Roberts v. State

• Decision Date: 02 December 1993
• Docket Number: No. 01-92-00873-CR,01-92-00873-CR
• Citation: Roberts v. State, 866 S.W.2d 773 (Tex. App. 1993)
• Parties: Charles Reginald ROBERTS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 773

866 S.W.2d 773

Charles Reginald ROBERTS, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-00873-CR.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 2, 1993.

Tony Aninao, Houston, for Appellant.

John B. Holmes, Jr., Timothy G. Taft, Craig Hughes, Houston, for Appellee.

Before HEDGES, COHEN and MIRABAL, JJ.

OPINION

HEDGES, Justice.

After a jury found him guilty of delivery of cocaine, and the trial court found the enhancement paragraphs true, appellant was sentenced to 40-years confinement. We affirm.

On April 26, 1991, informant Don Myles contacted Houston Police Officer Rios with information that appellant wanted to sell some drugs. Officer Rios and Myles met at a nearby parking lot and then drove around in an unmarked car looking for appellant. When Myles saw appellant walking down Richmond, he got out of the car. Myles told appellant that he knew someone who wanted to buy some crack cocaine. The two then met Officer Rios across the street in a Whataburger parking lot. Appellant asked Officer Rios what he wanted, and Officer Rios replied that he wanted a hundred dollars worth of rock cocaine. Officer Rios gave appellant fifty dollars, and appellant went to get the cocaine. When he returned, appellant handed Myles a napkin containing cocaine, and Myles handed the napkin to Officer Rios. After receiving the remaining fifty dollars from Officer Rios, appellant left. He was arrested shortly thereafter.

In point of error one, appellant contends that the trial court reversibly erred when it overruled an objection to a question by the State regarding appellant's reputation as a drug dealer. The State had called Myles, the confidential informant, as its first witness. After briefly questioning him about his background and asking him to identify appellant, the State asked Myles the following question:

[STATE'S ATTORNEY]: Mr. Myles, isn't it true that Mr. Roberts had a reputation in your neighborhood as being a drug dealer?

[APPELLANT'S ATTORNEY]: Objection, Your Honor.

THE COURT: Overruled.

[APPELLANT'S ATTORNEY]: At this point in time, Your Honor, we would object to any kind of character evidence that's being adduced by the assistant district attorney about this defendant when the defendant hasn't put his character in issue.

THE COURT: Overruled.

The State did not pursue an answer to the challenged question, and Myles never gave an answer.

Generally, it is reversible error for the State to put the reputation of the accused in issue when he himself has not done so. TEX.R.CRIM.EVID. 404; Smith v. State, 659 S.W.2d 427, 429 (Tex.Crim.App.1983). "And where the reputation of the accused is not in issue, the law prohibits the State from directly or indirectly attacking his reputation." Smith, 659 S.W.2d at 429 (citing Freeze v. State, 133 Tex.Crim. 595, 113 S.W.2d 539, 540 (1938). In this case, appellant had not put his own character in issue. Therefore, any response Myles might have given to the effect that appellant was known as a drug dealer would have been inadmissible.

Appellant argues that although Myles never answered the State's reputation question, the mere asking of the question constituted harmful error. We agree that the asking of the question, even without a response, was error. Smith, 659 S.W.2d at 429. We must decide whether the unanswered question, though clearly erroneous, was harmful. Our analysis requires us to determine the extent, if any, to which the error contributed to the conviction or punishment of appellant. Harris v. State, 790 S.W.2d 568, 585 (Tex.Crim.App.1989); TEX.R.APP.P. 81(b)(2). Once we have isolated the error, we must ask "whether a rational trier of facts might have reached a different result if the error and its effects had not resulted." Harris, 790 S.W.2d at 588.

In Brokenberry v. State, 788 S.W.2d 103, 105-106 (Tex.App.--Houston [1st Dist.] 1990, pet. ref'd) the appellate court reversed a conviction on the basis that the State had improperly injected the defendant's character into the case. In closing argument, the prosecutor pointed out that the defendant had called no character witness. After the trial court overruled the defendant's objection to this statement, the prosecutor repeated it. Finding that the statement was improper argument, the appellate court conducted a harm analysis and concluded that under TEX.R.APP.P. 81(b)(2), reversal was required. The court noted that only one of the two victims identified the defendant, his arrest did not take place immediately, and the positive identification of defendant by one of the victims was the only direct evidence linking him to the offense. The jury assessed his punishment at confinement for life. The error was compounded by the repeating of the statement, and the trial court's overruling of the defendant's objection gave the statement an imprimatur of approval. The appellate court decided, in light of these factors and the record as a whole, that the improper character interjection by the State was harmful error.

