Nos. 05-01-00999-CR, 05-01-01000-CR.
Opinion Filed January 31, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-72210-MU, F00-53052-NU. AFFIRMED.
Before Chief Justice THOMAS and Justices WHITTINGTON and CAMPBELL.
The Honorable Charles F. Campbell, Retired Judge, Texas Court of Criminal Appeals, sitting by assignment.
Opinion By Justice CAMPBELL
A jury found Michael Damontae Wilson guilty of two aggravated robbery offenses. See Tex. Pen. Code Ann. § 29.03 (Vernon). In each case, the jury assessed appellant's punishment at forty-five years confinement in the Texas Department of Criminal Justice, Institutional Division. In three points of error, appellant complains the State exercised its peremptory strikes in a racially discriminatory manner and the State's final argument at punishment was prejudicial and inflammatory. We will affirm.
Batson Error
In points of error one and two, appellant complains the prosecutor improperly and unconstitutionally peremptorily challenged four African-American venire persons based on the criteria of race. In his brief, appellant only proffers argument with regard to two of these jurors, number 7, Parker, and number 48, Crossland. Appellant's arguments in these two points are predicated both on the Equal Protection clause of the Fourteenth Amendment, see generally Batson v. Kentucky, 476 U.S. 79 (1986), and the Texas legislative response to Batson contained in article 35.261 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989). Appellant claims that although the prosecutor offered facially race-neutral explanations for striking Parker and Crossland, those explanations were merely a pretext for the discriminatory reason for the strikes. The State responds that the prosecutor advanced facially race-neutral reasons for striking Parker and Crossland, and appellant failed to show by a preponderance of evidence that the prosecutor's reasons were a sham or a pretext for discrimination. A. Applicable Law
Pursuant to Batson, there is a three-step process for evaluating an objection to peremptory strikes. See Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the defendant must make a prima facie case of discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam). Once this is done, the burden of production shifts to the prosecutor to articulate a race-neutral explanation for the strikes. Id. A race-neutral explanation need not be persuasive or even plausible, but only a reason based upon something other than race. Id. at 767-68. Finally, if the prosecutor gives a race-neutral explanation, the trial court must decide whether the defendant has proven purposeful discrimination. Id. at 768. The ultimate burden of persuasion rests with, and never shifts from, the defendant. Id. We will not disturb the trial court's resolution of a Batson issue unless we conclude the trial court's findings were clearly erroneous. See Hernandez, 500 U.S. at 369. Under this standard of review, we defer to the trial court's decision unless we are left with a definite and firm conviction that a mistake has been committed. See id. One factor to consider in determining whether the defendant met his burden to show purposeful discrimination is the disparate treatment of venire persons. See Johnson v. State, 959 S.W.2d 284, 292 (Tex.App.-Dallas 1997, pet. ref'd). However, we cannot automatically imply racial bias in every situation in which one of the State's reasons for using a peremptory challenge may technically apply to an unchallenged venire person. See Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim. App. 1992). Venire persons may possess the same objectionable characteristic, but in varying degrees. See id. Additionally, the State may strike one venire person and not another with the same objectionable characteristic if the stricken venire person also possesses other objectionable characteristics. See id. B. Analysis
With regard to juror no. 7, Parker, the State indicated that the reason he was struck was because he wore earrings in both ears. The trial prosecutor opined that wearing earrings "indicates a liberal attitude in terms of the criminal justice system and in general indicates a liberal attitude." The prosecutor added that wearing earrings indicated an attitude of non-conformity. Appellant countered that during voir dire, Parker said he had been the victim of a burglary, and expressed the opinion that deterrence was an important consideration in punishing wrongdoers. Appellant also pointed out that a non-African-American who had body piercing sat on the jury. The prosecutor explained that the body piercing was not visible during the initial days of trial because the juror wore a long sleeved shirt. The piercing apparently became visible some time into the trial after the jury had been empaneled and sworn. Appellant did not refute the prosecutor's explanation in this respect. The court of criminal appeals has held that a prosecutor may exercise peremptory strikes based on hunches and past experience, even if they are foolish, as long as they are not motivated by race. See Keeton v. State, 749 S.W.2d 861, 865-66 (Tex.Crim.App. 1988). One of our sister courts has held that the wearing of earrings can constitute a valid race-neutral explanation for a peremptory strike. See Lee v. State, 949 S.W.2d 848, 850 (Tex.App.