Opinion
No. 05-02-01010-CR
Opinion issued September 25, 2003. DO NOT PUBLISH.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F01-61666-NK. AFFIRMED
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
In this case, Patrick Deshone Hearne challenges his conviction for aggravated robbery. He complains in two points of error that the trial court committed Batson error during jury selection and erred by sustaining the State's objections to his cross-examination of prosecution witnesses. Because we conclude appellant's arguments are without merit, we affirm the trial court's judgment. According to the complainant in the case, appellant robbed her at gunpoint. He followed her from her car to her apartment and took her jewelry, purse, and credit cards. During the robbery, appellant repeatedly asked the complainant, "Where is the dope? Where is the money?" Appellant complains in his first point of error that the trial court erred by overruling his objections to certain peremptory strikes exercised by the State during jury selection. In Batson v. Kentucky, the United States Supreme Court held that the State's purposeful use of peremptory strikes in a racially discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 96 (1986). Under Batson, there is a three-step process for evaluating an objection to peremptory strikes. Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory strikes on the basis of race. Second, the burden then shifts to the prosecutor to articulate a race-neutral explanation for the strikes. Id. at 358 — 59. The State's explanation is not required to be persuasive or even plausible. See Bausley v. State, 997 S.W.2d 313, 316 (Tex.App.-Dallas 1999, pet. ref'd) (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)). It will be deemed to be race neutral unless its discriminatory intent is inherent. Id. Third, the defendant must then rebut the State's explanation or show that the explanation was merely a pretext. The defendant has the ultimate burden to establish for the trial court that the allegation of discrimination is true. See id. In reviewing a Batson objection, we examine the record in the light most favorable to the trial court's ruling and reverse only when the ruling is clearly erroneous. See id. at 315. Here, appellant complains that five of the State's ten peremptory strikes were exercised against African-American prospective jurors. During jury selection, the prosecutor explained that she struck three of the prospective jurors because they were under twenty-five years old. The prosecutor added:
Also in addition to Number 13, she's pregnant and got a doctor's appointment tomorrow. Number 14 indicated that she would need to see a firearm before she can convict.
Number 21, when [defense counsel] was asking about can you think of any reason why someone wouldn't testify and she's the one who came up with if there's no proof, it hasn't been proven. In addition, she's got a bad juror record.
Number 25, Mr. Hodge, I couldn't tell whether or not he wants us to actually see the gun and lose it or not to ever find the gun. I couldn't tell which way he thought was better, so that's why I struck him. . . . Ms. Brewer initially said that you would have to throw it out if you didn't have the gun and also she's under twenty-five.Defense counsel never cross-examined the prosecutor about these reasons, nor did he offer any evidence showing the reasons were pretexts for racial discrimination. He simply argued the "numbers . . . speak for themselves" and stated he found it "alarming that just because you're under twenty-five you can't sit on a jury." He concluded by asking that "each and [every one] of the African Americans with the exception of Mr. Hodge, who I understand where the State is coming from on that one, be kept on this jury." Young age does, in fact, constitute a race-neutral explanation for a peremptory strike. Malone v. State, 939 S.W.2d 782, 785 (Tex.App.-Houston [14th Dist.] 1997, no pet.). The other explanations offered by the prosecutor were race neutral as well. Based on the record before us, we conclude appellant has failed to meet his burden of proving discrimination in the State's use of peremptory strikes. We overrule appellant's first point of error. In his second point of error, appellant complains the trial court violated his right to "have a meaningful opportunity to present a complete defense" by sustaining the State's relevance objections during his cross-examination of prosecution witnesses. The complainant in the case identified appellant as the man who robbed her. Appellant, through the testimony of several witnesses, raised the defense of alibi. During cross-examination of the investigating detective in the case, defense counsel attempted to question the detective about the complainant's boyfriend, Kendrick Swanson. The trial court sustained the State's relevance objection to appellant's question asking whether Swanson had an "unsavory character." The trial court also sustained the State's relevance objection to defense counsel's question of whether the detective's impression of Swanson was good. Later, defense counsel questioned the complainant about where Swanson was at the time of trial. The complainant responded that he was in jail. The State's relevance objection to this response was sustained, but the prosecutor did not ask the court to instruct the jury to disregard it. Counsel elicited from the complainant that she had no idea whether appellant may have known Swanson. She denied that Swanson kept drugs at her apartment. At that point, the trial court instructed defense counsel: "You need to move on. Whatever your game plan is to get [Swanson] in the middle of this, there's nothing in the evidence to suggest that, so let's move on, please." Outside the presence of the jury, appellant made a bill of exception, arguing the following:
During that time period of cross-examination I attempted to get into the issue of Kendrick Swanson. Kendrick Swanson was the first person on the scene that night, even before the police officers. The assailant in this case kept asking where the dope was, where the dope was, and Kendrick Swanson has a criminal history that I believe includes domestic violence, which is a crime of violence, and also he has a criminal history of theft, and this is a crime of theft, and he has a criminal history for, I believe, drugs.
