Opinion
No. 01-02-01208-CR.
Opinion issued May 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 212th District Court, Galveston County, Texas, Trial Court Cause No. 01 Cr 1580.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
MEMORANDUM OPINION
A jury found appellant, Arthur Ouzenne, Jr., guilty of murder and assessed punishment at 10 years in prison. In six points of error, appellant argues that the trial court erred in (1) overruling appellant's motion to suppress evidence, (2) overruling appellant's motion to challenge the array and strike the venire panel, (3) overruling requests for a mistrial on two separate occasions, (4) overruling appellant's Batson challenge, and (5) refusing to admit testimony regarding the fight/flight response. We affirm.
Background
At approximately 10:00 p.m. on August 23, 2001, Danisha Cosey, Bobby Shirley Jobe, Gregory Jobe, and Marcellous Jobe sat on the porch of the Jobe home in Galveston, Texas. Blake Lyons, Matthew Whitney, and the complainant, Luciano Zuniga, Jr., were playing basketball a few houses away from the Jobes' house. Appellant's sister, Robbie Ouzenne, was riding around the neighborhood with two other boys. Appellant, who was angry about something that had been said to his sister, approached the Jobe house from his father's house carrying an aluminum baseball bat. The complainant and appellant's sister followed appellant to the Jobe house. When appellant arrived at the Jobes' porch, he began to argue with Danisha Cosey. The complainant attempted to intervene, and appellant struck him several times in the head with the aluminum bat. Appellant, still carrying the baseball bat, returned to his father's house down the street. Bobby Shirley Jobe called the police, and, when the police arrived, the witnesses told them that appellant had gone to his house. Appellant's father, Arthur Ouzenne, Sr. (Ouzenne) answered the door to the house and called his son to come out and talk to the police. Appellant told the police that the bat was in the bathroom of Ouzenne's home, and both appellant and Ouzenne consented to the search of the home. The police found an aluminum bat with blood on it. Appellant gave a statement to the police. The complainant died a few days later from the injuries he sustained during the assault. At trial, Bobby Shirley Jobe, Danisha Cosey, Gregory Jobe, Matthew Whitney, and Linda Jackson (who drove up to the scene just before the assault) all testified that they saw appellant hit the complainant with the aluminum bat and then walk back to Ouzenne's house.Motion to Suppress
In his first point of error, appellant contends that the trial court erred in denying his motion to suppress both his statement and any evidence obtained as a result of the warrantless arrest. Appellant filed two motions to suppress — one seeking to suppress his statement and one seeking to suppress what he argues was illegally-seized evidence taken from his father's home. Under the Fourth and Fourteenth Amendments, a search conducted without a warrant issued upon probable cause is "per se unreasonable . . . subject only to . . . specifically established and well-delineated exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973) ( quoting Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967)). A search conducted with the consent of the suspect is one such exception, so long as the consent is voluntary. Schneckloth, 412 U.S. at 219-23, 93 So. Ct. at 2043-46. The validity of an alleged consent to search is a question of fact to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421 (1996); Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). The federal constitution requires the state to prove the validity of the consent by a preponderance of the evidence; the Texas Constitution requires the state to show by clear and convincing evidence that the consent was valid. Maxwell, 73 S.W.3d at 281. At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Id. In reviewing a trial court's ruling on a motion to suppress, we give almost total deference to a trial court's determination of historical facts, and we review — de novo — the court's application of the law. Id.; see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Here, the trial court denied both motions to suppress, but the State only introduced the bat that was found in the house. It did not introduce appellant's statement or the clothing that was recovered from Ouzenne's house. It is undisputed that there was no warrant to arrest appellant or search Ouzenne's house. The State argues, however, that the warrantless arrest was permitted because both appellant and Ouzenne consented to the search of Ouzenne's house. Several witnesses testified during the suppression hearing. Galveston Police Patrol Sergeant G. Gomez testified that, when he arrived at the scene of the assault, "citizens [were] pointing that way, police [were] running, and they [were] pointing at [Ouzenne's] house. `He is in there. He is in there.' And everybody is running that way." He testified that this case was a "hot pursuit" case. Officer E. Cox testified during the suppression hearing that, when he arrived at the scene of the assault, several of the witnesses told him that appellant had left the scene and had gone to Ouzenne's house. Officer Cox "put out an attempt to locate" appellant, and the other officers went to Ouzenne's house to make sure that appellant did not escape further. Officer Cox testified that the witnesses had told him that a bat had been used during the assault, and the bat that may have had blood on it had been taken from the scene of the assault by appellant. Cox further testified that there was a concern that the bat containing the blood would be washed or destroyed. Officer R. Sunley, with the Galveston Police Department, testified during the suppression hearing that he was called to the scene of the assault and told that the weapon had been removed from the scene. Sunley testified that he went to the Ouzenne house, and that he " Mirandized" appellant when appellant came out of Ouzenne's house. Appellant told Sunley that he had struck the complainant with a bat after the complainant lunged at him. Sunley asked appellant where the bat was, and appellant told him it was in the bathroom. Sunley got appellant's and Ouzenne's permission to enter the house to get the bat, and Sunley then found the bat, with fresh blood still on it, in the house. Ouzenne testified during the suppression hearing that his house was surrounded by policemen brandishing their weapons. The officers were "screaming. They were in a panic rage." He testified that, as his son came out of the house, Ouzenne raised his hand to stop his son. An officer said, "Do you know you are interfering with an arrest? You can be arrested." So, Ouzenne lowered his hand, and his son walked to the police. Ouzenne testified that Officer Sunley asked appellant where the bat was, and appellant told him that it was in the restroom in the house. Ouzenne testified that he gave the officers permission to enter his house and recover the bat. Under these circumstances, the trial court was justified in finding that appellant and his father had consented to the search of Ouzenne's home, which resulted in the discovery of the murder weapon. We hold that the trial court did not abuse its discretion when it denied appellant's motion to suppress. Accordingly, we overrule point of error one.Venire
