No. 04-06-00028-CR
Delivered and Filed: April 11, 2007. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2004-CR-8842 Honorable Philip A. Kazen, Jr., Judge Presiding.
Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
Opinion by REBECCA SIMMONS, Justice.
AFFIRMED Appellant Denise Scott was convicted of aggravated robbery with a deadly weapon and assessed a sentence of five years confinement in the Institutional Division of the Texas Department of Criminal Justice and a $1,500.00 fine. Scott raises four issues in her appeal: the denial of her Batson challenges; the pre-trial identification procedure; the admission of evidence, and the sufficiency of the evidence. We affirm the judgment of the trial court.
Factual Background
On Thursday, October 7, 2004, a female dressed in Army pants, a hooded sweater, and a scarf over her mouth robbed the Oak Hills Medical Center Hotel. Bridgette Gonzales and Natalie Ramirez were the only desk clerks working at the hotel that evening. Gonzales testified that shortly before the robbery, she left the front desk to use the restroom. On the way, she passed a woman wearing Army pants, a hooded sweater, and a scarf around the lower half of her face. When Gonzales returned from the restroom, she found the woman behind the front desk counter. The woman turned around, displayed a long knife and demanded money. Gonzales was forced into the back office, told to lie down on the floor and not to look at the woman. Ramirez then gave the assailant money from the cash register and the hotel's safe. The robbery lasted approximately five to seven minutes. When the police arrived, Gonzales described the assailant's height, weight, hair color and texture, clothing, and complexion. Ramirez's description was similar. Gonzales also reported that she recognized the woman as a former guest of the hotel, but did not know her name. Gonzales explained the guest was memorable because she had a confrontation with the hotel controller, Marie Parker. Shortly after the robbery, Parker reviewed the hotel records and provided Appellant's name to Gonzales. Gonzales, in turn, informed the police. After learning Scott's name, Detective Kevin Potts compiled a photo array. Gonzales immediately picked Scott as the individual who committed the robbery. Potts then compiled a second array using the same picture of Scott, and showed it to Ramirez, who also identified Scott as the assailant. Batson and Constitutional Challenges
Scott contends that, in overruling her Batson challenges, the trial court violated her Sixth and Fourteenth Amendment rights as well as Texas constitutional and statutory rights. Batson v. Kentucky, 476 U.S. 79 (1986); Tex. Const. art. I § 3a, 15; Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 2006). Because Scott failed to raise the Texas constitutional and statutory claims specifically before the trial court, they are not preserved for appellate review. See Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon 2006); Tex. R. App. P. 33.1. Our review is therefore limited to the Batson challenges established under the Sixth and Fourteenth Amendments. A. The Batson test
Batson and its progeny dictate that peremptory strikes made during jury selection may not be based on a juror's race. Batson v. Kentucky, 476 U.S. 79, 85-86 (1986); Guzman v. State, 85 S.W.3d 242, 245-46 (Tex.Crim.App. 2002) (en banc). A defendant may challenge the peremptory strikes if she believes the strikes are racially motivated. A Batson challenge consists of three steps: 1) the defendant's prima facie case that a veniremember was peremptorily excluded on the basis of race; 2) the State's tender of a race-neutral justification for the exclusion; and, 3) if the State's explanation is racially neutral, the defendant's rebuttal to the State's explanation. Id. at 246. Ultimately, the Batson challenger bears the burden of showing purposeful discrimination. Shuffield v. State, 189 S.W.3d 782, 785 (Tex.Crim.App. 2006) (citing Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App. 2002)). B. Standard of review
We review a trial court's decision on a Batson challenge under a clearly erroneous standard, and will reverse only if we are of the "definite and firm conviction that a mistake has been committed." Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App. 1992) (citing U.S. v. Hernandez, 887 F.2d 564, 567 (5th Cir. 1989)). Because pretext for discrimination is a question of fact, we give great deference to the trial court's observation of the attorneys and the prospective jurors. See Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App. 2004). If, after reviewing the evidence in the light most favorable to the trial court's ruling, the defendant fails to overcome the State's race-neutral explanation, we uphold the ruling. See Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App. 1991). C. Analysis
Appellant is African-American. Her venire pool consisted of sixty-two members. Four African-Americans were in the pool, and all were peremptorily struck by the State. The defense objected to the strikes, arguing race-based exclusion by the State. Although the trial court held that Scott failed to prove a prima facie Batson case, the State's briefing concedes the defense properly presented her challenge. We agree. See Salazar v. State, 795 S.W.2d 187, 193 (Tex.Crim.App. 1990) (en banc) (concluding State's election to strike all venirepersons of the same race satisfies the prima facie case requirement). We now examine each strike. Veniremember Number 3. Upon objection by defense counsel, the prosecutor argued the potential juror's belief, that an identification of the suspect must be made almost immediately after the crime in order to be reliable, would not be favorable to the State's evidence. The parties dispute which potential juror actually made the statement, and the reporter's record is also unclear. Yet, the State's notes indicate that Veniremember Number 3 was speaking. A peremptory challenge based on an honest, racially neutral reason, although a mistaken one, is not racially motivated. Salinas v. State, 888 S.W.2d 93, 98 (Tex.App.