Opinion
01-22-00524-CR
05-07-2024
DAQUAN CARMON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1685463
Panel consists of Justices Kelly, Hightower, and Guerra.
OPINION
Peter Kelly Justice
Appellant Daquan Carmon appeals his conviction for murder. After trial, the jury found him guilty and assessed his punishment at 70 years' imprisonment. On appeal, Carmon argues that the trial court erred by denying his motion to suppress and by overruling his Batson challenges. We affirm.
Background
Donovan Carter celebrated the Fourth of July in front of his mother's home with some friends. As the night progressed, the group went to a parking lot of a nearby store. They started "play fighting," which turned into a real fight. Carter attempted to break up the fight. A woman came out of the store and approached the group. Carter told the woman to "get back." More people came out of the store, and one of them told the group not to speak to the woman "like that." Carmon was one of the people who approached the group. He had a pistol in his hand and said, referring to Carter, "I'll smoke him."
The group dispersed, and Carter drove away. Several minutes later, Donovan went back to his mother's house to get his cell phone. Meanwhile, Carmon climbed over a fence. From a break in the fence, Carmon had a clear view of Carter. Carmon shot and killed Carter. While he was shooting, his gun discharged several spent cartridges.
A few weeks later, Carmon was pulled over for a traffic offense. The officer smelled marijuana and searched the car. Law enforcement found a pistol in the car. Ballistic analysis matched the spent cartridges from the shooting scene to the pistol found in the car. Carmon's DNA was also found on the weapon.
Carmon was charged with murder. After the trial court denied his motion to suppress evidence found in the car, Carmon proceeded to a jury trial. The jury found him guilty and assessed his punishment at 70 years' imprisonment. The trial court sentenced him in accordance with the jury's verdict.
Motion to Suppress
In his first issue, Carmon argues that the trial court erred by denying his motion to suppress because the officer had no reasonable suspicion to stop his car and no probable cause to search it. We disagree.
A. Applicable Facts
Carmon moved to suppress evidence found in his car after it was stopped and searched by police. At the suppression hearing, a City of Houston police officer testified that he had been an officer for more than 30 years. In July 2020, he was patrolling southbound U.S. 59 when he was alerted by a license plate reader that a black Lincoln sedan passing on the highway was associated with a murder case. The officer followed the Lincoln and observed that the car was trying to gain distance from the patrol car. The Lincoln sedan exited the freeway after passing a sign instructing drivers not to cross a double white line. The officer observed the car crossing the double white line as it exited.
The car pulled into a gas station. The officer activated his patrol car's lights and pulled up behind the Lincoln sedan. The driver, later identified as Carmon, got out of the car. The driver did not have a valid driver's license. Immediately upon approaching Carmon, the officer smelled the odor of burnt marijuana on Carmon and in the air outside Carmon's car. The officer searched the car. He found marijuana, smoking paraphernalia, a firearm, and box of ammunition. The trial court viewed photos and video from the incident. The trial court denied Carmon's motion to suppress.
B. Standard of Review
The United States and Texas Constitutions protect against unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I, § 9. No evidence obtained in violation of the United States or Texas Constitutions can be admitted as evidence against the accused at trial. Tex. Code Crim. Proc. art. 38.23.
We review a trial court's ruling on a motion to suppress for an abuse of discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). In doing so, we apply a bifurcated standard of review, giving almost total deference to the trial court's determination of historic facts and mixed questions of law and fact that rely upon witness credibility, but reviewing de novo pure questions of law and mixed questions of law and fact that do not require credibility determinations. Id. at 923. The trial court may choose to believe or disbelieve any or all a witness's testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We may uphold the trial court's ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. Id. at 447-48.
C. The officer had reasonable suspicion to stop Carmon's car.
Carmon suggests that the officer did not have reasonable suspicion to initiate a traffic stop. A warrantless automobile stop is a Fourth Amendment seizure analogous to a temporary detention, and it must be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420, 439 (1984); see Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A police officer is justified in stopping a vehicle if the officer has reasonable suspicion to believe that a traffic violation has occurred. Lerna v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). An actual violation does not need to have occurred; rather, it is only necessary that the officer had a reasonable suspicion that a violation occurred. Jagannathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000) (noting that officer may briefly detain person for investigative purposes on less than probable cause where specific and articulable facts along with inferences from those facts reasonably warrant detention).
