Noble v. State

Full title: MAURICE LADALE NOBLE, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jan 26, 2004

No. 05-02-01734-CR (Tex. App. Jan. 26, 2004)

Opinion

No. 05-02-01734-CR.

Opinion issued January 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-71769-IQ. Affirmed.

Before Justices WHITTINGTON, JAMES, and O'NEILL.

OPINION

Opinion By Justice JAMES.

Maurice Ladale Noble appeals his conviction for aggravated assault. A jury found appellant guilty and assessed punishment at confinement for fifteen years. Appellant brings four issues and contends: (1) the court erred in denying his special plea of double jeopardy; (2) the evidence is factually insufficient; and (3) the court erred in overruling appellant's objection to the State's peremptory strike of a black venire member. We affirm the trial court's judgment.

Procedural Background

In late June, 2000, appellant shot James Bowser, Jr. Appellant testified that he indeed shot Bowser, but he argued to the jury the shooting was justified. Appellant was first tried on April 2, 2002 for aggravated robbery. That trial ended when the court declared a mistrial when the jury was unable to return a verdict. While deliberating, the jury informed the court through a written note:

The jury unanimously agree that the defendant is not guilty on the charge of aggravated robbery. We have been split ten to two in disagreement between aggravated assault and self-defense since twelve noon. How long should we continue to deliberate on that issue before claiming hung jury? I don't anticipate ever reaching a unanimous vote.

The court, upon agreement by both the State and appellant, instructed the jury to continue deliberating. The jury returned to deliberations and later sent another note to the court reading: "Our status has not changed. We just revoted and remain split at ten slash two." The court announced it would call the jury back in and discharge them. Neither the State nor appellant objected. The court declared a mistrial. On October 14, 2002, appellant filed his special plea of double jeopardy. He argued the former prosecution was "improperly terminated and should have resulted in an acquittal." He quoted the first two sentences of the first jury note from the former trial. The court did not grant appellant's plea, and the case proceeded to trial on October 15, 2002. At the October 15 trial, appellant was again charged with aggravated robbery. The jury charge also instructed the jury as to the lesser included offense of aggravated assault. The jury returned a verdict finding appellant guilty of aggravated assault. The jury assessed punishment at fifteen years imprisonment.