By contrast, the record of this case persuades us that the asking of the improper question was harmless. The State asked the question only once and did not pursue the answer even after the trial court overruled appellant's objection. The question was never answered. The uncontroverted evidence establishes that appellant participated in a face-to-face constructive transfer of cocaine to Officer Rios. Two participants in the transaction identified him as the constructive transferor. He was arrested immediately after the illegal delivery. The trial court, not the jury, assessed his punishment. Appellant was not given the maximum sentence. These factors mitigate against a finding of harm. The only factor suggesting harm is the trial court's overruling of appellant's objection to the character question. Weighing these factors, we find that the asking of the character question by the State was harmless error. A review of the record as a whole persuades us that the mere asking of the question was not error of such magnitude that the jury's proper evaluation of the evidence was disrupted. Harris, 790 S.W.2d at 588.

We overrule point of error one.

In point of error two, appellant contends that the trial court erred in overruling his Batson ¹ motion. We disagree.

For claims made under TEX.CODE CRIM.P.ANN. art. 35.261 (Vernon 1989) and Batson, we will reverse the trial court's finding of no purposeful discrimination only if it is "clearly erroneous." Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.), cert. denied, 506 U.S. 905, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992). We must view the record in the light most favorable to the trial judge's ruling; we will not disturb that ruling unless we are "left with a firm conviction that a mistake has been committed." Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992). In determining whether the trial judge's finding was clearly erroneous, we consider the challenged prospective juror's voir dire as a whole together with other relevant circumstances of the panel's voir dire. We will accord due deference to the trial judge's ruling. Sterling v. State, 830 S.W.2d 114, 118-19 (Tex.Crim.App.), cert. denied, 506 U.S. 1035, 113 S.Ct. 816, 121 L.Ed.2d 688 (1992).

The record indicates that four venire persons were black. Appellant's attorney exercised a peremptory strike to eliminate one black venire person. Another was struck for cause by the trial court on appellant's motion. One black male served on the jury. Appellant complains that the State improperly excluded the fourth black venire person, Ms. Holley, for racially-motivated reasons.

After the jury was selected, and before the venire was discharged, the following exchange occurred at the bench:

[APPELLANT'S ATTORNEY]: Your Honor, I believe on Juror No. 22, I believe; that's Ms. Holley, I believe she's sitting back there, may the record reflect that she appears to be a black female. And we would like the record to reflect that that juror was not struck by the defendant.

And at this time we would renew our Batson motion relative to that black female, Juror No. 22, and ask the Court to voir dire or make the prosecutor make known as to his alleged neutral reasons for striking that particular juror.

[STATE'S ATTORNEY]: Your Honor, during voir dire examination, Juror No. 22 indicated she might let sympathy affect her deliberations in reaching a verdict. The same sentiment was expressed by Juror No. 26--Mr. Lowery--who is a white male.

Therefore, the State would submit that it has submitted a racially neutral reason for striking No. 22 in that a white male was struck for that exact same reason.

[APPELLANT'S ATTORNEY]: May the record reflect that relative to Juror No. 3, who is on the jury, he also indicated that there might be some kind of sympathy factors in there. I believe he later indicated that it wouldn't affect his deliberations. But may the record reflect that that particular white male juror had a sympathy factor voiced during the voir dire but he was not struck on that basis by the prosecutor but the black female apparently was.

The court then overruled appellant's renewed Batson motion based on the State's peremptory strike of Ms. Holley.

During voir dire, the State's attorney asked the venire whether sympathy would interfere with a decision on guilt or innocence if the State proved its case to the jury's satisfaction beyond a reasonable doubt. The State peremptorily struck Ms. Holley from the jury because she stated that sympathy might influence her verdict. The State also struck Mr. Lowery, a white male, for the same reason. The State had attempted to have Mr. Lowery struck for cause for this reason, but the trial court denied the State's motion. ²

Appellant argues that the State's reason for striking Ms. Holley was a pretext, because although juror number three, a white male, expressed sympathy concerns, the State did...