No. 05-05-00438-CR
Opinion Filed March 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F04-01345-NI. Affirm.
Before Justices MORRIS, FITZGERALD, and RICHTER.
Opinion By Justice RICHTER.
Phillip Deshund Gossettwhite appeals his jury conviction for aggravated sexual assault. In four issues, he complains of the trial judge's overruling his objection to the State's use of peremptory challenges during jury selection, the complainant's out-of-court and in-court identification of him, and certain evidentiary rulings. We affirm.
Background
The assault occurred at the complainant's house. According to the complainant, she was walking into her house after getting some fresh air when she was grabbed from behind, forced into a bedroom with her young son, raped, and threatened with her and her son's death if she called the police. The assailant took a cordless telephone from the house when he left, but the complainant was able to call her husband at work from another telephone. The complainant told her husband of the threats, but refused to call the police because she was afraid the assailant would act on his threats. The husband then called the police. When the husband and the police officers arrived, the complainant was crying, "very upset," and "very frightened." The complainant provided a description of the assailant to the police but it was not until a month later, when the assailant returned to the complainant's house and was caught and arrested for breaking into it, that the officers were able to determine the assailant was Gossettwhite. The complainant was not at home at the time of the break-in, but later identified Gossettwhite as the assailant from a photographic line-up containing his picture. Gossettwhite was subsequently charged with the assault. At trial, Gossettwhite did not deny assaulting the complainant, but maintained he was guilty only of the lesser offense of sexual assault. Unpersuaded, the jury found him guilty as charged in the indictment and assessed punishment at fifty-five years and a $5000 fine. Jury Selection
Gossettwhite's first issue stems from the State's striking venire members 4, 24, 32, 35, and 50 during jury selection. Pointing out these five venire members were African-American, Gossettwhite, who is also African-American, objected at trial to the State's use of its peremptory challenges against them and argued the State struck them because of their race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Based on the prosecutor's response that she (a) struck venire members 4, 32, and 35 because they stated during jury selection that they thought sex offenders have a "chemical imbalance that [is] curable," (b) struck venire member 24 because "he ha[d] a felony drug conviction," and (c) struck venire member 50 because "he failed [during initial questioning of the panel] to own up to the fact that his son has a criminal history," the trial judge overruled Gossettwhite's objection. Gossettwhite now argues these explanations are not "adequate" and are "in fact a thinly veiled excuse to eliminate black jurors." He also points out that the prosecutor's reason for striking venire member 50 is a "pretext" because the record reflects venire member 50 did reveal his son had a criminal history. Gossettwhite maintains the trial judge erred in overruling his Batson objection and his conviction should be reversed. We disagree. In Batson, 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. 476 U.S. at 94. 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. at 96. 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, 769 (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 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. Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App. 1992). Here, the record reflects that after Gossettwhite established the venire members in question were all African-American, the prosecutor proffered her explanations for striking them: (a) thinking sex offenders have a "chemical imbalance that [is] curable," (b) having a felony conviction, and (c) "failing to own up" from the start to a criminal history in the family. Although Gossettwhite argues these explanations are "inadequate," they are all void of any racially discriminatory intent. See, e.g., Vargas v. State, 838 S.W.2d 552, 555 (Tex.Crim.App. 1992) (being previously arrested or having relatives arrested or convicted race-neutral reason); Joseph v. State, 916 S.W.2d 657, 660 (Tex.App.-Houston [14th Dist.] 1996, no pet.) (not liking response given by juror to hypothetical question race-neutral reason); Salinas v. State, 888 S.W.2d 93, 97-98 (Tex.App.-Corpus Christi 1994, pet. ref'd) (failing to provide information race-neutral reason). Because these explanation are race-neutral, the burden then shifted to Gossettwhite to rebut these explanations or show they were merely pretext or a sham. The record reflects, however, that Gossettwhite presented no additional evidence or argument. He did not cross-examine the prosecutor about the proffered reasons, did not show disparate treatment, and did not offer any evidence showing the reasons given by the State were a pretext for racial discrimination. Although he is correct that venire member 50 did reveal his son had a criminal history, Gossettwhite did not argue this at trial. Moreover, the record reflects venire member 50's disclosure came only late in the selection process, well after the prosecutor had asked the venire members whether any of them or their family members had ever "been arrested, charged with or prosecuted for a criminal offense" and had delved into other areas of questioning. Based on the record before us, we conclude Gossettwhite failed to meet his burden of proving discrimination in the State's use of peremptory strikes and the judge's ruling was not clearly erroneous. We resolve Gossettwhite's first issue against him. Identification Testimony