Factual Background

In late June 2000, appellant shot James Bowser, Jr. Bowser testified that while in the hospital he learned he had been shot six times, once in the abdomen, twice in the spine, and three times in another location. Appellant testified that he indeed shot Bowser, but he argued to the jury the shooting was justified. Bowser had dated Latrisha Ross for a few months early in 2000. Even after they stopped dating, however, Ross would call Bowser from time to time. The day before the shooting, Ross called Bowser, requesting that he come to her house, but Bowser did not go. Ross called several times that day and the next, and Bowser went to Ross's mother's house, where Ross was living. When Bowser arrived, he called Ross and told her he was in front of her house. According to Ross, she and Bowser were still dating at the time of the shooting, but they were not considered a couple. She said, however, she was also dating a man named David Austin, also known as D-Honey. Ross recalled it was likely both appellant and Austin were at her mother's house with her that night. Appellant was there waiting to get some marijuana, but he did not have transportation. Ross came out of the house and got into Bowser's car. A man, appellant, approached the car behind Ross. Ross asked Bowser to give appellant a ride, and Bowser agreed. Appellant got into the back seat. Bowser testified he had not seen appellant before this meeting, but Ross identified appellant as the man who had been in the back seat. Ross testified she thought Bowser had been present before when appellant was present, but was not certain if the two had actually met. Bowser began to drive, and after passing one stop sign, he felt a gun at his head. According to Bowser, appellant was holding a gun to Bowser's head and directing him where to drive. According to Ross, after Bowser missed a turn, he began to go around the block to come back to the street and at that time appellant pulled his gun out, pointed it at Bowser, and instructed Bowser to stop. Bowser believed the gun to be a revolver. Ross, sitting in the front passenger seat, began screaming and asking what was happening. After going around the block, they arrived near Ross's mother's house, Bowser saw another man leave the house and approach the car. Ross also saw the man approach the car; he was carrying a gun and a pair of handcuffs. Neither Bowser nor Ross were able to identify this man. All three men began struggling, and the man outside the car tried to put handcuffs on Bowser. Fearing he was about to be kidnaped or killed, Bowser began to drive away quickly. Ross continued screaming and struggled with Bowser to put the car in park. She was unable to move the gear shift; however, she proceeded to jump out of the car. Bowser accelerated, trying to wreck, thinking if he wrecked, the man in the back seat-appellant-might be injured and thus unable to shoot Bowser. Bowser testified he never made a threatening gesture toward appellant. The car continued down the street before hitting a pole and coming to a stop. Bowser did not know if he lost control of his car after or before being shot. Bowser only recalled, "It was just like boom. And the next thing I know I was sitting there and the guy was asking for my jewelry, and that was that." Bowser testified he removed his ring and necklace and gave them to appellant. However, a photo revealed Bowser's ring laying on the passenger seat. Bowser guessed appellant dropped the ring after Bowser gave it to him when he was exiting the car. Bowser did not recall how appellant exited the car. After Ross heard the gunshots, she saw a dark figure approaching her. She got up and ran away. Still conscious in the car, Bowser saw someone after the wreck, to whom he told Ross knew what had happened. Bowser did not remember how many times he was shot, but while in the hospital, he learned he had been shot six times, once in the abdomen, twice in the spine, and three times in another location. As a result of being shot, Bowser is unable to walk. Appellant testified, first through a transcript of an earlier trial and later during live testimony. Appellant stated he had met Bowser months before the night of the shooting and he had bought "dope" from