Opinion
No. 05-01-00069-CR.
Opinion issued July 2, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F00-02218-LK. AFFIRMED.
Before Justices MORRIS, O'NEILL, and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F00-70483-NI, F00-70763-SI. AFFIRMED.
Before Chief Justice THOMAS and Justices FRANCIS and LANG.
OPINION
In this case, Terrance Lejuan Rembert challenges his capital murder conviction. He complains of alleged trial court error in seven issues. Concluding the trial court did not reversibly err, we affirm the trial court's judgment. Appellant's first complaint pertains to the jury selection phase of trial. He asserts that the trial court erred by allowing the State to exercise a peremptory strike against a black prospective juror. 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, there is a three-step process for evaluating an objection to peremptory strikes. Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory strikes on the basis of race. Second, the burden then shifts to the prosecutor to articulate a race-neutral explanation for the strikes. Id. at 358- 59. The State's explanation need not be persuasive or even plausible. See Bausley v. State, 997 S.W.2d 313, 316 (Tex.App.-Dallas 1999, pet. ref'd) (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)). It will be deemed to be race neutral unless its discriminatory intent is inherent. Id. Third, the defendant must then rebut the State's explanation or show that the explanation was merely a pretext. The defendant has the ultimate burden to establish for the trial court that the allegation of purposeful discrimination is true. Id. In reviewing a Batson objection, we examine the record in the light most favorable to the trial court's ruling and reverse only when the ruling is clearly erroneous. See id. at 315. In this case, appellant objected during jury selection that the State exercised a peremptory strike against prospective juror Echols, a black woman. The prosecutor asserted that she struck Echols because she was "associated with a murder victim." This explanation was, on its face, race neutral. Defense counsel did not cross-examine the prosecutor or offer any evidence to show that this explanation was a pretext for racial discrimination. Thus, he failed to meet his burden of proving purposeful discrimination. We conclude the trial court did not err in overruling appellant's Batson objection. See Ramirez v. State, 976 S.W.2d 219, 226 (Tex.App.-El Paso 1998, pet. ref'd). We resolve appellant's first issue against him. In his second issue, appellant complains the trial court erred by failing to suppress his confession. Appellant contends the confession should have been suppressed because the police violated Texas Code of Criminal Procedure article 14.06 after his arrest. Article 14.06 provides that the person making an arrest shall take the person arrested before a magistrate "without unnecessary delay." See Tex. Code Crim. Proc. Ann. art. 14.06(a) (Vernon Supp. 2003). The magistrate then is required to advise the suspect of the charge against him and of his Miranda rights. See id. arts. 14.06(a), 15.17(a). The failure to take an arrested person before a magistrate in a timely manner will invalidate a confession if the accused proves there is a causal connection between the State's failure to take him before a magistrate and the confession. See Cantu v. State, 842 S.W.2d 667, 680 (Tex.Crim.App. 1992). It is well-settled law, however, that an unreasonable delay in presenting an arrestee before a magistrate will not vitiate an otherwise voluntary confession if the arrested person was properly advised of his Miranda rights. Id. Here, the record shows appellant was kept in police custody for approximately seven hours after his arrest before he was taken to a magistrate, despite the fact that magistrates were available. Nevertheless, the record also shows appellant was properly advised of his Miranda rights both orally and in writing before he gave his confession. Thus, even assuming the delay in taking appellant before a magistrate was unreasonable, we cannot conclude the delay alone tainted appellant's confession. Appellant contends the fact that the State offered no justification for the delay, coupled with the fact that magistrates were readily available, suffice to show the delay caused him to confess. We disagree. Appellant was advised of his Miranda rights before he gave his confession. He never claimed at trial that the confession resulted from the State's failure to take him before a magistrate in a timely fashion. And the mere fact that his Miranda rights were delivered by a police officer, rather than a magistrate, does not show that the resulting confession was coerced. The trial court did not err in denying appellant's motion to suppress. We resolve appellant's second issue against him. Next, appellant contends the trial court erred by overruling his hearsay objection. Appellant's complaint arises from the following exchange between the prosecutor and the investigating officer: Q. And in speaking with Frank Shaw Ellis, were you able to develop a suspect list? [Defense Counsel]: Your Honor, I'm going to object to hearsay. The answer clearly calls for hearsay. THE COURT: Overruled. A. Yes sir. We were able to develop a suspect at that time. Any error in admitting this testimony was harmless. Even assuming the question indirectly conveyed that the officer determined appellant was a suspect in the capital murder, the testimony did not adversely affect appellant's defense. Appellant admitted at trial and in his confession that he was the person who shot the two victims, though he claimed at trial that one of the shootings was accidental. In light of the fact that appellant admitted to shooting the two victims, evidence that he was a suspect for the shootings could not have harmed him. Any nonconstitutional error that does not affect the appellant's substantial rights must be disregarded. Tex.R.App.P. 44.2(b). We therefore resolve appellant's third issue against him. In appellant's fourth and fifth issues, he complains the trial court erred by failing to define the terms "same criminal transaction" and "same scheme and course of conduct" in the jury charge. A person commits capital murder if he murders more than one person during the same criminal transaction or during different criminal transactions but pursuant to the same scheme or course of conduct. See Tex. Pen. Code Ann. § 19.03(a) (Vernon 2003). At trial, appellant requested jury instructions defining "same criminal transaction" and "same scheme and course of conduct" in accordance with cases decided by the Texas Court of Criminal Appeals. The trial court denied the request. Words that are not statutorily defined do not require a definition in the jury charge; these words are to be given their common, ordinary, or usual meaning. See Moore v. State, 82 S.W.3d 399, 408 (Tex.App.