No. 05-03-01561-CR
Opinion Filed October 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 2, Dallas County, Texas, Trial Court Cause No. MA02-58177-M. Affirm.
Before Justices WRIGHT, RICHTER, and MAZZANT.
Opinion By Justice WRIGHT.
Roger Herrera appeals his conviction for discharging a firearm within the corporate limits of Dallas, Texas. After the jury found appellant guilty, the trial court assessed punishment at 120 days' confinement, probated for 12 months, and a $1500 fine. In seven issues, appellant generally contends we must reverse his conviction because (1) the information is void; (2) the evidence is legally and factually insufficient to support his conviction; (3) the trial court erred by overruling his objections to the State's use of its peremptory challenges; (4) the State's closing argument was improper; (5) the trial court erred by allowing appellant's oral statements into evidence; and (6) the State violated the trial court's suppression order regarding the type of gun found in appellant's residence. We overrule appellant's issues and affirm the trial court's judgment.
Background
Dale Brown testified that he was in his house watching television with Billy Allen when the two men heard nearby gunfire. Brown turned off the lights and looked outside. When he did so, he saw appellant "walking around waving a gun, and he fired into the air several times." Brown called 911 and reported what he had seen. While he waited for the police to arrive, Brown continued to watch appellant. Appellant shot into the air several more times and pointed the gun at cars on the street. According to Brown, appellant continued to walk around outside for some time. When the police arrived, they observed appellant for "15 or 20 minutes" until another patrol car arrived. At that point, "it looked as if they had things in hand, [so Brown] went back to watching TV." Brown thought appellant fired about eight or nine shots, with the last shot being fired just as the first patrol car arrived. Randall Presley, a Dallas police officer, testified that he responded to the 911 call. Presley and his partner, Glenn Thompson, heard a gunshot as they arrived. Presley stopped the patrol car, and he and Thompson got out of the car. Presley and Thompson called for backup. As they waited for backup to arrive, they saw appellant walk from his garage, across his yard, and go into the backdoor of his house. Appellant was carrying a beer bottle and a pistol. Presley saw him put the gun onto the kitchen table. A short time later, appellant came back outside and was arrested by officers who were at the front of the house. Office Luis Cruz testified that after appellant was arrested, he was seated in the car near Cruz. Appellant made several statements including that it was his birthday, and he hoped to be charged with "something big" because he wanted "to be famous." After hearing this and other evidence, the jury found appellant guilty. This appeal followed. Information
In his first issue, appellant contends his conviction is void because the information is defective. Specifically, appellant complains that the description of "by shooting said firearm into the air" fails to adequately describe the reckless act relied on by the State. Appellant did not, however, raise his complaint regarding the information prior to trial. If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding. Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon Supp. 2004-05). As long as the charging instrument identifies the penal statute under which the State intends to prosecute, a defendant must object before trial to preserve any error for appeal. See Duron v. State, 956 S.W.2d 547, 550 (Tex.Crim.App. 1997); Studer v. State, 799 S.W.2d 263, 271 (Tex.Crim.App. 1990). Here, the information alleges that appellant recklessly discharged a firearm inside the corporate limits of Dallas, Texas, a municipality having a population of at least 100,000 by shooting the firearm into the air. Thus, it clearly charges appellant with an offense under section 42.12 of the penal code. See Tex. Pen. Code Ann. § 42.12 (Vernon 2003). Because appellant failed to complain about the information prior to trial, appellant has failed to preserve error for our review. We overrule appellant's first issue. Sufficiency of the Evidence
In his second and third issues, appellant contends the evidence is legally and factually insufficient to support his conviction. In particular, appellant claims no one saw him fire a gun and there is no evidence to identify him as the shooter. Reviewing the evidence by well-established standards, we conclude it is both legally and factually sufficient. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Zuniga v. State, No. 539-02, slip op. at 8, 2004 WL 840786 (Tex.Crim.App. April 21, 2004) (factual sufficiency). Brown testified that he saw appellant in his driveway waving a gun around, and saw him "shoot into the air" and point his weapon at passing cars. Officers Presley and Thompson heard gunfire as they arrived near appellant's home. A short time later, they saw appellant walking from his garage into the house carrying a beer bottle and a gun. Appellant walked into his house and put the gun onto the kitchen table. Officers also testified that appellant matched the description they had been given of the person shooting the gun and appellant was the only person in the area they saw matching the description. Although the police did not recover shell casings or perform a handwiping analysis, this does not render the State's evidence insufficient to show appellant was the person shooting the firearm. Further, appellant was intoxicated and repeatedly fired his gun into the air in a residential area. Thus, contrary to appellant's argument, his conduct was reckless. Cf. Bell v. State, 693 S.W.2d 434, 443 (Tex.Crim.App. 1985) (defendant's testimony that he shot gun into the air and did not intend to hit complainant's trailer or its occupants sufficient to raise issue of reckless conduct); Barron v. State, 864 S.W.2d 189, 192 (Tex.App.-Texarkana 1993, no pet.) (appellant not entitled to charge of reckless conduct where no evidence that appellant intended to shoot into the air and did not shoot at complainant). Under the evidence presented, a reasonable jury could have concluded beyond a reasonable doubt that appellant recklessly discharged a firearm inside the corporate limits of a municipality having a population of 100,000 or more. Further, the evidence presented was neither too weak nor was contrary evidence so strong that the factual sufficiency standard could not have been met. We overrule issues two and three. Batson
