Salazar v. State

• Decision Date: 05 November 1987
• Docket Number: No. 2-86-059-CR,2-86-059-CR
• Citation: 745 S.W.2d 385
• Parties: Carlos SALAZAR, Appellant, v. STATE of Texas, State.
• Court: Texas Court of Appeals

Page 385

745 S.W.2d 385

Carlos SALAZAR, Appellant, v. STATE of Texas, State.

No. 2-86-059-CR.

Court of Appeals of Texas,

Fort Worth.

Nov. 5, 1987.

Rehearing Denied Feb. 18, 1988.

Rick Bowman, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and Betty Stanton, Asst., Fort Worth, for State.

Before JOE SPURLOCK, II, FARRIS and KELTNER, JJ.

OPINION ON REHEARING

FARRIS, Justice.

In our original opinion and judgment issued in this case on March 12, 1987, we affirmed appellant's conviction of aggravated robbery with a deadly weapon and his sentence by a jury to forty years confinement in the Texas Department of Corrections. See TEX. PENAL CODE ANN. sec 29.03(a)(2) (Vernon 1974). Following that date, appellant filed a motion for rehearing. We granted rehearing and abated the case to the trial court for a "Batson hearing" in accordance with Henry v. State, 729 S.W.2d 732 (Tex.Crim.App.1987). We withdraw our original opinion and substitute this therefor.

Appellant's first point of error challenges the sufficiency of the evidence upon which to base his conviction. Without citation, appellant claims that the identification of appellant by three eyewitnesses to the offense was not sufficient evidence on which to convict.

In reviewing the sufficiency of the evidence to support a conviction based upon direct evidence, the evidence is viewed in the light most favorable to the verdict. See Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (opinion on reh'g).

The sufficiency of the evidence is a question of law. The issue on appeal is not whether we as a court believe the prosecution's evidence or believe that the defense evidence "outweighs" the State's evidence. See Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). If there is evidence which establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds. Id.

James Palmer testified that he was employed by the Kroger's Food Store as a grocery checker on the date of the robbery. He testified that, at approximately 12:30 a.m., on March 23, 1985, he observed, through the entrance to the store, two Hispanic males putting on the hoods of their "jumpsuits." Both men came into the store and went to different locations. One of the men came to Palmer's checkstand, held a gun to Palmer's head, and told him to open the register. The witness stated that, although the hood was pulled over the man's head, his face was exposed. Palmer further testified that the store was well lit and he got a good look at the robber, face to face, for approximately one minute during the robbery. After the robbery occurred, Palmer went to the police station and picked out a photograph of appellant from a photo lineup, stating that he was "a hundred percent sure" that the man in this photograph was the person who put a gun to his head. At trial, Palmer pointed to appellant and stated that he was "positive" that appellant was the man who stuck the gun to the back of his head.

Eve Harris testified that she was a customer at Palmer's checkout stand when the robbery in question occurred. Harris first noticed appellant when she "was faced with the robbers almost head-on...." Both of the robbers were of Spanish race, wearing sweatshirts, with hoods over their head, and blue jeans. Harris testified that the store was well lit and she saw appellant "[f]or probably a moment real--just real close; eye to eye." Harris also picked appellant's photograph out of a photo lineup conducted by the police department, stating that she "will always remember the face because it was the face that had the gun pointed in my face." At trial, Harris identified appellant as the person who committed the robbery, and whom she picked out of the photo lineup.

Don Shelton testified that he was a customer at Kroger's on the night of the robbery in question. As Shelton was entering the store, he brushed into a man who was evidently leaving without making a purchase. Shelton testified that nothing was obstructing his view of the man, nothing was on the man's head, and he got a good look at the person's face. About two minutes later, Shelton was walking toward the produce area of the store when he heard the entrance doors buzz, meaning that someone was coming into the store. Shelton turned around and saw two Hispanic males, with guns, walk into the store. One of the men was the same person Shelton had brushed into as he entered the store. The person went over to the checkout stand operated by witness Palmer. Shelton noticed that the man was now wearing the hood of his sweat top up over his head. The witness ducked behind the display stand in the store and looked out over the stand, seeing the entire robbery. Shelton stated that he had a good opportunity to view the robber, that nothing was between himself and the robber, and that the lighting was good. When the robber went to the checkout stand, Shelton looked directly at the robber's face for approximately three minutes. From a photospread, Shelton identified a photograph of appellant. Shelton later pointed out appellant in court, stating that he was "completely sure" that this man was the person who committed the robbery.