-Austin 2002, pet. ref'd). Jurors may then give the words any meaning acceptable in common parlance. See Medford v. State, 13 S.W.3d 769, 771-72 (Tex.Crim.App. 2000). One exception to this rule applies to terms "which have a known and established legal meaning, or which have acquired a peculiar and appropriate meaning in the law, as where the words used have a well-known common law meaning." Id. at 772. At trial, appellant requested jury instructions defining "same criminal transaction" in accordance with Heiselbetz v. State, 906 S.W.2d 500 (Tex.Crim.App. 1995), and defining "scheme or course of conduct" in accordance with Corwin v. State, 870 S.W.2d 23 (Tex.Crim.App. 1993). Neither of these cases provides an actual definition of the "same criminal transaction" or "scheme or course of conduct." The trial court denied appellant's requests. In Heiselbetz, the court of criminal appeals held evidence proving "same criminal transaction" is legally sufficient if it shows there was a "continuous and uninterrupted chain of conduct occurring over a very short period of time, and that both killings occurred in a rapid sequence of unbroken events." 906 S.W.2d at 506 (quoting Vuong v. State, 830 S.W.2d 929, 941 (Tex.Crim.App. 1992)). In Corwin, the appellant argued that the phrase "same scheme or course of conduct" was unconstitutionally vague. 870 S.W.2d at 27. The Court of Criminal Appeals discussed the fact that the sponsors of the capital murder statute indicated that the "same scheme or course of conduct" subsection was meant to embrace "serial" murders. See id. at 28. Nevertheless, the court did not define the term in any way. Instead, it looked to dictionary definitions of the relevant words and concluded the statute was not unconstitutionally vague as applied to the appellant. See id. Given that the court of criminal appeals did not define "same scheme or course of conduct" in Corwin, and instead examined the phrase's meaning based on definitions in a dictionary, we cannot say that the trial court erred by refusing to include a definition of the term, in accordance with appellant's trial request, "that would encompass serial murders as defined in the Corwin case." See Corwin, 870 S.W.2d at 28. As for appellant's request that the trial court define "criminal transaction" in accordance with the Heiselbetz opinion, we do not believe this term has such a specialized legal definition that it requires a jury instruction defining it based on what the courts, rather than the legislature, have said it means. We resolve appellant's fourth and fifth issues against him. Finally, in his sixth and seventh issues, appellant complains the trial court erred by not requiring the jury to reach a unanimous verdict and in refusing to require the State to elect between the first and second paragraphs of the indictment. The indictment alleged appellant committed capital murder two different ways: (1) by causing the death of the two victims during the same criminal transaction and (2) by causing the death of the first victim and then causing the death of the second during a different criminal transaction but pursuant to the same scheme and course of conduct. An indictment may contain as many separate paragraphs charging the same capital murder as are necessary to meet the contingencies of the evidence. See Graham v.State, 19 S.W.3d 851, 853 (Tex.Crim.App. 2000). In this case, although the State alleged different theories in the two paragraphs, the indictment alleged only one offense — a capital murder. See id. at 854. Where alternative theories of committing the same offense are submitted to the jury disjunctively, it is proper for the jury to return a general verdict if there is sufficient evidence to support a conviction under any of the theories alleged. Neither the federal nor the state constitution requires the jury to reach a unanimous agreement on alternative factual theories offered by the State to support a conviction. Price v. State, 59 S.W.3d 297, 301 (Tex.App.-Fort Worth 2001, pet. ref'd). Thus, the State in this case could not be forced to elect between the two alternative paragraphs, and the trial court was not required to instruct the jury that it had to agree unanimously on only one of the paragraphs alleged. See Williams v. State, 830 S.W.2d 303, 304 (Tex.App.-Houston [14th Dist.] 1992, no pet.). In Kitchens v. State, 823 S.W.2d 256 (Tex.Crim.App. 1991), the Texas Court of Criminal Appeals held that a trial court does not err by submitting to the jury alternative theories of committing capital murder, which had been alleged in separate paragraphs of the indictment, without requiring the verdict to be unanimous on a single theory. See id. at 258. Appellant contends his case is distinguishable from Kitchens because in his case, "the allegations of the two paragraphs are totally inconsistent" and he "cannot be guilty of both paragraphs." Appellant offers no authority to illustrate the import of this distinction. Because there is no constitutional requirement that the jury reach agreement on the "preliminary factual issues which underlie the verdict," we conclude appellant's case is not distinguishable from Kitchens. See id. (quoting Schad v. Arizona, 501 U.S. 624 (1991)). We resolve appellant's sixth and seventh issues against him. We affirm the trial court's judgment.
