White v. State

Decision Date15 December 1998
Docket NumberNo. 06-98-00022-CR,06-98-00022-CR
PartiesLouis Ray WHITE, Sr., Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

R. Wesley Tidwell, Moore, Payne, Clem, Rodgers, Paris, for appellant.

Kerye Ashmore, Lamar County Attorneys Office, Paris, for appellee.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

CORNELIUS, Chief Justice.

Louis Ray White, Sr. was convicted of aggravated robbery, with two prior convictions. The jury set his punishment at life in prison. On appeal, White contends that the trial court improperly overruled his Batson objection and his motion for a continuance, improperly admitted an out-of-court statement of an accomplice, and erred in overruling his motion for new trial because the accomplice testimony was not corroborated sufficiently to support his conviction. We affirm the judgment.

The State's evidence showed that on March 30, 1997, Louis Ray White, Sr. and Louis Ray White, Jr. (Junior) robbed the Family Mart in Paris, Texas. White drove himself and his son to the store. When they arrived, Junior got out of the car and entered the store carrying a shotgun wrapped in a tee shirt. He pointed the shotgun at the clerk and demanded money. On May 22, 1997, White and Junior were arrested and indicted. On October 22 of the same year, White was tried separately and convicted. Junior has not yet been tried.

During voir dire, the State exercised one of its peremptory strikes on venire member Linda Battle. White contended that the State struck Battle because she is black. White based his challenge on the fact that the State struck Battle without asking her any question. The trial court took judicial notice that Battle was black and admitted her jury questionnaire into evidence. The prosecutor responded with two race-neutral explanations. First, he pointed out that the jury panel already had four black members. Additionally, he stated that he struck Battle because she stated on her jury questionnaire that the Lamar County Attorney prosecuted her son, and he was convicted. The prosecutor was not under oath when he gave the race-neutral explanations. The trial court overruled White's Batson objection.

During his opening statement, White's counsel told the jury that he would call Trent Joplin to testify in his case in chief. Joplin, however, failed to appear at the first day of trial, although he had been subpoenaed. On the second day of trial, the court issued a writ of attachment for Joplin, but he was not located. After the State rested, White's counsel gave his opening statements. He argued that Trent Joplin had information concerning a person who was hiding from the police on the night of the robbery. When White called Joplin to testify, the bailiff stated that the witness was not present.

Outside the presence of the jury, White asked the trial court to take judicial notice of Joplin's subpoena and orally requested a continuance until Joplin could be found. White asked for a continuance because of "the nature of Mr. Joplin's statement which was given to Officer Monree." White then offered an unsworn statement that Joplin had given to the police. The State did not object to the statement. White also requested a mistrial in the event that his continuance was not granted. The trial court then overruled White's request for a continuance and motion for mistrial.

During the trial, the State requested permission to allow Rayla McCurry, White's daughter and Junior's sister, to testify about statements Junior had made to her. White objected to the admission of such statements on the basis that testimony by McCurry would violate his right of confrontation. The court overruled White's objection and granted him a running objection. McCurry testified that Junior admitted to her in an out-of-court statement that he and White committed the robbery.

We first address the claimed Batson violation. White asserts that the State failed to provide a race-neutral explanation for striking venire person Linda Battle. Specifically, White argues when the State gave its race-neutral explanations, the State's attorney was not under oath and thus the statements did not constitute evidence.

The Equal Protection Clause of the United States Constitution forbids the State from excluding venire persons from jury service solely because of their race. U.S. CONST. amend. XIV; Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In reviewing a Batson claim, an appellate court must determine if the State exercised its peremptory strikes in a purposefully discriminatory manner. Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App.1988). We may not reverse the trial court's Batson decision 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.1992). If the record supports the findings of the trial court, they will not be disturbed on appeal. Keeton, 749 S.W.2d at 870.

A Batson review involves a three-step analysis. Roberts v. State, 963 S.W.2d 894, 899 (Tex.App.-Texarkana 1998, no pet.) (citing Purkett v. Elem, 514 U.S. 765, 767-69, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). The first step requires the complaining party to make a prima facie case of racial discrimination. Roberts v. State, 963 S.W.2d at 899. After the complaining party makes his prima facie case, the second step requires that the proponent of the challenge come forward with a race-neutral reason for the strike. Id. If the proponent of the strike can produce a race-neutral reason, then in the third and final step, the opponent of the strike has the ultimate burden of proving intentional discrimination. Id.