-Austin 1997, pet. ref'd); see also Gambel v. State, 835 S.W.2d 788, 791 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (prosecutor's striking of juror who wore earring race-neutral). Indeed in Purkett itself, the Supreme Court indicated that unkempt hair, a mustache, and a goatee would be sufficiently race-neutral explanations for peremptory strikes. See Purkett, 514 U.S. at 767-70. The prosecutor averred that he struck juror no. 48, Crossland, because she had a relative who served prison time for a violent crime and because Crossland worked as a social worker. Appellant argued that the prosecutor's explanation relied on flimsy, pretextual reasons. Crossland's relative was a now-deceased uncle, the uncle's imprisonment for attempted murder occurred when Crossland was very young, and Crossland had no memory of the specifics of her uncle's case. Appellant argued that Crossland otherwise fit the profile of a strong State's juror. Further, the prosecutor gave no explanation as to why a social worker would be an unacceptable juror for the State, therefore it must be a pretextual reason for exercising the strike. The court of criminal appeals has held that when the motives behind a challenged peremptory strike are mixed (both permissible and impermissible), if the striking party shows he would have struck the juror based solely on the neutral reasons, the strike does not violate the juror's Fourteenth Amendment right to equal protection of the law. Guzman v. State, 85 S.W.3d 242, 244 (Tex.Crim.App. 2002). In this case, the prosecutor did not affirmatively state Crossland would have been struck even absent the fact that she is a social worker. However, the prosecutor staunchly defended the peremptory strike on the basis of Crossland's uncle, and went so far as to make comparisons with other jurors. Therefore, we conclude the prosecutor established a race-neutral basis for the strike. We conclude appellant has not met his burden of showing the prosecutor's peremptory strikes of Parker and Crossland were for racially discriminatory reasons. Therefore, the trial court did not act in a clearly erroneous fashion in not sustaining appellant's Batson objections. We overrule appellant's first and second points of error. Prosecutor's Closing Arguments
In point of error three, appellant complains of four separate arguments made by the prosecutor to the jury. Appellant asserts the arguments at issue expressed the prosecutor's personal opinions and were, therefore, improper. The State responds that appellant lodged timely objections to the first three complained-of arguments, and the trial court sustained the objections. Appellant did not, however, ask for an instruction to disregard or move for a mistrial. Thus, the State argues, appellant did not preserve these complaints. To preserve jury argument error for appellate review, the defendant must (1) object, (2) request an instruction to disregard, and (3) move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993). When the trial court sustained appellant's objections to the first three of the complained-of arguments, appellant received the relief he requested. Because appellant did not pursue his complaints regarding the first three complained-of arguments to an adverse ruling, he has not preserved those complaints for review. See Nethery v. State, 692 S.W.2d 686, 701 (Tex.Crim.App. 1985). Appellant's complaint regarding the fourth argument relates to the prosecutor's statement during the punishment phase, "I think life is an appropriate sentence." The trial court sustained appellant's objection, and appellant asked for an instruction to disregard. The trial court instructed the jury to disregard the statement, but denied appellant's motion for mistrial. Therefore, error is preserved for our review. To fall within the realm of proper jury argument, the argument must encompass one of the following areas: (1) summation of the evidence presented at trial; (2) reasonable deductions drawn from the evidence; (3) answer to opposing counsel's argument; and (4) a plea for law enforcement. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). "A prosecutor may not convey to the jury during argument that he possesses specialized knowledge or expertise about a contested issue in the case." Jackson v. State, 17 S.W.3d 664, 675 (Tex.Crim.App. 2000). Such comments pose the danger of influencing the jury in deciding that issue. Id. However, we will hold an instruction to disregard fails to cure error only when the complained-of argument was extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision, and was thus so inflammatory that an instruction to disregard could not cure its prejudicial effect. See Gaddis, 753 S.W.2d at 398. In this case, the prosecutor did give the jury his opinion that life was an appropriate sentence for appellant. This argument did not inject new or harmful facts into the case, did not violate a mandatory statutory provision, was not extreme, and was not particularly inflammatory. While it was improper, with the trial court's instruction to the jury to disregard the personal opinion, virtually in that language, we cannot say the instruction to disregard failed to cure the error. Therefore, we conclude the trial court did not err in overruling appellant's motion for mistrial. We overrule appellant's third point of error. We affirm the trial court's judgments.