Gossettwhite's second issue stems from the photographic line-up shown to the complainant. The picture of Gossettwhite used in this line-up was a "close-up" — the only "close-up"-and was taken by the detective who showed the complainant the line-up. Because his picture was the only "close-up" in the line-up, Gossettwhite sought to exclude the complainant's identification of him from the line-up and anticipated identification of him at trial. At a hearing outside the jury's presence, the detective testified that he used six pictures in the line-up. Although Gossettwhite's picture "stood out" because it was a "close-up," all the pictures were of males similar in build, facial features, and age. Without telling her which picture to select, the detective showed the pictures one-by-one to the complainant, who "easily" picked Gossettwhite's picture. The complainant then testified she was able to see Gossettwhite's face well during the assault because the room was lit and the assault lasted around ten to fifteen minutes. Although she agreed that Gossettwhite's picture "stood out" because it was a "close-up," she testified that she selected his picture based on her observations during the assault and had "no doubt" Gossettwhite was the assailant. She further testified that her in-court identification of Gossettwhite at that hearing was based partially on the picture in the line-up. Based on the detective's and complainant's testimony that Gossettwhite's picture "stood out" and the complainant's testimony that her in-court identification of Gossettwhite was based partially on the picture, Gossettwhite argued the "close-up" picture rendered the line-up impermissibly suggestive which in turn tainted the complainant's in-court identification of him. The trial judge overruled Gossettwhite's objection and Gossettwhite now complains the judge's ruling was erroneous. Again, we disagree. Identification testimony based on an impermissibly suggestive out-of-court identification procedure is inadmissible. Neil v. Biggers, 409 U.S. 188, 198 (1972); Gilstrap v. State, 65 S.W.3d 322, 326 (Tex.App.-Waco 2001, pet. ref'd). This is so because an impermissibly suggestive out-of-court procedure may give rise to a "substantial likelihood of misidentification" in and out of court. Biggers, 409 U.S. at 198; Gilstrap, 65 S.W.3d at 326. Suggestiveness may be created by the manner in which the out-of-court identification procedure is conducted, for example by a police officer pointing out the suspect or suggesting that a suspect is included in the line-up. Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). Suggestiveness may also be created by the content of the line-up itself if, for example, the suspect is the only individual closely resembling the pre-procedure description or the other participants are "greatly dissimilar" in appearance from the suspect. Id.; Brown v. State, 29 S.W.3d 251, 254 (Tex.App.-Houston [14th Dist.] 2000, no pet.); see also, e.g., Tapley v. State, 673 S.W.2d 284, 286 (Tex.App.-San Antonio 1984, pet. ref'd) (line-up with one white male and nine Mexican-American males impermissibly suggestive). However, minor discrepancies will not render a line-up impermissibly suggestive. Brown, 29 S.W.3d at 254; see also, e.g., Bell v. State, 724 S.W.2d 780, 798-99 (Tex.Crim.App. 1986) (line-up not impermissibly suggestive where defendant tallest participant and only participant in bright white pants); Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App. 1985) (line-up with participants who differed in height, weight, skin tone, and clothing not impermissibly suggesstive); Epps v. State, 811 S.W.2d 237, 244 (Tex.App.-Dallas 1991, no pet.) (line-up where defendant only participant wearing jacket and red shirt not impermissibly suggestive). The defendant bears the burden to show by clear and convincing evidence that the out-of-court identification procedure was impermissibly suggestive, and without a showing of an impermissibly suggestive procedure, we will not find the in-court identification to be "tainted" and inadmissible. Barley, 906 S.W.2d at 33-34; Gilstrap, 65 S.W.3d at 328. Whether a photographic line-up procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor and is thus reviewed de novo. Brown, 64 S.W.3d 94, 98-99 (Tex.App.-Austin 2001, no pet.). Viewing the record under the appropriate standard in this case, we conclude Gossettwhite has not shown by clear and convincing evidence that the line-up was impermissibly suggestive. He does not dispute the pictures in the line-up are of individuals similar in size, facial features, and age. Nor does he argue that the officer suggested to the complainant that her assailant was in the line-up or that he suggested who the assailant might be. Rather, his sole complaint is that his picture is a "close-up" and both the complainant and officer testified it "stood out." However, he points to no evidence in the record, and we do not find any, showing that the complainant selected his picture because it "stood out" or that the officer used that picture of him for the purpose of encouraging the complainant to select that picture. In fact, the record reflects the complainant testified she selected Gossettwhite's picture based on her observation of him at the time of the assault. Gossettwhite's contention that the judge erred in admitting the