Court of Appeals of Texas, Fifth District, DallasMar 12, 2003
No. 05-02-00091-CR (Tex. App. Mar. 12, 2003)

No. 05-02-00091-CR.

Opinion Issued March 12, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F01-00879-TH. AFFIRMED.



Opinion By Justice WHITTINGTON.

Gary Lejon Simon appeals his conviction for aggravated robbery. After the jury found him guilty as charged and made an affirmative finding that he used or exhibited a deadly weapon during commission of the offense, the trial judge assessed punishment, enhanced by a prior conviction, at fifty years' confinement. In four points of error, appellant contends the evidence is legally and factually insufficient to support his conviction, the trial judge erred in overruling his Batson objection, and he was denied effective assistance of trial counsel. We affirm.

See Batson v. Kentucky, 476 U.S. 79 (1986).


Initially, we must determine whether we have jurisdiction over this appeal. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim. App. 1996) ("This issue of jurisdiction is fundamental and cannot be ignored. Accordingly, a court may sua sponte address the issue because subject matter jurisdiction cannot be conferred by agreement of the parties; jurisdiction must be vested in a court by constitution or statute."), overruled on other grounds by Medrano v. State, 67 S.W.3d 892 (Tex.Crim. App. 2002). The trial judge assessed punishment on October 22, 2001. In a document dated that same day and filed with the district clerk the following day, appellant wrote:
Dear Judge Warder
Would you please appoint an appeal lawyer for me as I am indigent. I know that a motion for new trial is due within 30 days, and that I must also file a notice of appeal.
In an undated document filed January 9, 2002, appellant filed a formal notice of appeal and a pauper's oath. In the same document, the trial judge appointed appellate counsel. The rules of appellate procedure provide that an "appeal is perfected by timely filing a notice of appeal." Tex. R. App. P. 25.2(a). "Notice must be given in writing and filed with the trial court clerk," and is sufficient if "it shows the party's desire to appeal from the judgment." Tex. R. App. P. 25.2(b). The letter, submitted in writing and filed with the district clerk, clearly states appellant's desire for the appointment of appellate counsel. Because the only reasonable explanation for requesting the appointment of appellate counsel is to appeal the trial court's judgment, we conclude appellant's October 21, 2001 letter is sufficient to qualify as a notice of appeal under the rules of appellate procedure. See Tex. R. App. P. 25.2(b). Appellant's notice of appeal was therefore timely filed, and we have jurisdiction over this appeal.

Legal and Factual Sufficiency of the Evidence

In his first and second points of error, appellant claims the evidence is legally and factually insufficient to support his conviction for aggravated robbery. We disagree. Appellant first argues the State failed to exclude every reasonable hypothesis raised by the evidence. The reasonable hypothesis test is no longer used by courts in resolving sufficiency determinations unless the case was tried prior to the court of criminal appeals decision in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (2000). Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim. App. 1999). Because this case was tried in 2001, ten years after the Geesa decision, the reasonable hypothesis test does not apply. We overrule appellant's first point to the extent it raises the reasonable hypothesis test. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). To show appellant committed aggravated robbery, the State must prove that appellant, while in the course of committing theft, caused bodily injury to the complainant and used or exhibited a deadly weapon. Tex. Pen. Code Ann. §§ 29.02(a)(1), 29.03(a)(2) (Vernon 2003). Robert Rowe, a retired Dallas police officer, testified that around 2:30 a.m. on August 31, 2000, he was at a Burger King parking lot in the 4200 block of Live Oak. He stopped to get something to eat and saw two stray cats. Rowe carries cat and dog food with him to feed strays and decided to stop and feed the two he saw. He spoke with a homeless individual sitting on the grass nearby, then bent down to pet the cats. Another individual approached him, tapped him on the shoulder with a pistol, and demanded his money. Rowe told the man he had a bad back and that it would take him a minute to straighten up. As he stood up, Rowe drew his .40 caliber Glock semiautomatic handgun. Rowe could not remember who fired first but stated he fired twelve to thirteen times. Rowe believed he hit the man. The other man fired at him several times before running off. Rowe then noticed his leg was bleeding. He called police who arrived and spoke with him briefly. He was taken to the hospital and released the following day. Other than stating they were African-American males, Rowe could not identify either the homeless man or the man who shot him. Michael Boone testified he was the homeless man at the scene that night. According to Boone, he saw Rowe drive up and get out of his van to feed the cats. He then saw appellant and another man come around the corner. Appellant pulled a gun out of his pants and said something to Rowe. Boone turned and ran away. He returned later and told the officers he could identify appellant. The officers took Boone to the hospital where appellant was being treated for a gunshot wound. Boone positively identified appellant as the man who approached Rowe. Dr. Timothy Sliter, the supervisor of the forensic biology laboratory at the Southwestern Institute of Forensic Sciences, testified he tested several samples of blood to determine whether the samples matched either appellant's or Rowe's DNA. Sliter generated a DNA profile from blood found in an area of the Burger King parking lot, and it matched appellant's DNA profile. In contrast, appellant testified he was at Judy's Club with a friend, Elder Brodnax, in south Dallas on the evening of August 31, 2000. He stated Judy's club is "[n]owhere near" the Burger King parking lot. According to appellant, he was headed into the club when he heard some guys talking about him. Appellant turned around and began walking back to the car. He heard gunshots and jumped in the car. As Elder drove off, appellant realized he had been shot. He told Brodnax to drive him home where they called an ambulance. Appellant told the ambulance personnel and police officers who later questioned him that he had been carjacked. Appellant did not know how his blood was found at the Burger King parking lot but suggested the "DNA guy [was] lying." After reviewing the record, we conclude a rational jury could find beyond a reasonable doubt that appellant, while in the course of committing theft, caused bodily injury to Rowe and used or exhibited a deadly weapon, a firearm. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction. Furthermore, giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence was so uncertain, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand. See Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). Nor can we conclude the verdict is against the great weight of the evidence so as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 11; Scott, 934 S.W.2d at 398. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first and second points of error.

