Gilkey v. State

Full title: ACIE GILKEY, JR., Appellant, v. THE STATE OF TEXAS, Appellee

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

Date published: Nov 21, 2003

Nos. 05-02-01820-CR, 05-02-01821-CR (Tex. App. Nov. 21, 2003)

Opinion

Nos. 05-02-01820-CR, 05-02-01821-CR

November 21, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 282^nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F00-71241-Ts and F00-71242-Ts.

Before Justices MOSELEY, RICHTER, and FRANCIS.

OPINION

MARTIN RICHTER, Justice.

Following a consolidated trial, a jury convicted Acie Gilkey, Jr. of the aggravated sexual assault of C.T., a child younger than fourteen years of age (appellate cause no. 05-02-01820-CR), and the sexual assault of L.K., a child (appellate cause no. 05-02-01821-CR). The jury assessed punishment at five years imprisonment in the aggravated sexual assault case and three years imprisonment in the sexual assault case. In fifteen points of error, appellant complains of (a) Batson ¹ error during jury selection, (b) error in the denial of his motion to suppress and the admission of certain evidence, and (c) the legal and factual sufficiency of the evidence to support the convictions. We affirm.

1 Batson v. Kentucky, 476 U.S. 79, 96 (1986).

Background

Appellant met the minor complainants, L.K. and C.T., while working as a Dallas Area Rapid Transit (DART) police officer on a DART train. According to the complainants, appellant approached them and inquired whether they had "boarding passes." When the complainants responded that they did not, appellant issued them a written warning. Appellant then told them he would have to take them to the juvenile detention center and instructed them to remain on board until the train reached its final destination. When the train reached the station, appellant directed the complainants to a DART car and drove them to a nearby gas station. At the gas station, appellant instructed the complainants to get out and stay there until he returned. Appellant returned minutes later in his own car and the complainants got in. The complainants "dozed off" and awoke to find appellant pulling into a motel parking lot. According to the complainants, appellant took them to a room and assaulted each one. Several hours later, appellant dropped the complainants off at a DART station. The complainants reported the assaults that same day, and appellant was arrested. At trial, the State relied primarily on the testimony of the complainants and the investigating officer. The complainants related what had happened and explained they followed appellant's instructions because he was an officer and they did not realize he had an "ulterior motive." They also testified in detail as to the assaults and noted appellant used a condom during intercourse. Both complainants were aware appellant assaulted the other and both denied they had consented to intercourse. At the time of the assaults, L.K. was fourteen and C.T. was thirteen. The investigating officer testified he obtained a description of appellant from the complainants and both the complainants and a motel clerk identified appellant from a photographic line-up. Additionally, both complainants provided detailed accountings of what had happened and "rather accurate" descriptions of the motel room and appellant's car. According to the officer, a videotape from the gas station and the DART ticket book of appellant provided independent corroboration of the information the complainants had given him. The officer also noted that L.K. gave him a pager number she had received from appellant and that appellant responded to a page to that number. The officer acknowledged there was no scientific evidence linking appellant to the assaults and that the complainants' statements were at times inconsistent, but neither "changed [his] mind about . . . arrest[ing]" appellant. Appellant did not testify, but called several character witnesses, all of whom were of the opinion that appellant's "moral character in dealing with children" was good.