Bowser. He said he had no plan to rob anyone that night. Appellant was carrying a 9mm Glock, a semi-automatic handgun, when he got into Bowser's car, but he said he had planned to trade the gun plus money for drugs he would obtain from Bowser. Appellant's chronicle of events differed from Bowser and Ross's. According to appellant, Bowser came to the house so appellant could buy some crack cocaine from him. Appellant stated that once they drove away from the house, he remained in the back seat uninvolved while Bowser went around the block. Appellant testified he did not give directions and that Ross and Bowser were arguing in the front seat. However, when requested to do so, appellant read his testimony from the prior trial in which he stated no one was listening to his instructions. When confronted with the discrepancy, appellant stated he could not remember. Once the car returned to near Ross's mother's house, according to appellant, Ross and Bowser began struggling over the gear shift. At that point, appellant stated D-Honey ran from the house, opened Bowser's door, and began hitting him. Ross then began screaming, but she did not make the situation appear serious. Appellant claimed that based on this behavior, he believed Ross and D-Honey were about to rob Bowser. Appellant stated he was unable to exit the car due to child-proof locks. He began going from one side of the car to the other, and Bowser began driving forward. Ross jumped out of the car, and appellant heard Bowser speaking. Appellant stated he saw Bowser reach toward the passenger seat, and that Bowser was known for keeping a gun under the passenger seat. Appellant stopped moving from side to side in the back seat and began shooting. Appellant said he was scared Bowser was going to shoot him. In discussing the shooting, appellant stated he shot Bowser and thought the bullets went through the seat. Appellant did not remember how many times he shot his gun. When asked by the State, appellant said he did not remember why it was necessary for him to fire six times. In discussing the shell casings, appellant surmised the casings must have ejected out the front window. Appellant claimed he shot Bowser as Bowser was leaning towards the passenger seat and while appellant held the gun between his legs. The car hit a pole, and appellant ducked down onto the rear floorboard. The driver's side door opened, and appellant jumped over the front seat and climbed out of the driver's side door. Appellant stated when he left the car, Bowser was slumped over in the passenger seat. Appellant recalled having seen the necklace on Bowser earlier in the car, but he did not see the necklace on Bowser when leaving the car. After getting out of the car, appellant ran towards his home, and he saw D-Honey and Ross standing at the corner near Ross's mother's house. Appellant said he ran home, got his phone, and prepared to call the police when he "heard them coming" so he called his grandmother to pick him up. During live testimony, appellant stated that while running, he threw the gun towards an alleyway. Detective Theodore Weissenborn, however, testified that when appellant called him less than two months after the shooting, he said he shot Bowser and left the gun in Bowser's car. Detective Weissenborn also stated appellant had said in that phone call he shot Bowser because Bowser was trying to abduct appellant over some drug money. Appellant claimed, however, that when he called the detective, he only stated he would turn himself in the next week. Appellant testified he said nothing more during a phone conversation with the detective. In discussing Bowser's gun ownership, Ross testified she had seen Bowser with a handgun. She also stated it was likely he carried the gun in his car. However, Ross stated she did not see Bowser with a gun the night of the shooting. Detective Dan Wojcik testified he found no bullet holes in the car and found no shell casings. Also, Detective Wojcik testified he was able to gain entry to the backseat through the back doors without unlocking the doors. According to Detective Wojcik, when fired, a revolver does not eject casings although a semi-automatic handgun does. Detective Wojcik found no weapon inside the vehicle.