In points of error two and four, appellant argues that the trial court erred in overruling appellant's challenge to the array and request to strike the venire panel and in overruling appellant's Batson challenge.Challenge to Array/Request to Strike Venire
In his second point of error, appellant argues that the trial court erred when, on proper motion by appellant to challenge the array and strike the venire panel, the trial court overruled the motion, after hearing evidence and argument. Article 35.07 of the Texas Code of Criminal Procedure states in full:Each party may challenge the array only on the ground that the officer summoning the jury has wilfully summoned jurors with a view of securing a conviction or an acquittal. All challenges must be in writing setting forth distinctly the grounds of such challenge. When made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained.Tex.Crim. Proc. Ann. § 35.07 (Vernon 1989) (emphasis added). Before voir dire, appellant filed a written motion challenging the array, which included an unsigned affidavit from appellant. However, the record does not reflect that the requisite signed affidavit ever accompanied the motion. An instrument that is not sworn to is not supported without an affidavit. Garcia v. State, 919 S.W.2d 370, 392 (Tex.Crim.App. 1996) (op. on reh'g). If there is no affidavit, nothing is preserved for appellate review. See Brokenberry v. State, 853 S.W.2d 145, 149 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). We overrule point of error two. Batson Challenge In point of error four, appellant argues that the trial court erred in refusing to order a new jury panel and in refusing to "disallow the State's peremptory strikes because of racial discrimination" after the State struck four African-American members of the venire.
Standard of Review
Appellate courts review the trial court's ruling on a Batson motion under the clearly erroneous standard of review by examining the evidence in the light most favorable to the trial court's ruling. Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996). To determine whether a decision is clearly erroneous, the record is examined to see whether the ruling reveals the "definite and firm conviction that a mistake has been committed." Guzman v. State, 85 S.W.3d 242, 254 (Tex.Crim. App. 2002). There is a three-step process to a Batson challenge: (1) a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race, (2) if the showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question, and (3) the trial court must determine whether the defendant has shown purposeful discrimination. Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 1035 (2003); Batson, 476 U.S. at 96, 106 S.Ct. at 1722. The exercise of even one racially-motivated peremptory strike invalidates the jury selection process and requires a new trial. Whitsey v. State, 796 S.W.2d 707, 716 (Tex.Crim.App. 1989). If the State offers a race-neutral explanation before any inquiry on the prima facie case, the issue of a prima facie case is moot. See Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App. 2003).Race-Neutral Explanation
An explanation for a peremptory strike is deemed race-neutral so long as no discriminatory intent is inherent in the explanation given, even if the explanation is fantastic or implausible. Williams v. State, 937 S.W.2d 479, 485 (Tex.Crim. App. 1996). In response to appellant's Batson challenge to the State's use of peremtory strikes on four veniremembers, Jonah William, Reginald Colbert, Charles Matthews, and Latonya Bates, the State explained that it struck William and Colbert because both men said that they could not "sit in judgment." Matthews was struck because he was confused about the issue of verbal provocation and whether or not that would be enough, and because he could not consider the full range of punishment. The State explained that it struck Bates because she had been a juror in a previous case where the jury had returned a verdict of "not guilty." Thus, State gave race-neutral explanations for its strikes, to which appellant's counsel offered no response.Purposeful Discrimination
After the State met its burden of presenting race-neutral explanations for its use of its challenged peremptory strikes, the burden to show purposeful discrimination shifted back to appellant to impeach or refute the State's neutral explanations or to show that they were merely a pretext. Salazar v. State, 795 S.W.2d 187, 192 (Tex.Crim.App. 1990). Here, appellant's counsel had no response to the State's explanations for striking William, Colbert, Matthews, or Bates. By not refuting the State's race-neutral reasons, appellant forfeited this issue on appeal. Flores v. State, 33 S.W.3d 907, 926 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). We overrule appellant's fourth point of error.Mistrial
In points of error three and five, appellant argues that the trial court erred in refusing to grant a mistrial when (1) during the cross-examination of appellant's father, the State asked the witness "And you created — you created your son, the monster that he is" and (2) appellant discovered, during trial, that the State had failed to disclose favorable evidence.Standard of Review
A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). A mistrial is appropriate for only "highly prejudicial and incurable errors." Id. It may be used to end trial proceedings when the trial court is faced with error so prejudicial that "expenditure of further time and expense would be wasteful and futile." Id. The Court of Criminal Appeals has held that "ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer." Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim. App. 2000). A trial court is required to grant a motion for a mistrial only when the improper question is "clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors." Wood, 18 S.W.3d at 648.Prosecutor's Improper Statement
During the guilt/innocence stage, the prosecutor cross-examined appellant's father, Arthur Quzenne, Sr. as follows:Q: Your son snapped, didn't he.
