Opinion
No. 05-02-00598-CR.
Opinion Filed May 5, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F98-44461-ML. AFFIRMED.
Before Justices MORRIS, WRIGHT and MOSELEY.
MEMORANDUM OPINION
Tifford Byrone Crosby was convicted of the murder of Arthur Piper. In his original appeal, we reversed and remanded for a retrial on punishment due to the trial court's failure to instruct the jury on sudden passion at the punishment phase of the trial. Crosby v. State, No. 05-98-01339-CR, slip op. at 3 (Tex.App.-Dallas August 1, 2001, no pet.) (not designated for publication). On retrial, a jury assessed punishment, enhanced by a prior felony conviction, at sixty-five years confinement. Crosby again appeals. In three points of error, he asserts the trial court erred by overruling his Batson motions to the State's use of peremptory challenges to strike two African-American members of the venire, and that the evidence was factually insufficient to support the jury's finding that Crosby was not under the immediate influence of sudden passion when he murdered Piper. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first two points of error, Crosby argues the trial court erred by overruling his Batson motions to the State's use of peremptory challenges and by not reinstating two African-American members of the venire. A defendant has a right to a trial by a jury whose members are selected in a racially-neutral, nondiscriminatory manner. Batson v. Kentucky, 476 U.S. 79, 85-86 (1986); see also Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989). When reviewing a Batson challenge, we consider the evidence in the light most favorable to the trial court's ruling and determine if the ruling is supported by the record. Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App. 1988). We will uphold the trial judge's ruling on a Batson motion unless it is clearly erroneous. Guzman v. State, 85 S.W.3d 242, 254 (Tex.Crim.App. 2002). A trial court's ruling is clearly erroneous when we are left with the "definite and firm conviction that a mistake has been committed." Id. (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)). A Batson inquiry entails a three-step process for evaluating objections to peremptory challenge. Hernandez v. New York, 500 U.S. 352, 358 (1991) (plurality). First, the defendant must make a prima facie showing that the State exercised its peremptory challenge on the basis of race. Id. Second, if the defendant makes the requisite prima facie case, the State must come forward with a racially-neutral explanation for the contested challenge. Purkett v. Elem, 514 U.S. 765, 766-67 (1995) (per curium). A racially-neutral explanation means only an explanation that, on its face, does not deny equal protection. Id. at 767-69. The State's explanation does not have to be persuasive or even plausible, and as long as discriminatory intent is not inherent in the response, the State's explanation will be deemed race-neutral. See Bausley v. State, 997 S.W.2d 313, 316 (Tex.App.-Dallas 1999, pet. ref'd) (citing Purkett, 514 U.S. at 768). Third, if the State presents a racially-neutral explanation for its challenge, the defendant must go forward with his burden of proving by a preponderance of the evidence that the explanation given by the State is a sham or a pretext for discrimination. Keeton, 749 S.W.2d at 868. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the challenge. Purkett, 514 U.S. at 767-69. The State responded to Crosby's Batson motions by stating to the trial court that one venire member, No. 23, was struck because he did not admit having a criminal history and the other, venire member No. 32, was struck because she believed rehabilitation was the most important factor in assessing punishment. Crosby's counsel responded to the State's explanation of member No. 23 by stating he did not recognize the crime, an UCE (most likely an unlawful carrying a weapon charge), and because the crime was so remote, the conviction was in 1978, that the member probably forgot about it. A criminal charge, even a dismissed charge, is a race-neutral reason for using a peremptory challenge. Brown v. State, 56 S.W.3d 915, 917-18 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Furthermore, the failure to disclose such a charge is also a race-neutral reason to strike a venire member. See, e.g., Johnson v. State, 68 S.W.3d 644, 649-50 (Tex.Crim.App. 2002) (venire member's failure to disclose prior arrest was among race-neutral explanations offered by the State). Likewise, a venire member's belief in rehabilitation, as the most important factor in punishment, is a race-neutral reason for striking that individual. See Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Crim.App. 1993) (recognizing that rehabilitation as primary goal of punishment is a race-neutral reason for exclusion). We conclude the State's explanations were facially race-neutral. Thus, we now determine whether Crosby had not met his burden of proving by a preponderance of the evidence that the explanations given by the State were shams or pretexts for discrimination. Crosby's counsel's response, at most, disagreed with the State's explanation for No. 23, but it failed to affirmatively prove the State's explanation was a sham or a pretext for discrimination. See, e.g., Johnson v. State, 959 S.W.2d 284, 290 (Tex.App.