Thornton v. State

• Decision Date: 30 December 1994
• Docket Number: No. 12-93-00015-CR,12-93-00015-CR
• Citation: 925 S.W.2d 7
• Parties: George THORNTON, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 7

925 S.W.2d 7

George THORNTON, III, Appellant, v. The STATE of Texas, Appellee.

No. 12-93-00015-CR.

Court of Appeals of Texas,

Tyler.

Dec. 30, 1994.

Clifton L. Holmes, Longview, for appellant.

Edward J. Marty, Tyler, for appellee.

Before RAMEY, C.J., and BILL BASS and HOLCOMB, JJ.

BILL BASS, Justice.

George Thornton, III, appeals from his conviction of aggravated robbery. Upon his plea of guilty, the jury convicted him and assessed his punishment at 69 years confinement and a fine of $10,000. Appellant brings four points of error. We will affirm his conviction.

In his first point, Appellant contends the trial court erred in denying his motion to quash the jury panel based on the State's use of peremptory challenges to remove jurors based on race. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). When determining the validity of a Batson claim, the standard of review is clear error. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Vargas v. State, 838 S.W.2d 552, 554 (Tex.Cr.App.1992); Wright v. State, 832 S.W.2d 601, 604 (Tex.Cr.App.1992); Tennard v. State, 802 S.W.2d 678 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). To determine whether the trial court's decision is clearly erroneous, we must look to the record to see whether we are left "with the definite and firm conviction that a mistake has been committed." Hernandez, 500 U.S. at 369, 111 S.Ct. at 1872.

The record in this case shows that ten African-Americans were in the strike zone. Four were excused for cause, four were peremptorily challenged by the State and one claimed a statutory exemption. One African-American served on the jury.

The trial court found that Appellant had made a prima facie showing that the State had used its peremptory challenges in a racially discriminatory manner. Once a court determines that a defendant has made a prima facie Batson case, the burden shifts to the prosecutor to come forward with race-neutral reasons for its strikes. Keeton v. State, 749 S.W.2d 861, 865 (Tex.Cr.App.1988); Silva v. State, 800 S.W.2d 912, 915 (Tex.App.--San Antonio 1990, no pet.). The prosecutor's explanation must present a clear, specific, and legitimate reason for each challenge. Brooks v. State, 802 S.W.2d 692, 694 (Tex.Cr.App.1991); Miller-El v. State, 790 S.W.2d 351 (Tex.App.--Dallas 1990, pet. ref'd). In the instant case, the prosecutor testified that no challenges had been based upon race, but that all the State's strikes had been exercised for racially neutral reasons. The reasons given for each strike were as follows:

(1) Number 5, Billie Walker Blaylock--because (1) her son, Cottie, had been prosecuted for aggravated robbery and was approximately Appellant's age, (2) she was related to persons with criminal histories, and (3) she failed to disclose that another son, Randy, had been arrested for criminal mischief.

(2) Number 24, Fred Wallace--because (1) he believed that rehabilitation should be the objective of punishment, and (2) he did not complete his juror information card.

(3) Number 27, Eleanor D. Andrews--because (1) she knew Appellant's mother, and (2) she believed that rehabilitation should be the objective of punishment.

(4) Number 36, Marcus D. Woodard--because (1) he knew Appellant, and (2) he did not disclose his complete criminal history, and (3) he believed that rehabilitation should be the objective of punishment.

The reasons given by the prosecutor are, on their face, racially neutral. However, Appellant argues that the disparate treatment of white and black panel members who shared common characteristics demonstrates that the reasons given are pretexts enlisted to cloak the prosecutor's racially discriminatory use of the State's peremptory challenges.

The prosecutor stated that he struck one black panel member, Billie Walker Blaylock, because her son had been prosecuted for aggravated robbery, and because she was related to other people with criminal histories. A venireperson's relationship to a person who has been charged with or convicted of a crime is a race-neutral reason for the exercise of a peremptory challenge. United States v. Yankton, 986 F.2d 1225, 1230 (8th Cir.1993); Rasco v. State, 739 S.W.2d 437, 439 (Tex.App.--Houston [14th Dist.] 1987, pet. ref'd). In addition, Blaylock was struck because she did not divulge the fact that another son had been arrested for criminal mischief. Failure to disclose information during voir dire is also a sufficiently race-neutral reason to peremptorily challenge a potential juror. Perry v. State, 770 S.W.2d 950, 952-53 (Tex.App.--Fort Worth 1989, no pet.); Holman v. State, 772 S.W.2d 530, 533 (Tex.App.--Beaumont 1989, no pet.).

