Opinion
No. 05-04-01639-CR
Opinion Filed January 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00834-S. Affirmed.
Before Justices O'NEILL, FITZGERALD, and LANG.
OPINION
Charles Chuchue Akeen appeals the trial court's judgment convicting him of capital murder and sentencing him to life imprisonment. Akeen raises three issues on appeal: (1) the evidence is legally insufficient to support his conviction; (2) the evidence is factually insufficient to support his conviction; and (3) the trial court erred when it overruled his Batson objection. Akeen's issues are decided against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ted Petty had a motel room where numerous people partied, and bought and sold drugs. Petty, Tarnarius Fisher, Zackery Bundage, and Akeen were using drugs in Petty's motel room when they decided to go for a ride in a car Akeen obtained from a "crackhead" in exchange for crack cocaine. Petty was driving and complained that he was "tired of being broke." Petty stopped at the convenience store, gave Akeen $10 and told him to go inside and buy some orange juice. As Akeen and Bundage were getting out of the car, Petty told them to look for cameras. David McMorris, a homeless man, frequented a Red Coleman's convenience store where he read books and performed odd jobs. Messele Gebremichael and Habtamu Ayane worked as clerks at that convenience store. McMorris was getting a cup of coffee, when Akeen, who was wearing a "do-rag," and Bundage, who was bare-headed, entered the convenience store. Akeen took an orange juice out of a cooler while talking with Bundage. Then, Akeen and Bundage paid for their drinks and left the convenience store. Approximately 30 seconds later, McMorris saw the man wearing the "do-rag" return to the store followed by the "bare headed" man and a "third man." The man wearing the "do-rag" pointed the orange juice bottle at Gebremichael and Ayane, and said, "Give me the money, give me the money, give me the money." The "third man" told McMorris to lay flat on the floor and "bury his face." McMorris complied. Then, the "third man" went through McMorris's pockets, took the cash out of his wallet and his Dallas Cowboys Zippo lighter, and stuffed the wallet back into McMorris's front pocket. Meanwhile, one of the other men told Gebremichael and Ayane to open the cash registers and the safe. Gebremichael and Ayane opened the cash registers, but they were unable to open the safe because it required two keys and the manager had possession of the second key. McMorris heard one of the men say, "Get the drinks and let's ride," followed by gunshots. Also, he heard Ayane say, "No. No. No." Then, McMorris believed someone tried to shoot him because he heard what sounded like a revolver behind his head make three clicks. Afterward, McMorris heard what sounded to him like the men leaving the convenience store. However, Bundage stated that before he and Akeen left the store, Petty and Fisher walked in with their guns drawn and Petty told Akeen and Bundage they "took too long." Also, Bundage stated Akeen left the store, but Bundage stayed and watched. When McMorris got up from the floor, he saw Gebremichael lying on the floor at one end of the store with a bullet wound in his back and Ayane curled up on the floor in front of the safe. Ayane groaned and vomited, but did not respond when McMorris called his name. McMorris pressed the panic button and tried to call 9-1-1. The telephone did not work because he had pressed the panic button so McMorris ran outside to a payphone and called 9-1-1 to make certain two ambulances were sent to the convenience store. Then, McMorris returned to the convenience store and waited for the police. The police arrived at the convenience store and found McMorris waiting for them. The police obtained McMorris's statement, found Akeen's fingerprints on the door handle to the cooler where the orange juice was kept, and found four shell casings at the convenience store. Also, the convenience store manager determined that the store was short $161 after the robbery and the cash register indicated the last purchase was paid for with $10. Gebremichael and Ayane both died as a result of multiple gunshot wounds. Petty, Fisher, Bundage, and Akeen returned to Petty's motel room. Petty told the other people in the motel room about "hitting a lick" and to "watch the news." Bundage and Akeen went into the kitchen and smoked a "blunt" while Petty and Fisher told the others about the robbery. Two days later, the police stopped a Ford Tempo and arrested Petty for possession of marijuana. Devontay Carter, Levell Jordan, and Naquanda Buck were also in the Ford Tempo. When the police officers searched the Ford Tempo, they found a box of bullets, a loaded Rossi revolver, and a loaded .38 caliber RG revolver that Petty stated was his. The