Batson Challenge

In his third point of error, appellant contends the trial judge erred in overruling his objections to the State's use of peremptory challenges. Under this point, appellant contends we must reverse his conviction because the State engaged in purposeful discrimination when it struck nine minority prospective jurors from the jury panel. When reviewing a Batson challenge, we examine the record in the light most favorable to the trial judge's ruling. See Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App. 1988). We reverse the trial judge's ruling only when it is clearly erroneous. See Esteves v. State, 849 S.W.2d 822, 823 (Tex.Crim. App. 1993); Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim. App. 1992). If the trial judge's ruling is supported by the record, including the voir dire, the prosecutor's explanation of her peremptory challenges, appellant's rebuttal, and any impeaching evidence, then the trial judge's ruling is not clearly erroneous. See Hernandez v. New York, 500 U.S. 352, 364 (1991) (plurality opinion); Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App. 1992). Once a defendant makes a prima facie showing of purposeful discrimination, the State must then provide a race neutral explanation for striking the prospective jurors in question. See Miller-El v. Cockrell, No. 01-7662, 2003 WL 431659 (U.S. Feb. 25, 2003); Batson, 476 U.S. at 96-98; Harris, 827 S.W.2d at 955. This step of the process does not demand a persuasive or even plausible explanation; rather, the State's reason for the strike will be deemed race neutral unless a discriminatory intent is inherent in the prosecutor's explanation. Purkett v. Elem, 514 U.S. 765, 768 (1995). If the State provides a race neutral explanation for its strikes, the defendant must rebut the State's explanation or show that the explanation was merely a sham or pretext. See Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App. 1991). To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Johnson v. State, 959 S.W.2d 284, 290 (Tex.App.-Dallas 1997, pet. ref'd). The defendant has the ultimate burden of persuasion to establish that the allegations of purposeful discrimination are true. See Purkett, 514 U.S. at 768; Williams v. State, 767 S.W.2d 872, 874 (Tex.App.-Dallas 1989, pet. ref'd) (en banc). Although appellant claims the trial judge erred in finding the State provided a race neutral explanation for striking prospective jurors 3, 10, 11, 12, 13, 21, 26, 29, and 38, we disagree. Appellant, an African-American, objected to the State's use of peremptory strikes on nine African-American prospective jurors. In response to appellant's objections, the prosecutor explained why he struck each individual. According to the prosecutor, he struck prospective jurors 3, 10, 11, 13, 26, 29,and 38 because they had relatives who were either currently serving prison sentences or who had felony convictions. Having a family member or close friend who has been arrested, charged, or convicted of a crime is a proper, race neutral reason for striking a potential juror. See Emerson v. State, 851 S.W.2d 269, 272 (Tex.Crim.App. 1993); Garcia v. State, 833 S.W.2d 564, 567 (Tex.App.-Dallas 1992), aff'd, 868 S.W.2d 337 (Tex.Crim. App. 1993). In addition, the prosecutor stated he struck jurors 12 and 21 because when asked about prior convictions or indictments, juror 12 failed to admit he was no billed on an aggravated assault with a deadly weapon, and juror 21 did not admit having a DWI conviction. Striking a potential juror because he lied about a prior conviction or indictment is a race-neutral explanation for using a peremptory strike. See Hawkins v. State, 793 S.W.2d 291, 293-94 (Tex.App.-Dallas 1990, pet. ref'd). Although we note that a no bill is not a prior conviction or indictment, the prosecutor also stated he struck juror 12 because he had a bad experience with law enforcement. That a juror had a prior unpleasant experience with law enforcement personnel is a race-neutral explanation. See Hawkins, 793 S.W.2d at 293; Broden v. State, 923 S.W.2d 183, 186 (Tex.App.-Amarillo 1996, no pet.); Hernandez v. State, 808 S.W.2d 536, 544 (Tex.App.-Waco 1991, no pet.). We conclude the State met its burden of presenting a race neutral explanation for striking the potential jurors. Once the State provided a race neutral explanation for its strike, the burden shifted to appellant to rebut the State's explanations or to show the explanations were merely a sham or pretext. Appellant did not offer any argument or evidence to show why the State's explanations should not be accepted as true. Thus, appellant did not meet his burden of rebutting the State's race neutral reason. Examining the record in the light most favorable to the trial judge's ruling, we conclude the trial judge's ruling was not clearly erroneous. We overrule appellant's third point of error.