A: That's what you say.
Q: You push him, don't you.
A: What you [sic] mean, push him?
Q: Well, I mean you push him to work out every day. You want him to be a football hero. That's your ultimate goal, isn't it, Mr. Ouzenne?
A: Nope, nope.
Q: And you created — you created your son, the monster that he is.The trial court sustained appellant's objection to this comment, and it instructed the jury to disregard such remark. During the bench conference, outside the presence of the jury, the trial court warned the prosecutor, concerning his questioning, that "If you do it again, you will get held in contempt." Still outside the presence of the jury, the trial court explained that it was persuaded by the following excerpt from Hardin v. State, 20 S.W.3d 84 (Tex. App.-Texarkana 2000, pet. ref'd): " Bauder should not be read, however, as sanctioning the conduct of zealous advocates who skate close to the ragged edge of improperly prejudicing the jury. Rather, the court's comments must be understood as expressing a strong preference for completing the trial, as long as the trial remains fair." Id. at 93. The trial court denied appellant's motion for mistrial, but again warned the prosecutor not to "test me on that because the next motion for mistrial may be granted." The evidence admitted during the guilt/innocence phase showed that Bobby Shirley Jobe, Danisha Cosey, Gregory Jobe, Matthew Whitney, and Linda Jackson all saw appellant hit the complainant with a bat. Officer Sunley testified that he found a bat in appellant's house, and that the bat was used as a deadly weapon. All of this evidence was received before the prosecutor referred to appellant as a "monster." After reviewing the nature and extent of the evidence against the appellant, as well as the trial court's prompt instruction to the jury to disregard the prosecutor's reference to appellant as a "monster," we conclude that the instruction cured any prejudice flowing from the prosecutor's improper statement. As a result, the trial court did not abuse its discretion in overruling the appellant's motion for mistrial. We overrule point of error three. Brady Violation In point of error five, appellant claims that the trial court erred in refusing to grant a mistrial when it was discovered that the State had committed a Brady violation by failing to reveal that Marcellous Jobe's testimony was unfavorable to its case. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). In Brady, the Supreme Court held that the State's suppression of material evidence favorable to the accused, upon the accused's request for the evidence, denies the accused due process of law under the Fourteenth Amendment, irrespective of the State's good or bad faith in withholding the evidence. Id., 373 U.S. at 86-88, 83 S.Ct. at 1196-97; see U.S. Const. amend. XIV. Withheld evidence is material if there is a reasonable probability that the proceeding's outcome would have differed had the evidence been disclosed. United States v. Bagley, 473 U.S. 667, 681-82, 105 S.Ct. 3375, 3383-84 (1985). When the withheld evidence is disclosed during trial, the inquiry is thus whether the defendant was prejudiced by the tardy disclosure. Palmer v. State, 902 S.W.2d 561, 565 (Tex. App.-Houston [1st Dist.] 1995, no pet.). Here, when the State rested its case during the guilt/innocence stage, appellant moved for a mistrial based on the State's failure to disclose evidence favorable to appellant. The trial court excused the jury and allowed appellant's attorney to voir dire Marcellous Jobe, the alleged exculpatory witness. Jobe testified that he had seen the complainant and Matt Whitney playing baseball before dark on the night that the murder occurred. Ralph Mutchler, an investigator with the Galveston County District Attorney's Office, also testified outside the presence of the jury. Mutchler testified that Jobe told him that appellant was the only one with a bat during the assault. He testified that, 30 to 45 minutes before the complainant was assaulted, Jobe saw boys playing baseball with a bat. The trial court denied the motion for mistrial. Despite the fact that the motion was denied, the State offered to reopen its case and call Jobe as a witness. Appellant's trial counsel denied the offer and then called Jobe to testify as the first witness for the defense. Jobe testified that appellant was the only one with a bat during the assault, and Jobe had seen the boys playing baseball only during the daylight hours. Here, Jobe's testimony was not favorable to appellant. He testified that appellant was the only one with a bat during the assault. Therefore, Jobe's testimony was not exculpatory evidence and the State was not required to disclose Jobe's testimony to appellant's counsel before trial. We overrule point of error five.