I believe that with the Court not allowing me to explore the option that Kendrick Swanson might somehow be involved or peripherally involved and [appellant] has a right to cross-examine witnesses and present a case. . . .The trial judge questioned defense counsel: "[I]s your theory that he's the assailant and that she's made it up on somebody else, because of his criminal record that he might be the assailant, is that what you're saying?" Defense counsel responded:
. . . This is not a case of robbery. This is a case of — well, it was a case of robbery, but my theory of the case is . . . that somehow because of some type of bad drug debt or some type of vendetta against Mr. Swanson . . . that's why [the complainant's] testimony was where is the man, where is the money, where is the dope? In other words, it was almost like she was a peripheral reason why the assailant was there. It was more about Kendrick Swanson that it was this female.The trial judge asked: "So it's because he's got convictions that you feel you're entitled to ask her those questions as to whether or not she's not the real target but he is and she just got in the way[?]" Defense counsel stated: "I think it shows what he's done in the past and his credibility." When the trial court reminded counsel that Swanson was not a witness, defense counsel argued: "But I mean Swanson's involvement somehow. I just want to explore that and I felt like . . . it hurt my ability to explore that defense. . . ." The United States Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Miller v. State, 36 S.W.3d 503, 506 (Tex.Crim.App. 2001). This guarantee includes a defendant's right to present his version of the facts and to confront the prosecution's witnesses. See id. A defendant's fundamental right to present evidence of a defense, however, operates only as long as the evidence is relevant and not excluded by an established evidentiary rule. See id. at 507. We review the trial court's decision to exclude evidence under an abuse of discretion standard. See Johnston v. State, 959 S.W.2d 230, 237 (Tex.App.-Dallas 1997, no pet.). Relevant evidence is evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex.R.Evid. 401. Here, the alleged unsavory character of the complainant's boyfriend did not affect any fact of consequence to the determination of the case. Appellant did not allege that the boyfriend committed the crime, but asserted only that the boyfriend may have been behind appellant's motive to commit the crime. These possible circumstances surrounding the aggravated robbery were immaterial to the jury's determination of whether appellant committed aggravated robbery; they were not a defense. In addition, appellant was given a full opportunity to present his defense of alibi at trial. The trial court did not abuse its discretion in prohibiting appellant from cross-examining the State's witnesses on Swanson's character. We overrule appellant's second point of error. We affirm the trial court's judgment.
Batson v. Kentucky, 476 U.S. 79, 96 (1986).
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.MANDATE
TO THE CRIMINAL DISTRICT COURT NO. 4 OF DALLAS COUNTY, GREETINGS: Before the Court of Appeals for the Fifth District of Texas, on the 25th of September, 2003, the cause on appeal to revise or reverse the judgment betweenPATRICK DESHONE HEARNE, Appellant
No. 05-02-01010-CR
v. THE STATE OF TEXAS, Appellee
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct. No. F01- 61666-NK).
Opinion delivered by Justice Morris, Justices O'Neill and Lang participating.Was determined; and therein this Court made its order in these words: Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. WHEREFORE, WE COMMAND YOU to observe the order of the Court of Appeals for the Fifth District of Texas, in this behalf, and have it duly obeyed and executed. WITNESS, the HON. LINDA THOMAS, Chief Justice of the Court of Appeals, with the Seal thereof affixed, at the City of Dallas, this __________ day of ___, ____. OFFICE OF THE CLERK BE IT REMEMBERED:
PATRICK DESHONE HEARNE, Appellant
No. 05-02-01010-CR
v. THE STATE OF TEXAS, Appellee.
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct. No. F01- 61666-NK).
Opinion delivered by Justice Morris, Justices O'Neill and Lang participating.Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. I, LISA MATZ, CLERK of the Court of Appeals for the Fifth District of Texas, at the City of Dallas, hereby certify that the foregoing is a true copy of the opinion, judgment and all orders entered by this Court in the above cause. IN WITNESS WHEREOF, I hereunto set my hand and affix the seal of said Court at Dallas this _______ day of ___, _____.