Reasonable suspicion exists when the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968). We examine the facts that were available to the officer at the time of the investigation. Brodnex v. State, 485 S.W.3d 432, 437 (Tex. Crim. App. 2016). Reasonable suspicion depends on the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Navarette v. California, 572 U.S. 393, 402 (2014) (internal quotation and citation removed). It is a less demanding standard than probable cause and requires a showing "considerably less than preponderance of the evidence." Furr v. State, 499 S.W.3d 872, 878 (Tex. Crim. App. 2016) (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). Appellate courts "review de novo whether the totality of circumstances is sufficient to support an officer's reasonable suspicion of criminal activity." Crain v. State, 315 S.W.3d 43, 48-49 (Tex. Crim. App. 2010).
The evidence in this case supports the trial court's finding that the officer had reasonable suspicion to stop Carmon for a traffic violation. The officer testified that he stopped Carmon because he observed his vehicle crossing a double white line on the highway after passing a sign instructing drivers not to do so. The Transportation Code states that an operator of a vehicle shall comply with "applicable official traffic-control device[s]." Tex. Transp. Code § 544.004. A lawfully placed sign is a "traffic control device." Id. at § 541.304(1). The officer's observation of Carmon's driving provided objective, articulable facts supporting a reasonable suspicion to stop Carmon for a traffic violation. See Castro v. State, 227 S.W.3d 737, 742 (Tex. Crim. App. 2007) (holding that officer's observation of illegal lane change provided sufficient objective, articulable facts to support finding of reasonable suspicion that driver committed traffic violation); see also Munoz v. State, 649 S.W.3d 813, 819-20 (Tex. App.-Houston [1st Dist] 2022, no pet.) (holding that officer's observation of moving from lane unsafely provided reasonable suspicion of traffic violation to justify stop). We overrule Carmon's issue related to reasonable suspicion to conduct the stop.
D. The officer had probable cause to search the vehicle.
Carmon next argues that law enforcement did not have probable cause to search his vehicle. An officer "may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband." Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). When determining probable cause, the focus is on the facts and circumstances known to law enforcement officials at the time of the search. Wiede v. State, 214 S.W.3d 17, 26, (Tex. Crim. App. 2007).
The record reflects that the officer had information that the Lincoln sedan was associated with a murder case. The driver of the sedan seemed to be distancing himself from law enforcement on the highway. To exit the highway, the driver crossed a double white line, even though a sign stated not to do so. The officer then pulled the car over at a gas station. The officer stopped behind the sedan, and the driver, later identified as Carmon, got out of the car. As the officer approached, the officer immediately smelled marijuana on Carmon and in the air around him. The odor of marijuana is an issue of historical fact that turns on the credibility and demeanor of the witnesses, and we defer to the trial court's resolution of historical facts. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). It was reasonable to infer that the smell came from the car. Robinson v. State, No. 01-10-00727-CR, 2012 WL 1454451, at *4 (Tex. App.-Houston [1st Dist.] Apr. 26, 2012, pet. ref'd) (mem. op., not designated for publication) (citing Marsh v. State, 684 S.W.2d 676, 679 (Tex. Crim. App. 1984)) (holding that officer who smelled marijuana as occupants stepped out of vehicle had probable cause to search vehicle); Levine v. State, 794 S.W.2d 451, 453 (Tex. App.-Amarillo 1990, no pet.) (holding that probable cause for warrantless search of validly stopped vehicle exists "when the searching officer, experienced in detecting the odor of marihuana, smells burnt marihuana emanating either from the vehicle itself or from the person of the driver who has emerged from the vehicle, or from both." (internal citations omitted)). The trial court did not err in holding that, after smelling marijuana when Carmon got out of the car, the officer had probable cause to search Carmon's car. The court did not err by denying Carmon's motion to suppress.
We overrule Carmon's first issue.
Denial of Batson Challenges
In his second issue, Carmon contends that the trial court erred in denying his Batson challenges to four venirepersons.
A. Standard of Review and Applicable Law
The racially motivated use of a peremptory strike violates the Equal Protection Clause of the United States Constitution. See Batson v. Kentucky, 476 U.S. 79, 89 (1986); see also U.S. Const. amend. XIV, § 1; Tex. Code Crim. Proc. art. 35.261. The exclusion of even one juror with racial motive invalidates the jury selection process and requires a new trial. Ledford v. State, 649 S.W.3d 731, 743 (Tex. App.-Houston [1st Dist.] 2022, no pet.).
