Morgan v. State

Full title: THOMAS GERALD MORGAN, Appellant, v. THE STATE OF TEXAS, Appellee

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

Date published: Apr 28, 2006

No. 05-05-00473-CR (Tex. App. Apr. 28, 2006)

Opinion

No. 05-05-00473-CR

Opinion Filed April 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-52716-SM. Affirm.

Before Justices WHITTINGTON, BRIDGES, and RICHTER.

OPINION

Opinion By Justice RICHTER.

In this appeal from a jury conviction for aggravated robbery, Thomas Gerald Morgan contends his counsel was ineffective and the trial judge erred in overruling his objection to certain testimony and to the State's use of peremptory challenges during jury selection. We affirm.

Background

Morgan was arrested after robbing his landlord Jerry Lunsford of over $3000 in cash and stabbing him multiple times. He was arrested in a "high crime, high drug area" about a mile from the scene and had "large sums of cash" and a "bloody knife" on him. At trial, Morgan did not dispute robbing Lunsford or stabbing him, but maintained the stabbing was in self-defense after Lunsford struck him with a hammer.

Jury Selection

In his first point of error, Morgan complains of the State's striking venire members 10, 12, 14, 31, 43, and 45 during jury selection. These venire members were all African-American and comprised sixty percent of the State's peremptory strikes. Arguing the State struck them because of their race in violation of Batson v. Kentucky, 476 U.S. 79 (1986), Morgan objected at trial to their being stricken. The trial judge, however, overruled Morgan's objection based on the prosecutor's response that he (a) struck venire members 12, 31, 43, and 45 because they listed rehabilitation as the primary purpose of punishment in their juror questionnaire, (b) struck venire member 10 because she had a funeral the following day and had a family member who had "committed burglary," and (c) struck venire member 14 because she had a "close friend" who had been convicted of involuntary manslaughter and "received jail time and probation." Morgan argues now the State's explanations were "a sham and pretext" and his conviction should be reversed because the judge should have sustained his Batson objection. 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. Batson, 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 Morgan established the venire members in question were all African-American, the prosecutor proffered his explanations for striking them: (a) believing rehabilitation is the primary purpose of punishment, (b) having a funeral the next day and a family member who was convicted of burglary, and (c) having a "close friend" who was convicted of involuntary manslaughter. These explanations are all void of any racially discriminatory intent. See, e.g., Vargas v. State, 838 S.W.2d 552, 555 (Tex.Crim.App. 1992) (having relatives arrested or convicted race-neutral reason); Harper v. State, 930 S.W.2d 625, 634 (Tex.App.-Houston [1st Dist.] 1996, no pet.) (favoring rehabilitation as primary goal of punishment race-neutral reason). The burden then shifted to Morgan to rebut these explanations or show they were merely a pretext or a sham. Morgan, however, presented no additional evidence, did not cross-examine the prosecutor about any of the proffered reasons, and challenged only the State's reason for striking venire member 14, stating as follows

I would submit [the prosecutor's] reason on Number 14, that she has a friend that was given 10 years total jail time and probation on [in]voluntary manslaughter, would not rise to the level of not wanting somebody on this jury, especially in mind when . . . Juror Number 14 talks about her best friend being a police officer. She also states after answering that question about — about her friend getting jail time with probation, she also answers would any of this contact with the criminal justice system be unfair. She answers no. So I believe the — [prosecutor's] response is a thinly veiled attempt at trying to knock jurors off the jury due to race.

When the prosecutor responded to that argument by listing other non African-American venire members who were struck "for violent crimes," Morgan merely replied

Ten strikes, Your Honor. Six were used on African-Americans. Sixty percent of the State's strikes were African-Americans. There's one on this panel, and I just don't think that's a good cross-section. I will rest on my Batson.

Although sixty-percent of the State's strikes were of African-American venire members and Morgan may have felt the venire members left to serve on the jury was not "a good cross-section," Morgan failed to show disparate treatment or any evidence that the State's reasons were a pretext for racial discrimination. Given the record before us, we conclude Morgan 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 overrule Morgan's first point of error.