-Dallas 1997, pet. ref'd); Straughter v. State, 801 S.W.2d 607, 613 (Tex.App.-Houston [1st Dist.] 1990, no pet.) ("It was appellant's burden to do more than simply state his disagreement with some of the prosecutor's explanations; he was required to prove affirmatively that the prosecutor's racially neutral explanations were a sham or pretext."). With respect to the State's explanation for venire member No. 32, Crosby's counsel offered no reply. In addition, the record reflects venire member No. 23 was recalled, and on examination admitted he had been charged with unlawfully carrying a weapon. Also, on the record the State pointed out that it used two of its peremptory challenges on white members of the venire who also did not admit their criminal histories, and used an additional challenge on another white member of the venire who also believed in rehabilitation. After considering the evidence in the light most favorable to the trial court's ruling, we are not left with a definite and firm conviction that the trial court committed a mistake in finding Crosby failed to prove by a preponderance of the evidence that the State used race as the basis for striking the venire members in question. See Guzman, 85 S.W.3d at 254. Thus, the trial court's decision to overrule Crosby's Batson motions was not clearly erroneous. See id. Accordingly, we resolve Crosby's first and second points of error against him. In his third point of error, Crosby in essence asserts the evidence was factually insufficient to show that he did not murder Piper with sudden passion arising from an adequate cause. When a defendant seeks appellate review of a failure to make a finding on which the defendant has the burden of proof, like sudden passion, we apply a factual sufficiency standard of review. Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim. App. 1990). We apply the appropriate standard. Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000); Meraz, 785 S.W.2d at 154. The penal code defines "sudden passion" as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Tex. Pen. Code Ann. § 19.02(a)(2) (Vernon 2003). "Adequate cause" means "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id. § 19.02(a)(1). There is evidence in the record that Crosby's car was blocking the path of Piper's car. Piper honked his horn at Crosby to have Crosby move his car, resulting in a verbal altercation between the two. After a passenger in Piper's car interceded, the altercation ended with both Crosby and Piper getting into their cars; Crosby drove away. After driving only a short distance, Crosby doubled back and opened fire, over his passenger through the front-seat, passenger's window, on Piper and his five passengers. Piper was killed by a single gunshot wound to the back of his head. Crosby cites the following evidence as the most important and relevant to his assertion that he killed Piper when under the immediate influence of sudden passion. See Sims v. State, No. 1328-01, slip op. at 4 (Tex.Crim.App. Mar. 12, 2003). Specifically, Crosby testified that he was forced to double back because his exit was barricaded. Admitting he shot Piper, Crosby stated he shot wildly at Piper's car only after Piper first pointed a gun at him and because he was scared Piper was going to shoot him. The jury is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). Thus, the jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim. App. 1991). Furthermore, although there was conflicting evidence, reconciling those conflicts was within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). After reviewing all the evidence in a neutral light, we cannot say the evidence that Crosby did not murder Piper in sudden passion is so obviously weak as to undermine confidence in the fact finder's determination, or that the proof of lack of sudden passion is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11; Meraz, 785 S.W.2d at 154. We need not further detail the rest of the evidence. See Sims, No. 1328-01, slip op. at 4. Accordingly, we conclude the evidence is factually sufficient and resolve Crosby's third point of error against him. Having resolved Crosby's three points of error against him, we affirm the trial court's judgment.