police officers took Petty and the others to the homicide division of the police department. During his interview with the police, Petty gave his consent for the police to search his motel room. Bundage and Fisher were at the motel room when the police searched it. The police found Fisher in bed and a loaded Astra 32 caliber semi-automatic handgun under his pillow. Also, at the motel, the police learned that a red Mitsubishi with the license plate number L35 XZS was seen leaving the convenience store at the time of the offense. The police located the red Mitsubishi, stopped the car when it ran a stop sign, and arrested Akeen. The police found McMorris's Dallas Cowboys Zippo lighter in Akeen's pocket and a loaded Colt .380 caliber semi-automatic pistol under the driver's seat of the car. At the police station, after having been given the Miranda warnings, Akeen gave a statement regarding the robbery and homicide at the convenience store. Akeen stated he went to the convenience store with Petty, Fisher and Bundage, where he purchased an orange juice. Then, he and Bundage left the store and stood outside smoking cigarettes. Petty and Fisher went into the store and Akeen heard loud talking. Akeen looked through the window and saw that Petty and Fisher had guns. Bundage ran into the store. The men called to Akeen to get anything he wanted and he went inside and took some cigarettes. Then, Akeen and Bundage left the store and got into the car. After a few seconds, Petty and Fisher came out of the store, got into the car with Akeen and Bundage, and they all left together. The police determined that the two bullets removed from Gebremichael's body and two of the four bullets removed from Ayane's body came from Petty's .38 caliber RG revolver. Also, the police determined that the remaining two bullets removed from Ayane's body and the four shell casings found at the convenience store came from the Astra .32 caliber handgun found beneath Fisher's pillow. In addition, Akeen was determined to be a possible contributor of DNA material obtained from the Astra .32 caliber handgun. The Colt .380 caliber semi-automatic pistol found in the car with Akeen was not linked to the murders. The police charged Petty, Fisher, Bundage, and Akeen with capital murder. The men were tried separately. The jury found Akeen guilty and the trial court assessed his punishment at life imprisonment.II. LEGAL AND FACTUAL SUFFICIENCY
In his first and second issues, Akeen argues the evidence is legally and factually insufficient to support his capital murder conviction.A. Standards of Review
Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Also, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id.1. Legal Sufficiency
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).2. Factual Sufficiency
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.B. Applicable Law
A person commits the offense of capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2005). The Court of Criminal Appeals has referred to § 7.01 and § 7.02 of the Texas Penal Code as the "law of parties." E.g., Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App. 1989). When a jury is charged on the law of parties, a person may be convicted as a party to an offense, if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003 Supp. 2005). A person is a conspirator under the law of parties if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators. See Tex. Penal Code Ann. § 7.02(b) (Vernon 2003 Supp. 2005). If the felony actually committed should have been anticipated as a result of carrying out the conspiracy, then all conspirators are guilty of the felony actually committed, even if they had no intent to commit it. See Tex. Penal Code Ann. § 7.02(b). It is well-settled in Texas that a person can be found guilty of capital murder as a conspiring party under § 7.02(b). E.g., Johnson v. State, 853 S.W.2d 527, 535 (Tex.Crim.App. 1992). If the evidence demonstrates that a defendant conspired with others to commit robbery and, during the robbery, one of the coconspirators commits capital murder, the defendant can be held criminally responsible for the capital murder if it was in furtherance of the conspiracy's unlawful purpose and should have been anticipated. See Longoria v. State, 154 S.W.3d 747, 755 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). A defendant planning to commit a robbery should anticipate that a coconspirator might arm himself. See Moore v. State, 24 S.W.3d 444, 446-47 (Tex.App.-Texarkana 2000, pet. ref'd).C. Application of the Law to the Facts