Miranda v. Arizona, 384 U.S. 436 (1966).
Appellant does not complain that he did not understand the Miranda warnings he was given.
We note that the appellant's complaint in Vuong was that the "same criminal transaction" subsection of the capital murder statute was unconstitutionally vague. The court stated that because the appellant had "killed the two victims in a continuous and uninterrupted chain of conduct occurring over a very short period of time" and "both killings occurred in a rapid sequence of unbroken events," "[e]ven the most narrow construction of the term `same criminal transaction' would include the type of actions" the jury determined the appellant had committed. 830 S.W.2d at 941 (emphasis added). This analysis seems to indicate that the term "same criminal transaction" could encompass a broader range of activity than that committed by the appellant in Vuong. But see, e.g., Feldman v. State, 71 S.W.3d 738, 752 (Tex.Crim.App. 2002) (noting that although the legislature has not defined "same criminal transaction," the court of criminal appeals has "interpreted" the phrase to mean "a continuous and uninterrupted chain of conduct occurring over a very short period of time . . . in a rapid sequence of unbroken events").
OPINION
David Garcia waived a jury trial and entered negotiated guilty pleas to deadly conduct (cause no. 05-01-01408-CR) and burglary of a habitation (cause no. 05-01-01409-CR). See Tex. Pen. Code Ann. §§ 22.05, 30.02 (Vernon 2003). Pursuant to the plea bargain agreements, the trial court sentenced appellant to ten years' confinement, probated for ten years, and assessed fines of $1000 and $500, respectively. Subsequently, the trial court revoked appellant's probation and assessed punishment at ten years' confinement in each case and $1000 and $422.25 fines, respectively. In a single point of error, appellant contends the evidence is insufficient to support the revocations of his probation. We will affirm. Appellate review of a probation revocation is limited to a determination of whether the trial court abused its discretion. We examine the evidence in the light most favorable to the trial court's findings. See Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984); Lee v. State, 952 S.W.2d 894, 897 (Tex.App.-Dallas 1997, no pet.) (en banc). The State must prove by a preponderance of the evidence that the probationer violated the terms and conditions of his probation. See Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993); Lee, 952 S.W.2d at 897. In a revocation proceeding, the trial judge is the sole trier of the facts, credibility of the witnesses, and the weight to be given the testimony. See Lee, 952 S.W.2d at 897. Appellant was placed on probation on July 27, 2000, and numerous conditions of probation were imposed. On December 12, 2000, the State filed motions to revoke probation alleging appellant (1) committed a new offense of aggravated robbery; (2) failed to report; (3) failed to pay probation fees; (4) failed to pay restitution; and (5) failed to report for the comprehensive assessment and treatment services (C.A.T.S.) program. At the June 14, 2001 hearing on the motions, appellant testified he discussed all of the allegations in the State's motions with counsel, and he understood that if any one of the allegations was proven true by a preponderance of the evidence, the trial judge could revoke his probation and sentence him to imprisonment in each case. Appellant testified he was pleading not true to the aggravated robbery allegation and true to the remaining four allegations. Appellant further testified he voluntarily signed a stipulation of evidence admitting he violated the terms of his probation by failing to report to his probation officer, pay fees and restitution, and by not reporting for the C.A.T.S. program. The trial judge took judicial notice of the stipulation of evidence, and made a finding that appellant violated four terms and conditions of his probation. Appellant does not challenge the sufficiency of the evidence to support these four violations. He only challenges the sufficiency of the evidence regarding the aggravated robbery allegation. Proof of one violation is sufficient to support revocation. See Lee, 952 S.W.2d at 897. We conclude the evidence is sufficient to show appellant violated four conditions of his probation. Therefore, the trial court did not abuse its discretion in revoking appellant's probation in both cases. See Cobb, 851 S.W.2d at 874; Lee, 952 S.W.2d at 901. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment in each case.