We hold that the testimony from these witnesses constitutes sufficient evidence to enable any rational trier of fact to have found beyond a reasonable doubt that appellant committed the crime. See Pichon v. State, 683 S.W.2d 422 (Tex.Crim.App.1984); Holloway v. State, 666 S.W.2d 104 (Tex.Crim.App.1984). Appellant's first point of error is overruled.

Appellant contends, in his second point of error, that the trial court erred in allowing the State to bolster the in-court identification of appellant by the three witnesses by permitting them to testify that they had picked appellant out of a photospread before trial. Appellant contends that it was unconscionable for the trial court to permit these witnesses to bolster their in-court identification of appellant before their testimony had been impeached.

Bolstering occurs when a witness is called to corroborate the unimpeached testimony of another witness. Lyons v. State, 388 S.W.2d 950, 951 (Tex.Crim.App.1965). Although no one else may bolster the witness's in-court identification by testifying as to a pretrial identification of the defendant by the witness, no bolstering occurs when a witness, who has identified a defendant at trial, also testifies that he identified the defendant in a pretrial lineup. Wyatt v. State, 566 S.W.2d 597, 601 (Tex.Crim.App.1978); Sanders v. State, 688 S.W.2d 676, 679 (Tex.App.--Dallas 1985, pet. ref'd); Lewis v. State, 631 S.W.2d 813, 815 (Tex.App.--Fort Worth 1982, no pet.). Therefore, the trial court committed no error in allowing the three witnesses who identified appellant at trial to also testify as to a previous identification of appellant in a photospread. Point of error two is overruled.

In his third point of error, appellant contends that the State arbitrarily struck all minority veniremen solely on the basis of their race. We affirm the trial court's finding that the evidence was insufficient to establish an inference of purposeful discrimination in the State's use of peremptory challenges.

The State used peremptory challenges to strike all of four prospective minority jurors from the jury panel. One such juror, Catalina Gonzalez, was a Mexican-American female. The prosecutor offered two reasons for exercising a strike against her. First of all, Mrs. Gonzalez was a Seventh Day Adventist who held a Master of Divinity degree. The prosecutor felt that this religious background would cause her to favor rehabilitation at the punishment phase of the trial. Second, Mrs. Gonzalez had the same surname as the appellant's trial counsel, Alex Gonzalez. The prosecutor stated that he thought it was possible she might tend to favor appellant's position because she had the same surname as his lawyer.

The remaining three minority members struck from the panel were black. According to the prosecutor, Joe Gilliam was struck because his education and employment might lead him to hold the State to a higher burden of proof or make him favor appellant's position on punishment. Betty Richardo was struck because the prosecutor believed that her job as a quality control inspector would cause her to hold the State to a higher burden of proof. The prosecutor based his strike against Jerelene Irvin on the fact that she kept children for a living and might be swayed during the punishment phase because appellant had a family.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court determined that a state cannot use peremptory challenges to purposefully discriminate against potential jurors solely on account of their race. See id., 476 U.S. at 88-89, 106 S.Ct. at 1718-19. In order to make a prima facie showing of purposeful discrimination solely on evidence concerning the State's exercise of peremptory challenges of potential jurors, appellant must show first of all that he is a member of a cognizable racial group. Second, appellant must show that the State has exercised peremptory challenges to remove from the venire panel members of the defendant's race. Finally, appellant must show that these facts and any other relevant circumstances raise an inference that the State used its challenges to exclude potential jurors solely on account of their race. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723.

In determining whether the State's use of peremptory challenges...