The question before this Court is whether the prosecutor gave a race-neutral explanation with his unsworn statements to the trial court. Typically, unsworn statements by attorneys are not evidence. Lott v. City of Fort Worth, 840 S.W.2d 146, 150-51 (Tex.App.-Fort Worth 1992, no writ). However, as we noted in Parra v. State, during a Batson hearing, if nonevidence is introduced and considered by the court without objection, it then becomes evidence. Parra v. State, 935 S.W.2d 862, 868 n. 1 (Tex.App.-Texarkana 1996, no pet.) (citing Lott v. City of Fort Worth, 840 S.W.2d at 150). Additionally, the Texas Supreme Court has held that unsworn statements of counsel may be offered to explain why peremptory challenges were exercised. Goode v. Shoukfeh, 943 S.W.2d 441, 451 (Tex.1997). White does not contest the State's reason for the strike; he only complains of the unsworn nature of the statements. White did not object when the State offered its reasons for the strike.

White also contends that the trial court erred by overruling his motion for continuance. We conclude that White did not preserve error on this point. To preserve error when the trial court refused to grant a motion for a continuance due to an absent witness, White must have presented, in his motion for new trial, an affidavit by Joplin, or some other source, containing sworn evidence showing what Joplin would have testified to at trial. Varela v. State, 561 S.W.2d 186, 191 (Tex.Crim.App.1978); Ashcraft v. State, 900 S.W.2d 817, 834 (Tex.App.-Corpus Christi 1995, pet. ref'd, pet. dism'd); Kemper v. State, 643 S.W.2d 758 (Tex.App.-San Antonio 1982, no pet.). White's motion for new trial is sworn to, but it does not contain any evidence as to what Joplin might have said if he were called as a witness.

At the hearing on the motion for continuance, White introduced Joplin's unsworn statement to the police. White did not explicitly tell the court that Joplin's testimony would be the same as his statement to the police, but we find that offering the statement sufficiently apprised the court about the nature of Joplin's expected testimony. However, the statement was not sworn to, so it was insufficient to support a motion for continuance because of the absence of the witness. TEX.CODE CRIM. PROC. ANN. art. 29.08 (Vernon 1989); Ashcraft v. State, 900 S.W.2d 817.

Additionally, Joplin's statement 1 was not material as to White's guilt, so even if the trial court erred in overruling the motion for continuance, the error was harmless. Further, White's motion for continuance was not in writing and was not sworn to.

A motion for continuance made during trial, that is not in writing and is not sworn to, will not preserve error if it is denied. Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App.1995); Montoya v. State, 810 S.W.2d 160, 176 (Tex.Crim.App.1989); Garcia v. State, 960 S.W.2d 329, 333 (Tex.App.-Corpus Christi 1997, no pet.); Mosley v. State, 960 S.W.2d 200, 206 (Tex.App.-Corpus Christi 1997, no pet.); Vega v. State, 898 S.W.2d 359 (Tex.App.-San Antonio 1995, pet. ref'd). Article 29.03 of the Code of Criminal Procedure provides that a criminal action may be continued on the written motion of either party. TEX.CODE CRIM. PROC. ANN. art. 29.03 (Vernon 1989). Article 29.08 requires that all motions for continuance must be sworn to by a person with knowledge of facts relied on for the continuance. TEX.CODE CRIM. PROC. ANN. art. 29.08.

The Beaumont Court of Appeals recently decided a case concerning an oral motion for continuance. In Deaton v. State, the court held that the trial court abused its discretion by not granting appellant's oral motion for continuance. Deaton v. State, 948 S.W.2d 371, 374 (Tex.App.-Beaumont 1997, no pet.). The court stated that the "idea of an 'equitable approach' or seeking an 'equitable' rather than a 'statutory' continuance has never been expressly rejected by the Court of Criminal Appeals." Id. at 374. These equitable motions are actually motions for delay or for a recess, rather than traditional motions for continuance. Professor Dix and Professor Dawson state:

Independent of Chapter 29 of the Code of Criminal Procedure, a body of case law has developed to the effect that trial judges have...

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