Bougere v. State

Full title: KELAN BOUGERE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 3, 2009

Nos. 05-08-00900-CR, 05-08-00901-CR, 05-08-00902-CR, 05-08-00903-CR (Tex. App. Jun. 3, 2009)

Opinion

Nos. 05-08-00900-CR, 05-08-00901-CR, 05-08-00902-CR, 05-08-00903-CR

Opinion issued June 3, 2009. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-32975-JR, F04-57034-R, F04-57081-R, and F04-57168-PR.

Before Justices BRIDGES, O'NEILL, and FITZGERALD.

MEMORANDUM OPINION

Opinion By Justice FITZGERALD.

Appellant Kelan Bougere pleaded guilty to four charges of aggravated robbery. Punishment issues were tried to a jury, which assessed Bougere's punishment at forty years' confinement. Bougere raises two issues on appeal; both concern jury selection. Because the dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellant Procedure 47.4. In his first issue, Bougere contends he was not permitted to question the venire concerning members' ability to follow the court's instruction concerning the law of parole. He points to a series of questions to which objections were sustained during his discussion of parole. Our review of the record indicates the successful objections followed:

* a statement addressing how minimum service for "aggravated time" was set when defense counsel was a prosecutor;

* each of a series of questions addressed to a police officer on the panel asking (1) whether the officer thought "multiple cases of an aggravated nature . . . would help or hurt getting out early on parole," (2) whether that might be a factor to the parole board, and (3) whether he was aware of what aggravated time prisoners were getting these days;

* a question addressed to a panel member whose brother had been convicted of aggravated assault as to whether she knew how much time he was going to do for the aggravated part of his sentence.

A question is proper in voir dire if it seeks to discover a juror's views on an issue applicable to the case. Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Crim.App. 1991). We review a contention that a defendant was improperly restricted on voir dire for an abuse of discretion. Id. We will find an abuse of discretion only when a proper question about a proper area of inquiry is prohibited. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002). In this case, the trial court instructed the jury concerning when Bougere could become eligible for parole and explained that eligibility did not guarantee parole would be granted. The court's instructions also made clear that parole decisions were for prison and parole authorities to make, not for the jury. Thus, the jury was specifically told:

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular Defendant.

Our review of the voir dire record indicates counsel for Bougere was permitted to question the venire concerning members' ability to follow parole law. He was permitted to inform members of the relevant rules concerning eligibility. However, we conclude the trial court correctly sustained objections to statements and inquiries that encouraged potential jurors to do precisely what the instruction forbade, i.e., to consider how the parole rules might be applied to Bougere. Such inquiries were not proper questions about a proper area of inquiry. See Barajas, 93 S.W.3d at 38. Finding no abuse of discretion, we overrule Bougere's first issue. Bougere's second issue is a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). To prevail on a Batson challenge, a defendant must initially establish a prima facie showing of racial discrimination in the State's exercise of the peremptory strike. The burden then shifts to the State to articulate a race-neutral explanation for its questioned strike. Once the prosecutor has articulated a race-neutral explanation, the burden shifts back to the defendant to show that the explanation is really a pretext for discrimination. The trial court then determines whether the defendant has carried his burden of proving racial discrimination. Mathis v. State, 67 S.W.3d 918, 924 (Tex.Crim.App. 2002). The trial court's determination is accorded great deference; we will not overturn the determination unless it is clearly erroneous. Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App. 1999). Bougere argues the State did not offer race-neutral reasons for striking two African-American members of the venire.¹ At the Batson hearing, the prosecutor stated he struck Juror No. 7 because:

He's a bus driver and on all — when I asked about their punishment philosophy, he said all three. Couldn't make up his mind. And in the past in talking to juries after deliberations are done, . . . drivers of any sort bus, car, truck, have a little different mentality. And so I lean toward striking those people. And then he really couldn't make up his mind about the punishment philosophy.

And as to his striking of Juror No. 36, the prosecutor stated:

Judge, I don't like people who are late. It shows disrespect, it shows they can't follow instructions. And we're going to need people who can follow instructions and [have] some respect for the Court and for the system. And when people are late, I get rid of them. And she was and so I did.

Bougere offered no evidence in response to the State's explanations, although he argued the explanations were insufficient. The trial court found the prosecutor's reasons were race-neutral and concluded the strikes did not violate Batson. On appeal, Bougere asserts the trial court's decision was clearly erroneous. We disagree. Courts have concluded that strikes based on a prospective juror's ranking of revenge, deterrence, and rehabilitation as reasons for punishment are race-neutral. See, e.g., Harris v. State, 996 S.W.2d 232, 236 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (prospective juror's belief that rehabilitation is main purpose of punishment is race-neutral reason). A prospective juror's refusal or inability to rank the theories raises the same race-neutral concerns for a prosecutor. See, e.g., Adanandus v. State, 866 S.W.2d 210, 224 (Tex.Crim.App. 1993) (striking prospective juror who did not rank theories as asked was race-neutral). Strikes based on a prospective juror's occupation have also been held to be race-neutral. See Davis v. State, 822 S.W.2d 207, 211 (Tex.App.-Dallas 1991, pet ref'd). Finally, courts have concluded that a prospective juror's tardiness can be a race-neutral reason for striking the juror. See Dixon v. State, 828 S.W.2d 42, 45 (Tex.App.-Tyler 1991, pet. ref'd). The record before us contains no evidence that the race-neutral reasons proffered by the State were pretextual. Bougere clearly does not agree with all the reasons given. For example, he calls the State's explanation that a tardy panel member shows disrespect to the court "spurious." But the State's explanation must only be race-neutral; it need not be persuasive or even plausible. Purkett v. Elem, 514 U.S. 765, 768 (1995). We conclude the trial court's decision to overrule Bougere's Batson challenge was not clearly erroneous. We overrule Bougere's second issue as well. We affirm the judgments of the trial court.

1 The record establishes Bougere is an African-American male and the State struck five of the seven available African-Americans on the panel. These facts are sufficient to establish Bougere's prima facie case of discrimination. See Linscomb v. State, 829 S.W.2d 164, 165 (Tex.Crim.App. 1992). On appeal, Bougere challenges only two of the five strikes by the State.