Akeen argues the evidence is legally and factually insufficient to support his conviction for capital murder because it fails to prove he was the primary actor, a party to the offense, or a conspirator under the law of parties. Akeen argues the evidence is insufficient to prove he was a party to the capital murder because it only establishes he committed theft and does not place him inside the convenience store at the time of the shootings. Also, Akeen argues the evidence is insufficient to prove he was a conspirator under the law of parties because the State failed to prove he knew a robbery was to be committed and both Petty and Fisher were armed, or that the murder of Gebremichael and Ayane was an anticipated consequence of his association with Petty and Fisher. The State responds that the evidence shows Akeen aided in the robbery and murders or conspired in the robbery and should have anticipated the murders. The trial court's charge authorized the jury to convict Akeen on any of three theories of capital murder: (1) as a principal; (2) as a party under § 7.02(a) of the Texas Penal Code; or (3) as a conspirator under the law of parties under § 7.02(b) of the Texas Penal Code. Because the trial court's charge authorized the jury to convict on alternative theories, the verdict of guilt will be upheld if the evidence was sufficient on any one of the theories. Sorto v. State, 173 S.W.3d 469, 472 (Tex.Crim.App. 2005). Viewing the evidence in the light most favorable to the verdict, there was evidence that Akeen was a conspirator to the robbery under the law of parties. Bundage stated that, while they were driving around, Petty said he was "tired of being broke," gave Akeen $10 and told him to buy an orange juice, and instructed Bundage and Akeen to look for cameras in the convenience store, which Bundage understood to mean there was going to be a robbery. McMorris testified that a man wearing a "do-rag" bought an orange juice and left, the police found Akeen's fingerprint on the door handle to the cooler where the orange juice was kept, Bundage stated Akeen purchased an orange juice and left, and, in his statement, Akeen said he purchased an orange juice and left the convenience store. McMorris testified the man wearing the "do-rag" returned to the convenience store and demanded money. Bundage stated he knew Petty and Fisher had guns and, in his statement, Akeen stated he saw that Petty and Fisher had guns through the convenience store window before he went back into the store and stole some packets of cigarettes. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Akeen was guilty of capital murder. It is clear that Akeen's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that Akeen's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Akeen's capital murder conviction as a conspirator under the law of parties. Because we have concluded the evidence is legally and factually sufficient to support Akeen's capital murder conviction as a conspirator under the law of parties pursuant to § 7.02(b), we need not consider his argument that the evidence is legally and factually insufficient to support his conviction as the principal or as a party under § 7.02(a). See Tex.R.App.P. 47.1. Akeen's first and second issues on appeal are decided against him.III. PEREMPTORY CHALLENGES TO THE JURY PANEL
In his third issue, Akeen argues the trial court's failure to find the State violated Batson in the use of its peremptory strike against prospective juror number 34 was clearly erroneous. See Batson v. Kentucky, 476 U.S. 79 (1986). The State responds that, after the trial court found that Akeen had made a prima facie showing, the prosecutor provided race-neutral reasons for striking prospective juror number 34 and Akeen did not rebut these reasons or show they were a pretext.A. Standard of Review
When reviewing a Batson challenge, an appellate court examines the record in the light most favorable to the trial court's ruling and reverses only when the ruling is clearly erroneous. Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App. 2002); Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996); Bausley v. State, 997 S.W.2d 313, 315 (Tex.App.-Dallas 1999, pet. ref'd). A ruling is clearly erroneous when, after searching the record, an appellate court is left with the definite and firm conviction that the trial court has made a mistake. Bausley, 997 S.W.2d at 315. If the record, including the voir dire, the prosecutor's explanation of his peremptory challenges, appellant's rebuttal, and any impeaching evidence, supports the trial court's ruling, then the ruling is not clearly erroneous. Id.B. Applicable Law
