error eight, appellant contends that the trial court erred in failing to call a new jury array due to the prosecutor's purposeful use of peremptory challenges against veniremembers of the same race as appellant. The record establishes that appellant is African-American and that the State used peremptory challenges to remove all racial minorities from the panel. Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), once appellant has established a prima facie case, the burden shifts to the State to provide race-neutral reasons for striking the veniremembers in question. Appellant then has the burden of showing that the race-neutral reasons articulated by the State were in fact a pretext for discrimination. Williams v. State, 804 S.W.2d 95 (Tex.Cr.App.1991).

The record supports that appellant did establish a prima facie case by showing that all of the African-American, and in fact all racial minority, veniremembers were peremptorily struck by the State. The State offered the following reasons for exercising peremptory strikes on the minority veniremembers. The State explained that veniremember Anthony was struck because of a health problem that could affect her service as a juror. This veniremember stated that her problem would affect her ability to concentrate and be fair. The State explained that veniremember Brown was struck because she answered in her questionnaire that she was "pretty much totally against the death penalty," later vacillated in her answers concerning the death penalty, and stated she was a State employee, and that she did not want to serve on this jury. The State explained that veniremember Sanchez was struck because she held the belief that based on the fact that life means life, she would lean towards assessing a life sentence and therefore may have problems following the law, and that she believed that the criminal justice system is fair "sometimes." Finally, the State explains that veniremember Steptoe was struck because she held a Masters Degree in Psychology and has had professional contact with psychologists that may testify in this case.

In examining a Batson claim on appellate review, the reviewing court must determine whether the trial court's findings were clearly erroneous by examining the evidence in the light most favorable to the trial court's ruling. Williams, supra. Additionally, "absent some other evidence which rebuts the State's race-neutral explanation, we will not disturb the trial court's finding that the State's explanation is legitimate...." Chambers v. State, 866 S.W.2d 9, 25 (Tex.Cr.App.1993).

After reviewing the record...