Sufficiency of the Evidence

In his twelfth, thirteenth, fourteenth, and fifteenth points of error, appellant challenges the legal and factual sufficiency of the evidence to support the convictions. In arguing these points, appellant relies on the lack of scientific evidence linking appellant to the assaults and maintains the complainants were not credible because there were inconsistencies in their statements.² We reject appellant's contentions. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence viewed by the fact finder establishes that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). In both sufficiency reviews, the fact finder may draw reasonable inferences from the evidence before it and is the exclusive judge of the witnesses' credibility and the weight given to the testimony. Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim. App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex. App.-Amarillo 1996, no pet.). Based on the indictment in the aggravated sexual assault case, to obtain a conviction, the State had to prove appellant intentionally and knowingly caused the contact and penetration of the female sexual organ of C.T., a child younger than fourteen years of age, by means of his sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (iii), (2)(B) (Vernon Supp. 2004). Based on the indictment in the sexual assault case, to obtain a conviction, the State had to prove appellant intentionally and knowingly caused the penetration of the female sexual organ of L.K., a child, by means of his sexual organ. Id. § 22.011(a)(2)(A). Because the complainants reported the assaults immediately, the State could establish appellant's guilt in each case through the testimony of the child victim alone. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. Pamph. 2004); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd), cert. denied, 123 S. CT. 1753 (2003). Viewing the evidence under the appropriate standard, we conclude the evidence was both legally and factually sufficient to support the convictions. The record contains the complainants' detailed testimony concerning the assaults — where they first encountered appellant, the instructions he gave them and why they followed them, how they arrived at the motel, and how the rapes occurred. The record also contains the complainants' unrefuted testimony that appellant had intercourse with them without their consent, and that at the time, C.T. was thirteen and L.K. was fourteen. Although appellant correctly notes there is no scientific evidence linking appellant to the assaults, none was necessary, as the testimony of the complainants alone was sufficient to establish his guilt. See Tear, 74 S.W.2d at 560. Moreover, although the complainants were inconsistent at times, it was for the jury to resolve the inconsistencies. Bruno, 922 S.W.2d at 293. The jury was free to believe part of their testimony and disbelieve the other. Id. By returning guilty verdicts, the jury necessarily resolved any conflicts in favor of the State and found credible, at a minimum, that portion of the complainants' testimony that appellant assaulted them. We will not disturb that finding. We overrule appellant's twelfth, thirteenth, fourteenth, and fifteenth points of error.

Jury Selection

In his first seven points of error, appellant complains the court erred in overruling his objections during jury selection to seven of the State's eight peremptory strikes. Specifically, appellant challenges the State's strikes against jurors 10, 17, 21, and 30, who are African American; jurors 29 and 46, who are Latino; and juror 62, who is of "Indian descent or . . . Pakistan[i]." Appellant maintains the State exercised these strikes in a racially discriminatory manner and, therefore, his conviction should be reversed. We disagree. 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, to succeed on a challenge to the State's use of peremptory strikes, a defendant must first make a prima facie showing that the State exercised peremptory strikes on the basis of race. Id. Once a defendant makes this showing, the State must come forward with a race-neutral explanation for striking the jurors in question. Id. at 97. A race-neutral explanation is one that, on its face, does not deny equal protection. Purkett v. Elem, 514 U.S. 765, 768-69 (1995) (per curiam). The State's explanation does not have to be persuasive or even plausible, and as long as the discriminatory intent is not inherent, the State's explanation will be deemed race-neutral. Bausely v. State, 997 S.W.2d 313, 316 (Tex. App.-Dallas 1999, pet. ref'd) (citing Purkett, 514 U.S. at 768). If the State provides a race-neutral explanation for its strikes, the defendant must then rebut the State's explanation, show the explanation was merely a sham or a pretext, or show the State exercised the strikes in a disparate manner. Esteves v. State, 849 S.W.2d 822, 824 n. 2 (Tex.Crim.App. 1993); Bausely, 997 S.W.2d at 316. To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Bausely, 997 S.W.2d at 316. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the defendant. See Purkett, 514 U.S. at 768. In reviewing a Batson challenge, we examine the record in the light most favorable to the trial court's ruling and will reverse the trial court's ruling only when it is clearly erroneous, that is, when, we are left with the definite and firm conviction that a mistake has been committed. Esteves, 849 S.W.2d at 822; Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App. 1992). The record in these cases reflects the following reasons the State gave for striking the challenged jurors:

* juror 10 because he thought results of a polygraph test might be introduced into evidence, he was retired, and not" forthcoming" about his work experience;

* juror 17 because he had been falsely accused of a "similar allegation;"

* juror 21 because she had been on a hung jury and had been rated a "fair juror" at that time;

* juror 29 because he was from Mexico, had an eighth-grade education, misspelled his religion, and appeared to not have a "good command" of the English language;

* juror 30 because she did not know the meaning of "corroborate," she was unemployed, and had no children;

* juror 46 because he was sixty-one, single, with no children, and did not work with children; and,

* juror 62 because of "body language."