To challenge the State's use of peremptory strikes under Batson, a defendant must first make a prima facie showing that the State exercised peremptory strikes on an impermissible basis. Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 316. Once a defendant makes a prima facie showing of purposeful discrimination, the State must provide a race or gender neutral explanation for striking the prospective juror in question. Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. This step does not demand a persuasive or even plausible explanation; rather, it requires an explanation devoid of inherent discriminatory intent. Bausley, 997 S.W.2d at 315 (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)). An explanation is neutral in this context if the State bases it on something other than the juror's race or gender. See Hernandez v. New York, 500 U.S. 352, 360 (1991). Unless discriminatory intent is inherent, the courts will consider the explanation race or gender neutral. See id. at 360. If the State provides a race or gender neutral explanation for its strikes, the defendant may rebut the State's explanation or show that the explanation was merely a sham or pretext. See Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Bausley, 997 S.W.2d at 316. The defendant has the ultimate burden of persuasion to establish the truth of his allegations of purposeful discrimination. Id. At this third step, the persuasiveness of the justification becomes relevant. See Purkett, 514 U.S. at 768. A peremptory strike against a prospective juror for failure to make eye contact or inattentiveness may be a legitimate reason for a peremptory strike. See Moss v. State, 877 S.W.2d 895, 899 (Tex.App.-Waco 1994, no writ); Anderson v. State, 758 S.W.2d 676, 680 (Tex.App.-Fort Worth 1988, writ ref'd); see also U.S. v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir. 1988). Also, a prospective juror's belief regarding the primary goal of punishment may be a legitimate race-neutral reason for the exercise of a peremptory challenge. See Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Crim.App. 1993) (belief that purpose of punishment should be rehabilitation rather than deterrence is race-neutral reason); Victor v. State, 995 S.W.2d 216, 222 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (rehabilitation).C. Application of the Law to the Facts
Following voir dire and the State's peremptory strikes, Akeen's counsel requested the trial court to take judicial notice of the fact that Akeen is black and the State used peremptory strikes on six prospective jurors who were black and Latino. Although Akeen's defense counsel stated that four of the six strikes were based on something other than race, he challenged the validity of the State's reasons for striking prospective jurors 31 and 34. Also, Akeen offered and the trial court admitted the questionnaires into evidence. The trial court found that Akeen made a prima facie showing of purposeful discrimination and the State was required to provide a race-neutral reason for striking the specified prospective jurors. With respect to prospective juror number 34, a black woman, the prosecutor stated:Juror number 34, Ms. Rosmon, seemed disinterested during voir dire. She would not make eye contact. She kept her head down during most of the State's voir dire. I have noted she stated on her jury questionnaire that the system does not work. It's not working, in response to the first question, what are you [sic] feelings in general about the criminal justice system? The question on the-on the questionnaire the question asking what comes to mind when you think of police officers, defense lawyers, prosecutors. Nothing. Nothing. Nothing.
She also, in response to asking them to prioritize the purpose of punishment, rehabilitate, deter or punish for punishment sake, punish was her number three priority. Deterrence being her number one priority.The State's responses were race-neutral reasons for exercising a peremptory strike. See, e.g., Adanandus, 866 S.W.2d at 224-25 (purpose of punishment); Moss, 877 S.W.2d at 899 (inattentiveness). Once the State offered race-neutral explanations for its strikes, the burden shifted to Akeen to show the State's explanation was a sham or a pretext. See Pondexter, 942 S.W.2d at 581. To rebut the State's explanation, Akeen argued the State never questioned her regarding the criminal justice system or what she meant when she indicated the system does not work. However, the State is not required to ask a specific rubric of questions and the prosecutor responded that she did not have the opportunity to review the questionnaires until after prospective juror number 34 had heard her remarks. See Chambers v. State, 866 S.W.2d 9, 24 (Tex.Crim.App. 1993). Also, Akeen did not call any witnesses, dispute the State's assertion that prospective juror number 34 was disinterested and would not make eye contact, or contest the State's reason based on prospective juror number 34's response to the questionnaire regarding the primary goal of punishment. After examining the record, we conclude the trial court's failure to find the State violated Batson in the use of its peremptory strike against prospective juror number 34 was not clearly erroneous. Akeen's third issue is decided against him.