Named after the seminal Supreme Court decision, an objection that a peremptory strike was based on race is called a Batson challenge. The resolution of a Batson challenge involves a three-step process, which encourages prompt rulings on objections to peremptory challenges and reduces disruptions in the jury-selection process. Nieto v. State, 365 S.W.3d 673, 765-76 (Tex. Crim. App. 2012). First, the defendant must make a prima facie showing of racial discrimination. Id. at 676. If the defendant makes the requisite showing, the burden shifts to the prosecutor in the second step, requiring him to articulate a race-neutral explanation for the strike. Id. Finally, the trial court determines whether the opponent of the strike has satisfied his burden of persuasion to establish by a preponderance of the evidence that the strike was indeed the product of purposeful discrimination. Blackman v. State, 414 S.W.3d 757, 765 (Tex. Crim. App. 2013).
The trial court's ruling in the third step must be sustained unless it is clearly erroneous. Nieto, 365 S.W.3d at 676. The clearly erroneous standard is highly deferential because the trial court is in the best position to determine if the prosecutor's explanation is genuinely race neutral. Id. The trial court must focus on the genuineness of the asserted non-racial motive, rather than the reasonableness. Id. We defer to the trial court's ruling in the absence of exceptional circumstances. Id. Whether the defendant satisfies his burden of persuasion to show that the State's facially race-neutral explanation for its strike is pretextual, not genuine, is a question of fact for the trial court. Blackman, 414 S.W.3d at 765.
An appellate court should consider the entire record of the voir dire and need not limit itself to the specific arguments brought forth to the trial court by the parties. Nieto, 365 S.W.3d at 676. A reviewing court may not substitute its judgment for the trial court's in deciding that the prosecutor's explanation was a pretext. Id. Just like the trial court, the reviewing court must focus on the genuineness, rather than the reasonableness, of the asserted non-racial motive. Id.
B. Analysis
During voir dire, the State used 11 preemptory strikes. Four of the potential jurors whom the State struck were Black: Potential Jurors 3, 26, 28, and 31. Carmon's counsel asserted a Batson challenge against each one. The State gave the court its reasons for striking each potential juror, and the court denied Carmon's challenges.
The jury included two Black people. Out of eleven strikes made by the State, four were Black potential jurors.
On appeal, Carmon concedes that the State proffered race-neutral explanations for each of the four challenged potential jurors. Accordingly, our focus is on the third Batson step, i.e., whether Carmon established purposeful discrimination, and thus, whether the trial court committed clear error by overruling Carmon's Batson challenges. Nieto, 365 S.W.3d at 676 (explaining third step is trial court determination whether defendant proved purposeful discrimination).
We review whether the trial court's ruling denying the Batson challenge is clearly erroneous. Nieto, 365 S.W.3d at 676. We determine whether the appellant proved purposeful discrimination; that is, whether the trial court clearly erred in failing to find purposeful discrimination in the State's use of peremptory strikes. Ledford, 649 S.W.3d at 745. The trial court must evaluate the facially race-neutral reasons given by the prosecutor to determine whether those explanations are genuine or merely a pretext for purposeful discrimination. Id. (citing Whitsey v. State, 796 S.W.2d 707, 713 (Tex. Crim. App. 1989)).
"[A] reviewing court should examine a trial court's conclusion that a racially neutral explanation is genuine, not a pretext, with great deference, reversing only when that conclusion is, in view of the record as a whole, clearly erroneous." Blackman, 414 S.W.3d at 765. Factors to consider may include: "(1) statistical evidence, (2) evidence of disparate questioning of similarly situated venirepersons, (3) side-by-side comparisons of the stricken venirepersons and the accepted venirepersons, (4) whether the record supports the State's explanations for its strikes, and (5) any other relevant circumstances bearing on the issue of purposeful discrimination." Compton v. State, 666 S.W.3d 685, 698 (Tex. Crim. App. 2023) (citing Flowers v. Mississippi, 588 U.S. 284, 302 (2019)).
We address each challenge in turn.
1. Potential Juror 3
When challenged, the State explained that Potential Juror 3 lied on his juror card about whether he had ever been accused of a crime. The juror questionnaire asked if a venireperson had ever been "accused, complainant, or witness in a criminal case," and the potential juror answered no. The State's research showed the potential juror had a conviction for unauthorized use of a motor vehicle in 1992 that was dismissed. Carmon argued that Potential Juror 1 had the same conviction and the same response on his questionnaire, and the State did not strike him. The State responded that when discussing strikes amongst co-counsel, one of the prosecutors had written and circled the word "lied" on his notes about Potential Juror 3, so they decided to eliminate him. The State offered and the court admitted the State's notes about the jurors into evidence. The trial court found the strike to be race neutral. On appeal, Carmon argues that the trial court was clearly erroneous in denying his Batson challenge as to Potential Juror 3 because Potential Juror 1 also lied on the jury card, and the State did not strike that person.
