No. 05-09-01142-CR
Opinion Filed March 7, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the County Court at Law Kaufman County, Texas, Trial Court Cause No. 08CL-2364-2.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
Opinion By Justice LANG-MIERS.
After a jury trial, appellant Michael Wayne Green was convicted of evading arrest or detention, sentenced to 180 days in jail, and ordered to pay a $1,000 fine and $255 in court costs. Appellant raises three issues on appeal complaining about the denial of his Batson challenge, the denial of his motion to suppress, and the sufficiency of the evidence to support his conviction. We resolve appellant's issues against him and affirm the trial court's judgment.
Background
The State's two witnesses during the guilt phase of appellant's trial were police officers Jeremy Mack and Troy Kelly, two members of the Terrell, Texas police department. Around 6:30 p.m. on the date of the offense, Officers Mack and Kelly were in an unmarked police car patrolling areas known for their high level of drug activity. In one of those areas, they saw appellant and two other men standing in the middle of the street, conducting what appeared to be a drug transaction. Officer Mack recognized two of the men from previous encounters-appellant and Nathaniel Robinson. Officer Mack saw appellant hand a baggy to one of the other men, "who in return handed a[n] unknown amount of currency, some kind of paper money." The officers were wearing pullover vests that said "police" in large letters on the front and back. They stopped the car near the men and Officer Mack got out first. Officer Mack said, "Hang on a second," and "Come here." The men stopped and turned around momentarily. One of the men said, "You know me," and Officer Mack responded, "[Y]eah, I know both of you." Officer Kelly got out of the car and said, "Stop," but the men ran away. Because Officer Mack recognized two of the men, the officers decided not to chase the men. At the conclusion of his redirect examination, Officer Mack summarized the events as follows: A. When I told them to hang on a second, they did. They stopped. They were actually walking at that time. They stopped, turned around. We conversed just for a brief few seconds, and that's when my partner got out and was walking up to them. We could tell they were kind of getting a little antsy and stuff. That's when they, you know, started getting ready to run or whatever. That's when my partner told them to stop.
Q. So Sergeant Kelly told the defendant to stop?
A. Yes.
Q. And did the defendant keep running?
A. Yes.
Q. Did the defendant evade?
A. Yes.
Q. And the defendant knew you were a police officer?
A. Yes.
Issues On Appeal Appellant's Batson Challenge
In his first issue appellant argues that the trial court abused its discretion when it denied his Batson challenge to the State's peremptory strike of prospective juror number two because that prospective juror "was purposely excluded from jury service by the State based on her race." Relevant Facts
Appellant's complaint on appeal relates to the following exchange during voir dire: [Appellant's counsel]: I have a Batson challenge to make for the strike of juror two. . . . Every juror has the right to serve on a panel, and I would just like a race-neutral explanation from the State.
[Prosecutor]: Your Honor, we have, I guess, three separate race-neutral reasons. Number one, when she answered the questions, we were unable to really hear and understand what she was saying because she spoke so softly. Number two, she herself said-one thing that we did hear was she said-that she was a little bit slow and that she wanted to meditate on an answer that was given-a question that was asked during voir dire —
THE COURT: I'm sorry, did she say meditate or medicate? I thought she said medicate.
[Prosecutor]: Well, either way, Your Honor, we found it kind of concerning that that might prolong unnecessarily if she was unable to make a decision. And thirdly, Your Honor, we had concerns that she might not be comfortable in the chairs in the jury box during the course of this trial.
After the prosecutor's response, appellant's counsel did not object or otherwise respond to the prosecutor's proffered reasons for striking prospective juror number two, and the trial court overruled the Batson challenge. Applicable Law and Standard of Review
The Texas Code of Criminal Procedure prohibits the use of peremptory challenges to exclude prospective jurors on the basis of race. Tex. Code Crim. Proc. Ann. art. 35.261 (West 2006). Additionally, striking a prospective juror on the basis of race violates the equal protection guarantees of the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 85 (1986). Resolution of a Batson challenge raised by a defendant is a three-step process: First, the defendant must make a prima facie case that a venire member was peremptorily excluded on the basis of race. Next, the prosecution must come forward with race-neutral reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's explanations. The burden of persuasion remains with the defendant to prove purposeful discrimination. In Purkett v. Elem, the United States Supreme Court explained that "unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral."
Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006) (footnotes omitted). If the State articulated its reason for the challenged peremptory strike and the trial court has ruled on the ultimate issue of intentional discrimination, the issue of whether the defendant established a prima facie case becomes moot and we proceed to review the trial court's ruling. Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009). On appeal, we can overturn a trial court's ruling on a Batson challenge only if the ruling was clearly erroneous. Watkins v. State, 245 S.W.3d 444, 447-48 (Tex. Crim. App. 2008). Analysis
Appellant notes that he raised a Batson challenge and recites a few general propositions of law without any analysis explaining how or why they apply to this case. Nevertheless, assuming without deciding that appellant has adequately briefed this issue for appellate review, because appellant did not raise any challenges or offer any evidence in the trial court in response to the State's race-neutral reasons for striking prospective juror number two, we cannot conclude that the trial court's ruling was clearly erroneous. See, e.g., Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999) ("Noting the absence of any real rebuttal-for example, that no white venire members with similar views were ignored by the State, we cannot hold the trial court abused its discretion in finding that appellant failed to carry [his] burden."); Satterwhite v. State, 858 S.W.2d 412, 424 (Tex. Crim. App. 1993) (holding appellant failed to carry his burden of showing racial discrimination because appellant did not cross-examine prosecutor or offer any evidence to rebut prosecutor's race-neutral explanations); see also Crew v. State, No. 05-08-00959-CR, 2009 WL 2712386, at *4 (Tex. App.-Dallas Aug. 31, 2009, pet. ref'd) (mem. op., not designated for publication) ("Once the State provided its race-neutral explanation for the strike, appellant made no further argument against the explanation such as questioning the prosecutor or offering his own evidence of impermissible motive. Thus, on the record before us we cannot say the trial court's decision to overrule appellant's Batson challenge was clearly erroneous.") (internal citation omitted); Daniels v. State, No. 05-06-01363-CR, 2008 WL 444467, at *5 (Tex. App.-Dallas Feb. 20, 2008, pet. ref'd) (mem. op., not designated for publication) (concluding trial court's ruling denying Batson challenge was not clearly erroneous because "[b]y failing to challenge any of the State's race-neutral reasons for striking the jurors, appellant did not meet his burden of showing the State's explanations were pretextual"). We also note that appellant did not provide this Court with a record indicating the race or ethnicity of any member of the venire panel, including prospective juror number two, and the record does not indicate that appellant asked for the juror information cards to be included in the appellate record. As a result, we have no evidence that would enable us to conclude that the State's strike of prospective juror number two was a pretext for racial discrimination. See, e.g., Wiley v State, No. 14-08-00296-CR, 2009 WL 2568321, at *9 (Tex. App.-Houston [14th Dist.] Aug. 20, 2009, no pet.) (mem. op., not designated for publication) (appellant could not establish trial court committed clear error when it overruled Batson challenge because appellate record "does not indicate the race or ethnicity of any of the venirepersons"). We resolve appellant's first issue against him. Appellant's Motion to Suppress
In appellant's second issue he argues that the trial court erred when it overruled his oral motion to suppress made during trial because "the State failed to prove the reasonableness of the detention." Relevant Facts
During Officer Mack's testimony, and after he testified about witnessing the suspected drug transaction, appellant's counsel asked the trial court "for a hearing on a suppression issue." In response, the trial court excused the jury. Outside the jury's presence, appellant's counsel argued that telling appellant to "stop" constitutes "a seizure under the law," and the evidence of appellant's "being in a high drug area, hanging out, looking like you're doing a drug deal is not reasonable suspicion" to justify the seizure. The trial court denied appellant's motion. Analysis
On appeal, appellant argues that the trial court erred when it denied appellant's motion to suppress because "the evidence showed the investigative detention was not based on articulable facts supporting reasonable suspicion of any criminal activity." In response, the State cites Woods v. State, 153 S.W.3d 413 (Tex. Crim. App. 2005), and argues that appellant's motion to suppress was an improper attempt "to test the sufficiency of the State's evidence to prove the alleged offense." We agree with the State. In Woods, the defendant was convicted of evading arrest or detention. On appeal, he argued that the trial court erred in denying his pre-trial motion to suppress because the arresting officer "had no reasonable suspicion to detain him." See Woods, 153 S.W.3d at 414. In response, the State argued that the officer had reasonable suspicion to detain the defendant for further investigation as well as probable cause to arrest the defendant. The Texas Court of Criminal Appeals, however, concluded that it was unnecessary to address either of the State's arguments because, "[b]y asking for the trial judge to suppress the arrest, and the details of his flight and evasion," the defendant "was in effect asking the trial judge to rule on whether the prosecution had proof of an element of the offense," which is not a proper use of a motion to suppress. The court further explained, [Woods] in essence tried to argue that the prosecution could not prove one of the elements of the crime; the prosecution could not prove the detention that he evaded was lawful. If the trial judge granted the motion for suppression of the flight and ensuing arrest, the State could no longer prosecute Woods for evading detention. [Woods] was asking the judge to rule on whether or not an offense had actually been committed. Woods, 153 S.W.3d at 415-16 (emphasis in original) (footnotes omitted). We conclude that appellant's mid-trial oral motion to suppress in this case was not proper for the same reason the pre-trial motion to suppress in Woods was not a proper use of a motion to suppress. As a result, we conclude that the trial court did not err when it denied appellant's motion. We resolve appellant's second issue against him. The Sufficiency of the Evidence
In his third issue appellant argues that the evidence is legally and factually insufficient to support his conviction for evading arrest because police "did not have reasonable suspicion that criminal activity was taking place." Applicable Law and Standard of Review
A person commits the offense of evading arrest or detention if he "intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him." Tex. Penal Code Ann. § 38.04(a) (West Supp. 2009). An investigative detention is lawful if a police officer has "reasonable suspicion founded on specific, articulable facts which, when combined with rational inferences from those facts, would lead the officer to conclude that a particular person actually is, has been, or soon will be engaged in criminal activity." Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). As a result, we address appellant's sufficiency issue under the Jackson v. Virginia standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 895. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("[A] court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution."). Analysis
Appellant argues that the police did not reasonably suspect that appellant was involved in criminal activity because police "were unable to see any illegal drugs." We disagree. After examining all of the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found that specific, articulable facts known to the officers, combined with the rational inferences they support, warranted the officers' suspicion that appellant was engaged in criminal activity. As a result, we conclude that a rational jury could have found that the attempted detention was lawful. We also conclude that the evidence was sufficient to support appellant's conviction for evading arrest or detention. We resolve appellant's third issue against him. Conclusion
We resolve appellant's issues against him and affirm the trial court's judgment.