Appellant complains that whites who were related to people with criminal records were not always peremptorily challenged. Specifically, he complains of disparate treatment concerning Barbara Bradley, a white venireperson whose son had been convicted of theft. However, a defendant does not prove racial discrimination simply by showing the jurors sharing a single characteristic were treated differently. See United States v. Lewis, 837 F.2d 415, 417 cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988). In the instant case, several factors distinguish Bradley from Blaylock. First, Bradley's son had not been convicted of the same crime for which Appellant was charged. In addition, she was forthright in disclosing his conviction to the State. Finally, Bradley's juror card showed that she was an assistant court coordinator for Smith County, which made her a desirable venireperson for the State.

Appellant's claim of disparate treatment is also negated by the fact that another white venireperson, Raymond Lee Shoemaker, was peremptorily challenged because of his relationship to a person with a criminal history. Thus, Appellant's assertions are without merit.

Three other black members of the panel (Marcus D. Woodard, Fred Wallace and Eleanor D. Andrews) were stricken because they expressed a concern that rehabilitation should be the main objective of punishment. A venireperson's views regarding the importance of rehabilitation may be a race-neutral reason for the use of a peremptory challenge. See, e.g., Parramore v. State, 853 S.W.2d 741, 744-45 (Tex.App.--Corpus Christi 1993, pet. ref'd) (jurors' statements that rehabilitation was most important held to be racially neutral basis for peremptory strikes). Moreover, the record does not reflect disparate treatment by the State on this basis. The prosecutor testified that he had stricken each and every person who had answered that rehabilitation was the most important goal. Likewise, the record shows that each person answering favorably regarding rehabilitation was eliminated by either peremptory strike or challenge for cause, or by their exclusion from the strike zone.

Other race-neutral reasons given for the strikes against Woodard, Andrews and Wallace demonstrate that the State's peremptory challenges were not exercised in a racially discriminatory manner. In addition to their views on rehabilitation, Woodard and Andrews were properly challenged because of their relationship with Appellant and his family. Woodard stated that he was acquainted with Appellant, and Andrews confirmed that she knew Appellant's mother. A prospective juror may be peremptorily challenged because he is acquainted with a defendant or his family. United States v. Iron Moccasin, 878 F.2d 226 (8th Cir.1989); DeBlanc v. State, 799 S.W.2d 701, 711-13 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); Keeton v. State, 749 S.W.2d 861, 870 (Tex.Cr.App.1988). Woodard was also challenged for his failure to reveal his criminal history, see Perry, 770 S.W.2d at 952-53; Holman, 772 S.W.2d at 533, and for his previous convictions. Wilson v. State, 769 S.W.2d 682, 683 (Tex.App.--Beaumont 1989, no pet.); Adams v. State, 740 S.W.2d 60, 62 (Tex.App.--Dallas 1987, no pet.).

Wallace was challenged based upon his failure to complete his juror information card. Failure to adequately fill out the information card has been held to be a race neutral for striking a juror. Satterwhite v. State, 858 S.W.2d 412, 424 (Tex.Cr.App.), cert. denied, 510 U.S. 970, 114 S.Ct. 455, 126 L.Ed.2d 387 (1993); Catley v. State, 763 S.W.2d 465, 467 (Tex.App.--Houston [14th Dist.] 1988, pet. ref'd).

The appellate court must accord great deference to the rulings of the trial judge. Robinson v. State, 851 S.W.2d 216 (Tex.Cr.App.1991). The entire voir dire should be examined in order to determine if the prosecutor's explanations are legitimate or pretexts. Kemp v. State, 846 S.W.2d 289 (Tex.Cr.App.1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). Reviewing the entire voir dire examination, we conclude that the trial judge's decision was not clearly erroneous. The State gave race-neutral explanations for its peremptory challenges and Appellant did not counter them with evidence that leads us to believe that the State's explanations were a pretext in an attempt to discriminate. See Salazar v. State, 795 S.W.2d 187, 190 (Tex.Cr.App.1990); Straughter v. State, 801 S.W.2d 607, 612 (Tex.App.--Houston [1st Dist.] 1990, no pet.). Appellant's first point is overruled.

In Appellant's second point of error, he contends that the trial court erred in admitting the fruits of an illegal search. Specifically, he claims that State's Exhibit No. 14, which was a letter concealed in a suitcase in the trunk of his brother's car, should not have been admitted because it was discovered during a search performed outside the scope of the consent to search given by his brother. The State responds that the evidence was properly admitted since the search was conducted under the authority of the vehicle owner's consent. We agree.

The record from the suppression hearing reflects that on August 21, 1991, Appellant...