Evidentiary Ruling

In his second point of error, Morgan asserts the trial judge erred in overruling his objection to a portion of the arresting officer's testimony. Specifically, Morgan complains about testimony that he was arrested in a "high crime, high drug area." Morgan maintains this evidence was "irrelevant [and] prejudicial" and "deprived him of a fair trial." 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;); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990); Martin v. State, 176 S.W.3d 887, 897 (Tex.App.-Fort Worth 2005, no pet.). Because the erroneous admission 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 Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). In making this determination, we consider the entire record including the nature of the evidence to support 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 find 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. We need not determine whether the admission of the complained-of testimony in this case was error because we conclude that it did not affect Morgan's substantial rights. As stated, Morgan did not dispute robbing Lunsford and admitted stabbing him. The sole issue at trial was whether he acted in self-defense, and the complained-of evidence does not impact this issue. Moreover, the arresting officer's testimony that the area where Morgan was arrested was a "high crime, high drug area" was a very small portion of his testimony and the State did not emphasize it in its closing argument or reference it elsewhere. Given the record before us, we conclude any error in admitting that portion of the officer's testimony did not influence the jury or had but a slight effect. We overrule Morgan's second point of error.

Ineffective Assistance of Counsel

In his third point of error, Morgan asserts he was denied effective assistance of counsel. Specifically, he asserts his counsel was ineffective for failing to object to the following italicized portion of the prosecutor's cross-examination of him

Q. So you were just protecting yourself, you claim?

A. Yes, I was.

Q. And for some reason because you were scared, you just decided to take the money?

A. Yes, I did.

Q. And you've talked with your attorney about what the the portion that you're admitting to in court today, haven't you?

A. Yes, ma'am.

Q. You remember him asking you — you're telling this jury, okay, you're guilty of theft from a person. You said that earlier. Do you remember your attorney asking you that question?

A. Yes, ma'am.

Q. And you've talked to him about that and what type of felony offense that is; is that right?

A. Yes, ma'am.

Q. And in fact robbery, just plain robbery is a lesser offense than aggravated robbery. You've talked about that and you understand that; is that right?

A. Correct.

Morgan argues these questions violated the attorney-client privilege and his counsel's failure to object to these questions harmed him by "allowing" the prosecutor during closing argument to rely on this testimony to convey a message that Morgan discussed with his attorney what concessions to make because he was "looking for the easiest way out" after being "caught" with "large sums of cash" and a "bloody knife." Morgan maintains but for counsel's failure a reasonable probability exists that the result of the trial would have been different. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999). To establish deficient performance, the appellant must show that counsel's actions did not result from strategic design and fell below "prevailing professional norms." See Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000); Thompson, 9 S.W.3d at 814. To establish prejudice, the appellant must show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Cardenas, 30 S.W.3d at 391. In determining whether counsel provided effective assistance, we look to the totality of the representation and strongly presume counsel's competence. Thompson, 9 S.W.3d at 813. We do not judge counsel's trial decisions in hindsight and will find counsel was ineffective only if the claim is firmly founded in the record. Id.; Goodrich v. State, 156 S.W.3d 141, 150 (Tex.App.-Dallas 2005, pet. ref'd). Without the required showing of deficient performance or sufficient prejudice, the presumption of reasonable counsel will not be overcome. Thompson, 9 S.W.3d at 813. We need not determine whether counsel's performance here was deficient because even assuming it was, Morgan has not shown any prejudice.¹ Although Morgan argues he was harmed by counsel's failure to object to matters protected by the attorney-client privilege, he provides no substantive analysis or record references in support of his contention, and we fail to see any harm. Because Morgan has failed to show any prejudice, we cannot conclude he has overcome the presumption of reasonable counsel nor established that his counsel was ineffective. See, e.g., Cardenas, 30 S.W.3d at 391 (appellant's claim of ineffective assistance overruled where appellant failed to develop any argument as to how outcome would have been different if counsel had lodged certain objection). We overrule Morgan's third point of error. We affirm the trial court's judgment.