Opinion
No. 11-07-00051-CR
Opinion filed December 4, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 385th District Court Midland County, Texas, Trial Court Cause No. CR32192.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
The jury convicted Samuel Junior Sanchez of the offense of aggravated assault with a deadly weapon. Upon a plea of true to the enhancement allegation, the jury assessed punishment at confinement for seventy-five years and a fine of $10,000. We affirm. Appellant presents five issues for review. In his first issue, appellant argues that the trial court erred in overruling his Batson challenge and in failing to make findings and conclusions regarding that ruling. In the second issue, appellant contends that the trial court erred in allowing the victim's father to testify. In the third issue, appellant contends that the trial court erred in denying a motion for mistrial made after the State broached the subject of parole. Appellant asserts in his fourth issue that the jury charge was fundamentally defective because it ranked the offenses and thereby commented on the evidence and invaded the province of the jury. In his final issue, appellant challenges the legal and factual sufficiency of the evidence. We will address appellant's sufficiency challenges first, applying the following well-recognized standards of review. To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Appellant's sufficiency complaint relates to mens rea. Appellant was charged with and convicted of aggravated assault with a deadly weapon for intentionally, knowingly, or recklessly causing serious bodily injury to the victim by shooting him with a firearm. See TEX. PENAL CODE ANN. § 22.02 (Vernon Supp. 2008). A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result. A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. A person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. TEX. PENAL CODE ANN. § 6.03 (Vernon 2003). The record shows that the victim, a fifteen-year-old boy, was in the rear passenger seat of a vehicle when he was shot. The bullet, which deprived the victim's brain of oxygen, entered the victim's right shoulder, traveled through his scapula and throat, hit his trachea, and lodged in the left side of his neck. The victim had no vital signs upon arriving at the hospital but was resuscitated and intubated. However, the victim has never regained consciousness and will for the rest of his life remain in an immobile, vegetative state with a feeding tube, a tracheotomy, a catheter, and diapers. Appellant admitted firing the .45 caliber firearm in the direction of the vehicle, but he testified that he was not aiming at the vehicle. Appellant testified that he was provoked by the driver, who had honked at appellant for blocking the road, and that he followed the vehicle and fired his gun "just trying to scare these kids." Appellant fired several shots while driving down the road in a residential neighborhood chasing the kids' vehicle. We hold that the evidence is both legally and factually sufficient to show that appellant intentionally, knowingly, or recklessly caused serious bodily injury to the victim and that he shot the victim with a firearm. Appellant's fifth issue is overruled. In the first issue, appellant contends that the trial court erred in overruling his Batson objection to the State's use of two peremptory challenges on Hispanic females. The use of peremptory challenges to strike potential jurors on the basis of race is prohibited. Batson v. Kentucky, 476 U.S. 79 (1986); TEX. CODE CRIM. PROC. ANN. art. 35.261 (Vernon 2006). In Purkett v. Elem, 514 U.S. 765 (1995), the Supreme Court delineated the three-step process for properly determining a Batson challenge. First, the opponent of a peremptory challenge must make out a prima facie case of racial discrimination, essentially a burden of production. In the second step, the burden of production shifts to the proponent of the strike to respond with a race-neutral explanation. Third, if a race-neutral explanation has been proffered, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. The burden of persuasion is on the opponent of the strike to convince the trial court that the strike was racially motivated. Purkett, 514 U.S. 765; Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999); Camacho v. State, 864 S.W.2d 524, 529 (Tex.Crim.App. 1993). If, as here, the State offers a race-neutral explanation before any inquiry on the prima facie case, the issue of a prima facie case is moot. Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App. 2003). Immediately after appellant objected, the Sate offered the following explanations:
Number 13, her husband is on disability. She is not working. She — I think that would indicate to me — I don't know, some sign of laziness or mooching off the government. That's my thinking on her.
She also did not complete high school. She only has a 10th grade education. And it is the State's position that this case requires more education and training than just a 10th grade education.
[Number 25] only has a GED. She is single. And I think those are things that we took into consideration in striking her.Appellant did not rebut the State's explanations, and the court overruled appellant's objection without reducing the findings and conclusions to writing or stating them on the record. Appellant complains of the trial court's failure to make findings of fact and conclusions of law with respect to its Batson ruling. However, the trial court's ruling constituted an implied finding that the State's peremptory challenges were not racially motivated. Martinez v. State, 824 S.W.2d 724, 726 (Tex.App.-Fort Worth 1992, pet. ref'd). In reviewing the propriety of such a ruling, we must give great deference to the trial court's determination of fact and may not disturb the trial court's ruling on a Batson issue unless it was clearly erroneous. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App. 1999); Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Crim.App. 1993). Lack of education has been upheld as a race-neutral explanation for exercising a peremptory challenge. Brewer v. State, 932 S.W.2d 161, 165 (Tex.App.-El Paso 1996, no pet.). In this case, the State's explanation was reasonable and racially neutral, and appellant did not offer any rebuttal showing that the State's race-neutral reason for striking the two Hispanic females was a pretext for discrimination. See Yarborough v. State, 947 S.W.2d 892 (Tex.Crim.App. 1997). Appellant's first issue is overruled. In his second issue, appellant argues that the trial court erred in allowing the victim's father to testify at the guilt/innocence phase of trial and that his testimony was overly prejudicial and irrelevant at the time. When the State called the victim's father to the stand, appellant objected under TEX. R. EVID. 401, 402, 403, asserting that the testimony would only serve to inflame the jury. The record shows that the victim's father testified briefly, giving some basic information about himself and the victim, about the evening of the shooting, and about the victim's condition. Because the testimony was relevant and was not overly prejudicial, the trial court did not abuse its discretion in allowing it. Appellant's second issue is overruled. In his third issue, appellant argues that the trial court erred in denying a motion for mistrial that was based upon the State's cross-examination of appellant about parole. The State asked appellant how much time he actually spent in prison on a four-year sentence for a prior conviction. Defense counsel objected before appellant answered the question. The trial court sustained the objection and instructed the jury to disregard the question. Defense counsel did not move for a mistrial at that time. Consequently, appellant received all the relief he requested regarding the parole complaint and failed to preserve the issue for review. TEX. R. APP. P. 33.1; Griggs v. State, 213 S.W.3d 923, 927 (Tex.Crim.App. 2007); Easterling v. State, 710 S.W.2d 569, 580 (Tex.Crim.App. 1986). The third issue is overruled. In his fourth issue, appellant asserts that the jury charge was fundamentally defective because it constituted a comment on the evidence and invaded the province of the jury. Appellant's complaint stems from the trial court's "ranking" and denomination of the lesser included offenses in the charge. Appellant did not voice any such objection at trial. Appellant was indicted for aggravated assault; the jury was instructed on the offense of aggravated assault and the lesser included offense of deadly conduct. At the end of the application paragraph for aggravated assault, the trial court instructed the jury to acquit appellant of aggravated assault if it had a reasonable doubt thereon and consider whether appellant was "guilty of the lesser included offense of DEADLY CONDUCT." The trial court's inclusion of the words "lesser included offense" did not constitute a comment on the weight of the evidence. Posey v. State, 840 S.W.2d 34, 40 (Tex.App.-Dallas 1992, pet. ref'd). Thus, we hold that the jury charge was not erroneous. Moreover, even if it was erroneous, the error was not brought to the trial court's attention and was not so egregious that appellant was denied a fair and impartial trial. See TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). The fourth issue is overruled. The judgment of the trial court is affirmed.
Batson v. Kentucky, 476 U.S. 79 (1986).