Ineffective Assistance of Counsel

In his fourth point of error, appellant claims he received ineffective assistance of counsel during the punishment phase of his trial. Under this point, appellant contends counsel was ineffective for failing to call any punishment witnesses. After examining the record and appellant's argument, we disagree and overrule appellant's point of error. We examine ineffective assistance of counsel claims under well-established standards. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). In brief, it is appellant's burden to show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance. Thompson, 9 S.W.3d at 812. We do not judge counsel's strategic decisions in hindsight, and we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 812. In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 813-14. Shortly after being found guilty of the charged offense, appellant changed his election and requested the trial judge assess punishment instead of the jury. Appellant then entered a plea of true to the enhancement paragraph. Thereafter, both appellant and the State rested, and the trial judge considered and assessed punishment. Although he now contends counsel was ineffective during punishment, appellant did not file a motion for new trial. Therefore, as was the case in Thompson, the record provides no discussion or discernible explanation of the motivation behind counsel's decision not to call any punishment witnesses. Because the record in this case provides no explanation for trial counsel's actions, we conclude the record does not support appellant's complaint on direct appeal. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). In his brief, appellant cites this Court to a portion of the record during guilt/innocence in which trial counsel made the following statement:
I'm Catherine Shelton, the attorney who represents Gary Simon. And in the interest of my client, and not in my own interest, in fact quite the reverse, I need to put something on the record.
It was my mistake, my error that I did not come to the Court, to Judge Warder, and ask that an expert be appointed for my client. She would have given me one. And this was an error that I made that has compromised my client.
And in this respect that I have been ineffective. I want to make that perfectly clear. And I also want to make something else clear where I have been ineffective. It was in the examination of Officer Kresse who was the PES technician out at the scene. I was under the misimpression [sic] that there was blood on the phone booth, and I did not think this up out of the ozone. And I was waiting for her to talk about it and she never did.
And I failed to examine cross examine the technical and the witness to my client's, [sic] detriment due to my own inattention. And I wanted to put that on the record. And that's all I've got to say.
At the conclusion of this statement, the trial judge brought the jury in, and the trial continued. Appellant called his remaining witnesses and, following jury argument, the jury was charged. Appellant was then found guilty. Trial counsel's statement, given during guilt/innocence (and before appellant was found guilty), is no evidence of ineffective assistance during punishment. Because appellant does not contend on appeal he received ineffective assistance of counsel during guilt/innocence, we decline to address the impact or legal effect, if any, of trial counsel's statement regarding her effectiveness during guilt/innocence. Because the record does not support appellant's complaint, we overrule his fourth point of error. We affirm the trial court's judgment.