These explanations are void of any racially discriminatory intent. See, e.g., Guzman v. State, 85 S.W.3d 242, 254 (Tex.Crim.App. 2002) (marital status and being childless racially neutral reasons); Wamget v. State, 67 S.W.3d 851, 852-53, 859 (Tex.Crim.App. 2001) (unemployment, country of birth "without more"), cert. denied, 535 U.S. 1080 (2002); Tompkins v. State, 774 S.W.2d 195, 204-05 (Tex.Crim.App. 1987) (poor literacy skills, occupation); Tiede v. State, 104 S.W.3d 552, 559-60 (Tex. App.-Tyler 2000) (body language), vacated and remanded on other grounds, 76 S.W.3d 13 (Tex.Crim. App. 2002); Chiles v. State, 57 S.W.3d 512, 516-17 (Tex. App.-Waco 2001, pet. dism'd, untimely filed) (difficulty understanding legal concepts); Brown v. State, 56 S.W.3d 915, 917-18 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (dismissed criminal charge); Salinas v. State, 888 S.W.2d 93, 97-98 (Tex. App.-Corpus Christi 1994, pet. ref'd) (failure to provide information); Webb v. State, 840 S.W.2d 543, 546 (Tex. App.-Dallas 1992, no pet.) (prior jury service rating); Chambers v. State, 724 S.W.2d 440, 442 (Tex. App.-Houston [14th Dist.] 1987, pet. ref'd) (misspellings on juror information card). Thus, the burden shifted to appellant to rebut the State's explanations or show the explanations were merely pretext or a sham. Bausely, 997 S.W.2d at 316. However, defense counsel never cross-examined the prosecutor about these reasons, did not show disparate treatment or offer any evidence showing the reasons given by the State were pretexts for racial discrimination. Based on the record before us, we conclude appellant failed to meet his burden of proving discrimination in the State's use of peremptory strikes and the court's ruling was not clearly erroneous. We overrule appellant's first through seventh points of error.

Suppression Motion

In his eighth and ninth points of error, appellant asserts the trial court abused its discretion in overruling his motion to suppress a statement he gave to the police in the course of the investigation. Appellant asserts the statement was not voluntary and that he was denied his right to counsel. In response, the State notes the complained-of statement was never admitted into evidence before the jury and, therefore, these points of error should be overruled. We agree with the State. A motion to suppress is nothing more than a specialized objection to the admissibility of evidence, and an appellant complaining of the court's ruling on the motion must show harm in order to prevail. Tex. R. App. P. 44.2; Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App. 1981); Jeffley v. State, 38 S.W.3d 847, 858 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). When, as here, the objectionable evidence is not offered, there is nothing for us to review. When the objectionable evidence is not offered, no harm results from any error in overruling the suppression motion because the ultimate result — the exclusion of the evidence — is the same as if the motion had been sustained. See Galitz, 617 S.W.2d at 952 n. 10. We overrule appellant's eighth and ninth points of error.

Admission of Evidence

In his tenth and eleventh points of error, appellant complains of the admission of State's Exhibit 14, the videotape from the gas station, and State's Exhibit 15, an enhancement of the gas station's videotape. Appellant maintains the State "failed to adequately establish and lay the proper predicate" for each. We disagree. We review rulings on the admissibility of evidence under an abuse of discretion standard, and will reverse only if the ruling falls outside the "zone of reasonable disagreement." Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Rule 901(a) of the Texas Rules of Evidence governs authentication of evidentiary items, including videotapes. Tex. R. Evid. 901; Angleton v. State, 971 S.W.2d 65, 67-68 (Tex.Crim.App. 1998). Evidence that supports a finding that a matter in question is what the proponent claims satisfies the authentication requirements. Tex. R. Evid. 901(b)(1). Any witness who has personal knowledge that the videotape accurately represents the scene or event it purports to portray may authenticate the tape. See Hooker v. State, 932 S.W.2d 712, 716 (Tex. App.-Beaumont 1996, no pet.). In this case, the record reflects the State offered exhibit 14, the gas station's videotape, during C.T.'s testimony and exhibit 15, the enhanced tape, during the investigating officer's testimony. C.T. testified she was present when the videotape was made, she had watched the tape and recognized herself on the tape, and the tape accurately recorded "everything that happened during that period of time from drop-off to pick-up" at the gas station. The investigating officer testified his office enhanced exhibit 14, which he had personally obtained from the gas station manager and reviewed, and that the enhanced tape, exhibit 15, also accurately depicted the events that transpired at the gas station. We conclude C.T. and the investigating officer were both witnesses "with knowledge" who sufficiently authenticated the complained-of exhibits. Accordingly, the trial court did not abuse its discretion in admitting the tapes. We overrule appellant's tenth and eleventh points of error. We affirm the trial court's judgments.