Disparate treatment may not automatically be inferred from every situation in which the State's reasons for striking a veniremember apply to another veniremember that the State did not strike. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992). The trial court is in the best position to determine whether a prosecutor's facially race-neutral explanation for a peremptory strike is genuinely race-neutral. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). The voir dire record shows that Potential Juror 1 indicated that he placed importance on ballistic evidence. In this case, there was no direct eyewitness who would testify that Carmon pulled the trigger of the gun. The State had to rely on ballistic evidence to show that the bullets fired matched the gun found with Carmon two weeks after the shooting. The State had reason to believe that Potential Juror 1 would be a beneficial juror for the State, given that ballistic evidence was important to the State's theory of the case. The State's proffered reason for striking Potential Juror 3 was not that the State desired to strike every juror that lied, nor was it that the State desired to strike every juror with a criminal record. Instead, the State said that in comparing notes between co-counsel, the State had noted that Potential Juror 3 lied and that this was the "last deciding factor between myself and co-counsel about striking Juror Number 3." See Cantu, 842 S.W.2d at 689 (stating decision to strike potential juror involves variables and permutations). Reviewing the record, we hold that the trial court did not clearly err in failing to find purposeful discrimination for striking Potential Juror 3. Ledford, 6549 S.W.3d at 745.
2. Potential Juror 26
As to Potential Juror 26, the State explained that the strike was because he had a vacation planned June 20 through 24, which would have been in the middle of trial. Since both sides did not agree to strike him, the State used a peremptory strike. Carmon's counsel argued that the State did not strike Potential Juror 27 who also had a vacation planned. The State responded that Potential Juror 27 had a flight on June 24, and the State hoped to be finished with trial by then. Voir dire was held on June 14, 2022, and trial began on June 15, 2022. The trial court ruled that the State's reason was not pretextual. The trial court, as the factfinder, could have concluded that the State's striking a juror with a planned absence that would likely occur during the trial was a genuine race-neutral reason. The trial court could also have held that Potential Juror 27, with a flight ten days after trial would begin, was not similarly situated to Potential Juror 26. After reviewing the record, we cannot say that the trial court's ruling was clearly erroneous.
3. Potential Juror 28
As to Potential Juror 28, the State struck her because she was one of the youngest people in the panel. She was 23 years old and a college student. The State explained that in his experience, students are not good jurors. Striking a veniremember based on age is a race-neutral reason for a peremptory strike. Malone v. State, 939 S.W.2d 782, 784 (Tex. App.-Houston [14th Dist.] 1997, no pet.) ("Young age constitutes a race-neutral explanation for the exercise of a preemptory strike."); Gerber v. State, 845 S.W.2d 460, 465 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd) (same). Carmon was unable to refute the prosecution's explanation or demonstrate that the State's explanation was merely a pretext for discrimination. Nieto, 365 S.W.3d at 679 (stating Batson "leaves room for the State to exercise peremptory strikes based on a 'hunch' or past experience, as long as racial discrimination is not the motive"). Therefore, giving great deference to the trial court's denial of appellant's Batson challenge, we cannot say that based on our review of the record the trial court's ruling is clearly erroneous. Ledford, 649 S.W.3d at 746.
4. Potential Juror 31
As to Potential Juror 31, the State said it struck her because she was falling asleep during voir dire, and the State was concerned about her response to a question about motive. The prospective juror had responded that motive is "deeply rooted in history and experiences." The State argued that the prospective juror did not give a committed answer as to whether she would raise the State's burden of proof or whether the State needed to provide a motive for the offense. Carmon's counsel replied that he did not see the prospective juror sleeping. The trial court did not notice the prospective juror sleeping but stated that it was impossible to watch every person on the panel at the same time. The State responded that the potential juror had her eyes closed for long periods of time. The trial court found the strike to be race neutral. Sleeping during voir dire is a race-neutral reason for using a peremptory challenge. Moore v. State, 265 S.W.3d 73, 82 (Tex. App.- Houston [1st Dist.] 2008, pet. dism'd, improvidently granted). We cannot say that the trial court's ruling was clearly erroneous.
C. Conclusion
None of the prosecutor's explanations for the challenged peremptory strikes reflect an inherently discriminatory intent. Carmon failed to rebut the State's reasons for striking the four prospective jurors and establish the reasons were merely pretextual. The trial court could have determined that the reasons for striking the four prospective jurors were genuine and race neutral. We conclude that the trial court's finding that the State's explanations were race-neutral is supported by the record and is not clearly erroneous.
Accordingly, we overrule Carmon's second issue.
Conclusion
We affirm the judgment of the trial court.