complainant's out-of-court and in-court identification of him because the line-up was impermissibly suggestive is without merit. See Barley, 906 S.W.2d at 33-34 (six-picture line-up containing two pictures which appeared to be older and faded and one which was taken in different setting not impermissibly suggestive where officers did not indicate to witnesses that suspect was included in line-up or suggest which picture to choose and witnesses testified they did not notice differences in picture or were not influenced by the differences); Rojas v. State, 171 S.W.3d 442, 449 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (five-picture line-up containing picture of defendant in pose different than other participants not impermissibly suggestive where record did not show difference in pose was intentional or for purpose of encouraging witness to select defendant's picture); Brown, 64 S.W.3d at 100 (six-picture line-up containing "overexposed" picture of defendant not impermissibly suggestive where officers never told witness that a suspect was included in line-up and witness identified defendant independently). We resolve Gossettwhite's second issue against him. Evidentiary Rulings
In his third and fourth issues, Gossettwhite complains about certain evidentiary rulings. Specifically in his third issue, he complains of the admission, over his objection, of the testimony that he broke-into the complainant's home a month after the assault. Gossettwhite maintains this extraneous offense testimony, which was offered to show Gossettwhite's intent to place the complainant in fear and support the aggravating factor of the assault, was an impermissible attack on his character in violation of Texas Rule of Evidence 404(b), and was more prejudicial than probative in violation of Texas Rule of Evidence 403. In his fourth issue, Gossettwhite complains the judge abused his discretion when he ruled Gossettwhite could not introduce evidence of statements he made to the officer following his arrest. Gossettwhite maintains this evidence, which included a statement that he broke-into the complainant's home because he "was looking to steal money . . . to support his family" and that he did not intend to hurt anybody and knew no one was at home at the time, would have rebutted the State's theory that he burglarized the complainant's home to place her in fear. In response, the State argues that any error was harmless. We agree with the State. We review rulings on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex.R.App.P. 44.2; Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Because generally the erroneous admission or exclusion of evidence does not rise to the level of constitutional error, we look only to see if an appellant's substantial rights have been affected in determining whether an appellant has been harmed by such evidence. See Poitier v. State, 68 S.W.3d 657, 663 (Tex.Crim.App. 2002); Phelps v. State, 999 S.W.2d 512, 520 (Tex.App.-Eastland 1999, pet. ref'd). In making this determination, we consider the entire record, including the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). We also may consider the parties' trial theories, the court's instructions to the jury, and the parties' closing arguments. Id. We will conclude the error to be harmless when the record provides us a "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365 (citation omitted). We need not determine whether either of the complained-of rulings in this case was error because we conclude that neither affected Gossettwhite's substantial rights. Based on the indictment in this case, to obtain a conviction, the State had to prove Gossettwhite sexually assaulted the complainant and either placed her in fear that death or serious bodily injury would be imminently inflicted on her or threatened to cause death or serious bodily injury. See Tex. Pen. Code Ann. § 22.021(a) (Vernon 2005). That Gossettwhite assaulted the complainant was not disputed. The sole issue was the aggravating factor, and the State offered two means as proof. The first was the testimony that (a) Gossettwhite threatened to kill the complainant if she called the police and even took a cordless telephone from her house as he left; (b) the complainant was frightened and refused to call the police; and (c) the complainant was upset, crying, and frightened when her husband and the responding officers arrived. The second was the testimony of the complained-of extraneous offense which was offered to show Gossettwhite's intent to place the complainant in fear. The time spent on this testimony was about equal to the time spent showing the complainant was placed in fear by Gossettwhite's threat at the time of the assault, and could have been rebutted by the statements Gossettwhite unsuccessfully sought to introduce showing he broke into the complainant's house because he needed money. Under the particular facts of this case, had the testimony of the break-in been the sole means by which the State sought to prove the aggravating factor we might be inclined to conclude Gossettwhite's substantial rights were affected by the two complained-of evidentiary rulings. However, neither of the rulings had any bearing on the testimony showing the complainant was placed in fear by the threats made at the time of the assault, and this testimony was sufficient to support the verdict. See id.; Sims v. State, 84 S.W.3d 768, 774 (Tex.App.-Dallas 2002, pet. ref'd). Given the record before us, we conclude Gossettwhite's complaints are without merit. We resolve issues three and four against him. We affirm the trial court's judgment.