-Corpus Christi 1994, pet. ref'd). Furthermore, Scott's only rebuttal was that the veniremember would have been an ideal prosecution juror because he was employed by the state. The trial court ruled the prosecutor's reason was racially-neutral and not pretextual for discrimination. Veniremember Number 9. The State argues Veniremember Number 9 was struck because his nephew was currently incarcerated in Alabama for committing a robbery, and he would be biased in favor of the defense. A defendant may rebut the State's race-neutral explanation by showing disparate treatment of similarly situated jurors. See Williams v. State, 804 S.W.2d at 105-06. See also Johnson v. State, 959 S.W.2d 284, 292 (Tex.App.-Dallas 1997, pet. ref'd) (disparate treatment may be shown when the State only strikes minority venire persons who gave answers similar to nonminority prospective jurors the State did not strike). However, "[w]hile disparate treatment of veniremembers with similar characteristics may indicate a racial bias, the record must reflect more than the mere fact that the objectionable characteristic of a stricken juror was also possessed by accepted jurors of a different racial background." Lamons v. State, 938 S.W.2d 774, 778 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd) (citing Cantu v. State, 842 S.W.2d 667, 689) (Tex.Crim.App. 1992) (en banc)). Scott failed to offer any evidence of disparate treatment. She brings no other similarly-situated veniremembers to our attention who served on the jury. We are not persuaded that Scott has shown purposeful racial discrimination with regard to this strike. Shuffield, 189 S.W.3d at 785-86. Veniremember Number 11. The State asserts that it struck Veniremember Number 11 because he would be biased against the State because he and Scott's mother worked for the same company. A shared employer is a race-neutral reason for striking a juror. Keeton v. State, 749 S.W.2d 861, 869 (Tex.Crim.App. 1988) (en banc) (listing race-neutral reasons). Scott attempted to rebut this explanation by eliciting from the veniremember that any interaction between him and the defendant's mother was infrequent, and that working with the defendant's mother would not affect his judgment at the trial. Scott failed to overcome the State's explanation with regard to this veniremember, and in her brief admits "the State could have a legitimate reason" for striking this veniremember. Veniremember Number 14. Because Veniremember Number 14 appeared reluctant to convict an individual for aggravated robbery if no weapon was recovered, the State argued the veniremember might hold the State to a higher burden and thus was struck. Additionally, the State argued that the veniremember looked bored during voir dire and did not appear "agreeable" to the State's position. Both of these explanations have been found race-neutral. See, e.g., Levy v. State, 749 S.W.2d 176, 178 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd) (allowing explanation that juror appeared "bored and antagonistic"). In her rebuttal, Scott asserted that during the general questioning session, the veniremember said she could not be fair unless she heard from the defendant, making her an ideal juror to the prosecution. This rebuttal is insufficient to prove purposeful discrimination by the State. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App. 1999) (en banc) ("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 that the trial court abused its discretion in finding that appellant failed to carry its burden"). We conclude Scott failed to prove purposeful discrimination with regard to Veniremember 14. After viewing the evidence in the light most favorable to the trial court's rulings, we do not hold the rulings were clearly erroneous, and therefore overrule this appellate point. Photo Arrays
Scott contends the trial court erred in admitting the two photo arrays used to identify her as the robbery suspect. Additionally, she argues the police used an impermissibly suggestive identification procedure, thereby depriving her of a fair trial. Because the admission of evidence and impermissible identification procedures are separate questions, we address them as such. Identification Procedure
Scott asserts the photo arrays were impermissibly suggestive and inadmissible because the hotel clerks described the assailant as "dark-complected" but the arrays showed "light-skinned individuals." Scott claims the first array was suggestive because it portrayed three women of apparent Hispanic origin and only two African-American women other than herself. Additionally, Scott argues the shape of the other women's faces was different than her own. Regarding the second array, Scott contends she was the only African-American depicted; all the other individuals were "obviously Hispanic," with skin lighter than her own. A. Standard of review
Deciding whether a pre-trial identification procedure was impermissibly suggestive is a mixed question of fact and law. Loserth v. State, 963 S.W.2d 770, 773 (Tex.Crim.App. 1998) (en banc). We apply a de novo standard of review for mixed questions of law and fact that do not turn on an evaluation of credibility or demeanor. Id. To challenge the admissibility of a pretrial identification, Scott has the burden to show, by clear and convincing evidence, based on the totality of the circumstances, that: (1) the pretrial identification procedure was impermissibly suggestive and (2) it created a substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995) (en banc). B. Analysis
A pre-trial identification procedure may be impermissibly suggestive when the defendant's photo is the only one in the array that matches the original description of the perpetrator. See Tapley v. State, 673 S.W.2d 284, 286-87 (Tex.App.-San Antonio 1984, pet. ref'd) (concluding procedure was impermissibly suggestive because defendant was the only Caucasian male in the array but upholding in-court identification). But see Zarychta v. State, 44 S.W.3d 155, 170 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (holding array of six men with varying degrees of dark hair and dark complexions was not impermissibly suggestive, even though defendant was the only Caucasian pictured). "While the better practice may be to get as many individuals as possible who fit the defendant's description, it is not essential that all the individuals be identical; `neither due process nor common sense' requires such exactitude." Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App. 1985) (en banc). In this case, the arrays show females with hair styled similar to the perpetrator's, as described by the clerks. Furthermore, each individual depicted resembled each other in skin tone. In this case, Scott failed to demonstrate, by clear and convincing evidence, that the pretrial identification procedure was impermissibly suggestive. We therefore do not need to make a determination as to whether a very substantial likelihood for irreparable misidentification was created. Colgin v. State, 132 S.W.3d 526, 532 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). As discussed above, Scott failed to show the pre-trial identification procedure was impermissibly suggestive. Because the procedure utilizing the arrays was not impermissibly suggestive, it was not error for the trial court to admit them. Moreover, "an error in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). Scott concedes both clerks identified her at trial, without objection, as the person in the photo array as well as the person who committed the robbery. Etheridge v. State, 903 S.W.2d 1, 14 (Tex.Crim.App. 1994). Finally, even if the arrays were wrongly admitted, the erroneous admission of evidence is nonconstitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Nonconstitutional error "that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King, 953 S.W.2d at 271. We will not overturn a criminal conviction for nonconstitutional error if, after examining the record as a whole, we determine that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). The unobjected-to evidence that Scott was the perpetrator cured any error in admitting the photos. Based on a review of the record, we conclude the error, if any, did not affect a substantial right. Sufficiency of the Evidence
Scott challenges the legal and factual sufficiency of the evidence. Scott specifically contends the trial court erred in denying her a directed verdict. A challenge to the denial of a directed verdict is a sufficiency of evidence challenge. A. Standard of review
In a legal sufficiency review, we examine the evidence in the light most favorable to the verdict, and ask whether any 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); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (en banc). For a factual sufficiency review, we look at all the evidence in a neutral light to determine if the evidence is so weak that the jury's verdict seems "clearly wrong and manifestly unjust," or that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). B. Analysis
To prove robbery, the State must demonstrate, beyond a reasonable doubt, that Scott intentionally, knowingly, or recklessly caused bodily injury to another, or intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death in the course of committing theft. Tex. Pen. Code Ann. § 29.02 (Vernon 2003). To prove aggravated robbery, the State must demonstrate Scott committed the robbery and used or exhibited a deadly weapon. Tex. Pen. Code Ann. § 29.03 (Vernon 2003). In this case, two eyewitnesses identified Scott as the individual who threatened them with a long knife while committing a theft. The testimony of a single eyewitness may be legally sufficient to uphold a conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App. 1971); Davis v. State, 177 S.W.3d 355, 359 (Tex.App.-Houston [1st Dist.] 2005, no pet.). Based on the evidence most favorable to the verdict, a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Accordingly, we conclude the evidence is legally sufficient. As we have already determined the evidence to be legally sufficient, we now examine whether the jury's verdict is "clearly wrong and manifestly unjust" or contradicts the great weight and preponderance of the evidence. Scott suggests the clerks might have mistaken her for someone else. At trial, she presented three alibi witnesses and testified on her own behalf. Scott testified that, on the evening of the robbery, she attended her college math class at Northwest Vista Community College and then went directly to her fiancé's house. The course instructor, Jere Hicks, testified that although she did not have an independent recollection of that class, a review of her records indicated she administered an exam and recorded a grade for Scott. Scott's fiancé at the time of the robbery, Avery Allen, also testified that he could not recall that evening but he normally attended boxing class on Thursdays. After boxing, he would return home and Scott was almost always there when he arrived. Allen's mother, Vanessa Kent, testified she and Scott were together every evening that week except Wednesday, preparing for an event. However, Kent could not remember the night in question with any specifics. Scott further argues the officers failed to take reasonable steps to gather independent evidence of the assailant's identification. For example, the hotel maintained a video surveillance system, which was focused on the front desk cash register, but the tape was never retrieved by the officers. She also pointed out that the police officers failed to conduct a thorough search for fingerprints when they stopped after the clerks indicated the assailant did not touch anything. Additionally, neither the cash nor the knife were recovered. Scott raised the possibility that the perpetrator was someone else, but that possibility does not stand up against the great weight and preponderance of the State's evidence. Despite discrepancies in the witnesses' testimony, the "jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (en banc). An appellate court cannot overturn a conviction because it disagrees with the "quantum of evidence admitted," or because it would have come to a different conclusion than the jury. Watson, 204 S.W. 3d at 417. The jury was free to believe one witness' testimony over another. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997) (en banc). After examining all the evidence in a neutral light, we conclude the evidence was factually sufficient. Accordingly, we overrule appellant's legal and factual sufficiency issues on appeal. Conclusion
Scott failed to meet her burden under Batson by showing the State purposefully discriminated against certain jurors. The pre-trial identification procedure was not impermissibly suggestive, and Scott failed to show how the admission of the photo arrays constitutes error. After reviewing the evidence, we hold the evidence presented at the trial court is factually and legally sufficient to uphold the guilty verdict. We therefore affirm the judgment of the trial court.