Double Jeopardy

In appellant's first and second issues, he complains the court erred by not granting his special plea of double jeopardy. In his first issue, appellant complains under the United States Constitution. Appellant raises complaints under the Texas Constitution and the code of criminal procedure in his second issue. However, appellant does not contend the two constitutions differ regarding his analysis, and he presents only one argument. Therefore, we resolve his second issue against him and address the argument as raised in issue one under the federal constitution. See Ex parte Granger, 850 S.W.2d 513, 515 n. 6 (Tex.Crim.App. 1993). The double jeopardy clause of both the Fifth Amendment and article 1, section 14 of the Texas Constitution "protect a criminal defendant from repeated prosecutions for the same offense." Illinois v. Vitale, 447 U.S. 410, 415 (1980); Ex parte Peterson, 117 S.W.3d 804, 810 (Tex.Crim.App. 2003) (per curiam) (citing Oregon v. Kennedy, 456 U.S. 667, 671 (1982); Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996)). However, neither a jury's failure to reach a verdict nor the trial court's mistrial declaration resulting from a hung jury serves as an event terminating the original jeopardy. Richardson v. United States, 468 U.S. 317, 325-26 (1984); Ex parte McAfee, 761 S.W.2d 771, 772-73 (Tex.Crim.App. 1988). The original jeopardy that attached when the first trial began continues unless the trial court discharges the jury without manifest necessity for doing so. Richardson, 468 U.S. at 323-24; McAfee, 761 S.W.2d at 774. Appellant, however, contends the present case is distinguishable from that involving merely a hung jury. He argues that the note the jury sent to the court during deliberations should serve as an acquittal of the charge of aggravated robbery-as an informal verdict. If he was acquitted in the former trial, he argues his special plea of double jeopardy should have been granted to protect him from being tried for the same charge of aggravated robbery in the second trial. The key issue, then, is whether the note sent by the jury to the court constituted an informal verdict. The code of criminal procedure provides for procedures to follow when an informal verdict is entered by a jury. See Tex. Code Crim. Proc. Ann. Art. 37.10 (Vernon 1981). Appellant directs us to two cases discussing article 37.10: Antwine v. State, 572 S.W.2d 541 (Tex.Crim.App. 1978), and Cardona v. State, 957 S.W.2d 674 (Tex. App.-Waco 1997, no pet.). In both cases, the jury sent notes to the court, and the notes were determined not to count as an informal verdict. In Antwine, the jury sent a note stating they were "hopelessly deadlocked" and requesting to reopen evidence. Antwine, 572 S.W.2d at 542. The court determined the note was not plainly intended as a verdict or an acquittal and therefore did not consider the note to meet the definition of an informal verdict under the code of criminal procedure. Id. at 543; see Tex. Code Crim. Proc. Ann. art. 37.10 (Vernon 1981). In Cardona, the jury note was likewise not considered an informal verdict. Cardona, 957 S.W.2d at 677. The facts in Cardona are similar to those before us today. In Cardona, the charge was murder, and the jury was instructed on the lesser included offense of manslaughter. Id. At 675. During deliberations, the jury sent a note to the court; the note read as follows: "We have discussed at length, no apparent common verdict can be reached. We seek your advice. We are struggling between manslaughter and not guilty. The vote is seven to five." Id. After an Allen charge, the jury sent a note informing the court they were deadlocked, and the judge confirmed with the jury that they considered themselves to be "hopelessly deadlocked." Id. The judge declared a mistrial, and Cardona was later retried again under the charge of murder with the lesser included offense instruction again being given to the jury. Id. In the subsequent trial, the jury found Cardona guilty of manslaughter. Id. In determining whether the note sent by the jury in Cardona's first trial constituted an informal verdict, the Waco court analogized the case to that in State ex rel. Hawthorn v. Giblin, 589 S.W.2d 431 (Tex.Crim.App. [Panel Op.] 1979). In Hawthorne, the jury note stated the jury had voted 12-0 on attempted murder and were deadlocked at 6-6 on the lesser included charge of aggravated assault. Id. at 432. Upon the prosecutor's request, the court inquired as to whether the 12-0 vote reflected a vote of guilty or not guilty. Id. The jury returned a note stating they had voted 12-0 in favor of not guilty. Id. The court declared a mistrial, and the court of criminal appeals concluded, "The jury's obvious deadlock on the aggravated assault charge leads us to the conclusion that these communications were intended merely as reports on the jury's progress toward a verdict. Certainly, we cannot conclude that these communications were plainly intended to operate as an acquittal." Id. at 433. Appellant argues the note sent in his case differs from those in Antwine and Cardona. Having reviewed the facts in Cardona, however, and turning also to the court of criminal appeals analysis in Hawthorne, we fail to see pertinent differences between those cases and the one before us. Furthermore, appellant offers no argument explaining how the present note differs from that in Cardona. We conclude, therefore, that the note in this case was meant as a report on the jury's progress and was not plainly intended to operate as an acquittal. See id.; see also Zavala v. State, 956 S.W.2d 715, 718-19 (Tex. App.-Corpus Christi 1997, no pet.); Pullin v. State, 827 S.W.2d 1, 2-3 (Tex. App.-Houston [1st Dist.] 1992, no pet.) ("A verdict, however, is not complete until all submitted issues are resolved by the jury."). Appellant also raises arguments under Konchar v. State, 938 S.W.2d 500 (Tex. App.-Tyler, 1996, no pet), and Murphy v. Puckett, 893 F.2d 94 (5th Cir. 1990). These cases are inapposite: both involve actual convictions occurring before the later trial. Appellant was not convicted in the first trial of either charge. We reject appellant's arguments under both Koncher and Murphy. Because no verdict was entered in the first trial-neither formal nor informal-we hold the court did not err in denying appellant's special plea of double jeopardy. See Richardson, 468 U.S. at 325-26 (1984); Ex parte McAfee, 761 S.W.2d at 772-73. We resolve appellant's first and second issues against him.

Factual Sufficiency

In his third issue, appellant argues the evidence was factually insufficient to support his conviction. Appellant admitted to shooting Bowser. However, he claimed he was justified in doing so. By convicting appellant, the jury inherently rejected appellant's claim of justification. Appellant argues the testimony presented by the State was less reliable than his own testimony and that his version of events is more plausible.

Standard of Review

In reviewing the factual sufficiency of the jury's rejection of self-defense, the appellate court "reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The jury is the sole judge of the facts, the witnesses' credibility and the weight to be given to the evidence. Clewis, 922 S.W.2d at 129. Accordingly, the jury may choose to believe or not to believe any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997).