In his fourth issue, appellant contends 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 of the State's use of its peremptory strikes against prospective jurors 13, 16, and 21. The prosecutor explained that he struck (1) juror 13 because she did not fill out her juror information card; (2) juror 16 because she had "a problem with English," did not pay attention, and said she could not be fair; and (3) juror 21 because she had a prior history of theft. Each of these reasons are facially race-neutral. See Vargas v. State, 838 S.W.2d 552, 555 (Tex.Crim.App. 1992) (prior criminal history); Newsome v. State, 829 S.W.2d 260, 265 (Tex.App.-Dallas 1992, no pet.) (carelessness or error in completing juror information card race-neutral reason to strike); Tate v. State, 939 S.W.3d 738, 745 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd) (inattentiveness race-neutral reason to strike), overruled on other grounds by Sarmiento v. State, 93 S.W.3d 566 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Further, defense counsel never cross-examined the prosecutor about these reasons, nor did he offer any evidence showing the reasons were pretexts for racial discrimination or that these jurors had been treated in a disparate manner. A party's failure to offer any real rebuttal to a proffered race-neutral explanation may be fatal to his claim. Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App. 2002). 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 fourth issue. Improper Argument
In his fifth issue, appellant contends the trial court erred by denying his motion for mistrial after the State argued that although there were several police officers near appellant's home, appellant did not approach the police and say, "Hey, somebody is shooting a gun." The trial court immediately sustained appellant's objection to the complained-of argument and instructed the jury to disregard the State's argument. We need not determine whether the State's argument was an improper comment on appellant's right to silence, because even assuming it was, we cannot conclude a mistrial was warranted. Mistrials should be granted only when an objectionable event is "so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant." Sanders v. State, 25 S.W.3d 854, 858 (Tex.App.-Houston [14th Dist.] 2000) (citing Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996), pet. dism'd, 56 S.W.3d 52 (Tex.Crim.App. 2001). Because curative instructions are presumed sufficient to withdraw from jury consideration almost any argument that is objectionable, the offending argument must be extreme before a mistrial is warranted. See id. Here, there is nothing to suggest the improper argument was "so emotionally inflammatory" that jurors could not disregard the comment. The trial court promptly instructed the jury to "disregard the last comment," and that instruction is presumed effective. Accordingly, a mistrial was not appropriate under the circumstances presented here. We resolve appellant's fifth issue against him. Oral Statements
In his sixth issue, appellant contends the trial court erred by allowing certain oral statements by appellant into evidence. Specifically, appellant contends the trial court should not have allowed Cruz to testify that appellant told Cruz it was appellant's birthday and he hoped he was charged with "something big" because he wanted to be "famous." We disagree. Article 38.22 prohibits the admission of oral statements "made as a result of custodial interrogation." Tex. Code Crim. Proc. Ann. art. 38.22 § 3 (Vernon Supp. 2004-05). However, questioning "normally attendant to arrest and custody" is not interrogation. McCambridge v. State, 712 S.W.2d 499, 505 (Tex.Crim.App. 1986) (citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). Cruz explained that appellant was being asked routine "book-in" questions designed to elicit personal information and was not being questioned about the crime for which he had been arrested. According to Cruz, appellant answered the book-in questions "but sai[d] other things" as well. Under these circumstances, we cannot conclude the trial court erred by determining "the statements were not in response to questioning" and allowing Cruz's testimony. We overrule appellant's sixth issue. Suppressed Evidence
In his seventh issue, appellant contends the trial court erred by denying his motion for mistrial after the State violated the trial court's suppression order. Prior to trial, the trial court held a hearing on appellant's motion to suppress. After considering the evidence introduced at the hearing, the trial court suppressed "the weapon that was found in [appellant's] house." Subsequently, Thompson testified at trial that appellant had a "Glock, large frame, automatic, black finish with a flash suppressor" in his hand Appellant objected, and at a hearing outside the presence of the jury, Thompson admitted that although he saw appellant in his backyard with a gun in his hand, Thompson was too far away to identify the gun. Thompson knew the type of gun because it was recovered during the search of appellant's house. Thompson also testified that he had had very little sleep in the last two days, and did not intend to violate the suppression order. The trial court sustained appellant's objection and instructed the jury to disregard the complained-of testimony. The trial court then denied appellant's motion for a mistrial. We review a trial court's denial of a mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Id. To determine whether a given error necessitates a mistrial, we must examine the particular facts of the case. See id. A mistrial is only required when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). Like the trial court in this case, we perceive Thompson's testimony to be improper. It was not, however, so inflammatory as to prejudice the jury beyond repair. The trial court's instruction to disregard the complained-of evidence cured any prejudicial effect the testimony otherwise would have had. The trial court, therefore, did not abuse its discretion in denying the motion for mistrial. We overrule appellant's seventh issue. Accordingly, we affirm the trial court's judgment.