Applicable Law

A person commits aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. § 22.02 (Vernon 2003). A firearm is a deadly weapon per se. See id. § 1.07(a)(17)(A). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. See id. § 9.31. Motive is not a required element in a criminal case and need not be proved to sustain a conviction. Bush v. State, 628 S.W.2d 441, 444 (Tex.Crim.App. 1982).

Discussion

As part of his factual sufficiency challenge, appellant argues his version of the events was more credible than other testimony provided at trial. Appellant first contends Bowser's testimony was not credible because he is a convicted felon and drug user and dealer. However, the jury was free to believe or disbelieve any witness, and we give the jury's determinations great deference. See Johnson, 23 S.W.3d at 8. What is more, we note appellant also testified that he sold drugs; he claimed to be meeting Bowser that night to purchase drugs from him. While he stated he did not use drugs, the jury was free to disbelieve this testimony. Appellant also argues Ross's testimony is not reliable because she is an accomplice witness. However, Ross testified she was not involved, and Detective Weissenborn testified he did not have sufficient evidence to make a case on Ross; Bowser's speculation she was involved was inadequate to file charges. The jury was free to believe Ross's testimony if they so chose. Appellant also argues that because the jury did not convict appellant of aggravated robbery, they completely rejected the theory of robbery as a motive for the aggravated assault. He states there could be no basis for the jury to conclude appellant committed the aggravated assault. The State, however, is not required to prove motive for a jury to reach a verdict of guilty. See Bush, 628 S.W.2d at 444. Furthermore, the jury was instructed separately on the charges of aggravated robbery and aggravated assault. They were to consider the elements of aggravated assault if they did not find from the evidence beyond a reasonable doubt that appellant was guilty of aggravated robbery. The jury was also instructed on appellant's justification claim: that appellant's use of force was justified if he believed he was under attack or attempted attack from Bowser and that he reasonably believed that the force he used was immediately necessary to protect himself against Bowser's attack or attempted attack. The jury, as fact finder, was the exclusive judge of the witnesses' credibility and the weight to give their testimony. Appellant admitted to shooting Bowser. The only issue was whether the jury believed he was justified in doing so. The jury was free to reject appellant's claim that Bowser moved for a weapon, that such movement created in appellant the belief that the force he used was immediately necessary to protect himself, or that Bowser ever moved for a gun. Moreover, Ross's testimony supports that of Bowser: that appellant pulled his gun out before the car arrived back at Ross's mother's house-before appellant alleged Bowser made any threatening gesture toward appellant. We conclude the State's evidence taken alone is not too weak to support the finding; furthermore, the proof of appellant's guilt is not against the great weight and preponderance of the evidence. See Zuliani, 97 S.W.3d at 595. We resolve appellant's third issue against him.

Batson

In appellant's fourth issue, he contends the court erred by overruling his objection to the State's peremptory strike of a black jury panel member. See Batson v. Kentucky, 476 U.S. 79, 96 (1986). A three-step burden-shifting analysis applies to an accused's race-based Batson challenge. The first step requires the accused to object to the peremptory strike of the venire member: the accused must make a prima facie showing of racial discrimination, which is a burden of production, thereby raising an inference that the prosecutor peremptorily struck a venire member because of his race. Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999). Thus, to preserve a Batson error, a defendant must object to the State's use of its peremptory challenges. The jury panel was retired from the courtroom while the parties formed their strike lists. After the parties submitted their strike lists to the court, the court initiated an exchange during which it asked the State about three peremptory strikes it had made. The State discussed two of these specifically. Then the following took place:

COURT: Anything else from the Defense?

DEFENSE: One second.

COURT: Batson Relief Denied.

DEFENSE: No, Your Honor.

COURT: Okay, Bring them in. . . .

We have examined the record and find no timely objection by appellant to the State's use of its peremptory strikes-neither before nor after the above exchange. Thus, the complaint is not before us for review. We resolve appellant's fourth issue against him. We affirm the trial court's judgment.